The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.4536 of 2023 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) Harishchandra Naik …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties Advocates appeared in the case through Hybrid Mode: : For Petitioner Mr. Arjuna Charan Behera, Adv. For Opposite Parties : Mr. G.R. Mohapatra, ASC CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-11.09.2023 DATE OF JUDGMENT: -18.10.2023 Dr. S.K. Panigrahi, J. 1. The Petitioner was appointed as Swechhasebi Sikshya Sahayak (SSS) in the year 2003. The petitioner became Sikshya Sahayak in the year 2009. The petitioner also tried to draw the attention of the authorities for regularization of his service as per the resolution of the Government dated 09.11.2009. However, the authorities without regularizing the post, disengaged the petitioner from the service. So, the petitioner has approached this Court. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 1 of 15 I. FACTUAL MATRIX OF THE CASE: 2. The petitioner was appointed as Swechhasebi Sikshya Sahayak (SSS) in the year 2003, and he was eligible to get the regular post as a Junior Teacher as per the resolution dated 09.11.2009. So, the petitioner tried his level best to get regularization. However, the authorities without considering the service of the petitioner, disengaged him from his service. So, the petitioner has approached this Court by challenging the said order. 3. The authorities appointed the petitioner as Swechha Sevi Sikhashya Sahayak by issuing the engagement order on 22.11.2003. The petitioner was directed to join in his respective school by submitting an agreement. The said agreement was supposed to be valid up to a year and it will be renewed after the end of the year. The petitioner was also engaged for the monthly remuneration of Rs.1500/-. The petitioner made his work perfectly as per the guidelines of the Swechha Sevi Sikshya Sahayak and he maintained his duties as per the direction of the Head Master of the concerned School. 4. The petitioner being educated person he could have managed the facilities of teaching to the students in the primary school though it was not in his agreement i.e. according to the agreement the Swechhasebi Sikshya Sahayak motivate the guardians/ parents of the village in order to reduce dropouts and he should have worked under the administrative control of the Headmaster. However, the Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 2 of 15 Swechhasebi Sikshya Sahayak would have taught in the school on the direction of the Headmaster of the concerned school. 5. The petitioner also renewed his agreement yearly and submitted the same before the Collector in the concerned district through the Headmaster of the said school and he could have got his monthly remuneration as per the agreement. The Govt. of Odisha made a resolution on 09.11.2009 wherein the authorities decided that Swechhasebi Sikshya Sahayak can be appointed as Junior Teacher and regular primary school teacher on fulfilling their eligibility criteria. The Government also led down the eligibility criteria regarding 3 years of satisfactory services, 90% attendance of children. Reducing of drop outs and certificate of VEC. They shall become a junior teacher after completion of 6 years of continuous satisfactory engagement, till 01.04.2008. They shall be treated as probational primary school teachers (regular) for the period of 1 years the said resolution must be followed and governed by the Orissa Civil Services (Classification, Control and Appeal) Rules, 1952 and reservation of the vacancy as per Rooster Act, 1985 and Rules 1976. 6. According to the resolution 09.01.2009, the petitioner would have been becoming the regular primary school teacher in the year 2009 after completing 6 year of their service, but the authorities without making them regular treated the petitioner Swechha Sevi Sikhya Sahayak till date. The Government of Odisha also passed another Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 3 of 15 resolution on 19.11.2009 in where the authorities added the new recruitment policy by deleting the name of the post from Swechha Sevi Sikhya Sahayak to Sikhya Sahayak and the qualification was determined. The VEC will be placed in the Sarba Sikhya Abhiyana Programme. 7. C.T & B.Ed. qualification were also added to the said programme and selection could have been made from the intending candidates with the assignment of that after completion of 3 years the Sikhya Sahayak shall be treated as zilla parishad cadre teacher by making them regular primary school teacher just after completing the service of 6 years. It may be clear that junior teachers after 3 years of service and primary teachers after 6 years of service. The case of the petitioner were not considered in any point of view by the authorities thought the petitioner have continue their service since the year 2003. 8. Most of the District Collectors complied the resolutions and numbers of Swechha Sevi Sikhya Sahayak became Sikhya Sahayak, junior teachers as well as the regular primary school teachers. The petitioner also made several approaches before this Court by challenging the inaction of the opp. Parties particularly the Collector of the concerned district for making them regularization. 9. The Collector, Ganjam passed the order on 31.12.2022 after appreciating the resolutions and orders of this Court vide resolution dated 26.09.2003 and 26.09.2017 respectively. The orders Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 4 of 15 of this Court bearing W.P.(C) No.16734 of 2006 passed on
