The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.5668 of 2016 Rabiratan Sahu & others ....... Petitioners -Versus- State of Odisha & others ....... Opp. Parties For Petitioners : Mr. S.D. Routray, Advocate For Opp. Party Nos.1, 2 & 5 : Mr. G.N.Rout, A.S.C. For Opp. Party Nos.3 & 4 : Mr. P.C. Panda, Advocate ---------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------- Date of Hearing: 11.07.2023 Date of Judgment: 21.07.2023 --------------------------------------------------------------------------------- S.K. Mishra, J. The Petitioners, who are working as Yardman/Watchman on contractual basis in the Regulated Market Committee, Bargarh, shortly, RMC Bargarh, have preferred the present Writ Petition for quashing of the Order dated 9th September, 2015 passed by the Collector-Cum- Chairman, Regulated Market Committee, Bargarh (Opposite Party No.5), as at Annexure-14 whereby, their representation for regularization of services against the vacant posts of Yardman/Watchman was rejected. Also a prayer has been made seeking for a direction to the Opposite Party Nos.2 to 5 to regularize their services and extend all such benefits, as is due and admissible to the posts of Yardman/Watchman. 2. The case of the Petitioners, in short, is that, the State Government under the Orissa Agricultural Produce Markets Act, 1956, shortly, Act, 1956, established Market Committee in every area in respect of agriculture produce. For superintendence over such Market Committee, by Notification in Official Gazette, a Board called the Orissa State Agricultural Market Board, shortly, OSAM Board, was established under Section 18-A of the Act, 1956. The OSAM Board vide Office Order No.4106 dated 03.08.2007, as at Annexure-1, intimated the Chairman/Secretary, RMC, Bargarh that the Board has been pleased to accord approval for creation of posts in different categories in favour of the RMC, Bargarh. Pursuant to the said Order, the RMC, Bargarh vide its Office Order No.754 dated 26.08.2007, as at Annexure-2, requested to accord necessary approval of OSAM W.P.(C) No.5668 of 2016 Page 2 of 39 Board, to fill up 45 numbers of vacant posts on contractual basis from amongst the existing NMRs. On 31.08.2007 proceeding of the Appointment and Promotion Sub-Committee of RMC, Bargarh was held in the Office of the Sub-Collector- Cum-Chairman, RMC, Bargarh, wherein it was decided to engage the present NMRs in the vacant posts on contractual basis after obtaining due approval from the OSAM Board. Thereafter, the OSAM Board, vide Order dated 20.09.2007, as at Annexure-5, intimated the RMC, Bargarh about the approval of the proceeding of the Sub-Committee of RMC, Bargarh by the Hon’ble Minister, Co-operation-Cum- Chairperson, OSAM Board and advised to observe due formalities. 3. Pursuant to the Resolution of the Appointment and Promotion Sub-Committee of RMC, Bargarh and approval of OSAM Board, Bhubaneswar, the Sub-Collector-Cum- Chairman, RMC, Bargarh vide Order No.953 dated 09.10.2007, as at Annexure-6, appointed the Petitioners against the vacant posts on contractual basis with consolidated salary. Since then, the Petitioners are discharging their services on contractual basis. When no step W.P.(C) No.5668 of 2016 Page 3 of 39 was taken for regularization of the services of the petitioners, they made representation dated 05.08.2008 to the Secretary, RMC, Bargarh, as at Annexure-7. The Secretary, vide his letter dated 10.08.2008, submitted the said representation to the General Manager, OSAM Board. On receipt of the said representation, the General Manager, OSAM Board, vide his letter dated 13.08.2008, sought for certain clarification and justification from the Secretary, RMC, Bargarh, for regularization of services of the contractual workers. In response to the said letter, the Secretary, RMC, Bargarh, furnished necessary clarification assigning reasons for regularization of services of the Petitioners vide letter dated 22.09.2008, as at Annexure-10. It is the further case of the Petitioners that after proper verification of clarification given by the Secretary, RMC, Bargarh, the General Manager, OSAM Board, approved the proposal of regularization of all 45 numbers of contractual workers including the Petitioners. Accordingly, the Petitioners’ services were regularized vide Order dated 27.09.2008, as at Annexure-11. In spite of such regularization, the Petitioners W.P.(C) No.5668 of 2016 Page 4 of 39 were not treated as regular employees and denied regular scale of pay. 4. The Petitioners, finding no other alternative remedy, moved this Court by way of preferring W.P.(C) No.7905 of 2010. This Court, by its Order dated 06.07.2010, disposed of the said Writ Petition by directing the Petitioners to file fresh representation before Opposite Party No.5. Accordingly, the Petitioners made representation before the A.D.M-Cum-Chairman, Regulated Market Committee, Bargarh. The Opposite Party No.5 rejected the said representation in a mechanical manner. The Secretary of the Regulated Market Committee, vide Memo No.2049 dated 21.09.2010, communicated the same to the Petitioners. 5. Being aggrieved by the said Order dated 21.09.2010 passed by the Chairman, Regulated Market Committee, Bargarh the Petitioners again approached this Court in W.P(C) No.15279 of 2010. The said Writ Petition was also disposed of on 27.07.2015, directing the Petitioners to file a fresh representation highlighting all their grievances before the authorities. Pursuant to the said direction, the Petitioners again made a representation to the Opposite Party W.P.