Moti Dei State of Odisha & Others … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No. 1362 of 2022 Moti Dei State of Odisha & Others ….. Vs. ….. Appellant Mr.R.N.Nayak, Advocate Respondents Mr.M.K.Khuntia, AGA CORAM: THE CHIEF JUSTICE JUSTICE SAVITRI RATHO
Decision
ORDER 29.08.2023 Order No. 11. 1. 2. This matter is taken up through hybrid mode. Heard Mr.R.N.Nayak, learned counsel appearing for the appellant and Mr.M.K.Khuntia, learned Addl. Government Advocate appearing for the respondents. 3. By means of this intra–court appeal, the order dated 20.09.2022 passed by the learned Single Judge in W.P. (C) No.39394 of 2021 has been challenged. By the said order, the learned Single Judge has observed that the appellant has rendered more than 25 years of service as Class-IV employee (Peon) in M.S.High School, Baramba and Government Girls High School, Baramba on ad hoc basis. It is also stated by the learned Single Judge that the appellant was getting regular scale as she was engaged Bichi on ad hoc basis. According to the respondents, the appellant Page 1 of 5 continued in service on 44 days basis with one day break in between the two spells of appointment. However, learned counsel for the appellant has submitted that from the order dated 3rd May, 2001, it is apparent that the appellant was allowed to continue against the existing vacancy until further orders. 4. We have carefully examined the said order and found that the terms and conditions are similar to that of the first engagement order dated 12.06.1996. But true it is that the appellant was serving against the existing vacancy. But she had no right to regularization. Being aggrieved, the appellant filed a writ petition earlier and that writ petition was disposed of directing the authorities to consider the representation of the petitioner for regularization. The learned Single Judge while dismissing the writ petition has observed inter alia that the appointment of the petitioner (the appellant herein) and continuance in the service was against a non-sanctioned post. The appointment was beyond the rules and no procedure was followed while appointing her as peon. The petitioner was appointed on 44 days basis and it was extended from time to time with one day break as stated. She was getting the same salary as attached to the regular post. She also got revised scale of pay under the ORSP Rule, 2008 as per the Finance Department Resolution dated 21.10.2010. Having regard to the case of Secretary, State of Karnataka and others Vs. Page 2 of 5 Uma Devi (3) and others: (2006) 4 SCC 01, it has been observed that service of a person cannot be regularized solely on the basis of the long tenure that he/she has served if the appointment is illegal. According to the learned Single Judge, the appointment of the appellant was illegal. The said observation has been seriously criticized by Mr.Nayak, learned counsel appearing for the appellant. 5. Mr. Nayak, learned counsel has submitted that if the appointment was illegal, how the authorities had allowed the appellant to serve for a such a longer time. He has also referred to Umadevi’s prescription that whenever an appointment is discovered to be illegal, immediate action for termination has to be taken. He has contended on the basis of the said analogy that we should draw an inference that the appointment of the appellant was not illegal. It may be irregular. According to Mr. Nayak, learned counsel, in Umadevi’s case it has been observed that irregular appointments which are more than 10 years should be considered for regularization. 6. On the other hand, Mr.M.K.Khuntia, learned Addl. Government Advocate has submitted that long or short term of such services is immaterial, when it has been categorically provided that after a spell of 44 days, the service will face a break of one day. That apart, Mr. Khuntia, learned Addl. Government Advocate has pointed Page 3 of 5 out that the appellant has already retired from service. As such, there cannot be any question of regularization. At this juncture, Mr.Nayak, learned counsel has strenuously urged before this Court to direct the opposite parties to give a notional regularization. 7. Having appreciated the attending facts, we do not find any substance in the submission of Mr.Nayak, learned counsel for notional regularization. Such notional regularization can be directed by the Court only when there is a scheme in force and a quasi right is created in favour of the temporary or contingent employee. But, this is not the case here. Therefore, we reject that contention. However, we find sufficient force in the submission of Mr. Nayak, learned counsel that the appellant has served for 27 years on ad hoc basis enjoying the benefit of pay in the regular scale and other benefits like the regular employees. Therefore, for the period she had served there cannot be any arrear benefits on account of pay and allowances. What has distressed us is that after rendering 27 years of service, the appellant did not get any post-retiral benefit because of her status as ad hoc employee. In absence of any law, the Court cannot direct the authorities to release any retirement benefit like pension, gratuity etc. Unless an employee is in regular establishment, gratuity cannot be paid. In such circumstances, we direct the opposite party No.1 to consider the long Page 4 of 5 tenure of the appellant and take a decision on humane consideration whether any lump sum retirement benefit can be accorded to the appellant or not. For that purpose, the respondent No.1 may frame an appropriate policy forthwith. For this purpose, the appellant shall file a representation to the respondent No.1. Such representation shall be filed by the appellant within a period of 15 days from today. A copy of this order be furnished with the said representation. On receipt of such representation, the respondent No.1 shall take decision thereon within a period of two months from the date of receipt of the representation. We would further observe that at the time of consideration, the respondent No.1 shall consider the long term of service that the appellant has rendered. We expect that the said consideration will be humane consideration. 8. Subject to the above observations, this appeal stands disposed of. 9. A copy of this order be supplied to Mr. Khuntia, learned Addl. Government Advocate appearing for the opposite parties-State. Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 01-Sep-2023 15:04:16 (S.Talapatra) Chief Justice (Savitri Ratho) Judge Page 5 of 5