The High Court · 2009
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P. (C) No. 12479 of 2019 Applications under Articles 226 and 227 of the Constitution of India. ----------------------------- Biswanath Dhar …… Petitioner -versus- State of Odisha & others …… Opp.Parties W.P.(C) No. 12481 of 2019 Kamalendu Mendli …… Petitioner -versus- State of Odisha & others …… Opp.Parties W.P.(C) No. 12483 of 2019 Prakash Kumar Mahana …… Petitioner -versus- State of Odisha & others …… Opp.Parties For petitioners: (in all the cases) Mr. Budhadev Routray (Senior Advocate) For Opp. parties: (in all the cases) Mr. Saswat Das Addl. Govt. Advocate Mr. Kousik Ananda Guru Advocate (for opp. parties nos.2 to 4) ----------------------------- 2 P R E S E N T: THE HONOURABLE MR. JUSTICE S. K. SAHOO ----------------------------------------------------------------------------------------------------------------------- Date of Judgment: 18.04.2023 ----------------------------------------------------------------------------------------------------------------------- S. K. SAHOO, J. The petitioners have filed these writ petitions challenging the order dated 31.05.2019 passed by the Government of Odisha in the Department of Higher Education, Odisha in rejecting their claim for regularization in the posts of Junior Assistant in Sambalpur University from the date of their initial engagement. Since common questions of facts and law are involved in all the three writ petitions, with the consent of the learned counsel for the parties, these are heard analogously and disposed of by this common judgment. 2. The facts of these three cases are stated in short as under:- 2.1. Pursuant to the notice dated 08.05.2002 under Annexure-1 for filling up of the posts of Office Assistant under the Department of Distance Education, which is coming under the Administrative Control of the Sambalpur University (hereafter, in short, ‘University’), the petitioners offered their candidatures. Accordingly, an interview was conducted by a Selection Committee of the University wherein fifty seven candidates 3 appeared and out of them, the petitioners were selected as per the proceedings of the Selection Committee dated 20.05.2002 under Annexure-2 series. Thereafter, as per order dated 29.05.2002 under Annexure-3, orders were issued in favour of the petitioners appointing them as Office Assistants in the Directorate of Distance Education under the University for a period of 89 days on daily wage basis on a consolidated pay of Rs.2,000/- (rupees two thousand) and in the said appointment order, it has been mentioned that the service is purely temporary and in no way the incumbents have a right of claim for a permanent post. 2.2. By office order dated 04.08.2009 under Annexure-3, the post of the petitioners has been re-designated as Computer Assistant and their consolidated remuneration was enhanced from Rs.2,000/- (two thousand) to Rs.5,000/- (rupees five thousand) with effect from 1st June 2009. 2.3. By letter dated 24.12.2013, the University addressed a letter to the Additional Secretary to the Government in the Department of Higher Education to accord approval to the appointment of the petitioners taking into consideration the length of service rendered by them as well as long experience in the clerical work in the University. 4 2.4. By office order dated 03.06.2014 under Annexure-5, the consolidated salary of the petitioners was enhanced from Rs.5,000/- (rupees five thousand) to Rs.7,100/- (rupees seven thousand one hundred) (Basic Pay Rs.5200/- + Grade Pay Rs.1900/-) and it has been stated therein that the petitioners will be covered under the E.P.F. scheme. 2.5. The University by letter dated 01.08.2014 under Annexure-6 requested the Government in the Department of Higher Education to regularize the services of forty three nos. of candidates including the petitioners. In pursuance of the decision of the Syndicate vide resolution no.45 dated 16.05.2015, the posts held by the petitioners as Office Assistants and Computer Assistants under different units were re-designated as Junior Assistant on temporary basis by office order dated 16.07.2015 under Annexure-8. 2.6. The University by letter dated 26.11.2015 requested the Special Secretary to the Hon’ble Chancellor to accord necessary permission for regularization of the services of the petitioners along with others in order to enable the University to cope up with the emerging situation and taking into account the persistent demand of the employees’ association. 5 2.7. Since no action was taken, the petitioners moved this Court in separate writ petitions bearing W.P.(C) No.23322 of 2015, W.P.(C) No.23323 of 2015 and W.P.(C) No.23326 of 2015 ventilating their grievance for regularization of the services and this Court by order dated 07.01.2016 disposed of all those writ petitions directing the State Authority to consider the recommendation made by the University and pass appropriate order by sanctioning the posts and regularize the services of the petitioners taking into consideration that they are continuing in service w.e.f. 2002 in accordance with law as expeditiously as possible preferably within a period of four months from the date of communication of this order. 2.8. The State Government intimated the Registrar of the University vide letter dated 11.04.2018 under Annexure-11 for filling up of forty one nos. of vacant posts of Junior Assistant as per the Orissa Universities Recruitment & Promotion of non- teaching Employees Rules, 1992 (hereafter in short, ‘OURP Rules, 1992’). 2.9. The University vide letter dated 25.07.2018 requested the State in the Higher Education Department for according approval for regularization of thirty two nos. of candidates including the petitioners. 6 2.10. By the impugned order dated 31.05.2019 under Annexure- 12, the State Government rejected the case of the petitioners on the ground that the petitioners have not completed ten years as on 2006 and the post has not been sanctioned. 3. No counter affidavit has been filed by the State Government. 