Orissa High Court
Srinibash Das vs State Of Odisha on 22 July, 2024
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.37540 of 2023
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
Srinibash Das
Aged about 58 years
Son of Late Narottam Das,
At/P.O.: Gobara, Via: Rasgovindpur,
District: Mayurbhanj. ... Petitioner.
-VERSUS-
1. State of Odisha
Represented through
Secretary
to Government of Odisha
Revenue and Disaster
Management Department
Lokaseva Bhawan, Bhubaneswar
District: Khordha.
2. Inspector General of Registration, Odisha,
At/P.O./District: Cuttack.
3. Secretary, Government of Orissa
Finance Department,
Secretariat Building, Bhubaneswar
District: Khordha.
4. District Registrar, Mayurbhanj
At/P.O.: Baripada
District: Mayurbhanj. ... Opposite parties.
W.P.(C) No.37540 of 2023 Page 1 of 65
Counsel appeared for the parties:
For the Petitioner : M/s. Prakash Kumar Rout and
Niranjan Biswal, Advocates
For the Opposite parties : Mr. Pusparaj Bharadwaj,
Additional Standing Counsel
P R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMAN
Dates of Hearing : 02.07.2024 :: Date of Judgment : 22.07.2024
J UDGMENT
MURAHARI SRI RAMAN, J.--
THE CHALLENGE:
Questioning the propriety of order dated 12.09.2023
passed by the Additional Chief Secretary to Government
of Odisha in Revenue and Disaster Management
Department refusing the prayer of the petitioner for
treating regularisation of service from 20.02.1992 to
14.02.2016 notionally (without pecuniary benefit) and
extend monetary benefit from 15.02.2016, i.e., the date
of joining as peon in Class-IV post in the Office of
District Sub-Registrar, Mayurbhanj, the petitioner has
approached this Court by way of filing this writ petition
invoking provisions under Article 226/227 of the
constitution of India with the following prayer(s):
W.P.(C) No.37540 of 2023 Page 2 of 65
"It is, therefore, prayed that this Hon'ble Court may be
graciously pleased to admit this writ petition, issue writ of
mandamus or any other appropriate writ by way of
passing the following orders/directions;
I) To quash the impugned order of rejection dated
12.09.2023 passed by the Opposite Party No-1
under Annexure-14.
II) To declare the observation made under Para-5 (viii)
read with Para-6(x) of the Finance Department
Resolution No.31715 dtd.04.09.2012 under
Annexure-13 is contrary to the settle position of law
laid down by the Hon'ble Supreme Court in the case
of "Amarkant Rai Vrs. State of Bihar and others
[(2015) 8 SCC 265]".
III) To direct the opposite parties to regularize the
services of the petitioner with effect from 20.02.1992
on notional basis at par with the similarly situated
employees, i.e., "Govind Chandra Das and Sushanta
Kumar Acharya" as per Order under Annexure-7 & 8
respectively with all consequential service and
financial benefits in favour of the petitioner;
And to pass such other orders/directions as may be
deemed fit and proper in the bonafide interest of justice.
And for this act of kindness, the petitioner as in duty
bound shall ever pray."
THE FACTS:
2. As per instruction of Inspector General of Registrations,
Odisha vide Letter No.2441, dated 14.06.1990 and
Memo No.214(7), dated 27.01.1991 of the District
W.P.(C) No.37540 of 2023 Page 3 of 65
Registrar, Mayurbhanj, the petitioner, having
Employment Exchange Registration No.U/1568/1981
with the District Employment Exchange, Mayurbhanj,
claims to have been duly selected by a duly constituted
Selection Committee comprising Sub-Registrar,
Rasgovindpur, and three others, from amongst many
other candidates, and was appointed "temporarily on
contingent paid basis to discharge duties of
Nightwatchman-cum-Sweeper with effect from
20.02.1992". The petitioner is stated to have joined the
Office of Sub-Registrar, Rasgovindpur on the said date.
2.1. After rendering long years of service in the said position,
vide Order in Memo No.1231(6)/Regn., dated
06.06.2013, the petitioner, being engaged prior to
12.04.1993, has been conferred "Temporary Status" in
terms of the Finance Department Resolution
No.31715/F, dated 04.09.2012 read with Letter
No.5375/Regn., dated 31.12.2012 of the Inspector
General of Registration, Odisha, Cuttack and Letter
No.2464/Regn., dated 21.05.2013 of the Under
Secretary (Regn), Odisha, Cuttack.
2.2. Around three years from the absorption as Temporary
Status, the service of the petitioner was regularised
against the vacant Class-IV post vide Order in Memo
No.312/Regn., dated 06.02.2016 (Annexure-4), which is
reproduced hereunder:
W.P.(C) No.37540 of 2023 Page 4 of 65
"Office of the District Registrar,
Mayurbhaj, Bariapda
No.___________/Regn. Dt:________
In pursuance of the Government instructions
communicated in Letter No.2405/R&DM, dated
22.01.2016 of Revenue & Disaster Management
Department, the following two night watchman-cum-
sweeper, who were absorbed in "Temporary Status" vide
this office order No.1230/Regn., dated 06.06.2013 and
working in different Sub Registrar Offices mentioned
against their names each are regularized against the
vacant class IV Post in this district in terms of Clause-IV
of Finance Department Resolution No.31715/F dated
04.09.2012.
