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IN THE HIGH COURT OF ORISSA, CUTTACK W.P. (C) No. 12484 of 2019 Applications under Articles 226 and 227 of the Constitution of India. ----------------------------- Surendra Barik …… Petitioner -versus- State of Odisha & others …… Opp.Parties W.P. (C) No. 12485 of 2019 Sudhakar Barik …… Petitioner -versus- State of Odisha & others …… Opp.Parties W.P. (C) No. 12486 of 2019 Sadananda Pradhan …… Petitioner -versus- State of Odisha & others …… Opp.Parties W.P. (C) No. 12487 of 2019 Aurobinda Behera …… Petitioner -versus- State of Odisha & others …… Opp.Parties W.P. (C) No. 12488 of 2019 Premraj Panda …… Petitioner -versus- State of Odisha & others …… Opp.Parties 2 For petitioners: For Opp. parties: Mr. Budhadev Routray (Senior Advocate) Mr. Saswat Das Addl. Govt. Advocate Mr. Kousik Ananda Guru Advocate (for opp. parties nos.2 to 4) ----------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S. K. SAHOO ----------------------------------------------------------------------------------------------------------------------- Date of Judgment: 01.06.2023 ----------------------------------------------------------------------------------------------------------------------- S. K. SAHOO, J. The petitioners have filed these writ petitions challenging the order dated 31.05.2019 under Annexure-12 passed by the Commissioner -cum- Secretary, Higher Education Department, Government of Odisha in rejecting the claim for regularization of their services in the posts of Junior Assistant in Sambalpur University (hereafter, in short, ‘University’). Since the issues involved in all the writ petitions are identical, with the consent of parties, all the matters were heard analogously and disposed of by this common judgment. 2. The facts of the case are stated in short as under:- 2.1. As per the Private Examination Rules, 2001 (hereafter ‘2001 Rules’) of the University, the Programme Coordinator of the Private Examination Cell (hereafter ‘PEC’) who 3 is appointed by the Vice-Chancellor from among the Professors/Readers of the University as per Rule 4.1.1 and is the Head of PEC subject to the control of the Vice-Chancellor and has control over all regular and part-time staff engaged for non- confidential work and has got power as per Rule 5.2 to appoint additional staff (part-time/daily wage) as and when required for private examination work with the approval of the Vice- Chancellor, considering the requirement and necessity in the private examination work of the University, by office order dated 11.01.2002 under Annexure-2 series, with the due approval of the Vice-Chancellor, engaged the petitioner Surendra Barik who is having qualification of M.A., LLPM, PGDCA and belonged to Scheduled Caste category and the petitioner Premraj Panda who is having qualification of B.A. with PGDCA and belonged to General category, in the PEC of the University both on daily wage basis of Rs.58.50 paisa for a period of 179 days i.e. w.e.f. 11.01.2002 to 30.06.2002 and in the said engagement order, it was mentioned that the authority of the University reserved the right to discontinue their engagement as and when necessary and that they would not claim such engagement for continuance and/or regular assignment in future. The petitioners Surendra Barik and Premraj Panda joined as Office Assistants on 4 12.01.2002 in the PEC which was a non-sanctioned post and their daily wage was enhanced to Rs.70/- per day w.e.f. 01.07.2002 each and subsequently enhanced to Rs.2,500/- per month, Rs.3,000/- per month, Rs.4,000/- per month, Rs.5,000/- per month, Rs.7,100/- per month and Rs.8,880/- per month each w.e.f. 01.10.2003, 03.07.2007, 01.06.2009, 01.02.2013, 01.03.2014 and 01.09.2017 respectively and for payment of wages, sanction orders were issued from time to time. The petitioner Sudhakar Barik and the petitioner Sadananda Pradhan who are having qualification of B.A. and belonged to O.B.C. category were engaged in the PEC, each on a daily wage basis of Rs.42.50 paisa for a period of 59 days i.e. from 01.11.1999 to 31.12.1999 and sanction order was issued on 11.02.2000 under Annexure-2 series for payment of their wages for such period with the approval of the Vice-Chancellor in the concerned files and they were later on allowed to work as Office Assistants in the PEC which was a non-sanctioned post and their daily wage was enhanced to Rs.58.50 per day w.e.f. 01.09.2001 each and subsequently enhanced to Rs.70/- per day each, Rs.2,500/- per month, Rs.3,000/- per month, Rs.4,000/- per month, Rs.5,000/- per month, Rs.7,000/- per month, Rs.7,100/- per month and Rs.8,880/- per month each w.e.f. 5 01.07.2002, 01.10.2003, 03.07.2007, 01.06.2009, 01.02.2013, 06.07.2013, 01.03.2014 and 01.09.2017 respectively and for payment of wages, sanction orders were issued from time to time. The petitioner Aurobindo Behera who was having qualification of B.A. and belonged to Scheduled Caste category was engaged in the PEC on a daily wage basis of Rs.42.50 paisa for a period of twenty one days i.e. from 10.08.2000 to 31.08.2000 and sanction order was issued for payment of his wages for such period with the approval of the Vice-Chancellor in the concerned files and he was later on allowed to work as Office Assistant in the PEC which was a non-sanctioned post and