The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C ) Nos.28767, 28738,28746,28748,28750, 28755,28762,28764 & 28766 of 2020 Duryodhan Nayak ..... Petitioner Mr. P.K. Khuntia, Adv. State of Odisha &Others ..... -versus- Opposite Parties Mr. S. Jena, AGA Mr. S. Nayak, Adv. (for O.P.No.4) CORAM: THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY Order No.8 ORDER 19.07.2024 1. This matter is taken up through hybrid mode. 2. Heard learned counsel for the Parties. 3. Since issue involved in all these cases are identical, all the matters are heard analogously
Decision
and disposed of by the present common order. 4. All the Petitioners herein were initially engaged on DLR basis by the authorities of Sri Jagannath Sanskrit Vishvavidyalaya, Shri Vihar Puri. 4.1. It is contended that while so continuing for more than 10 years on DLR basis, vide Office Order dt.21.01.2011 so issued by the University under Annexure-2, Petitioners were allowed to continue on 89 days basis with . consolidated salary per month. Vide Order dt.17.01.2014 under Annexure-3, Petitioners were allowed to draw pay and Grade Pay as due and admissible to the post in question. 4.2. It is contended that all the Petitioners though continued on DLR basis and/or 89 days basis for more than 25 years and the University vide Annexures-7 & 8, favoured the claim of the Petitioners for their regularisation, but when no action when was taken by the Government, Petitioners approached this Court by filing various Writ Petitions. 4.3. It is contended that in terms of the order passed by this Court for consideration of the claim of the Petitioners for their regularisation of services, Government-Opp. Party No.1 rejected the same vide the impugned order dt.03.06.2020 inter alia on the ground that since Petitioners are continuing as against non-sanctioned post, they cannot be regularised and decision in the case of Uma Devi and M.L Kesari are not applicable to the claim of the Petitioners. 4.4. Learned counsel appearing for the Petitioners contended that there is no dispute that Petitioners were engaged initially on DLR basis and after completing more than 10 years of service as such, they were allowed to continue on 89 days basis vide order . dt.21.01.2011 under Annexure-2. In view of such long continuance on DLR/ and/or 89 days basis, even if there is no sanctioned post, but in view of the decision of the Hon’ble Apex Court in the case of Nihal Singh & Others Vs. State of Punjab & Others, AIR 2013 SC 3547, Petitioners are eligible and entitled to get the benefit of regularisation with the quashing of the impugned order. Hon’ble Apex Court in Para 35, 36 and 38 of the said decision has held as follows: 35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor 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 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. 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 Legislature. the domain of 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 at 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. We are of . the opinion that neither the Government of Punjab nor these public sector banks can continue such a practice consistent with their obligation to function in accordance with judgment cannot become a licence for exploitation by the State and its instrumentalities. the Constitution. Umadevi’s 38. We direct the State of Punjab to regularise the services of the appellants by creating necessary posts within a period of three months from today. Upon such regularisation, the appellants would be entitled to all the benefits of services attached to the post which are similar in nature already in the cadre of the police services of the State. We are of the opinion that the appellants are entitled to the costs throughout. In the circumstances, we quantify the costs to Rs.10,000/- to be paid to each of the appellants.” 5. Mr. S. Jena, learned Addl. Govt. Advocate on the other hand while supporting the impugned order contended that since Petitioners are continuing as against non- sanctioned post and the very engagement of the Petitioners are against non-existent post, petitioners cannot be regularised in terms of the decisions of the Hon’ble Apex Court in the case of Uma Devi and M.L Kesari. Stand taken in Para 13 of the counter so filed by Opp. Party No.1 reads as follows: “13. That, in the instant case, the Petitioner was engaged in a non-existent post of Sweeper-cum- Watchman on consolidated salary basis vide Office the Order NO.328/SJSV, dtd.21.012011 by University authorities in Sri Jagannath Sanskrit Viswavidyalaya and in view of such engagement, the Petitioner has reported for duty on the basis of such engagement order. It is pertinent to mention that the Petitioner was initially engaged on daily wage basis w.e.f 01.11.1991 in the said University to discharge his duties and such duty was not intended to have been discharged in any specific post. For the 1st time he was engaged to discharge his duties against the posts of Sweeper-cum- Watchman which was also a non-existent post and . thus his such engagement is illegal as there was no sanction post of Sweeper-cum-Watchman in the said University by that time. Considering the case of the Petitioner on the anvil of the ratio of the judgments of the Hon’ble Supreme Court cited supra, he can not avail any merit from any corner for consideration of his claim for regularisation.” X x x 5.1. It is further contended that unless and until the posts are sanctioned by the Government, there is no question of regularisation and claim of the Petitioners have been rightly rejected vide the impugned order dt.03.06.2020. 