Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.24975 of 2017 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 Petitioner *** Bhikari Charan Sethi Aged about 40 years Son of Sri Kumara Sethi At: Jankia, P.S.: Kanasa District: Puri At present staying At: Malipada Primary Health Centre District: Khordha. … -VERSUS- 1. State of Odisha Represented though Commissioner-cum-Secretary Helath Department Secretariat Building Sachivalaya Marg Bhubaneswar, District: Khordha. 2. National Rural Health Mission Represented by Director At: Unit VIII, Nayapalli Bhubaneswar, District: Khordha. W.P.(C) No.24975 of 2017 Page 1 of 41 3. Governing Body of Rogi Kalyana Samiti Primary Health Centre Represented by Chairman, Panchayat Samiti-cum- President, Zilla Parishad At: Malipada, District: Khordha. 4. Medical Officer (Ayush) Primary Health Centre Malipada and Golobai At: Malipada, District: Khordha. 5. Chief District Medical Officer Khordha At/P.O./District: Khordha. … Counsel appeared for the parties: Opposite parties For the Petitioner : Ms. Sujata Jena Advocate For the Opposite party Nos.1, 3 and 4 : Mr. Dayanidhi Lenka, Additional Government Advocate For the Opposite party No.2 : Mr. Bibhu Prasad Tripathy Senior Advocate assisted by Mr. Narayan Bark, Advocate P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 02.04.2025 :: Date of Order : 02.04.2025 W.P.(C) No.24975 of 2017 Page 2 of 41 ORDER 1. The Petitioner belonging to Scheduled Caste Community and economically weak section of the society, was engaged to work as sweeper at Malipada and Golabai, Primary Health Centre (PHC) since December, 2010 on daily wage basis. Having approached, the Authority concerned a letter No.1, dated 12.10.2010 was issued by Medical Officer, Ayush, apprising the Medical Officer-In- charge of Primary Health Centre (PHC), Haladia, Khurda about lack of basic amenities and requirement of sweeper for cleaning the hospital, requested for appointment of support staff including sweeper for the Primary Health Centre (N), Golobai, Khurda. 1.1. Accordingly, in the Governing Body Meeting of the Rogi Kalayan Samiti (RKS), Primary Health Centre (N),
Legal Reasoning
7.2. Learned Single Judge of this Court in Dr. Prasana Kumar Mishra Vrs. State of Odisha, W.P.(C) No.11148 of 2005, reported at 2016 (I) ILR-CUT 373, made the following observation: “7. 8. In Binan Kumar Mohanty Vrs. Water and Land Management Institute (WALMI), 2015 (I) OLR 347 referring to Kapila Hingorani Vrs. State of Bihar, (2003) 6 SCC 1 the apex Court held that the Government companies/public sector undertakings being ‘States’ would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution of India. Therefore, if the petitioner has rendered service for around 20 years, keeping in view the ratio decided in Kopila Hingorani (supra), this Court issues direction to the opposite parties to mitigate the hardship of the employees. Financial stringency is no ground for not issuing requisite directions when there is violation of fundamental rights of the petitioner. Allowing a person to continue for a quite long period of 20 years of service and exploiting him on the pretext of financial crunch in violation of Article 21 of the Constitution of India is sheer arbitrariness of the authority which is highly condemnable. In Narendra Kumar Ratha and Others Vrs. State of Odisha and Others, 2015 (I) OLR 197, this Court has taken into consideration the object of Article 16 of the Constitution of India to create a constitutional right to equality of opportunity and employment in or The word public appointment’ initial cover not merely appointment, but also other attributes like salary, ‘employment offices. the W.P.(C) No.24975 of 2017 Page 14 of 41 increments, revision of pay, promotion, gratuity, leave pension and age of superannuation etc. Appointment to any post under the State can only be made the provisions and procedure envisaged under the law and guidelines governing the field. in accordance with 9. In Prabodh Verma and Others Vrs. State of U.P. and Others, (1984) 4 SCC 251, the apex Court held that Article 16 is an instance of the application of the general rule of equality laid down in Article 14, with special reference to the opportunity for appointment and employment under the Government. 10. Similar view has also been taken by the apex Court in Km. Neelima Mishra Vrs. Harinder Kaur Paintal and Others, (1990) 2 SCC 746 = AIR 1990 SC 1402 and E.P. Royappa Vrs. State of Tamil Nadu and Another, (1974) 4 SCC 3. Clause (1) of Article 16 guarantees equality of opportunity for all citizens in the matters of employment or appointment to any office under the State. The very concept of equality implies recourse to valid classification for preference in favour of the disadvantaged classes of citizens to improve their conditions so as to enable them to raise themselves to positions of equality with the more fortunate classes of citizens. This view has also been taken note of by the apex Court in the case of Indra Sawhney Vrs. Union of India, 1992 Supp. (3) SCC 217 = AIR 1993 SC 477.” 