4. The Opposite parties nos.2 to 4 have filed counter affidavit stating, inter alia, that the posts against which the petitioners were appointed were non-sanctioned posts and prior approval of the State Government has also not been obtained by the University for creating such posts. It is further stated that the action of the University to engage the petitioners against such non-sanctioned posts was in contravention of section 22 of Odisha University Act, 1989 (hereafter ‘1989 Act’). It is also stated that the Syndicate of the University vide resolution No. 45 dated 16.05.2015, re-designated the petitioners as Junior Assistant without prior approval of the State Government and the appointment of the petitioners as Junior Assistants was made in violation of the OURP Rules, 1992 by not following the prescribed open competitive selection process. It is further stated that in view of the ratio laid down by the Hon’ble Supreme Court in the case of State of Karnataka -Vrs.- Umadevi 7 reported in (2006) 4 Supreme Court Cases 1, the appointment of the petitioners is illegal as because their appointment has not been made against any sanctioned posts and hence the services of the petitioners cannot be regularized. It is further stated that even if it is held that the appointment of the petitioners is not illegal but irregular, then also the services of the petitioners cannot be regularized as they have not worked for more than ten years as on 10.04.2006 i.e. the date of judgment of the Hon’ble Supreme Court in Umadevi case (supra). It is further contended that as per the notification of the University dated 08.05.2002 under Annexure-1, it has been clearly mandated that the post of Office Assistant is purely temporary and no way serves as a right of claim for permanent post and their services shall be terminated at any time without assigning any reason thereof. It is also stated that the petitioners were initially engaged on 89 days basis and due to the requirement of the services of the petitioners, their services have been extended 38 times with a break up till 23.01.2014. It further stated that the Syndicate in its meeting held on 16.05.2015 has resolved that the employees working as Office Assistant and Computer Assistant may be brought to the establishment fold of the University as Junior Assistant (T) 8 subject to fulfillment of the following conditions and availability of sanctioned vacancies:- (i) The employee should have completed not less than ten years of service in the University funded units only; (ii) They should have possessed minimum qualification of Jr. Asst. as prescribed in OURP Rules, 1991; (iii) Their original appointment should have been approved by the Vice-Chancellor; (iv) Prior to their re-designation as Junior Asst. (Temporary) under Establishment fold, they will have to furnish an affidavit in the prescribed format of the University on a non-judicial stamp paper to the effect that they will neither claim for any retrospective financial and seniority benefit nor claim for permanent absorption in the University. It is admitted by the University that on fulfillment of the above conditions by the petitioners along with others, they were re-designated as Junior Assistant (T) and were brought to the establishment fold of the University. It is further stated that the Syndicate resolution No.45 dated 16.05.2015 has been 9 revoked in the meeting of the Syndicate held on 21.12.2021 and the office order dated 16.07.2015 under Annexure-8 has been withdrawn as per office Order dated 04.01.2022. It is also stated that the petitioners have admitted that the posts held by them are not sanctioned posts and though recommendation has been made by the University, but the same has not been accepted by the State Government. It is stated by the University that as per section 22 of the 1989 Act, the posts shall be created by the Hon’ble Chancellor subject to specific allotment of funds for the purpose in the budget of the University and shall be in accordance with the yardstick formulated by the University with the approval of the State Government and whenever posts are created beyond the yardstick approved by the State Government, prior concurrence of the State Government on the decision of the Syndicate for regularization of the services of the petitioners in the University is necessary and unless or until the Government has given concurrence, the University may not be able to regularize any person. 5. Rejoinder has been filed by the petitioners reiterating
Decision
the stand taken in the writ petition. 10 6. Mr. Budhadev Routray, learned Senior Advocate appearing for the petitioners contended that the appointment of the petitioners was made following a fair and transparent method of selection, which was duly approved by the Vice- Chancellor of the University, which can be ascertained from the proceedings of the Selection Committee meeting dated 20.05.2002 (Annexure-2). He further contended that the Registrar of the University addressed a letter to the State Government in the Department of Higher Education vide letter dated 01.08.2014 under Annexure-6 intimating about 39 nos. of vacant posts of Junior Assistant and 43 nos. of candidates engaged on contractual/daily wage/temporary basis and requested the Government for regularization of the incumbents in the post of Junior Assistant. The Registrar informed the State Government about the Syndicate’s decision regarding re- designation of the petitioners along with others as Junior Assistant on temporary basis against the vacant sanctioned strength of Junior Assistant pursuant to which the Government was also pleased to allow for filling up of 41 nos. of vacant posts of Junior Assistant in the University, but despite such communication and overlooking such decision of the State Government under Annexure-11, the impugned order under 11 Annexure-12 has been passed rejecting the case of the petitioners for regularization. Learned counsel further urged that the reason shown in the impugned order that the petitioners had not completed ten years of service as on 10.04.2006, i.e. the date of passing of the judgment of the Hon’ble Supreme Court in Umadevi (supra) has no bearing as the said case has been misinterpreted while considering the case of the petitioners for regularization. He further contended that the law is well settled by a series of judgments of the Hon’ble Apex Court as well as this Court that the purpose and intent of the decision rendered in