his daily wage was enhanced to Rs.58.50 per day w.e.f. 01.09.2001 and subsequently enhanced to Rs.70/- per day, Rs.2,500/- per month, Rs.3,000/- per month, Rs.4,000/- per month, Rs.5,000/- per month, Rs.7,000/- per month, Rs.7,100/- per month and Rs.8,880/- per month w.e.f. 01.07.2002, 01.10.2003, 03.07.2007, 01.06.2009, 01.02.2013, 06.07.2013, 01.03.2014 and 01.09.2017 respectively and for payment of wages, sanction orders were issued from time to time. 2.2. The Registrar of the University by letter dated 01.08.2014 under Annexure-6 requested the Government in the 6 Department of Higher Education to regularize the services of forty three nos. of candidates including the petitioners who were engaged on contractual/daily wage/temporary basis. It is needless to say that by that time, the petitioners were having more than twelve years of experience in the post of Office Assistant. While the petitioners were continuing as such, in pursuance of the decision of the Syndicate of the University vide resolution no.45 dated 16.07.2015, the posts held by the petitioners as Office Assistant 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. The counter affidavit filed on behalf of the opposite parties nos.2 to 4 indicates that the service of the petitioners Surendra Barik, Sudhakar Barik, Sadananda Pradhan, Aurobinda Behera and Premraj Panda was extended 46, 68, 68, 63 and 46 times respectively with break up to 16.07.2015. 2.3. The University by letter dated 26.11.2015 under Annexure-9 requested the Special Secretary to the Hon’ble Chancellor to accord necessary permission for regularization of 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’ 7 association. In the said letter, it is stated that considering the engagement of the petitioners, length of service and satisfactory performance, the Syndicate vide resolution no.18 dated 13.02.2014 has allowed payment of pay plus grade pay in favour of the employees from the limited funds generated out of the own sources. 2.4. Since no action was taken by the Government on the recommendation made by the University, the petitioners Surendra Barik, Sudhakar Barik, Sadananda Pradhan, Aurobinda Behera and Premraj Panda moved this Court in writ petitions bearing W.P.(C) No.23327 of 2015, W.P.(C) No.23596 of 2015, W.P.(C) No.23597 of 2015, W.P.(C) No.23598 of 2015 and W.P.(C) No.23599 of 2015 respectively ventilating their grievances for regularization of their service and this Court by order dated 07.01.2016 disposed of the 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, 1999, 1999, 2000 and 2002 respectively in accordance with law as expeditiously as possible preferably within a period of four months from the date of communication of the order. 8 2.5. The Registrar of the University vide letter dated 18.08.2016 addressed a letter to the State Government in Higher Education Department informing about the necessity of manpower in managing day to day affair of the University considering the increase in workload of the University due to increase in the number of colleges and opening of new departments/courses and to take steps for regularisation of the services of the petitioners. A list of forty group C employees engaged in the University up to 12.11.2013 including the names of the petitioners in serial no.36, 34, 33, 35 and 37 respectively was submitted with the letter dated 18.08.2016. 2.6. The Registrar of the University vide letter dated 22.10.2016 also intimated the State Government in Higher Education Department after receipt of copy of the orders passed

Legal Reasoning

by this Court in the writ petitions filed by the petitioners that the Syndicate of the University vide resolution no.45 dated 16.05.2015 by considering the length of service of the petitioners to be more than ten years and their educational qualification as per the established rule, redesignated the petitioners as ‘Junior Assistant’ on temporary basis against vacant sanctioned strength of Junior Assistant of the University Establishment. 9 2.7. 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 University Recruitment & Promotion of Non- Teaching Employees Rules, 1992 (hereafter in short, ‘OURP Rules, 1992’). 2.8. The University vide letter dated 25.07.2018 requested the State Government in the Higher Education Department for according approval for regularization of thirty two nos. of Junior Assistants by submitting a list including the names of petitioners Surendra Barik, Sudhakar Barik, Sadananda Pradhan, Aurobinda Behera and Premraj Panda in serial nos.28, 26, 25, 27 and 29 respectively who were working on temporary basis with remuneration equal to pay plus grade pay of the corresponding cadre, who were having requisite educational qualification as per OURP Rules, 1992. 2.9. The Registrar of the University issued another letter dated 08.09.2018 in reply to the letter no.24081/HE dated 24.08.2018 of the State Government in the Higher Education Department reiterating for filling up thirty two posts of Junior Assistants and giving detailed information in respect of the petitioners Surendra Barik, Sudhakar Barik, Sadananda Pradhan, 10 Aurobinda Behera and Premraj Panda whose names find place in serial nos. 28, 26, 25, 27 and 29 respectively and other Junior Assistants who were working on temporary basis in the University. It was indicated that the petitioners were appointed with the approval of the Vice-Chancellor and the office orders were also enclosed. However, it was indicated that the vacancies have not been notified to the local Employment Exchange, advertisement was not made for recruitment and no competitive examination was held, but the petitioners were redesignated as Junior Assistant vide Office Order No.6047/Estt-I, dated 16.07.2015. 