Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.2846 of 2023 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** 1. Rabindra Nath Barik Aged about 57 years Son of Gandharba Barik A permanent resident of Shabjamul P.O.: Sabhamula, P.S.: Jagatsinghpur District: Jagatsinghpur Presently working as Peon At: Divisional Office, O.S.P.H. & W.C. Bhawanipatana Division At: ITI Road, Bhawanipatana District: Bhawanipatana. 2. Trilochan Madhual Aged about 59 years Son of Late Narendra Moharana A permanent resident of At/P.O.: Baratani, P.S.: Aul District: Kendrapara Presently working as Orderly In Odisha State Police Housing & Welfare Corporation Limited, Head Office Bhubaneswar - 22. 3. Pramod Kumar Jena Aged about 57 years Son of Jambesh Kumar Jena W.P.(C) No.2846 of 2023 Page 1 of 80 4. At: Khasipur, P.O.: Gadaruspa P.S.: Gop, District:Puri Presently working as Orderly Peon In Odisha State Police Housing & Welfare Corporation Limited Head Office, Bhubaneswar - 22. Prasant Kumar Behera Aged about 51 years Son of Nakula Behera At/P.O.: Bilasuni, P.S.: Govindpur District: Cuttack Presently working as Watchman In Odisha State Police Housing & Welfare Corporation Limited, Head Office, Bhubaneswar - 22. 5. Kartik Ch. Swain Aged about 53 years Son of Hanuman Swain At/P.O.: Santhapur, P.S.: Gondia District: Dhenkanal Presently working as Orderly Peon Watchman In Divisional Office Odisha State Police Housing & Welfare Corporation Limited Balasore, At/P.O.: Kalidaspur District: Balasore. 6. Maheswar Behera Aged about 55 years Son of Gopi Behera At/P.O.: Takarada, P.S.: Takarada District: Ganjam Working as Orderly Peon In Divisional Office W.P.(C) No.2846 of 2023 Page 2 of 80 Odisha State Public Housing & Welfare Corporation Limited Sambalpur Division At: Dehuri Palli, P.O.: Budharaja District: Sambalpur. 7. Bhim Bahadur Ale Aged about 64 years Son of Dalabahadur Ale At: Dal Bhanjyang P.O.: Batashy Khapani P.S.: Gorkha District: P-2 No. Nepal. … Petitioners -VERSUS- 1. State of Odisha Represented through Principal Secretary to Government Home Department, Odisha Secretariat Bhubaneswar, District-Khurda. 2. Chairman-cum-Managing Director Odisha State Police Housing & Welfare Corporation Limited At: Janapath, Bhoi Nagar Bhubaneswar-22 District: Khordha. 3. Director General & Inspector General of Police At: Cantonment Road Buxi Bazar, Town/District: Cuttack. 4. Additional Secretary to Government Department of Public Enterprises Government of Odisha W.P.(C) No.2846 of 2023 Page 3 of 80 Odisha Secretariat, New Capital Bhubaneswar District: Khordha. … Opposite parties Counsel appeared for the parties: For the Petitioners : Mr. Subir Palit, Senior Advocate along with Ms. Ananya Pradhan, Advocate For the Opposite party Nos.1, 3 & 4 : Ms. Saswata Pattnaik, Additional Government Advocate For the Opposite party No.2 : M/s. Girija Prasanna Dutta, Kaibalya Manichandan Bhuyan, Advocates P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 05.10.2024 :: Date of Judgment : 13.03.2025 J UDGMENT Challenging the Office Order No.E-38/06/3489/ OPHWC, dated 12.05.2010 and Office Order No.E-31/ 06/3492/OPHWC, dated 12.05.2010 passed by the opposite party No.2-Chairman-cum-Managing Director of Odisha State Police Housing and Welfare Corporation Ltd., by virtue of which Office Order Nos.5451/OPHWC, dated 19.06.2009 and 5449/OPHWC, dated 19.06.2009, 5460/OPHWC, dated 19.06.2009 and 5464/OPHWC, dated 19.06.2009 whereby posts of watchman and peon W.P.(C) No.2846 of 2023 Page 4 of 80 against which the petitioners have been working were regularised, were withdrawn, this writ petition has been filed before this Court to invoke the provisions of Articles 226 and 227 of the Constitution of India, with the following prayer(s): “It is, therefore, most humbly prayed that this Hon‟ble Court may be graciously pleased to issue a Writ or Writs in the nature of a Writ of Mandamus, thereby directing the Opposite Parties not to revoke petitioners regularization orders dated 19.06.2009 under Annexure-4 series; And may graciously be pleased to quash the Office Orders dated 12.05.2010 & 19.06.2009 as at Annexure-5 Series; And consequently declare that the Petitioners are Regular Employees pursuant to order dated 19.06.2009 as at Annexure-4 Series; And for which act of kindness the petitioners shall, as in duty bound, ever pray.” Facts: 2. Facts, as adumbrated in the writ petition, reveal that the petitioners are the employees under the Odisha State Police Housing and Welfare Corporation Limited, Opposite Party No.2 (hereinafter referred to as the “Corporation”). The petitioners were initially engaged as daily wage earners since the year 1987/1989/1994/ 1996 as per exigency and as required by the Corporation by filing applications and appearing in interview. W.P.