Umadevi (supra) was two folds; (i) to prevent irregular and illegal appointments in future and (ii) to confer benefit on those who have been irregularly appointed in the post. He further submitted that the State Government being a model employer, cannot exploit the services of the petitioners by not giving them the benefit of regularization and if irregular appointees have completed ten years of service, then their services should be regularized. Learned counsel further urged that even assuming though not admitting that the appointment of the petitioners was on temporary basis and not against any sanctioned post, but 12 considering the fact that there is necessary of manpower in the University and the University has been utilizing the services of the petitioners for decades together, the failure of the State Government to take a decision to create posts itself is arbitrary and amounts to sheer exploitation. He further contended that absorbing the petitioners in the regular post would not cause any additional financial burden to the State exchequer. Learned counsel further urged that there was clear cut vacancies in the office establishment of the University and considering the necessity of manpower for smooth functioning, pursuant to the notice inviting applications for the post of Office Assistant on 08.05.2002 fixing criteria mentioned therein, the petitioners submitted their applications and having been selected by the Selection Committee, they were appointed as such and have been discharging their duties since 29.05.2002 and thus, the benefit of regularization cannot be denied to the petitioners on the plea that there is no sanctioned post. Learned counsel emphatically contended that on a bare perusal of the office order dated 03.06.2014 under Annexure-5, it can be clearly seen that while enhancing the consolidated remuneration of the petitioners, they have also been extended with the grade pay and the benefits of EPF 13 scheme which is available to only regular appointees and thus, instead of regularizing the services of the petitioners, the action of the opposite parties in rejecting their claim for regularization is not sustainable in the eye of law. Learned counsel further argued that it is not the case that the petitioners are continuing against non-sanctioned posts, rather from a bare perusal of the letter dated 22.10.2016 under Annexure-10, it can be clearly seen that the petitioners have been re-designated as Junior Assistants on temporary basis against vacant sanctioned posts and that apart, from the own letter of the State Government in its letter dated 11.04.2018 under Annexure-11, it reveals that the State Government has allowed the University for filling up 41 nos. of vacant posts of Junior Assistant in the University as per the OURP Rules, 1992 and thus, the objection raised by the learned counsel for the State that the petitioners continued in the post of Junior Assistant against a non-sanctioned post has no bearing. He further urged that when the posts were very much available with the University, no further permission is required to be obtained from the State Government for approval of the posts as the same is only required for creation of the post and so far as the role of the State Government is concerned, since the posts 14 involve financial aspect, the State Government is only required to pass an order of sanction. Thus, the impugned order under Annexure-12 is not sustainable in the eye of law. In support of his contention, learned counsel for the petitioner has placed reliance on the decisions of the Hon’ble Supreme Court as well as this Court in the State of Karnataka and others -Vrs.- M.L. Kesari and others reported in (2010) 9 Supreme Court Cases 247, Nihal Singh and others -Vrs.- State of Punjab and others reported in (2013) 14 Supreme Court Cases 65, Sachin Ambadas Dawale and others -Vrs.- State of Maharashtra and another (Bombay High Court decision was upheld by Supreme Court in SLP No.39014 of 2013), Sanatan Sahoo -Vrs.- State of Odisha and others reported in 2017(II) ILR-CUT- 1059 (Orissa High Court decision was upheld by Supreme Court in SLP No.11911 of 2018), Narendra Kumar Tiwari and others -Vrs.- The State of Jharkhand and others reported in (2018) 8 Supreme Court Cases 238, Sheo Narain Nagar -Vrs.- State of U.P. reported in A.I.R. 2018 Supreme Court 233, UCO Bank and others -Vrs.- Sk. Fayajuddin reported in 2020(I) ILR-CUT 68 and 15 Padmanava Pradhan and others -Vrs.- State of Odisha and others reported in 2020 (II) Orissa Law Reviews 462. 7. Per contra, Mr. Saswat Das, learned Additional Government Advocate has filed written note of argument and argued that the conditions of services of the employees of the University including the present petitioners are governed by the provisions of 1989 Act and the first statute framed thereunder. Learned counsel for the State further argued that section 22 of the 1989 Act deals with the provisions for creation of posts in the University and on a bare perusal of the aforesaid provision, it would be apparent that the post of officers, teachers and employees of the University shall be created and the scale of pay and allowances attached to such posts shall be determined by the Chancellor subject to specific allotment of funds for the purpose of payment of the concerned University and shall be in accordance with the yardstick formulated by the University with the prior approval of the State Government. Referring to Rule 10(a) of Odisha Government Rules of Business and Section 22 of 1989 Act, he argued that on a conjoint reading of both the provisions leave no room for doubt that prior approval of the State Government for creation of posts is mandatory and though the Department of Higher Education is the Nodal Department for 16 Higher Education but creation of posts in the University requires prior approval/sanction of the Finance Department of the State Government which was obviously required to be worked out through Department of Higher Education. Learned counsel for the State argued that so far as the petitioners are concerned, although they were appointed initially on daily wage basis/89 days basis and subsequently were re-designated as Junior Assistant, but the fact remains that, there is no provision provided