The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No. 67 of 2016 Sarbeswar Barik …. Appellant Mr.Ashok Mohanty, Senior Advocate -versus- State of Odisha & others Respondents Mr.A.P.Das, ASC for State Mr. S.B.Jena, Advocate for Respondent Nos. 3 & 4 …. CORAM: THE CHIEF JUSTICE JUSTICE G. SATAPATHY Order No.
Decision
ORDER 15.05.2023 Dr. S. Muralidhar, CJ. 08. 1. The present writ appeal is directed against the impugned judgment dated 13th January, 2016 passed by the learned Single Judge in W.P.(C) No. 6872 of 2004 upholding reversion order dated 17th May, 2004 whereby the appellant was reverted from the post of Junior Assistant to Tax Collector which according to the Appellant was contrary to the Government guidelines and instructions. The second prayer in the writ petition which was rejected by the learned Single Judge was for a direction to the Respondent-State to regularize the services of the Appellant as Junior Assistant in which post he was continuing since 23rd December, 1991. 2. It requires to be noticed in W.P.(C) No. 6872 of 2004, initially an interim order was passed on 10th August, 2004 requiring status quo to be maintained in respect of the Appellant’s services. Further, even in the present writ appeal by the order dated 18th February, Page 1 of 5 2016 the status quo order was continued. As a result, the Appellant has been continuing as such. 3. The question that arose was whether the appointment of the appellant Junior Assistant in the Local Fund Service (LFS) cadre was illegal or irregular? According to the learned Single Judge it was mandatory for appointment to the post of Junior Assistant that selection had to be made by a Selection Committee constituted under Rule 7 of the Orissa Local Fund Services Rules 1975 (1975 rules). For the purposes of Rule 7 concurrence for promotion had to be obtained from the Director Municipal Administration. Inasmuch as no such concurrence was shown to have obtained, the learned Single Judge held that the initial appointment was illegal and rejected the prayer of the Appellant. 4. It is contended by Mr. Ashok Mohanty, learned Senior Counsel for the Appellant, that the Executive Officer of the Municipality sent an intimation to the Government on 30th April, 1992 regarding the appointment of the Appellant as Junior Assistant-cum-Typist. It is pointed out that prior to such appointment on 5th December, 1991 the Government in the H & UD Department had in fact sanctioned one post of Junior Assistant-cum-typist under Section 73(1) of the Orissa Municipal Act 1950 for the Konark NAC in the LFS cadre. Therefore, according to Mr. Mohanty, the appointment of the Appellant as Junior Assistant was against a sanctioned post and in compliance with both Rules 7 and 9 of the 1975 Rules. Page 2 of 5 5. It is further pointed out by Mr. Mohanty that for the purposes of regularization of such irregular appointments made by Municipal Authorities between 10th September, 1982 to 30th June, 1992 a special selection under the OLFS Rules was held and the name of the Appellant was sent for consideration of such regularization. Although in the selection result published on 17th May, 1999 the Appellant’s name does not figure, he was informed that this was for due to want of a vacancy. Nevertheless, the Appellant was allowed to continue as Junior Assistant for over three decades. 6. When despite passing the annual department examination, no action was taken to regularize the Appellant’s services, he filed W.P.(C) No. 8702 of 2003 in this Court. In the said writ petition an order was passed on 1st December, 2003by the learned Single Judge directing the Government to consider the grievance of the appellant. After the Appellant’s representation this was rejected by the Government by order dated 17th December 2004, the Appellant filed the second writ petition being W.P. (C) No. 6872 of 2004. 7. A conspectus of the above facts reveals that the Appellant’s appointment was at best ‘irregular’ and not ‘illegal’. This distinction for the purposes of regularization was drawn by the Supreme Court of India in State of Karnataka v. M.L. Kesari (2010) 9 SCC 247 where it was observed as under: “It is evident from the above that there is an the general principles against to exception `regularization' enunciated the following conditions are fulfilled: in Umadevi, if (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the Page 3 of 5 benefit or protection of the interim order of any the State tribunal. In other words, court or Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. minimum (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the the prescribed appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive such appointments are considered to be irregular. qualifications, selection, the Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure.” (emphasis supplied) services of those 8. The law in M.L.Kesari (supra), has been reiterated in Amarkant Rai v. State of Bihar (2015) 8 SCC 265, Sheo Narain Nagar v. State of U.P. AIR 2018 SC 233 and in Rajnish Kumar Mishra v. State of U.P. (2019) 17 SCC 648. Recently this Court in its judgment dated 12th April, 2023 in W.A. No. 777 of 2021 (State of Odisha v. Patitapaban Dutta Das) applied the above law and upheld the claim of Data Entry Operators engaged on contractual basis in the various talukas. Page 4 of 5 9. In that view of the matter while setting aside the order of reversion 17th May, 2004 as well as the impugned order of the learned Single Judge, this Court directs that with the Appellant having served for well over three decades against a sanctioned post, his case for regularization should be taken up forthwith by the competent authority in the Government and appropriate orders should be passed not later than 1st August, 2023. It is made clear that while the Appellant will not be entitled to arrears of salary for the period prior to his actual date of regularisation, such regularisation will date back to the initial date of his appointment as Junior Assistant. In other words, it the regularisation will be on notional basis from the date of initial appointment for the purpose of retiral benefits, promotion, seniority and other service benefits. 10. The appeal is allowed in the above terms, but with no order as to costs. Chief Justice (Dr. S. Muralidhar) Judge Kishore (G. Satapathy) Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: HIGH COURT OF ORISSA Date: 16-May-2023 10:31:54 Page 5 of 5