(C) No.5668 of 2016 Page 5 of 39 No.5 on 01.08.2015, as at Annexure-13. However, the Collector-Cum-Chairman, Regulated Market Committee, Bargarh, vide Order dated 9th September, 2015, as at Annexure-14, rejected the representation of the Petitioners solely on the ground that irregularly recruited engagees cannot be regularized in blatant violation of settled recruitment norms and transgression of provisions of ORV Act. 6. Being aggrieved by the said order dated 9th September, 2015, passed by the Opposite Party No.5, as at Annexure-14, the Petitioners have approached this Court with the prayers as detailed above. 7. Tough this is a matter of the year 2016, no Counter Affidavit has been filed any of the Opposite Parties, including State, till date. Further, when the matter was taken up for final disposal, learned Counsel for the Opposite Party Nos.3 & 4 wanted to rely on the Counter Affidavit filed by the Board in WP(C) No.15279 of 2011, which has been annexed to the Writ Petition as Annexure-12. On consent of the learned Counsel for the parties, the matter was taken up for final disposal. W.P.(C) No.5668 of 2016 Page 6 of 39 8.
Legal Reasoning
once again failed to appreciate the Judgment of this Court in the case of Umesh Dalai Vs. State of Orissa and others passed in O.J.C. No.15810 of 2001 dated 24.04.2008, wherein the R.M.C. was directed by this Court to absorb those Petitioners on regular basis. 12. Learned Counsel for the Petitioners further submitted that the action of the Collector in not adhering to the decision of the OSAM Board dated 27.09.2008, by virtue of which the proposal for regularization of the Petitioners has been approved by the OSAM Board, is not only illegal and arbitrary but also contrary to the provisions of Orissa Agricultural Markets Produce Act and Rules framed W.P.(C) No.5668 of 2016 Page 10 of 39 thereunder inasmuch as the same is also discriminatory in nature and is in violation of Articles 14 & 16 of the Constitution of India. 13. To substantiate his argument, learned Counsel for the Petitioners placed reliance on the Judgments of the apex Court in Narendra Kumar Tiwari & others Vs. State of Jharkhand & others, reported in (2018) 8 SCC 238, in Nihal Singh & others Vs. State of Punjab & others, reported in (2013) 145 SCC 65, Judgment of the coordinate Bench of this Court in UCO Bank & others Vs. Sk. Fayajjudin, reported in 2020 (I) ILR-CUT 68, Judgment dated 03.07.2020 passed in W.P.(C) No.18298 of 2014 (Padmanava Pradhan & others Vs. State of Odisha & others), in Sanatan Sahoo Vs. State of Odisha & others, reported in 2017 (II) ILR-CUT 1059, Judgment dated 22.01.2019 passed in W.P.(C) No.24473 of 2012 (Anu Charan Patra Vs. Orissa State Agriculture and Marketing Board and others), Judgment dated 22.06.2021 passed in WPC(OAC) No.2818 of 2014 (Sunil Barik Vs. State of Odisha and others), Judgment of Division Bench of this Court dated 06.04.2018 passed in W.P.(C) No.20518 of 2010 (Ranjeet Kumar Das Vs. State of Orissa and others) and W.P.(C) No.5668 of 2016 Page 11 of 39 the Judgment of the Bombay High Court in Sachin Ambadas Dawale & others Vs. State of Maharashtra & another, passed in Writ Petition No.2046 of 2010 on 19.10.2013. 14. The facts, as detailed above, are undisputed. Though in the impugned rejection order dated 9th September, 2015, as at Annexure-14, a stand has been taken by the Collector-Cum-Chairman, Regulated Market Committee, Bargarh that there is no evidence on record to testify that the contractual employees i.e. the Petitioners, have been engaged in a transparent manner following the procedure of recruitment and adhering to the provisions of the ORV Act, contrary to the said stand taken in the rejection order, a Counter Affidavit was filed by the Opposite Party Nos.3 & 4 in the earlier Writ Petition i.e. W.P.(C) No.15279 of 2011 (Annexure-12). Paragraphs 5 to 11 of the said Counter Affidavit, being germane for proper adjudication of the present lis, are extracted below: “5. That considering the proposal; of regularization of the Petitioners’ appointment and the clarification given by the deponent’s office about the justification for such regularization General Manager of the Board was pleased to regularize their appointment vide his letter dated W.P.(C) No.5668 of 2016 Page 12 of 39 27.09.2008 (Annexure-11) indicating that after regularization of the staff the expenditure should be within prescribed limit fixed by the relevant time. 6. That however, since no final decision could be taken relating to regularization of their services, the petitioners approached this Hon’ble Court agitating their grievance by way of filing a writ petition vide W.P.(C)
Arguments
Heard Mr. S.D. Routray, learned Counsel for the Petitioners, Mr. G.N. Rout, learned Additional Standing Counsel and Mr. P.C. Panda, learned Counsel for Opposite Party Nos.3 & 4. 9. Mr. Routray, learned Counsel for the Petitioners submitted that while passing the impugned order, the Opposite Party No.5 has observed that there was an internal communication between the Secretary, RMC, Bargarh with General Manager, OSAM Board vide letter dated 22.09.2008 clarifying the position with respect to preparation of the merit list for observance of ORV Act. After clarifications were received, OSAM Board approved the proposal for regularization of service of the Petitioners vide Order dated 27.09.2008. But in paragraph-9 of the impugned order, the Collector has given an erroneous findings that there is no evidence on record to testify that the contractual employees i.e. the Petitioners, have been engaged in a transparent manner following the procedure of recruitment and adhering to the provisions of the ORV Act. He further submitted that while passing the impugned order, Opposite Party No.5 lost sight of the Counter Affidavit filed by the Secretary, RMC, W.P.(C) No.5668 of 2016 Page 7 of 39 Bargarh and the Chairman of the Regulated Market Committee in W.P.