The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.14873 of 2015 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Pilona Mohanty …. Petitioner(s) -versus- The State of Orissa & Ors. …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: : For Petitioner(s) M/s. Sanjib Mohanty, Adv. Mr. B. Biswal, Adv. Mr. S.C. Mohanty, Adv. For Opposite Party (s) : Mr. Tarun Kumar Patnaik, ASC for O.Ps.1, 2 & 3 M/s. Bijaya Kumar Dash, Adv. for O.Ps.4 & 5 CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-07.05.2024 DATE OF JUDGMENT: -25.06.2024 Dr. S.K. Panigrahi, J. 1. In filing this Writ Petition, the Petitioner has challenged the order dated 09.07.2015 passed by the Commissioner-cum-Secretary to the Government of Odisha, Housing and Urban Development Department thereby rejecting her representation dated 03.12.2014 for regularization of her service by conferring temporary status.
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 Page 1 of 12 2. Apart from the above challenge, the Petitioner has also sought for a direction from this Court to the Principal Secretary, Housing & Urban Development Department, Bhubaneswar/Opposite Party No.1 for regularizing her services by bringing her to the work charge establishment with all financial and consequential service benefit, from the date of regularization of services of other similarly situated employees. I. FACTUAL MATRIX OF THE CASE: 3. The brief fact of the case is that: (i) For the smooth management of the office work in the Office of the Special Planning Authority, the authority concerned published a notice for engagement of staff in the post of Jr. Clerk/Diarist/Typist etc. in order to assist one Prabhudatta Nayak, the then Jr. Clerk-cum-Typist. (ii) Thereafter, upon getting information about the said notice, the Petitioner along with others applied for the said post. Accordingly, after successfully qualifying in the test conducted for the said posts, the Petitioner on 02.04.1993 got appointment in the post of typist in the Office of the Special Planning Authority on daily wage basis. (iii) It is pertinent to mention here that after getting appointment while discharging her duties with utmost sincerity, since the Petitioner was not allowed to discharge her duties by the Special Planning Authority (Athagarh), Cuttack/Opposite Party No.5, she made a representation to the Principal Secretary to the Government of Odisha, Housing & Urban Development Department Opposite Party No.1. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 Page 2 of 12 (iv) Pursuant to the said representation/application at the instance of the Petitioner, the Opposite Party No.1 directed the Opposite Party No.5 to submit the relevant file of the Petitioner. Upon getting such file of the Petitioner and realizing that the services of the Petitioner is very much essential, the Opposite Party No.1 opined that a post should be created to absorb the present Petitioner. (v) Thereafter, the Petitioner was communicated to join in the Office of the Special Planning Authority, Athagarh in the post of Diarist/Typist/Jr. Clerk on daily wage basis. Accordingly, the Petitioner has been continuing in the said post till today. In fact, at a later stage on 26.02.1997 the Government through its appropriate Department made a communication to the Director, Municipal Administration/ Opposite Party No.2 thereby seeking his views regarding creation of a regular post of Diarist in the Office of the Special Planning Authority, Athagarh/Opposite Party No.5. The Opposite Party No.2, accordingly, made communications to the authorities concerned. Thereafter, the Director, Town Planning Odisha/Opposite Party No.3 requested the Opposite Party No.5 to furnish the required information relating to the above noted issue. Upon getting such communication, while submitting the entire documents the Opposite Party No.5 also stated therein that if the services of the Petitioner is regularized, there would be discontentment among the staff as the Petitioner was the junior most in the Office. Therefore, as per the order of the Government dated 29.04.1994 the Petitioner was appointed in the post of Diarist. Since the Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 Page 3 of 12 services of the Petitioner was not regularized, she made repeated representations to the authority concerned. (vi) Thereafter, upon completion of almost 16 years of service since the authorities concerned did not pay any attention to the request of the Petitioner, the Petitioner approached the Tribunal by