S.K. Mishra, J.

1. Writ Appeal No.3071 of 2023 has been preferred by the Appellants, who were the Petitioners in WPC (OAC) No.2180 of 2016, against the Judgment dated 15.11.2023 passed by the learned Single Judge in WPC (OAC) No.2180 of 2016 with a prayer to modify the said judgment and direct the Respondent No.1 to regularize their services.

                  Similarly, Writ Appeal No.296 of 2025 has been preferred by the State of Odisha and others, who were the Opposite Parties in WPC (OAC) No.2180 of 2016, with a prayer to set aside the said judgment dated 15.11.2023 passed in WPC (OAC) No.2180 of 2016.

2. The parties to the above Appeals being same and the impugned judgment in both the Writ Appeals being same, involving the issue regarding regularization of the services of the Appellants in Writ Appeal No.3071 of 2023, both the Writ Appeals were taken up together for hearing and final disposal and are being disposed of vide this common Judgment.

3. It is pertinent to mention here that, the Appellants in Writ Appeal No.3071 of 2023 preferred O.A. No.2180 (C) of 2016 before the Odisha Administrative Tribunal with a prayer to set aside the notice declaring the result in connection with Advertisement No.9119 dated 17.12.2015, read with Corrigendum No.9381 dated 28.12.2015. On abolition of Odisha Administrative Tribunal, the said case, being transferred to this Court, was re-registered as WPC (OAC) No.2180 of 2016 and disposed of vide the impugned judgment.

4. Mr. Routray, learned Senior Counsel for the Appellants in Writ Appeal No.3071 of 2023, drawing attention of this Court to various paragraphs of the impugned Judgment passed by the learned Single Judge, so also relying on the judgments in Jaggo Vs. Union of India, reported in AIR 2025 SC 296, Sripal Vs. Nagarnigam, Gagiabad, reported in 2025 SCC OnLine SC 211, judgment dated 19.08.2025 of the Supreme Court in Dharam Singh & Ors. Vs. State of U.P. & Ors. passed in Civil Appeal No.8558 of 2018, so also judgment of this Court dated 08.07.2025 passed in W.A. No.2629 of 2024 (State of Odisha & anr. Vs. Bjay Kishan Nath and Ors.), vehemently argued that, in view of the findings of the learned Single Judge in the impugned judgment, direction ought to have been given for regularization/permanent absorption of the Petitioners against the created posts, instead of relegating them again to the authority concerned for disposal of their representation, which is pending since 2014 despite direction of the learned Tribunal in O.A. No. 2367 (C ) of 2014.

5. Learned Senior Counsel further submitted that when the posts were created for absorbing/accommodating the Appellants and similarly placed two others, the Authority concerned was not justified to go for an open advertisement for filling up those posts.

6. Per contra, learned State Counsel, relying on the Judgment in Secretary, State of Karnataka & others Vrs. Umadevi & others, (2006) 4 SCC 1, submitted that the Appellants in W.A. No.3071 of 2023 had no right to claim for regularization of their services even though their cases were recommended by the authority concerned for their permanent absorption/regularization. Such appointments being made on contractual basis and they being paid from the funds generated from users fee, the Appellants have no right to claim regularization on the plea of creation of posts, which were created subsequent to their appointment.

7. After taking note of the submissions made by the learned Counsel for the parties so also going through the impugned Judgment passed in WPC (OAC) No.2180 of 2016, we feel it appropriate to reproduce below the relevant paragraphs from the impugned Judgment, vide which the learned Single Judge, after taking into consideration the pleadings on record, submissions made by the learned Counsel for the parties so also the case laws cited by the learned counsel for the parties, made certain observations so also gave his findings, which are relevant for proper adjudication of the present Appeals.