(C) No.15279 of 2011 (Annexure-12), wherein it has been admitted before this Court that the appointment of the Petitioners were as per the prevailing norms and prior approval of the OSAM Board with proper implementation of ORV Rules. Therefore, the findings of the present Opposite Party No.5 in the impugned Order with regard to non-observance of ORV Rules is not only illegal and arbitrary but also contrary to their own Counter Affidavit filed in W.P.(C) No.15279 of 2011 before this Court 10. Further, Mr. Routray submitted that the Collector referring to various Judgments of the apex Court had come to a conclusion that due to non-observance of the statutory provisions, regularization of services of the petitioners cannot be adhered to. But the Collector, while passing the impugned Order, has failed to appreciate the law laid down by the apex Court in its Constitution Bench judgment in Secretary, State of Karnataka and others Vs. Umadevi & others, wherein it has been categorically held that when an incumbent ,who has been continuing against the sanctioned vacant post for more than ten years without intervention of W.P.(C) No.5668 of 2016 Page 8 of 39 any Court or Tribunal, not appointed illegally but irregularly, can be considered for regularization of his service. 11. It was submitted that the Collector, while passing the impugned order dated 9th September, 2015, observed that the representation of the Petitioners after due consideration is dismissed as devoid of merit as no irregularly recruited engagees can be regularized in blatant violation of settled recruitment norms and transgression of provisions of ORV Act. But at the same time , the Collector has failed to appreciate the law laid down by the apex Court in State of Karnataka & other Vs. M.L. Kesari & others, reported in (2010) 9 SCC 247, wherein the proposition of irregular and illegal appointment, as laid down by the apex Court in the case of Uma Devi (supra), has been clarified by observing that, if an incumbent has been appointed against the sanctioned post on contractual basis through a regular recruitment process but not illegal recruitment process, his case can be considered for regularization of service, if he has completed more than ten years of service without intervention of any Court or Tribunal. W.P.(C) No.5668 of 2016 Page 9 of 39 The Collector also failed to appreciate the provisions provided under the Act, 1956, more particularly, Section-9 of the said Act and Rule 33 of the Orissa Agricultural Produce Markets Rules, 1958, which envisages that the Board is the OSAM Board and it is the competent authority to take a decision for regularization of service of Class-IV employees and there is no need of prior order or post facto approval of any other competent Authority. In this context, it has further been submitted that the Collector has
Decision
No.7904 of 2010 which was disposed of on 6.7.2010. 7. That in obedience to the direction given by this Hon’ble Court in order dated 6.7.2010. The Chairman of R.M.C. while considering the case of the petitioners for regularization of their appointment gave emphasis on restriction imposed by the Commissioner- cum-Secretary to Government, Co-operation Department vide his letter bearing No.609/Co.op dated 3.3.2009, since the same was in operation then. In the said guidelines the limit for expenditure for the staffs salary was prescribed and in terms of conditions laid down in paragraph-3 of the said letter Bargarh R.M.C. is to be classified as an ‘A’ Class R.M.C. and as per the limitations stipulated in letter bearing No.609/Coop dated 3.3.2009, 10% of the revenue income could be spend towards salary of staffs. So after evaluating the revenue income and establishment expenditure of Bargarh R.M.C. for the financial year it was assessed that an additional expenditure of 17% was likely to be incurred on account of such regularization which was beyond the prescribed limit and since the establishment expenditure of the R.M.C. was much more than the prescribed limit, the opposite party no.5 did not have the occasion to consider W.P.(C) No.5668 of 2016 Page 13 of 39 the case of these petitioner favourably and accordingly had rejected their claim vide his order dated 21.9.2010. Now again being aggrieved by the said order, the petitioners have preferred the present writ petition. Photostat copy of letter No.609/coop dated 3.3.2009 is annexed herewith as Annexure-A/4. 8. That the deponent humbly submits after filing of this writ petition the competent authority of the State Government (High Power Committee being presided by Hon’ble Minister of Cooperation as its Chairman) have been pleased to make a revision of norms regarding establishment expenditure (salary/wages) of employees of Regulated Market Committee and while doing such exercise the earlier guideline under Annexure-A/4 was modified and the prescribed limits of expenditure on account of salary & wages of staff for an ‘A’ Class R.M.C. was enhanced from 10% to 30 %. Soon after this decision was taken by the High Power Committee, the Board informed all R.M.Cs of the State about the same vide its letter No.2156 dated 26.8.2011, the copy of which is annexed herewith as Annexure-B/4. 9. That in view of such modification in the restriction with regard to establishment cost of the R.M.C., the deponent humbly submits that the claim of the petitioners can be entertained and therefore their demand for regularization of their appointment which has already been approved by the Board can be fulfilled. The copy of the total revenue income & expenditure (Income & expenditure statement) for the marketing year 2012-13 clearly shows that the demands of the W.P.(C) No.5668 of 2016 Page 14 of 39 petitioners if allowed the expenditures to be incurred for their salary component shall be well within the prescribed limitations enumerated in annexure-B/4. The copy of Revenue income and expenditure (Income & expenditure statement) for the marketing year 2012-13 annexed herewith as Annexure- C/4. 