The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC) No.2024 of 2009 An application under Section 19 of the State Administrative Tribunal’s Act, 1985. ……………… Dhiren Kumar Jena …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : M/s. J.K. Rath, D.N. Rath, S.N. Rath, P.K. Rout. For Opp. Parties : M/s. B. Panigrahi, Addl. Standing Counsel. PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing:14.09.2023 and Date of Judgment:14.09.2023 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. J.K. Rath, learned Senior Counsel for the Petitioner and Mr. B. Panigrahi, learned Addl. Standing Counsel for the State. 3. The Petitioner has filed the present Writ Petition inter alia with the following prayer:- // 2 // “ Under the above circumstances, it is, therefore, humbly prayed that this Hon’ble Tribunal be graciously pleased to quash the order of rejection passed by the Opposite Party No.1, vide Annexure-11 to the Original Application and be pleased to direct the Opposite Parties to regularize the services of the petitioner against the existing vacancy of Junior Stenographer Post available under the Opposite Party No.2 establishment and to extent all such benefits of a regular Government servant in accordance with the scheme made by the State Government pursuant to the directives issued by the Hon’ble Apex Court”. 4. It is the case of the Petitioner that the Petitioner on coming to know that the post of Stenographer is lying vacant in the establishment of Opposite Party No.3, he made an application for his appointment as against the post of Stenographer before Opposite Party No.3 on 10.03.1987 under Annexure-1. On consideration of such application made by the Petitioner under Annexure-1, Petitioner was engaged as a Peshi Moharir vide order dtd.08.04.1987 of the Opposite Party No.3 and in terms of the said order, Petitioner joined in the Office of the Charge Officer, Puri on 16.04.1987 as reflected under Annexure-2. 4.1. It is contended that the engagement of the Petitioner as a Peshi Moharir on Job Contract basis was approved vide order dtd.20.05.1987 under Annexure-3. Subsequently vide office order dtd.30.09.1996 under Annexure-4, Petitioner was deputed to undergo the Computer Training at Board of Revenue, Cuttack in the computer cell. Petitioner on being relieved vide office order dtd.14.10.1996 under Annexure-5, he completed the training successfully. Thereafter, vide order dtd.02.12.1996 under Annexure-6, Petitioner was directed to report for duty before the Private Secretary to Page 2 of 22 // 3 // the Hon’ble Minister of Transport to work in the Computer Machine installed in the office of Chamber of the Minister w.e.f. 03.12.1996.
Legal Reasoning
4.2. It is contended that while continuing in the Office of Hon’ble Minister, Petitioner was relieved of his duties w.e.f. 25.08.1997 in order to join at the computer cell of the Board of Revenue vide order dtd.25.08.1997 under Annexure-8. 4.3. It is contended that the Petitioner while continuing as a Peshi Moharir in the job contract establishment and taking into account his continuance as a Steno-Typist in the establishment of Opposite Party No.3 as well as Opposite Party No.2, he approached the Tribunal in O.A. No.1333(C)/2004 with a prayer to consider his case for his absorption as against the post of Junior Stenographer. The Tribunal vide its order dtd.06.10.2004 under Annexure-10 disposed of the matter by directing Opposite Party No.1 to take a decision on the claim of the Petitioner. However, vide the impugned
Decision
order dtd.02.02.2005 under Annexure-11 so communicated on 26.02.2005 the claim of the Petitioner for his absorption as against the post of Junior Stenographer was rejected on the ground that the Petitioner is a Class-IV job contract employee. 4.4. It is contended that while rejecting the prayer of the Petitioner vide the impugned order dtd.02.02.2005, Opposite Party No.1 never take into consideration the recommendation made by Opposite Party No.2 vide his Page 3 of 22 // 4 // letter dtd.27.02.2004 under Annexure-12. In the said recommendation, Opposite Party No.2 requested the Government to relax the provisions of Orissa District and Subordinate Offices, Stenographers Services (Recruitment and Conditions and Services of the Stenographers) Rules, 1980 (in short Rules) for absorption of the job contract employee of the Settlement organization having requisite qualification in Stenography and Type writing test. In the said letter issued under Annexure-12, Opposite Party No.2 taking into account the continuance of the Petitioner as a Junior Stenographer, though he was engaged as a Peshi Moharir in the Job Contract Establishment, recommended his claim. 