Orissa High Court
Rajendra Kumar Nayak vs Orissa Mining Corporation Limited And ... on 1 August, 2017
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
OJC NO. 11051 OF 2000
In the matter of an application under Article 226 of the
Constitution of India.
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Rajendra Kumar Nayak .... Petitioner
AFR
-Versus-
Orissa Mining Corporation
Limited and others .... Opp. Parties
For petitioner : Mr. R.K. Rath, Sr. Advocate
along with M/s. Y. Das, N.C.
Mohanty, R. Sahu, P.K. Dhal, B.B.
Panda, A.K. Biswal and
B.P. Mohapatra, Advocates.
For opp. parties : M/s. P.K. Mishra, A.K. Panda and
S.S. Mishra, Advocates
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PRESENT
THE HONOURABLE DR. JUSTICE B.R. SARANGI
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Date of hearing : 24.07.2017 : Date of Judgment : 01.08.2017
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DR. B.R. SARANGI, J The Orissa Mining Corporation Limited (OMCL),
a Government of Odisha Undertaking, by office order dated
11.04.1987at Annexure-1, appointed the petitioner as Worksirkar Grade-II at Civil Section, Barbil for a period of 89 2 days with effect from 13.04.1987 to 10.07.1987 in the scale of Rs.750-1150/- with usual allowance as admissible subject to the terms and conditions mentioned therein. Pursuant thereto, the petitioner joined in the said post on 13.04.1987. The term of his service was extended from time to time and, consequent upon the decision of the Board of Directors in its 297th meeting held on 24.12.1994 which was circulated on 14.07.1995, the petitioner is continuing in service till date without any break. Even though the petitioner was joined as Worksirkar Grade-II, he has been performing the duty of a Junior Assistant from the date of his joining.
2. The General Manager, OMCL, Barbil requested the Managing Director, OMCL on 12.04.1988 to give appointment to the petitioner in the post of Legal Assistant and to post him at Barbil, as he has got requisite qualification and experience at Bar including additional advantage of his service experience as a Junior Assistant in the office of the Advocate General. Time and again letters were issued by the authority, under which the petitioner was rendering service, to absorb him at least in the post of Junior Assistant taking into consideration his efficiency, qualification and nature of duty discharged by him. The Manager 3 (Personal & Administration), by his letter dated 26.02.1992, intimated the Special Officer, OMCL that the OMCL had adopted a principle that persons occupying lower posts, if found qualified for the higher post, could be considered subject to vacancy and suitability, and that the case of the petitioner being one of such cases, since he had acquired sufficient knowledge about the industrial working and industrial disputes, his service would be useful to the Corporation, if he was considered for the post of Legal Assistant or Junior Assistant (Legal). Even though the petitioner made series of representations to absorb him, the authorities turned deaf ear. But by letter dated 01.03.2014, the persons appointed much after the petitioner have been regularized and, consequentially, the petitioner has been discriminated. Therefore, he has approached this Court by filing the present writ application seeking regularization of his service with all consequential and financial benefits as admissible to the post of Junior Assistant in the OMCL.
3. Mr. R.K. Rath, learned Senior Counsel appearing along with Mr. N.C. Mohanty, learned counsel for the petitioner contended that the petitioner, having rendered service since more than 30 years in a post, is entitled to be regularized with 4 all consequential benefits, and the inaction of the authorities in regularizing the service of the petitioner amounts to arbitrary and unreasonable exercise of power, which violates Article 14 of the Constitution of India. It is further contended that the petitioner, even though was appointed as Worksirkar, was subsequently entrusted with the duty of Junior Assistant, which work he has been discharging for a quite long period, and that itself indicates that the vacancy is available. As such, there will be no impediment if services of the petitioner are regularized, especially when the higher authorities from time to time have recommended for his continuance as Legal Assistant or Junior Assistant (Legal). It is also contended that, although several correspondences were made by the higher authorities indicating the efficiency, acquisition of qualification and nature of duty discharged by the petitioner on being assigned, the same have not been considered in proper perspective, as a result of which, for more than 30 years, the petitioner is languishing as a Worksirkar, and such act of the authorities amounts to exploitation of labour. It is also contended that, when juniors to the petitioner (the persons who had joined after the petitioner) have already been regularized, there is no justifiable reason or basis to deny such benefit to the petitioner, and as such the 5 action of the opposite parties is discriminatory in nature. Therefore, the petitioner seeks for direction to the opposite parties to regularize his service and grant all consequential benefits admissible to the post held by him. To substantiate his contention he has relied upon the judgments in Secretary, State of Karnataka v. Umadevi (3), (2006) 4 SCC 1; State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247; Prem Ram v. Managing Director, Uttarakhand Pey Jal and Nirman Nigam, Dehradun, (2015) 11 SCC 255; Malathi Das (Retired) Now P.B. Mahishy v. Suresh; (2014) 13 SCC 249 and Amarendra Kumar Mohapatra and others v. State of Orissa, AIR 2014 SC 1716.
