Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Aug-2024 12:53:57 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.22033 of 2019 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Saifur Reheman Khan …. Petitioner(s) State of Odisha & Ors …. Opposite Party (s) -versus- Advocates appeared in the case through Hybrid Mode: : For Petitioner(s) Mr. P. R. Behera, Adv. For Opposite Party (s) : Mr. P.K. Rath, Sr.Adv. Along with Mr. S. Rath, Adv. CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-08.05.2024 DATE OF JUDGMENT: -31.07.2024 Dr. S.K. Panigrahi, J. 1. The petitioner through this writ petition has challenged the action of the Opposite Parties in not treating the services of the Petitioner as regular service in regular scale of pay from the date of regularization of his juniors, not extending the benefit of pension and other post retirement benefits as a regular employee of Bhadrak Municipality. I. CASE OF THE PETITIONER: 2. The brief fact of the case is that: Page 1 of 11
Facts
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Aug-2024 12:53:57 (i) The petitioner was initially appointed as a Tax Collector on NMR/DLR basis under Bhadrak, Municipality w.e.f. 12.01.1982. As an NMR employee, the Petitioner was allowed a consolidated pay. On 24.09.1991, the Bhadrak Municipal Council passed resolution No. 2, pursuant to which, the Petitioner was appointed as a Tax Collector in regular scale of pay. The said order although was passed for a period of three months, but the Petitioner was allowed to continue in regular scale of pay. His continuance as a Tax Sarkar/Tax Collector is proved from the Order No. 975 dated 13.02.1992 in which the Petitioner was transferred to Octroi Section to work as Octroi Tax Sarkar. It may be pointed out here that, although the Petitioner was allowed regular scale of pay w.e.f. 14.09.1991 in the post of Tax Collector/Tax Sarkar, his service was not treated as regular. (ii) It is submitted that a proposal was placed before the State Government for creation seven (7) posts of Tax Sarkars on regular basis in regular scale of pay for the purpose of regularization of Tax Sarkars continuing since long on temporary basis in Bhadrak Municipality. On consideration of the proposal, the Government of Odisha in Housing & Urban Development Department, in their order dated 28.05.1997 accorded sanction for creation of seven (7) posts of Work Sarkars for the purpose of regularization of Work Sarkars continuing in Bhadrak Municipality on temporary basis. (iii) Pursuant to the aforesaid order sanctioning seven (7) posts of Work Sarkars to be filled up on regular basis, the Executive Officer, Bhadrak Municipality placed a proposal before the council for regular of seven Page 2 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Aug-2024 12:53:57 (7) persons appointed on Adhoc basis in Tax Sarkars. The Petitioner’s name find place In Serial No. 4 of the list of seven (7) persons, placed by the Executive Officer, Bhadrak Municipality before the Municipal Council. (iv) It is submitted that a selection committee was constituted for selection and appointment of the Work Sarkars against the newly created vacant Posts. The letter of the Executive Officer, Bhadrak Municipality, Bhadrak dated 13.06.1997 placed before the Municipal Council is clear that, seven (7) post were created specifically for the purpose of regularization of the seven (7) Tax Sarkars working in Bhadrak Municipality since long temporarily, including the name of the Petitioner. The selection committee, however, passed a resolution on 18.04.1998 selecting six (6) persons from out of the list given by the
Legal Reasoning
Petitioner. This Court in the matter of CMAPL No. 198 of 2019 and I.A. No. 69 of 2019 passed the following order: - "The petitioner has filed this application seeking to restore OJC No.8887 of 1998, which was dismissed for default on 10.09.2014. On perusal of the application, it is found that the petitioner had approached this Court by filing the OJC on 10.07.1998 and when the said matter was listed on 16.11.1998, none appeared for the petitioner and thereafter, when the matter was listed on 10.12.1998, this Court issued notice to the opposite parties. Again, when the matter was listed on 09.03.2010, after more than 10 years, none appeared for the petitioner and the writ application was dismissed for non-prosecution. Thereafter, the petitioner filed CMAPL No.44 of 2014 for recalling of the order dated 09.03.2010 and considering the averments made in the application itself, this Court allowed the CMAPL by recalling the order dated 09.03.2010 and the OJC was restored to its original number. Again, when the matter was listed on 10.09.2014, none Page 5 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Aug-2024 12:53:57 appeared for the petitioner on that date and as this being a year-old matter, this Court dismissed the writ application for non- prosecution. In the meantime, more than four and half years have been passed and the petitioner has again filed this CMAPL application on 01.03.2019 for restoration of OJC No.8887 of 1998, which was dismissed on 10.09.2014." (iv) It is submitted that the Petitioner deliberately has not annexed any of the previous order arising out of OJC No. 8887/1998, CMAPL No. 198 of 2019/ Ι.