(C) No.2846 of 2023 Page 5 of 80 Subsequently, they were appointed on ad hoc basis since 1990/1994/1996. 2.1. The petitioners have been discharging their duties quite honestly, sincerely and to the best satisfaction of all concerned since the date of their engagements and also they have got rewards from the authorities for their good performance. However, the petitioner No.7, discharging his duty as watchman in the Corporation, got retired from service on 30.11.2019. 2.2. A chart indicating the Date of Birth / Educational Qualifications / Date of Initial Engagement / Date of Ad hoc Appointment and Date of Regularization of the present petitioners is stated herein below: Name Date of Birth Qualifi -cation Date of initial Engage -ment Date of Ad hoc Appoin -tment Date of Regular -ization 10.8.66 7th 19.8.87 1.9.94 19.6.09 20.5.64 8th 9.9.88 29.8.90 Do Rabin- dra Nath Barik (OBC) Trilo- chan Madhual (UR) Period of Servic e as on date Period of service on the date of passin g order of regular -isation (19.06. 2009) 22 years 35 years 21 years 34 years W.P.(C) No.2846 of 2023 Page 6 of 80 Pramod Kumar Jena (UR) Prasant Kumar Behera (OBC) Kartik Ch. Swain (UR) Maheswa r Behera (OBC) Bhim Bahadur Ale 22.6.66 7th 5.12.88 4.10.90 Do 2.6.72 9th 13.7.92 1.7.96 Do 10.6.70 9th 1.7.96 29.6.96 Do 3.5.68 8th 26.9.88 1.9.94 Do 26.11.5 9 7th 1.6.89 21.3.90 Do 21 years 34 years 17 years 30 years 13 years 26 years 21 years 34 years 20 years 33 years 2.3. The petitioner No.2 got the reward from his authorities vide Orders dated 26.08.1994, 27.09.1996, 05.04.2000, 12.05.2000 and 01.02.2003 for sincere performance and devotion in discharging his duties. The petitioner No.4 was rewarded vide Order dated 23.02.2007 for sincerity and hard work. The petitioner No.6 was also rewarded vide Orders dated 19.03.1990, 21.05.2004 and 03.05.2005 for his sincerity in duty and hard work. 2.4. A Selection Committee was formed to consider suitability of ad hoc Watchman and ad hoc Peons/Orderly Peons for their coming over to the regular establishment. By proceeding dated 11.06.2009 of the said Selection Committee, the names of the petitioners had been approved for regularization. The Selection Committee had, accordingly, prepared a Gradation List as per the W.P.(C) No.2846 of 2023 Page 7 of 80 length of service rendered by the petitioners, keeping in view the availability of vacant sanctioned posts. 2.5. While dealing with it, the Selection Committee had observed that against 17 sanctioned posts, 8 posts of peon had already been regularized in between 1990 to 1994 and 8 peons had already rendered their services for a quite long period on ad hoc basis. In case of present petitioner No.7, the Selection Committee considered him suitable to hold the post of Watchman on regular basis. The proceedings of the Meeting of the Selection Committee held on 11.06.2009 read as thus: “As per orders of the CMD in File No.E-38/06 & File No.E- 31/06 the Selection Committee was formed with the Chief Engineer (Civil) as Chairman and the C.S. & Jt. General Manager (F) & the Dy. General Manager (Admn.) as Members to consider suitably of ad hoc Watchmen and ad hoc Peons/ Orderly Peons for their coming over to the regular establishment. The Selection Committee Meeting met on 11.06.2009 in the Office Chamber of the Chief Engineer, Civil and called for relevant files / records and their observation is made hereunder: Watchman: There is only one sanctioned post of Watchman which has been created on 12.01.1981 for the Corporate Office. But there are 17 Watchmen working under the Corporation on adhoc basis since 1990/96/99. Prior to it, they were engaged as Daily Wage Earners W.P.(C) No.2846 of 2023 Page 8 of 80
