Orissa High Court
Manorama Sahoo vs The State Of Odisha on 26 February, 2021
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT: CUTTACK W.P.(C). Nos.2897, 2899, 2900, 2902, 2903 and 2905 of 2021 In the matter of an application under Articles 226 and 227 of the Constitution of India. ---------- In W.P.(C).No.2897 of 2021 Manorama Sahoo Petitioner -versus- The State of Odisha, represented trough the Principal Secretary, Housing & Urban Development Department & others Opp. Parties In W.P.(C).No.2899 of 2021 Rajendra Sethy Petitioner -versus- The State of Odisha, represented trough the Principal Secretary, Housing & Urban Development Department & others Opp. Parties In W.P.(C).No.2900 of 2021 Sumitra Choudhury Petitioner -versus- The State of Odisha, represented trough the Principal Secretary, Housing & Urban Development Department & others Opp. Parties In W.P.(C).No.2902 of 2021 Bishwonath Behera Petitioner -versus- 2 The State of Odisha, represented trough the Principal Secretary, Housing & Urban Development Department & others Opp. Parties In W.P.(C).No.2903 of 2021 Pradyumna Kumar Samal Petitioner -versus- The State of Odisha, represented trough the Principal Secretary, Housing & Urban Development Department & others Opp. Parties In W.P.(C).No.2905 of 2021 Kshtrabasi Swain Petitioner -versus- The State of Odisha, represented trough the Principal Secretary, Housing & Urban Development Department & others Opp. Parties For Petitioner : Miss Deepali Mahapatra. (In all the writ petitions) For Opp.Parties : M/s. Dayananda Mohapatra, M.Mohapatra, M.R.Pradhan, J.M.Barik, & P.K.Singhdeo. (For O.P.2 & 3 in all the writ petitions) Mr.Sakti Prasad Panda, Addl.Govt. Advocate. (For O.P.No.1 in all the writ petitions) Date of Hearing and judgment: 26.02.2021 P R E S E N T: THE HONOURABLE MR. JUSTICE BISWANATH RATH Biswanath Rath,J. All these writ petitions involve a challenge to the order at Annexure-14 on the premises that the decision taken therein remains 3 contrary to the direction of this Court in disposal of previous batch of writ petitions bearing W.P.C.Nos.21759, 21757, 21762, 5858, 21760 and 21756 of 2015. For commonness in the matter and on consent of parties, all these matters are taken up together and decided by this common judgment. 2. Reading the briefs together, this Court finds petitioner involving W.P.(C).No. 2897 of 2021, the petitioner was engaged as Library Assistant on 2.11.2003, Petitioner involving W.P.(C).No. 2899 of 2021 was engaged as Khalasi (Electrical) on 30.12.2000, petitioner in W.P.(C).No.2900 of 2021 was engaged as Library Assistant on 1.11.2003, petitioner involving W.P.(C).No.2903 of 2021 was engaged as JCB Driver on 1.10.2012. The next man involving W.P.(C).No. 2902 of 2021 joined as Lineman on 30.12.2020 and the petitioner in W.P.(C).No. 2905 of 2021 joined as Tractor Driver on 2.3.2009. They have all joined on DLR basis in Class-IV post under the Cuttack Development Authority. All the writ petitioners involve a common prayer seeking a direction from this Court to the opposite parties to regularize their services involving each writ petition from the date of their initial appointment and also for a direction to release consequential service benefit of regularization on modification of the order dated 29.10.2020 vide Annexure-14. 3. Miss. Mahapatra, learned counsel appearing for all the petitioners taking this Court to the first round of litigation involving all these petitioners and some other persons submitted that in first round of litigation for consideration therein for regularization, this Court entering into contest 4 involving the writ petition bearing W.P.(C).No. 21759 of 2015 along with several other similar writ petitions taking into account the decision in the cases of Narendra Kumar Tiwari and others v. State of Jharkhand and others: (2018) 8 SCC 238, Secretary, State of Karnatak v. Uma Devi and others: AIR 2006 SC 1806 and another decision in the case of State of Jharkhand and others v. Kamal Prasad and others: (2017) 7 SCC 223 further keeping in view long continuance of services of the petitioners, through paragraph-6 while setting aside the order at Annexure-6 therein directed the opposite party nos.1 and 2 therein to consider the case of the petitioners afresh for regularization of services of the petitioners by undertaking the exercise within a period of four months. It is next referring to the Annexure-14, Miss. Mahapatra, learned counsel appearing for petitioner contended that for a direction for consideration of the case, the opposite parties, who were given a clear direction to consider the case of the petitioners for regularization, however, there has been decision of the Development Authority to convert the services of the petitioners involved herein and the other persons already involved in the previous writ petition to that of contractual appointment as appearing at Annexure 14 impugned herein. Giving reference to the document at Annexure-9 also given a comparison to the monthly remuneration. Miss. Mahapatra, learned counsel for the petitioners filing writ petition for their regularization demonstrating for there is bad rejection by authority in spite of the fact that there has been a contractual appointment in terms of Annexure-14 involving these petitioners, 5 submitted one Madhusudan Guru involving a contempt petition has been regularized with effect from 3.10.2020. It is also claimed that on such regularization, there has been release of all consequential benefits treating that man to be regularized from the year, 2000 itself. Further, to substantiate the petitioners case, Miss. Mohapatra, learned counsel appearing for the petitioners involved herein taking this Court to the decision of the Hon'ble Apex Court in the case of Uma Devi (Supra) and for the direction of the Hon'ble Apex Court in paragraph-44 therein contended that for the Hon'ble apex Court's decision as to one time measure, all these petitioners should be treated as holders of regular post and consequential relief should also have been granted. In the circumstances Miss Mahapatra claimed for allowing the writ petition. 