Orissa High Court
Rabinarayan Mohanty vs State Of Odisha & Ors. .... Opposite ... on 26 September, 2022
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC(OAC) No.4660 of 2016
In the matter of an application under Section 19 of the
Administrative Tribunal's Act, 1985.
..................
Rabinarayan Mohanty .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioner : M/s. S.B. Jena(Advocate)
S. Behera (Advocate)
For Opp. Parties : Mr. M.K. Balabantaray
Standing Counsel
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 22.07.2022 and Date of Judgment:26.09.2022
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
2. Heard Mr. S. Behera, learned counsel for the Petitioner &Mr. M. K. Balabantaray, learned Standing Counsel appearing for the Opp. Parties.
// 2 //
3. The present writ Petition has been filed with the following prayer:-
"Under the circumstances it is humbly prayed therefore that the Hon'ble Tribunal may graciously be pleased to quash the impugned order dated 16.09.2016 passed by the Respondent No.2 under Annexure-11;
And further be pleased to direct the Respondents to grant pension and other pensionary benefits in favour of the applicant, taking into account the order of the Hon'ble Tribunal underAnnexure-6 and the orders of the Respondent No.2 dated 16.09.2009 under Annexure-7 forthwith;
And further be pleased to give all consequential service benefits to the applicant;
or pass such other order(s)/direction(s) as this Hon'ble Tribunal may think fit and proper, and allow this Original Application with Cost;"
4. Mr. Behera, learned counsel for the Petitioner submitted that the Petitioner was initially appointed as a helper in the Work Charged Establishment and posted as such in Upper Kolab Irrigation Project, where he joined on 01.04.1981.
5. It is submitted that the Petitioner was engaged as such after his name was duly sponsored by the employment exchange vide order under Annexure-1. It is also submitted that in the common seniority list of Work Charged staff of Subarnarekha Irrigation Project issued under Annexure-2, the date of joining of the Petitioner in the Work Charged Establishment is also reflected as 01.04.1981.
6. Mr. Behera, learned counsel for the Petitioner submitted that since the Petitioner was appointed in the Work Charged Establishment, where he joined on 01.04.1981 and allowed to continue as such, the Petitioner became eligible for his absorption in the regular establishment in view of different circulars issued by the Govt. at different point of time as well as the decision of the Hon'ble Apex Court and this Hon'ble Court. It is also submitted that the claim of the Petitioner for his absorption in the regular establishment was Page 2 of 29 // 3 // more fortified with issuance of the resolution dtd.15.05.1997 under Annexure-
5.
7. It is submitted that as per the scheme issued vide resolution dtd.15.05.1997 under Annexure-5, a person working as a NMR/DLR/Job Contract Establishment in order to be eligible for his absorption in the regular establishment must have been engaged prior to 12.04.1993 and he must have completed minimum 10 years of service. It is also stipulated in the said resolution that while filling up regular vacant post, preference shall be given to Work Charged employees first.
8. Taking a cue from the resolution dtd.15.05.1997 Mr. Behera, learned counsel for the Petitioner submitted that by the time the resolution under Annexure-5 was issued the Petitioner had not only completed more than 16 years of engagement in the Work Charged Establishment, but also his claim is covered by the said resolution as the Petitioner is admittedly engaged prior to 12.04.1993. It is submitted that in spite of issuance of such resolution on 15.05.1997 under Annexure-5 the Opp. Parties never took any step to absorb the Petitioner in the regular establishment.
9. Learned counsel for the Petitioner submitted that in spite of his eligibility the Petitioner was never absorbed in the regular establishment and his case was never considered in terms of resolution issued on 15.05.1997 and previous guidelines issued in that regard. It is submitted that in the meantime the Hon'ble Apex Court in the case of Secretary, State of Karnataka vs. Uma Devi (3), (2006) 4 SCC-1 issued certain guidelines for absorption of such irregular recruitees. In Para 53 of the said Judgment Hon'ble Apex Court held as follows:-
Page 3 of 29// 4 // "53. One aspect needs to be clarified. There may be cases where irregular R.N. Nanjundappa2 and B.N. Nagarajan and referred to in para 15 above. appointments (not illegal appointments) as explained in S.V. Narayanappa". 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 f 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. It is submitted that in spite of the clear stipulation issued by the Hon'ble Apex Court in the above noted reported case, the State-Opp. Parties never took any step to absorb the Petitioner in the regular establishment. It is also submitted that since his initial engagement on 01.04.1981 the Petitioner not only worked continuously, but also he was never protected by any interim order passed by any Court of law. Hence, it is submitted that the claim of the Petitioner for his absorption in the regular establishment clearly falls within Page 4 of 29 // 5 // the parameter issued by the Hon'ble Apex Court in Para 53 of the above noted reported case.
