MOSAI PUSHPA RAJ AND ANR. vs UNIOIN OF INDIA AND ORS.

IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
[CIRCUIT BENCH AT PORT BLAIR]

PRESENT: THE HON'BLE JUSTICE AMRITA SINHA

WPA/484/2023
IA No.CAN/1/2025

MOSAI PUSHPA RAJ AND ANOTHER ... PETITIONERS

Vs.

UNION OF INDIA AND OTHERS ... RESPONDENTS

With
WPA/485/2023
IA No.CAN/1/2025

SMTI SOMA CHOUDHURY AND OTHERS ... PETITIONERS
Vs.
UNION OF INDIA AND OTHERS ... RESPONDENTS

For the petitioners : Mr. Gopala Binnu Kumar
Ms. Vinita Devi

For the respondent Nos. 1-4 : Mr. Rakesh Kumar

For the respondent No. 5 : Mr. V.D. Sivabalan

Heard and reserved on : August 27, 2026

Judgment delivered on : September 3, 2026

Judgment uploaded on : September 3, 2026


AMRITA SINHA, J.

1. WPA/484/2023 has been filed by two petitioners serving as daily
rated employees and WPA/485/2023 has been filed by three petitioners
who are working as Data Entry Operator in the office of the District and

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Sessions Judge, Andaman and Nicobar Islands for more than ten years
at a stretch.
2. The petitioners pray for regularization of their service on and from
their initial date of appointment and all consequential benefits. As the
petitioners claim to be similarly placed and seek similar relief, both the
writ petitions were directed to be tagged and were heard analogously.
Both the writ petitions are disposed of by this common judgment.
3. The petitioners in WPA/484/2023 were intimated by a notice in
the year 2011 by the Superintendent, District and Sessions Court, Port
Blair that their name was sponsored by the employment exchange for
considering appointment as DRM (Peon)/Mazdoor on daily rated basis
for a short duration of six months in the establishment of the District
and Sessions Judge, Andaman and Nicobar Islands, Port Blair. The said
petitioners were required to appear before the Selection Committee in
the office of the learned Additional District and Sessions Judge, Port
Blair for a personal interview. The petitioners were required to carry
with them certificates and testimonials in original along with attested
copies thereof.
4. The petitioners attended the interview and appeared before the
Selection Committee. In November, 2011, the petitioners were intimated
by Office Order issued by the District and Sessions Judge, Andaman
and Nicobar Islands, Port Blair that they were appointed as Mazdoor on

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daily rated basis in the establishment of the District and Sessions
Judge, Andaman and Nicobar Islands, Port Blair for a period of three
months. The Office Order clearly specified that they would not be
entitled to claim regular appointment or continuation in daily rated
employment and the District and Sessions Judge, Andaman and
Nicobar Islands, Port Blair reserved the right to disengage them at any
time in course of employment.
5. During their engagement, the petitioners were assigned various
duties under the District and Sessions Judge, Andaman and Nicobar
Islands, Port Blair. One of the petitioners was assigned duties in the
account section of the learned Civil Judge, Senior Division, Port Blair
and also assigned duties in the district record room of the Judicial
Magistrate First Class-II at Port Blair.

6. The petitioners in WPA/485/2023 responded to an employment
notice published in the daily newspaper in January, 2012 by the learned
District and Sessions Judge, Andaman and Nicobar Islands, Port Blair
for filling up of three posts of Data Entry Operator in the office of the
District and Sessions Judge, Andaman and Nicobar Islands, Port Blair.
Application in sealed envelope in the prescribed proforma was submitted
along with testimonials and certificates. The selection procedures
mentioned about a trade test being conducted to determine data entry
speed and accuracy.

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7. Being successful in the selection process, the petitioners were
appointed in April, 2012 and January, 2013 as Data Entry Operator on
daily rated basis for a period of three months. The appointment letters
contained similar clauses of not claiming regular appointment or
continuation in daily rated employment.
8. Both sets of petitioners have been renewed in service from time to
time and by the time the writ petitions were filed, they completed ten
years of unblemished continuous service.
9. The petitioners submit that the service rendered by them is
perennial in nature and integral to the organization. The authority,
being satisfied with the performance of the petitioners, extended their
service from time to time. The same implies that there is a requirement
and necessity of the service of the petitioners. The service of the
petitioners is same as that of the regular employees but the petitioners
are not paid the regular scale.
10. The petitioners contend that they were appointed after regular
selection process being conducted. Their service cannot be said to be
backdoor illegal appointment. The authority ought to take steps for
regularizing their service in terms of the dictum laid down by the
Constitutional Bench of the Hon’ble Supreme Court, in the matter of
Secretary, State of Karnataka and Others vs. Umadevi (3) &
Others reported in (2006) 4 SCC 1.