7.3. The case of Prasana Kumar Mishra (supra) was carried in appeal before the Division Bench, giving arise to W.A. No.4 of 2016, which was dismissed vide Order dated 11.12.2019. Said matter, being carried further to the W.P.(C) No.24975 of 2017 Page 15 of 41 Hon’ble Supreme Court of India, vide Order dated 07.08.2020, the S.L.P.(C) No.4945 of 2020, filed at the behest of Biju Patnaik University of Technology, stood dismissed. 7.4. So far as regularization of services, in a catena of decisions 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, said as follows: “The purpose and intent of the decision in Umadevi (3) was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3), (2006) 4 SCC 1 is a clear indication that it believes that it was all right to continue with irregular appointments and whenever required, terminate irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi and Kesari sought to avoid.” the services of the 7.5. In Sunil Barik Vrs. State of Odisha, 2021 (II) OLR 469, it has been discussed as follows: “12. As it appears from the record itself, the case of the petitioner is squarely covered by the exception W.P.(C) No.24975 of 2017 Page 16 of 41 in paragraph 53 of the 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 irregular or illegal, the Court would have to enquire as to whether the appointment process adopted was tainted by the vice of non-adherence to an essential prerequisite or is liable to be faulted on account of the lack of a fair process of recruitment. There may be varied circumstances in which an ad hoc or temporary appointment may be made. The power of the employer to make a temporary appointment, if the exigencies W.P.(C) No.24975 of 2017 Page 17 of 41 of the situation so demand, cannot be disputed. The exercise of power however stands vitiated if it is found that the exercise undertaken (a) was not in exigencies of administration; or (b) where the procedure adopted was violative of Articles 14 and 16 of the Constitution; and/or (c) where the recruitment process was overridden by the vice of nepotism, bias or mala fides.” 7.6. In Suvendu Mohanty Vrs. State of Odisha, 2015 SCC OnLine Ori 267, it has been observed as follows: “9. With regard to the regularization of the services of in the petitioners, a mention has been made Annexure-4 that the petitioners being irregular recruits, their regularization is not permissible under the State Government Rules. But this condition made in the restructuring order in Annexure-4 so far as it relates to the petitioners cannot be applicable in view of the fact that the petitioners have been appointed against regular vacancies available in the regular scale of pay admissible to the post. But in view of their continued service for more than 10 years, their cases are covered by the ratio of the judgment of the apex Court in Secretary, State of Karnataka Vrs. Umadevi, (2006) 4 SCC 1 = AIR 2006 SC 1806, wherein the apex Court has held that the appointments made against temporary or ad-hoc basis are not to be regularized. In paragraph 53 of the said judgment, it is provided that irregular W.P.(C) No.24975 of 2017 Page 18 of 41 appointment of duly qualified persons against sanctioned posts, who have worked for 10 years or more can be considered on merits and steps to be taken as one time measure to regularize them. In Paragraph 53 of the said judgment, the apex Court has held as follows: *** to permit 10. The object behind the exception carved out in this case was regularization of such appointments, which are irregular but not illegal, and to ensure security of employment of those persons who served the State Government and their instrumentalities for more than ten years. Similar question came up for consideration before the apex Court in Civil Appeal No. 2835 of 2015 (arising out of SLP (Civil) No. 20169 of 2013 disposed of on 13.3.2015 [Amarkant Rai Vrs. State of Bihar, (2015) 8 SCC 265]. In paragraphs 12 and 13, the apex Court has held as follows: ‘12. Elaborating upon the principles laid down in Umadevi’s case (supra) and explaining the difference between illegal appointments in State of Karnataka Vrs. M.L. Kesari, (2010) 9 SCC 247, this Court held as under: irregular and ‘7. It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi (3), if the following conditions are fulfilled: (i) W.P.