11. But, it is submitted that instead of taking step to absorb the Petitioner in the regular establishment in terms of the decision in the above noted case of State of Karnatak vs. Uma Devi, the Opp. Parties intentionally and deliberately did not initiate any process to absorb the Petitioner in the regular establishment.
12. Mr. Behera, learned counsel for the Petitioner in support of his claim also relied on decisions of the Hon'ble Apex Court reported in the case of State of Karnatak vs. M.L. Keshari, (2010) 9 SCC 247, Nihal Singh & Others vs. State of Punjab & Others, 2013 (14) SCC 65 and Amarkant Rai vs. State of Bihar & Others, 2015 (8) SCC 265. It is submitted that in the meantime the Hon'ble Apex Court in the case of State of Karnatak vs. M.L. Keshari, (2010) 9 SCC 247 issued certain guidelines for absorption of such irregular recruitees. In Para 7 to 13 of the said Judgment Hon'ble Apex Court held as follows:-
"7. It is evident from the above that there is an exception to the general principles against "regularization" 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 Page 5 of 29 // 6 // 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.
8. Umadevi (3) casts a duty upon the Government or instrumentality concerned, to take steps to regularise the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi (3) directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10 4-2006).
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 g 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)¹, cases of several daily-wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one Page 6 of 29 // 7 // 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 104-2006 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. The object behind the said direction in para 53 of Umadevi (3) is twofold. First is to ensure that those who have put in more than ten years of d continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the Page 7 of 29 // 8 // direction is that all persons who have worked for more than ten years as on 10-4-2006 (the date of decision in Umadevi (3)] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The f fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) as a one-time measure.
12. These appeals have been pending for more than four years after the 9 decision in Umadevi (3). The appellant (Zila Panchayat, Gadag) has not considered the cases of the respondents for regularisation within six months of the decision in Umadevi (3)¹ or thereafter.
13. The Division Bench of the High Court has directed that the cases of the respondents should be considered in accordance with law. The only further direction that needs to be given, in view of Umadevi (3), is that the Zila Panchayat, Gadag should now undertake an exercise within six months, as a general one- time regularisation exercise, to find out whether there are any daily-wage/casual/ad hoc employees serving the Zila Panchayat and if so whether such employees (including the respondents) fulfil the requirements mentioned in para 53 of Umadevi (3). If they fulfil them, their services have to be regularised. If such an exercise has already been undertaken by ignoring or omitting the cases of Respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said one-time exercise within three months. It is needless to say that if the respondents do not fulfil the requirements of para 53 of Umadevi (3), their services need not Page 8 of 29 // 9 // be regularised. If the employees who have completed ten b years' service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularisation in suitable lower posts."
It is submitted that in the meantime the Hon'ble Apex Court in the case of Nihal Singh & Others vs. State of Punjab & Others, 2013 (14) SCC 65 issued certain guidelines for absorption of such irregular recruitees. In Para 8 to 10 and 13 to 15 of the said Judgment Hon'ble Apex Court held as follows:-
"8. Insofar as contention of the respondent that the appointment of the appellant was made by the principal who is not a competent authority to make such appointment and is in violation of the Bihar State Universities Act and hence the appointment is illegal appointment, it is pertinent to note that the appointment of the appellant as Night Guard was done out of necessity and concern for the college. As noticed earlier, the Principal of the college vide letters dated 11.03.1988, 07.10.1993, 08.01.2002 and 12.07.2004 recommended the case of the appellant for regularization on the post of Night Guard and the University was thus well acquainted with the appointment of the appellant by the then principal even though Principal was not a competent authority to make such appointments and thus the appointment of the appellant and other employees was brought to the notice of the University in 1988. In spite of that, the process for termination was initiated only in the year 2001 and the appellant was reinstated w.e.f. 3.01.2002 and was removed from services finally in the year 2007. As rightly contended by the learned counsel for the appellant, for a considerable time, University never raised the issue that the appointment of the appellant by the Principal is ultra vires the rules of BSU Act. Having regard to the various communications between the Principal and the University and also the education authorities and the facts of the case, in our view, the appointment of the appellant cannot be termed to be illegal, but it can only be termed as irregular.
9. The Human Resources Development, Department of Bihar Government, vide its letter dated 11.07.1989 intimated to the Registrar of all the Colleges that as per the settlement dated 26.04.1989 held between Bihar State University and College Employees Federation and the Government it was agreed that the services of the employees working in the education institutions on the basis of prescribed staffing pattern are to be regularized. As per sanctioned staffing pattern, in Ramashray Baleshwar College, there were two vacant posts of Class IV employees and the appellant was appointed against the same. Further, Resolution No. 989 dated 10.05.1991 issued by the Human Resources Development Department provides that employees working upto 10.5.1986 shall be adjusted against the vacancies arising in future. Although, the appellant was appointed in 1983 temporarily on the post that was not sanctioned by the State Government, as per the above communication of Human Resources Development Department, it is evident that the State Government issued orders to regularise the services of the employees who worked upto 10.5.1986. In our considered view, the High Page 9 of 29 // 10 // Court ought to have examined the case of the appellant in the light of the various communications issued by the State Government and in the light of the circular, the appellant is eligible for consideration for regularization.