Sl Name of Catego Date Data Office Prese Age Rem
No the ry to of from s in nt relaxati arks
. person which Birth which which age on
working belong joinin worki allowed
as NW- s g ng in terms
cum- of FD
Sweeper Resoluti
with on
"Tempora
ry
Status"
1 *** *** *** *** *** *** ***
2 Srinibas Gen 12.0 20.02 SRO, 51 19
Das 6.64 .92 Rasgo
bindp
ur
The order of regularization will come into force with effect
from the date of joining in the vacant Class IV post to
which they have been posted.
The relaxation of age has been allowed in terms of the
above referred Finance Department Resolution at the time
of absorption communicated in the above letter.
W.P.(C) No.37540 of 2023 Page 5 of 65
The regularization is subject to verification of Character &
antecedent of the candidate.
The date of absorption shall be reckoned on the 1st
appointment to the service for the purpose of retirement &
other service benefits on absorption in the regular
establishment. They shall be eligible to draw the
minimum of the pay band with GP attached to the
corresponding post & other allowances admissible under
Rules from time to time.
Such absorption and regularization has been concurred in
by the Finance Department in the UOR No.25-GSI
dt.21.01.2015.
On being absorbed in regular Class-IV vacancy after
regularization the following two persons are posted in the
offices mentioned against their names each. They are
directed to join their new place of posting immediately
with all required materials. Under no circumstances
extension of joining will be allowed.
Sl Name of the Person Office to which Remarks
No. absorbed in regular posted
Class IV Service
1 Anil Kumar Baitha DSR Office, Against the
Baripada vacant Class IV
post
2 Srinibas Das DSR Office, Against the
Baripada vacancy caused
due to transfer
of Sri M. Kisku,
Peon to SR
Office, Betnoti
Sd/-
ADM-cum-District Registrar
Mayurbhanj, Baripada"
W.P.(C) No.37540 of 2023 Page 6 of 65
2.3. The Order dated 06.02.2016 of the ADM-cum-District
Registrar, Mayurbhanj, Baripada stipulated that "the
date of absorption shall be reckoned on the first
appointment to the service for the purpose of retirement
and other service benefits on absorption in the regular
establishment". Accordingly, the petitioner while working
in the Office of Sub-Registrar, Rasgobindpur, on such
absorption was posted to work in the Office of District
Sub-Registrar, Baripada against a vacancy caused due
to transfer of Sri M. Kisku, peon to Sub-Registrar Office,
Betnoti.
2.4. Objection is raised by the petitioner that the opposite
parties ignored to take into account the date of first
engagement as Nightwatchman-cum-Sweeper at Sub-
Registrar Office, Rasgobindpur, and, hence, he is
entitled for regularisation with effect from 20.02.1992,
i.e., from his initial date of appointment instead of
15.02.2016, i.e., date of joining in the Office of District
Sub-Registrar, Mayurbhanj by virtue of Office Order in
Letter No.310/Regn., dated 15.02.2016.
2.5. The present petitioner realising that his case would not
be given due attention by taking into account his initial
date of appointment as 20.02.1992, had filed a writ
petition, bearing W.P.(C) No.14961 of 2023, which came
to be disposed of on 17.05.2023 with the following
observation:
W.P.(C) No.37540 of 2023 Page 7 of 65
"***
3. The Petitioner has filed the present writ application
with the following prayer:
'The Petitioner therefore prays that your Lordships
may graciously be pleased to:
(i) Direct the Opp. Parties to notionally regularize
the services of the Petitioner without monetary
benefit from 20.02.1992 to 14.02.2016 and
extend the monetary benefit to be paid from
15.2.2016 i.e. the date of joining as Class-IV
employee (Peon) in regular cadre and the
period from 20.02.1992 be taken for continuity
of service and pension and pensionary benefits
as has been given to Govind Chandra Das and
Sushant Kumar Acharya vide Annexure-6
keeping in view the judgment of the Hon'ble
Supreme Court in the case of Amarkant Rai
vrs. State of Bihar & others, reported in (2015)
5 SCC 265 and O.A. No.1495 (C)/1999, which
has been affirmed by this Hon'ble court in
W.P.(C) No.25159 of 2017 and W.P.(C)
No.12399/2020 and grant all consequential
service and financial benefits in favour of the
petitioner;
(ii) Pass such other orders/directions as may be
deemed fit and proper in the bonafide interest
of justice.'
