The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos. 23276, 23223 and 23275 of 2017 State of Odisha and another …. Petitioners Mr. H.M. Dhal, Additional Government Advocate Prafulla Kumar Kar (In W.P.(C) No.23276 of 2017) …. -versus- Debottam Pradhan (In W.P.(C) No.23223 of 2017) Sujata Satapathy (In W.P.(C) No.23275 of 2017) Opposite Parties Mr. L.K. Mohanty, Advocate CORAM: ACTING CHIEF JUSTICE DR. B.R. SARANGI
Decision
ORDER 30.10.2023 12. 1. These matters are taken up through Hybrid mode. 2. Heard Mr. H.M. Dhal, learned Additional Government Advocate (AGA) for the Petitioners-State and Mr. L.K. Mohanty, learned counsel for the Opposite Parties. 3. The Petitioners, being the State functionaries, have filed these writ petitions challenging the common order dated 4th November, 2016 passed by the Odisha Administrative Tribunal, Cuttack Page 1 of 8 Bench, Cuttack (‘Tribunal’ in short) in O.A. Nos.955(C) of 2008, 1036(C) of 2008 and 1035(C) of 2008 (impugned in W.P.(C) Nos. 23276, 23223 and 23275 of 2017 respectively) directing regularization of services of the Opposite Parties by taking into consideration their long continuous service of more than 25 years and also following the decisions of the apex Court in Secretary, State of Karnataka and others v. Umadevi(3) and others; (2006) 4 SCC 1 and State of Karnataka and others v. M.L. Keshari and others; (2010) 9 SCC 247 in relaxation of Rule-3(1) of the Odisha Ministerial Services (Method of Recruitment to the Post of Junior Clerks in the District Offices) Rules, 1985 (in short ‘OMS Rules’). 4. The factual matrix of the case as mentioned in the original applications is that the Opposite Parties, pursuant to an advertisement published for the post of Junior Clerk in the year 1988, submitted their applications and participated in the recruitment test. A merit list of successful candidates was published on 14th November, 1988 and thereafter another select list was published. Since the names of the present Opposite Parties did not find place in the said select list, they apprehended that the second select list was prepared manipulatively only to give appointment to their own candidates. Pursuant to the said select list, appointment Page 2 of 8 orders were issued to the successful candidates. However, the Opposite Parties were allowed to work on temporary basis as Junior Clerks vide letter dated 20th March, 1990 as against the post created for Census work and the said appointment was till 28th February, 1991. After completion of the said tenure on 28th February 1991, the Opposite Parties were allowed to work in the office of the Sub- Collector, Sambalpur, where they discharged their duties relating to the Census and the General Election. After closure of the Census work, the services of the Opposite Parties were terminated. They were again engaged vide order dated 18th May, 1991 and on expiry of the term against the post of Junior Clerk in connection with election work, they worked up to 30th September, 1991. Against the order of termination, the Opposite Parties approached the Tribunal by filing O.A. No.1415 of 1991, which was disposed of on 13th April, 1999 and the Tribunal passed the order directing that if other similarly situated persons have been absorbed then similar benefits be extended to the Opposite Parties, otherwise they be allowed to appear in the subsequent recruitment test. In the year 1991, a recruitment test was conducted where the Opposite Parties were allowed to appear, but this fact was not taken into consideration while disposing of O.A. No.1415 of 1991. The Collector, Page 3 of 8 Sambalpur moved the Government in G.A. Department for permanent absorption of the Opposite Parties and certain clarifications were sought for by the G.A. Department in that regard. It was averred that even though the Opposite Parties were discharging the duties of Junior Clerk, yet they had been deprived of annual increment, though they had been given other service benefits like opening of service book, subscription of G.P.F. account and even the Opposite Parties were sent to appear at the departmental accounts examination and also given the benefit of surrender leave and house rent. Thereby, relying on the judgment of the apex Court in U.P. State Electricity Board v. Pooran Chandra Pandey and others; (2008) 1 ATT, the Opposite Parties claimed that they should be absorbed permanently. When such grievance of the Opposite Parties was not considered, they approached the Tribunal by filing these original applications mentioned above. 