The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.22358 of 2021 Krushna Chandra Behera Petitioner Mr. B.S. Tripathy (1), Advocate being assisted by Mr. AtulTripathy, Advocate …. State of Odisha&another …. Opposite Parties -versus- Ms.Saswata Pattnaik, AGA Order No. 05. CORAM: HON’BLE MR. JUSTICE MURAHARI SRI RAMAN ORDER 09.07.2024 This matter is taken up through Hybrid Mode. 2. This writ petition has been filed seeking for grant of following relief(s):- ii) “On the facts and in the circumstances stated above, your petitioner, therefore, prays that this Hon’ble Court be pleased to; i) quash the impugned order dt.18.06.2021 of the opp.party No.2 in Annexure-7 by holding the same as bad, illegal and vulnerable in the eye of law; and thereby direct opp.party No.2 to forthwith issue formal order in favour of the petitioner regularizing his services as Driver in its establishment with effect from the date of his completing six years of contractual services in the scale of pay PB-1-Rs.5,200-20,200/- + GP Rs.1900/- with usual allowances admissible from time to time as per GA Department Resolution dt.17.09.2013 and in the same manner as in Annexure-4 Series and Annexure-5 Series and as per the law laid down by the Apex Court in the case of State of Karnataka vs. Umadevi (3), reported in (2006) 4 SCC 1, State of Karnataka vs. M.L. Kesari, reported in (2010) 9 SCC 247 and recent decision of this Hon’ble Court as finally upheld by Apex Court vide order dt.30.06.2021 in SLP(C) No.6851 and 6868 of 2021 in Annexure-10;” Page 1 of 12 3.
Decision
This writ petition was earlier disposed of by this Court vide order dated 16.09.2021 at the stage of admission. The said order is reproduced here-in-below:- “Heard learned counsel for the parties. 2. It is agreed by learned counsel for the parties that the issue involved in this case is analogous to one involved in W.P.(C) No.19951 of 2020, which has been allowed on 09.09.2021 by this Court. 3. Therefore, in view of the reasons stated in the detailed judgment dated 09.09.2021 passed in W.P.(C) No.19951 of 2020, this writ petition is allowed. 4. The opposite parties are directed to regularize the services of the petitioner and grant all consequential service and financial benefits in accordance with law as expeditiously as possible, preferably within a period of two months from the date of communication of this order.” 4. Being aggrieved by the aforesaid order, the opposite parties- State have preferred an intra-Court appeal bearing W.A. No.192 of 2022, wherein a Division Bench of this Court passed the following order:- The impugned order was passed on the very first date of “1. hearing without an opportunity to the present Appellants to file a reply. On that short ground, the impugned order dated 10th 2. September, 2020 is hereby set aside and W.P.(C) No.22358 of 2021 is restored to the file of the learned Single Judge in the roster Bench, where it will be listed for hearing on 4th September, 2023. The present Appellants, who are the Opposite Parties in the writ petition, will file their para-wise reply to the petition on or before 21st August, 2023 and the present Respondent, who is the writ Petitioner, will file a rejoinder thereto on or before 4th September, 2023. No further adjournment will be granted to either party for the above purposes. The learned Single Judge is requested to proceed with the matter on merits and dispose it of as expeditiously as possible. 3. urgent certified copy of this order as per rules.” The writ appeal is disposed of in the above terms. Issue Page 2 of 12 5. The case of the petitioner, in brief, is that pursuant to the order vide Letter No.581 dated 01.03.1994 issued by the Block Development Officer, Pipili, he was engaged as temporary Driver on daily wage basis with effect from 01.03.1994 against leave vacancy qua Regular Driver in Pipili Block. The said engagement of the petitioner was initially for a period of 44 days basis and the same was approved by the Collector, Puri allowing officiating arrangement on 44 days basis from 01.03.1994 vide District Office Letter No.2195 dated 05.04.1994. During his continuance as such, the petitioner made a representation to the Block Development Officer, Pipili for his regular appointment and the Block Development Officer, Pipili vide his Letter No.07 dated 03.01.2006 forwarded the said representation of the petitioner for his regular appointment, but no decision on the same was taken and the petitioner was allowed to continue on daily wage basis. During such continuance of the petitioner on 44 days basis, the Government of Odisha promulgated a