Decision
29.10.2015, W.P.(C) No.11748 of 2003 disposed of on 29.04.2004, SLP No.3504 of 2007, order dated 12.07.2016 passed in W.P.(C) No.1751 of 2012 and W.P.(C) (OA) No.515 of 2019 disposed of on 29.09.2021 following which the petitioner was disengaged from his post of Sikhya Sahayak earlier it was called Swechhasevi Sikhyasahayak with immediate effect vide the aforesaid order i.e. the order dated 31.12.2022. Aggrieved by the same, the petitioner has filed this writ petition. II. PETITIONER’S SUBMISSIONS: 10. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: 11. It is submitted that the order dated 31.12.2022 passed by the Collector, Ganjam is completely illegal and arbitrary in nature on the following grounds. It is not a reasoned order regarding dis- engagement of the petitioner after rendering his 19 years of service. 12. The petitioner have required qualification as per needs for Sikhya Sahayak and they were also working as Sikhya Sahayak as per the resolution of 2009. In the meantime the Collector dis-engaged them by the aforesaid order cannot sustain in the eye of law after 19 years of services. 13. It is further submitted that the Collector without making the petitioner regularized, disengaged him from his services is against the provisions of resolution in the year 2009. The said Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 5 of 15 disengagement is purely arbitrary and illegal in nature. The grievance of the petitioner to make him regularization as per the provisions of resolution was not considered at the time of passing the order dated 31.12.2022. III. SUBMISSIONS OF OPPOSITE PARTY NO.6: 14. Per contra, learned counsel for the Opp. Party No.6 intently made the following submissions: 15. After 9654 number of posts were filled up by the way of engagement of Swechhasevi Sikshya Sahayaks and the selection process was over, the Government vide letter No.894, dated 26.09.2003 intimated to all Collectors that to man the new Primary schools, the posts of Swechhasevi Sikshya Sahayaks would be filled up by the candidates from the pending applicants on the previous list instead of going for fresh advertisement. As a result, the Petitioners who were the applicants for the post of Swechhasevi Sikshya Sahayak pursuant to the Advertisement dated 25.03.2003 were considered and given engagement as Swechhasevi Sikshya Sahayak pursuant to letter dated 26.09.2003. 16. The above said Government letter dated 26.09.2003 was challenged before this Court in W.P.(C) No.11748 of 2003 (Hrusikesh Bindhani .v. State of Odisha &others) questioning the legality of the above said letter dated 26.09.2003. The High Court was pleased to dispose of the above said writ petition vide their order dated 29.04.2004 by setting aside the above Government letter dated 26.09.2003, at the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 6 of 15 same time directing the Opp. Parties to make a fresh advertisement for recruitment of further 15,682 numbers of posts of Swechhasevi Sikshaya Sahayak. The petitioners at liberty to apply for the said posts if they are otherwise eligible and their case may be considered along with others. 17. The above said order dated 29.04.2004 passed by this Court in Hrusikesh Bindhani (supra) which was, subsequently, confirmed by the Supreme Court vide order dated 16.08.2013. Accordingly, the Government in the Department of School and Mass Education vide their Letter No.21990, dated 14.12.2004 directed all the Collectors to disengage the Swechhasevi Sikshya Sahayaks engaged after 26.09.2003 by following due procedure as the engagement made after 26.09.2003 are null and void in view of the order dated 29.04.2004 passed by this Court in W.P.(C) No.11748 of 2003. 18. It is well settled that the beneficiary of an illegal appointment/ recruitment does not acquire any right to hold the post. Besides the above, similar such persons who have been engaged as Swechhasevi Sikhya Sahayak pursuant to the Government instruction issued under letter dated 26.9.2003 have approached this Court in W.P.