5. The present Petitioners, who were the Respondents before the Tribunal, filed their counter affidavit contending that one Sibaram Maharana and Prafulla Kumar Kar (the applicants in O.A. No.955(C) of 2008), Debottam Pradhan (the applicant in O.A. No.1036(C) of 2008) and Sujata Satapathy (the applicant in O.A. No.1035(C) of 2008) appeared in the recruitment examination for Page 4 of 8 the post of Junior Clerk held in the year 1988, but they were not selected. However, the Opposite Parties were appointed on temporary basis against the post of Junior Clerk for Census work vide letter dated 20th March,1990 in favour of Sujata Satapathy and Debottam Pradhan and vide letter dated 11th June, 1990 in favour of Prafulla Kumar Kar and such appointment was till 28th February, 1991. The services of the Opposite Parties were terminated after completion of the said period. Subsequently, some posts of Junior Clerks were created to perform the work of mid-term election to Lok Sabha-1991 and thereafter, their services were terminated. Being aggrieved by such order of termination, the Opposite Parties approached the Tribunal by filing O.A. No.1415 of 1991, which was disposed of on 13th April, 1999. Thereafter, instruction was sought for from the Government on 2nd May, 2000 for compliance of the order of the Tribunal. As the Opposite Parties had not fulfilled the criteria as observed by the Tribunal, they could not be absorbed. Pursuant to the instructions sought for from the Government, it was informed to the Collector that similarly situated reverted Census employees have approached this Court in O.J.C. No.13338 of 2000, where order of stay has been passed and it was advised to wait till disposal of the said O.J.C. As the Opposite Page 5 of 8 Parties were not selected in the recruitment examination held in the year 1988, they could not be absorbed permanently but on the strength of the orders of the Tribunal dated 30th September, 1991 and 9th December 1991, the Opposite Parties are continuing in service. Therefore, it is contended that the Opposite Parties were not qualified candidates of the recruitment test but were irregularly recruited and as their appointment was not in terms of the relevant recruitment rules, they are not eligible for regularization of their services. 6. Considering the grievance made and taking into consideration the contentions raised by the Petitioners-State, the Tribunal has taken note of the fact that the Opposite Parties have already rendered more than 25 years of service, and, therefore, even though they have not been selected, it may be construed to be an irregular recruitment but that itself ipso facto cannot deny the benefit of regularization of services due to their long continuance in service and availability of posts. 7. The Tribunal has observed that the apex Court in Amarkant Rai v. State of Bihar and others; (2015) 8 SCC 265, while taking into Page 6 of 8 consideration the principle enunciated in Umadevi (supra) and M.L. Keshari (supra), observed as follows: “Considering the facts and circumstances of the case that the appellant has served the University for more than 29 years on the post of Night Guard and that he has served the College on daily wages, in the interest of justice, the authorities are directed to regularize the service of the appellant retrospectively w.e.f. 3.1.2002 (the date on which he rejoined the post as per direction of registrar.).” 8. Thus, the Tribunal has come to a definite conclusion that though the Opposite Parties were not regularly selected candidates, but their services have been utilized for long 25 years giving them the benefit of a regular employee. Once they are allowed to continue in service for a quite long period and by virtue of the direction given by the Tribunal in O.A. No.1415 of 1991 they should have been extended the benefit at par with the other persons who have been similarly situated or otherwise, the Opposite Parties should have been given one more opportunity to have the recruitment test. As it appears that no opportunity was given to them to appear in the recruitment test subsequent to the order of the Tribunal, yet they were allowed to continue in service, the Tribunal, while considering the above aspect, has come to the following conclusion: “10. Appointment to the post of Junior Clerk is made as per the O.M.S. (Method of Recruitment to the post of Junior Clerks in the District Offices) Rules, 1985, Page 7 of 8 where provision for relaxation of any of the rules is available. Since the applicants have continued in service for more than 25 years availing all the benefits of a regular government employee and no opportunity has been given to them to appear in the recruitment test, they are entitled to be regularized following the principle as laid down in the case of Uma Devi and M.L. Keshari (supra) in relaxation of Rule-3(1) of the O.M.S. (Method of Recruitment to the post of Junior Clerks in the District Offices) Rules, 1985 and in exercise of power conferred under rule 14 of the said rules. Learned counsel for the applicants also referred to the order in O.A. No.1110/2010 where similar benefits have been extended to the candidates. Be that as it may, when the applicants have rendered long years of continuous service and have not been given any opportunity the subsequent recruitment test, they are entitled to the benefit of regularization.” to appear in 9. In view of the above, this Court does not find any error committed by the Tribunal in the impugned order so as to interfere with it and deny the benefits as admissible to the Opposite Parties. 10. Accordingly, these writ petitions have no merit and the same are dismissed. ACTING CHIEF JUSTICE (DR. B.R. SARANGI) S. Behera/ M. Panda Signature Not Verified Digitally Signed Signed by: SUMANTA BEHERA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Nov-2023 18:28:18 (M.S. RAMAN) JUDGE Page 8 of 8