Legal Reasoning
This Court is of the prima facie view that, in view of the averments in the interlocutory application and keeping in view that the Petitioners are litigating W.P.(C) No.2846 of 2023 Page 15 of 80 since 2010 and on a conspectus of materials on record leave should be granted, as prayed for, to file a fresh writ petition and accordingly it is so granted. It shall be open to the Petitioners to file such writ petition within a period of six weeks. 10. For a period of eight weeks from today, no coercive action shall be taken against the Petitioners keeping in view that this Court by order dated 14.05.2010 had passed an interim order, which is still in vogue. 11. It is made clear that this Court has not expressed any opinion regarding the merit of the matter. 12. It is brought to the notice of this Court that during pendency of the writ petition, Petitioner No.7 has retired on 30.11.2019. It shall be open to the said Petitioner to pursue his remedy in the proposed fresh writ petition, which shall be considered on its own merit.
Arguments
since 1994. The CMD is competent to create and make appointment to the post carrying Rs.5500/- (pre-revised) per month. The adhoc Watchmen are at present getting only Rs.2550/- in the scale of Pay Rs.2550-3200 with DA, HRA etc. without increment on 44 days basis. Since there is only one sanctioned post, the rule of reservation will not apply to this case. From the gradation list, it is found that Sri Bhim Bahadur Ale is the senior most among all adhoc Watchmen and there is no adverse remark in performance of his duties. Therefore, the Committee considered Sri Bhim Bahadur Ale suitable to hold the post of Watchman on regular basis. The financial implication on this score will be very nominal. Peons/Orderly Peons: There are 17 sanctioned posts of Peons against which 8 (eight) Peons have been regularly appointed. As against remaining 9 (nine) posts, 8 (eight) Peons have been working on ad hoc basis since 1990/1994/1996. One post is kept in abeyance in view of WPC No.8595/05 files by Smt. Annapurna Swain, Peon (ad hoc). It is found from the gradation list of peons that the 8 (eight) Peons from Sl.No.9 to 16 were earlier engaged as Daily Wage Earners since 1987/1988/1994/1996. Subsequently they have been appointed on ad hoc basis since 1990/1994/1996. The CMD is competent to create and make appointment to the posts carrying Rs.5500/- per month. is applicable to this case. The rule of reservation According to 80-point Model Roster, 11-UR, 3-ST and 3-SC Peons are required against 17 sanctioned posts. But within the gradation list 14-UR, 1-ST and 1-SC Peons (both regular & adhoc) are available leaving one post vacant. Out of which 6-UR, 1-ST and 1-SC Peons have W.P.(C) No.2846 of 2023 Page 9 of 80 been earlier regularly appointed and 8-UR Peons are now working on ad hoc basis. Since there is no adverse remark against any of the adhoc Peons, the Committee now considered all the 8 Peons suitable for regularization of their ad hoc service subject to condition that the 4(four) reserved posts (2-ST, 2-SC) can be accommodated against the vacancy that will occur in future by way of retirement/resignation/creation or otherwise. The financial implication on this score will be very nominal.” 2.6. On recommendation of the Selection Committee and considering the long period of service rendered by the petitioners, the concerned authority, i.e., opposite party No.2 regularized the services of the petitioner Nos.1 to 6 in the posts of Peon / Orderly Peon with the scale of pay of Rs.2550-55-2660-60-3200/- with D.A. and other allowances and present petitioner No.7 in the post of Watchman with scale of pay of Rs.2550-55-2660-60- 3200/- with D.A. and other allowances with effect from 19.06.2009 vide Office Order(s) dated 19.06.2009. 2.7. The authorities referred the names for regularisation in service as per seniority in the gradation list against eight vacant sanctioned posts of Peons and one vacant sanctioned post of Watchman to the Board of Directors and Government for approval. 2.8. It is at this stage pointed out that since the roster procedure by according reservation was not followed, W.P.