(C) No.24975 of 2017 The employee concerned should have worked for 10 years or more in Page 19 of 41 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 and employed continued him in service voluntarily and continuously for more than ten years. employee the prescribed illegal, even (ii) The appointment of such employee if should not be irregular. Where the appointments are not made or continued against the sanctioned posts or where persons appointed do not possess the minimum qualifications, the appointments will be considered to be illegal. But employed where possessed prescribed the qualifications and was working against sanctioned posts, but had selected without undergoing the process of open competitive such appointments are considered to be irregular.’ the person selection, been 13. Applying the ratio of Umadevi’s case, this Court in Nihal Singh Vrs. State of Punjab, (2013) 14 SCC 65 directed the absorption of the Special Police Officers in the services of the State of Punjab holding as under: W.P.(C) No.24975 of 2017 Page 20 of 41 ‘35. Therefore, it to that is clear is required the existence of the need for creation of the posts is a relevant factor with reference to which the executive government 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 the posts financial burden on is required to keep in mind while creating or financial abolishing implications involved in such a decision. The creation of posts necessarily means the additional 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. W.P.(C) No.24975 of 2017 Page 21 of 41 into the appellants the If absorbing services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is— the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks.’***” 7.7. Reference can also be had to Amarendra Kumar Mohapatra Vrs. State of Odisha, (2014) 4 SCC 583 = AIR 2014 SC 1716; Subrata Narayan Das Vrs. State of Odisha, W.P.(C) No.18659 of 2016, vide Judgment dated 12.07.2022. 7.8. In the case of Union of India Vrs. Central Administrative Tribunal, (2019) 4 SCC 290 the following is the observation: “25. The Court noted in the above judgment that if a strict and literal interpretation was given to the decision in Umadevi, no employee from the State of Jharkhand appointed on an irregular basis could ever be regularized as formed on 15 the State was November 2000 and the cut-off date had been fixed as 10 April 2006. The intent of the Court was to grant similarly-placed employees who had put the W.P.(C) No.24975 of 2017 Page 22 of 41 2015 requisite years of service as mandated by Umadevi, the benefit of regularization. The Court thus held that the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa Niyamitikaran (‘the Niyamawali, Regularisation Rules’) must be interpreted in a pragmatic manner and employees of the State who had completed 10 years of service on the date of promulgation of the rules, ought to be regularized. In doing so, the Court ensured that employees in the State of Jharkhand who had completed the same years of service as employees from other States, are granted parity in terms of regularization. The spirit of non-discrimination and equity runs through the decisions in Umadevi [(2006) 4 SCC 1], ML Kesari [(2010) 9 SCC 247] and Narendra Kumar Tiwari [(2018) 8 SCC 238]. 26. In this background, the issue which now arises before this Court is in regard to the effective direction which would govern the present case. The High Court has directed the Union of India to absorb the casual workmen, if it is not possible at the Institute in question, then in any other establishment. The latter part of the direction, as we have already noted, cannot be sustained. Equally, in our opinion, the authorities cannot be heard to throw their hands in despair by submitting that there are no vacancies and that it had already regularized such of the persons in the seniority list, who reported for work. The Tribunal has entered a finding of fact that this defence is clearly not borne out of the record. Accordingly, we are of the view that having decided to implement the decision of the Tribunal, which was affirmed by the High Court, the Union of India must W.P.(C) No.24975 of 2017 Page 23 of 41 list follow a rational principle and abide strictly by the seniority list in proceeding to regularize the workmen concerned. Accordingly, we direct that the case for regularization shall be considered strictly in accordance with the seniority in pursuance of the directions which were issued by the Tribunal and confirmed by the High Court and such of the persons, who are available for regularization on the basis of vacancies existing at present, shall be considered in accordance with law. The Tribunal has denied back-wages but has ordered a notional fixation of pay and allowances. While affirming that direction, we also direct that persons who have crossed the age of superannuation will