4.5. Learned counsel for the Petitioner contended that even though the Petitioner was engaged as a Peshi Moharir in the Job Contract Establishment vide order dtd. 08.04.1987 of Opposite Party No.3 and pursuant to the said order he joined on 16.04.1987 as reflected in Annexure-2, but after such appointment as against the post of Peshi Moharir, Petitioner all through was allowed to continue and discharge the duty of Junior Stenographer in the establishment of Opposite Party No.2 & 3. Petitioner was not only allowed to discharge the duty of Junior Stenographer but also he was imparted with the required training as required to discharge the duty of Junior Stenographer. Taking into account the continuance of the Petitioner in discharging the duty of Junior Stenographer, Opposite Party No.2 also requested the Government to relax the provisions of the relevant Page 4 of 22 // 5 // recruitment rules for absorption of the Petitioner as against the post of Junior Stenographer. But it is contended that Opposite Party No.1 without proper appreciation of the continuance of the Petitioner as against the post of Junior Stenographer and without following the order passed by the Tribunal in O.A. No.1333(C)/2004, rejected the claim vide the impugned order dtd.02.02.2005 under Annexure-11-Series. 4.6. Learned counsel for the Petitioner accordingly contended that in view of the continuance of the Petitioner as a Junior Stenographer all thorough he is eligible and entitled for his absorption against the post of Junior Stenographer, which is also available in the establishment of Opposite Party No.2. 4.7. It is also contended that the claim of the Petitioner for his absorption as against the post of Junior Stenographer is also covered by the resolution issued by the Government in the Finance Department on 15.05.1997 under Annexure-17. Not only that, after such rejection of the claim of the Petitioner and taking into account his continuance as a Junior Stenographer, Petitioner when moved this Court in W.P.(C) No.16853/2008, this Court vide order dtd.02.07.2009 on the ground of maintainability while did not entertain the writ petition but granted liberty to the Petitioner to approach the Tribunal. In terms of the said order, the present writ petition has been filed with the prayer as indicated hereinabove. Page 5 of 22 // 6 // 5. In the Counter Affidavit filed by Opposite Party No.3 when a stand was taken that the Petitioner cannot be regularized as against the post of Junior Stenographer, in view of his engagement in the Job Contract Establishment as a Peshi Moharir, reply to the same was made by the Petitioner by contending that Petitioner is continuing as against the existing vacancy of Junior Stenographer available in the establishment of Opposite Party No.2. 5.1. It is also pleaded that one Satyanarayan Gochhikr, who was continuing as a Job Contract Class-IV employee was appointed as a Junior Clerk on regular basis and accordingly there is no bar to provide appointment to the Petitioner as against the vacant available post of Junior Stenographer. 6. Pursuant to the stand taken by the Petitioner in his reply to the counter filed by Opposite Party No.3, further counter affidavit was filed by Opposite Parties. In the said counter a stand was taken that the Petitioner is continuing as against a Job Contract Class-IV post and he is also drawing salary under the heading wages as admissible to such job contract employee of settlement and consolidation organization. Accordingly, it is submitted that the Petitioner is not eligible for his absorption as against the post of Junior Stenographer. 7. To the stand taken in the counter filed by Opposite Parties, a rejoinder was filed by the Petitioner. In the rejoinder a stand was taken that the Petitioner even Page 6 of 22 // 7 // though was engaged as a Peshi Moharir in the Job Contract Establishment, but he was subsequently regularized as against the regular post of Munsarim. But the Petitioner even though was engaged as a Peshi Moharir and regularized as against the post of Munsarim, but he is discharging the duties of Steno/Typist under Opposite Party Nos.2 and 3 all through. 7.1. Not only that taking into account such continuance of the Petitioner as against the post of Jr. Stenographer, various communications were made in between the Opposite Parties under Annexure-18-Series. Opposite Party No.3 vide his letter dtd.09.12.2015 under Annexure-18-Series when moved Opposite Party No.1 with a request to consider the claim of the Petitioner for his appointment as against the post of Junior Stenographer, Opposite Party No.1 vide letter dtd.28.01.2016 requested Opposite Party No.2 to send his views along with supporting relevant documents for taking necessary follow up action. On receipt of the letter dtd.28.01.2016, Opposite Party No.2 vide his letter dtd.19.03.2016 requested Opposite Party No.3 to furnish relevant supporting documents like educational and technical qualifications so acquired by the Petitioner for his absorption as against the post of Junior Stenographer. On receipt of the letter dtd. 19.03.2016, Opposite Party No.3 vide his letter dtd.25.04.2016 while furnishing the relevant information requested Opposite Party No.2 to move the Government to create one post of Junior Stenographer on abolition of the existing vacancy Page 7 of 22 // 8 // of Sr. Stenographer in the establishment of Opposite Party No.2. On receipt of the letter dtd.25.04.2016, Opposite Party No.2 vide his letter dtd.11.05.2016 once again requested Opposite Party No.3 to examine the claim of the Petitioner with reference to the provisions contained in Orissa District and Subordinate Offices, Stenographers Services (Recruitment and Conditions of Services of the Stenographers) Rules, 1980 and to furnish the views regarding appointment of a regular Munsarim against the vacant post of Junior Stenographer. 