The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C ) No.5978 of 2024 An application under Articles 226 & 227 of the Constitution of India Laxmidhar Naik …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : M/s. P.K. Kar,D.K.Rath & D.Sahoo, Advocate For Opp. Parites : M/s. S. Jena, Addl. Govt. Advocate PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing: 04.09.2024 and Date of Order: 04.09.2024 -------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode. 2. Heard learned counsel appearing for the parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the order dt.26.02.2024 so issued by the Govt.-Opp. Party No.1 under Annexure-5. Vide the said order, claim of the // 2 // Petitioner to get the benefit of regularisation was rejected. 3.1. Learned counsel appearing for the Petitioner contended that Petitioner was engaged as a Sweeper on 44 days basis vide order of engagement issued by the Headmaster of the School on 03.06.1996 under Annexure-4 series. It is also contended that subsequently vide letter dt.02.09.1996 under Annexure-6, the then Inspector of Schools, Cuttack Circle, permitted the Headmaster to allow the Petitioner to continue on ad-hoc basis on 44 days basis till the post is filled up on regular basis. 3.2. Learned counsel appearing for the Petitioner contended that in terms of the order of engagement issued on 03.06.1996 under Annexure-4 series and the permission accorded by the Inspector of Schools vide letter dt.02.09.1996 under Annexure-6, Petitioner was allowed to continue on 44 days basis without any break and he is continuing as such till date. 3.3. It is contended that in spite of such long continuance, when no step was taken to regularise him, Petitioner approached this Court by filing WPC (OAC) No.2360 of 2001. The said matter was disposed of by this Court vide order dt.21.06.2021 inter alia with a direction on Opp. Party No.1 to take Page 2 of 12 // 3 // a decision on the claim of the Petitioner taking into account the decision in the case of Rajendra Kumar Nayak Vs. State of Orissa & Others. 3.4. Learned counsel appearing for the Petitioner contended that without proper appreciation of the Petitioner’s claim and the decision in the case of Rajendra Kumar Nayak, claim of the Petitioner was rejected vide the impugned
Decision
order dt.26.02.2024, inter alia on the ground that the Petitioner was provided with the appointment by the Headmaster without any authority and without facing any selection process. 3.5. It is contended that Petitioner was engaged as a Sweeper vide order dt.03.09.1996 under Annexure-4 series and the Headmaster was allowed to continue with the services of the Petitioner till the post is regularly filled up vide letter No.13281 dt.02.09.1996 of Opp. Party No.3 under Annexure- 6. Therefore, it cannot be said that the Petitioner was engaged by the Headmaster of the School without any authority. It is also contended that till date no step has been taken to fill up the post on regular basis and Petitioner is discharging his duty of Sweeper since 03.06.1996 to till date. It is accordingly contended that the impugned order is not sustainable in the eye of law and requires Page 3 of 12 // 4 // interference of this Court with passing of an appropriate order. In support of his submission, learned counsel appearing for the Petitioner relied on the following decisions: 1. State of Karnatak Vs. Umadevi & Others,(AIR 2006 SC 1806). 2. Nihal Singh & Others Vs. State of Punjab & Others,(2013(14)SCC 65). 3. Amarkant Rai Vrs. State of Bihar & Others, (2015 SCC, Online SC 214). In the case of Uma Devi, Hon’ble Apex Court in Para-44 has held as follows:- (not “44. One aspect needs to be clarified. There may be cases where illegal irregular appointments appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra) and B.N. Nagarajan (Supra), and referred to in paragraph-15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one- time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure Page 4 of 12 // 5 // that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wages are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not subjudice, need not be reopened based on this judgement, but there should be no further by passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” In the case of Nihal Singh,Hon’ble Apex Court in Para 35, 36 and 38 of the decision has held as follows: 35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State. 36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the Legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the Page 5 of 12 // 6 // it State and providing benefits at par with the police officers of similar rank employed by the State is in further financial commitment results always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is – the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks. We are of the opinion that neither the Government of Punjab nor these public sector banks can continue such a practice consistent with their obligation to function in accordance with the Constitution. Umadevi’s judgment cannot become a licence for exploitation by the State and its instrumentalities. 38. We direct the State of Punjab to regularise the services of the appellants by creating necessary posts within a period of three months from today. Upon such regularisation, the appellants would be entitled to all the benefits of services attached to the post which are similar in nature already in the cadre of the police services of the State. We are of the opinion that the appellants are entitled to the costs the circumstances, we quantify the costs to Rs.10,000/- to be paid to each of the appellants.” throughout. In In the case of Amarkanta Rai, Hon’ble Apex Court in paragraph-4,11,12,13,14 & 15 has held as follows: 4. The learned counsel for the appellant contended that the appellant served on the post for 29 years on daily wages and even as per the decision in para 53 in Umadevi (3) case [(2006) 4 SCC 1 irregular appointment of employees who have worked for more than 10 years should be considered on merits. It was contended that the appellant has in a sanctioned post and his been working : 2006 SCC (L&S) 753] , Page 6 of 12 // 7 // appointment was not illegal but in the facts and circumstances of the case, his appointment could only be irregular appointment entitling him for regularisation. It was submitted that the three- member Committee as well as the High Court did not keep in view that the case of the appellant was recommended for regularisation. 11. Elaborating upon the principles laid down in Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] and explaining the difference between in State of irregular and Karnataka v. M.L. Kesari [(2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] , this Court held as under: (M.L. Kesari case [(2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] , SCC p. 250, para 7) illegal appointments to “7. It is evident from the above that there is an exception the general principles against ‘regularisation’ enunciated in Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] , if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. illegal, even irregular. Where (ii) The appointment of such employee should not be the if appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the 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 selection, such appointments are considered to be irregular.” 12. Applying the ratio of Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] , this Court in Nihal Page 7 of 12 // 8 //