Applications under Article 226 of Constitution of India. AFR Sunirmal Mukherjee .… v. State of Odisha and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 19169 of 2012 & W.P.(C) No. 28001 of 2019 Applications under Article 226 of Constitution of India. AFR Sunirmal Mukherjee .…… Petitioner --------------- - Versus - State of Odisha and others ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner : M/s. Manomoy Basu & M. Kanungo, Advocates. For Opp. Parties : Mr. S. Pattanaik _________________________________________________________ CORAM: Addl. Government Advocate JUSTICE SASHIKANTA MISHRA JUDGMENT 26th September, 2023 SASHIKANTA MISHRA, J. Both the writ applications have been filed by the same petitioner and involve similar facts and prayer for which both were heard together and are being disposed of by this common judgment. 2. The petitioner was engaged as a peon on daily wage basis on 24.09.1988 in the Research Wing of Shree Page 1 of 11 Jagannath Sanskrit Visvavidyalaya, Puri. He was paid daily wage of Rs.10/-. The Research Wing was converted to a full- fledged Centre of Advanced Research in Sanskrit (CARS) in the year 1992. By order dated 17.08.2005, the Government in Department of Higher Education granted approval for creation of three posts of Research Officer at consolidated salary of Rs.7,500/- per month, one Clerk-cum-Typist at consolidated salary of Rs.3,000/- per month and one peon at consolidated salary of Rs.2,500/- per month. The petitioner was accordingly paid the aforementioned amount as per order dated 23.08.2005 of the Government. On 09.09.2016, the Registrar of the University furnished relevant information to the Government with regard to the petitioner indicating therein that he was receiving consolidated pay of Rs.4440/- and that the posts had been sanctioned by the Government vide order dated 17.08.2005. It was also specifically mentioned that he had joined in the post on 24.09.1988. In spite of working for such long period, the petitioner’s service was not regularised. The University in its letter dated 28.11.2008 submitted a proposal for granting regular scale of pay and other benefits to the employees of the Research Page 2 of 11 Centre. Same was followed by some correspondence between the University and the Government but no fruitful result ensued. The petitioner therefore, approached this Court in W.P.(C) No.19169 of 2012 seeking the following relief: “The petitioner therefore, most humbly prays that your Lordship may be graciously pleased to Admit this writ application, issue notice to the opposite parties, and upon hearing, be pleased to issue writ of mandamus directing the opposite parties to regularise the services of the petitioner with all service benefits for which the petitioner would be lawfully entitled consequent on such regularization, and pass any such order(s), issue direction(s), or writ(s) as would be deemed proper. And for which act of kindness, the petitioner as in duty bound, shall ever pray.” 3. During pendency of the above mentioned writ application, the petitioner was conferred with temporary status as per the order dated 29.11.2018 of the Vice- Chancellor of the University. Significantly, said order was passed after his retirement on superannuation on 31.08.2018. Temporary status was conferred on him w.e.f. 04.09.2012. In view of such development, the petitioner approached this Court again in W.P.(C) No. 28001 of 2019 with the following prayer. “The petitioner therefore prays that this Hon’ble Court may graciously be pleased to admit this Writ Page 3 of 11 Petition, issue Rule NISI in the nature of Writ of Mandamus or any other writ(s) as this Hon’ble Court deems fit and proper by calling upon the opp.parties to show cause as to why the impugned letter dtd.23.08.2018 and office order dtd.29.11.2018 passed by the Opp.parties under annexures-5 & 7 shall not be quashed and if the Opp.Parties fail to show cause or show insufficient cause, the Rule be made absolute; And the impugned letter dtd.23.08.2018 and Office Order dtd.29.11.2018 passed by the opp.party no.3 under annexures-5 & 7 may kindly be quashed and the opp.parties be directed to reassess the financial benefit as admissible to the petitioner in the post of Peon by virtue of G.O. No.26319/HE dtd.17.08.2005 till the date of retirement of the petitioner; And may pass any such other order/orders as this Hon’ble Court deems fit and proper;” 4. Notices of both the writ applications were served upon the University but there was no appearance from its side despite repeated chances being granted by this Court. The writ applications were therefore, heard in presence of the counsel for the petitioner and the State Counsel. 5.