4. Mr. P.K. Mishra, learned counsel appearing for the opposite parties though admitted, that the petitioner was appointed as Worksirkar and was permitted to assist the staff in the Establishment Section of the office of the General Manager, OMCL, Barbil, and that the Board of Directors of the Corporation, as well as State Government have approved the proposal to bring the temporary/weekly/DRMP employees of OMCL into non-permanent category of employees and as per the said proposal the petitioner was encadered in the non-payment 6 group of employees, but stated that, since he joined as Worksirkar on casual basis and by virtue of such decision he was continuing as such till the date of his conversion to non- payment category of employees in the OMCL, the services of the petitioner cannot be regularized as Junior Assistant without observing the procedure envisaged under the OMCL R & P Rules and without following rigorous procedures of the CNV and the ORV Act. His further contention is that the recommendation of the higher authorities to regularize the services of the petitioner is not binding on the Corporation. So far as absorption of employees of M/s. Sirajuddin & Co. is concerned, they have been regularized on the basis of the award passed by the Industrial Tribunal. The same is also not applicable to the petitioner, as he was not a party to the industrial dispute. In view of such position, it is contended that the relief sought by the petitioner cannot be granted and the writ petition is liable to be dismissed. It is further contended that the decisions relied upon on behalf of the petitioner, being taken on the facts of those cases, are not applicable to the present case and are distinguishable.
5. Having heard learned counsel for the parties and after going through the records, pleadings between the parties 7 having been exchange, with the consent of learned counsel for the parties, this matter is being disposed of finally at the stage of admission.
6. On the basis of the facts pleaded above, there is no dispute that the petitioner was appointed as Worksirkar Grade-II on 13.04.1987 in OMCL. Subsequently, on being permitted, for having requisite experience and qualification to man the post, he has been discharging the duties of Junior Assistant/Legal Assistant, as is borne out from various correspondences made by the authorities under whom he was working. The materials available on record also reveal that the persons, who had been appointed after the petitioner, have already been regularized and paid regular scale of pay admissible to the post held by them, and the petitioner only has been singled out. As such, even though 30 years have passed in the meantime, his service has not been regularized in spite of the recommendations made by the authorities. Neither the representation of the petitioner has been considered in proper perspective, nor the benefit admissible to the post held by him has been extended, nor the nature of duties and responsibilities discharged by him as a Junior Assistant, having requisite qualification, has been recognized 8 with. The plea taken is that he has not been recruited by following due procedure of recruitment as envisaged under the rules, but there is no denial that he is not discharging the duties as Junior Assistant even though he was appointed as Worksirkar Grade-II with effect from 13.04.1987. Furthermore, since the petitioner has been discharging the duties of Junior Assistant continuously without any break, that itself indicates that there is availability of post. If the post is available, against which the petitioner has been permitted to discharging the duties for a quite long period of near about 30 years, the authority cannot deny the benefit of his regularization on the plea that he has not come through a recruitment process conducted as per the Rules. With eyes wide open and to the knowledge of the authorities concerned, the petitioner, as a Junior Assistant, has been discharging the duties and responsibilities assigned to him for a quite long period. As such, when the authorities, under which he is working, have recommended his case for regularization and, more so, the persons appointed after him have already been regularized, there is no justifiable reason available to the authority not to regularize the service of the petitioner and extend the benefit from the date of his initial appointment against the post of 9 Junior Assistant. Therefore, such action of the authority is not only unreasonable and arbitrary but also discriminatory in nature and violates Articles 14 and 16 of Constitution of India.
7. Furthermore, non-consideration of grievance of the petitioner for such a long period, by allowing him to discharge the duty of Junior Assistant (even though he was appointed as Worksirkar Grade-II), is a clear case of exploitation of labour by the employer. Every employee, who is engaged by an employer, expects to continue on regular basis with all service benefits of at least increments, promotion and seniority in accordance with law. The legitimate expectation of an employee to continue in a particular post with its future prospects of promotion and other benefits have been denied to the petitioner in the present case. As such, why he is being deprived of getting such benefit irrespective of the recommendations made by the authorities under whom he has been discharging the duty, no plausible reasons have been assigned in the counter affidavit. Merely because the petitioner has not been appointed as per the rules, he cannot be deprived of subsequent regularization, particularly when such benefits have already been extended by the authority concerned to the persons appointed after the petitioner. To a 10 query made by this Court, learned counsel for the opposite parties informed that because of pendency of this case the petitioner has not been regularized.