Α. No. 69 of 2019 and I.A. No. 92/2018. It is a trite law that the while claiming equitable relief, one must approach the Court with clean hands. If there is an attempt to suppress material facts or there is a deliberate attempt to deceive or hoodwink the court by stating wrong facts on affidavit, then the Petitioner is not entitled to any equitable relief. (v) It is submitted that the Petitioner has already reached age of 60 years as on 28th February 2014. Therefore, while filing this Writ Petition, the petitioner has already crossed the age of retirement. Thereby, it is submitted that the prayer for regularization of the Petitioner cannot be entertained at this stage. (vi) It is submitted that the Petitioner’s claim to be appointed as a Tax Collector/Sarkar and the Petitioner was subsequently allowed to continue in regular scale of pay but the post remains purely temporary and it was purely the discretion of the competent authority to disengage him without any prior notice and without assigning any reasons thereof. Page 6 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Aug-2024 12:53:57 (vii) It is submitted that seven posts were sanctioned by Government of Odisha, Housing and Urban Development Department in their order dated 28th May 1997 for the purpose of regularization of Tax Sarkars continuing In Municipality on temporary basis. It is true that the candidature of the Petitioner’s was being considered by the competent e authority. For selection and appointment of Tax Sarkars will be based not on the order of the Government dated 28th May 1997 but rather would be based on pure administrative discretion of the competent authority. The selection committee before passing the resolution on 18th April 1998 rejecting the name of the Petitioner and adding one-person name Sri Durga Prasad Das. The selection committee found that Sri Durga Prasad Das had a superior educational qualification and better work efficiency vis-(cid:224)-vis the Petitioner. (viii) It is submitted that the selection committee reserves right to appoint someone who is better work efficient. It is neither arbitrary nor Illegal. It is purely discretion of the administrative authority which warrants no judicial Intervention. (ix) It is submitted that that vide letter No. 29149/HUD dated 17th October 2012, a proposal was placed by the Government in Housing and Urban Development Department before the Finance Department for conversion of DLR/NMR workers engage prior to 12th April 1993 to work charged establishment. During the said time period the Petitioner was 58 years 8 months 14 days, due to his overage, he was not considered for regularization in the post of Tax Collector. The Petitioner’s application was rejected as on 5th November 2013. Page 7 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Aug-2024 12:53:57 Therefore, the Petitioner had prayed for regularization of the service in the vacant post of peon observing all procedural formalities. His prayer for considering him for post of peon was conveyed by the Executive officer, Bhadrak Municipality (O.P No.3) to the under-Secretary of the Government as on dated 25th February 2014. Nevertheless, prior to the same, the Petitioner retired on 28th February 2014. (x) It is submitted that the Petitioner was working in the said organization since 12th January 1982 to 28th February 2014 albeit the fact that the Petitioner is not a permanent employee, he enjoyed a long career in the said office. During his service tenure, the Opposite Party No. 3 had not removed him even though his work efficiency was questionable. As stated above, time and again, all prayers and requests were considered by the authority. Further, the Petitioner had filed several writ Petitions, Interlocutory applications as well as CMAPL from time to time and this Court have already provided the Petitioner ample amount of opportunities during his service tenure to pursue the matter on merit. (xi) Learned counsel for the Opposite Parties, accordingly, prays for dismissal of this Writ Petition. III. COURT’S REASONING AND ANALYSIS: 4. The petitioner has intentionally omitted to annex any of the previous orders arising from OJC No. 8887/1998, CMAPL No. 198 of 2019, I.A. No. 69 of 2019, and I.A. No. 92/2018. It is a well-established principle of law that when seeking equitable relief, one must approach the court with clean hands. Any attempt to suppress material facts or to deceive Page 8 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Aug-2024 12:53:57 5. 6. the court by presenting false information in an affidavit which disqualifies the petitioner from receiving any equitable relief. The petitioner claims to have been appointed as a Tax Collector/Sarkar and was subsequently allowed to continue on a regular pay scale. However, the position remained purely temporary, and it was entirely at the discretion of the competent authority to disengage him without prior notice or without providing any reasons. The Government of Odisha’s Housing and Urban Development Department sanctioned seven posts on May 28, 1997, for the purpose of regularizing Tax Sarkars who were continuing in the municipality on a temporary basis. Although the petitioner’s candidature was considered by the competent authority, the selection and appointment of Tax Sarkars were not based solely on the government order dated May 28, 1997, but rather on the administrative discretion of the competent authority. 7. The selection committee, before passing the resolution on April 18, 1998, which rejected the petitioner’s name and included the name of Sri Durga Prasad Das, found that Sri Durga Prasad Das had superior educational qualifications and better work efficiency compared to the petitioner. The selection committee reserves the right to appoint candidates with better work efficiency, and such decisions are neither arbitrary nor illegal, falling purely within the administrative authority’s discretion which does not warrant judicial intervention. 