filing O.A. No.120(C) of 2010 for regularization of her services. Accordingly, upon hearing the parties concerned, the learned Tribunal directed the Opposite Party No.5 to consider the grievance of the Petitioner. Despite the above order of the learned Tribunal, since the Opposite Party No.5 did not do anything. (vii) In the meantime, upon completion of almost twenty years in service, one day the Petitioner approached the Opposite Party No.5 for the above purpose. But, the Opposite Party No.5 intimated her that though she has been discharging her duties in the Office with almost sincerity with effect from the year 1993, her claim for regularization of her services cannot be accede to due to unavailability of sanctioned post in the Office. (viii) In the meantime, the Opposite Party No.2 communicated the Opposite Party No.5 for furnishing the required information for regularizing the services of the Petitioner as the Government through its appropriate Department wanted to regularize the services of the Petitioner. In that regard the Director, Town Planning, Odisha through its letter dated 03.08.2013 also requested the Principal Secretary, Housing & Urban Development Department, Government of Odisha for taking necessary steps regarding regularization of the services of the employees, who Page 4 of 12 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 had already completed twenty years of service and had been engaged prior to 12.04.1993. (ix) It is submitted that names of total ten numbers of employees working under the different Development Authority prior to 12.04.1993 along with other service particulars were sent to the Opposite Party No.1 for regularization of their services. The name of the Petitioner was placed in Sl.No.2 of the said list. (x) After getting the communication dated 03.08.2013 the Opposite Party No.1 wanted to know from the Opposite Party No.2 regarding the financial implication and from which source the expenditure would be met. Accordingly, the Opposite Party No.2 sent the service particulars to all the employees along with the recommendation to the Government, for regularization of the services of the DLR/NMR engaged in SPAs/RIT prior to 12.04.1993. (xi) Since the information sent by the Opposite Party No.2 was not clear, the Opposite Party No.1 through its letter No.35243/HUD BBSR dated 10.12.2013 again communicated back to the Opposite Party No.2 for giving the particulars regarding actual date of engagement of the NMR/DLR workers working in different Planning Authorities (RITs/SPASs) prior to 12.04.1993 along with financial implication in details. (xii) Later, on 09.01.2014 the Opposite Party No.5 wrote a letter that if the services of the Petitioner is regularized, she would get a salary of Rs.14,200/- in the particular scale of pay against the post held, which would be met out from the Revenue Account of SPA, Athagarh. Finally, Page 5 of 12 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 the Opposite Party No.2 requested the Opposite Party No.1 to regularize the services of all the DLR/NMR engaged in SPAs/RITs prior to 12.04.1993. Thereafter, in order to regularize the services of the NMR/DLR employees the Opposite Party No.1 sought for information from the Opposite Party No.2 regarding the category of the employees (whether SC/ST/Gen. etc.) engaged as NMR/DLR in the SPAs/RITs prior to 12.04.1993. Accordingly, the Opposite Party No.5 made a communication to the Opposite Party No.2 stating therein that the Petitioner belongs to general category and she has joined in service prior to 01.04.1993. (xiii) Upon getting information, the Opposite Party No.1 brought all the NMR/DLR employees to the work-charge establishment except the present Petitioner. Thereafter, the Petitioner wanted to know the reason of non-consideration of her case and she came to know that since she was disengaged for the period from 30.06.1993 to 29.04.1994 and reengaged on 30.04.1994, her case was not taken into consideration due to the resolution of the Finance Department bearing No.22764 dated 15.05.1997. She, accordingly, submitted a representation before the Opposite Party No.1 for reconsidering her case as she had already completed twenty years of service. (xiv) Since no decision was taken on the representation of the Petitioner, the Petitioner approached this Court through W.P.(C) No.1736 of 2015,
Decision
