The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.10517 of 2022 In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950. ……………… Babaji Charan Swain …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : M/s. S. Mallik, P.C. Das, M. Mallik, S. Mallick & A.P. Mohanty. For Opp. Parties : M/s. Mr. Sangram Jena, Addl. Government Advocate PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------- Date of Hearing:04.03.2024 and Date of Judgment:04.03.2024 ---------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. Heard learned counsel appearing for the Parties. 2. Petitioner has filed the present Writ Petition inter alia challenging the order dtd.13.04.2022 so passed by Opposite Party No.2 under Annexure-5. Vide the said order, the claim of the Petitioner to get the benefit of regularization of his services was rejected. 3.
Legal Reasoning
It is contended that Petitioner was engaged on Ad hoc basis vide order of appointment issued on 31.07.1995 under Annexure-1. Petitioner though was allowed to // 2 // continue on Ad hoc basis w.e.f. 14.07.1995 in terms of the order issued under Annexure-1, but when he was not regularized in his service, he approached the Tribunal in O.A No.12(C) of 1997. The Tribunal vide order dtd.24.06.2013 while disposing the matter, observed that Petitioner be allowed to continue in his service till the post is filled up on regular basis. 3.1. It is contended that in terms of the order passed by the Tribunal on 24.06.2013, no step has been taken to fill up the post on regular basis and in the meantime around 11 years are going to pass. However, it is contended that since Petitioner is continuing on Ad hoc basis w.e.f. 14.07.1995 till date, in view of the decision of the Hon’ble Apex Court in the case of State of Gujarat & Others vs. Talsibhai Dhanjibhai Patel, Special Leave to Appeal (C) No.1109/2022 and judgment passed by this Court in the case of Rajendra Kumar Nayak vs. Orissa Mining Corporation Ltd. & Others, reported in 2017 (II) ILR-CUT- 912, Petitioner is eligible and entitled to get the benefit of regularization. The order passed by the Hon’ble Apex Court in the aforesaid Special Leave Petition is quoted hereunder:- “It is unfortunate that the State continued to take the services of the respondent as an ad-hoc for 30 years and thereafter now to contend that as the services rendered by the respondent are ad- hoc, he is not entitled to pension / pensionary benefit. The State cannot be permitted to take the benefit of its own wrong. To take the services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continues service shall be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand. In the present case, the High Court has not committed any error in directing the State to pay pensionary benefits to the respondent who has retired after rendering more than 30 years’ service. Hence, the Special Leave Petition stands dismissed. Page 2 of 13 // 3 //
Decision
Pending application (s), if any, shall stand disposed of.”. Similarly, this Court in Para-14 of the judgment in the case of Rajendra Kumar Nayak has held as follows:- “14. The above being the settled principles of law, there is no iota of doubt that the petitioner, who has been continuing in service for more than 30 years, is entitled to be regularized, particularly when the persons appointed after him have already been regularized. Therefore, the opposite parties are directed to regularize the service of the petitioner and grant him all consequential service and financial benefits as admissible to the post held by him, i.e., Junior Assistant in accordance with law as expeditiously as possible, preferably within a period of three months from the date of communication of the judgment”. 3.2. While placing reliance on the aforesaid decisions, learned counsel for the Petitioner also relied on the decisions in the case of Secretary, State of Karnataka vs. Uma Devi (3), (2006) 4 SCC-1, State of Karnatak vs. M.L.Keshari, (2010) 9 SCC 247, Nihal Singh & Others vs. State of Punjab & Others, 2013 (14) SCC 65 and Amarkant Rai vs. State of Bihar & Others, 2015 (8) SCC 265. 3.3. Hon’ble Apex Court in the case of Uma Devi in Para-44 has held as follows:- “44. 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 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 Page 3 of 13 // 4 // 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 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.” 3.4. Similarly Hon’ble Apex Court in the case of M.L. Keshari in Para- 8 and 13 has held as follows:- “8. Umadevi (3) casts a duty upon the Government or instrumentality concerned, to take steps to regularise the services of those 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. Umadevi (3) directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10-4-2006). 13. The Division Bench of the High Court has directed that the cases of the respondents should be considered in accordance with law. The only further direction that needs to be given, in view of Umadevi (3), is that the Zila Panchayat, Gadag should not undertake an exercise within six months, as a general one-time regularisation exercise, to find out whether there are daily-wage/casual/adhoc employees serving the Zila Panchayat and if so whether such employees (including the respondents) fulfil the requirements mentioned in para-53 of Umadevi (3). If they fulfill them, their services have to be regularised. If such an exercise has already been undertaken by ignoring or omitting the cases of Respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said one- time exercise within three months. It is needless to say that if the respondents do not fulfill the requirements of para 53 of Umadevi (3), their services need not be regularised. If the Page 4 of 13 // 5 // employees who have completed ten years' service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularisation in suitable lower posts.” 3.5. In the case of Nihal Singh in Para-35 to 38, Apex Court has held as follows:- “35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with 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 tin 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. 