Chief, Public Health, Odisha v. Nanda Naik and others) filed by the State and states that this Court while
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No. 1741 of 2023 State of Odisha and others …. Appellants Mr. R.N. Mishra, Additional Government Advocate -versus- Prasanna Kumar Sahoo and others Respondents Mr. K. Swain, Advocate for Respondents No.1 to 7 …. CORAM: ACTING CHIEF JUSTICE DR. B.R. SARANGI
Decision
ORDER 06.11.2023 02. 1. This matter is taken up through Hybrid mode. 2. Heard Mr. R.N. Mishra, learned Additional Government Advocate (AGA) appearing for the Appellants and Mr. K. Swain, learned counsel for the Respondents No.1 to 7. 3. The State and its functionaries have filed this writ appeal challenging the order dated 12.12.2022 passed in W.P.(C) No.11392 of 2021, by which the learned Single Judge, while quashing the order dated 06.06.2013 rejecting the prayer of Respondents for their regularization of services, has directed the Appellants to regularize the services of the Respondents by Page 1 of 6 obtaining approval of the Finance Department within a period of three months and consequential service and financial benefits be released in their favour upon regularization. 4. Mr. Mishra, learned AGA, while not disputing the continuance of services of Respondents No.1 to 7, has raised three contentions before this Court. Firstly, the Respondents have not been holding any sanctioned post for discharging their duties. Secondly, the initial engagement of the Respondents was without any recruitment and thirdly, the Orissa Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 (‘ORV Act’ in short) has not been followed and, therefore, their services cannot be regularized. 5. In reply to the first contention, Mr. Swain, learned counsel for Respondents No.1 to 7, has produced a copy of the order dated 30th October, 2023 passed by this Court in W.A. No.862 of 2021 (Engineer-in-Chief, Public Health, Odisha v. Nanda Naik and others) filed by the State and states that this Court while dismissing the said writ appeal has taken into consideration the long period of service rendered by Respondent No.1 therein and that the learned Page 2 of 6 Single Judge directed that “in the event respondent no.1 is holding a non-sanctioned post, steps may be taken in sanctioning the post….” and further was pleased to grant the order of status quo, which would continue till regularization of the service of Respondent No.1 therein. Accordingly, it is submitted that since the case of the present Respondents is similar to that of W.A. No.862 of 2021, the present writ appeal may be dismissed granting similar benefits. 6. It has also been submitted by Mr. Swain 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; Amarakanta Rai v. State of Bihar, (2015) 2 SCC (L & S) 679; and Sheo Narain 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), which has also been taken into consideration by the learned Single Judge in this case while directing regularization of the Respondents. Page 3 of 6 7. So far as the contention that the Respondents were initially not engaged on selection procedure, learned Single Judge has observed as follows: “…. it is too late for the State to take a stand that the Petitioners were initially not engaged on selection procedure and their engagement were made after 12.04.1993. The Opposite Parties having utilized the services of the Petitioners for more than 25 years are stopped to take a stand that they were not duly appointed and therefore, their services cannot be regularized. Further, if the Petitioners were engaged after the cut-off date when the ban order came into force, then nothing prevented the State Government to disengage the Petitioners within a reasonable time. Having engaged the Petitioners for several decades, now the State cannot take a stand that they were irregularly appointed and their services cannot be regularized”. The aforesaid finding cannot be faulted with. 8. On perusal of record, it appears that Respondents are continuing in service since 1993, which clearly indicates that post is existing, against which they have been discharging their duties and responsibilities and for that they have been paid from the State Exchequer. Thereby, the contention raised by the Appellants that Respondents are not continuing in a sanctioned post, cannot be sustained in the eye of law. Respondents have discharged their duties and responsibilities for a long period by the time the Page 4 of 6 impugned order dated 12.12.2022 was passed, even the said order was passed in presence of the learned State counsel. As such, the order dated 12.12.2022 has been passed on agreement. Therefore, at this stage the Appellants cannot raise such contention. 9. Furthermore, if any error has been committed by the learned Single Judge, the Appellants should have filed an application for review of the order dated 12.12.2022. In any case, since the said order has been passed on the agreement of learned State counsel and the position is well settled that Respondents have rendered more than 25 years of service which fact is apparent from the document vide Annexure-H/6 filed by the Respondents, and found mentioned in the impugned order and that similar benefits have been given to other persons, who were allowed to continue on ad hoc/temporary basis without any sanctioned post for decades, this Court is not inclined to entertain this writ appeal. 10. As far as the plea that the provisions of the ORV Act is not followed, as it appears said plea has not been raised before the learned Single Judge. Having not raised said plea before the learned Single Judge, the same cannot be urged now at this belated stage. Page 5 of 6 11. Accordingly, the writ appeal merits no consideration and the same is dismissed. However, while dismissing the writ appeal, this Court passed an order of status quo that may continue till regularization of the service of the Respondents No.1 to 7 by the Appellants. ACTING CHIEF JUSTICE (DR. B.R. SARANGI) (M.S. RAMAN) JUDGE S. Behera/ M. Panda Signature Not Verified Digitally Signed Signed by: SUMANTA BEHERA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Nov-2023 18:49:10 Page 6 of 6