7.2. It is contended that Opposite Party No.3 vide his letter dtd.07.06.2016 and 01.11.2016 under Annexure-18-Series while furnishing the required information requested Opposite Party No.2 to move the Government for absorption of the Petitioner as against the post of Junior Stenographer. Not only that Opposite Party No.3 vide letter dtd.27.02.2017 also furnished the relevant recruitment rules to Opposite Party No.2 for taking necessary action in the matter. In the said letter, it was clearly indicated that the services of the Petitioner as against the post of Munsarim has already been regularized and the Petitioner is doing the work of Stenographer at different places including Board of Revenue. 7.3. It is contended that on receipt of the required information along with the recruitment rules from the Office of Opposite Party No.3, Opposite Party No.2 vide letter dtd.22.04.2017 under Annexure-18-Series moved Page 8 of 22 // 9 // the Government, seeking approval of the appointment of the Petitioner as against the post of Junior Stenographer in the Office of Opposite Party No.3. Not only that vide letter dtd.02.08.2018 under Annexure-18-Series, Opposite Party No.3 once again moved Opposite Party No.2 with a request to move Government for according permission for appointment of the Petitioner as Junior Stenogrpaher in relaxing the recruitment rules and by creating a post of Junior Stenographer in the rank of Stenographer, which is lying vacant in his office. Similar request was also made by Opposite Party No.3 vide his letter dtd.27.12.2018 under Annexure-18-Series. 7.4. It is contended that on receipt of request made by Opposite Party No.3, Opposite Party No.2 vide letter dtd. 31.01.2019 under Annexure-18-Series requested the Government to accord approval for creation of one post of Junior Stenographer in the Office of Opposite Party No.3 and for appointment of the Petitioner as against the said post. However, on the face of such request made by Opposite Party No.2 on 31.01.2019, no decision was taken by Government in creating one post of Junior Stenographer in the Office of Opposite Party No.3 and for absorption of the Petitioner as against the said post. However, vide office order dtd.22.09.2021 of Opposite Party No.3, Petitioner was attached to the Court of Settlement Officer to assist in Steno and Typist work in addition to his own duty until further orders. Page 9 of 22 // 10 // 8. Taking into account the stand of the Petitioner vis-à- vis Opposite Parties with regard to the claim of the Petitioner for his absorption as against the post of Junior Stenographer, this Court passed an order on 14.12.2022 to the following effect:- “2. Heard Mr. J.K. Rath, learned Sr. Counsel appearing for the Petitioner and Mr. A.P. Das, learned Addl. Standing Counsel appearing for the Opp. Parties. 3. Considering the materials available on record, this Court finds that vide letter dtd.31.01.2019 issued by the Additional Director, Land Records and Service, Board of Revenue, Odisha, Cuttack to the Deputy Secretary to the Govt. of Odisha, Revenue & Disaster Management Department a request has been made for approval and creation of one post of Junior Stenographer for the purpose of adjusting the present Petitioner as against the said post. 4. Mr. Das, learned ASC is directed to obtain instruction on the same as to what action has been taken by the Govt. in the meantime. 5. Mr. Rath, learned Sr. Counsel is also directed to produce the documents with regard to the status of the present Petitioner and the salary drawn by him at present. 6. As requested by Mr.J.K. Rath, learned Sr. Counsel, list this matter in the 3rd week of January, 2023. 7. A free copy of the order be provided to Mr. A.P. Das, learned ASC for intimation and compliance”. 8.1. As it is contended by the learned State Counsel that no decision has been taken by the Government in terms of the request made by Opposite Party No.2 vide his letter dtd.31.01.2019 under Annexure-18-Series, a further order was passed by this Court on 18.01.2023 to the following effect:- “2. Heard Mr. J.K. Rath, learned Sr. Counsel appearing for the Petitioner and Mr. A.P. Das, learned Addl. Standing Counsel appearing for the Opp. Parties. 