The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.35091 of 2020 Rajalaxmi Mishra …. Petitioner Mr. S.K. Das, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S. Jena, AGA Mr. P.S. Nayak, Advocate (Opp. Party No. 2) Mr. B. Dash, Advocate (Opp. Party No. 3) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 08.11.2023 Order No 08. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
approached this Court in W.P.(C) No. 5748 of 2014. The said writ
Arguments
2. Heard Mr. S.K. Das, learned counsel for the Petitioner, Mr. S. Jena, learned Addl. Govt. Advocate appearing for the State, Mr. P.S. Nayak, learned counsel appearing for the Opp. Party No. 2 and Mr. B. Dash, learned counsel appearing for the Opp. Party No. 3. 3. The Petitioner has filed the present writ petition inter alia with the following prayer:- “Under the above circumstances it is therefore humbly prayed that the Hon’ble Court be graciously pleased to quash the order dtd.17.11.2020 of the Opposite Party No. 3 communicated on 25.11.2020 under Annexure-11 and direct the Opposite Parties to regularize the service of the petitioner as a Faculty of CIME and to grant her all consequential // 2 // service and financial benefits within a stipulated period as deem fit and proper; And/or issue any other appropriate writ/writs, order/orders, direction/directions as deem fit and proper in the fitness of the case; And for this act of this kindness as in duty bound the petitioner shall ever pray.” 4. It is contended that the Petitioner though was engaged as a Lecturer on contractual basis vide order of engagement issued in her favour on 23.06.2004 under Annexure-3 and subsequent order issued on 30.06.2005 under Annexure-4, but no step when was taken to regularize the services of the Petitioner, Petitioner
Decision
petition was disposed of on 17.09.2019 inter alia with the following order:- “Heard Shri Mohapatra, learned counsel for the petitioners and Shri Dash, learned counsel for the opposite party no.3. This Writ Petition involves the following prayer: "It is therefore prayed that this Hon'ble Court may graciously be pleased to: I) Admit the Writ application; II) Call for the records; III) Issue a writ in the nature of MANDAMUS directing Opp. Parties more particularly Opp. Party No.2 and Opp. Party No.3 to regularize the service of the present petitioners as against their respective posts and release regular salary attached to the said posts within a reasonable time to be stipulated by this Hon'ble Court; Issue necessary direction to the Opp. Party No.3 to extend the contract appointment of the petitioners till regularization of their services and allow till regular recruitment is made in terms of the Rules; to continue them IV) Page 2 of 7 // 3 // V) And/or pass order/orders, direction/ directions as this Hon'ble Court may think fit and proper for the ends of justice;" other such During course of submission it has been brought to the notice of this Court the order dated 13.06.2018 passed by this Court in disposal of the W.P.(C) No.9783 of 2018, where this Court was pleased to direct the opposite parties to allow the petitioners therein to continue in the post of lecturer on contractual basis till regular appointment is made. For the application of the order dated 13.06 2018 involving WP(C) No.9783 of 2018 to W.P(C) No.5748 of 2014 2 As the case at hand, this Court while disposing this Writ Petition directs the opposite parties to allow the petitioners to continue to the post of lecturer on contractual basis till their posts are filled up on regular basis. Considering the further request that a case for regularization involving the service of the petitioners is still pending consideration, this Court directs, in the event, any such application for regularization of service is still pending, the authority competent is directed to take a decision thereon as appropriate involving the parties concerned. Writ the above observation and direction this Writ petition stands disposed of. Issue urgent certified copy as per rules.” 4.1. Learned counsel for the Petitioner contended that in terms of the order passed on 17.09.2019 though the Petitioner is continuing as on date on contractual basis, but no step has been taken by the College to fill up the post on regular basis. Accordingly, the Petitioner is deprived to get the benefit of regular appointment. It is contended that in terms of the said order the prayer of the Petitioner for regularization has also been rejected vide the impugned order dtd.17.11.2020 under Annexure-11. 4.2. Learned counsel for the Petitioner contended that taking into account her initial engagement on contractual basis vide order dtd.23.06.2004 under Annexure-3 and her long continuance for the last 19 years, Petitioner has accrued a right of regularization in her Page 3 of 7 // 4 // favour in view of the decision of the Hon’ble Apex Court in the case of State of Karnataka & Ors. Vs. Umadevi & Ors. (AIR 2006 SC 1806), State of Karnataka & Ors. Vs. M.L. Keshari & Ors. (2010 (9) SCC 247), Nihal Singh & Ors. Vs. State of Punjab & Ors. (2013 (14) SCC 65), Amarkanta Rai Vs. STate of Bihar (2015 (8) SCC 265) as well as the decision of this Court passed in the Case of Subrat Narayan Das & Ors. Vs. State of Odish & Ors. (W.P.