policy for regularization of services of existing contractual Group-C and Group-D employees working under the State Government vide G.A. Department Resolution No.26108-GAD-SC-RULES-0009-2013/Gen., dated 17.09.2013. In the said Resolution it was decided that on the date of satisfactory completion of six years of contractual service or from the date of publication of the said Resolution, whichever is earlier, they shall be deemed to have been regularly appointed and a formal order of regular appointment shall be issued by the appointing authority. Basing on the said Resolution dated 17.09.2013, the similarly situated Drivers, namely, Narayan Sethi, Sarat Kumar Page 3 of 12 Sahoo and Premakanta Prusty, who have entered into contractual service with effect from 22.01.2009, 05.10.2009 and 06.10.2009 were regularized after completion of six years of continuous service with effect from 22.01.2015, 05.10.2015 and 06.10.2015 respectively. Since the grievance of the petitioner has not been considered by the opposite parties, he approached this Court by filing a writ petition bearing W.P.(C) No.8662 of 2021 seeking a direction to opposite party no.2 to issue formal order in his favour regularizing his service as Driver in Pipili Block establishment with effect from the date of his completing six years of temporary consolidated contractual services in the scale of pay PB-1-Rs.5,200- 20,200 + GP Rs.1900/- with usual allowances admissible from time to time as per G.A. Department Resolution dated 17.09.2013. This Court vide order dated 05.03.2021 disposed of the said writ petition and passed the following order:- “Heard learned counsel for Petitioner and learned State Counsel for the Opposite Parties. The Petitioner has filed this application seeking for a direction to the Opposite Parties to regularize his services taking into account his continuous service of more than 20 years, as has been done in favour of the other similarly situated persons as per Government Circular and in terms of the principle decided in Secretary State of Karnataka and Others v. Umadevi (3) and Others (2006) 4 SCC 1 and in State of Karnataka & others Vrs. M.L. Kesari& others involving SLP(C) No.15774/2006. Learned counsel for the Petitioner submits that the Petitioners were engaged on daily wage basis. He has already rendered more than 20 years of service under the Opposite Parties and therefore, seeks for regularization of services in view of the judgment passed by the Hon’ble apex Court in Secretary State of Karnataka and others v. Umadevi (3) and others (2006) 4 SCC 1 and in State of Karnataka & others Vrs. M.L. Kesari& others involving SLP(C) No.15774/2006. Considering the contentions raised by the learned counsel for the Petitioner and after going through the records, it Page 4 of 12 appears that the Petitioner has rendered service for more than 20 years on daily wage basis. Therefore, the case of the Petitioner is squarely covered by the ratio decided in the cases cited supra. In that view of the matter, this Court disposes of this Writ Petition directing the Opposite Parties to W.P.(C) No.8662 of 2021 2 Ayas consider the case of the Petitioner and regularize his services keeping in view the judgment in the case of Secretary State of Karnataka and others v. Umadevi (3) and others (2006) 4 SCC 1 and in State of Karnataka & others Vrs. M.L. Kesari& others involving SLP(C) No.15774/2006 and also the resolution of the G.A. Department dated 17.09.2013, within a period of four months from the date of communication of a copy of this order by the Petitioners and grant consequential service benefits as due admissible to them. It is further directed that in the event the Petitioner is still continuing in service, status quo as on today in respect of the service position of the Petitioner shall be maintained till a decision is taken in the matter by the Opposite Parties in terms of the above direction.” Thereafter, the opposite party no.2 without waiting for the order of the opposite party no.1, who is the competent authority to comply with the direction as per G.A. Department Resolution dated 17.09.2013 read with 16.01.2014, passed order and communicated through Memo No.1283 dated 18.06.2021 rejecting the claim of the petitioner with the following observation:- “In obedience to the order of the Hon’ble High Court passed in the Writ Petition (C)No.8662/2021 filed by the petitioner for regularization of his services in the post of Driver at Pipili Block and the logical facts as summaried above, the case of the petitioner Sri Krushna Chandra Behera has no legal sustenance nor legally tenable and