3. Pursuant to the order passed by this Court on 14.12.2022, Mr. Das, learned ASC contended that no decision has been taken by the Govt. in the Department of Revenue & Disaster Management after receipt of the letter dtd.31.01.2019 from the Additional Director, Land Records and Surveys, Board of Revenue, Odisha, Cuttack. Page 10 of 22 // 11 // 4. Mr. Rath, learned Sr. Counsel on the other hand pointed out that the Petitioner is at present in receipt of the salary in the scale of pay of Rs. 18,000/- to 56,900/- Level-III and he has been designated as a Munsarim. 5. Mr. Das, learned ASC as well as Mr. Rath, learned Sr. Counsel are directed to file affidavit in support of their aforesaid submissions before the next date. 6. As requested, list this matter on 08.02.2023”. 8.2. Pursuant to the order passed by this Court on 18.01.2023, respective affidavits were filed by Opposite Party No.3 and by the Petitioner. Since it is found that the affidavit filed by Opposite Party No.3, is not in accordance with the order passed by this Court on 14.12.2022, a further order was passed by this Court on 15.02.2023 to the following effect:- “2. Heard Mr. J.K. Rath, learned Senior Counsel appearing for the Petitioner and Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State. to Pursuant the order passed by 3. this Court on 14.12.2022 though an affidavit was filed by the Settlement Officer, Cuttack Major Settlement, Cuttack-Opposite Party No.3 but the said affidavit is not in consonance with the direction given in order dated 14.12.2022. However, Mr. Pattnaik, learned Addl. Government Advocate submitted that he be given further week’s time to get positive instruction in the matter. As requested by him, list this matter on 22nd of March, 4. 2023. 8.3. Pursuant to the order passed by this Court on 15.02.2023, further affidavit was filed by Opposite Party No.3 on 21.02.2023. The stand taken by Opposite Party No.3 in Para-5 to 10 of the affidavit are quoted hereunder:- “5. That in the meantime as per the policy of the Govt. though the petitioner was working in Class-IV post but subsequently however he has been regularized in Munsarin and regularized on 01.12.2014 on the fixed scale of pay Rs.5,200/- to Rs.20,000/-+ G.P. Rs.1800/-. Page 11 of 22 // 12 // 6. That it is pertinent to mention here that there were five Jr. Stenographers (Base Level Posts) were exiting up to 1999 under the jurisdiction of Director of Land Records which includes Cuttack Puri Major Settlement Office, Cuttack. 7. That in the year 1999 Govt. in Revenue Department abolished one post of Jr. Stenographer. Similarly in the year 2001, one post of Jr. Stenographer was abolished and likewise in the year 2004, three posts of Jr. Stenographer was abolished. Copies of such communications of the Govt. is annexed herewith as Annexure-A/3-Series. 8. That at this juncture though there was o posts of Jr. Stenographer available under the Cuttack Puri Major Settlement Office but however, the Addl. Director of Land Records taking a lenient view has made a recommendation to the Govt. vide its letter no.383 dtd.31.03.2019 for creation and approval of one post Jr. Stenographer for the purpose of adjusting the present petitioner as against the said post. 9. That even though there was a proposal rendered by the Addl. Director of Land Records and Surveys was sent for creation of the post but no communication has been received in the office of the Cuttack Puri Major Settlement Officer, Cuttack with regard to creation of post of Jr. Stenographer. 10. That since the post of Jr. Stenographer have been abolished since long as per the policy decision of the Govt. and the petitioner’s claim to absorb in the post of Jr. Stenographer bears no merit”. 8.4. A further affidavit was also filed by the Petitioner submitting therein that the Petitioner after being regularized as against the post of Munsarim is getting his salary in the scale of pay of Rs.18,000/- to Rs.56,900/- in Level-III and in spite of his continuance as against the post of Junior Stenographer, no decision has been taken by Opposite Party No.1, in terms of the request made by Opposite Party No.2 on 31.01.2019 under Annexure-18- Series. However, taking into account the fact that the Petitioner is continuing and discharging the duty of Stenographer since 1986, the Petitioner is eligible and entitled for his absorption as against the post of Junior Stenographer in view of the decisions of the Hon’ble Apex Page 12 of 22 // 13 // Court and of this Court in the case of Secretary, State of Karnataka vs. Uma Devi (3), (2006) 4 SCC-1, State of Karnatak vs. M.L.Keshari, (2010) 9 SCC 247, Nihal Singh & Others vs. State of Punjab & Others, 2013 (14) SCC 65 and Amarkant Rai vs. State of Bihar & Others, 2015 (8) SCC 265 and Dr. Prasanna Kumar Mishra vs. State of Odisha & Others reported in 2016(1) ILR (CUT)-373. 