be entitled to the computation and payment of their retiral dues on that basis. This exercise shall be carried out within a period of three months from the receipt of a copy of the judgment. If it becomes necessary to grant age relaxation to the concerned workmen, the Appellants shall do so.” 7.9. In Vibhuti Shankar Pandey Vrs. State of Madhya Pradesh, 2023 LiveLaw (SC) 91 = (2023) 3 SCC 639, it has been stated as follows: “*** The Division Bench rightly held that the learned Single Judge has not followed the principle of law as given by this Court in Secretary, State of Karnataka and Others Vrs. Umadevi and Others, (2006) 4 SCC 1, as initial appointment must be done by the competent authority and there must be a sanctioned post on which the daily rated employee must be working. ***” W.P.(C) No.24975 of 2017 Page 24 of 41 7.10. It may be apt to refer to Ranjeet Kumar Das Vrs. State of Odisha, 2018 (I) ILR-CUT 695, wherein relevant portion of the Judgment runs as follows: of his regularization “7. Before delving into the niceties of the order passed by the tribunal, this Court deems it proper to examine the claims of the petitioner on the basis of the factual matrix available on record itself. On the basis of the pleadings available before this Court, no doubt the petitioner had approached the tribunal services. seeking Regularization in service law connotes official formalisation of an appointment, which was made on temporary or ad hoc or stop gap or casual basis or the like, in deviation from the of normal appointment. Such formalisation makes the appointment regular. The ordinary meaning of regularisation is “to make regular” according to The Shorter Oxford English Dictionary, 3rd Edition, and according to Black’s Law Dictionary, 6th Edition, the word “regular” means: of applicable norms rules ‘Conformable to law. Steady or uniform in course, practice, or occurrence; not subject to unexplained or irrational variation. Usual, customary, normal or general. Gerald Vrs. American Cas. Co of Reading, Pa., D.C.N.C., 249 F, Supp. 355, 357. Made according to rule, duly authorised, formed after to uniform established plan, law, or principle. Antonym of Industrial “casual” or “occasional,” Palle Vrs. Commission, 79 Utah 47, 7 P. 2d. 248, 290.’ type; built or arranged according W.P.(C) No.24975 of 2017 Page 25 of 41 in dictionary, 8. The above being the meaning of “regular”, as per the common parlance given in B.N. Nagarajan, Vrs. State of Karnataka, AIR 1979 SC 1676 = (1979) 4 SCC 507, the apex Court held that the effect of such regularization would depend on the object or purpose for which the regularization is made or the stage at which it is made. Once regularized, infirmities which attended the appointment are cured. Regularization, however, does not necessarily connote permanence. the procedural 9. The word ‘regular’ or ‘regularisation’ do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are in attributable followed to methodology making the appointments. Relying on the Judgments of the apex Court in B.N. Nagarajan Vrs. State of Karnataka, AIR 1979 SC 1676 = (1979) 4 SCC 507, the Constitution Bench of the apex Court in State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1 has also taken the same view, which has also been followed by the apex Court in Hindustan Petroleum Corpn. Ltd. Vrs. Ashok Ranghba Ambre, (2008) 2 SCC 717 and also in Hindustan Aeronautics Ltd. Vrs. Dan Bahadur Singh, (2007) 6 SCC 207. 10. Temporary or ad hoc or stop gap or casual basis or the like appointments are made for various reasons. An emergent situation might make it necessary to make such appointments. Since the adoption of the normal method of regular recruitment might involve considerable delay regulating in failure to tackle the W.P.(C) No.24975 of 2017 Page 26 of 41 on financial consideration) emergency. Sometimes such appointments were to be made because although extra hands are required to meet the workload, there are no sanctioned posts against which any regular recruitment could be made. In fact in the case the of ad hoc or casual appointees, appointments, are in the majority of cases, not against sanctioned posts and the appointments are made because of the necessity of workload and the constraints of sanctioning such post on (mainly permanent basis. Needless to say that filling up vacancies by regularisation is against the constitutional provisions of equality of opportunity in the matter of public employment violating Articles 14 and 16 of the Constitution by not making the offer of employment to the world at large and allowing all eligible candidates equality of opportunity to be considered on merits. If that be so, considering the emergent necessity of filling up of vacancies and allowing the petitioner to continue for a quite long period, even if with one day break in service, cannot be stated to be a reasonable one, rather, this is an unfair and unreasonable action of the authority concerned. sanctioned against posts *** 12. In view of above constitutional philosophy, whether Courts can remain as mute spectator, is a matter to be considered to achieve the constitutional goal in proper perspective. But all these questions had come up for consideration and decided by the Constitution Bench of the apex Court in Umadevi (3) mentioned supra. The factual matrix of the case in Umadevi (3) W.P.