2.9. By the impugned order dated 31.05.2019 under Annexure-12, the State Government rejected the cases of the petitioners on the ground that the petitioners had not worked for more than ten years as on 10.04.2006 i.e. the date of passing of the order of the Hon’ble Supreme Court in the case of State of Karnataka -Vrs.- Umadevi reported in (2006) 4 Supreme Court Cases 1 and the appointment was not made against any sanctioned post. Even after the impugned order was passed, communications were made to the petitioners by the Registrar of the University on dated 24.09.2021 as per the order of the Vice- Chancellor wherein submission of regularisation proposal of 11 thirty two Junior Assistants working on temporary basis including the names of the petitioners to the Government in Higher Education Department were indicated. 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 had 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 Assistants’ 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 Umadevi (supra), the appointment of the petitioners is illegal as because their appointments have not 12 been made against any sanctioned post and hence the services of the petitioners cannot be regularized. It is further stated that even if it is held that the appointments of the petitioners are not illegal but irregular, then also the services of the petitioners cannot be regularized as they had 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 (supra). It is further stated 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 served as a right of claim for permanent post and the services would be terminated at any time without assigning any reason thereof. It is further stated that the Syndicate in its meeting held on 16.05.2015 resolved that the employees working as Office Assistants and Computer Assistants might be brought to the establishment fold of the University as Junior Assistant (T) 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; 13 (ii) They should have possessed minimum qualification of Junior Assistant 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 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 14 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 along with others in the University was necessary and unless or until the Government had given concurrence, the University would not be able to regularize any person. 5. Rejoinder affidavits have been filed by the petitioners in their respective writ petitions wherein it is stated that though the posts were admissible and justified and the University had moved the State Government time and again in a series of letters for sanction of such posts against which the petitioners were working on account of increase of workload of the University day by day due to increase in the number of colleges and opening of new departments/hostels/courses to cope up with 15 the present needs and the fact that certain numbers of posts of Junior Assistant have been sanctioned by the State Government in the meantime, but all the same the opposite party no.1 while passing the impugned order has not taken into consideration all such facts and whimsically rejected the claim of the petitioners solely on the ground that the posts were not sanctioned in which the petitioners were working and therefore, the petitioners cannot take the advantage of the judgment of Umadevi (supra). It is further stated that the petitioners have been engaged by the University and they are having requisite qualification and experience and they are continuing against the posts and their services have been utilized against Group C post in which they have rendered more than twenty years of service to the University. It is stated that there are catena of decisions in which it has been held that if a ministerial staff in Group C post has completed six years of service, his case should be considered for regularisation against such post. 6. Mr. Budhadev Routray, learned Senior Advocate appearing for the petitioners contended that the engagement of the petitioners was made in accordance with 2001 Rules by a competent authority like Programme Coordinator which was also approved by the Vice-Chancellor of the University. He further 16 contended that when to meet emergent situation and work load, the engagement of the petitioners was made on daily wage basis in the PEC and they have continued for a period of more than two decades, it would be unfair and unreasonable not to regularize them particularly when sanctioned posts are now available and the petitioners have requisite qualification to hold such posts. It is argued that Registrar of the University under Annexure-6 intimated the State Government in the Department of Higher Education 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 also 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 Annexure-12 has been passed rejecting the cases of the petitioners for regularization. 