The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.19569 of 2024 An application filed under Articles 226 and 227 of the Constitution of India. Maheswar Mohanta ..... Petitioner Mr. Ranjit Mohanty, Adv. -versus- State of Odisha & Ors. ..... Opposite Parties Mr. D.K. Sahoo, A.G.A. for the State-O.Ps. Mr. Ashutosh Mohanta, Adv. for O.P. No.4- Municipality CORAM: JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of Hearing : 04.04.2025 | Date of Judgment: 04.04.2025 ______________________________________________________ A.K. Mohapatra, J. : 1. Heard learned counsel for the Petitioner as well as learned Additional Govt. Advocate for the State-Opposite Parties and learned counsel appearing for the Opposite Party No.4- Keonjhargarh Municipality. Perused the pleadings of the Page 1 of 12 respective parties as well as the documents annexed to such pleadings. 2. The present writ application has been filed by the Petitioner with a prayer for a direction to the Opposite Party No.2 to regularize the service of the Petitioner under Opposite Party No.4 from the date of his initial contractual appointment. 3.
Facts
The factual background of the present writ application leading to filing of the present writ application, in short, is that initially the Petitioner was appointed on daily wages on 16.10.2000 by the Opposite Party No.4. Learned counsel for the Petitioner further contended that the Petitioner was being engaged on daily wage basis from time to time. He further contended that finally vide memo No.2759/KGM dated 22.09.2012 the Petitioner was appointed on contractual basis on a consolidated monthly remuneration of Rs.5000/- as a cesspool driver under the Keonjhargarh Municipality. Since the date of his contractual appointment w.e.f. 22.09.2012 the Petitioner has been working uninterruptedly to the satisfaction of the authorities. Learned counsel for the Petitioner further contended that although there are vacancies in the substantive Page 2 of 12 post. However, the service of the Petitioner has not been regularized by the Opposite Party No.4, Keonjhargarh Municipality. Being aggrieved by such inaction on the part of the Opposite Party No.4, the Petitioner had earlier approached this Court by filing W.P.(C) No.13787 of 2021. A Coordinate Bench of this Court, vide order dated 09.06.2021, disposed of the aforesaid writ application with a direction to regularize the service of the Petitioner within a period of three months from
Legal Reasoning
as well as keeping in view the direction given by this Court in the earlier writ application vide order dated 09.06.2021 under Annexure-3, this Court has no hesitation to quash the impugned order dated 13.08.2021 under Annexure-5 to the writ application. Accordingly, the same is hereby quashed. Further, the Opposite Party No.2 is directed to gives his concurrence to the Opposite Party No.4 for regularization of the service of the Petitioner in terms of order dated 09.06.2021 within a period of Page 11 of 12 four weeks. After getting concurrence from the Opposite Party No.2, the Opposite Party No.4 shall do well to regularize the service of the Petitioner within a period of four weeks. It is needless to mention here that consequent upon such regularization, the Petitioner would be entitled to all consequential service and financial benefits as is due and admissible to the Petitioner. 14. With the aforesaid observations/ directions, the Writ Petition stands allowed. However, there shall be no order as to cost. Orissa High Court, Cuttack The 04th April, 2025/ Anil/ Jr. Steno (A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 05-Apr-2025 16:02:29 Page 12 of 12
Arguments
the date of passing of order dated 09.06.2021. Learned counsel for the Petitioner further contended that the order dated 09.06.2021 has attained finality in the meantime since the same was not challenged further by the Opposite Parties. 4. In course of his argument, learned counsel for the Petitioner further submitted that after disposal of the earlier writ application vide order dated 09.06.2021, the case of the Petitioner was duly considered by the Opposite Party No.2. Thereafter, by virtue of order dated 13.08.2021, under Annexure-5 to the writ application, the prayer of the Petitioner for regularization of his service has been rejected. Being aggrieved by such rejection order, the Petitioner has approached this Court by filing the present writ application. Page 3 of 12 5. Learned counsel appearing for the Keonjhargarh Municipality, Opposite Party No.4 on the other hand by referred to the counter affidavit filed by the Opposite Party No.4 and submitted that the Opposite