Orissa High Court
Afr Sunil Barik vs State Of Odisha And Others ..... Opp. ... on 22 June, 2021
Equivalent citations: AIRONLINE 2021 ORI 246
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
WPC(OAC) NO. 2818 OF 2014
In the matter of an application under Article 226 of the
Constitution of India.
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AFR Sunil Barik ..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For Petitioner : M/s. K.K. Swain,
P.N. Mohanty, B. Jena,
S.C. Dash, P.K. Mohanty and
R.P. Das, Advocates
For Opp. Parties : Mr. M. Balabantaray,
Addl. Standing Counsel
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing and judgment : 22.06.2021 DR. B.R. SARANGI, J. The petitioner, by way of this writ petition, seeks direction to the opposite parties to regularize his service as Barber in the office of the Superintendent of Police, Jajpur with all consequential // 2 // service and financial benefits taking into consideration his past service rendered in the said post.
2. The factual matrix of the case, in brief, is that the petitioner, by following due procedure of selection, was appointed as a Home Guard pursuant to appointment order issued on 01.10.1997 and undergone training from 25.12.1998 to 31.01.1999. After completion of training, certain posts including the post of Barber was created by the Government vide order dated 28.06.1999 in the scale of pay of Rs.2550- 3200/-. By virtue of the Government order dated 28.06.1999, the petitioner submitted representation to the Superintendent of Police, Jajpur with a prayer to absorb him in the said post. Accordingly, Superintendent of Police, Jajpur, vide letter dated 19.11.1999, sought permission from the D.I.G. of Police (Administration), Orissa, Cuttack to fill up the post of regular Barber, as the police personnel at the district headquarters were facing considerable difficulties.
// 3 // 2.1 Subsequently, the Superintendent of Police, Jajpur, on 24.12.1999, also moved the D.I.G. of Police (Administration), Orissa, Cuttack to appoint the petitioner against the post of Barber, as he had been performing the duties of Barber since 1993 with utmost sincerity. As there was no response, Superintendent of Police, Jajpur again, vide letter dated 27.12.1999, moved the D.I.G. of Police (Administration), Orissa, Cuttack seeking permission to fill up the post of Barber in the district. When the matter stood thus, the State Government issued an order on 09.02.2000 to the Superintendent of Police, Jajpur to fill up the post of Barber after the election process is over. Thereafter, on 12.06.2000, the petitioner was appointed as Barber on ad hoc basis for 89 days, pursuant to which he joined as Barber and continued till 21.08.2002 on daily wage basis, which is evident from the certificate issued by the Superintendent of Police, Jajpur on 18.08.2014. By the time the petitioner approached the tribunal, he had already completed 16 years of service on daily wage // 4 // basis. Needless to say, the initial appointment of the petitioner was Home Guard, but due to regular vacancy available in the post of Barber, he was allowed to continue against the said post on daily wage basis and, as such, the said post was duly sanctioned by the authority. Consequentially, the petitioner submitted a representation, which was forwarded by the I.G. of Police, Central Range, Cuttack to Government on 16.08.2010 for his appointment on permanent basis. But the same has remained unattended to till date. Though in the meantime the State Government has taken a decision for regularization of contractual Group-C and Group-D employees after completion of six years of service, the petitioner having continued for more than 16 years, by the time the original application was filed before the tribunal, as Home Guard on ad hoc daily wage basis, his service has not been regularized.
3. Hence, seeking the above relief the petitioner filed O.A. No. 2818 (C) of 2014 before the Odisha Administrative Tribunal, Cuttack Bench, // 5 // Cuttack, but on abolition of the same, the said O.A. was transferred to this Court, in pursuance of order dated 03.12.2019 passed in W.P.(C) No. 22335 of 2019 by a Division Bench of this Court, and registered as above and taken up for hearing.
4. Mr. K.K. Swain, learned counsel for the petitioner contended that the petitioner had been duly selected for the post of Home Guard pursuant to which he joined in the said post and undergone training. Due to creation of some posts, including the post of Barber, he represented for regular absorption in the said post. But, instead of absorbing him in the said post, he was permitted to discharge the duties of Barber against a sanctioned post on daily wage basis. In the meantime, although more than 16 years have passed till the petitioner approached the tribunal, but no action has been taken by the authority. Therefore, the services of the petitioner should be regularized in the said post.
// 6 // To substantiate his contention, he has relied upon the judgments of the apex Court in State of Karnataka v. Umadevi, (2006) 4 SCC 1; State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247; Nihal Singh v. State of Punjab, (2013) 14 SCC 65; and also judgments of this Court in Nakula Naik v. Executive Officer, Bhubaneswar Municipal Corporation, 2017 (I) OLR 293; Rajendra Kumar Nayak v. Orissa Mining Corporation, 2017 (II) ILR 912; and Ranjeet Kumar Das v. State of Orissa, 2018 (Supp.I) OLR
111.
5. Mr. M. Balabantaray, learned Addl. Standing Counsel appearing for the State, referring to paragraphs-6 and 8 of the counter affidavit, contended that the DIG of Police (Administration), Odisha, Cuttack, vide letter dated 09.02.2000, directed to fill up the post of Barber by recruitment after election process is over. Accordingly, the petitioner was appointed as Barber on ad hoc basis for a period of 89 days, vide letter dated 14.03.2000 with regular scale of pay. After // 7 // completion of 89 days, he was discharged from service and again appointed as Barber on ad hoc basis for another 89 days and the said process was continued till 20.08.2002. On 21.08.2002, he was appointed as Barber on daily wage basis in accordance with the letter dated 12.08.2002, by which direction was issued to fill up the vacancies in all Group-D posts on daily wage basis. Consequentially, he continued on daily wage basis from that date. It is further contended that Government of Orissa in General Administration Department issued resolution dated 17.09.11 that Group-D employees, those who were appointed against the contractual posts created with the concurrence of Finance Department on abolition of the corresponding regular posts or contractual appointments/ engagements made against contractual posts created with the concurrence of Finance Department without abolition of any corresponding regular posts in case of new offices or for strengthening of the office/services, following the recruitment procedures prescribed for the // 8 // corresponding regular posts and the principle of reservation of posts and services for different categories of persons decided by the State Government from time to time, shall be made regular after completion of six years of service. Consequentially, it is contended that the services of the petitioner cannot be regularized in the post of Barber, even though he is continuing against the sanctioned post, since he was appointed as such on 89 days ad hoc basis.