17 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 pronouncement of 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 argued 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 though the initial engagement of the petitioners was on temporary basis and not against any sanctioned post, but considering the fact that there was necessity of manpower in the University and the University has been utilizing the services of the petitioners for 18 two decades and the petitioners have got requisite qualification, the failure of the State Government in taking an early decision to create posts in spite of repeated communication from the side of University and then rejecting the claim of regularization of services of the petitioners even when posts were sanctioned is arbitrary and amounts to sheer exploitation. Mr. Routray, learned counsel further contended that absorbing the petitioners in the regular posts would not cause any additional financial burden to the State exchequer. Learned counsel emphatically contended that the Registrar of the University has furnished a list of employees, who have been allowed payment of pay plus grade pay as per the resolution No.18 dated 13.02.2014 of the Syndicate for regularization of the services of the petitioners along with others 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 and thus, the impugned order under Annexure-12 should be quashed and necessary direction be issued to the opposite parties for regularization of the services of the petitioners in the posts of Junior Assistant in the University. 19 In support of his contention, learned counsel for the petitioners has placed reliance on the decisions of the Hon’ble Supreme Court as well as this Court in the cases of State of Karnataka and others -Vrs.- M.L. Kesari reported in (2010) 9 Supreme Court Cases 247, Nihal Singh -Vrs.- State of Punjab reported in (2013) 14 Supreme Court Cases 65, Sanatan Sahoo -Vrs.- State of Odisha reported in 2017 (II) ILR-CUT-1059 (Orissa High Court 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 S.C. 233, Basanta Kumar Barik -Vrs.- State of Odisha and others reported in 2021 (III) ILR-CUT 624. 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 20 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 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 is concerned, although they were engaged initially on daily wage basis for some period and allowed to work as Office Assistants which was extended from time to time and subsequently was re-designated as Junior Assistant, but the fact remains that, there is no provision provided under the 1989 Act 21 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 got no right 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 followed by the University while 22 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 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 along with others was 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 23 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 before me which are as follows:- (i) Considering the requirement and necessity in the private examination work of the University, the Programme Coordinator in exercising his power under Rule 5.2 of 2001 Rules of the University, engaged the petitioners in the PEC of the University on daily wage basis for different periods from the date of engagement in the Cell with the due approval of the Vice- Chancellor. (ii) The petitioners who were having requisite educational qualification joined as Office Assistants in the PEC. (iii) The petitioners’ daily wages were enhanced by the University from time to time. Considering the engagement of the petitioners, length of service and satisfactory performance, the Syndicate vide resolution no.18 dated 13.02.2014 allowed payment of pay plus grade pay in favour of the employees including the petitioners from the limited funds generated out of the own sources. 24 (iv) The Registrar of the University by letter dated 01.08.2014 requested the State Govt. in the Dept. of Higher Education for regularization of 43 nos. of candidates against the posts of Junior Assistant including the petitioners. (v) While the petitioners was continuing as such, as on 01.07.2015, a total number of 40 vacancies of posts of Junior Assistant were shown and in pursuance of the decision of the Syndicate of the University vide resolution no.45 dated 16.07.2015, the posts held by the petitioners and some others 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. (vi) 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. (vii) The petitioners approached this Court by filing writ petitions ventilating their grievances for regularization of their services in which direction was issued by this Court to the State Govt. in 25 Higher Education Department as per order dated 07.01.2016 to consider the recommendation made by the University and to pass appropriate order by sanctioning the posts and to regularize the services of the petitioners taking into consideration that he was continuing in service since long. (viii) 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 of the University requested the State Govt. in Higher Education Dept. for regularization of services of contractual/daily wagers/NMR employees of the University. (ix) The Registrar of the University on 22.10.2016 communicated the Higher Education Department about the re-designation of the incumbents like the petitioners and others as Junior Assistants vide resolution dated 16.05.2015, who have rendered more than ten years of service and possess educational qualification as per rules. (x) The State Govt. in the Department of Higher Education on 11.04.2018 intimated the Registrar of the University about filling up of 41 nos. of vacant posts of Junior Assistant as per OURP Rules, 1992. 