legitimate ground of merits for consideration towards regularization of his services and hence liable to be rejected. Accordingly, his case for regularization of his services in the post of Driver at Pipili Block is not considered.” Being aggrieved by the aforesaid order of the opposite party no.2, the petitioner has filed the present writ petition. Page 5 of 12 6. Mr. B.S. Tripathy, learned counsel for the petitioner submitted that the order of refusal to regularize the service of the petitioner in the post of Driver is untenable in view of numerous decisions rendered by this Court basing on the principles laid down by the Hon’ble Supreme Court. Petitioner has been serving the Government and discharging his duty as a Driver since 1994 and by now, he has rendered more than 29 years of service. 7. Ms. Saswata Pattnaik, learned Additional Government Advocate reiterating the stand taken in the counter affidavit, submitted that the petitioner was initially engaged against a leave vacancy and his services were extended from time to time on 44 days basis. Since the petitioner was working on daily wages basis without contractual engagement, the appointing authority having not engaged him following recruitment process, the petitioner is not found to be eligible for regularization in service. 8. Heard the learned counsel for the parties and considered the materials available on record. This Court finds that the petitioner has been engaged and his services are utilized by the authority concerned. He has been discharging his duty as a driver. It is not disputed by either of the parties that the petitioner has been continuing as such till date. It is peculiar to notice that even after the services of the petitioner have been utilized for around 29 years, the authorities have failed to grant him the due. The contention of the learned counsel for the opposite parties that since the petitioner was not engaged against any vacant post, even though initially he was engaged to work against a leave vacancy, he is not entitled for regularization, is to be repelled inasmuch as the petitioner has been Page 6 of 12 discharging duty of a driver and getting payment on account of services as such since 29 years. Therefore, it is unwholesome for the counsel for the opposite parties to submit that the petitioner was not working against vacant post. In a similar set of circumstances, where a driver had completed 29 years of service and was not engaged against a vacant post, this Court considered such continuance to be against “availability of vacancy”. In this regard, relevant portion of order dated 02.08.2022 passed by a Division Bench of this Court in W.P.(C) No.19767 of 2019 (State of Odisha and others v. P. Prasanna Kumar Patro),is quoted hereunder:- “Having heard learned counsel for the parties and after going through the records, it appears that the Opposite Party was appointed on DLR basis to discharge his duty as Junior Engineer in the Office of Executive Engineer (Mechanical), Rural Works (Mechanical) Division. It is also admitted that on the basis of recommendation made by the Chief Engineer, Rural Works, he was appointed on DLR basis and continued for years together. In the meantime, he has completed 29 years of service. If he was not appointed against the vacant post and continued for a long tenure, it ipso facto shows that there is availability of vacancy, against which the Opposite Party is continuing. Therefore, the ground taken by the State-Petitioners that appointment of the Opposite Party was against non-vacant post, cannot have any justification and as such, his appointment cannot be said to be illegal, rather it can be termed as irregular. Therefore, the principle decided by the apex Court in Uma Devi(3) and M.L. Keshasri (supra) is squarely applicable to the present case. So also in the judgement of the apex Court in AmarakantaRai vs. State of Bihar,(2015) 2 SCC (L&S) 679, reference has been made to the judgment of M.L. Keshasri and others (Supra), wherein in Clause-ii, the apex Court held that 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 appointments will be considered to be illegal. But in the present case, the Opposite Party has requisite qualification and he is continuing for last 29 years. His long continuance of service prescribed minimum qualifications, the Page 7 of 12 against the post clearly indicates there is requirement of work to be discharged by him and as such, such requirement is for the public interest. Now, it cannot be said that since he has not discharged his duty against sanctioned post, his service cannot be regularized. Rather, taking into consideration the long service rendered by him, the benefit of regularization has to be extended to him. Therefore, the Tribunal on the basis of para-8 of the Judgement of the apex Court in SheoNarain Nagar-Vrs- State of Uttar Pradesh and others, AIR 2018 SC 233, has directed the Petitioners to regularize the services of the Opposite Party.” 