6. This Court heard Mr. K.K. Swain, learned counsel for the petitioner and Mr. M. Balabantaray, learned Addl. Standing Counsel for the State opposite parties by virtual mode, and perused the record. Since pleadings having been exchanged between the parties, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.
7. In the instant case, there is no dispute with regard to appointment of the petitioner as Home // 9 // Guard and undergoing training for the said post. There is also no dispute that the petitioner was engaged as Barber on an ad hoc basis against a sanctioned vacancy for a period of 89 days. But, subsequently, he was allowed to discharge the duty of Barber on daily wage basis and in the meantime more than 16 years have passed. Needless to say that the petitioner was continuing against the sanctioned post of Barber on daily wage basis for more than 16 years, which itself amounts to exploitation to the employee by the employer.
8. In the case of Umadevi (3), even though the apex Court has held that the appointments made against temporary or ad-hoc are not to be regularized, in para 53 of the judgment, it is provided that irregular appointment of duly qualified persons in duly sanctioned posts, who have worked for 10 years or more, can be considered on merits and steps to be taken as a one-time measure to regularize them. In para 53, the apex Court observed as under:-
// 10 // "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan 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 considered on merits in the light of the principles settled by this Court in the cases abovereferred 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."
The objective behind the exception carved out in this case was prohibiting regularization of such appointments, appointed persons whose appointments are irregular but not illegal, ensure security of employment of those persons who served the State // 11 // Government and their instrumentalities for more than ten years.
9. Elaborating upon the principles laid down in the case of Umadevi (3) (supra) and explaining the difference between „irregular‟ and „illegal‟ appointments in M.L. Kesari (supra), the apex Court held as under:
"7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi (3), 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, // 12 // such appointments are considered to be irregular."
10. Applying the ratio decided in the case of Umadevi (3) (supra), the apex Court in Nihal Singh (supra) directed absorption of the Special Police Officers in the services of the State of Punjab holding as under:
"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 mind while creating or abolishing posts is the financial 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 // 13 // 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."
The above judgments are also referred to by a Division Bench of this Court in Ranjeet Kumar Das and also Rajendra Kumar Nayak mentioned supra.
11. In the case of Nakula Naik mentioned supra, this Court held that though the petitioner was appointed as a Sweeper (Regular) by designation, he had been assigned to work as Market Fee Collector/Rent Collector and he had been discharging such duty for more than 26 years and, therefore, his services against the said post should be regularized and consequentially also he should be allowed to get the scale of pay, as admissible to the post.
12. As it appears from the record itself, the case of the petitioner is squarely covered by the exception carved out in paragraph-53 of the judgment // 14 // rendered in Umadevi(3) mentioned supra. Meaning thereby, against an existing sanctioned vacancy in the post of Barber, the petitioner having been engaged by following due procedure of selection in the post of Home Guard and continued for a quite long period, which is not disputed by the opposite parties-State as per the pleadings available in the counter affidavit and, as such, the petitioner is still continuing, the same cannot be treated as an "illegal engagement", rather it may be nomenclature as an "irregular engagement".
13. In State of Jammu and Kashmir v.
District Bar Association, Bandipora, (2017) 3 SCC 410, wherein a distinction has been made with regard to "irregular" and "illegal" engagement, referring to the exception carved out in Umadevi(3) mentioned supra, in paragraph-12 of the said judgment it has been stated as follows:
"12. The third aspect of Umadevi (3) which bears notice is the distinction between an "irregular" and "illegal" appointment. While answering the question of whether an appointment is irregular or illegal, the Court // 15 // would have to enquire as to whether the appointment process adopted was tainted by the vice of non-adherence to an essential prerequisite or is liable to be faulted on account of the lack of a fair process of recruitment. There may be varied circumstances in which an ad hoc or temporary appointment may be made. The power of the employer to make a temporary appointment, if the exigencies of the situation so demand, cannot be disputed. The exercise of power however stands vitiated if it is found that the exercise undertaken (a) was not in the exigencies of administration; or (b) where the procedure adopted was volatile of Articles 14 and 16 of the Constitution; and/or
(c) where the recruitment process was overridden by the vice of nepotism, bias or mala fides."
14. Applying the above principles to the present case, since the petitioner has been discharging the duties against a sanctioned vacancy in the post of Barber with the knowledge of the employer on daily wage basis for a quite long time, after being duly selected by following due process of selection in the post of Home Guard, and his engagement is due to the emergent situation, the engagement may be "irregular" one, but his service is to be regularized with all consequential benefits in accordance with law. This Court directs accordingly. The entire exercise shall be // 16 // completed within a period of four months from the date of communication/production of authenticated/certified copy of this judgment by the petitioner.
15. In the result, the writ petition is allowed. However, there shall be no order as to costs.
As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the judgment available in the High Court‟s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court‟s Notice No.4587, dated 25th March, 2020 as modified by Court‟s Notice No. 4798 dated 15th April, 2021.
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DR. B.R. SARANGI, JUDGE Orissa High Court, Cuttack The 22nd June, 2021, Ashok/GDS