10. As noticed earlier, the case of the appellant was referred to Three Members Committee and Three Members Committee rejected the claim of the appellant declaring that his appointment is not in consonance with the ratio of the decision laid down by this Court in Umadevi's case (supra). In Umadevi's case, even though this Court has held that the appointments made against temporary or ad-hoc are not to be regularized, in para 53 of the judgment, it 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 one time measure to regularize them. In para 53, the Court observed as under:-
"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 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."
The objective behind the exception carved out in this case was prohibiting regularization of such appointments, appointed persons whose appointments is irregular but not illegal, ensure security of employment of those persons who served the State Government and their instrumentalities for more than ten years.
13. In our view, the exception carved out in para 53 of Umadevi 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 bear 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 regularization viz. one Yatindra Kumar Mishra who was appointed on daily wages on the post of Clerk was regularized w.e.f. 1987. The appellant although initially working against unsanctioned post, the appellant was working continuously since 03.1.2002 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 Page 10 of 29 // 11 // circumstances of the case, we are inclined to award monetary benefits be paid from 01.01.2010.
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 to regularize the services of the appellant retrospectively w.e.f. 03.01.2002 (the date on which he rejoined the post as per direction of Registrar).
15. The impugned order of the High Court in LPA No.1312 of 2012 dated 20.02.2013 is set aside and this appeal is allowed. The authorities are directed to notionally regularize the services of the appellant retrospectively w.e.f. 03.01.2002, 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 01.01.2010. The period from 03.01.2002 shall be taken for continuity of service and pensionary benefits."
It is submitted that in the meantime the Hon'ble Apex Court in the case of Amarkant Rai vs. State of Bihar & Others, 2015 (8) SCC 265 issued certain guidelines for absorption of such irregular recruitees. In Para 18 to 35 of the said Judgment Hon'ble Apex Court held as follows:-
"18. Coming to the judgment of the division bench of the High Court of Punjab & Haryana in LPA No.209 of 1992 where the claims for regularization of the similarly situated persons were rejected on the ground that no regular cadre or sanctioned posts are available for regularization of their services, the High Court may be factually right in recording that there is no regularly constituted cadre and sanctioned posts against which recruitments of persons like the appellants herein were made. However, that does not conclusively decide the issue on hand. The creation of a cadre or sanctioning of posts for a cadre is a matter exclusively within the authority of the State. That the State did not choose to create a cadre but chose to make appointments of persons creating contractual relationship only demonstrates the arbitrary nature of the exercise of the power available under section 17 of the Act. The appointments made have never been terminated thereby enabling various banks to utilize the services of employees of the State for a long period on nominal wages and without making available any other service benefits which are available to the other employees of the State, who are discharging functions similar to the functions that are being discharged by the appellants.
19. No doubt that the powers under section 17 are meant for meeting the exigencies contemplated under it, such as, riot or disturbance which are normally expected to be of a short duration. Therefore, the State might not have initially thought of creating either a cadre or permanent posts.
20. But we do not see any justification for the State to take a defence that after permitting the utilisation of the services of large number of people Page 11 of 29 // 12 // like the appellants for decades to say that there are no sanctioned posts to absorb the appellants. Sanctioned posts do not fall from heaven. State has to create them by a conscious choice on the basis of some rational assessment of the need.
21. The question is whether this court can compel the State of Punjab to create posts and absorb the appellants into the services of the State on a permanent basis consistent with the Constitution Bench decision of this court in Umadevi's case. To answer this question, the ratio decidendi of the Umadevi's case is required to be examined. In that case, this Court was considering the legality of the action of the State in resorting to irregular appointments without reference to the duty to comply with the proper appointment procedure contemplated by the Constitution.
"4. ... The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commissions or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called "litigious employment", has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution. Whether the wide powers under Article 226 of the Constitution are intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution, has to be seriously pondered over."
It can be seen from the above that the entire issue pivoted around the fact that the State initially made appointments without following any rational procedure envisaged under the Scheme of the Constitution in the matters of public appointments. This court while recognising the authority of the State to make temporary appointments engaging workers on daily wages declared that the regularisation of the employment of such persons which was made without following the procedure conforming to the requirement of the Scheme of the Constitution in the matter of public appointments cannot become an alternate mode of recruitment to public appointment.