(C) No.1751 of 2012 in the case of Susil Kumar Mohapatra and others v. State of Odisha and others, the Court upon considering the grievance of such persons made in the said Writ Petition after hearing the learned counsel for the parties, Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 7 of 15 disposed of the said writ petition on 12.7.2016, the Court while disposing of the said Writ Petition in the operative portion of the judgment observed as follows: “The contention raised by the petitioners is that other similarly situated employees have been allowed benefit, even assuming the said fact as true then also the petitioners cannot derive any benefit on the ground of equity since there cannot be any negative equality as has been held by the Supreme Court in the case of Basawaraj and another v. Special Land Acquisition Officer reported in (2013) 14 SC C 81 at para-8, which is being quoted herein below for ready reference: - Para-8-It is settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order.” A wrong order/decision in favour of any particular party does not entitle any other party to claim Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 8 of 15 it would make impossible. Moreover, functioning if benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far of otherwise administration the petitioners would be given the benefit of weightage of intervening period, it would amount to review of the order passed in W.P.(C) No. 11748 of 2003. In the similar circumstances, this Court has already rejected the prayer of the similarly placed employees as would be evident from the order passed by this Court in W.P.(C) No.6290 of 2007, which has been affirmed by the Hon’ble Apex Court by the order passed in SLP(C) No.3504 of 2007. In the light of all these aspects of the matter, the decision of the Government in not granting the service period in between the first and second advertisement and not treating the petitioner eligible for career advancement cannot be said to be illegal as such, I interfere with the Government order dated 13.10.2011(Annexure-8)." find no reason to 19. It is admitted case of the petitioner that though the petitioner was appointed, under the selection of the 2003 pursuant to issuance of letter dtd.26.9.2003 and after the said selection for engagement of Swechhasevi Sikhya Sahayak and the recruitment process declared to be invalid. In this connection it is pertinent to mention here that it is the admitted case of the petitioner that the petitioner was engaged as Swechhasevi Sikhya Sahayak as per their engagement letter issued, which are apparent that the petitioner’s engagement is later to the instruction issued by the Government in the Department of S & M.E. by the then Principal Secretary under letter Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 9 of 15 dated 26.9.2003. It was declared to be illegal and invalid. Consequently. the persons those who have been selected under the said recruitment process was declared as invalid selection and the persons those who have been engaged under such illegal selection have faced disengagement from their service, but the present petitioners were continuing with the interim stay order dated 31.01.2019 passed in O.A No.515 of 2019 and on 29.09.2022 Court disposed the said writ petition as premature. 20. As per instructions issued earlier by the Govt. in S & ME in their letter No.18563/SME, dated 26.9.2017 in pursuance of orders dated29.4.2004 passed by this Court in W.P.(C) No.11748/2003, which order has been upheld by the Supreme court in SLP No.3504/2007, directed to all Collectors to disengage the candidates who were engaged as SSSS out of pending applications as per instructions of Govt. issued in letter No.894, dated.26.09.2003. Accordingly, the Collector-cum- CEO, Zilla Parishad, Ganjam have issued disengagement order dated 31.12.2022 by going through all records available and documents submitted by the Petitioners through Personal hearing on 27.12.2022. COURT’S REASONING AND ANALYSIS: It is well settled principle of law as has been laid down by the Supreme Court that regularisation is a matter to be decided by the employer keeping in view the number of factors like the nature of work, number of post lying vacant, the financial condition of the IV. 21. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 10 of 15 employer, the additional financial burden cause, the suitability of the workmen for the job, the manner and reason for which the initial appointment were made etc. The said decision will depend upon the facts of each case. This well settled principle of law has been laid down by the Supreme Court in the decision rendered by the Supreme Court in Managing Director, Ajmer VidhyutVitran Nigam Ltd. Ajme and another Versus Chiggan Lal and others1. 