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11. It has also been submitted that the petitioners ought to be paid
th
1/30 of pay plus dearness allowances at the minimum of the relevant
pay scale for discharging the duties and responsibilities of regular
th
employee in terms of the Office Memorandum dated 07 June, 1988
issued by the Ministry of Personnel, Public Grievances, Department and
Training.
th
12. The Office Memorandum dated 07 June, 1988 has been placed
wherein it has been specifically mentioned that persons on daily rated
basis should not be recruited for work of regular nature. Where the
nature of work entrusted to the daily wagers and regular employees is
th
the same, the daily wagers may be paid at the rate of 1/30 of pay plus
dearness allowances at the minimum of the relevant pay scale for work
of eight hours a day.

13. Specific case of the petitioners is that as they have rendered
continuous, uninterrupted, satisfactory service for more than a decade,
the authority ought to consider their prayer for regularization and all
consequential benefits.
(i) Jaggo vs. Union of India reported in (2024) SCC OnLine
SC 3826 .
(ii) Vinod Kumar and Others vs. Union of India reported in
2024 INSC 332 .

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(iii) Union of India Rep by Government of Puducherry and
Another vs. K. Velajagan and Others reported in (2025)
SCC OnLine SC 837 .
(iv) Dharam Singh and Others vs. State of UP reported in
(2025) SCC OnLine SC 1735 .
(v) Bhola Nath vs. State of Jharkhand and Others reported
in (2026) SCC OnLine SC 129 .
(vi) Mohammad Sagir and Others vs. Nagar Nigam Kanpur
reported in (2026) SCC OnLine SC 473 .
(vii) Sukhendu Bhattacharjee and Others vs. State of Assam
and Others reported in (2026) SCC OnLine SC 909 .

14. The respondents oppose the prayer for regularization and grant of
consequential relief as sought for by the petitioners. It has been
submitted that as and when the learned District and Sessions Judge,
Andaman and Nicobar Islands, Port Blair required support staff, the
said respondents approached the local Administration. For providing
support to the Court, the Administration accepted the proposal of the
learned District and Sessions Judge, Andaman and Nicobar Islands,
Port Blair and sought for names of eligible candidates from the local
employment exchange. Public advertisement was also floated in the local
newspaper calling for application from eligible candidates for performing

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the duties as per the requirement of the learned District and Sessions
Judge, Andaman and Nicobar Islands, Port Blair.
15. As there were no sanctioned posts where the petitioners could be
appointed and as there was requirement of handling the increased work
load of the Court, accordingly, the respondent authority had to engage
the petitioners as stop gap arrangement on daily rated basis for a
stipulated time period.
16. The respondents though admit that the service of the petitioners
stood extended from time to time and there is no complaint as regards
their performance, but at the same time it has been contended that,
regular extension does not bestow any right upon the petitioners to
claim regularization.
17. It has been argued that the petitioners, on the very first day of
their appointment, were made aware by incorporating necessary clause
in their appointment letter that their service was meant for a particular
period and they were not entitled to claim regular appointment or
continuation in employment. After having accepted such terms and
conditions in their appointment letter, the petitioners would be estopped
from making the prayer for regularization.
18. It has been argued that the judgment delivered by the Hon’ble
Supreme Court in the matter of Umadevi (supra) stands as a bar to seek
regularization. The respondents pray for dismissal of the writ petitions.