(C) No.2846 of 2023 Page 10 of 80 clarification was sought for. The Selection Committee considered the case of the petitioners and observed that 8 peons including the present petitioners are working in the Corporation on ad hoc basis for quite a long time; amongst them two belong to OBC category. It is also reflected that the petitioners have long standing experience and outstanding service records. Thus, they have been considered for regularization. The Selection Committee also found that the Scheduled Caste and Scheduled Tribe candidates can be accommodated against the vacancies which would occur in future by way of retirement/resignations/creation of posts or otherwise. No experienced ad hoc Scheduled Caste and Scheduled Tribe candidate is available. 2.9. The petitioners had approached this Court in W.P.(C) No.7983 of 2010 and this Court vide Order dated 14.05.2010 while issuing notice in the said writ petition had been pleased to grant interim protection to the petitioner with the following effect: “*** If the petitioners are continuing in the regular post they shall continue in the same post until further order.” 2.10. By the date of interim protection, the petitioners had already completed substantial length of service. Nonetheless, the opposite party No.2 vide Office Order No.3489/OPHWC, dated 12.05.2010 and Office Order No.3492/OPHWC, dated 12.05.2010 have withdrawn the W.P.(C) No.2846 of 2023 Page 11 of 80 orders of regularization of the services of the petitioners which were granted vide Office Order No.5451 dated 19.06.2009, Office Order No.5449 dated 19.06.2009, Office Order No.5460/OPHWC, dated 19.06.2009 and Office Order No.5464/OPHWC, dated 19.06.2009. 2.11. The said Office Orders dated 12.05.2010 have been passed behind the back of the petitioners without any notice to them. Though no orders were communicated to the petitioners, they could come to know of such fact from the counter affidavit filed by the opposite party Nos.1 and 2 in W.P.(C) No.7983 of 2010. The Corporation in its counter affidavit had relied upon Office Order No.5464 dated 19.06.2009, wherein earlier Order No.5449 of even date was made subject to approval of the Board of Directors in its meeting. The Corporation in its counter affidavit filed in W.P.(C) No.7983 of 2010 had admitted that the regularization of the services of the petitioners as per orders dated 19.06.2009 was done by a Selection Committee which recommended regularization against existing sanctioned vacant post. Contrary to such recommendation, the Corporation also contended that the said orders dated 19.06.2009 were made subject to the approval of the Board of Director in the next meeting. The Corporation also relied upon orders dated 12.05.2010, by which W.P.(C) No.2846 of 2023 Page 12 of 80 regularization of the services of the petitioners were revoked/withdrawn. 2.12. The petitioners had also filed a composite rejoinder affidavit in the said writ petition, inter alia, asserting that orders dated 12.05.2010 causing revocation/ withdrawal of the regularisation of their services and, the Letter dated 19.06.2009 by which their regularization was made subject to approval of the Board of Director was never served upon them and such orders could come to their knowledge only after the counter affidavit was filed. The petitioners also filed a petition seeking amendment of the writ petition to incorporate specific challenge to such orders. This Court vide Order dated 19.01.2023 while disposing of W.P.(C) No.7983 of 2010, passed the following order: “1. Heard Mr. Palit, learned Senior Advocate for the Petitioners and Mr. Mishra, learned Senior Advocate for the Opposite Party No.2. 2. The Petitioner Nos.1 to 6, who are working as Peons and Petitioner No.7, who is working as Watchman under Opposite Party No.2-Corporation, approached this Court seeking a direction not to revoke their regularization order at Annexure-4 series. 3. The said orders are quoted hereunder convenience of ready reference. for “The Orissa State Police Housing & Welfare Corporation Ltd., Janapath, Bhoinagar, Bhubaneswar-22 W.P.