under the 1989 Act or under the OURP Rules, 1992 for such re-designation. On the contrary, the rules prescribed that the posts are to be created with the sanction of competent authority (State) and as such, posts can only filled up through a duly constituted Selection Committee and by competitive selection process through open advertisement in compliance to the mandate of Articles 14 and 16 of the Constitution of India. He further submitted that in the case in hand, since the resolution of the Syndicate of the University bearing No.45 dated 16.05.2015, re-designating the petitioners as Junior Assistants without prior approval of the State Government has been revoked by the Syndicate in their meeting held on 21.12.2021, the petitioners are no more continuing as Junior Assistant and therefore, they have no right 17 to claim regularization of service. Learned counsel further argued that there is no doubt that creation of post and regularization in service is a prerogative of the employer keeping in view the number of factors like the nature of work, number of posts lying vacant, the financial condition of the employer, the additional financial burden likely to be caused, the suitability of the workmen for the job, the manner and reasons for which the initial appointments were made, however, when the statutory provisions have not been taken into consideration by the University while creating the posts and re-designating the petitioners as Junior Assistant, therefore, the claim of the petitioners for regularization of service merits no consideration and thus, the writ petitions are liable to be dismissed. In support of such submissions, he has relied upon the judgments of the Hon’ble Supreme Court in the case of Divisional Manager, Aravali Golf Club and another -Vrs.- Chander Hass reported in (2008) 1 Supreme Court Cases 683, Maharashtra State Road Transport Corporation and Anr. -Vrs.- Casteribe Rajya Parivahan Karamchari Sanghatana reported in (2009) 8 Supreme Court Cases 556 and The Managing Director, Ajmer Vidhyut Vitaran 18 Nigam Ltd., Ajmer and another -Vrs.- Chiggan Lal and others reported in 2022 SCC OnLine SC 1351. 8. Mr. Kousik Ananda Guru, Advocate appearing on behalf of University contended that the posts against which the petitioners were appointed were not sanctioned posts and the prior approval of the State Govt. has also not been obtained by the University for creation of such posts. The action of the University to engage the petitioners against the non-sanctioned posts was in contravention of section 22 of 1989 Act. He reiterated the stand taken by the University in the counter affidavit and argued that the petitioners are not entitled to get any relief. 9. Before adverting to the contentions raised by the learned counsel for the respective parties, let me now jot down the factual scenario as projected by the petitioners in their writ petitions supported by documents. It appears that notice no.593 dated 08.05.2002 was issued by Directorate of Distance Education, Sambalpur University inviting applications from interested candidates for the post of Office Assistants on temporary basis. The qualification prescribed for applying for the post of Office Assistants was that the candidate must be a graduate in any discipline and it was further stipulated that the 19 candidate having working knowledge in computer would be preferred. There were seventy four applicants and on 20.05.2002 proceeding of the Selection Committee was held wherein fifty seven candidates appeared and the names of the petitioners were recommended for appointment in order of merits which was approved by the Vice-Chancellor on 23.05.2002. On 29.05.2002 the petitioners were issued with appointment orders against the posts of the Office Assistant on a consolidated pay of Rs.2,000/-. On 04.08.2009 in partial modification to the office order dated 29.05.2002, the post of Office Assistant was redesignated as Computer Assistant with remuneration of Rs.5,000/-. On 24.12.2013 Registrar, Sambalpur University requested the State Govt. in the Dept. of Higher Education indicating therein about the recommendation of the Syndicate Committee in its meeting dated 21.11.2013 to regularize the service of the employees against regular vacant post of Junior Assistant from among the Computer Assistant. By virtue of an office order, the consolidated remuneration of the petitioners was enhanced from Rs.5,000/- to Rs.7,000/-. The Registrar, Sambalpur University requested the State Govt. in the Dept. of Higher Education for regularization of 43 nos. of candidates against the post of Junior Assistant including the petitioners. As on 01.07.2015, a total number of 40 20 vacancies of posts of Junior Assistant were shown. On 16.07.2015 an office order was issued pursuant to the decision of the Syndicate by virtue of which Office Assistant and Computer Assistant were redesignated as Junior Assistant. On 26.11.2015 the Registrar, Sambalpur University requested the Special Secretary to Hon’ble Chancellor to accord necessary permission for regularization of services of employees to enable the University to cope up with emerging situation and persistent demand of employees from different quarters by submitting list of such employees to place it before appropriate authority. When the petitioners approached this Court by filing writ petitions, a direction was issued by this Court to the State Govt. in Higher Education Department as per order dated 07.01.2016 to consider the cases of the petitioners for regularization by sanctioning the posts and taking into account that the petitioners are continuing in the service since 2002. On 18.08.2016 considering the increase in workload of the University due to increase in number of colleges and opening of new departments/hostels/courses, the Registrar, Sambalpur University requested the State Govt. in Higher Education Dept. for regularization of services of contractual/daily wagers/NMR employees of Sambalpur University. The Registrar, Sambalpur University on 22.10.2016 21 communicated the Higher Education Department about the redesignation of the incumbents like the petitioners as Junior Assistants vide resolution dated 16.05.2015, who have rendered more than ten years of service and possess educational qualification as per rule. The State Govt. in the Department of Higher Education on 11.04.2018 intimated the Registrar, Sambalpur University about filling up of 41 nos. of vacant post of Junior Assistant as per OURP Rules, 1992. The Registrar, Sambalpur University on 25.07.2018/08.09.2018 requested the State Govt. in the Department of Higher Education regarding 32 nos. of candidates working as Junior Assistants on temporary basis against sanctioned posts having requisite qualification as per OURP Rules, 1992 to accord approval to University for regularization against the released 41 posts. The petitioners name find place in the list. The opp. party no.1 rejected the cases of the petitioners as per order dated 31.05.2019 mainly on the ground that they have not completed ten years of service as on 2006 and the posts were not sanctioned. 