(C) No.24975 of 2017 Page 27 of 41 from a for consideration judgment of arose Karnataka High Court. In some of the cases, the the claims of Karnataka High Court rejected persons, who had been temporarily engaged as daily wagers but were continued for more than 10 years in the Commercial Taxes Department of the State of Karnataka for regularization as permanent employees and their entitlement to all the benefits of regular employees. Another set of civil appeals arose from the order passed by the same High Court on a writ petition challenging the order of the government directing cancellation of appointments of all casual workers/daily rated workers and seeking a further direction for the regularization of all such daily wage earners engaged by the State or local bodies. These claims were rejected by the Division Bench of the Karnataka High Court on appeal from the judgment of the learned Single Judge. The reason for the mater being considered by the Constitution Bench arose because of two earlier orders of reference made by a Bench of two-Judge and subsequently by three-Judge- Secretary, State of a Bench of Karnataka Vrs. Umadevi (1) (2004) 7 SCC 132, and Secretary, State of Karnataka Vrs. Umadevi (2) (2006) 4 SCC 44, respectively, as they noticed the conflicting opinions expressed by the earlier 3 Bench judgments in relation to regularization.” 7.11. In Patitapaban Dutta Dash Vrs. State of Odisha, W.P.(C) No. 19951 of 2020, vide Judgment dated 09.09.2021, a Single Bench of this Court has made the following observation: W.P.(C) No.24975 of 2017 Page 28 of 41 “8. to ideal It is worthwhile to mention here that the Court comes into picture only to ensure observance of fundamental rights, and to ensure the rule of law and to see that the executive acts fairly and gives a its employees consistent with fair the requirements of Articles 14 and 16 of Constitution, and that the authority should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. For this very reason, it is held that a person should not be kept in contractual, temporary or ad hoc status for a long period. Where a contractual, temporary or ad hoc appointment is continued for long, the Court presumes that there is need of a regular post and accordingly directs for for regularization. While regularization, the Court must first ascertain the relevant fact, and must be cognizant of the several situations and eventualities that may arise on account of such direction. If for any reason, a contractual, ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization, provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. Even though a casual labourer is continued for a fairly long spell, say two or three years, a presumption may arise that there is regular need for his service. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularization. While doing so, the issuing direction W.P.(C) No.24975 of 2017 Page 29 of 41 authorities ought to adopt a positive approach coupled with empathy for the person.” 7.12. Aforesaid Judgment rendered by the Single Judge of this Court in Patitapaban Dutta Dash (supra) got the seal of approval of this Court being carried in appeal bearing W.A. No. 777 of 2021 before the Division Bench, which
Arguments
Malipada held on 21.12.2011, the engagement of Sri Bhikari Chanran Sethi (Petitioner) to work as sweeper on daily wage basis was considered. 1.2. The petitioner was verbally directed by the Medical Officer, Haladia to work as sweeper in the Primary Health Centre on daily wage basis which fact was taken note of in the Governing Body Meeting as referred to above. He was allowed to sign the staff attendance register on each day he worked. W.P.(C) No.24975 of 2017 Page 3 of 41 1.3. Pursuant to aforesaid resolution of the Governing Body, the petitioner continued to work in the Primary Health Centre and he was allowed to work till October 2017. 