(C) No.2846 of 2023 Page 13 of 80 Office Order No.5449/OPHWC Date: 19.06.2009 The ad hoc services of the following Peons/Orderly the available Peons are regularized against sanctioned posts in orders of their seniority in the gradation list in the scale of pay Rs.2550-55-2660- 60-3200 with D.A. and other allowances as admissible from time to time w.e.f. the date of issue of this order. They will be on probation for one year from the date of their regularization: 1. Sri Trilochan Madhual Orderly Peon 2. Sri Pramod Kumar Jena 3. Sri Rabindra Nath Barik 4. Sri Mahabir Das 5. Sri Krupasindhu Pihan 6. Sri Maheswar Behera 7. Sri Kartika Ch. Swain 8. Sri Prasanta Kumar Behera -do- -do- -do- -do- -do- -do- -do- Chairman-cum-Managing Director Sd/- ***” “The Orissa State Police Housing & Welfare Corporation Ltd., Janapath, Bhoinagar, Bhubaneswar-22 Office Order No.E-38/06/5451/OPHWC, Bhubaneswar Date: 19.06.2009 The ad hoc services of Sri Bhim Bahadur Ale watchman is regularized against one sanctioned post of Watchman in W.P.(C) No.2846 of 2023 Page 14 of 80 the scale of pay Rs.2550-55-2660-60-3200 with D.A and other allowances as admissible from to time with effect from the date of issue of this order. Chairman-cum-Managing Director Sd/- ***” 4. In consideration thereof by order dated 14.05.2010 while issuing notice, this Court directed as under: “If the Petitioners are continuing in the regular post, they shall continue in the same post until further order.” 5. It is stated at the Bar that the Petitioners are continuing in terms of the order passed by this Court, save and except Petitioner No.7 who has retired on 30.11.2019. 6. A counter affidavit has been filed by the Corporation controverting the allegations and a rejoinder in reply is on record. 7. By way of amendment, the Petitioners seek to assail the order dated 12.05.2010 though the same is annexed to the counter affidavit as Annexure-C/2 and the said counter affidavit is filed in Court on 15.05.2017. 8. An objection has been filed to the said interlocutory application for amendment, inter alia, on the ground that the same will change the nature and character of the lis. Hence, the same is liable to be rejected. 9.
Decision
13. The writ petition is accordingly disposed of. 14. Urgent certified copy of this order be issued as per rules.” 2.13. Hence, the present writ petition. Hearing: 3. On being noticed, the opposite parties have filed counter affidavit. Pleadings, being completed and exchanged amongst the counsel for respective parties, on consent of counsel for the parties, this matter is taken up for final hearing. W.P.(C) No.2846 of 2023 Page 16 of 80 3.1. Accordingly, heard Sri Subir Palit, learned senior counsel along with Ms. Ananya Pradhan, learned counsel appearing for the petitioners and Ms. Saswata Pattnaik, learned Additional Government Advocate appearing for the State and Sri Girija Prasanna Dutta, learned Advocate along with Sri Kaibalya Manichandan Bhuyan, learned counsel appearing for opposite party No.2 and the matter stood reserved for preparation and pronouncement of Judgment. Rival contentions and submissions: 4. Sri Subir Palit, learned senior counsel appearing for the petitioners submitted that the objection raised at a belated stage by the opposite parties that the provisions of the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 (for short, “ORV Act”), being not followed at the time of engagement of the petitioners as ad hoc employees, Office Orders according their regularisation in service were liable to be withdrawn has no foundation to be sustained. 4.1. A conjoint reading of Sections 3, 5, 9 and 10 of the ORV Act, 1975 would lead to irresistible construction that the applicability of said Act shall normally be initiated from the very initial stage of recruitment. For the defect in following procedure by the authorities the employees W.P.(C) No.2846 of 2023 Page 17 of 80 who have served the Corporation for a considerable period of their lives should not be subjected to civil and evil consequences. 