10. That, in the committee meeting of R.M.C., Bargarh held on 23.03.2012 & 03.10.2012, Resolutions have been passed vide Resolution No.13 and Resolution No.12 respectively and it has also been decided in the said meetings to regularize the services of the contractual employees of the R.M.C., Bargarh. Resolutions copy of the meeting held on 23.3.2012 & 3.10.2012 is annexed herewith as Annexure-D/4. 11. That the deponent humbly submits that the appointments of the petitioners were done as per the prevailing norms and prior approval of the Board was duly obtained & in course of their engagement necessary compliance was made to observe proper implementation of O.R.V. Rules. Besides other employment Rules and procedures were properly followed. The deponent humbly submits as it transpires from the records available in the office of the deponent that the recruitment procedure followed for engagement of the petitioner was regular one and was made as per law and in view of relaxation made under Annexure-B/4, these petitioners claim requires to be considered in proper perspective by this Hon’ble Court and the W.P.(C) No.5668 of 2016 Page 15 of 39 deponent humbly submits in case their appointment is regularized, adequate funds can be made available by proper budgetary allocations for disbursement of salary components in favour of the petitioners, which will be well within the prescribed limit fixed by the Board.” (Emphasis supplied) 15. It is pertinent to mention here that the Secretary, R.M.C., Bargarh, vide letter dated 26th August, 2007 wrote to the General Manager, Odisha State Agricultural Marketing Board, Bhubaneswar, to fill up 44 numbers of base post lying vacant on contractual basis from amongst existing N.M.Rs followed by communication dated 31st August, 2007 seeking for necessary approval for de-reservation of the concerned post on the ground that there are insufficient numbers of efficient N.M.Rs in the concerned post as per 80 point roster point and to take a decision to the said effect to de-reserve and fill up the said post for efficient management of day to day affairs of the R.M.C. Bargarh. Pursuant to the said communication, the Appointment and Promotion Sub- Committee of Regulated Market Committee, Bargarh, resolved to engage the N.M.Rs in the vacant posts on contractual basis after obtaining due approval from the O.S.A.M. Board for a W.P.(C) No.5668 of 2016 Page 16 of 39 period of one year initially, which can be renewed subsequently depending upon the requirement of the R.M.C. Further, a query being made by the General Manager, Odisha State Agricultural Marketing Board, Bhubaneswar vide letter dated 13th August, 2008, each query was answered by the Secretary, R.M.C., Bargarh vide communication dated 22nd September, 2008 as at Annexure-10, the contents of which are extracted below: “OFFICE OF THE REGULATED MARKET COMMITTEE, BARGARH No.84 Dated 22.9.2008 To The General Manager, Orissa State Agricultural Marketing Board, Bhubaneswar Sub: Clarification with justification for regularization of services of contractual workers. Ref:- 1) This office letter No.726 dtd.11.8.2008 2) Your letter No.3242 dtd. 13.8.2008 Sir, With reference to the letters on the subject cited above I am to submit herewith the compliance for further action at your end as desired. 1. The 45 nos. of contractual workers are working against the sanctioned posts. 2. The appointment sub-committee held on 31.8.2007 have resolved for engagement of 45 nos. of contractual employee which have been already approved by the O.S.A.M Board vide its letter No.4572 dtd.20.9.2007. W.P.(C) No.5668 of 2016 Page 17 of 39 The copy of the proceeding of the sub-committee dtd. 31.8.2007 is enclosed here with for your kind reference. 3. O.R.V. Act. has been followed and the roster register is maintained accordingly as per the guidance of concerned by the District Welfare Officer, Bargarh District. Who was one of the members of the appointment sub-committee. 4. The present contractual employees were appointed as such on examination of their performances and merit by the appointment sub-committee held on 31.8.2007. those Further employees are satisfactory at present. the performances and merit of 5. After regularization of the services of the contractual employees the total establishment expenditure shall be approximately Rs.90,69,036.00 against the expected annual income of Rs.2,47,41,471.00 (i.e. excluding 1% market fee for infrastructure etc.) This calculation to 36.65%, which is within the norms fixed by the O.S.A.M., Board. 6. Up to July, 2008 the total revenue income of this R.M.C. is Rs.3,20,24,850.00 and the expenditure is 1,07,58,432.25. A copy of the income & expenditure statement is enclosed herewith for fovour of kind reference. In view of the above facts necessary order may please be passed and approval accorded accordingly. Yours faithfully Sd/- SECRETARY R.M.C., Bargarh Enclosed: 1. 2. 3. Copy of proceeding of Appointment Sub-Committee On dtd. 31.8.2007 Copy of letter No.4572 dtd. 20.9.07 Of O.S.A.M. Board Copy of revenue income & Expenditure statement up to July, 08” (Emphasis supplied) W.P.(C) No.5668 of 2016 Page 18 of 39 16. Being so clarified, the General Manager, Odisha State Agricultural Marketing Board, Bhubaneswar, vide letter dated 27th September, 2008, communicated to the Secretary, R.M.C., Bargarh regarding approval of the said proposal for regularization of 45 numbers of contractual workers, which is extracted below: “OFFICE OF THE ORISSA STATE AGRICULTURAL MARKETING BAORD: BHUBANESWAR No.3738 Date: 27.9.08 TO The Secretary, R.M.C., Bargarh Sub: Regularization of the contractual workers. Ref:- Your letter No.726 Date.10.08.2008 & letter No-841 Dt.22.09.08. This is office letter No.