Misc. Case No. 11 of 2022 · Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.15128 of 2022 In the matter of an Application under Articles 226 & 227 of the Constitution of India, 1950 *** Sudhansu Sekhar Dash Aged about 49 years Son of Basudev Dash At/P.O./P.S.: Tirtol District/Munsif: Jagatsinghpur At present working as Assistant Revenue Inspector in Tirtol Tahasil. … Petitioner -VERSUS- 1. State of Odisha Represented through Principal Secretary to Government of Odisha Revenue and Disaster Management Department Lok Seva Bhawan, Bhubaneswar District: Khurda. 2. Revenue Divisional Commissioner (Central Division), Cuttack At/P.O./P.S./Munsif: Cuttack. 3. Collector-cum-District Magistrate Jagatsinghpur At/P.O./P.S./Munsif/ District: Jagatsinghpur. … Opposite Parties. W.P.(C) No.15128 of 2022 Page 1 of 61 Counsel appeared for the parties: For the Petitioner : Mr. Jayanta Kumar Rath, Senior Advocate along with M/s. Durgesh Narayan Rath, Amit Kumar Saa, Advocates For the Opposite Parties : Mr. Prem Kumar Mohanty, Additional Standing Counsel P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 25.07.2025 :: Date of Judgment : 18.08.2025 J UDGMENT The petitioner, Assistant Revenue Inspector in the Office of the Tahasildar, Tirtol, beseeches to question the legality and propriety of the order dated 21.04.2022 passed by the Collector-cum-District Magistrate, Jagatsinghpur, opposite party No.3 in Misc. Case No.11 of 2022, by way filing the instant writ petition invoking provisions under Articles 226 and 227 of the Constitution of India, with the following prayer(s): “Under the above circumstances, it is, therefore, humbly prayed that the Hon‟ble Court be graciously pleased to issue a writ in the nature of writ of mandamus or any other appropriate writ, direction or order by quashing the order passed by the opposite party No.3 dated 21.04.2022 vide Annexure-12 to the writ application. W.P.(C) No.15128 of 2022 Page 2 of 61 And the Hon‟ble Court be pleased to direct the opposite parties more particularly the opposite party No.3 to regularize the service of the petitioner as Assistant Revenue Inspector in the District of Jagatsinghpur with effect from the date of his initial appointment and to extend the benefit of the fixation of pay in its proper perspective and as well as the fixation of pay as per ACP/RACP Scheme as has been provided under the pay revision rules made by the State Government from time to time. And the Hon‟ble Court be further pleased to direct the opposite parties to release the dues of the petitioner within a time frame. And for this act of kindness, as in duty bound, the petitioner shall ever pray.” Facts: 2. The brief facts of the case is that the petitioner, a graduate, was initially appointed and posted at Balikuda Tahasil against existing vacancy on “temporary” basis as a Collection Moharir by the order of the Collector-cum- District Magistrate, Jagatsinghpur, opposite party No.3, in the scale of pay Rs.800-15-1010-EB-25-1150/- with usual Dearness Allowance and other allowances as admissible by Government from time to time vide Order in Memo No.402/Estt., dated 07.02.1997. Having joined said post, the Tahasildar, Balikuda posted the petitioner at Naugaon R.I. Circle to assist the Revenue Inspector, Naugaon for collection work for a period of 44 days. W.P.(C) No.15128 of 2022 Page 3 of 61 2.1. Vide Order in Memo No.43 (2) dated 20.03.1998, the petitioner was appointed and allowed to continue on “temporary” basis as a Collection Moharir until further orders or till the date of filling up of the post by process of regular recruitment of Collection Moharir on promotion whichever is earlier. The petitioner was appointed in the scale of pay of Rs.800-15-1010-EB-25- 1150/- with usual Dearness Allowance and other allowances as admissible from time to time. 2.2. While continuing as such, the post of Collection Moharir was re-designated as Assistant Revenue Inspector (for short referred to as “ARI”), and accordingly, the petitioner was allowed to continue as ARI. The service book of the petitioner was also opened by the opposite party No.3 in the year 2000 reflecting “17.03.1998” as the date of entry in the Government service, although the petitioner was appointed and continuing in the post of Collection Moharir (later re-designated as ARI) on 07.02.1997. 2.3. It is submitted that while the petitioner was continuing as such, he was allowed to operate independently in- charge of Revenue Inspector Office when the Revenue Inspector used to remain absent and he was allowed to continue as Revenue Inspector when the post fell vacant. Instances are vide Order in Memo No.1928(6), dated 31.07.2003 on transfer of R.I. the petitioner was directed W.P.(C) No.15128 of 2022 Page 4 of 61 to remain in charge of said higher post; and vide Order in Memo No.3923(3), dated 31.01.2007 on the R.I. being relieved from duties, the petitioner was directed to be in charge and was authorised to issue rent receipts, and deal with financial matters relating to Sikhar R.I. under Tahasil Office, Jagatsinghpur. Such functioning of the petitioner was all through appreciated by the higher authorities. 2.4. He was also transferred to different RI Stations as regularly appointed employee under the jurisdiction of opposite party No.3 wherein the petitioner also discharged his duties to the satisfaction of all concerned because of his sincerity and ability in discharging the duties as Revenue Inspector. 