                  “9. It is gathered from the pleadings, arguments and submissions with reference to the Odisha Group-C and Group-D Posts (Contractual Appointment) Rules, 2013 as amended by virtue of the Odisha Group-C and Group-D Posts (Contractual Appointment) Amendment Rules, 2017 that,

                  i. the petitioners have been working as ECG Technician in the Cardiology Department on contractual basis continuously since 2011;

                  ii.       the petitioners have been selected by a process of selection pursuant to Advertisement published on 17.11.2010 in “the Sambad”, an Odia daily;

                  iii.  out of the seven candidates selected in the selection process, four were given appointment in Trauma Care Centre and the left out three candidates including the petitioners were engaged in   the Cardiology Department on contractual basis;

                  iv. the report submitted by the Administrative Officer, SCBMCH on 06.08.2015, describing the background under which the petitioners were engaged to work as ECG Technician in the Cardiology Department, was in compliance of direction of the Government of Odisha in Health & Family Welfare Department to the Director of Medical Education & Training, Odisha, with reference to the Order dated 31.10.2014 passed by the learned Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.2367 of 2014, which was much prior to Advertisement No.9119, dated 17.12.2015;

                  v. it has been admitted by the opposite parties in the counter affidavit at paragraph 6 that “the petitioners have been discharging their duties in Cardiology Department satisfactorily since their joining”;

                  vi. it is also admitted by the opposite parties in the said paragraph of the counter affidavit that “due to unavailability of any sanctioned posts, higher authorities have been moved time and again”;

                  vii. it has been candidly stated by the opposite parties in paragraph 6 of counter affidavit that letters were issued to the Government “requesting for creation of further posts of ECG Technicians for absorption of the petitioners” as there is “requirement of ECG Technicians keeping in view of increase in number of patients”, in pursuance of which four posts of ECG Technician are created by the Government.

                  9.1 While the aforesaid position remained undisputed, it is not denied that the petitioners had been sent for 90 days to participate in the Training Programme on Theory and Hands on Practical along with other ECG Technicians, which they have been certified to have completed successfully. Since 2012 the authorities at SCBMCH have been requesting for creation of ECG Technician posts and requesting for regularization of the petitioners as there is need for such posts. It is not the case of the opposite parties that the petitioners were not selected by a selection process and their engagement was not pursuant to Advertisement dated 17.11.2010.

11. Though in the affidavit dated 28.08.2023 sworn to by the Registrar (Administration)-cum-General Superintendent, SCBMCH on behalf of the opposite party No.3 it has not been disputed that the petitioners have been working as ECG Technician since 2011 in the Cardiology Department after being selected by the Selection Committee in connection with Advertisement published on 27.11.2010, it is asserted that “the Advertisement dated 17.11.2010, where under the petitioners were applicants, was issued to fill four posts of ECG Technician in the Trauma Care Centre” and “the petitioners were not selected against said posts”. This statement appears to be in conflict with “List of candidates for selection for the post of ECG Technician” appearing at Annexure-2 to the writ petition, where the petitioner No.1 was shown at serial No.1 and the petitioner No.2 at serial No.6. Since three selected candidates were left out after four selected candidates were engaged to work in the Trauma Care Centre, the petitioners were “appointed” as ECG Technician in the Cardiology Department of SCBMCH on contractual basis with remuneration of Rs.5,200/-. However, the Superintendent of SCBMCH in Memo No.1836, dated 09.08.2019 referring to RDC (CD) Letter No.6086, dated 11.07.2019 and G.A. Department Notification No.19575/Gen, dated 12.09.2017 extended the benefit to the petitioners “to draw their monthly remuneration @ Rs.15,300/- with effect from 01.07.2019” which is in consonance with Annexure appended to the Odisha Group-C and Group-D Posts (Contractual Appointment) Rules, 2013 as amended by virtue of the Odisha Group-C and Group-D Posts (Contractual Appointment) Amendment Rules, 2017. It is also noteworthy that the Administrative Officer of the SCBMCH has allowed the petitioner No.1 to avail Earned Leave from 05.02.2021 to 11.02.2021. Under such premise, it has been argued by Sri Budhadev Routray, learned Senior Advocate that it is difficult to concede to the assertion of the opposite party No.3 in the said affidavit dated 28.08.2023 that “the petitioners’ appointment are ad hoc and de hors any process of law and they cannot claim any right under the Odisha Group-C and Group-D Posts (Contractual Appointment) Rules, 2013”.