4. To the contrary, Sri Dayananda Mohapatra, learned counsel appearing for the Cuttack Development Authority-opposite party no.2 taking this Court to the counter averments of the counter affidavit at the instance of opposite party nos.2 and 3 while objecting to the claim of the petitioners submitted that there is different consideration of the case of Madhusudan Guru, particularly keeping in view that Madhusudan Guru was also holder of a vacant post and for the said person continuing against a vacant post, there was no difficulty in the part of the Development Authority for providing appropriate relief to Sri Guru. Sri Mohapatra, learned counsel attempted to differentiate the case of the present petitioners and Sri Guru on the premises that the present petitioners are the holders of temporary post 6 pending clearance of the Government for their appointment against clear vacant post. It is at this stage, Sri Mohapatra, learned counsel taking this Court to a document filed by the petitioners at Annexure-2 submitted that considering long pendency of regularization aspect and facing series of litigation in High Court in such matters, the Development Authority in the first instance vide additional agenda in its proceeding dated 11.12.2014 resolved to move the Government in Housing & Urban Development Department for consideration of regularization of services of 16 number of DLR/CLRs already engaged in Cuttack Development Authority including that of petitioners. Referring to Annexure-2, a document again appended by the petitioner at Annexure-2 communication of the Development Authority dated 22.12.2014, Sri Mohapatra, learned counsel for the Development Authority again drawn the attention of this Court to the communication of the Vice- Chairman where the Development Authority particularly at page- 20 while giving the name of the persons including that of the petitioners as well as Sri Guru in the list of regularization at page-21, indicated there is a clear vacancies in the post for Class-IV category under the Cuttack Development Authority remaining unfilled for long time. In the said letter, the Development Authority also requested the Housing & Urban Development Department to at least grant approval to fill up the vacant posts indicated at page-21 by accommodating the petitioners including Sri Guru, who are continuing for long time on DLR basis as on 22.12.2014. It is in this view of the matter, while attempting to differentiate the case of Sri Guru and the 7 petitioners but, however, not disputing that there is already a direction involving all these petitioners for regularization in W.P.(C) No.21759 of 2015. It is also admitted that there is series of efforts by the Development Authority to the Department of Housing & Urban Development Department making frequent request for creation of post or at least permission to fill up the vacant post by utilizing of services of the petitioners and it is for no action of the Housing & Urban Development Department, they are unable to regularize the petitioners. It is in this view of the matter, Sri Mohapatra, learned Counsel also attempted to dispute the case of the petitioners involving W.P.(C). Nos.2897, 2899, 2900 and 2903 of 2021 and submitted that though the persons are already covered by the decision of the Hon'ble Apex Court through Uma Devi (supra). So far as other two persons involving W.P.(C).Nos.2902 and 2905 of 2021, Sri Mohapatra, learned counsel appearing for the Cuttack Development Authority submitted that these petitioners having been appointed in the year 2009 and 2012 respectively much after Uma Devi, they have no right to be covered under the decision of Uma Devi. Sri Mohapatra, learned counsel vehemently objects the claim of the petitioners on the scoring that none of the petitioners has completed ten years of service as on the date of the judgment in Uma Devi. Therefore, the decision in Uma Devi is not applicable to the cases at hand. 5. In his opposition Sri Panda, learned Additional Government Advocate appearing for the State while not disputing the development 8 through the Cuttack Development Authority at Annexure-2 and the communication of the Development Authority at Annexure-2 submitted that for there is no counter affidavit at the instance of the State-opposite party, he is not in a position as to the development involving the two correspondences but however referring to the document at Annexure-11 submitted that there has been communication at the same point of time in September, 2020 communicating to the Principal Secretary to Government, Housing and Urban Development Department that Cuttack Development Authority may take a decision on contractual engagement of the DLRs/CLRs against similar vacant post but, however, on monthly remuneration and as admissible under Finance Department, while taking into consideration the requirement of the services of the employees concerned by the Development Authority and to meet the additional requirement of funds, if any. Referring to Annexure-14, Sri Panda, learned Additional Government Advocate also submitted that it is for the development through Annexure-11, there is appropriate order passed by the Development Authority vide Annexure-14 need not require any interference. 