2.5. While continuing against vacant sanctioned post having the requisite qualification and being extended with the regular scales of pay prescribed for the Government post, the petitioner approached the learned Odisha Administrative Tribunal, Cuttack Bench, Cuttack by way of filing an Original Application, registered as O.A. No. 4550(C) of 2011, which came to be disposed of vide order dated 03.01.2012 with the following observation: “As submitted by the learned counsel for the applicant and without going into the merits of the matter, and as representation of is pending as per Annexure-10 a copy of the paper book be sent to the applicant W.P.(C) No.15128 of 2022 Page 5 of 61 Respondent no.2 for reference only. Representation of the applicant at Annexure-10 be disposed of by Respondent no.2 within a period of one month from the date of receipt of these orders, under intimation to the applicant taking into account Para-44 of the decision of the Hon‟ble Apex Court in the case of Secretary, State of Karnataka-Vrs.- Uma Devi and State of Karnataka Vrs. M.L. Keshari ibid and orders of the Hon‟ble High Court in W.P. (C) No. 14678/2008 decided on 19.05.2010 reported in (2000) 2 ATT (HC) 51.” 2.6. The opposite party No.3, after receipt of the order of the learned Tribunal, was pleased to pass an order on 11.04.2012 by rejecting the claim of the petitioner by assigning following reason: “Hence, in the view of the above, the prayer of the applicant cannot be considered for regularisation of his service and the applicant is at liberty to apply before 02.05.2012 through proper channel in the prescribed form to appear the recruitment test to the post of ARI as per this office Advertisement No.482, dated 31.03.2012 published the daily newspaper “The Samaj & Pragatibadi” dated 03.04.2012 and face recruitment test as per conditional appointment order issued vide Order No.42 dated 20.03.1998.” in 2.7. Being dissatisfied, by such order of the Collector-cum-
Legal Reasoning
District Magistrate, the petitioner challenged said order before the learned Odisha Administrative Tribunal, Cuttack Bench, Cuttack under Section 19 of the Administrative Tribunals Act, 1985, by filing Original Application, being OA No. 4295 (C) of 2012. The learned W.P.(C) No.15128 of 2022 Page 6 of 61 Tribunal vide Order dated 03.01.2013, while issuing notice to the opposite parties in the Original Application, passed an order to the effect that the pendency of the Original Application shall not be a bar to allow the petitioner for appearing in the test pursuant to advertisement issued by the opposite party No.3 for appointment to the post of ARI, but his results would not be published without specific leave of the Tribunal. It was also further directed to keep such result in a sealed cover till adjudication. However, after abolition of the Odisha Administrative Tribunal said case has been transferred to this Court and renumbered as WPC (OAC) No.4295 of 2012, which stood disposed of by Order dated 05.12.2022 on the submission of the learned counsel that he had no instructions. Be that be, the petitioner has been continuing and discharging the function of ARI till date. 2.8. While the matter stood thus, the State Government in General Administration and Public Grievance Department vide Letter No.7210(e)-GAD-SC-GCS-0169- 2020/Gen, dated 03.03.2021 under the subject “regularization of contractual employees” communicated the policy decision of the Government to all the Departments of the Government stating therein the procedure to be adopted for regularization of the contractual appointees and accordingly, a check list was W.P.(C) No.15128 of 2022 Page 7 of 61 prepared for examination of the different departments of the Government for regularization of contractual employees. The said guideline is stated to have been prepared in tune with the principle laid down by the Hon’ble Supreme Court in case of Secretary, State of Karanataka Vrs. Uma Devi (3), (2006) 4 SCC 1. 2.9. Accordingly, the petitioner in the meantime having completed more than 24-25 years of service being appointed on temporary basis in the sanctioned post of Collection Moharir/ARI since 1997, approached the Collector-cum-District Magistrate, Jagatsinghpur with prayer to regularise his service in the light of the guidelines brought in force by Letter of the Government of Odisha in General Administration and Public Grievance Department dated 03.03.2021. 2.10. Since the opposite party No.3 did not take any step to consider the case of the petitioner for regularization, a writ application, bearing W.P.(C) No.37519 of 2021, was filed, which was disposed of vide Order dated 11.12.2021 of this Court with a direction to the opposite party No.3 to consider the representation dated 08.04.2021. 2.11. Said order of this Court remained unchallenged/ uncontested by the opposite parties; nevertheless, the same was implemented by considering the W.P.(C) No.15128 of 2022 Page 8 of 61 representation of the petitioner dated 08.04.2021 by order dated 21.04.2022. The Collector-cum-District Magistrate rejected the prayer of the petitioner for regularization in service in the post of the Assistant Revenue Inspector. Such rejection order dated 21.04.2022 of the Collector-cum-District Magistrate is assailed in the present writ petition. Submissions:
Legal Reasoning