(C) No. 18659 of 2016) and Dr. Prasanna Kumar Mishra Vs. State of Odisha & Ors. (2016 (I) ILR CUT 373). But Opp. Party No. 3 without proper appreciation of the Petitioner’s claim, rejected the prayer vide order dtd.17.11.2020 under Annexure-11, which is not sustainable in the eye of law. 5. Mr. P.S. Nayak, learned counsel appearing for the BPUT on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No. 2. It is contended that the College-Opp. Party No. 3 is a Constituent College of the University. It is also contended that in order to regularize the services of the Petitioner and similarly situated employees working on contractual basis in the college of Opp. Party No. 3, though the University moved the Govt.-Opp. Party No. 1 for creation of required no. of posts on 14.10.2014, but the said prayer was rejected by the Govt. vide letter dtd.01.12.2014 so filed in the counter of Opp. Party No. 3 and annexed as Annexure-V/3. It is contended by Mr. Nayak that unless and until the posts are created by the Govt., the services of the Petitioner cannot be regularized in terms of the order passed by this Court on 17.09.2019. 6. Mr. B. Dash, learned counsel appearing for the College on the other hand contended that the Petitioner is continuing on Page 4 of 7 // 5 // contractual basis in terms of the order issued under Annexure-3 and subsequent order issued under Annexure-4. It is contended that Petitioner making similar prayer of regularization had earlier approached this Court in W.P.(C) No. 5748 of 2014. This Court while disposing the writ petition allowed the Petitioner to continue till the post is regularly filled up. Since no post has been created basing on the request made by the University, the College is not in a position to go for regular selection in terms of the order passed by this Court on 17.09.2019 and another order passed on 13.06.2018 in W.P.(C) No. 9783 of 2018. 6.1. Mr. Dash also contended that since in terms of order dtd.17.09.2019, passed in W.P.(C) No. 5748 of 2014, Petitioner was allowed to continue till the post is regularly filled up, Petitioner has no right to claim for regularization of her services. However, considering the direction issued by this Court in its order dtd.17.09.2019, the prayer for regularization has been rejected vide the impugned order dtd.17.11.2020 under Annexure-11. 7. Even though notice of the writ petition has been issued since 19.01.2021, but no counter affidavit has been filed by the State- Opp. Party. However, Mr. Jena, learned Addl. Govt. Advocate contended that Opp. Party No. 1 permitted Opp. Party No. 3 to file the counter on his behalf and accordingly counter affidavit has been filed by Opp. Party No. 3. Learned AGA however does not dispute the request made by the University for creation of the post, which the Department regretted vide letter dtd.01.12.2014 so enclosed as Annexure-V/3 to the counter, filed by Opp. Party No. 3. 8. Having heard learned counsel appearing for the Parties and taking into account the nature of dispute as well as the order passed Page 5 of 7 // 6 // by this Court on 17.09.2019 in W.P.(C) No. 5748 of 2014 and 13.06.2018 in W.P.(C) No. 9783 of 2018, this Court is of the view that Opp. Party No. 1 is required to take a fresh decision with regard to the claim of the Petitioner for her regularization with creation of the post as requested by the University in the year 2014, which as per the considered view of this Court has been regretted without assigning any reason. 8.1. It is also the view of this Court that in absence of creation of posts, no order of regularization can be extended by the College. However, taking into account the order passed in the earlier two writ petitions by this Court, this Court is of the view that Opp. Party No. 3 instead of rejecting the claim of the Petitioner could have moved the University to take appropriate step in the matter. Since without moving the University the prayer has been rejected vide the impugned order, this Court is inclined to quash the same. While quashing the impugned order dtd.17.11.2020, this Court dispose of the writ petition with a direction on the Opp. Party No. 1 to take a fresh decision with regard to creation of required no. of posts in respect of the college in question. Such a fresh decision be taken taking into account the long continuance of the Petitioner and similarly situated employees within a period of six (6) weeks from the date of receipt of a fresh proposal by Opp. Party No. 2. Opp. Party No. 2 is directed to submit a fresh proposal taking into account the present requirement within a period of three (3) weeks from the date of receipt of this order. However, Opp. Party No. 1 is directed to take into consideration the absorption of retrenched employees of Odisha State Electronics Development Corporation in the college of Opp. Party No. 3 on regular basis while taking a decision with regard to creation of posts. Page 6 of 7 // 7 // 8.2. On such consideration if necessary posts are created, appropriate step be taken by Opp. Party Nos. 2 & 3 to regularize the services of the Petitioner. 9. The writ petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Nov-2023 19:40:27 Page 7 of 7