26 (xi) The Registrar of the University on 25.07.2018/08.09.2018 requested the State Govt. in the Department of Higher Education by submitting a list of 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 their regularization against the released 41 posts. The names of the petitioners found place in such lists. (xii) The opp. party no.1 rejected the case of the petitioners as per order dated 31.05.2019 mainly on the ground that they had 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. 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 27 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 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).” 28 This decision supports the contentions raised by the learned counsel for the petitioners for regularisation of service of the petitioners to a great extent inasmuch as the petitioners not only possess the prescribed qualification for the post of Junior Assistant but also they are also working against the sanctioned posts at least from 11.04.2018 when the State Govt. in the Department of Higher Education allowed the Registrar of the University for filling up of 41 nos. of vacant posts of Junior Assistant in the University. The petitioners have not only been employed by the University but also allowed to continue in service voluntarily and continuously for more than twenty years by now after they were engaged 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. Of course, the petitioners had not worked for more than ten years as on 10.04.2006 on which date the judgment in Umadevi (supra) was pronounced, however, it cannot be lost sight of the fact that 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 they are not in a position to participate in any selection process. 29 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 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. 30 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 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 31 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.” This decision supports the contentions raised by the learned counsel for the petitioners for regularisation of services of the petitioners inasmuch as since last two decades, there was need in the University for the creation of posts, but in spite of 32 repeated communication from Registrar of the University in that respect, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from the petitioners and similarly situated persons like the petitioners for decades together would reflect arbitrary action (inaction) on the part of the State and if at this age, the petitioners 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 petitioners 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 petitioners at best can be 33 termed as irregular engagement and not illegal engagement. That apart, it is also admitted that sanctioned posts are available since 2009 and the petitioners 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 petitioners by applying the aforementioned ratio and to extend consequential service benefits to the petitioners accordingly, within a period of eight weeks. The

Decision

writ petition is disposed of accordingly.” This decision supports the contentions raised by the learned counsel for the petitioners for regularization of the services of the petitioners inasmuch as the petitioners who were having requisite qualification were engaged as Office Assistants at the initial stage by the Programme Coordinator on daily wage basis in exercising his power under Rule 5.2 of 2001 Rules of the University with the approval of the Vice-Chancellor and they 34 have been continuing till date without the intervention of any Court order and that the Syndicate vide resolution no.18 dated 13.02.2014 has allowed them to receive pay plus grade pay and the posts have been re-designated as Junior Assistants. 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 35 consideration then no irregularly appointed employee of the State of Jharkhand could ever 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 engagement of the petitioners as per 2001 Rules of the University which was four years prior to the decision of the Constitution Bench in Umadevi (supra) cannot be said to be an illegal one. At this stage, after so many years of continuous service, if they are thrown out of services and the benefits of regularization are 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 36 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 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. 37 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 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).” 