10. At this stage, it would be profitable to discuss the principles enunciated in the citations placed by the learned counsel for the petitioners. 22 In the case of M.L. Kesari and others (supra), the Hon’ble Supreme Court in paragraphs 7 and 8 held as follows:- “7. It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi (supra), 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 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. 8. Umadevi (supra) casts a duty upon the Government or instrumentality concerned, to 23 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 (supra) 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).” This decision supports the contentions raised by the learned counsel for the petitioners for regularisation of services of the petitioners inasmuch as the petitioners not only possess the prescribed qualification for Junior Assistant and they are working against sanctioned posts at least from 11.04.2018 when the State Govt. in the Department of Higher Education allowed the Registrar, Sambalpur University for filling up of 41 nos. of vacant post of Junior Assistant in the University. The petitioners have not only been employed by the University but allowed to continue in service voluntarily and continuously for about twenty one years by now after they were issued with appointment orders on 29.05.2002 and nothing has been brought on record by the opposite parties that such continuance was with the benefit or protection of the interim order of any Court or Tribunal. 24 In the case of Sachin Ambadas Dawale (supra), the Bombay High Court dealing with various judgments of the Hon’ble Supreme Court observed as follows:- “10….However, it is important to consider that the petitioners are appointed after following the procedure of issuance of advertisement and conducting interviews by a duly constituted Selection Committee….In view of the above facts, it cannot be said that the appointments of the petitioners are back door or illegal. It cannot be said that the petitioners are appointed arbitrarily or haphazardly or clandestinely without issuing advertisement and without giving an opportunity to all the eligible candidates to participate in the selection process. From the record it clearly appears to be an undisputed position that in response to the advertisement several candidates had participated in the selection process and it is the petitioners who were found eligible and suitable for the posts and as such were selected and appointed. It is not the case of the respondents that any illegalities took place during the selection process. xx xx xx xx xx xx xx xx xx xx xx xx xx 13….The respondent-State has extracted the work from the petitioners for years together. Now, by efflux of time and on account of the respondent- State not holding the selection 25 process for years together, many of the petitioners have become over-aged and would not be in a position to participate in the selection process through MPSC. It could be clearly seen that the issue before the Apex Court in case of Secretary, State of Karnataka & Ors. V/s. Umadevi & Ors. (supra) was pertaining to the appointments which were made clandestinely and without advertisement and the persons were appointed without following due selection process. The facts of the present case are totally different. In the present case, the petitioners have been appointed after the posts were advertised, they were selected in a selection process by Committee of Experts duly constituted as per the said Government Resolution. In that view of the matter, the law laid down by the Apex Court in the case of Secretary, State of Karnataka & Ors. V/s. Umadevi & Ors. (supra) would not be applicable to the facts of the present case. xx xx xx xx xx xx xx xx xx xx xx xx xx 19. One more fact that needs to be taken into consideration is that even according to the respondent-State there are more than 5000 teaching posts which are still vacant and the advertisement issued by the MPSC is only for 400 posts. It can, thus, be clearly seen that even after the candidates who would be selected through the selection process conducted by the 26 MPSC are available, more than 4500 posts will be vacant. It is, therefore, clear that the petitioners’ absorption would in no way affect the candidates who would now be selected through the MPSC. It is, thus, clear that the petitioners’ continuation in service would not adversely affect the fundamental right guaranteed under Article 16 to the citizens. We are of the considered view that the respondent- State having extracted the work from the petitioners for years together, the petitioners cannot be deprived of the right of regular employment particularly when their entry can neither be termed as ‘illegal’ nor ‘back door’.” This decision supports the stand taken by the petitioners for regularisation of their service inasmuch as following the procedure of issuance of advertisement and conducting interviews by a duly constituted Selection Committee in which out of 74 applicants, 57 candidates participated, the names of the petitioners were recommended for appointment in order of merits as they were found eligible and suitable for the posts which was approved by the Vice-Chancellor. Therefore, the appointment of the petitioners to the posts of Office Assistant cannot be said to have been made arbitrarily or haphazardly or clandestinely without issuing advertisement and without giving an opportunity to all the eligible candidates to participate in the 27 selection process. The University has extracted the work from the petitioners for years together and now, by efflux of time, the petitioners have become over-aged and are not in a position to participate in the selection process. In the case of Nihal Singh (supra), the Hon’ble Supreme Court held as follows:- “22. It was further declared in Umadevi 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 28 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. xx xx xx xx xx xx xx xx xx xx xx xx 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 29 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. 