22. Regularization of contractual services has been a persistent matter of litigation for several decades now. In this regard, the Apex Court has clarified that the same has to be based on the necessity of the said post and the duration of the service of the employee. Constitution Bench of the Supreme Court in the case of Secretary, State of Karnataka &Ors vs. Umadevi &Ors.2 has laid down the following ratio:- "(I) The questions to be asked before regularization are:- (a)(i) Was there a sanctioned post (court cannot order creation of posts because finances of the state may go haywire), (ii) is there a vacancy, (iii) are the persons qualified persons and (iv) are the appointments through regular recruitment process (b) A court can condone an irregularity in the appointment procedure only if the irregularity does not go to the root of the matter. (II) For sanctioned posts having vacancies, such posts have to be filled by regular recruitment process of 1Civil Appeal No.1875/2022 (arising out of SLP (C) No. 19181 of 2017) 22006(4) SCC 1 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 11 of 15 prescribed procedure otherwise, the constitutional mandate flowing from Articles 14,16,309, 315, 320 etc is violated. legitimate expectation (III) In case of existence of necessary circumstances the government has a right to appoint contract employees or casual labour or employees for a project, but, such persons form a class in themselves and they cannot claim equality(except possibly for equal pay for equal work) with regular employees who form a separate class. Such temporary employees cannot claim of absorption/regularization as they knew when they were appointed that they were temporary inasmuch as the government did not give and nor could have given an assurance of regularization without the regular recruitment process being followed. Such irregularly appointed persons cannot claim to be regularized alleging violation of Article 21. Also the equity in favour of the millions who await public employment through the regular recruitment process outweighs the equity in favour of the limited number of irregularly appointed persons who claim regularization. (IV) Once there are vacancies in sanctioned posts such vacancies cannot be filled in except without regular recruitment process, and thus neither the court nor the executive can frame a scheme to absorb or regularize persons appointed to such posts without following the regular recruitment process. (V) At the instance of persons irregularly appointed the process of regular recruitment shall not be stopped. Courts should not pass interim orders to continue employment of such irregularly appointed persons because the same will result in stoppage of recruitment through regular appointment procedure. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 12 of 15 (VI) If there are sanctioned posts with vacancies, and qualified persons were appointed without a regular recruitment process, then, such persons who when the judgment of Uma Devi is passed have worked for over 10 years without court orders, such persons be regularized under schemes to be framed by the concerned organization. (VII) The aforesaid law which applies to the Union and the States will also apply to all instrumentalities of the State governed by Article 12 of the Constitution". 23. In the case of Roshan Lal Tandon v. Union of India3, the Supreme Court observed: “It is 'true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public ’law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Art. 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Art. 310. But it is the obvious relationship between that the 31968 SCR (1) 185 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 13 of 15 Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are ’fixed by the law and in the enforcement of these duties society has an interest.” 24. As clarified by the learned counsel of the opposite parties that though the petitioner was appointed, under the selection of the 2003 pursuant to issuance of letter dated 26.9.2003 and after the said selection for engagement of Swechhasevi Sikhya Sahayak and the recruitment process declared to be invalid. In this connection, it is pertinent to mention here that it is the admitted case of the petitioner that the petitioner was engaged as Swechhasevi Sikhya Sahayak as per their engagement letter issued, which are apparent that the petitioner’s engagement is later to the instruction issued by the Government of Odisha, Department of School and Mass Education by the then Principal Secretary under letter dated 26.9.2003. It was declared to be illegal and invalid because the appointments were done without fresh advertisement. Consequently, the persons those who have been selected under the said recruitment process were declared as invalid selection and the persons those who have been engaged under such illegal selection have faced disengagement from their service, but the present petitioner was continuing with the interim stay order dated Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 14 of 15 31.01.2019 passed in O.A No.515 of 2019 and on 29.09.2022 this Court disposed of the said Writ Petition as premature. 25. From the conspectus of factual matrix, this Court is unable to accede to the submission of the petitioner. The rules of service jurisprudence cannot be given go by in such a light and casual manner, rather, they call for due compliance. 26. In light of the aforesaid discussion and having regard to the present position of law, this Court hereby rejects the prayer of the Petitioner. 27. This Writ Petition is, accordingly, dismissed. Judge ( Dr. S.K. Panigrahi ) Orissa High Court, Cuttack, Dated the 18th Oct., 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Nov-2023 16:04:58 Page 15 of 15