21. In the first instances, the petitioner and the other Election Commissioners were appointed when the work of the Commission did not warrant their appointment. The reason given by Respondent 1 (Union of India), that on account of the Constitution (61" Amendment) Act reducing the voting the Constitution (64th Amendment) and (65 age and Amendment) Bills relating to election to the Panchayats and Nagar Paliks, the work of the Commission was expected to increase and, therefore, there was need for more Election Commissioners, cuts notice. As has been pointed out by Respondent 2, the work relating to revision of electoral roll on account of the reduction of voting age was completed in all the States except Assam by the end of July 1989 itself, and at the Conference of the Chief Electoral Officers at Tirupati. Respondent 2 had declared that the entire preparatory work relating to the conduct of the then ensuing general elections to the Lok Sahba would be completed by August in the whole of the country except Assam. Further the Constitution (64th and 65th Amendment) Bills had already fallen in Parliament before the appointments. In fact, what was needed was more secretarial staff for which the Commission was pressing, and not more Election Commissioners. What instead was done was to appoint the petitioner and the other Election Commissioner on 16.01.1989. Admittedly, further the view of Page 5 of 13 // 6 // the Chief Election Commissioner were not ascertained before making the said appointments. In fact, he was presented with them for the first time in the afternoon of the same day i.e, 16- 10-1989. financial burden on 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 the exchequer of the State. Depending upon the priorities of the State, the allocation of the finance 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 on a 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. 37. We are of the opinion that neither the Governmnet of Punjab nor these public sector banks can continue such a practice consistent with their obligations to function in accordance with the Constitution. Umadevi (3) judgement cannot became a licence for exploitation by the State and its instrumentalities. 38. For all the abovementioned reasons, we are of the opinion that the appellants are entitled to be absorbed in the services of the State. The appeal are accordingly allowed. The judgements under appeal are set aside.” 3.6. In the case of Amarkanti Rai, Hon’ble Apex Court in Para-8, 9, 11 to 14 has held as follows:- “8. Insofar as contention of the respondent that the appointment of the appellant was made by the Principal who is not a competent authority to make such appointment and is in violation of the Bihar State Universities Act and hence the Page 6 of 13 // 7 // appointment is illegal appointment, it is pertinent to note that the appointment of the appellant as night guard was done out of necessity and concern for the College. As noticed earlier, the Principal of the College vide letters dated 11-3-1988, 7-1- 1993, 8-1-2002 and 12-7-2004 recommended the case of the appellant for regularization on the post of night guard and the University was thus well acquainted with the appointment of the appellant by the then Principal even though the Principal was not a competent authority to make such appointments and thus the appointment of the appellant and other employees was brought to the notice of the University in 1988. In spite of that, the process for termination was initiated only in the year 2001 and the appellant was reinstated w.ef. 3-1-2002 and was removed from services finally in the year 2007. As rightly contended by the learned counsel for the appellant, for a considerable time, the University never raised the issue that the appointment of the appellant by the Principal is ultra vires the rules of the BSU Act. Having regard to the various communications between the Principal and the University and also the educational authorities and the facts of the case, in our view, the appointment of the appellant cannot be termed to be illegal, but it can only be termed as irregular. 9. The Human Resources Development, Department of Bihar Government, vide its Letter dated 11-7-1989 intimated to the Registrar of all the Colleges that as per the settlement dated 26-4-1989 held between Bihar State University and College Employees' Federation and the Government it was agreed that the services of the employees working in the educational institutions on the basis of prescribed staffing pattern are to be regularised. As per sanctioned staffing partien, in Ramashray Baleshwar College, there were two vacant posts of Class IV employees and the appellant was appointed against the same. Further, Resolution No. 989 dated 10-5- 1991 issued by the Human Resources Development Page 7 of 13 // 8 // Department provides that employee working up to 10-5-1986 shall be adjusted against the vacancies arising in future. Although, the appellant was appointed in 1983 temporarily on the post that was not sanctioned by the State Government, as per the above communication of the Human Resources Development Department, it is evident that the State Government issued orders to regularise the services of the employees who worked up to 10-5-1986. In our considered view, the High Court ought to have examined the case of the appellant in the light of the various communications issued by the State Government and in the light of the circular, the appellant is eligible for consideration for regularisation. XXX XXX XXX 11. Elaboration upon the principles laid down in Umadevi (3) Case and explaining the difference between irregular and illegal appointments in State of Karnataka Vs. M.L Kesari, this Court held as under (ML Kesari case SSC p 250, para 7) 7. It is evident from the above that there is an exception to the general principles against 'regularisation enunciated in Umadevi (3). 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. (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 possesses the prescribed minimum qualifications, the appointments will be considered to be illegal., But where the persons employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process Page 8 of 13 // 9 // of open competitive selection, such appointments are considered to be irregular.” 