38 This decision supports the contentions raised by the learned counsel for the petitioners for regularisation of services of the petitioners inasmuch as their initial engagement on daily wage basis cannot be said to be back door entry but on the basis of the power conferred on the Programme Coordinator under Rule 5.2 of 2001 Rules of the University with the due approval of the Vice-Chancellor. In heydays of lives, when the petitioners served the institution for two decades and they are serving as Junior Assistants on temporary basis in the University since long and having requisite qualification and their names have been recommended time to time by the University to the Government for regularization and there is nothing against their performance in duty, at this stage, if they are denied the benefits of regularization, it would lead to arbitrariness and the action of the Employer State would be unconstitutional. In the case of Basanta Kumar Barik (supra), this Court in paragraphs 28 and 29 held as follows:- “28. In the backdrop of the factual matrix as borne out from records placed before this Court and from the analysis of law laid down by the Hon'ble Supreme Court of India in Uma Devi's Case (Supra), which has been consistently followed by subsequent Supreme Court 39 judgments as well as by this Hon'ble Court, it is crystal clear that the long uninterrupted services of the Petitioners should have been considered by the Opp. Party No. 3 immediately after the Uma Devi's judgment and his services should have been regularized. The judgment in Uma Devi's case while deprecating the temporary/ adhoc/ illegal appointments by the State and its instrumentalities, have reminded the authorities of their constitutional obligations. Further, as an one time measure, direction has been given to the State Government and its instrumentalities to constitute a screening committee and to regularize the services of the persons who have been appointed irregularly and rendered more than 10 years of service uninterruptedly. The Petitioners' initial appointment was only irregular and not illegal as revealed from the records of the case. The State Govt. and the instrumentalities like the Opp. Party No. 3 have failed to carry out the direction issued by the Hon'ble Supreme Court of India in Uma Devi's case as no such exercise as has been mandated have been carried out till date. Even after the said judgment, the exploitation of the Petitioners continued in the hands of the Opp. Party No. 3. It is also clear from the record that by the time the judgment in Uma Devi's case was delivered, the Petitioners had completed almost 10 years of continuous service in Opp. Party No. 3 40 College. Further it has been specifically stated in the Counter affidavit filed on behalf of the Opp. Party No. 3 that sanctioned posts in Class IV are lying vacant in the college and due to want of approval by the Govt. the same are not being filled up. 29. In such view of the matter, the Opp. Parties are hereby directed to carry out the exercise as mandated in Uma Devi's case forth with and list of such temporary and ad hoc employees working in the college be prepared and on the basis of their seniority and keeping in view the vacant posts available to be filled up, the Opp. Parties shall do well to regularize the service of the Petitioners within a period of three months from the date of communication of this judgment. Needless to say that all legitimate dues payable as per law be paid to the Petitioners within the aforesaid period.” This decision also supports the contentions raised by the learned counsel for the petitioners for regularization of services of the petitioners inasmuch as the initial engagement of the petitioners may be irregular but not illegal as revealed from the records of the case. They have completed two decades of continuous service in the University and are having requisite 41 educational qualification for the post of Junior Assistant and have acquired vast experience in working in such post. 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 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.” 42 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 (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 43 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 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. 44 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 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 apparent that considering the necessity of workload and requirement of manpower in the PEC of the University, the Programme Coordinator in exercising his power under Rule 5.2 of 2001 Rules of the University, 45 engaged the petitioners in the PEC on daily wage basis for different period with the due approval of the Vice-Chancellor as per the said Rules and the engagement period was extended from time to time for each of the petitioners. The petitioners who were having requisite educational qualification were allowed to work as Office Assistants in the PEC. It is not in dispute that due procedure for selection was not followed at the time of engagement of the petitioners inasmuch as the vacancies were not notified through the local Employment Exchange, there was no advertisement and no competitive examination was held and the engagement was also not made against any sanctioned post, but since the adoption of normal method of recruitment might have involved considerable