Legal Reasoning
Mr. M. Basu, learned counsel for the petitioner contends that having worked for nearly 30 years, the petitioner is entitled to be regularised in service but such benefit was not granted to him and on the contrary, he was conferred with temporary status, that too after his retirement. Mr. Basu further contends that even otherwise Page 4 of 11 the post, in which the petitioner was working since 1988, was created and sanctioned by the Government in the year 2005. There is no dispute that the petitioner has rendered continuous service from his date of joining. Therefore, having extracted work from the petitioner for such a long period against a sanctioned post, conferment of temporary status instead of regularising his services is illegal and grossly violative of the constitutional principles. 6. Mr. S. Pattanayak, learned Addl. Government Advocate contends that mere long continuance in a post does not automatically confer a right on an employee to claim regularisation. Moreover, it has to be seen whether his initial entry was as per Rules. 7. The facts of the case as averred by the petitioner in the writ petition find support from the documents of the University enclosed thereto. The petitioner was engaged as a peon on daily wage basis on payment of Rs.10/- per day on 24.09.1988. The order dated 17.08.2005, copy of which is enclosed under Annexure-2 series, shows that the Government accorded sanction for creation of some posts for Page 5 of 11 the Advanced Research Centre in Sanskrit in the University including the post of peon carrying consolidated pay of Rs.2,500/-. The order dated 23.08.2005, also enclosed under Annexure-2 series shows that the Government also allowed consolidated salary of Rs.2,500/- per month specifically mentioning the name of the petitioner. This implies, the engagement of the petitioner in the post of Peon was accepted by the Government. The letter dated 09.09.2016 of the Registrar (copy enclosed as Annexure-3) shows that by such time, the petitioner’s consolidated salary was enhanced to Rs.4400/- and it was also specifically mentioned that he was selected through due process and the principle of reservation was also followed. Thus, it appears that the fact that the petitioner was continuing against a sanctioned post on consolidated remuneration has not been disputed nor questioned either by the Government or by the University at any point of time. Under such circumstances, it is to be decided whether the petitioner’s claim for regularisation bears any merit. 8. In a case involving similar facts, i.e. Sheo Narain Nagar and others vs. State of Uttar Pradesh and another, Page 6 of 11 reported in (2018) 13 SCC 432, the Supreme Court deprecated the practice of conferring temporary status on the petitioners of the said case with retrospective effect. The Court held as follows: continued. Though “7. When we consider the prevailing scenario, it is painful to note that the decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily-wage basis, etc. in exploitative forms. This situation was not envisaged by Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] . The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] has been ignored and conveniently overlooked by various State Governments/authorities. We regretfully make the observation that Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] has not been implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularising the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Articles 14, 16 read with Article 34(1)(d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India [D.S. Nakara v. Union of India, (1983) 1 SCC 305 : 1983 SCC (L&S) 145 : AIR 1983 SC 130] , from cradle to grave. In heydays of Page 7 of 11 life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits, etc. There is clear contravention of constitutional provisions and aspiration of downtrodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] . Thus, the time has come to stop the situation where Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] laid down that there should not be back door entry regular and every post should be employment, but a new device has been adopted for making appointment on payment of paltry system on contract/ad hoc basis or otherwise. This kind of action is not permissible when we consider the pith and substance of true spirit in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] . filled by the regularisation of 8. Coming to the facts of the instant case, there was a direction issued way back in the year 1999, to the appellants. consider However, regularisation was not done. The respondents chose to give minimum of the pay scale, which was available to the regular employees, way back in the year 2000 and by passing an order, the appellants were also conferred temporary status in the year 2006, with retrospective effect on 2-10-2002. As the respondents have themselves chosen to confer a temporary status to the employees, as such there was requirement at work and posts were also available at the particular point of time when order was passed. Thus, the submission raised by the learned counsel for the respondent that posts were not available, their own action. Obviously, the order was passed considering the long is belied by Page 8 of 11 period of services rendered by the appellants, which were taken on exploitative terms. 9. The High Court dismissed the writ application relying on the decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] . But the appellants were employed basically in the year 1993; they had rendered service for three years, when they were offered the service on contract basis; it was not the case of back door entry; and there were no Rules in place for offering such kind of appointment. Thus, the appointment could not be said to be illegal and in contravention of Rules, as there were no such Rules available at the relevant point of time, when their temporary status was conferred w.e.f. 2-10-2002. The appellants were required to be appointed on regular basis as a one- time measure, as laid down in para 53 of Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] . Since the appellants had completed 10 years of service and temporary status had been given by the respondents with retrospective effect from 2-10-2002, we direct that the services of the appellants be regularised from the said date i.e. 2-10-2002, consequential benefits and the arrears of pay also to be paid to the appellants within a period of three months from today.” 9. This Court after considering the facts of the case in light of the law laid down by the Supreme Court in the case of Sheo Narain Nagar (supra) feels persuaded to hold that the action of the Government authorities in conferring temporary status on the petitioner retrospectively and that too, after his retirement, is entirely unconscionable in law. This is a classic case where work was extracted from a low paid employee for as long as nearly three decades but when it Page 9 of 11 came to regularising his service, he was conferred temporary status, which is akin to adding insult to injury. 10. Perusal of the impugned order, enclosed as Annexure-8 reveals that the same was issued by the Government purportedly as per Finance Department Resolution No. 31715/F dated 04.09.2012 and No. 17815/F dated 30.05.2018. In view of what has been discussed above and observed by the Supreme Court in the case of Sheo Narain Nagar (supra), this is nothing but an employment given on exploitative terms, particularly when it is not the case of the authorities that the petitioner’s entry into the Service was illegal. This Court therefore, holds that the petitioner has made out a good case for interference by this Court. 11.
Decision
In the result, both the writ applications are allowed. The opposite parties are directed to issue necessary orders to regularise the services of the petitioner from the date of sanction of the post by the Government i.e. 17.08.2005 with all consequential service and financial benefits from the said date after adjusting the amount already received by him Page 10 of 11 towards consolidated remuneration and as a temporary status conferred employee. Since the petitioner has already superannuated from service, the above exercise should be completed within two months from the date of production of certified copy of this order by the petitioner. …………………………. Sashikanta Mishra, Judge High Court of Orissa, Cuttack. The 26th September, 2023/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 26-Sep-2023 14:20:23 Page 11 of 11