The High Court
Case Details
Order No. 04. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 38359 of 2021 Hemanta Rout State of Odisha & others …. M/s. D. K. Panda, Advocate Petitioner -versus-
Legal Reasoning
…. Opposite Parties Mr. D. Mohapatra, A.S.C. Mr. S.N. Das, Advocate along with Mr. Abinash Acharya, Advocate appearing for the Sewerage Board CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 22.03.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel for the State and Mr. S.N. Das, learned counsel along with Mr. Abinash Acharya, learned counsel appearing for the Sewerage Board. Perused the pleadings of the parties as well as the documents annexed thereto. 3. The Petitioner has filed the present writ application with the following prayer: “The petitioner therefore most humbly prays that this Hon’ble Court be graciously pleased to issue rule NISI calling upon the opposite parties to show cause as to why the petitioner shall not be regularized in the post of Jr. Clerk or in similar other laying posts vacant and/or to be created: And as to why, the petitioner shall not be extended the benefits of regularization on and from the date of his juniors regularized in the // 2 // post of Jr. Clerk; And accordingly as to why, the consequential service & arrears quantified on and from his joining and discharging work of Jr. Clerk shall not be extended to the petitioner; And in case the opposite parties fail(s) to show cause or show insufficient cause to make the said rule absolute by issuance of an appropriate writ (s), order(s), direction(s) as this Hon’ble court may deen fit and proper. And/or to pass such other order(s), direction (s) as this Hon’ble Court deem fit and proper in the facts and circumstances of the present case.” 4. Learned counsel for the petitioner states that the petitioner has been continuing as a DLR employee under the Orissa Water Supply and Sewerage Board with effect from 12.08.1996, but till date he has not been regularized, although more than 28 years have passed in the meantime. He has referred to the case of State of Karnataka v. Umadevi, 2006(4) SCC 1, wherein in paragraph 53 the apex Court has held that the State Governments and their instrumentalities should take steps to regularize as a one-time measure the services of such irregularly appointed persons who have worked for ten years or more in duly sanctioned posts. Similar view has also been taken by the apex Court in State of Karnataka and others v. M.L.Keshari and others, 2010(II) OLR (SC) 982, wherein in paragraph 7 the apex Court has held as follows : “7. It is evident from the above that there is an exception to the general principles against ‘regularization’ enunciated in Umadevi 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 // 3 // 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 WP(C) No. 3921 of 2006 against sanctioned posts or where the persons appointed do not possesses 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 the process of open competitive- without undergoing selection, such appointments are considered to be irregular. the prescribed minimum qualifications, 5. In that view of the matter, since the petitioner is continuing as DLR employee under the Orissa Water Supply and Sewerage Board and completed about 25 years of service in the meantime and even though his appointment is irregular he should be regularized in service by following the principle of law laid down in the judgments of the apex Court in Umadevi and M.L.Keshari (supra), as well as Amarkanti Rai v. State of Bihar and others, (2015) 8 SCC 265. 6. Furthermore, this Court further directs that while considering the case of the Petitioner for regularization the Opposite Parties shall also keep in view the order passed in W.P.(C) No.3921 of 2006 disposed of on 16.07.2019 by this Court and which has been confirmed by the Hon’ble Supreme Court in an appeal filed by the Opposite Party-Orissa Water Supply & Sewerage Board in the shape of Special Leave to Appeal (C) No.9599 of 2020 disposed of on 17.11.2020. In the above noted appeal, the Hon’ble Supreme Court while dismissing the appeal of the Sewerage Board, has confirmed the order passed by the learned Coordinate bench. On a careful analysis of the factual backdrop of the above noted case it appears that the facts of the present case are almost identical to the facts of the aforesaid case. In such view of the matter, the Opposite Parties // 4 // are directed to consider the case of the Petitioner for regularization his service in the light of the order passed by the Coordinate Bench referred to hereinabove which has been confirmed by the Hon’ble Supreme Court within a period of two months from the date of communication of a certified copy of this order. 7. It is further directed that while considering the case of the Petitioner for regularization as his service as directed hereinabove, the Opposite Party cannot reject the claim only on the ground that there are no sanctioned posts. Further it is directed that in such eventuality, the Opposite Parties shall take a decision with regard to creation and sanctioned of posts to absorb/regularize of the Petitioner. In the event such decision is taken pursuant to the aforesaid direction and the same requires the concurrence of State, the State-Opposite Parties shall consider grant of concurrence keeping in mind that the Petitioner has been working for more than two decades and as such the nature of work they are performing perennial in nature. 8. With the aforesaid observation/ direction, the writ application stands disposed of. 9. Issue urgent certified copy of this order as per Rules. S.K. Rout ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Apr-2024 20:39:25