22. It was further declared that the jurisdiction of the Constitutional Courts under Article 226 or Article 32 cannot be exercised to compel the State or to enable the State to perpetuate an illegality. This court held that compelling the State to absorb persons who were employed by the State as casual workers or daily-wage workers for a long period on the ground that such a practice would be an arbitrary practice and violative Page 12 of 29 // 13 // of Article 14 and would itself offend another aspect of Article 14 i.e. the State chose initially to appoint such persons without any rational procedure recognized by law thereby depriving vast number of other eligible candidates who were similarly situated to compete for such employment.
23. Even going by the principles laid down in Umadevi's case, we are of the opinion that the State of Punjab cannot be heard to say that the appellants are not entitled to be absorbed into the services of the State on permanent basis as their appointments were purely temporary and not against any sanctioned posts created by the State.
24. In our opinion, the initial appointment of the appellants can never be categorized as an irregular appointment. The initial appointment of the appellants is made in accordance with the statutory procedure contemplated under the Act. The decision to resort to such a procedure was taken at the highest level of the State by conscious choice as already noticed by us.
25. The High Court in its decision in LPA No.209 of 1992 recorded that the decision to resort to the procedure under Section 17 of the Act was taken in a meeting dated 24.3.1984 between the Advisor to the Government of Punjab and senior officers of the various Banks in the public sector. Such a decision was taken as there was a need to provide necessary security to the public sector banks. As the State was not in a position to provide requisite police guards to the banks, it was decided by the State to resort to Section 17 of the Act. As the employment of such additional force would create a further financial burden on the State, various public sector banks undertook to take over the financial burden arising out of such employment. In this regard, the written statement filed before the High Court in the instant case by respondent nos.1 to 3 through the Assistant Inspector General of Police (Welfare & Litigation) is necessary to be noticed. It is stated in the said affidavit:
"2. That in meeting of higher officers held on 27.3.1984 in Governor House Chandigarh with Shri Surinder Nath, IPS, Advisor to Governor of Punjab, in which following decisions were taken:-
(i) That it will not be possible to provide police guard to banks unless the Banks were willing to pay for the same and additional force could be arranged on that basis, it was decided that police guards should be requisitioned by the Banks for their biggest branches located at the Distt.
and Sub Divisional towns. They should place the requisition with the Distt. SSPs endorsing a copy of IG CID. In the requisition, they should clearly state that the costs of guard would be met by them. It will then be for the police department to get additional force sanctioned. This task should be done on a top priority. In the meantime depending upon the urgency of the need of any particular branch, police Deptt. may provide from police strength for its protection.
(ii) For all other branches guards will be provided by Distt. SSP after selecting suitable ex-servicemen or other able bodied persons who will be appointed as Special Police Officer in terms of Section 17 of the Police Act. Preference may be given to persons who may already be in possession of licence weapons. All persons appointed as SPO for this purpose will be given a brief training for about 7 days in the Police Lines in the handling of weapons taking suitable position for protection of Page 13 of 29 // 14 // branches. These SPOs will work under the discipline and control and as per Police Act, they will have the same powers, privileges and protection and shall be amenable to same penalty as an ordinary police personnel."
It can be seen from the above that a selection process was designed under which the District Senior Superintendent of Police is required to choose suitable ex-servicemen or other able bodied persons for being appointed as Special Police Officers in terms of Section 17 of the Act. It is indicated that the persons who are already in possession of a licensed weapon are to be given priority.
26. It is also asserted by the appellants that pursuant to the requisition by the police department options were called upon from ex- servicemen who were willing to be enrolled as Special Police Officer (SPOs) under section 17 of the Police Act, 1861.
27. Such a procedure making recruitments through the employment exchanges was held to be consistent with the requirement of Articles 14 and 16 of the Constitution by this Court in Union of India and Ors. v. N. Hargopal.
28. The abovementioned process clearly indicates it is not a case where persons like the appellants were arbitrarily chosen to the exclusion of other eligible candidates. It required all able bodied persons to be considered by the SSP who was charged with the responsibility of selecting suitable candidates.
Para 4 of the writ petition and at p. 34 of the SLP paperbook:
"That the Government made a policy to enrol the ex-servicemen to guard the life and property of the government employees as well as government employees. All the petitioners being ex-servicemen enrolled themselves in the employment exchange. The Police Department sent the intimation to the employment exchange and thereafter all the ex-servicemen who were enrolled with the employment exchange were called upon and got their option to be enrolled in as Special Police Officer (SPOs) under Section 17 of the Police Act, 1861 (hereinafter called as the SPOS). Those persons who were having armed licence were enrolled as SPOS and this enrolment was made by the Superintendent of Police, Amritsar."
7 (1987) 3 SCC 308: 1987 SCC (L&S) 227: (1987) 4 ATC 51:
"9... We, therefore, consider that insistence on recruitment through employment exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. The submission that employment exchanges do not reach everywhere applies equally to whatever method of advertising vacancies is adopted. Advertisement in the daily press, for example, is also equally ineffective as it does not reach everyone desiring employment."