                  11.2. No material is placed by the petitioners to show that their engagement would be comprehended within the fold of Category-I as per Rule 4 afore-quoted. Rule 8, manifests that it is applicable to Category-I and Category-II employees. However, Rule 11 spells out that where the contractual employee is less than 45 years of age and completed at least one year of continuous service, such employee could be given scope to apply for Recruitment under sub-rule (1) of Rule 5 for any Group-C and Group-D posts and upper age can be relaxed for entry into Government service. As it transpires from the material placed on record, no opportunity is afforded to the petitioners neither in terms of Rule 8 nor in terms of the decisions/Judgments as discussed in the foregoing paragraphs. Therefore, this Court refuses to accede to the contention of the Sri Biplab Mohanty, learned Additional Government Advocate with reference to paragraph 8 of the affidavit dated 28.08.2023 of the opposite party No.3 to the effect that “the petitioners are barred from participating in recruitment process under the said advertisement because of the prescribed age limit of 32 years”. At the cost of repetition it is reiterated that the requisite qualification has never been objected to by the opposite parties; rather after selection being made in the year 2011, the petitioners successfully completed 90 days’ Training Programme of Theory and Hands on Practical. It is also placed on record by the petitioners that their names were sent to the Government of Odisha in Health and Family Welfare by the authorities of SCBMCH for consideration of regularization in service as ECG Technician much before the publication of Advertisement dated 17.12.2015.

                  12. There is no material placed on record by the opposite parties that the petitioners have been lacking any qualification or bore any blemish record during his employment since 2011. The petitioners were selected by a selection process conducted by a duly constituted Selection Committee. Pursuant to recommendation of their names for regularization, posts of ECG Technician were created. Since there is nothing on record to appreciate the details whether any other ECG Technician was appointed against the four sanctioned posts, in the facts and circumstances of the case, this Court is inclined to issue writ of mandamus to the opposite parties to consider the case of the petitioners for regularization.”

                  (Emphasis Supplied)

8. On perusal of the impugned Judgment, it is amply clear that when the Appellants in W.A. No.3071 of 2023 were appointed in the year 2011, their appointments were contractual. However, on being recommended by the authority of the SCB Medical College & Hospital, shortly hereinafter, “SCBMCH”, four posts of ECG Technicians were created by the Government of Odisha in the Health and Family Welfare Department vide Order dated 05.05.2014. However, without considering the case of the Appellants/Petitioners for their regularization/permanent absorption in the said created posts, Advertisement No.9119 dated 17.12.2015, followed by Corrigendum No.9381 dated 28.12.2015 were issued to fill up those posts through open advertisement. Hence, being aggrieved, the Appellants approached the Odisha Administrative Tribunal with the aforesaid prayer.

9. It is also revealed from the record that such posts were created by the Government on recommendation of the authority concerned to absorb the present Appellants in Writ Appeal No.3071 of 2023. The learned Single Judge dealt with the admitted facts on record, as extracted above, and also took note of the admission made in the Counter filed in WPC (OAC) No.2180 of 2016 regarding creation of posts for absorbing/accommodating the Appellants in Writ Appeal No.3071 of 2023. However, instead of giving direction to the authority concerned to permanently absorb the Appellants in Writ Appeal No.3071 of 2023, the learned Single Judge relegated them to the authority concerned to dispose of their representation, which is pending since 2014, despite direction given by the Odisha Administrative Tribunal vide order dated 31.10.2014 in O.A. No.2367(C) of 2014. The said admission made in the Counter, which was dealt in Para 3.1 of the impugned Judgment, being relevant, is extracted below:

                  “3.1 It is also stated in the counter affidavit that since the petitioners have been discharging duties “satisfactorily since their joining”, the opposite parties have been moving the Department of Health and Family Welfare for creation of posts and at paragraph 6 it has been stated as follows:

                  “*** It is further humbly stated that the petitioners have been discharging their duties in the Cardiology department satisfactorily since their joining and are being paid consolidated remuneration from Users Fund to cater the needs of the Department and the hospital as a whole. Due to unavailability of any sanctioned posts, higher authorities have been moved time and again. vide office Letter No.20301, dated 15.09.2012, Letter No.3768, dated 16.02.2013, Letter No.17872, dated 06.08.2015, Letter No.4774, dated 27.02.2019 & Letter No.6688, dated 15.03.2019 requesting for creation of further posts of ECG Technicians for absorption of the petitioners following due procedure as there is dearth requirement of ECG Technicians keeping in view of increase in number of patients. ***”

                  (Emphasis supplied)

10. Similarly, paragraphs 13.1 & 13.2 of the impugned Judgment, being relevant, are reproduced below:

                  “13.1. The petitioners, as it appears, have been selected by a duly constituted Selection Committee and have been discharging their duties to the satisfaction of the opposite parties, which fact has been admitted by the opposite parties in their counter affidavit. The opposite parties have raised no objection as to the requisite qualification to hold the post of ECG Technician, which the petitioners do possess. Moreover, their names were recommended by the Professor & Head of Department vide Letter No.613, dated 06.08.2013 to the Government of Odisha in Health and Family Welfare Department. A Report dated 06.08.2015 prepared by Administrative Officer, SCBMCH containing detail description of fact with recommendation to consider the case of the petitioners, as asked for in connection with the direction of the Odisha Administrative Tribunal in Order dated 31.10.2014, was also communicated to the opposite party No.1. As the representations of the petitioners are pending consideration, interest of justice would be best met if the opposite party No.1 is directed to consider the same. Hence said opposite party No.1 is hereby directed to consider the representation(s) of the petitioners in the light of the discussions made above with reference to the decisions rendered by different Courts.

                  13.2. Needless to observe that for taking appropriate decision as directed supra the opposite party No.1 is required to bear in mind that the petitioners have been continuously working as ECG Technician with requisite qualification. Their names were recommended for regularization in the service by the authority concerned much prior to publication of Advertisement dated 17.12.2015. It may also be taken note of that the opposite party No.1 in connection with Order dated 31.10.2014 passed by the Odisha Administrative Tribunal called for report/detailed fact-sheet, which is directed to be considered at the time of disposal of representation(s) of the petitioners.”

(Emphasis supplied)

11. On perusal of records, it is ascertained that, in the previous O.A. ,i.e., O.A. No.2367 (C) of 2014, the Administrative Tribunal disposed of the said O.A. directing the Commissioner-cum-Secretary Health and Family Welfare Department, Bhubaneswar to treat the contents of the said O.A. as the representation of the Petitioners, who were the Applicants in the said O.A., and to consider their case for contractual appointment against the posts created vide order dated 05.05.2014, with a further direction to dispose of the same as per rules and laws in force in the said regard within a period of two months from the date of receipt of the said order.

12. Further, as is revealed from the records in O.A. No.2367 (C) of 2014, which was re-registered as WPC(OAC) No.2180 of 2016, while issuing notice on admission, so far as prayer for interim relief is concerned, it was ordered that the Respondent-Authorities shall proceed with the recruitment process, which was impugned in the O.A., but shall not issue final appointment order without considering the representation of the present Appellants in terms of the order of the learned Tribunal in O.A. No.2367 (C) of 2014.