8.5. Hon’ble Apex Court in the case of Uma Devi in Para- 44 has held as follows:- “44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra) and B.N. Nagarajan (Supra), and referred to in paragraph-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 courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the 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, the State Governments and their instrumentalities should take steps to regularize 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 courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wages 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 subjudice, need not be reopened based on this judgement, but there should be no further by passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” Page 13 of 22 // 14 // 8.6. Similarly Hon’ble Apex Court in the case of M.L. Keshari in Para- 8 and 13 has held as follows:- “8. Umadevi (3) casts a duty upon the Government or instrumentality concerned, to take steps to regularise the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi (3) directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10-4-2006). 13. The Division Bench of the High Court has directed that the cases of the respondents should be considered in accordance with law. The only further direction that needs to be given, in view of Umadevi (3), is that the Zila Panchayat, Gadag should not undertake an exercise within six months, as a general one-time regularisation exercise, to find out whether there are daily-wage/casual/adhoc employees serving the Zila Panchayat and if so whether such employees (including the respondents) fulfil the requirements mentioned in para-53 of Umadevi (3). If they fulfill them, their services have to be regularised. If such an exercise has already been undertaken by ignoring or omitting the cases of Respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said one- time exercise within three months. It is needless to say that if the respondents do not fulfill the requirements of para 53 of Umadevi (3), their services need not be regularised. If the employees who have completed ten years' service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularisation in suitable lower posts.” 8.7. In the case of Nihal Singh in Para-35 to 38, Apex Court has held as follows:- “35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, Page 14 of 22 // 15 // when the facts such as the ones obtaining tin 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. 21. In the first instances, the petitioner and the other Election Commissioners were appointed when the work of the Commission did not warrant their appointment. The reason given by Respondent 1 (Union of India), that on account of the Constitution (61" Amendment) Act reducing the voting the Constitution (64th Amendment) and (65 age and Amendment) Bills relating to election to the Panchayats and Nagar Paliks, the work of the Commission was expected to increase and, therefore, there was need for more Election Commissioners, cuts notice. As has been pointed out by Respondent 2, the work relating to revision of electoral roll on account of the reduction of voting age was completed in all the States except Assam by the end of July 1989 itself, and at the Conference of the Chief Electoral Officers at Tirupati. Respondent 2 had declared that the entire preparatory work relating to the conduct of the then ensuing general elections to the Lok Sahba would be completed by August in the whole of the country except Assam. Further the Constitution (64th and 65th Amendment) Bills had already fallen in Parliament before the appointments. In fact, what was needed was more secretarial staff for which the Commission was pressing, and not more Election Commissioners. What instead was done was to appoint the petitioner and the other Election Commissioner on 16.01.1989. Admittedly, further the view of the Chief Election Commissioner were not ascertained before making the said appointments. In fact, he was presented with them for the first time in the afternoon of the same day i.e, 16- 10-1989. 36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts the necessarily means additional exchequer of the State. Depending upon the priorities of the State, the allocation of the finance 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 financial burden on Page 15 of 22 // 16 // disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the 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. 37. We are of the opinion that neither the Governmnet of Punjab nor these public sector banks can continue such a practice consistent with their obligations to function in accordance with the Constitution. Umadevi (3) judgement cannot became a licence for exploitation by the State and its instrumentalities. 38. For all the abovementioned reasons, we are of the opinion that the appellants are entitled to be absorbed in the services of the State. The appeal are accordingly allowed. The judgements under appeal are set aside.” 