29. Such a process of selection is sanctioned by law under section 17 of the Act. Viewed in the context of the situation prevailing at that point of time in the State of Punjab, such a process cannot be said to be irrational. The need was to obtain the services of persons who had some Page 14 of 29 // 15 // experience and training in handling an extraordinary situation of dealing with armed miscreants.
30. It can also be noticed from the written statement of the Assistant Inspector General of Police (Welfare & Litigation) that preference was given to persons who are in possession of licensed weapons. The recruitment of the appellants and other similarly situated persons was made in the background of terrorism prevailing in the State of Punjab at that time as acknowledged in the order dated 23.4.2002 of the SSP. The procedure which is followed during the normal times of making recruitment by inviting applications and scrutinising the same to identify the suitable candidates would itself take considerable time. Even after such a selection the selected candidates are required to be provided with necessary arms and also be trained in the use of such arms. All this process is certainly time consuming. The requirement of the State was to take swift action in an extra-ordinary situation.
31. Therefore, we are of the opinion that the process of selection adopted in identifying the appellants herein cannot be said to be unreasonable or arbitrary in the sense that it was devised to eliminate other eligible candidates. It may be worthwhile to note that in Umadevi's case, this Court was dealing with appointments made without following any rational procedure in the lower rungs of various services of the Union and the States.
32. Coming to the other aspect of the matter pointed out by the High Court - that in the absence of sanctioned posts the State cannot be compelled to absorb the persons like the appellants into the services of the State, we can only say that posts are to be created by the State depending upon the need to employ people having regard to various functions the State undertakes to discharge.
"Every sovereign Government has within its own jurisdiction right and power to create whatever public offices it may regard as necessary to its proper functioning and its own internal administration."
33. It is no doubt that the assessment of the need to employ a certain number of people for discharging a particular responsibility of the State under the Constitution is always with the executive Government of the day subject to the overall control of the Legislature. That does not mean that an examination by a Constitutional Court regarding the accuracy of the assessment of the need is barred.
34. This Court in S.S. Dhanoa v. Union of India (1991) 3 SCC 567 did examine the correctness of the assessment made by the executive government. It was a case where Union of India appointed two Election Commissioners in addition to the Chief Election Commissioner just before the general elections to the Lok Sabha. Subsequent to the elections, the new government abolished those posts. While examining the legality of such abolition, this Court had to deal with an argument[6] whether the need to have additional commissioners ceased subsequent to the election. It was the case of the Union of India that on the date posts were created there was a need to have additional commissioners in view of certain factors such as the reduction of the lower age limit of the voters etc. This Court categorically held that:
Page 15 of 29// 16 // "27. The truth of the matter as is apparent from the record is that .......there was no need for the said appointments.....".
35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor 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.
"21. In the first instance, the petitioner and the other Election Commissioners were appointed when the work of the Commission did not warrant their appointment. The reason given by Respondent (Union of India), that on account of the Constitution (61st Amendment) Act reducing the voting age and the Constitution (64th Amendment) and (65th Amendment) Bills relating to election to the Panchayats and Nagar Palikas, the work of the Commission was expected to increase and, therefore, there was need for more Election Commissioners, cuts no ice.
As has been pointed out by Respondent 2, the work relating to revision of electoral rolls on account of the reduction of voting age was completed in all the States except Assam by the end of July 1989 itself, and at the Conference of the Chief Electoral Officers at Tirupati, Respondent 2 had declared that the entire preparatory work relating to the conduct of the then ensuing general elections to the Lok Sabha would be completed by August in the whole of the country except Assam. Further, the Constitution (64th and 65th Amendment) Bills had already fallen in Parliament, before the appointments. In fact, what was needed was more secretarial staff for which the Commission was pressing, and not more Election Commissioners. What instead was done was to appoint the petitioner and the other Election Commissioner on 16-10-1989. Admittedly, further the views of the Chief Election Commissioner were not ascertained before making the said appointments. In fact, he was presented with them for the first time in the afternoon of the same day i.e. 16-10-1989." (SCC p. 581, para 21) In the case of Rajendra Kumar Nayak Vs. Orissa Mining Corporation Ltd. & Ors. the Hon'ble Apex Court issued certain guidelines for absorption of Page 16 of 29 // 17 // such irregular recruitees. In Para 8 to 14 of the said Judgment Hon'ble Apex Court held as follows:-
"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 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 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 Page 17 of 29 // 18 // 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-
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.
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 Page 18 of 29 // 19 // 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 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 Page 19 of 29 // 20 // regarding regularisation as enunciated in Umadevi's case (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."
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.