1.4. The petitioner is stated to have filed representation before the Chief District Medical Officer (CDMO), Khordha for taking steps to regularise his service, as his service was required daily. Since the Authority did not pay any heed to, the petitioner approached this Court by way of the present writ petition with the following prayers: the representation of “In the circumstances petitioner prays that the Hon’ble Court may be graciously pleased to admit this writ petition, issue notice to the opp. parties to show cause as to why for regularisation of his services and payment of wages has not been considered as on date and if the Opp. Parties failed to show cause or show insufficient cause, the Hon’ble Court upon hearing the parties may be further pleased to allow this writ petition by issuing a writ of mandamus or any other appropriate writ directing the Opp. Parties to regularise the petitioner in the post of sweeper of Malipada and Golabai P.H.C. the petitioner And may be further pleased to pass such other order/orders, direction/directions as may be deem fit and proper in the interest of justice.” 2. Counter affidavit in response to the averments made in the writ petition has come to be filed on behalf of the opposite party No.5, namely, Chief District Medical Officer, Khurdha (“CDMO”, for short). W.P.(C) No.24975 of 2017 Page 4 of 41 3. Since this matter has been pending since 2017 and the petitioner is without any livelihood, on the consent of counsel for the parties this matter is taken up for final hearing. 3.1. Accordingly, heard Smt. Sujata Jena, learned Advocate for the petitioner and Sri Dayanidhi Lenka, learned Additional Government Advocate for the opposite party Nos.1, 3, 4 and 5 and Sri Bibhu Prasad Tripathy, learned Senior Advocate along with Sri Narayan Barik, learned Advocate for the opposite party No.2 who has declined to file separate counter affidavit, but sought to adopt the counter affidavit filed by the CDMO. 4. Smt. Sujata Jena, learned Advocate appearing for the petitioner submitted that the opposite parties ignoring the obligation of the State as envisaged under Article 38 of the Constitution of India, neglected to consider the plight of the petitioner, who is engaged to serve the Primary Health Centre (“PHC”, for brevity) as “sweeper”. It is not denied or disputed that such work of sweeper is required daily and perennially without any break. 4.1. She made a reference to the “Revised Guidelines for Utilisation of Untied Fund, Annual Maintenance Grant and RKS Grant at different facilities”, of Rogi Kalyan Samiti (“RKS”, abbreviated) in Public Health Facilities circulated vide Letter dated 25.09.2008 issued by W.P.(C) No.24975 of 2017 Page 5 of 41 Mission Directorate, National Rural Health Mission, Odisha, Department of Health and Family Welfare, Government of Odisha and submitted that housekeeping and cleanliness service are one of the areas which are identified for annual maintenance grant under the Rogi Kalyan Samiti Grant. She laid stress on the following portion of said Revised Guidelines: increasing (NRHM) aims at “Health Sector reform under the National Rural Health the functional, Mission administrative and financial autonomy of various field units. Accordingly provisions have been made for these field units at different levels in the form of untied fund, annual maintenance grant and Rogi Kalyan Samiti grant to undertake any innovative or responsive facility specific need based activity. Suggested Areas where Untied Maintenance Grant, RKS Grant can be utilised: Fund, Annual Given below are some of the suggested activities which can be taken up with the fund. Other than these activities, RKS may take up any activity based on local specific needs with the given funds except activities mentioned in Annexure-A. Each activity planned by the facility should have clear rationale so that the impact of the untied fund/annual maintenance/RKS grant can be assessed distinctively. *** V) Maintenance of cleanliness, sanitation & beautification of campus Out-sourcing of hospital housekeeping and cleanliness services, Ad hoc payment for cleaning of centres after child birth, meeting day to day expenses on maintaining cleanliness viz. Brooms, Bleaching powder & Disinfectants, Buckets, Mugs, Spade, Waste W.P.(C) No.24975 of 2017 Page 6 of 41 disposal bins, Monthly/Bimonthly campus cleaning drive involving local volunteers, wall hanging & clock at waiting space, clearing of larvicidal measures for stagnant water, etc.” 4.2. It is, therefore, vehemently contested by Smt. Sujata Jena, learned Advocate that the opposite parties- Authorities have acted arbitrarily and left the petitioner in a lurch. 4.3. Advancing further argument, she would submit that denial of rightful opportunity to the petitioner to sustain and survive by providing work the action of the opposite parties squeezed his right to earn a livelihood, which is fundamental for their survival and dignity, thereby the Authorities have caused social injustice. The failure to regularize the service of the petitioner perpetuated social inequality and economic disparity, undermining the constitutional mandate for social justice. The uncertainty surrounding employment status demoralised the petitioner leading to destitution. 