delay resulting in failure to tackle the emergency, the engagement was made to meet emergent situation. Necessities non habet legem is an old age maxim which means ‘necessity knows no law’. It cannot be said that the competent authority under 2001 Rules of the University committed any illegality in engaging the petitioners on daily wage basis which were made at the time of necessity with the approval of the Vice-Chancellor. The petitioners are discharging their duties since last two decades and the posts initially held by them were re-designated as ‘Junior Assistant’ on temporary 46 basis since long as per the resolution dated 16.05.2015 of the Syndicate Committee of the University and office order to that effect was issued on 16.07.2015. The University has been utilizing the services of the petitioners and there is nothing against their performance in duty. 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 request letter of the Registrar, Sambalpur University dated 26.11.2015 to the Special Secretary to Hon’ble Chancellor to accord necessary permission for regularization of services of the petitioners and similar other employees to enable the University to cope up with emerging situation and persistent demand of employees from different quarters was not carried out and in the writ petitions filed by the petitioners before this Court, direction was issued to the State Govt. in Higher Education Department as per order dated 07.01.2016 to consider the recommendation made by the University and to pass appropriate order by sanctioning the post and to regularize the services of the petitioners taking into consideration that they were continuing in service since long, 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 47 vacant posts of Junior Assistant as per OURP Rules, 1992. When the University has repeatedly requested the State in the Higher Education Department by writing letters for according approval for regularization of the petitioners and others, the sudden change of stand by the University in opposing the regularization 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 others and to take advantage of their helplessness and misery. Employment is not a tool in the hands of the employer to exploit the employed as it would lead to unhealthy and deleterious practices and social injustice, consequence of which is terrible in a democratic nation and may lead to revolution. Financial security of employees rest in the hands of their employers and harassment of employees in any form falls under exploitation. Exploitative employment in Universities not only affects the employed, but it also flows on to the quality of education the students receive and academic excellence. The employees need to be treated with dignity and respect and fairly compensated for their works done. When the petitioners have approached this Court by filing writ petitions since 19.07.2019 challenging order of the 48 Government of Odisha in rejecting their claim for regularization of service in the posts of Junior Assistant in the University and they are relying on the resolution dated 16.05.2015 of the Syndicate Committee of the University and office order issued to that effect on 16.07.2015 and orders were passed in the respective writ petitions asking the learned State Counsel to obtain instruction and notices were issued to the opposite parties on 10.01.2020, 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. 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 decades of experience behind them. There is no likelihood of any additional financial burden to the State exchequer by absorbing the petitioners in the regular posts. 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 cases of the 49 petitioners for regularization and passing the impugned order under Annexure-12 in rejecting their claim for regularisation on the ground that they had not worked for more than ten years by 10.04.2006 i.e. the date of decision in the case of Umadevi (supra) and the posts had not been sanctioned. The impugned order is unreasonable, arbitrary and thus the conclusion can be corrected by a writ of certiorari. The University has engaged the petitioners and allowed them to continue 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 are now working against the sanctioned posts and have acquired vast experience as Junior Assistants and there is nothing against their fitness or capacity to hold such posts. In such a scenario, non-regularisation of their service against the available sanctioned posts is unfair, unjustified and arbitrary. 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 50 and is hereby set aside. The opposite parties shall pass appropriate order for regularisation of services of the petitioners against the posts of Junior Assistant as expeditiously as possible preferably within a period of three months from the date of receipt of a copy of this judgment. Resultantly, all the writ petitions are allowed. In the circumstances, there will no order as to costs. S.K. Sahoo, J. ........................ Orissa High Court, Cuttack The 1st June 2023/PKSahoo/Pravakar Signature Not Verified Digitally Signed Signed by: PRAMOD KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 01-Jun-2023 11:41:33

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