-3242 Dt.13.08.08. Sir, With reference to the letter on the subject cited above, I am directed to inform you that, the Hon’ble Chairperson, OSAM Board have been pleased to approve the proposal for regularization the 45 nos of contractual workers. After rergularisation of these staff, the expenditure should be within the prescribed limit fixed by O.S.A.M. Board. The R.M.C. is advised to observe due formalities in this respect. Yours faithfully, Sd/- General Manager” (Emphasis supplied) 17. Despite such approval of the proposal for regularization of services of the Petitioners, the impugned W.P.(C) No.5668 of 2016 Page 19 of 39 order dated 9th September, 2015, as at Annexure-14, has been passed by the Collector-Cum-Chairman, Regulated Market Committee, Bargarh on the plea that there is no evidence on record to testify that the contractual employees i.e. the present Petitioners, have been engaged in a transparent manner following the procedure of recruitment and adhering to the provisions of the ORV Act. 18. At this juncture, it is apt to deal with various provisions under the Orissa Agricultural Produce Market Act, 1956. Section 2 (ii-a) of the Act, 1956 defines “Board”, which means the Orissa State Agricultural Marketing Board established under Section 18-A of the Act. Section 2(viii) provides “Market Committee”, which means a Committee established under Section 5. Chapter-II deals with constitution of markets and Market Committee. Section 5 provides establishment of Market Committee whereas Section 6 envisages about constitution of Market Committee. Chapter-III deals with incorporation of Market Committee, its power and duties. Section 8 deals with appointment of sub- committee or joint committee and Section 9 deals with employment of staff. Chapter-IV-A deals with constitution and W.P.(C) No.5668 of 2016 Page 20 of 39 powers of the Board. Section 18-A deals with establishment of the Board and Section 18-B deals with powers and functions of the Board. Section 27 deals with power to make rule. In exercise of power conferred under Section 27 of the Orissa Agricultural Produce Market Act, 1956 (for short “the Act, 1956”), the State Government framed Rules called “The Orissa Agricultural Produce Markets Rules, 1958”, which shall apply to any market area or areas notified as such under Section 4 of the Act, 1956. Part-III of Rules, 1958 deals with Market Committee, its Chairman, Officers and servants and disputes Sub-Committee. Rule-33 deals with servants of the Market Committee. Rule-33, which has been substituted by O.G.E. No.794 dated 03.08.1996, reads thus:- “33. Servants of the Market Committee :- (1) The Market Committee may appoint such officers and servants as may be necessary for the proper management of the market : Provided that the superior Officers of the Committee shall be appointed only with the previous approval of the Board. (2)Superior Officers shall be the Secretary, Clerks and such officers and servants of the Market Committee as the Board may determine from time to time. (3)The terms and conditions of service of superior officers shall be such as may be approved by the Board W.P.(C) No.5668 of 2016 Page 21 of 39 and those of others shall be such as the Market Committee may decide from time to time. (4)The Market Committee shall be the Disciplinary Authority in respect of all officers and servants of the Committee : Provided that the removal or dismissal of superior officers as a measure of punishment shall be subject to the approval of the Board.” 19. In view of the aforementioned provisions contained in the Rule-33, power has been vested with the Market Committee which may appoint such Officers and servants, as may be necessary for proper management of the market, provided that the superior officers of the Committee shall be appointed only with the previous approval of the Board. As per sub-rule (2) of Rule-33, superior officers shall be the Secretary, Clerks and such Officers and servants of the Market Committee, as the Board may determine from time to time. As per sub-rule (3) of Rule-33, the terms and conditions of service of superior Officers shall be such as may be approved by the Board and those of others shall be such as the Market Committee may decide from time to time. So it clarifies the position that the terms and conditions of service of Superior Officers are required to be approved by the Board W.P.(C) No.5668 of 2016 Page 22 of 39 and so far as other employees are concerned, it is the Market Committee, which has to take a decision and fix the terms and conditions of service. The Yardman post, not being a superior officer post, the Market Committee is competent to determine the terms and conditions of service of such employee. 20. From the pleadings made in the Writ Petition, so also contents of the documents appended to the Writ Petition, as extracted above, it is amply clear that the Petitioners, who were earlier working as N.M.Rs, were appointed as contractual workers against sanctioned posts. The Appointment Sub-Committee held on 31st August, 2007 resolved for engagement of those 45 numbers of contractual employees, which had already been approved by the OSAM Board vide its letter dated 20th September, 2007. That apart, ORV Act was followed and the Roster Register was maintained accordingly as per the guidance of concerned District Welfare Officer, Bargarh District, who was one of the members of the Appointment Sub-Committee. That apart, the Petitioners, who are engaged as contractual employees, were appointed as such on examination of their performances and merit by the W.P.