Party No.4 is not disputing the fact that the Petitioner was engaged on contractual basis by virtue of the order under Annexure-7 to the rejoinder affidavit. He further contended that such appointment was on temporary basis and the same is liable to be cancelled at any time without giving any notice to the Petitioner. He further contended that although the Petitioner was discharging his duties on being appointed on contractual basis, however, the Opposite Party No.4 is not the competent authority to regularize the service of the Petitioner. The counter affidavit further reveals that the Opposite Party No.4 has stated that they had no authority to take any decision with regard to the regularization of the service of the Petitioner, however, if the State Government takes any appropriate action for regularization of the service of the Petitioner, the Opposite Party No.4 is ready and willing to comply with and implement the order of the State Government. On such grounds, learned counsel for the Opposite Party No.4, Municipality contended Page 4 of 12 that the Opposite Party No.4 is not the competent authority to take a decision on the prayer of the Petitioner. Accordingly, the present writ application is not maintainable against the Opposite Party No.4. 6. Learned Additional Govt. Advocate on the other hand contended that after disposal of the earlier writ application by the Coordinate Bench, vide order dated 09.06.2021, the Petitioner was informed by the Deputy Collector, Judicial, Collectorate, Keonjhar vide notice dated 09.08.2021, under Annexure-4, to appear before the Collector, Keonjhar for personal hearing. He further submitted that after taking into consideration the grounds raised by the Petitioner and keeping in view the records, the prayer of the Petitioner for regularization of his service has been rejected vide order dated 13.8.2021, under Annexure-5 to the writ application, by passing a speaking and reasoned order. Further, referring to the impugned rejection order, learned Additional Govt. Advocate contended that the Petitioner had not completed 10 years of service by the time his prayer for regularization was taken up for consideration by the Opposite Party No.2. An additional ground was also raised that the Petitioner was not appointed Page 5 of 12 prior to the cut-off date i.e. 12.04.1993 and that the Petitioner was not working against any sanctioned post. The impugned rejection order also refers to Finance Dept. Resolution dated 15.05.1997. Learned counsel for the State submitted that since the Petitioner was not found eligible in terms of the said Resolution, his case was not considered by the Opposite Party No.2. In such view of the matter, learned counsel for the State contended that the Opposite Parties have not committed any illegality in rejecting the prayer of the Petitioner for regularization of his service. 7. Having heard the learned counsels appearing for the respective parties, on a careful analysis of their submissions, further on a certain scrutiny of the pleadings of the respective parties, this Court found that the Petitioner, who was working on contractual basis under the Opposite Party No.4, on being duly appointed by virtue of the appointment order under Annexure-7 to the rejoinder affidavit, has approached this Court for regularization of his service. It is not disputed by the parties that initially the Petitioner was engaged on daily wage basis in the year 2000. However, learned counsel for the Petitioner has failed to establish the fact that the Petitioner was Page 6 of 12 discharging duties continuously since the year 2000 without any break and there no such material on record to accept such contention of the learned counsel for the Petitioner. However, it is not disputed by the parties that the Petitioner was initially appointed on contractual basis w.e.f. 22.09.2012. Such fact is evident from the order dated 13.08.2021 under Annexure-A/4 to the counter affidavit which has also been annexed to the writ application as Annexure-5. 8. As has been discussed hereinabove, the Petitioner had earlier approached this Court by filing W.P.(C) No.13787 of 2021. A Coordinate Bench of this Court vide order dated 09.06.2021 disposed of the aforesaid writ application by referring to the judgment of the Hon’ble Supreme Court in the case of State of Karnataka v. Umadevi, reported in 2006 (4) SCC 1 and State of Karnataka and others v. M.L.Keshari and others, reported in 2010 (II) OLR (SC) 982 disposed of the writ application with a direction to the Opposite Parties to regularize the service of the Petitioner within a period of three months from the date of passing of the order dated 09.06.2021. It is also not disputed that order dated 09.06.2021 has not been challenged further. In fact, the order dated 09.06.2021 has been Page 7 of 12 given effect to by the Opposite party No.2 by providing an opportunity of hearing to the Petitioner pursuant to the notice dated 09.08.2021 under Annexure-4 to the writ application. Therefore, there is no doubt that the order dated 09.06.2021 has attained finality in the meantime. 