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19. I have heard and considered the submissions of both the parties
and have perused the materials on record.
20. It is admitted that the petitioners were provided appointment after
a regular selection process was conducted. There were several
candidates who participated in the selection process. Apart from
fulfilling the minimum educational qualification and the prescribed age
criteria, the Data Entry Operators were required to appear in a trade
test for assessment of their speed and accuracy. Only after they were
successful at all stages, the petitioners were offered appointment.
21. It may be that the posts in which the petitioners were appointed
and are functioning for more than ten years have not been sanctioned
by the authorities but it cannot be lost sight of the fact that the service
rendered by the petitioners is absolutely integral and essential for the
day-to-day functioning of judicial work in the office of the learned
District and Sessions Judge, Andaman and Nicobar Islands, Port Blair.
The service rendered by the petitioners is no less compared to the
regular employees. In fact, the petitioners are providing far more service
than the other regular employees.
22. It is no gain saying that despite remaining in service for such a
long stretch of time, the petitioners still suffer from the fear that they
may lose their job if their service is found to be unsatisfactory in any
manner. They have to remain far more diligent, attentive and

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hardworking than the other regular employees. Even thereafter, they
have to work with a paltry amount of consolidated pay.
23. To deal with such inconsistency in the service career of the daily
th
wagers, the Ministry issued the Office Memorandum way back on 07
June, 1988 for immediate implementation. It appears that the directives
mentioned in the said Office Memorandum have also not been adhered
to by the respondent authorities. By not taking steps in compliance of
the direction in the Office Memorandum, the respondents are acting
contrary to the direction issued by the Ministry.
24. Submission of the respondents that the petitioners are working in
unsanctioned post and, accordingly, they cannot be regularized also
cannot be taken to be a valid stand for not regularizing the service of the
petitioners.
25. In Jaggo (supra) the Hon’ble Supreme Court categorically laid
down that the nature of the work performed rather than the label
assigned to the worker, should determine the employment status and
their corresponding rights and benefits. The Court highlighted the
judiciary’s role in rectifying misclassifications and to ensure that the
workers receive fair treatment. The Court held that the government
departments should lead by examples in providing fair and stable
employment.

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26. The Court was of the opinion that engaging workers on temporary
basis for extended periods, especially when their roles are integral to the
organization’s functioning, not only contravenes international labour
standards but also exposes the organization to legal challenges and
undermines employee morale. By ensuring fair employment practices,
government institutions can reduce the burden of unnecessary
litigation, promote job security and uphold the principle of justice and
fairness. The Court directed regularization of service.

27. In Vinod Kumar (supra) the Hon’ble Supreme Court held that the
essence of employment and the right thereof cannot be determined by
the initial terms of appointment. The continuous service of the
employees performing duties indistinguishable from those in permanent
posts, and their selection through a process that mirrors regular
recruitment, constitute a substantive departure from the temporary and
scheme specific nature of their initial engagement. Reliance on
procedural formalities at the outset cannot be used to perpetually deny
substantive rights that have accrued over a considerable period through
continuous service. The Court directed regularization of the employees.
28. In Velajagan (supra), the Hon’ble Supreme Court reiterated the
proposition laid down in Shripal (supra) that Umadevi (supra) cannot be
used as a shield to justify exploitative engagement persisting for years

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without the employer undertaking legitimate recruitment process to
deny relief of regularization.
29. In Dharam Singh (supra), the Hon’ble Supreme Court observed
that the practices of long term extraction of regular labour under
temporary labels corrodes confidence in public administration and
offends the promise of equal protection. The observations in Shripal
(supra) and Velajagan (supra) where reiterated once again. The Court
directed regularization and creation of supernumerary posts along with
pay protection. A compliance affidavit was directed to be filed by the
respondents for ensuring compliance of the direction passed by the
Court.
30. In Bhola Nath (supra), the Hon’ble Supreme Court directed
regularization of the contractual employees. The Court concluded that
the respondent-State is not justified in continuing contractual
employees on sanctioned vacant posts for over a decade under the
nomenclature of contractual engagements and thereafter denying them
consideration for regularization. The Court held that contractual
stipulation purporting to bar claims for regularization cannot override
constitutional guarantees. Acceptance of contractual terms does not
amount to waiver of fundamental rights and contractual stipulations
cannot immunize arbitrary State action from constitutional scrutiny.
The State, as a model employer, cannot rely on contractual labels or