6. Considering the rival contentions of the parties and entering into the first round of litigation, this Court finds there is no dispute that petitioner involving W.P.(C).No.2897 of 2021 was engaged as Library Assistant on 1.11.2003, Petitioner involving W.P.(C).No. 2899 of 2021 was engaged as a Khalasi (Electrical) on 30.12.2000, Petitioner in W.P.(C).No.2900 of 2021 was engaged as Library Assistant on 1.11.2003 and petitioner 9 involving W.P.(C).No.2903 of 2021 was engaged as Lineman (Electrical) on 30.12.2000 on DLR basis but, however, have been allowed to continue as contractual employee vide Anenxure-14, who are holders of their respective post as indicated vide Annexure-14. However, the petitioner involving W.P.(C).No.2903 of 2021 joined in the establishment on 30.12.2000 has already superannuated in the meantime. So far as petitioner involving 2902 of 2021 , he joined as J.C.B. Driver on 1.10.2012 and petitioner involving W.P.(C).No.2905 of 2021 joined as Tractor Driver on 2.3.2009. At this stage of the matter, this Court finds that all these persons along with the person named Madhusudan Guru noted hereinabove have all approached this Court in W.P.(C).No.21759 of 2015 along with batch of writ petitions decided together. It further appears in the previous writ petitions, all the petitioners have prayed for regularization of their services for the post they were holding at that point of time and also with consequential relief. In disposal of the writ petition, this Court finds in paragraphs-6 and 7, the High Court in the previous round of litigation directed as follows: "6. After hearing the learned counsel for the respective parties and on perusal of the records, there is no gainsaying of the fact that the petitioner has rendered services for pretty long period and in view of the decision in the case of Narendra Kumar Tiwari and others(supra), Uma Devi and others (supra) and in the case of State of Jharkhand and others v. Kamal Prasad and others:(2014) 7 SCC 223, the case of the petitioner requires reconsideration. Accordingly, the impugned order under Annexure-6 to the writ application being not legally sustainable in view of the dictum of the Hon'ble Apex Court (supra), will have no effect, so far as regularization of service of the petitioner is concerned. 7. The writ petition is accordingly disposed of with direction to the opposite parties, more particularly opposite party nos.1 and 2 to consider the case of the petitioner afresh for regularization of service of the petitioner in view of the judgments cited supra within a period of four 10 months and the decision taken thereof be communicated to the petitioner within the aforesaid period." 7. As a consequence of this direction, it appears, upon a development through the Housing & Urban Development Department, the impugned order at Annexure-14 has been passed giving rise a further cause of action. But, however, in the meantime, Sri Guru has already been regularized. For the discrimination in the premises of all the petitioners and regularization of Sri Guru only being aggrieved by order at Annexure-14, the present writ petitions appear to have been filed again seeking a direction for regularization and consequential relief. It is at the stage of the matter, this Court finds the background involving the case is pending consideration. On the request of the petitioners, the Development Authority way back in the year 2014 vide additional agenda dated 11.12.2014 appearing at page 19 resolved as follows: "ADDITIONAL AGENDA 1) Regularization of services of 16 nos. of DLR/CLR engaged in CDA. After thorough discussion, it was decided to move Govt. in H & UD Deptt. for consideration of regularization." 8. It is pursuant to such resolution, of the Development Authority, it appears, the Development Authority wrote to the Commissioner-cum- Secretary to Govt, Housing & Urban Development Department, Odisha, Bhubaneswar on 22.12.2014. In the table mentioned therein, while reflecting the name of the petitioners including Sri Guru holding different post at that point of time at page-21 communicated to the Housing & Urban Development Department as follows: 11 "Now, they have requested for regularization of their services. Since there is no sanctioned post in CDA, Cuttack for the above workers, it is not possible to regularize their services. However, the following posts are lying vacant in CDA. 1. Road Roller Mech.-cum-driver- 1 No. 2. Driver - 1 No. 3. Kanungo - 1 No. 4. Amin - 2 Nos. 5. Fitter Mistry - 1 No. 6. Watchman - 2 Nos. 7. Peon - 4 Nos. 8. Khalasi - 1 No. 9. Helper - 1 No. Total 14 Nos. th The matter was placed before the 106 Authority meeting held on 02.12.2014 and it was decided to move Government for consideration. It is, therefore, requested that the Government may kindly appreciate and consider for their contractual engagement against similar vacant posts on a monthly remuneration as admissible under Finance Department norms." 