8.8. In the case of Amarkanti Rai, Hon’ble Apex Court in Para-8, 9, 11 to 14 has held as follows:- “8. Insofar as contention of the respondent that the appointment of the appellant was made by the Principal who is not a competent authority to make such appointment and is in violation of the Bihar State Universities Act and hence the appointment is illegal appointment, it is pertinent to note that the appointment of the appellant as night guard was done out of necessity and concern for the College. As noticed earlier, the Principal of the College vide letters dated 11-3-1988, 7-1- 1993, 8-1-2002 and 12-7-2004 recommended the case of the appellant for regularisation on the post of night guard and the University was thus well acquainted with the appointment of the appellant by the then Principal even though the Principal was not a competent authority to make such appointments and thus the appointment of the appellant and Page 16 of 22 // 17 // other employees was brought to the notice of the University in 1988. In spite of that, the process for termination was initiated only in the year 2001 and the appellant was reinstated w.ef. 3-1-2002 and was removed from services finally in the year 2007. As rightly contended by the learned counsel for the appellant, for a considerable time, the University never raised the issue that the appointment of the appellant by the Principal is ultra vires the rules of the BSU Act. Having regard to the various communications between the Principal and the University and also the educational authorities and the facts of the case, in our view, the appointment of the appellant cannot be termed to be illegal, but it can only be termed as irregular. 9. The Human Resources Development, Department of Bihar Government, vide its Letter dated 11-7-1989 intimated to the Registrar of all the Colleges that as per the settlement dated 26-4-1989 held between Bihar State University and College Employees' Federation and the Government it was agreed that the services of the employees working in the educational institutions on the basis of prescribed staffing pattern are to be regularised. As per sanctioned staffing partien, in Ramashray Baleshwar College, there were two vacant posts of Class IV employees and the appellant was appointed against the same. Further, Resolution No. 989 dated 10-5- 1991 issued by the Human Resources Development Department provides that employee working up to 10-5-1986 shall be adjusted against the vacancies arising in future. Although, the appellant was appointed in 1983 temporarily on the post that was not sanctioned by the State Government, as per the above communication of the Human Resources Development Department, it is evident that the State Government issued orders to regularise the services of the employees who worked up to 10-5-1986. In our considered view, the High Court ought to have examined the case of the appellant in the light of the various communications issued by Page 17 of 22 // 18 // the State Government and in the light of the circular, the appellant is eligible for consideration for regularisation. XXX XXX XXX 11. Elaboration upon the principles laid down in Umadevi (3) Case and explaining the difference between irregular and illegal appointments in State of Karnataka Vs. M.L Kesari, this Court held as under (ML Kesari case SSC p 250, para 7) 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) The employee concerned should have worked for 10 years or more in 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 employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) 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 possesses the prescribed minimum qualifications, the appointments will be considered to be illegal., But where the persons employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.” 12. Applying the ratio of Umadevi (3) case, this Court in Nihal Singh v. State of Punjab directed the absorption of the Special Police Officers in the services of the State of holding as under: (Nihal Singh Case, SCC pp. 79-80, paras- 35-36) "35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case Page 18 of 22 // 19 // demonstrate that there is need for the creation of posts, the failure extracting work from persons such as the appellants herein for decades together itself would he arbitrary action (inaction) on the part of the State. 36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the 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. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in 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 13. In our view, the exception carved out in para 53 of Umadevi (3)3 is applicable to the facts of the present case. There is no material placed on record by the respondents that the appellant has been lacking any qualification or bore any blemish record during his employment for over two decades. It is pertinent to note that services of similarly situated persons on daily wages for regularisation viz. one Yatindra Kumar Mishra who was appointed on daily wages on the post of Clerk was regularised w.e.f. 1987. The appellant although initially working against unsanctioned post, the appellant was working continuously since 3-1-2002 against sanctioned post. Since there is no material placed on record regarding the details whether any other night guard was appointed against Page 19 of 22 // 20 // the sanctioned post, in the facts and circumstances of the case, we are inclined to award monetary benefits to be paid from 1.