12. Applying the ratio of Umadevi (3) case, this Court in Nihal Singh v. State of Punjab directed the absorption of the Special Police Officers in the services of the State of holding as under: (Nihal Singh Case, SCC pp. 79-80, paras- 35-36) "35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with 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 extracting work from persons such as the appellants herein for decades together itself would he 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 on a par with the police officers of similar rank employed by the State results in 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 13. In our view, the exception carved out in para 53 of Umadevi (3)3 is applicable to the facts of the present case. Page 9 of 13 // 10 // There is no material placed on record by the respondents that the appellant has been lacking any qualification or bore any blemish record during his employment for over two decades. It is pertinent to note that services of similarly situated persons on daily wages for regularisation viz. one Yatindra Kumar Mishra who was appointed on daily wages on the post of Clerk was regularised w.e.f. 1987. The appellant although initially working against unsanctioned post, the appellant was working continuously since 3-1-2002 against sanctioned post. Since there is no material placed on record regarding the details whether any other night guard was appointed against the sanctioned post, in the facts and circumstances of the case, we are inclined to award monetary benefits to be paid from 1.-1-2010. 14. Considering the facts and circumstances of the case that the appellant has served the University for more than 29. years of 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 regularise the services of the appellant retrospectively w.ef. 3-1-2002 (the date on which he rejoined the post as per the direction of the Registrar).” 3.7. Learned counsel for the Petitioner accordingly contended that in view of his continuance on Ad hoc basis since 14.07.1995 and in action on the part of the Opposite Parties in not filing up the post on regular basis on the face of the order passed on 24.06.2013 in O.A. No.12(C)/1997, Petitioner in view of the decisions as cited (supra) is eligible for his absorption in the regular establishment. 4. Mr. S. Jena, learned Addl. Government Advocate for the State on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that even though there is no dispute that Petitioner was Page 10 of 13 // 11 // appointed on Ad hoc basis w.e.f. 14.07.1995 in terms of the order issued on 31.07.1995 under Annexure-1, but Petitioner when approached the Tribunal seeking his regularization in O.A. No.12(C) of 1997, he was protected by the Tribunal till the matter was ultimately disposed of vide order dtd.24.06.2013. The Tribunal while disposing the matter also allowed the Petitioner to continue till the post is regularly filled up. The view expressed by the Tribunal so reflected in Para-11 of the counter affidavit is reproduced hereunder:- “11. That, the aforesaid OA No.12-(C)/1997 was disposed of by the Hon’ble Tribunal vide Order No.6 dated 24.06.2013 wherein the Hon’ble Tribunal directed as follows:- “Considering the submissions made by the learned counsel for both the parties, as and when any regular vacancy is available and any advertisement shall be issued inviting applications for the purpose, the applicant is at liberty to submit his application along with his testimonials, subject to fulfilling of all the terms and conditions for such engagement excluding upper age limit criteria and in case he submits his application the respondent authorities shall do well to consider the case of the applicant for such engagement along with all other similarly placed candidates. If the applicant is entitled for any preference on the basis of his past service as a Peon that shall also be extended in his favour as per Rules/Government guidelines. So far as relaxation of upper age limit is concerned that will be extended in favour of the application as per rules taking into account the number of years the applicant has discharged his duties as a Peon. However, it need not to be said that as on date the applicant is still continuing in service, he will be allowed to continue in the terms and conditions on which he is continuing on temporary basis, till the post is filled up on regular basis.” It is worthwhile to mention here that due to imposition of ban on appointment to the post of Group-D employees, no advertisement was issued for engagement to the post of peon”. 4.1. Placing reliance on the order passed by the Tribunal, learned Addl. Government Advocate contended that since no step has been taken as yet to fill up the post on regular basis and Petitioner in terms of the said order is being Page 11 of 13 // 12 // allowed to continue, he has got no further grievance and his claim for regularization has been rightly rejected vide the impugned order under Annexure-5. 5. To the submission made by the learned Addl. Government Advocate, Mr. Mallik, learned counsel for the Petitioner contended that Petitioner is not only continuing on Ad hoc basis w.e.f. 14.07.1995, but also in the meantime he has completed more than 30 years of service on Ad hoc basis and he will be seriously prejudiced, if he is not absorbed on regular basis prior to his retirement. Petitioner if will not be regularized, he will not be entitled to get the benefit of pension and other retiral benefits. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that Petitioner was appointed on Ad hoc basis w.e.f. 14.07.1995 vide order dtd.31.07.1995 under Annexure-1. Even though the Tribunal vide its order dtd.24.06.2013 while disposing O.A. No.12(C) of 1997 allowed the Petitioner to continue and with a direction that Petitioner will so continue till the post is filled up on regular basis and by giving opportunity to the Petitioner to participate in the selection process, but as admitted, no step has been taken as yet by the State- Machinery to fill up the post on regular basis. 6.1. In view of such long continuance on Ad hoc basis for around 30 years and placing reliance on the decisions of the Hon’ble Apex Court as well as by this Court as cited (supra) and the inaction of the Opposite Parties in not filing up the post on regular basis, this Court is of the view that Page 12 of 13 // 13 // the claim of the Petitioner has been illegally rejected vide the impugned order dtd.18.04.2022 under Annexure-5. Therefore, this Court is inclined to quash the said order. While quashing the same, this Court directs Opposite Party No.2 to take appropriate step for regularization of services of the Petitioner as against the post in which Petitioner is continuing w.e.f.14.07.1995 within a period of six (6) weeks from the date of receipt of this order. 7. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 4th March, 2024/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Mar-2024 11:08:24 Page 13 of 13