(C) No.5668 of 2016 Page 23 of 39 Appointment Sub-Committee held on 31st August, 2007. It was found by the Appointment Sub-Committee that their performances are satisfactory. That apart, with regard to financial implication, it was intimated to the General Manager, OSAM Board, vide communication dated 22nd September, 2008 that after regularization of the services of these Petitioners, the total establishment expenditure shall be within the norms fixed by the OSAM Board. Pursuant to such communication, the OSAM Board had been pleased to accord approval of the said proposal of regularization of services of the Petitioners, who are at present working as contractual workers since 2007 and prior to such engagement, all were working as N.M.Rs in R.M.C.,Bargarh. 21. In Narendra Kumar Tiwari (Supra), vide paragraphs-8, 10 & 11, the apex Court held as follows: “8. The purpose and intent of the decision in Umadevi (3) was therefore two-fold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with W.P.(C) No.5668 of 2016 Page 24 of 39 irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularization and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and Kesari sought to avoid. 10. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise – the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance. 11. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularized unless there is some valid objection to their regularization like misconduct etc.” (Emphasis supplied) W.P.(C) No.5668 of 2016 Page 25 of 39 22. In Nihal Singh (Supra), vide paragraphs-22, 23 and 35 to 38, the apex Court has observed as follows: “22. It was further declared in Umadevi (3) case that the jurisdiction of the Constitutional Courts under Article 226 or Article 32 cannot be exercised to compel the State or to enable the State to perpetuate an illegality. This court held that compelling the State to absorb persons who were employed by the State as casual workers or daily-wage workers for a long period on the ground that such a practice would be an arbitrary practice and violative of Article 14 and would itself offend another aspect of Article 14 i.e. the State chose initially to appoint such persons without any rational procedure recognized by law thereby depriving vast number of other eligible candidates who were similarly situated to compete for such employment. 23. Even going by the principles laid down in Umadevi’s case, we are of the opinion that the State of Punjab cannot be heard to say that the appellants are not entitled to be absorbed into the services of the State on permanent basis as their appointments were purely temporary and not against any sanctioned posts created by the State. 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 W.P.(C) No.5668 of 2016 Page 26 of 39 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 State and providing benefits at par with the police officers of similar rank employed by the State results in further financial commitment it is 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 W.P.(C) No.5668 of 2016 Page 27 of 39 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. 37. For all the above mentioned reasons, we are of the opinion that the appellants are entitled to be absorbed in the services of the State. The appeals are accordingly allowed. The judgments under appeal are set aside. 38. We direct the State of Punjab to regularize the services of the appellants by creating necessary posts within a period of three months from today. Upon such regularization, 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 throughout. In the circumstances, we quantify the costs to Rs.10,000/- to be paid to each of the appellants.” (Emphasis supplied) 23. The coordinate Bench in Padmanava Pradhan (Supra), relying on paragraph-7 of the Judgment of the apex Court in Narendra Kumar Tiwari (Supra), held as follows: “10. In the backdrop of the aforesaid factual exposition and after having bestowed my anxious consideration to the rivalised submissions, the cases of the petitioners deserve consideration for regularization in view of the following facts reasons and judicial pronouncement. W.P.(C) No.5668 of 2016 Page 28 of 39 i) Admittedly, all the petitioners in pursuance of the advertisement and after undergoing the process of selection were appointed as Executive Assistant on contractual basis since 2012. In the meantime they have completed more than eight years of contractual services against the post of Executive Assistant which has been subsequently re-designated as Junior Assistant on the recommendation of the Syndicate Sub-committee in the year 2013. ii) Government of Odisha vide Notification dated 16th January,2014 has published a Contractual Rule 2013 wherein on completion of six years of contractual services, one will be eligible for regularization in service. Since the petitioners have completed the requisite period of services, their services ought to have been regularized by the University in the light of the Notification of the G.A. Department, Government of Odisha. iii) Much has been argued on behalf of the State that initial appointment of the petitioners was against a non-sanctioned post. Therefore, regularization of the petitioners against the non sanctioned post is not legally permissible, but the letter of the Government of Odisha, in the Department of Higher Education dated 08.07.2008 which pertains to the Review committee meeting regarding filling up of the teaching and non-teaching posts in Sambalpur University indicates that the said Review committee meeting was being attended by the members of the Higher Education department, Finance Department and by a conscious decision, the post of Junior Assistant was re-designated as Executive W.P.