37. 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. 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.” 30 This decision supports the contentions raised by the learned counsel for the petitioners for regularisation of services of the petitioners inasmuch as since 2002, there was need for the creation of posts, but the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from the petitioners for decades together would reflect arbitrary action (inaction) on the part of the State and if at this age, they are thrown out of service, then it would be sheer exploitation of the petitioners by the opposite parties. In the case of Sanatan Sahoo (supra), this Court in paragraph 9 has held as follows:- “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 engagement as contended by the State Government was followed later on. Thus the engagement of the 31 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 10 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 all such facts while passing the impugned order and it has not appreciated the entire facts in right perspective in the light of the aforesaid decisions of the Apex Court. Thus, this Court sets 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 petitioner by applying the aforementioned ratio and to extend consequential service benefits to the petitioner accordingly, within a period of eight weeks. The writ petition is disposed of accordingly.” This decision supports the contentions raised by the learned counsel for the petitioners for regularisation of services of the petitioners inasmuch as the petitioners having the requisite qualification were engaged as Office Assistants since May, 2002 after facing due selection process and they have been continuing till date without the intervention of the Courts though 32 the post was redesignated as Computer Assistant and then as Junior Assistant. In the case of Narendra Kumar Tiwari (supra), the Hon’ble Supreme Court in paragraphs 7 and 8 held as follows:- “7. The purpose and intent of the decision in Umadevi 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 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 regularization and by placing the sword of Damocles over their head. This is precisely what Umadevi and Kesari sought to avoid. 8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi, is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever 33 be regularised since that State came into existence only on 15th November, 2000 and the cut-off date was fixed as 10th April, 2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.” This decision supports the contentions raised by the learned counsel for the petitioners for regularisation of services of the petitioners inasmuch as the appointment of the petitioners cannot be said to be illegal one. At this stage, after so many years of continuous service, if they are thrown out of their services and the benefits of regularization is not extended to them, then it would be a sheer case of exploitation. In the case of Sheo Narain Nagar (supra), the Hon’ble Supreme Court in paragraph 8 held as follows:- “8. When we consider the prevailing scenario, it is painful to note that the decision in Umadevi (supra) has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad hoc basis or daily-wage basis in different State 34 departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per Rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily-wage basis etc. in exploitative forms. This situation was not envisaged by Umadevi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Umadevi (supra) has been ignored and conveniently overlooked by various State Governments/authorities. We regretfully make the observation that Umadevi (supra) has not been implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, 16 read with Article 34(1)(d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India : A.I.R. 1983 S.C. 130 from cradle to grave. In heydays of life, they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age, they are going to be destituted, there 35 being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of downtrodden class. They do have equal rights and to make them equals, they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Umadevi (supra). Thus, the time has come to stop the situation where Umadevi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Umadevi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry sum on contract/ad hoc basis or otherwise. This kind of action is not permissible, when we consider the pith and substance of true spirit in Umadevi (supra).” This decision supports the contentions raised by the learned counsel for the petitioners for regularisation of services of the petitioners inasmuch as their appointment cannot be said to be back door entry but on the recommendation of Selection Committee after inviting applications on open notice in which 36 qualification was prescribed to be a graduate in any discipline and working knowledge on computer and the recommendation was also approved by Vice-Chancellor. In heydays of their lives, they served the institution for two decades and there is nothing against their performance in duty. At this stage, if they are denied of regularisation, it would lead to arbitrariness and the action of the employer State would be unconstitutional. Reliance was placed in the case of UCO Bank and others (supra), this Court has held as follows:- “In the case of Umadevi (supra), the Hon'ble Supreme Court passed the order that the claim acquired by a person in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude so as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. In our humble view, the learned Single Judge was justified in holding that the ratio laid down in the case of Umadevi (supra) is very much applicable to the present case as there was a clear cut vacancy at Dhera Branch for which an advertisement was issued on 17.02.1995 fixing criteria mentioned therein, pursuant to which the respondent submitted his application and having been selected, he got appointed as driver 37 and discharged his duty since July 1996 and therefore, he cannot be denied regularization of his service.” Further reliance was placed by the learned counsel for the petitioner on the decision of this Court in the case of Padmanava Pradhan and others (supra), wherein it is 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. 