9. Considering the rival contentions of the parties and reading of both the documents at Annexures-1 and 2, this Court finds being conscious of long continuance of all these petitioners and also being conscious that there has been some posts lying vacant than number of regularization required the Vice Chairman of the Cuttack Development Authority made necessary communication to the Commissioner-cum-Secretary to Government, Housing & Urban Development Department on 22.12.2014. There was a clear request to consider the case of the petitioners including Sri Guru for their engagement as contractual engagement against similar vacant post. This Court here finds surprise in the request of the Development Authority to the extent that when there was more number of regular vacancy, the Authority requested the Government for filling up the vacant posts by way of contractual engagement knowing fully well that there already existed 12 claims of regularization. May be it is for the request of the Development Authority to allow them to consider the case of the petitioners for their contractual engagement in Annexure-14, the Government has directed to fill up the post involving the petitioners by way of contractual engagement. Looking to the long continuance of the petitioners and taking into account the period of continuance of the petitioners vis-à-vis decision referred to vide Uma Devi (supra) , this Court finds paragraph-44 of the judgment Uma Devi (supra) reads as follows: "44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] 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." Above view also appears to be that in some other cases, namely, State of Jharkhand and others v. Kamal Prasad and others, (2014) 7 SCC 223, State of Karnataka and others V. M.L.Keshari and others, 2010 (II) OLR (SC) 982, Amarkanti Rai v. State of Bihar and 13 others,(2015) 8 SCC 265 and in the case of Rajnish Kumar Mishra Vs. The State of Utter Pradesh, (2019) 17 SCC 648. 10. Reading the view of the Hon'ble Supreme Court in all these decisions, there remains no doubt that Uma Devi decision (supra) has taken care of irregular employees as one time measure but, however, with a rider that the persons who had already came into existence and continuing for more than ten years as on the date of the judgment and schemes may be brought for regularizing such people. Keeping the legal position in view but however keeping in view the long continuance of the petitioners involving the W.P.(C). Nos.2897, 2899, 2900, and 2903 of 2021, this Court finds these petitioners are holding Class-IV post in their respective assignments, by this time they have already completed nearly 15 (fifteen) years of service. In some cases, it is again 20 (twenty) years of service and there has been no stigma as of now involving such petitioners, with further observation that unless there is constant requirement of these engagements, all these persons could not have been allowed to continue. Even presently also there is requirement in such work so the petitioners still continue. Further, it is also apparent from the records and the documents on record that there has been clear vacancies and there is no difficulty in accommodating these persons in regular vacant posts, as may such regular vacancies remained unfilled for decades. This Court here also takes into account that case of Sri Madhusudan Guru has been regularized keeping in view that he was 14 engaged in one such vacant post. Sri Guru was regularized keeping in view that he was engaged against a clear vacant post. Sri Guru's Case may not be strictly applicable to the case of petitioners here. 11. Be that as it may, on disclosure at Annexure-2 which makes it clear that in the communication dated 22.12.2014, there is no vacant post available except DLR/CLR mentioned therein and they have been engaged from the period as specified against each, at the same time, in the same document, this Court finds from page 21, there has been clear vacancies and once there is claim for regularization of the persons and there is clear vacancies of good number of posts having financial sanction already there remaining unfilled, the Government in the Housing and Urban Development Department while considering the request of the Development Authority, had no difficulty in permitting the Development Authority to divert the regular vacancies to accommodate the petitioners by way of regularization. Further, for there is clear vacancy as indicated at page-14 of the brief, there was no necessity of financial concurrence for filling the vacant post, which were already approved post. It is taking into delay involved herein and also keeping in view the decision of Uma Devi etc., (supra), this Court directs the Development Authority to take steps to divert the vacant posts mentioned at page-21 for regular absorption of the petitioners in W.P.(C). Nos.2897, 2899, 2900 and 2903 of 2021 in the clear vacant posts mentioned at page- 21 of the brief at least from the date of posting of order at Annexure-14 and the petitioners involving these writ 15 petitions be provided with arrear accordingly. This Court for the purpose of pension, directs for counting of their adhoc period also. So far as petitioners in W.P.(C).Nos. 2902 and 2905 of 2021, this Court finds their appointment having been made after the Uma Devi decision comes into and yet again on backdoor method, observes while allowing them continuing as contractual engagement as per Annexure-14, their case may be considered for regularization taking into account the Government Resolution, 2013 keeping in view that they are the holder of such post for long time and their services are required for which they are continuing for long time by undertaking the entire exercise within a period of two months. 12. With this observation and direction, the order vide Annexure-14 is interfered and modified to the extent indicated hereinabove and all the writ petitions stand disposed of by this common order. No cost. ...55555555. Biswanath Rath, J.
Orissa High Court, Cuttack. The 26th day of February, 2021/Sks.