9. Considering the order passed in the earlier writ application, this Court is of the view that there was a clear direction to the Opposite Parties to regularize the service of the Petitioner within a period of three months from the date of communication of the order dated 09.06.2021. Therefore, the impugned order under Annexure-5, which has also been filed along with the counter as Annexure-A/4, appears to be an illegal order on the face of the order dated 09.06.2021 passed in W.P.(C) No.13787 of 2021. Once this Court has directed the Opposite Parties to regularize the service of the Petitioner, it was not open to the Opposite Party No.2 to either review or sit in appeal over the order dated 09.06.2021 passed in the previous writ application. The impugned rejection order dated 13.08.2021 clearly reveals that the Opposite Party No.2 has passed the order as if the Opposite Party No.2 is sitting in appeal over the order passed by this Court. It is needless to Page 8 of 12 mention here that in the event the Opposite Parties were aggrieved by order dated 09.06.2021 passed in the previous writ application, they should have preferred an appeal against such order. Since no such appeal has been preferred and the order dated 09.06.2021 was allowed to attain finality, the Opposite Parties are bound by the direction contained in the order dated 09.06.2021 to the extent that the service of the Petitioner should have been regularized in the manner as has been directed by the Coordinate Bench in the previous writ application. Reverting back to the merits of the matter, this Court, on a careful scrutiny of the counter affidavit filed by the Opposite Party No.4, Municipality, found that the said Opposite Party has not seriously disputed the prayer of the Petitioner for regularization of his service. Moreover, the counter affidavit reveals that the Opposite Parties have categorically stated that in the event the Government gives it concurrence, they are ready and willing to implement the order of this Court by regularizing the service of the Petitioner. 10. Although no counter affidavit has been filed by the State-Opposite Parties, it is pertinent to mention here that the learned Addl. Govt. Advocate at the time of hearing, prayed for Page 9 of 12 time to file a counter affidavit. On a perusal of the impugned rejection order, this Court observes that no counter affidavit by the State-Opposite Parties would be required as the employer i.e. Opposite Party No.4 has already filed a detailed counter affidavit and the stand of Opposite Parties is very clear from the grounds of rejection mentioned in the order dated 13.08.2021 under Annexure-5 to the writ application. 11. On a careful analysis of the impugned order dated 13.08.2021, this Court observes that the grounds taken by the Opposite Party No.2 while rejecting the prayer of the Petitioner is unsustainable in law inasmuch as there was a direction by this Court to regularize the service of the Petitioner. In addition to the above, this Court also observes that the Opposite Party No.2 has taken a feeble excuse by stating in the rejection order that the Petitioner had not completed 10 years of service by the time the prayer of the Petitioner was being considered by the Opposite Party No.2. 12. On a careful analysis of the factual background of the present case, this Court has no hesitation in coming to a conclusion that the Petitioner is being exploited by the Page 10 of 12 Municipality by assigning similar nature of work to the Petitioner which is clearly perennial in nature over a long period of time. In view of the latest observation of the Hon’ble Supreme Court, the Opposite Parties cannot take shelter under the judgment of the Hon’ble Supreme Court in Umadevi’s case (supra) to hide their conduct in exploitation of the poor employees of the Municipality. In the present case, the Petitioner, who has been working for more than a decade for a meager consolidated amount, is definitely being exploited by the Municipality by not regularizing his service and by denying him the scale of pay as is attached to the regular post of such nature. 13. In view of the aforesaid analysis of the factual position