9. In W.A. No.1799 of 2022 (State of Odishaand another v. Suchitranjali Roy and another), a Division Bench of this Court has made the following observations:- “5. It has also been submitted by Mr.Tripathy that taking into consideration the judgments of the apex Court in Secretary, State of Karnatak v. Uma Devi (3) and others, (2006) 4 SCC 1; State of Karnatak v. M. L. Keshari and others, (2010) 9 SCC 247; AmarakantaRai v. State of Bihar, (2015) 2 SCC (L&S) 679; and SheoNarain Nagar v. State of Uttar Pradesh and others, AIR 2018 SC 233, this Court directed the authority concerned to regularize the services of Opposite Party in W.P.(C) No.19767 of 2019 (State of Odisha v. P. Prasanna Kumar Patro). 6. On perusal of record, it appears that Respondent no.1 is continuing in service since 8th February 1996, that itself clearly indicates that post is existing, against which she is discharging her responsibility and for that she has been paid from the State Exchequer. Thereby, the contention raised by the Appellants that Respondent no.1 is not continuing in a sanctioned post, cannot be sustained in the eye of law. Respondent no.1 has discharged her duties and responsibility for a long period by the time the impugned order dated 19th October, 2022 was passed, even the said order was passed in presence of the learned State counsel. As such, the order dated 19th October, 2022 has been passed on agreement. Therefore, at this stage the Appellants cannot raise such contention.” In W.A. No.862 of 2021 (Engineer-in-Chief, Public 10. Health, Odisha, Bhubaneswar v. NandaNaik& others), a Division Bench of this Court taking similar view, held as follows:- “4. On perusal of the records, it appears from page-32 of the brief, the Gradation list of HR/DLR engaged after 12.04.1993, Page 8 of 12 wherein the name of respondent no.1 has been indicated at Sl.No.203 showing that he joined in service on 01.06.1999 as Operating Pump Motor & Sluice Valve at Kalinga Nagar under the category of skilled worker. This document has been attested by the Superintending Engineer (P.H), office of the EIC P.H., Odisha, Bhubaneswar. When this document was confronted, learned Additional Government Advocate candidly admitted that respondent no.1 had joined in service on 01.06.1999. If that be so, the contention raised by learned Additional Government Advocate that respondent no.1 has served for less than 10 years has been dislodged by the document filed by the appellant. So far as second contention raised by the learned Additional Government Advocate, that respondent no.1 is not holding any sanctioned post, is concerned, learned Single Judge has already held that in the event respondent no.1 is holding a non- sanctioned post, steps may be taken in sanctioning the post keeping in view his long continuance, as expeditiously as possible, preferably within a period of three months from the date of communication of the order. But fact remains, if respondent no.1 is continuing in service from 01.06.1999, that itself clearly indicates that post is existing, against which he is discharging his responsibility and for that he has been paid from the State Exchequer. Thereby, the contention raised by the learned Additional Government Advocate, that respondent no.1 is not continuing in a sanctioned post, cannot be sustained in the eye of law. Respondent no.1 has discharged his duties and responsibility for a period of 21 years by the time the order dated 30.03.2021 was passed, even if the said order was passed in presence of the learned State Counsel. As such, the order dated 30.03.2021 has been passed on agreement. Therefore, at this stage learned Additional Government Advocate cannot raise such contentions. 11. In a case, where the petitioner was continuing on 44 days basis, this Court while directing the opposite parties to take steps for absorption of the petitioner in a regular establishment, made the following observation:- “4. It is contended that the Petitioner was appointed on 44 days basis as a peon in the Office of Opp. Party No.3 w.e.f. 21.08.1995. Even though since 21.08.1995, the Petitioner is continuing on 44 days basis, but no step was taken by the concerned authority to absorb the Petitioner in the regular establishment. It is also contended that in spite of such long continuance on 44 days basis, the Petitioner was never Page 9 of 12 allowed the benefit of regular scale of pay as provided under different relevant Rules, save and except receiving he minimum f the pay scale under different ORSP Rules. 