"
In the case of Dr. Prasanna Kumar Mishra Vs. State of Orissa & Ors. the Hon'ble Apex Court issued certain guidelines for absorption of such irregular recruitees. In Para 7 to 13 and 22 of the said Judgment Hon'ble Apex Court held as follows:-
"7. In Binan Kumar Mohanty & others (supra) referring to Kapila Hingorani v. State of Bihar (2003) 6 SCC 1 the Apex Court held that the Government company/public sector undertakings being "States) would be constitutionally Page 20 of 29 // 21 // liable to respect life and liberty of all persons in terms of Article 21 of the Constitution of India. Therefore, if the petitioner has rendered service for around 20 years, keeping in view the ratio decided in Kapila Hingorani (supra), this Court issues direction to the opposite parties to mitigate the hardship of the employees. Financial stringency is no ground for not issuing requisite directions when there is violation of fundamental rights of the petitioner. Allowing a person to continue for a quite long period of 20 years of service and exploiting him on the pretext of financial crunch in violation of Article 21 of the Constitution of India is sheer arbitrariness of the authority, which is highly condemnable.
8. In Narendra Kumar Ratha and others (supra) this Court has taken into consideration the object of Article 16 of the Constitution of India to create a constitutional right to equality of opportunity and employment in public offices. The word 'employment of appointment cover not merely the initial appointment, but also other attributes like salary, increments, revision of pay, promotion, gratuity, leave pension and age of superannuation etc. Appointment to any post under the State can only be made in accordance with provisions and procedure envisage under the law and guidelines governing the field.
9. In Prabodh Verma and others v. State of U.P. and others,(1984) 4 SCC 251, the apex Court held that Article 16 is an instance of the application of the general rule of equality laid down in Article. 14, with special reference to the opportunity for appointment and employment under the Government.
10. Similar view has also been taken by the apex Court in Km. Neelima Mishra v. Harinder Kaur Paintal and others, (1990) 2 SCC 746. AIR 1990 SC 1402 and E.P. Royappa v. State of Tamilnadu and another, (1974) 4 SGC 3. Clause-1 of Article 16 guarantees equality of opportunity for all citizens in the matters of employment or appointment to any office under the State. The very concept of equality implies recourse to valid classification for preference in favour of the disadvantaged classes of citizens to improve their conditions so as to enable them to raise themselves to positions of equality with the more fortunate classes of citizens. This view has been taken note of by the apex Court in the case of Indra Sawhney and others v. Union of India and others, 1992 Supp. (3) SCC 217: AIR 1993 SC 477.
11. In view of such position, if the petitioner has been allowed to continue for a quite long period on contractual basis due to financial crunch, he cannot be thrown out stating that he has not been recruited as per the provisions of BPUT Page 21 of 29 // 22 // Act and Rules framed thereunder. Therefore, the petitioner's case should be taken into consideration for regularization of his service.
12. In Suvendu Mohanty (supra) this Court has taken into consideration the judgment of the apex Court in Secretary, State of Karnataka v. Umadevi, 2006 (4) SCC 1: AIR 2006 SC 1806 wherein the apex Court held that the appointments made against temporary or ad-hoc basis are not to be regularized. In paragraph 53 of the said judgment, it is provided that irregular appointment of duly qualified persons against sanctioned posts, who have worked for 10 years or more can be considered on merits and steps to be taken as one time measure to regularize them. In Paragraph 53 of the said judgment, the apex Court has held as follows:
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanapp, 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 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 regularise as a non-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 regularization, 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."
13. The object behind the exception carved out in this case was to permit regularization of such appointments, when are irregular but not illegal, and to ensure security of employment of those persons who served the State Government and their instrumentalities for more than ten years. Similar question came up for consideration before the apex Court in Civlil Appeal No.2835 of 2015 (arising out Page 22 of 29 // 23 // of SLP (Civil) No 20169 of 2013 disposed of on 13.3.2015. In paragraphs 12 and
13. the apex Court has held as follows:
"12. Elaborating upon the principles laid down in Umadevi's case (supra) and explaining the difference between irregular and illegal appointments in State of Karnataka & Ors. V. M.L. Kesari & Ors., (2010) 9 SCC 247, this 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 persons 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."
In the case of Kalyani Pattnaik Vs. Registrar, Utkal University & Ors. the Hon'ble Apex Court issued certain guidelines for absorption of such irregular recruitees. In Para 6 to 8 of the said Judgment Hon'ble Apex Court held as follows:-
"The decision of the Hon'ble Apex Court with regard to regularisation is squarely applicable to the petitioner's case for regularisation of her service. It would be apposite to refer the case in Uma Devi (supra), Narendra Kumar Tiwari (supra), State of Jharkhand and others (supra) and Bhupinder Singh (supra).
7. In view of the decision of the Hon'ble Apex Court, the petitioner case deserves to be regularised taking into consideration her considerable period of service Page 23 of 29 // 24 // from 20.03.1975 to 31.03.2005 for that the petitioner is entitled to all retirement benefits.