6. Mr. S. Nayak, learned counsel appearing for the University on the other hand contended that petitioners were initially engaged on DLR basis and after continuing for more than 10 years, the University vide Office order dt.21.01.2011 under Annexure-2 decided to engage the Petitioners on 89 days basis. Subsequently vide order dt.17.01.2014 under Annexure-3, Petitioners were allowed the Basis pay and Grade Pay as admissible to the post in question. The University taking into account the long continuance of the Petitioner also enhanced the monthly remuneration of the Petitioners vide order dt.06.04.2016 under Annexure-5. 6.1. It is also contended that taking into account the long continuance of the Petitioner, . the University in its proceeding dt. 10.11.2017 under Annexure-7 resolved as follows: ITEM NO-6 “Considered the proceedings of the Officers level committee held on 31.10.2017 vis- a-vis the order No.8 dt.09.10.2017 of the Hon’ble High Court passed the W.P.C NO.19114/2016 and nine other petitions (filed by the persons engaged on consolidated remuneration basis without any sanctioned post) for regularisation of their services in the Vishvavidyalaya. in Resolved that the Government be moved for creation of such posts as per the direction of the Hon’ble High Court.” 6.2. Subsequently vide letter dt.21.11.2017 under Annexure-8, the University though requested the Government in the Department of Higher Education for creation of various posts in order to regularise the services of the Petitioners, but that was never taken into consideration. It is also fairly contended that all the Petitioners as on date are continuing on 89 days basis without getting the benefit of regularisation. 7. Having heard learned counsel for the parties and considering the submissions made, this Court finds that all the Petitioners were engaged initially on DLR basis. While continuing as such for more than 10 years, vide Office Order dt.21.01.2011 under Annexure-2, Petitioners were allowed to continue on 89 days basis with consolidated salary. Vide Office Order dt.17.01.2014 under . Annexure-3, Petitioners were allowed the benefit of Pay and Grade Pay as admissible to the post in question. Similarly vide Office order dt.06.04.2016 under Annexure-5, monthly remuneration of the Petitioners was also enhanced. 7.1. The University thereafter in its proceeding dt.10.11.2017 under Annexure-7 while taking a decision to move the Government for regularisation of the services of the Petitioners with due creation of the posts in question, moved the Government for such creation of the post in order to regularise the services of the Petitioners vide letter dt.21.11.2017 under Annexure-8. But thereafter when the posts were never created with due sanction, Petitioners approached this Court in various Writ Petition and pursuant to the orders passed by this Court, claim of the Petitioners to get the benefit of the regularisation has been rejected vide the impugned order dt.03.06.2020 only on the ground that since there is no sanctioned post, Petitioners cannot be regularised. 7.2. Placing reliance on the decision in the case of Nihal Singh and others (as cited supra) , it is the view of this Court that since Petitioners in the meantime have already completed more than 25 years of service on DLR and/or 89 days basis, it is to be held that Petitioners are . continuing against sanctioned post and continuance of the petitioners is a requirement for the University. 7.3. In view of such analysis, this Court is inclined to quash Office Order dt.03.06.2020 so issued by Government-Opp. Party No.1 under Annexure-15. While quashing the same, this Court directs Opp. Party No.1 to sanction the posts in question as requested by the University vide its letter dt.21.11.2017 under Annexure-8 within a period of 2 (two months) from the date of receipt of this order. Opp. Party Nos.2 & 3 are further directed to take effective steps for regularisation of the services of the Petitioners on receipt of such order of sanction of Opp. Party No.1 within a further period of two (2) months. Till a decision, as directed, is taken by the Government-Opp. Party No.1, no coercive action shall be taken against the Petitioners. The Writ Petitions are accordingly disposed of. Photocopy of the order be placed in the connected cases. ( BIRAJA PRASANNA SATAPATHY) Judge sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa Date: 26-Jul-2024 19:41:16 .