(C) No.5668 of 2016 Page 29 of 39 Assistant. Accordingly, the advertisement was published and the petitioners appeared the selection process and they were appointed against the 14 post of Executive Assistant in lieu of Junior Assistant. Subsequently in the year 2013 by virtue of the decision of the Syndicate subcommittee the post of Executive Assistant has been re-designated as Junior Assistant and the petitioners have been continuing against the post of Junior Assistant since 2013 taking into consideration the uninterrupted services rendered by the petitioners against the redesignated post of Junior Assistant and on perusal of the Notification of the State Government regarding regularisation of contractual appointees, it is quite luculent that the petitioners have rendered more than the requisite period of service against the sanctioned and vacant post of Junior Assistant to stake their claim for regularization of services. iv) So far as regularization of services, the Hon’ble Apex Court in a catena of decisions have succinctly and illuminatively dealt with the concept of regularization. In the case of Narendra Kumar Tiwari and others-vrs.-State of Jharkhand and others : (2018) 8 SCC 238, in paragraph-7, it was held that “The purpose and intent of the decision in Umadevi (3) was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in e past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi W.P.(C) No.5668 of 2016 Page 30 of 39 (3) is a clear indication that it believes that it was all right to continue with irregular appointments and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi and Kesari sought to avoid.” 24. The coordinate Bench in Sanatan Sahoo (Supra), relying on paragraph-53 of the Judgment of the apex Court in Secretary State of Karnataka & others Vs. Umadevi & others, reported in(2006) 4 SCC 1, so also the Judgment in State of Karnataka & other Vs. M.L. Kesari & others, reported in (2010) 9 SCC 247, held as follows: “7. Law is well settled in the case of Secretary State of Karnataka and others v. Umadevi and others, reported in (2006) 4 SCC 1, wherein at paragraph 53 it has been held as thus:- “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal 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 W.P.(C) No.5668 of 2016 Page 31 of 39 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 that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, 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.” However in the case of State of Karnataka & others v. M.L. Keshari & others, reported in (2010) 9 SCC 247, the principle decided by the Apex Court in the case of Umadevi (supra) has been further clarified and followed. 8. This Court in the case of Prakash Kumar Mohanty v. State of Odisha and others (W.P.(C) No.22159 of 2012 decided on 28.02.2017) referring to the W.P.(C) No.5668 of 2016 Page 32 of 39 decisions in the case of Umadevi (supra) and M.L. Kesari (supra) directed the competent authority to take a decision on the grievance of the petitioner in the light of the observations made in paragraph-53 of the Umadevi case within eight weeks from the date of receipt of copy of the order. 9. Admittedly in the present case, the petitioner having the requisite qualification was engaged as Data Entry Operator since September, 1995 and he has been continuing as such till date without the intervention of the Courts. He approached the Tribunal in the year 2013 for his regularization before the notification issued by the State Government regarding Odisha Group ‘C’ and Group ‘D’ posts (contractual appointment) Rules, 2003. The recruitment rule came into force only in the year 2008 and the rule regarding contractual appointment as contended by the State Government was followed latter on. Thus the engagement of the petitioner at best can be termed as irregular engagement and not illegal engagement. That apart, it is also admitted that sanctioned posts are available since 2009 and the petitioner had also completed more than ten years by then. In view of the discussions made hereinabove paragraphs and in the peculiar facts and circumstances of this case, this Court is of the opinion that the Tribunal has lost sight of facts in right perspective in the light of the aforesaid decisions of the apex Court. Thus, this Court set aside the impugned order dated 14.05.2015 passed in O.A. No.3421 of 2013 and remits the matter back to the authorities to regularize the service of the W.P.(C) No.5668 of 2016 Page 33 of 39 petitioner by applying the aforementioned ratio and to extend consequential service benefits to the petitioner accordingly, within a period of eight weeks.” (Emphasis supplied) 25. In Anu Charan Patra (supra), the Coordinate Bench has held as follows: “8. In view of the aforementioned provisions contained in the Rule-33, power has been vested with the market committee which may appoint such officers and servants, as may be necessary for proper management of the market, provided that the superior officers of the committee shall be appointed only with the previous approval of the Board. As per sub-rule (2) of Rule-33, superior officers shall be the Secretary, Clerks and such officers and servants of the market committee, as the Board may determine from time to time. As per sub-rule (3) of Rule-33, the terms and conditions of service of superior officers shall be such as may be approved by the Board and those of others shall be such as the market committee may decide from time to time. So it clarifies the position that the terms and conditions of service of superior officers are required to be approved by the Board and so far as other employees are concerned, it is the market committee which has to take a decision and fix the terms and conditions of service. The Yardman, being not a superior officer post, the market committee is competent to determine the terms and conditions of service of such employee.” (Emphasis supplied) W.P.