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 38 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 Assistant. Accordingly, the advertisement was published and the petitioners appeared the selection process and they were appointed against the post of Executive Assistant in lieu of Junior Assistant. Subsequently in the year 2013, by virtue of the 39 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. 11. At this stage, the contentions raised by Mr. Das are necessary to be considered. Without filing any counter affidavit on behalf of the State of Odisha, Mr. Das has referred to section 22 of the 1989 Act, which is quoted as follows:- “Creation of Posts:- (1) All posts of officers (which shall not include the Vice-Chancellor), teachers and other employees of a University shall be created and the scales of pay and allowances attached to such posts shall be determined by the Chancellor subject to specific allotment of funds for this purpose in the budget of the concerned University and shall be in accordance with the yardstick formulated by 40 such University with the approval of the State Government. (2) Till such yardstick is finalized, the yardstick for the reaching posts prescribed by the University Grants Commission and that for the other corresponding posts under the State government shall be followed. (3) Whenever posts are created beyond the yardstick approved by the State Government under Sub-Section (1), prior concurrence of the State Government shall be obtained.” According to Mr. Das, in exercise of power conferred by Clause (3) of Article 166 of the Constitution of India, the State Government has framed a rule namely Orissa Government Rules of Business and Rule 10 of the said Rules stipulates as follows:- “10.(1) No department shall without previous consultation with the Finance Department authorise any orders (other than orders pursuant to any general delegations made by the Finance Department) which either immediately or by their repercussions will affect the finances of the State or which in particular, either– (a) relate to the number or grading or cadres of posts or the emoluments or other conditions of service or post; or 41 (b) involve any grant of land or assignment of revenue or concession, grant lease or licence of mineral or forest rights or a right to water, power or any easement or privilege in respect of such concession; or (c) in any way involve any relinquishment of revenue.” There is no dispute there is always financial implications for the creation of posts and therefore, financial sanction is necessary for it. The power to create a post rests with the Government. Whether a particular post is necessary is a matter which depends upon the exigencies of the situation and administrative necessity. Creation of post is a matter of government policy and every sovereign government has this power in the interest and necessity of internal administration. Reliance was placed by Mr. Das in the case of Aravali Golf Club (supra), in which the Hon’ble Supreme Court held that the Court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the Court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organisation. It involves economic factors. Similar view was held in the case of Maharashtra State Road Transport Corporation (supra), wherein the Hon’ble Supreme Court held 42 that creation of posts is not within the domain of judicial functions which obviously pertains to the executive and the status of permanency cannot be granted by the Court where no such posts exist and that executive functions and powers with regard to the creation of posts cannot be arrogated by the Courts, however, keeping posts temporary for long and denying the claims of the incumbents on the score that their posts are temporary makes no sense and strikes as arbitrary, especially when both temporary and permanent appointees are functionally identified. If, in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no rights. Not so, if the post is, for certain departmental or like purposes, declared temporary, but it is within the ken of both the government and the appointee that the temporary posts are virtually long-lives. It is irrational to reject the claim of the 'temporary' appointee on nominal score of the terminology of the post. Of course, in view of the law laid down by the Hon’ble Supreme Court in the case of Ajmer Vidhyut Vitaran Nigam Ltd. (supra), the date from which regularization is to be granted is a matter to be decided by the employer keeping in view a number of factors like the nature 43 of the work, number of posts lying vacant, the financial condition of the employer, the additional financial burden caused, the suitability of the workmen for the job, the manner and reason for which the initial appointments were made etc. 12. Adverting to the contentions raised by the learned counsel for the respective parties, it is not in dispute that when there was necessity of manpower and engagement of Office Assistants for smooth functioning of Department of Distance Education in the University, open notice was issued on 08.05.2002 inviting applications by the Director for the post of Office Assistants in which qualification was prescribed to be a graduate in any discipline and working knowledge on computer. There were seventy four applicants, out of which fifty seven candidates appeared before the Selection Committee and the petitioners were found eligible and suitable for the posts