8. It is worthwhile to mention here that the Court comes into the picture only to ensure observance of fundamental rights, and to ensure the rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with requirements of Articles 14 and 16 of the Constitution, and that the authority should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. For this very reason, it is held that a person should not be kept in temporary or ad hoc status for a long period. Where a temporary or ad hoc appointment is continued for long, the Court presumes that there is need of a regular post and accordingly directs for regularization. While issuing direction for regularization, the Court must first ascertain the relevant fact, and must be cognizant of the several situations and eventualities that may arise on account of such direction. If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization, provided he 11 is eligible and qualified, according to rules, and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. Even though a casual labourer is continued for a fairly long spell, say two or three years, a presumption may arise that there is regular need for his service. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularization. While doing so, the authorities ought to adopt a positive approach coupled with empathy for the person. But here is a case where even though the petitioner is continuing in the post for last more than 30 years, his service has not yet been regularized, though persons appointed after him have already been regularized.
9. In Umadevi (3) (supra) the apex Court held as follows:
"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore v. S.V. Narayanappa, AIR 1967 SC 1071; R.N. Nanjundappa v. T. Thimmaiah, (1972) 1 SCC 409 and B.N. Nagarajan v. State of Karnataka (1979) 4 SCC 507 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be 12 considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
10. Further, in M.L. Kesari (supra), following the ratio decided in Umadevi (3) (supra), the apex Court in paragraphs 9 and 10 of the judgment held as follows:
"9. The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3), each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.
10. At the end of six months from the date of decision in Umadevi (3), cases of several daily-
wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one- 13 time regularisation process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (3), will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi (3) has expired. The one- time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi (3), but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (3), the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (3), are so considered."
11. In Malathi Das (supra) relying upon the ratio decided in Umadevi(3) (supra), the apex Court held that refusing regularization of service cannot be countenanced to such decision and, therefore, clarified that the appellants therein so also all other competent authorities of the State would be obliged and duty bound to regularize the services of employees which will be done forthwith.
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12. In Amarendra Kumar Mohapatra (supra) the apex Court clarified the ratio decided in Umadevi (3) (supra) at paragraphs 34 and 35 as follows:
"34. A Constitution Bench of this Court in Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. (2006) 4 SCC 1 : (AIR 2006 SC 1806 : 2006 AIR SCW 1991) ruled that regularisation of illegal or irregularly appointed persons could never be an alternative mode of recruitment to public service. Such recruitments were, in the opinion of this Court, in complete negation of the guarantees contained in Articles 14 and 16 of the Constitution. Having said so, this Court did not upset the regularisations that had already taken place, regardless of whether such regularisations related to illegal or irregular appointments. The ratio of the decision in that sense was prospective in its application, leaving untouched that which had already happened before the pronouncement of that decision. This is evident from the following passage appearing in the decision:
"We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
35. The above is a significant feature of the pronouncement of this Court in Umadevi's case (supra). The second and equally significant feature is the exception which this Court made in para 53 of the decision permitting a one-time exception for regularising services of such employees as had been irregularly appointed and had served for ten years or more. The State Government and its instrumentalities were required to formulate schemes within a period of six months from the date of the decision for regularisation of such 15 employees. This is evident from a reading of para 53 (of SCC) : (Para 44 of AIR, AIR SCW) of the decision which is reproduced in extenso:
"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (AIR 1967 SC 1071) (supra), R.N. Nanjundappa (AIR 1972 SC 1767) (supra), and B.N. Nagarajan (AIR 1979 SC 1676) (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date..."
13. So far as irregular appointment is concerned, the same has also been clarified in M.L. Kesari (supra) at paragraph-41 as follows:
"41. As to what would constitute an irregular appointment is no longer res integra. The decision of this Court in State of Karnataka v. M.L. Kesari and Ors. (2010) 9 SCC 247 : (AIR 2010 SC 2587 : 2010 AIR SCW 4577), has examined that question and explained the principle regarding regularisation as enunciated in Umadevi's case 16 (supra). The decision in that case summed up the following three essentials for regularisation (1) the employees worked for ten years or more, (2) that they have so worked in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal and (3) they should have possessed the minimum qualification stipulated for the appointment. Subject to these three requirements being satisfied, even if the appointment process did not involve open competitive selection, the appointment would be treated irregular and not illegal and thereby qualify for regularisation. Para 7 in this regard is apposite and may be extracted at this stage:
"7. It is evident from the above that there is an exception to the general principles against "regularisation" 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 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."
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14. The above being the settled principles of law, there is no iota of doubt that the petitioner, who has been continuing in service for more than 30 years, is entitled to be regularized, particularly when the persons appointed after him have already been regularized. Therefore, the opposite parties are directed to regularize the service of the petitioner and grant him all consequential service and financial benefits as admissible to the post held by him, i.e., Junior Assistant in accordance with law as expeditiously as possible, preferably within a period of three months from the date of communication of the judgment.
15. The writ petition stands allowed. No order as to cost.
Sd/-
DR. B.R.SARANGI, JUDGE Orissa High Court, Cuttack The 1st August, 2017, Ajaya True Copy Sr. Steno