8. On cumulative effect of the reasons and judicial pronouncements and in order to subserve the interest of justice, the opposite parties are directed to regularise the services of the petitioner since the opposite parties utilised her service for a prolonged period of 37 years.
9. In the back drop of the aforesaid reasons, the opposite parties are directed to regularise the petitioner's service from 20.03.1975 to 31.03.2005 and consequent upon the regularisation, appropriate order be passed to compute the said period for grant of admissible post retirement benefits and thereby disburse the same to the petitioner as expeditiously as possible. The entire exercise be completed within a period of four months from the date of receipt of certified copy of the order. With the aforesaid observation and direction, the writ petition stands disposed of."
13. Mr. Behera, learned counsel for the Petitioner submitted that as in spite of his eligibility the Petitioner was not absorbed in the regular establishment, he approached the learned Tribunal in O.A. No. 987(C) of 2012 with a prayer to direct the Opp. Parties to absorb him in the regular establishment and thereby enabling him to get the benefit of pension and another pensionary benefits under OCS (Pension) Rules, 1992.
14. It is submitted that the said claim of the Petitioner as made in O.A. No. 987(C) of 2012 was disposed of by the learned Tribunal vide order dtd.04.07.2016 with the following directions:-
"In view of the above position, as the applicant has completed more than five years of service in the Work Chargedd stablishment before retirement, he is entitled to be regularized against the post available, in the regular establishment. Accordingly, the O.A. is allowed to the extent that the respondent authorities may examine and take appropriate action Vor regularization of the applicant in any available vacancy in the regular establishment prior to his retirement and in the event such vacancy was available, he was to be regularized with effect from the said date and consequently his pay is to be fixed in the regular establishment and thereafter extend the benefits of pension and other pensionary Page 24 of 29 // 25 // benefits on the basis of the last pay fixed. Such action be taken within a period of four months from the date of receipt of a copy of this order.
With these orders, the O.A. is disposed of.
No order as to cost."
15. It is submitted that without considering the claim of the Petitioner as directed by the learned Tribunal in its Order under Annexure-10, O.P. No. 2 vide the impugned order dtd.16.09.2016 rejected the Petitioner's claim. The present writ Petition has been filed by challenging the said order and with a further prayer to direct the Opp. Parties to grant pension and other pensionary benefits in favour of the Petitioner.
16. Mr. Behera, learned counsel for the Petitioner brought to the notice of this Court various orders issued in favour of similarly situated Work Charged employees passed under Annexure-12 series, wherein similar claim has been dealt with by the learned Tribunal.
17. It is submitted that in similar claim made by one Narusu Pradhan in O.A. No. 1189(C) of 2006, the claim was not only allowed by the learned Tribunal vide its Order dtd.11.06.2009 under Annexure-13, but also the said order was confirmed by this Court while dismissing the writ Petition filed by the State- Opp. Parties under Annexure-14 and by the Hon'ble Apex Court in its order under Annexure-15.
18. Mr. Behera, learned counsel for the Petitioner also brought to the notice of this Court the order passed by the learned Tribunal in another similar case in O.A. No.4189(C) of 2013 (Pitambar Sahoo Vs. State of Odisha).
19. Learned Tribunal not only allowed similar claim as made by the Petitioner in O.A. No.4189(C) of 2013 vide its order dtd.18.04.2017, but the said order was confirmed by this Court in its order dtd.20.12.1917 in W.P.(C) No. 24041 of 2017. It is also submitted that the challenge made by the State-Opp. Parties Page 25 of 29 // 26 // before the Hon'ble Apex Court in Special Leave Petition (Civil) No.30806 of 2018 was also dismissed vide order dtd.10.09.2018.
20. Mr. Behera, learned counsel for the Petitioner further submitted that the order passed in the case of Narusu Pradhan Vs. State of Odisha as well as Pitambar Sahoo Vs. State of Odisha after being confirmed by the Hon'ble Apex Court were implemented by the State-Opp. Parties by extending the benefit of pension and other pensionary benefits in their favour. Mr. Behera, learned counsel for the Petitioner also brought to the notice of this Court an order passed by this Court on 12.08.2019 in W.P.(C) No.9099 of 2016.
21. Learned counsel for the Petitioner also relied on another decision passed in the case of Chandra Nandi Vs. State of Odisha & Ors., (W.P.(C) No.19950 of 2011, decided on 03.02.2021) by this Court. It is submitted that when similar claim raised by the said Chandra Nandi was initially allowed by this Court, the same was challenged before the Hon'ble Apex Court and Hon'ble Apex Court when remanded the matter for fresh consideration, this Court again vide order dtd.03.02.2021 reiterated its earlier view. It is submitted that the said order passed by this Court on 03.02.2021 was thereafter confirmed by the Hon'ble Apex Court and the Petitioner therein has been extended with the benefits of pension and other pensionary benefits.
