The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C ) No.32104 of 2023 Kamala Panda …. Petitioner Mr. P.C. Acharya, Adv. -versus- State of Odisha & Others … Opp. Parties Mr. S.K. Samal,AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 18.04.2024 10. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2.
Legal Reasoning
Heard learned counsel for the parties. 3. Petitioner who happens to be the wife of the deceased employee is before this Court challenging the order dt.09.06.2023 so passed by Opp. Party No.2 under Annexure-4. Vide the said order, prayer of the deceased employee to get the benefit of regularization of service and consequential sanction of all service and financial benefit was rejected. 3.1. Learned counsel for the Petitioner contended that Petitioner’s husband was initially appointed as an Ayurvedic Compounder/Pharmacist on adhoc basis vide order of appointment issued on 08.05.1987 under Annexure-1 with usual scale of pay. It is contended that pursuant to the said order, Petitioner’s husband joined on 13.05.1987 so reflected in the Service Book opened under Annexure-2.
Legal Reasoning
3.2. Learned counsel for the Petitioner contended that even though the deceased employee continued on ad-hoc basis in terms of the order of appointment issued under Annexure-1 where he joined on 13.05.1987 till he attained the age of superannuation on 31.01.2023 but no step was taken to regularize him and accordingly entitling him to get the benefit of pension and pensionary benefits. 3.3. But prior to his superannuation, the deceased employee approached this Court by filing WP (C) No.660 of 2023 with a prayer to direct Opp. Party Nos.1 & 2 to regularize his services as against the post of Compounder and to sanction him with all service and financial benefits. 3.4. This Court vide order dt.12.01.2023 directed Opp. Party No.2 to take a decision on the claim of the deceased employee. However, in the meantime, the deceased employee not only retired from his services on attaining the age of superannuation on 31.01.2023, but subsequent thereto also died on 13.02.2023. After his death, the impugned order was passed on 09.06.2023 under Annexure-4 wherein the claim of the deceased employee with regard to regularization of his service was rejected. 3.5. Learned counsel for the Petitioner contended that since the deceased employee continued on ad-hoc basis w.e.f 13.05.1987 till he attained the age of superannuation on 31.01.2023, he was eligible and entitled to get the benefit of regularization and consequential sanction of pension and other pensionary benefits and so also family pension on his death as due and admissible to the present Petitioner. But on the ground that appointment of the deceased employee since was as against a reserved vacancy and he continued in the same capacity till he attained the age of superannuation, he was not eligible for regularization and consequential service and financial benefits. 3.6. It is contended that since the deceased employee was appointed as against a reserved vacancy and the said post was never filled up by taking due selection process till the deceased employee attained the age of superannuation on 31.08.2023, the ground on which the claim of the deceased employee was rejected vide the impugned order under Annexure-4 is not sustainable in the eye of law. It is
Decision
accordingly contended that the impugned order is liable for interference of this Court. 4. Mr. S.K. Samal, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No.1 to 3. It is contended that the deceased employee though was appointed on adhoc basis vide order dt.08.05.1987 under Annexure-1, but in the said order, it was clearly indicated that he will continue till the post is filled up by reserve candidate or the same is deserved, whichever is earlier. 4.1. It is also contended that in view of the amendment carried to the Orissa Reservation of Vacancies In Post and Services (For Scheduled Castes and Scheduled Tribes) Act, 1975, vide Orissa Act 11 of 1992,restriction was imposed to the effect that de-reservation of reserved vacancies meant for S.C/S.T/O.B.C in respect of Class-III & Class-IV posts and services cannot be made. 4.2. Secondly, basing on the decision of the Apex Court in the case of M. Nagraj & Other Vs. U.O.I, Govt. in S.T & S.C Development Deptt. Vide letter dt.15.03.2007 communicated the Principle of reservation in posts and services for S.C,S.T & O.B.C. It was clearly indicated in the letter that for want of candidate in the reserved category, post may remain unfilled. 4.3. It is contended that since the post in which the deceased employee continued till his superannuation was never de-reserved, nor it was permissible to de-reserve it, claim of the deceased employee to get the benefit of regularization was rightly rejected vide the impugned order under Annexure-4and it requires no interference. 5. To the submission made by the learned Addl. Govt. Advocate, learned counsel appearing for the Petitioner made further submission basing on the stand taken in the rejoinder affidavit. It is contended that similar benefit though was extended in favour of similarly situated employee, but the deceased employee was discriminated with passing of the impugned order in question. 5.1. Mr. Acharya, learned counsel for the Petitioner further contended that since the post was never filled up by reserve category candidate at any point of time till the deceased employee attained the age of superannuation on 31.01.2023 and the deceased employees continued on adhoc basis for the period 13.05.1987 to 31.01.2023, in view of the decision of the Hon’ble Apex Court in the case of The State of Gujarat & Others Vs. Talsibhai Dhanjibhai Patel, reported in 2022 LiveLaw (SC) 187, the deceased employee is eligible and entitled to get the benefit of regularization and so also sanction of pension and other pensionary benefits including family pension in favour of the Petitioner. Hon’ble Apex Court in the said decision has held as follows: It is unfortunate tht the State continued to take the services of the respondent as an ad-hoc for 30 years and thereafter now to contend that as the services rendered by the respondent are ad-hoc, he is not entitled to pension/pensionary benefit. The State cannot be permitted to take the benefit of its own wrong. To take the services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continues service shall not be eligible for pension is nothing but reasonable. As a welfare State, the State as such ought not to have taken such a stand. In the present case, the High Court has not committed any error in direct the State to pay pensionary benefits to the respondent who has retired after rendering more than 30 years of service. Hence, the Special Leave Petition stands dismissed. 