8. In a letter dated October 17, 2012 (No. 29149/HUD), the Government in the Housing and Urban Development Department proposed to the Page 9 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Aug-2024 12:53:57 Finance Department the conversion of DLR/NMR workers engaged prior to April 12, 1993, to a work-charged establishment. During this period, the petitioner was 58 years, 8 months, and 14 days old, making him ineligible for regularization in the post of Tax Collector due to his age. Consequently, his application was rejected on November 5, 2013. The petitioner then prayed for the regularization of his service in the vacant post of peon, adhering to all procedural formalities. His request to be considered for the peon position was conveyed by the Executive Officer of Bhadrak Municipality (O.P No. 3) to the Under-Secretary of the Government on February 25, 2014. However, the petitioner retired on February 28, 2014, before this could be processed. 9. The petitioner served in the organization from January 12, 1982, to February 28, 2014. Despite not being a permanent employee, he enjoyed a long career in the office. During his tenure, Opposite Party No. 3 did not remove him, even though there were questions about his work efficiency. Throughout this period, the authority considered all of his prayers and requests. Additionally, the petitioner filed multiple writ petitions, interlocutory applications, and CMAPLs over time. The court has provided him ample opportunities to pursue his case on its merits during his service tenure. 10. Therefore, this Court does not deem it necessary to accede to the submission of the Petitioner. 11. With respect to the aforesaid discussion and the cases cited hereinabove, this Court is not inclined to entertain the prayer of the Petitioner. Page 10 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Aug-2024 12:53:57 12. This Writ Petition is hereby dismissed. Judge (Dr. S.K. Panigrahi) Orissa High Court, Cuttack, Dated the 31st July., 2024/ Page 11 of 11
Arguments
Executive Officer and adding one person namely Sri Durga Prasad Das and excluding the name of the Petitioner. The name of Sri Durga Prasad Das was not included in the list of seven (7) person given by the Executive Officer, Bhadrak Municipality. The resolution passed by the selecting committee did not assign any reason, as to why the name of the Petitioner was excluded. In the resolution, nothing was discussed regarding the Petitioner. The Petitioner was placed at Serial No.4 of the list provided by the Executive Officer, Bhadrak Municipality. (v) It is submitted that a proposal was placed by the Government in Housing & Urban Development Department before the Finance Department for conversion of the DLR/NMR workers engaged prior to 12.04.1993 to the field of work charge status. After getting concurrence Page 3 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Aug-2024 12:53:57 from the Finance Department, the Government in Housing & Urban Department the Petitioner against the vacant Post of Peon. However, the Petitioner was allowed retirement on superannuation on 28.02.2014 without being regularized. Therefore, the Petitioner is deprived of any post retirement benefits such as pension and gratuity etc. (vi) It is submitted that he was entitled for regularization in the Post of Tax Sarkar w.e.f. 18.04.1998 i.e. the date of regularization of his juniors. The Petitioner was initially appointed in the 1982. Considering his long continuance, a regular post was specifically created for the purpose of regularization of the Petitioner. The name of the Petitioner was placed by the Executive Officer, Bhadrak Municipality for the purpose of regularization before the Municipal Council. The Municipal Council, however, constituted a selection committee and excluded the name of the Petitioner without assign any reason. Since, the Juniors to the Petitioner have been regularized, the Petitioner was entitled for regularization w.e.f. the date of regularization of his juniors, Consequently, the Petitioner is entitled to pension and other post retirement benefits as a regular employee. (vii) Hence, this Writ Petition. II. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES: 3. Learned counsel for the Opposite Parties earnestly made the following submissions in support of his contentions. (i) The Petitioner had filed a Writ Petition in the year 1998 bearing OJC No. 8887/1998 before this Court with a prayer for a direction to the Opposite Page 4 of 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Aug-2024 12:53:57 Parties to appoint him in the post of Tax Sarkar. The Petitioner has submitted that the Writ Petition was dismissed for default as on 14th May 1999. (ii) It is submitted that in the year 2018 filed an Interlocutory Application being I.A. No. 92/2018 was filed seeking amendment in the Writ Petition. The Petitioner has further stated that while inquiring about the status of the I.A. No. 92/2018, he became aware about the dismissal of OJC and thereby, filed a CMAPL No. 198/2019. Subsequently, the said CMAPL was also dismissed on the grounds of delay and laches on 16th April 2019. (iii) However, the order dated 16th April 2019 passed by this Court narrates a diametrically opposite fact than what has been stated by the