22. Mr. Behera, learned counsel for the Petitioner also brought to the notice of this Court a similar issue decided by this Court in its Order dtd.20.06.2022 in W.P.(C) No. 14787 of 2022. This Court relying on the decision rendered in the case of Narusu Pradhan and Chandra Nandi, allowed the claim of the Petitioner therein by directing the Opp. Parties to grant similar benefits.
23. Making all such submissions, Mr. Behera, learned counsel for the Petitioner submitted that the Petitioner being similarly situated, he is also Page 26 of 29 // 27 // eligible and entitled to get the benefit of pension and other pensionary benefits as has been extended in favour of similarly situated persons.
24. Mr. Balabantaray, learned Standing Counsel on the other hand made his submission basing on the stand taken in the counter filed by the Opp. Parties. It is submitted that the claim of the Petitioner as made in O.A. No.907(C) of 2012 when was disposed of by the learned Tribunal vide order dtd.04.07.2016, the same was duly considered and rejected vide order dtd.16.09.2016.
25. It is submitted that prior to rejection of the said claim in terms of the order passed by the learned Tribunal on 04.07.2016, the Petitioner had approached this Court in W.P.(C) No.1846 of 2017. This Court vide order dtd.26.04.2017 was not inclined to interfere with the order and observed as follows:-
"As it appears from the impugned order that the Tribunal while disposing of the Original Application has directed the respondents to examine the mater and take appropriate action for regularization of the applicant in any available vacancy in the regular establishment prior to his retirement and in the event such vacancy was available, he was to be regularize:i with effect from the said date.
In view of such observation, it is open to the petitioners to examine the matter as directed by the Tribunal and take appropriate action.
The Writ Petition is disposed of accordingly."
26. It is also submitted that the service condition of the Petitioner is governed by the instruction i.e. Odisha Work Charged Employees (Appointment & Condition of Service) instruction, 1974 and in the said instruction, there is no provision to grant pension at par with regular employees. It is also submitted that the claim of parity as made by the Petitioner is not applicable as the persons brought over to the regular establishment vide order under Annexure-
Page 27 of 29// 28 // 12 series were so absorbed taking into account their position in the seniority list of the said project.
27. Mr. Balabantaray, learned Standing Counsel further submitted that since the Petitioner has retired in the meantime, his claim of regularization is not maintainable and accordingly he is not eligible to get the benefit of pension and other pensionary benefits.
28. Heard learned counsel appearing for the Parties. Perused the materials available on record. This Court after going through the same finds that there is no dispute with regard to the appointment of the Petitioner in the Work Charged Establishment, where he joined on 01.04.1981. It is also not disputed that the Petitioner on such appointment w.e.f.01.04.1981 was allowed to continue in the Work Charged Establishment and in spite of his clear eligibility, the State-Opp. Parties never initiated any process to absorb the Petitioner in the regular establishment pursuant to the resolution issued on 15.05.1997 under Annexure-5 and the direction of the Hon'ble Apex Court contained in Para 53 in the case of State of Karnatak vs. Uma Devi (3).
29. This Court further finds that similar claim raised by similarly situated persons in the case of Narusu Pradhan Vs. State of Odisha and Pitambar Sahoo Vs. State of Odisha as well as Chandra Nandi Vs. State of Odisha were not only allowed by the learned Tribunal, but also the said direction was upheld by this Court as well as by the Hon'ble Apex Court. After such confirmation of the order by the Hon'ble Apex Court, the Petitioners like Narusu Pradhan, Pitambar Sahoo & Chandra Nandi have been extended with the benefit of regularization and consequential sanction of pension and other pensionary benefits under OCS (Pension) Rules, 1992.
Page 28 of 29// 29 //
30. Therefore, in view of such decision of this Court, which has been upheld by the Hon'ble Apex Court in the case of Narusu Pradhan, Pitambar Sahoo & Chandra Nandi, the claim of the Petitioner as per the considered view of this Court is coming within the parameters of the said decisions. Hence, this Court is of the view that O.P. No. 2 without proper appreciation of the Petitioner's claim, rejected the same vide the impugned order dtd.16.09.2016 under Annexure-11. This Court has therefore got no hesitation in quashing the said order and while quashing the same, directs the Opp. Parties to grant similar benefits as has been done in the case of Narusu Pradhan, Pitambar Sahoo as well as Chandra Nandi.
31. This Court directs the Opp. Parties to complete the entire exercise within a period of three (3) months from the date of receipt of this order. The Petitioner is directed to provide a copy of this order before O.P. No. 1 within a period of seven (7) days from the date of receipt of this order.
32. The writ Petition is disposed of with the aforesaid observation and directions.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 26th of September, 2022/Sneha Page 29 of 29