13. Despite such clear cut observation/ order passed in WPC (OAC) No.2180 of 2016, so also previous order passed in O.A. No.2367 (C) of 2014, the authority concerned neither considered/disposed of the representation of the Applicants nor proceeded further with the recruitment process. Rather the Appellants in W.A. No. 3071 of 2023 have been allowed to continue in the said posts of ECG Technician on contractual basis by paying them a consolidated paltry amount and as on date both of them have worked for more than 15 years continuously, though the recommendations on record, as detailed above, well indicate that they were selected by following due procedure of selection and thereafter they were sent for training. That apart, in the said recommendations it has been mentioned that their services are highly required to meet the existing demand / requirement of ECG Technicians in the Cardiology Department of SCBMCH, for which, on being so recommended, the State Government created 4 nos. of post of ECG Technicians way back in the year 2014.

14. It is noteworthy to state that an Educational Institution so also Hospital is an “Industry”, as held by the Constitution Bench in Bangalore Water Supply & Sewerage Board v. A. Rajappa, reported in (1978) 2 SCC 213, followed by the judgment in AIIMS Vs. Raj Singh, reported in (2017) 12 SCC 803. Hence, SCB Medical College and Hospital falls under the definition of “Industry”. So far as the present Appellants in WA No.3071 of 2023, who are working for the last 15 years as ECG Technicians, their nature of job being technical, are “workmen”, as defined under Section 2 (s) of the Industrial Disputes Act, 1947, shortly hereinafter, “I.D. Act”.

15. So far as “Unfair Labour Practice”, the same has been defined under Section 2 (ra) read with 5th Schedule of the I.D. Act. Item No.10 in the 5th Schedule, under the heading “I-On the part of the employers and trade unions of employers”, brings the act of the Employer under the ambit of unfair labour practices, if the Employer employs any workmen as badlis, casuals or temporaries and continue them as such for years, with an object of depriving them the privileges of permanent workmen. Section 25T of the I.D. Act prohibits the Employer or Workmen or a Trade Union registered under Trade Unions Act, 1926 from committing any unfair labour practices. Section 25U of the I.D. Act prescribes penalty for committing unfair labour practices.

16. Admittedly, the present Petitioners, who were selected pursuant to an open advertisement and regular selection process, were engaged as contractual workers in the year 2011. However, as on the date of their engagement as E.C.G. Technicians, there were no posts. Their nature of job being permanent and perennial, so also being recommended by the authority of SCBMCH, posts of E.C.G. Technicians were created by the State Government. Despite creation of posts of E.C.G. Technician in the year 2014, the Petitioners are working for the last 15 years as such, being styled as contractual employees, thereby debarring them from becoming permanent.

17. Hence, we are of the view that such conduct of the State Authorities, styling the Appellants as contractual employees for years together and debarring them from becoming permanent on such plea, amounts to “unfair labour practice”.

18. In view of the undisputed facts on record, detailed discussion made in the impugned judgment so also views expressed by the learned Single Judge, we are of the view that though the initial appointments of the Appellants in W.A. No.3071 of 2023 were irregular, it cannot be said to be illegal. That apart, on repeated recommendations of the Authority concerned, the State Government created four posts of E.C.G. Technician. Hence, we are of further view that the action of the authority concerned to make the Advertisement dated 17.12.2015 to fill up the said created posts by way of an open advertisement was uncalled for and the impugned Judgment dated 15.11.2023 passed by the learned Single Judge in WPC (OAC) No.2180 of 2016 needs modification, as prayed by the Appellants in W.A. No.3071 of 2023.

19. Accordingly, the prayer made in Writ Appeal No.3071 of 2023 is allowed. The Respondents are directed to absorb the Appellants against the sanctioned vacant posts of ECG Technician and extend all the service benefits, as due and admissible to the posts of ECG Technician, within a period of three months hence.

20. Accordingly, the Writ Appeal No.3071 of 2023 is allowed and disposed of. Consequently, the Writ Appeal No.296 of 2025 preferred by the State-Respondents stands dismissed.