3. Sri Jayanta Kumar Rath, learned Senior Advocate submitted that the opposite party No.3 appointed the petitioner as Collection Moharir by Order in Memo No. 402 dated 07.02.1997 against the existing sanctioned vacancy and the term of appointment has been extended from time to time. The service book of the petitioner was opened on 15.02.2000 indicating the date of entry to the Government service as “17.03.1998”. 3.1. It is emphatically submitted that the continuance of the petitioner since 1997 in service till the decision was taken by the opposite party No.3 by Order dated 21.04.2022 (Annexure-12) was not because of any interim order passed by the Court or of the Tribunal. In view of this, the order of the opposite party No.3 in rejecting the representation dated 08.04.2021 is illogical, arbitrary and without any foundational fact and contrary W.P.(C) No.15128 of 2022 Page 9 of 61 to the ratio of decisions of the Hon’ble Supreme Court of India. 3.2. It is urged that though illegal appointments cannot be supported, but irregular appointments can be regularised by absorbing the employees engaged on temporary basis and such employee being allowed to continue in service for a long period. Such significant aspect has not been considered in right earnest by the Collector, which vitiates the impugned order. In the instant case, what has been conspicuously missed by the Collector-cum-District Magistrate is that since 1997 the petitioner has been serving the Department as ARI against a sanctioned post having requisite qualification and in the meantime without protection of interim orders of the Court or Tribunal he has completed more than ten years of service. 3.3. He vehemently contended that the petitioner is required to be considered favourably by regularising in the service in the post of the Assistant Revenue Inspector since he has been working as such against the sanctioned post for more than twenty five years by now. Hence, the learned Senior Counsel insisted for issue of writ of mandamus to the opposite parties to have a fresh (re)look at the matter in view of recent rulings of the Hon’ble Supreme Court of India. W.P.(C) No.15128 of 2022 Page 10 of 61 4. Per contra, taking this Court to the counter affidavit filed by the opposite party No.3, Sri Prem Kumar Mohanty, learned Additional Standing Counsel advanced submissions that the petitioner was initially appointed on temporary basis as Collection Moharior on 44 days basis and it is unknown “whether the petitioner had appeared in the written examination or not conducted by the Odisha Subordinate Staff Selection Commission”. Laying emphasis on the contents asserted in paragraphs 6 and 8 of the counter affidavit, he strenuously argued that “the petitioner joined the post on 07.02.1997 and had not completed 10 years of service as on the date of judgment, i.e., dated 10.04.2006”. 4.1. He further submitted that since the petitioner does not satisfy the eligibility criteria, the concerned authority while disposing of his representation, has followed the law laid down by the Hon’ble Supreme Court and the circular issued by the General Administration and Public Grievance Department. 4.2. It is further submitted by learned Additional Standing Counsel that the Collector, Jagatsinghpur having
Decision
disposed of the representation of the petitioner strictly in terms of direction contained in Order dated 11.12.2021 in W.P.(C) No.37519 of 2021 of this Court, the Order dated 21.04.2022 (Annexure-12) of the Collector-cum- W.P.(C) No.15128 of 2022 Page 11 of 61 District Magistrate could not be faulted with. Therefore, he fervently prayed to dismiss the writ petition. Legal perspective as discussed in the decisions of various Courts: 5. Before delving into merit of the matter it is apposite to take note of legal perspective discussed and views expressed by Courts with regard to regularisation service. 5.1. The Hon’ble Supreme Court of India dealing illuminatingly with the concept of regularization, in the case of Narendra Kumar Tiwari Vrs. State of Jharkhand, (2018) 8 SCC 238, expounded as follows: illegal appointments “The purpose and intent of the decision in Umadevi (3), (2006) 4 SCC 1 was therefore twofold, namely, to prevent irregular or in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) (supra), is a clear indication that it believes that it was all right to irregular appointments and whenever continue with required, irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword the services of terminate the W.P.(C) No.15128 of 2022 Page 12 of 61 of Damocles over their head. This is precisely what 1 Umadevi sought to avoid.” and Kesari 2 5.2. In Sunil Barik Vrs. State of Odisha, 2021 (II) OLR 469, it has been discussed as follows: in paragraph 53 of the “12. As it appears from the record itself, the case of the petitioner is squarely covered by the exception judgment carved out rendered in Umadevi (3) mentioned supra. Meaning thereby, against an existing sanctioned vacancy in the post of Barber, the petitioner having been engaged by following due procedure of selection in the post of Home Guard and continued for a quite long period, which is not disputed by the opposite parties-State as per the pleadings available in the counter affidavit and, as such, the petitioner is still continuing, the same cannot be treated as an „illegal engagement‟, rather it may be nomenclatured as an „irregular engagement‟. 13. In State of Jammu and Kashmir Vrs. District Bar Association, Bandipora, MANU/SC/1566/2016 = (2017) 3 SCC 410, wherein a distinction has been „illegal‟ made with engagement, referring to the exception carved out in Umadevi (3) mentioned supra, in paragraph 12 of the said judgment it has been stated as follows: „irregular‟ and regard to „12. The third aspect of Umadevi (3) which bears notice is the distinction between an „irregular‟ and „illegal‟ appointment. While answering the question of whether an appointment is 1 2