4.1. It is contended that in view such long continuance w.e.f. 21.08.1995, it is to be held that the Petitioner is continuing as against a substantive vacant post and the authorities are required to regularize the services of the Petitioner. 6. Having heard learned counsel for the parties and after going through the materials available on record, this Court taking into account the long continuance of the Petitioner w.e.f 21.08.1995 on 44 days basis, is of the view that the Petitioner is continuing as against a substantive vacant post. Placing reliance on the decision of the Hon’ble Apex Court in the case of State of Karnatak vs. M.L.Keshari, (2010) 9 SCC 247,Nihal Singh & Others vs. State of Punjab & Others, 2013 (14) SCC 65 as well as the decision of this Court in the case of Prasanna Ku. Mishra Vs. State of Odisha& Others, this Court while disposing the Writ Petition, directs Opp. Party No.2 to take effective step for absorption of the petitioner in the regular establishment within a period of two months from the date of receipt of this order. On such regularization of the Petitioner, the pay of the petitioner should be fixed in accordance with different ORSP Rules and the financial benefits shall also be extended.” 12. This Court is persuaded to consider the fact that in pursuance of order dated 28.03.2022 passed in WPC (OAC) No.1385 of 2018, the appointing authority regularized the services of a driver engaged on daily wages basis. This Court feels it apt to reproduce such order for ready reference:- “OFFICE OF THE COLLECTOR & DISTRICT MAGISTRATE, BALASORE (Establishment Section) Order No.105/IVM-08/2023/Estt. Date.21.03.2024 Whereas, the Hon’ble High Court, Orissa, Cuttack passed Order No.01, Dated 28.03.2022 in WPC(OAC) No.1385/2018, wherein the Hon’ble High Court directed the Opposite Party No.-2 i.e. Collector, Balasore to consider the case of petitioner afresh in the light of judgment referred herein above and in the event it is found that there is no serious allegation of any misconduct/dereliction of duty then the petitioner should be regularized in the vacant post of driver against which he was appointed on daily wage basis. Page 10 of 12 Whereas, the Hon’ble High Court, Orissa, Cuttack passed Order No.01, Dated-23.09.2022 in CONTC No.5738/2022 (Ganesh Chandra Pradhan –Vrs- DattatrayaBhausahebShinde, (OAC) IAS, Collector, Balasore) arising out of WPC No.1385/2018 with granting one month further time to Opposite Party/Contemnor to comply the order passed on 28.03.2022. Whereas, the Hon’ble High Court, Orissa, Cuttack passed Order No.06, Dated-01.12.2023 in CONTC No.7189/2022 (Ganesh Chandra Pradhan –Vrs-DattatrayaBhausahebShinde, IAS, Collector, Balasore) arising out of WPC (OAC) No.1385 of 2018 with direction to the Opposite Party Contemnor to comply with the order by 31.12.2023. In obedience to the above orders of Hon’ble High Court, Orissa, Sri Ganesh Chandra Pradhan, Daily wages Driver, SadarBlock,Balasore is hereby regularized in the post of driver against which he was appointed on daily wages basis in Level- 04 of Pay matrix under ORSP Rules-2017 with usual DA & other allowance as applicable from time to time. Terms & Conditions 1. The appointment is purely temporary and can be terminated at any time without any notice and without assigning any reason thereof and subject to receipt of clarification in PR & DW Department, Odisha. from Government 2. Annual increase of remuneration is subject to satisfactory performance. 3. He will be enrolled under New Pension Scheme (NPS). This order cannot be treated as precedent for any other similar cases.” 13. Considering the aforesaid view expressed by this Court and taking cognizance of the fact that similarly circumstanced driver engaged on daily wages basis has been considered for regularisation in service, this Court, therefore, directs the opposite party no.2 to consider the case of the petitioner in the light of the discussion made above and take effective steps for regularization of the petitioner in his service and extend consequential service benefits within a period of three months from the date of receipt of this order. Page 11 of 12 14. With the aforesaid observation and direction, this writ petition stands disposed. MRS (M.S. Raman) Judge Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Jul-2024 18:56:50 Page 12 of 12