-1-2010. 14. Considering the facts and circumstances of the case that the appellant has served the University for more than 29. years of the post of night guard and that he has served the College on daily wages, in the interest of justice, the authorities are directed to regularise the services of the appellant retrospectively w.ef. 3-1-2002 (the date on which he rejoined the post as per the direction of the Registrar).” 8.9. Similarly, this Court in the case of Dr. Prasanna Kumar Mishra vs. State of Odisha & Others reported in 2016(1) ILR (CUT)-373 in Para-22 has held as follows:- “22. In that view of the matter, this Court is of the considered view that the opposite parties should absorb the petitioner on regular basis against sanctioned vacant post taking into account the length of service rendered by him as a Lecturer in Mathematics in which he is continuing without insisting him to undergo the rigors of the selection procedure laid down under the BPUT Act and Rules framed thereunder reason being in the meantime the petitioner has become over aged and he has also been exploited for 20 years for no reasons though he has qualified in all the interviews conducted by the authority for his engagement on contractual basis. The petitioner being not a backdoor entrant to the service, the opposite party-University should extend all consequential benefits as due and admissible in accordance with law as expeditiously as possible preferably within a period of four months. The writ petition is allowed. No order to cost.” 9. Learned Addl. Government Advocate basing on the instruction provided by Opposite Party No.3 vide letter dtd.05.08.2003 also contended that Petitioner at present is attached to the Office of Opposite Party No.3 and is discharging the duties of Stenographer. The instruction Page 20 of 22 // 21 // provided by Opposite Party No.3 vide his letter dtd.05.08.2023 is quoted hereunder:- “In inviting a reference to the letter on the subject cited above, I am to say that, the petitioner Sri Dhiren Kumar Jena, Estt. Munsarim now working as a steno-typist and other official important correspondence computerization work as per need in the court of Settlement Officer, Cuttack. This is for favour of information and necessary action”. 10. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that even though the Petitioner was initially engaged as against the post of Peshi Moharir in the Job Contract Establishment, where he joined on 16.04.1987, but all through he was allowed to discharge the work of Steno/Typist in the establishment of Opposite Party No.3 and Opposite Party No.2 at different point of time. Petitioner though was regularized as against the post of Munsarim, but even thereafter, he was allowed to discharge the work of Steno/Typist in the establishment of Opposite Party No.3. 10.1. It is also found from the record that taking into account the continuance of the Petitioner as a Steno/ Typist in the establishment of Opposite Party No.3 since 1986, proposal was mooted by Opposite Party No.3 and by Opposite Party No.2 before the Government-Opposite Party No.1 with a request to relax the relevant recruitment rules and to absorb the Petitioner as against the post of Junior Stenographer by abolishing the post of Sr. Stenographer so available in the establishment of Opposite Party No.2 vide letter dtd.31.01.2019 under Page 21 of 22 // 22 // Annexure-18-Series. As found from the affidavit filed by Opposite Party No.3 pursuant to the order passed by this Court on different occasion, it is found that the Petitioner is discharging the duty of Steno-Typist in the Office of Opposite Party No.3. But on the face of the request made by Opposite Party No.2 vide letter dtd.31.01.2019 under Annexure-18-Series, no decision has been taken by Opposite Party No.1. 10.2. Taking into account the fact that the Petitioner is discharging the duty of Steno/Typist since 1986 and the request made by Opposite Party No.2 in his letter dtd.31.01.2019 under Annexure-18-Seruies, this Court placing reliance on the decisions as cited (supra) while disposing the Writ Petition directs Opposite Party No.1 to create one post of Junior Stenographer in the establishment of Opposite Party No.2 by abolishing the post of Sr. Stenographer and take steps for absorption of the Petitioner as against the said post. This Court directs Opposite Party No.1 to undertake and complete the exercise as directed within a period of three (3) months from the date of receipt of this order. 11. With the aforesaid observations and directions, the Writ Petition stands disposed of. Signature Not Verified Subrat Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: .. Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:28:31 (Biraja Prasanna Satapathy) Judge Page 22 of 22