and their names were recommended by the Selection Committee on 20.05.2002 and it was approved by the Vice-Chancellor of the University on 22.05.2002 and accordingly, on 29.05.2002 the petitioners were issued with appointment orders against the posts of the Office Assistant by the Director, Distance Education on a consolidated pay of Rs.2,000/-. There is no allegation of mala fide, illegality or patent material irregularity in the decision 44 taken by the Selection Committee in recommending their names. The appointment of the petitioners for the post of Office Assistant seems to have been made following a fair and transparent method of selection not by adopting any back door method. The petitioners not only possess the prescribed qualification for the post of Junior Assistant but they are also discharging their duties since last two decades. The University has been utilizing their services and there is nothing against their performance in duty. The post held by the petitioners as Office Assistant was subsequently redesignated as Computer Assistant and then there was recommendation of the Syndicate Committee in its meeting dated 21.11.2013 to regularize the service of the employees against regular vacant post of Junior Assistant from among the Computer Assistant. Then pursuant to the decision of the Syndicate, the Office Assistant and Computer Assistant were redesignated as Junior Assistant and accordingly, office order was issued on 16.07.2015. The continuance of the petitioners in service for such a long period was not with the benefit or protection of the interim order of any Court or Tribunal. When the University addressed a letter on 24.12.2013 to the Government in the Department of Higher Education to accord approval to the appointment of the petitioners taking into 45 consideration the length of service rendered by them as well as their long experience in the clerical work in the University and again on 01.08.2014 the Government was requested by the University to regularize the services of the petitioners and again the University requested the Special Secretary to the Hon’ble Chancellor by letter dated 26.11.2015 to accord necessary permission for regularization of the services of the petitioners and even after the disposal of the first set of writ petitions filed by the petitioners, the University requested the State in the Higher Education Department vide letter dated 25.07.2018 for according approval for regularization of the petitioners, the sudden change of stand by the University in opposing the regularization of the services of the petitioners in the counter affidavit is strange and not expected from an ideal model employer and it amounts to exploit the services of the educated youth like the petitioners and to take advantage of their helplessness and misery. When the Syndicate took a decision vide resolution dated 16.05.2015 and the posts held by the petitioners as Office Assistants and Computer Assistants under different units were re-designated as Junior Assistant on temporary basis by office order dated 16.07.2015 and the petitioners have approached this Court by filing writ petitions 46 since 09.07.2019 and relying on such resolution and office order, the decision of the Syndicate in its meeting dated 21.12.2021 in revoking the office order dated 16.07.2015 is unfair and arbitrary and seems to be under the pressure of the opposite party no.1. The State Govt. in the Department of Higher Education in the meantime has allowed the Registrar, Sambalpur University for filling up of 41 nos. of vacant post of Junior Assistant since 11.04.2018. At this stage, the petitioners have become over-aged and they are not in a position to participate in the selection process even though they have got requisite educational qualification for such post and moreover they have got two decade of experience behind them. There is no likelihood of any additional financial burden to the State exchequer by absorbing the petitioners in the regular post. In my humble view, the purpose and intent of the decision rendered in the case of Umadevi (supra) by the Hon’ble Supreme Court has been misinterpreted and subsequent decisions of the Hon’ble Supreme Court on this issue have not been taken into account while considering the case of the petitioners for regularization and passing the impugned order under Annexure-12 in rejecting their claim for regularisation on the ground that they have not worked for more than ten years 47 by 10.04.2006 i.e. the date of decision in the case of Umadevi (supra) and the post has not been sanctioned. The order is unreasonable, arbitrary and thus the conclusion can be corrected by a writ of certiorari. The University has employed the petitioners and continued them in service voluntarily and continuously for more than two decades by now and the petitioners possess the prescribed qualifications for the post of Junior Assistant and they have been selected undergoing selection process on the recommendation of Selection Committee which was also approved by Vice-Chancellor of the University and they are now working against sanctioned posts and have acquired vast experience. In such a scenario, non-regularisation of their services against the available sanctioned posts is unfair, unjustified and arbitrary. The employees are not milking cows in the diary farm of the University from which they are to be driven out on stopping producing milk. 13. In the final analysis, in the light of the foregoing discussions, the impugned order dated 31.05.2019 passed by the Government of Odisha in the Department of Higher Education, Odisha under Annexure-12 in rejecting the claim of the petitioners for regularization in the posts of Junior Assistant in Sambalpur University cannot be sustained in the eye of law 48 and is hereby set aside. The opposite parties shall pass appropriate order for regularisation of services of the petitioners against the post of Junior Assistants as expeditiously as possible preferably within a period of three months from the date of receipt of copy of this judgment. Resultantly, the writ petitions are allowed. In the circumstances, there will no order as to costs. S.K. Sahoo, J. ........................ Orissa High Court, Cuttack The 18th April 2023/PKSahoo/Pravakar