which was disposed of on 10.04.2015 directing the authority concerned to consider the grievance/representation of the Petitioner. After getting the said order of this Court, the Opposite Party No.1 rejected the Page 6 of 12 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 grievance of the Petitioner on the premises of her disengagement for the period from 15.07.1993 to 29.04.1994. Hence, this Writ Petition. II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 4. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions. (i) It is submitted that the Finance Department Resolution bearing No.22764 dated 15.05.1997 based on which the case of the Petitioner has been rejected, shows that for getting regularization the employee has to complete twenty years of service and has also to be engaged prior to 12.04.1993. He, accordingly, submits that the Petitioner fulfils both the criteria. He also submits that the Petitioner has no idea about her disengagement for the above noted period and she was not even communicated with the above fact. (ii) Learned counsel for the Petitioner also relied on two decisions of the Supreme Court in the case of Secretary, State of Karnataka and others v. Umadevi (3) and others 1 and in the case of State of Karnataka & others v. M.L. Kesari & others 2 and submitted that as the Petitioner has been continuing in service since 12.04.1993 without any adverse remark and even on temporary basis, her claim for regularization of her services should be considered as per the decision of the Supreme Court as she has already completed more than thirty years in service in the meantime. (iii) He, accordingly, prays for allowing this Writ Petition. 1 (2006) 4 SCC 1 Signature Not Verified 2 SLP(C) No.15774/2006 (Supreme Court) Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 Page 7 of 12 III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES : 5. Learned counsel for the State as well as learned counsel for the Opposite Party Nos.4 and 5 in one tone concede to the statement made by the learned counsel for the Petitioner. (i) It is submitted that, as reported by the Director, Town Planning, Odisha, Bhubaneswar, the Petitioner Smt. Pilona Mohanty was engaged as D.L.R. In the post of Diarist on 02.04.1993 and as per the decision in the 1st Special Planning Authority Committee Meeting held on 30.06.93, the Petitioner was disengaged with effect from 15.7.1993. Again the Petitioner has been engaged as D.L.R. since 30.04.1994, as per the instructions of the O.P.No.1 i e Government in Housing & Urban Development Department, Odisha vide letter No.12972/HUD., dated 29.04.1994. (ii) As per Finance Department, Odisha Notification No.31715/F., dated04.09.2012, the services of DLR /NMR employees engaged in the S.P.A. and Improvement Trusts prior to 12.04.1993 have been regularized by the Government in Housing & Urban Development Department. vide Letter No. 22653/HUD dated 13.11.2014. (iii) Being aggrieved on the decision of the Housing and Urban Development Department vide letter No.22653/HUD dated13.11.2014 under annexure II, the Petitioner filed a Writ Petition before this Court vide W.P (C) No.1736 of 2015. This Court passed order dated 10.4.2015 Page 8 of 12 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 directing the O.P.No.1 to consider the representation of the Petitioner and to pass appropriate order within a period of 3 months on the merit of the case. As per the direction of this Court, the representation of the Petitioner dated 3.12.2014 under Annexure - 22 of the Writ Petition has been disposed of by the O.P.No.1 vide order No.17314/HUD dated 09.07.2015.. (iv) He further submitted that the case of the Petitioner could not be confirmed for Work Charged establishment or Temporary status as the Petitioner does not fulfill the eligibility criteria of the Finance Department Resolution No.31715/F., dated 04.09.2012. (v) It is submitted that, as reported by the Director, Town Planning, Odisha, Bhubaneswar, neither was any notice published in Notice Board nor was any selection made for engagement of staff to absorb the Junior Clerk-cum-Typist of Special Planning Authority, Athagarh. The Petitioner suo-moto applied for engagement in a plain application dated 15.03.1993 and was appointed as DLR employee. (vi) Considering the application, the petitioner was engaged as DLR on 02.04.93 and subsequently disengaged on 14.07.93 as per the decision of S.P.A. Committee meeting. Again the petitioner was engaged on 30.04.94 as per the instruction of the Government in Housing & Urban Development Department. (vii) It is further submitted that, as reported by the Director, Town Planning, Odisha, Bhubaneswar, the