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mechanical application of Umadevi (supra) to justify prolonged ad-
hocism or discard long serving employees in a manner inconsistent with
fairness, dignity and constitutional governance.
31. In Mohammad Sagir (supra), the Hon’ble Supreme Court held that
each case is to be decided on its own facts. In a case, where engagement
is for a substantial length of time, a presumption arises that the work
for which the workmen is engaged is of a perennial nature and there
exists a vacant post. It is difficult to accept that workmen are engaged
as substitutes for regular workers if they have worked for a long period
of time.
32. In Sukhendu (supra) the Hon’ble Supreme Court, after noticing
that the workers discharged their duties over a prolonged period of time,
directed regularization even though they were not appointed against
sanctioned posts and the decision in Umadevi (supra) prohibits such
regularization. The Court was of the considered view that reliance on
Umadevi (supra) for not regularizing the service of the workmen is
misplaced.
33. In Sukhendu (supra) took note of the Full Bench decision of the
Hon’ble Gauhati High Court in matter of Jitendra Kalita & others vs.
State of Assam & others reported in 2006 (2) GLT 654 wherein the
Court held that the solution to the issue of regularization must be
undertaken by the State as a policy measure. Regularization, where

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permissible in law, is an executive function and its falls within the
domain of policy and administration. Courts do not grant prior approval
to executive decisions. It is not for the Court to authorize the executive
to exercise powers already vested in it. The Court was pleased not to
accept the sweeping proposition that no regularization can be made in
respect of employees not appointed against duly sanctioned posts.
34. Umadevi (supra) requires the respondent authorities to consider
the case of employees who have continued to work for ten years or more
without intervention of judicial order for regularization. The authorities
ought to formulate and devise a scheme according to which such
employees may be regularized in service, however, in duly sanctioned
posts.
35. As the petitioners are regularly working against non-sanctioned
posts and the office of the learned District and Sessions Judge,
Andaman and Nicobar Islands, Port Blair cannot function without them,
the authorities ought to take a decision for creation of posts where they
may be regularized. Till a decision is taken with regard to the prayer of
the petitioners seeking regularization, the authority ought to implement
th
the direction passed in the Office Memorandum dated 07 June, 1988.
36. Not considering the prayer of the petitioners seeking
regularization allegedly on the ground of non availability of sanctioned
posts and at the same time not granting benefits to the petitioners in

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th
accordance with the Office Memorandum dated 07 June, 1988 acts as
a double jeopardy to the petitioners. The petitioners are deprived in both
ways; they are not being regularized in service and are also not getting
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the benefit of 1/30 of pay plus dearness allowances at the minimum of
the relevant pay scale.
37. The respondents have not made out any case for not regularizing
the service of the petitioners. It is also not the case of the respondents
that the petitioners were appointed illegally. Merely by relying on
technical issues like non availability of sanctioned posts and the clauses
incorporated in the letter of appointment, the respondents are trying to
stall the prayer of the petitioners for regularization.
38. The Court is of the considered opinion that the petitioners have
made out a reasonably strong case for grant of relief in their favour.
39. In view of the above, it is hereby ordered that the respondent
authorities ought to consider the prayer of the petitioners for
regularization from their initial date of appointment along with all
consequential benefits. A decision shall be taken by the competent
authority within a period of twelve weeks from the date of
communication of this judgment. A reasoned order shall be passed and
communicated to the petitioners. If the prayer of the petitioners is
allowed, then necessary follow-up action shall be taken by the authority
without any further delay.

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40. Till a decision is taken by the authorities as regards regularization
of service, the respondents shall take steps to implement the Office
th th
Memorandum dated 07 June, 1988 and pay the petitioners 1/30 of
pay plus dearness allowances at the minimum of the relevant pay scale
after ascertaining as to whether the nature of work and service rendered
by the petitioners are same as that of the regular employees. If upon
ascertainment by the competent authority, it is found that the nature of
work entrusted to the petitioners is same as that of regular employees,
then payment in terms of the aforesaid Office Memorandum shall be
made without any further delay. A decision shall be taken in this matter
within a period of twelve weeks from the date of communication of this
judgment.

41. The writ petitions being WPA/484/2023 and WPA/485/2023 are
disposed of. The connected applications are also disposed of accordingly.
42. There shall, however, be no order as to costs.
43. All parties are directed to act on a server copy of this judgment
duly downloaded from the official website of this Court.

( AMRITA SINHA, J. )