4.4. She emphatically submitted that seeking to replace the petitioner with the personnel from outside without considering the representation of the petitioner and recognizing his contribution to the welfare of the PHC since 2010, is unwholesome and such actions are not expected from model employer, like Health Department. Therefore, she suggested issue of writ of mandamus for W.P.(C) No.24975 of 2017 Page 7 of 41 effective and prompt disposal of the representation dated 09.11.2017 (Annexure-5) pending. 5. Sri Dayanidhi Lenka, learned Additional Government Advocate appearing for the opposite party Nos.1, 3, 4 and 5, opposing the contention of Smt. Sujata Jena, learned counsel appearing for the petitioner submitted that there is no provision for regularising a person working under Rogi Kalyana Samiti on daily wages. It is stated that since the such post is not a regular sanctioned post no right to employment could be claimed by the petitioner. The engagement of the petitioner is itself “irregular”, which does not warrant consideration for regularisation in service. 6. Sri Bibhu Prasad Tripathy, learned Senior Counsel along with Sri Narayan Barik, learned Advocate appearing for the opposite party No.2-National Rural Health Mission supported the arguments advanced by the learned Additional Government Advocate appearing for the other opposite parties and submitted that the representation of the petitioner being kept pending since long, the Authorities concerned may consider the same, approach is made by the petitioner with the direction of this Court. 7. In reply to the stand of the opposite parties, Smt. Sujata Jena, learned Advocate referred to paragraphs 5, 6, 7 and 8 of Vinod Kumar and others Vrs. Union of India and W.P.(C) No.24975 of 2017 Page 8 of 41 others, reported in (2024) 1 SCR 1230 = (2024) 9 SCC 327, wherein the Hon’ble Supreme Court has been pleased to observe as follows: “5. Having heard the arguments of both the sides, this Court believes that the essence of employment and the rights thereof cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over time. The continuous service of the appellants the capacities of regular employees, in performing duties indistinguishable from those in permanent posts, and their selection through a process that of regular recruitment, constitute a substantive departure from the temporary and scheme-specific nature of their the appellants’ promotion process was conducted and overseen by a Departmental Promotional Committee and their sustained service for more than 25 years without any indication of the temporary nature of their roles being reaffirmed or the duration of such temporary engagement being specified, merits a reconsideration of their employment status. initial engagement. Moreover, that mirrors 6. the judgment The application of in State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1 by the High Court does not fit squarely with the facts at hand, given the specific circumstances under which the appellants were employed and have continued their service. The reliance on procedural formalities at the outset cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous service. Their promotion was based on Page 9 of 41 W.P.(C) No.24975 of 2017 for vacancies and a a specific notification subsequent circular, followed by a selection process interviews, which tests and involving written distinguishes their case from the appointments through back door entry as discussed in State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1. 7. The judgment in State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1 also distinguished between “irregular” and “illegal” appointments underscoring the importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case. Para 53 of State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1 is reproduced hereunder: illegally ‘53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore Vrs. S.V. Narayanappa, 1966 SCC OnLine SC 23, R.N. Nanjundappa Vrs. T. Thimmiah, (1972) 1 SCC 409 and B.N. Nagarajan Vrs. State of Karnataka, (1979) 4 SCC 507 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be W.P.(C) No.24975 of 2017 Page 10 of 41 in the and take State steps light of the considered on merits principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, their Governments the to should instrumentalities regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of that tribunals and should regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.’ further ensure 8. In the light of the reasons recorded above, this Court finds merit in the appellants’ arguments and holds that their service conditions, as evolved over time, warrant a reclassification from temporary to regular status. The failure to recognise the substantive nature of their roles and their continuous service akin to permanent employees runs counter to the principles of equity, intent behind fairness, and employment regulations.” the W.P.(C) No.24975 of 2017 Page 11 of 41 7.1. It is apt to refer to the anxious consideration shown by the Madras High Court in N. Karunanidhi Vrs. Union of India, W.P. No. 12887 of 2016, vide Judgment dated 22.04.2022 made with respect to exploitation of service. The following benevolent observation has been made by said Court in favour of employees, whose services have been utilized by the Government for a long time: “18. If for the Courts cannot give direction their regularisation of service, in the constrained legal scenario what other remedies that are available to these unfortunate employees, who have been engaged in service for public purpose, without having any definite future to hold on? These petitioners cannot be kept on the tenterhooks of their employment for years together, by brushing aside and discarding their concerned yearning future, with unresponsive indifference. for a definite that stand despite 19. A welfare State grounded on constitutional values, cannot come up with apathetic and continued callous employment of these petitioners for years together, no semblance of right is available to them. Such stand by the State is opposed to constitutional values as enshrined in Article 21 of the Constitution of India. The Courts of course have held that equal opportunity must be provided in public employment and entry through back door should be discountenanced. When Article 21, being violated by the State, action towards its servants, the consideration of the Government must primarily W.P.(C) No.24975 of 2017 Page 12 of 41 fully be focussed on alleviating legitimate grievances of its employees. Even assuming that the recruitment of in these writ petitioners had not been consonance with the procedure for appointment in Government services, the fact remained that these persons have been consciously appointed by the Government for implementing public projects and the work has been extracted from them continuously for several years. It is therefore, not open to the Government after a period of time to turn around and contend that these writ petitioners have no right at all to seek any kind of guarantee for their future. of a scheme/towards 20. In the opinion of this Court, continued employment for several years, even on a projects meant to serve the State as a whole, certain rights would definitely accrue to them, atleast to the extent of making a claim for formulation their absorption. This Court is quite conscious of the fact that the Government has been benevolent and had come up with several schemes in the past and directed regularisation of services of thousands of employees over a period of time. Such benevolence ought to permeate to the lowest levels to take within its sweep the desperate cry of the petitioners as well. As in the sublime words of the father of nation, Mahatma Gandhi, ‘A nation’s greatness is measured by how it treats its weakest members’. Merely because these writ petitioners have been employed in the projects, the policy makers may not shut their mind and close their eyes to their precarious plight having to serve public purpose but left in the lurch and unprotected, at the end of the day.” W.P.(C) No.24975 of 2017 Page 13 of 41
Decision
came to be disposed of vide Judgment dated 12.04.2023 [see, (2023) (I) ILR-CUT 906]. While directing the State of Odisha to implement the direction of the Single Judge “in letter and spirit”, this Court in the ultimate held as follows: to be “44. Going by the above legal position, in the present cases, at the highest, the respondents could be considered ‘irregularly’ appointed and therefore would, even on the touchstone of Umadevi (supra), be eligible for regularization. The law in M.L. Kesari (supra), has been reiterated in Amarkant Rai Vrs. State of Bihar, (2015) 8 SCC 265, Sheo Narain Nagar Vrs. State of U.P., (2018) 13 SCC 432 = AIR 2018 SC 233 and Rajnish Kumar Mishra Vrs. State of U.P., (2019) 17 SCC 648.” 7.13. Noticing the Judgment of the Hon’ble Supreme Court in the case of Secretary, State of Karnataka and Others Vrs. Umadevi (3), (2006) 4 SCC 1, in Niranjan Nayak Vrs. State of Odisha & Others, 2023 (I) OLR 407 the observation of this Court runs as follows: “12. Similarly, the case of Amarendra Kumar Mahapatra and Others Vrs. State of Odisha and in W.P.(C) No.24975 of 2017 Page 30 of 41 13.