OP No.5 had forwarded the affidavit to the OP No.3 as submitted by the petitioner, but nothing was mentioned by the OP. No.5 regarding the joining of the petitioner prior to 01.04.1993. Page 9 of 12 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 However, the petitioner has mentioned in the said affidavit that she had joined in the service on 01.04.1993, which is not correct. IV. COURT’S REASONING AND ANALYSIS: 6. The Petitioner was initially appointed as a Typist on 02.04.1993 in the Office of the Opp. Party No.5 and she has been working till date under Opp. Party No. 5 in the post of Senior Clerk. The petitioner who has discharged her duties for more than 31 years continuously, her claim for regularisation cannot be thrown away. As the work is perennial in nature and the petitioner who is now a graduate has requisite qualification and she is continuing in the service since 02.04.1993, it undoubtedly shows that there was requirement of her work in the concerned office. 7. A similar case was dealt by the Apex Court in Dulu Devi Vs. State of Assam & Others3, the Apex Court in Para-15 has observed: “In our considered opinion/ the approach of the High Court is not in accordance with law. The services of a teacher who has been working for the last 25 years shall not be assumed to have been terminated and deprived of from her legitimate claim.” 8. Moreover, the Opp. Parties have admitted that the Petitioner was appointed on 02.04.1993 and it is also unequivocally admitted that in the Selection List of DLRs/NMRs/Job Contract Workers who were engaged prior to 12.04.1993 and worked for more than 20 years, including the name of the petitioner was reflected in Serial No.2. The 3 2016(1) SCC 622 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 Page 10 of 12 only plea taken by Opp. Parties is that as the petitioner got disengaged from 15.07.1993 to 29.04.1994 and re-engaged on 30.04.1994, her case was not taken into consideration for regularisation. 9. Additionally, without any notice or intimation to the petitioner she was disengaged from service to portray that period to be a break period. Unfortunately, the said order was kept in the file of the Opp. Party No.5 and never communicated to the petitioner. Her stance has been further emboldened by Dulu Devi v. State of Assam (supra), the Supreme Court in Para- 16 and Para-17 has held that the order of termination without communication shall not have any effect. 10. In a similar matter, this Court in Rajib Lochan Mahanta Vs. Vice- Chancellor, Utkal University and others4 has observed: "In Dulu Devi (supra), the Apex Court held that mere passing of an order of dismissal or termination would not be effective unless it is published and communicated to employee concerned. Merely a decision was taken by the Syndicate and an order was passed and kept in file, need not be treated as order of disengagement/termination from service as the said order was not communicated to the petitioner." 11. Further, in Narendra Kumar Tiwari & Others v. State of Jharkhand & Others5, the Supreme Court in Para-11 has observed as follows: "……under the circumstances/ we are of the view that the Regularization Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularization Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of 4 2021(Supp.) OLR-552 5 2018 AIR (SC) 3589 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 Page 11 of 12 service they should be regularized unless there is some valid objection to their regularization like misconduct etc." 12. Considering the submissions made on behalf of all the parties, looking to the factual scenario of the case and keeping in view the precedence of the Supreme Court in the case of State of Karnataka & others (supra) and Secretary, State of Karnataka and others (supra), this Court is of the view that since the Petitioner has already completed more than 30 years in service, her claim for regularization of her services deserves to be considered and steps to be taken immediately to regularize the Petitioner. 13. In such view of the matter, this Court directs the Opposite Parties to take appropriate steps for regularization of the services of the Petitioner with all service benefits within a period of one month from the date of presentation of an authenticated copy of this order. 14. This Writ Petition succeeds. No order as to costs. Judge (Dr. S.K. Panigrahi) Orissa High Court, Cuttack, Dated the 25th June, 2024/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Jul-2024 16:36:06 Page 12 of 12