4.2. In the case at hand, the petitioners being ad hoc appointees, their appointments have matured into regular appointment in due course of time and long continuation in service by virtue of principles of equity, justice and good conscience. The initial ad hoc appointment of the petitioners was not subjected to the provisions of ORV Act, 1975 notwithstanding the fact of applicability or non-applicability of provisions of said statute was within the knowledge of the appointing authority. As a consequence, such a plea of non- application of ORV Act, 1975 at the time of consideration of the prayer for regularization is not at all justiciable in law since the petitioners cannot suffer for the lapses, if any, of the authorities. 4.3. It is urged that the State-Authority/Corporation, being model employer, cannot be allowed to shun its responsibilities towards the petitioners, who have been exploited for a considerable length of time by extracting their services and the service records of the petitioners have been adjudged unblemished by the Selection Committee. Having rendered services for over two decades at the time of consideration for regularization in service and three decades as of date, on specious plea W.P.(C) No.2846 of 2023 Page 18 of 80 that the provisions of the ORV Act, 1975, was not followed by the authorities concerned, the petitioners’ orders of regularization could not have been withdrawn. 4.4. Sri Subir Palit, learned Senior Advocate assisted by Ms. Ananya Pradhan, learned Advocate vehemently contended that in view of provisions contained in Section 3 of the ORV Act, 1975, the case of the petitioners fall within the ken of exclusion clause thereunder. 4.5. It is submitted that concept of regularization derives its roots from the principles of equity, justice and fairness. The essence of employment and the rights conferred thereof on the petitioners cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over a period of time. Hence, rendering service continuously for considerable period (approximately three decades by now) has transcended the ad hoc employment for consideration to be brought over to regular establishment. Continuous service of the petitioners against vacant sanctioned posts as ad hoc appointees and their selection through a process of selection constitute a substantive departure from the temporary and ad hoc nature of their initial appointment. Hence, their service conditions warrant reclassification from temporary ad hoc to regular. W.P.(C) No.2846 of 2023 Page 19 of 80 4.6. Sri Subir Palit, learned Senior Advocate has made suave submission that since similarly circumstanced employees had already been considered and regularized in the service, the petitioners should not have been treated differently. The act of regularizing the services of some employees and not regularizing the services of some others is indisputably discriminatory and falls foul of Article 14 of the Constitution. Such an act of discrimination lacks a justifiable nexus with the object sought to be achieved by the scheme of regularization. Therefore, the action of the opposite parties is tainted with not only arbitrariness but also the same is unconstitutional. 4.7. Cogent reason being not assigned, as is contended by Sri Subir Palit, learned Senior Advocate, the impugned Orders withdrawing the regularization of petitioners is arbitrary exercise of power. Such an action behind the back of the petitioners without even serving the office order thereon is liable to be deprecated. It came to the knowledge of the petitioners through the counter affidavit filed by the opposite party-Corporation in W.P.(C) No.7983 of 2010. 4.8. In this context, it is submitted that an order passed by an authority without stating the reason for its action is direct violation of the principles of natural justice. Any subsequent explanation cannot sanctify the order. An W.P.(C) No.2846 of 2023 Page 20 of 80 order bereft of reasons fails to meet the basic ingredients of principles of natural justice and is, therefore, inherently flawed, rendering it indefensible. 4.9. In support of the above submission, Mr. Subir Palit, learned senior counsel appearing for the petitioners has relied on the following decisions: (i) Vinod Kumar and others Vrs. Union of India and others, reported in (2024) 1 S.C.R. 1230=(2024) 9 SCC 327. (ii) Ravi Verma and others Vrs. Union of India and others, reported in 2018 SCC OnLine SC 3860. (iii) Raman Kumar and others Vrs. Union of India and others, reported in 2023 SCC OnLine SC 1018.