5.2. Mr. P.C. Acharya also relied on another decision in the case of Amarkanta Rai Vs. State of Bihar and Others, reported in 2015 SCC, Online SC 214 . Hon’ble Apex Court in in paragraph-4,11,12,13,14 & 15 has held as follows: 4. The learned counsel for the appellant contended that the appellant served on the post for 29 years on daily wages and even as per the decision in para 53 in Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] , irregular appointment of employees who have worked for more than 10 years should be considered on merits. It was contended that the appellant has been working in a sanctioned post and his appointment was not illegal but in the facts and circumstances of the case, his appointment could only be irregular appointment entitling him for regularisation. It was submitted that the three-member Committee as well as the High Court did not keep in view that the case of the appellant was recommended for regularisation. 11. Elaborating upon the principles laid down in Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] and explaining the difference between irregular and illegal appointments in State of Karnataka v. M.L. Kesari [(2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] , this Court held as under: (M.L. Kesari case [(2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826] , SCC p. 250, para 7) “7. It is evident from the above that there is an exception to ‘regularisation’ enunciated the general principles against in Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] , if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.” 12. Applying the ratio of Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] , this Court in Nihal Singh v. State of Punjab [(2013) 14 SCC 65 : (2013) 3 SCC (L&S) 85] directed the absorption of the Special Police Officers in the services of the State of Punjab holding as under: (Nihal Singh case [(2013) 14 SCC 65 : (2013) 3 SCC (L&S) 85] , SCC pp. 79-80, paras 35-36) “35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with 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 is the financial mind while creating or abolishing posts 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 domain of the legislature. 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 on a 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.” 13. In our view, the exception carved out in para 53 of Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] is applicable to the facts of the present case. There is no material placed on record by the respondents that the appellant has been lacking any qualification or bore any blemish record during his employment for over two decades. It is pertinent to note that services of similarly situated persons on daily wages for regularisation viz. one Yatindra Kumar Mishra who was appointed on daily wages on the post of clerk was regularised w.e.f. 1987. The appellant although initially working against unsanctioned post, the appellant was working continuously since 3-1-2002 against sanctioned post. Since there is no material placed on record regarding the details whether any other night guard was appointed against the sanctioned post, in the facts and circumstances of the case, we are inclined to award monetary benefits to be paid from 1-1-2010. 14. Considering the facts and circumstances of the case that the appellant has served the University for more than 29 years on the post of night guard and that he has served the College on daily wages, in the interest of justice, the authorities are directed the appellant retrospectively w.e.f. 3-1-2002 (the date on which he rejoined the post as per the direction of the Registrar). the services of regularise to impugned order of the High Court 15. The in Amarkant Rai v. State of Bihar [ LPA No. 1312 of 2012, order dated 20-2- 2013 (Pat), 2013 SCC OnLine Pat 775] dated 20-2-2013 is set aside and this appeal is allowed. The authorities are directed to notionally regularise the services of the appellant retrospectively w.e.f. 3-1-2002, or the date on which the post became vacant whichever is later and without monetary benefit for the above period. However, the appellant shall be entitled to monetary benefits from 1-1-2010. The period from 3-1-2002 shall be taken for continuity of service and pensionary benefits. 5.3. It is also fairly contended that on regularization of the services of the deceased employee, Petitioner’s claim be confined with regard to grant of family Pension only and she will not claim any retirement benefits as due to the deceased employee. 6. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that the deceased employee was appointed on adhoc basis vide order of appointment issued on 08.05.1987 under Annexure-1. Pursuant to the said order, the deceased employee joined on adhoc basis on 13.05.1987. Even though the deceased employee continued on adhoc basis till he attained the age of superannuation on 31.01.2023, but Petitioner was never regularized nor the post was filled up by candidates belonging to reserved category. No document has also been filed in the counter showing any step taken by the Deptt. to fill up the post either by de-reserving the same or by candidate belonging to reserve category. The only plea taken by Opp. Party that in view of the amendment carried to the provisions of the 1975 Act, vide Orissa Act 11 of 1992 the post could not be de-reserved is not a ground to deny the benefit of regularization in favour of the deceased employee. Since the deceased employee continued on adhoc basis which is not disputed for the period from 13.05.1987 to 31.01.2023, the ground on which the claim of the deceased employee was rejected vide order dt.09.06.2023 under Annexure-7 is not sustainable in the eye of law. 6.1. In view of the same and placing reliance on the decisions as cited supra, this Court is inclined to quash office order dt.09.06.2023 so passed by Opp. Party NO.2 under Annexure-4. While quashing the same, this Court direct Opp. Party NO.2 to pass an appropriate order absorbing the deceased employee in the regular establishment against the post in question or by creating a supernumerary post. However, in view of the submission of the learned counsel for the Petitioner that petitioner will not raise any claim to get the retiral dues as due to the deceased employee save and except family pension, this Court directs Opp. Party No.2 to sanction and release family pension in favour of the Petitioner as due and admissible from the date of her entitlement within a period of three (3) months from the date of receipt of this order. Arrear family pension as due and admissible be also released within the aforesaid time period. With the aforesaid observation, the Writ Petition is disposed of. sangita (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authenticaitn of order Location: high court of orissa, cuttack Date: 24-Apr-2024 14:40:29