(C) No.5668 of 2016 Page 34 of 39 Vide the said Judgment, relying on the Judgment of the apex Court in Praveen Singh vs. State of Punjab, reported in AIR 2001 SC 152 and in Om Kumar vs. Union of India, reported in AIR 2000 SC 3689 in paragraph-14 it was observed as follows. “14. In view of the law laid down by the apex Court as discussed above, there is no iota of doubt that when the recommendation has been made by the appointment sub-committee with regard to regularization of services of the petitioner and the same was approved by the Board, the same should have given effect to by opposite parties no.2 and 3. Instead of doing so, for some reason or other, the opposite parties no.2 and 3 have tried not to implement the same resulting in depriving the petitioner of his valuable right to continue against a regular post for which he has been selected by following due procedure by the appointment subcommittee and approved by the Board.” 26. In Sunil Bark (supra), the Coordinate Bench has held as follows: “13. In State of Jammu and Kashmir v. District Bar Association, Bandipora, (2017) 3 SCC 410, wherein a distinction has been made with regard to “irregular” and “illegal” engagement, referring to the exception carved out in Umadevi(3) mentioned supra, in paragraph-12 of the said judgment it has been stated as follows: W.P.(C) No.5668 of 2016 Page 35 of 39 “12. The third aspect of Umadevi (3) which bears notice is the distinction between an “irregular” and “illegal” appointment. While answering the question of whether an appointment is irregular or illegal, the Court would have to enquire as to whether the appointment process adopted was tainted by the vice of non-adherence to an essential prerequisite or is liable to be faulted on account of the lack of a fair process of recruitment. There may be varied circumstances in which an ad hoc or temporary appointment may be made. The power of the employer to make a temporary appointment, if the exigencies of the situation so demand, cannot be disputed. The exercise of power however stands vitiated if it is found that the exercise undertaken (a) was not in the exigencies of administration; or (b) where the procedure adopted was volatile of Articles 14 and 16 of the Constitution; and/or (c) where the recruitment process was overridden by the vice of nepotism, bias or mala fides.” 14. Applying the above principles to the present case, since the petitioner has been discharging the duties against a sanctioned vacancy in the post of Barber with the knowledge of the employer on daily wage basis for a quite long time, after being duly selected by following due process of selection in the post of Home Guard, and his engagement is due to the emergent situation, the engagement may be “irregular” one, but his service is to be regularized with all consequential benefits in accordance with law. This Court directs W.P.(C) No.5668 of 2016 Page 36 of 39 accordingly. The entire exercise shall be completed within a period of four months from the date of communication/production of authenticated/certified copy of this judgment by the petitioner.” (Emphasis supplied) 27. The Division Bench of this Court in Ranjeet Kumar Das (Supra), relying on the Judgments of the apex Court In Uma Devi (supra), in M.L. Kesari (supra), in Nihal Singh (supra) and in State of Jammu and Kashmir Vs. District Bar Association, Bandipora, reported in (2017) 3 SCC 410 held that if the petitioner has been engaged against an existing vacancy, by following due process of selection, and continued for a quite long period and his engagement is due to the emergent situation, the appointment being “irregular” one, his services are to be regularized in accordance with law. 28. In view of the discussions made, so also settled position of law as detailed above, including the Judgments passed by the coordinate Bench in Anu Charan Patra (supra), where the Petitioner was also working as Yardman (N.M.R) under the Nimapara Regulated Marketing Committee, Nimapara, this Court is of the view that the services of the Petitioners should have been regularized against the vacant posts of “Yardman” as per the recommendation made by the W.P.(C) No.5668 of 2016 Page 37 of 39 Appointment Sub-Committee, which was duly approved by the Board, as communicated by the General Manager, Orissa State Agricultural Marketing Board vide letter dated 27th September, 2008. This Court is of further view that the impugned order of rejection dated 9th September, 2015 under Annexure-14, vide which the representation of the Petitioners for regularization of their services was rejected, being contrary to the admitted facts as detailed above, so also documentary proof on record, is illegal, unjustified and product of non- application of mind and is liable to be set aside. Accordingly, the said rejection order dated 9th September, 2015, as at Annexure-14, is hereby set aside. 29. In the aforesaid facts and circumstances, this Court directs the Opposite Parties, more particularly, Opposite Party Nos.4 & 5 to regularize the services of the Petitioners with effect from 27th September, 2008 i.e. the date on which the General Manager, Orissa State Agricultural Marketing Board, Bhubaneswar communicated the Secretary R.M.C., Bargarh (Annexure-11) to regularize the services of the Petitioners, and to grant them all consequential service and financial benefits, as due and admissible, by making due W.P.(C) No.5668 of 2016 Page 38 of 39 calculation thereof within a period of four months from the date of communication of the certified copy of this Judgment. 30. With the aforesaid direction the Writ Petition stands allowed and disposed of. However, there shall be no order as to cost. …….….…………………… S.K. MISHRA, J. Orissa High Court, Cuttack The 21st of July, 2023/Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Jul-2023 14:42:55 W.P.(C) No.5668 of 2016 Page 39 of 39