4. In course of hearing of the writ application, learned
counsel for the Petitioner submits that the Petitioner
ventilating his grievance has submitted
representation before the Commissioner-cum-
W.P.(C) No.37540 of 2023 Page 8 of 65
Secretary, Revenue & Disaster Management
Department, Opposite Party No.1 on 15.02.2022
under Annexure-7. It is also submitted by the
learned counsel for the Petitioner that the said
representation is pending as of now. It is also
submitted by the learned counsel for the Petitioner
that a direction be issued to the Opposite Party No.1
to consider the representation of the Petitioner under
Annexure-7 within a stipulated period of time.
5. Learned Additional Government Advocate submits
that he has no objection if the representation of the
Petitioner is considered by the Opposite Party No.1,
which is stated to be pending, in accordance with
law within a stipulated period of time.
6. Considering the limited nature of grievance of the
Petitioner, the writ application is disposed of at the
stage of admission with a direction to the Opposite
Party no.1 to consider the representation of the
Petitioner under Annexure-7 in accordance with law
within a period of eight weeks from the date of
production of certified copy of this order taking into
consideration Annexures-5&6. The Opposite Party
No.1 shall do well to dispose of the representation of
the Petitioner under Annexure-7 by passing a
speaking and reasoned order. While considering the
representation of the Petitioner, the Opposite Parties
shall do well to keep in mind the principle laid down
by the Hon'ble Supreme Court in Amarkant Rai vrs.
State of Bihar & others, reported in (2015) 8 SCC
265.
7. With the aforesaid observation, the writ application
stands disposed of."
W.P.(C) No.37540 of 2023 Page 9 of 65
2.6. Since said order was not complied with, a contempt
petition, bearing CONTC No.5753 of 2023, was filed,
which was disposed of with the following observation
vide Order dated 18.08.2023:
"2. This Contempt Petition has been filed by the
Petitioner for noncompliance of the order dated
17.05.2023 passed by this Court in W.P.(C)
No.14961 of 2023.
3. Considering the submission made, this Court, by
providing a last chance, deems it proper to dispose
of the Contempt Petition with a direction to the
Opposite Party-Contemnor to comply with the
direction of this Court dated 17.05.2023 passed by
this Court in W.P.(C) No.14961 of 2023, if the same
has not been complied with in the meantime, within
a period of two months from the date of service of a
certified copy of this order by the Petitioner, provided
the operation of order/judgment has not been
stayed by higher forum and file compliance report
before the Registry of this Court within one week
thereafter. It is made clear that in the event the order
of the Court is not given effect to within the time
stipulated hereinabove; it will be construed to be
deliberate violation of this Court's order.
4. The CONTC is, accordingly, disposed of."
2.7. It is alleged that notwithstanding clear observation to
consider the case of the petitioner keeping in view of the
principles laid down in Amarkant Rai Vrs. State of Bihar,
(2015) 8 SCC 265, the Additional Chief Secretary to
Government of Odisha (referred to as "opposite party" for
W.P.(C) No.37540 of 2023 Page 10 of 65
convenience) having not passed the order in true
perspective in obedience to such writ of mandamus, the
petitioner is constrained to approach this Court by way
of filing the present writ petition.
3. Noticed vide Order dated 21.11.2023, counter affidavit
has come to be filed by the opposite party Nos.1, 2 and
4, inter alia stating as follows:
"12. That in reply to the averments made in Paras-12 to 16 of
the writ petition it is humbly submitted that the Govt. in
Finance Department have formulated a scheme for Grant
of Temporary Status and absorption of casual/Daily
wage labourers engaged in different Government
establishments prior to 12.04.1993 against regular
Group-D vacancies vide its Resolution No.31715/F.,
dated 04.09.2012 for benefit of casual/daily wage
labourers. Accordingly, the petitioner was conferred with
temporary status vide this office order No.1230/Regn.
dated 06.06.2013 as per Para 5(b) of above mentioned
Finance Department Resolution. Further his service was
regularized vide Officer Order No.310/Regn. Dated
15.02.2016 by maintaining all formalities keeping in
view of Para 6 of Finance Department Resolution
No.31715/F., dated 04.09.2012.
Thus the period of engagement on daily wages basis of
the petitioner is from 20.02.1992 to 05.06.2013, the
period of temporary status is from 06.06.2013 to
14.02.2016 and his service was regularized from
15.02.2016 by maintained all formalities keeping in
view of para 6 of Finance Department resolution
No.31715/F., dated 04.09.2012.
As per para 5(vii) of Finance Department Resolution
No.31715/F., dated 04.09.2012, the period of service
W.P.(C) No.37540 of 2023 Page 11 of 65
rendered by a person as casual/daily wage labourer
and period of rendered with temporary status will not
count towards retirement and other in service benefits in
case of subsequent absorption against a regular vacant
post as per para 6 of the scheme.
Further, para 6(x) of Finance Department Resolution, the
date of absorption shall be reckoned as the first
appointment to service for the purpose of retirement and
other service benefit.
Hence, the case of the petitioner cannot be considered as
per the judgement of the Hon'ble Supreme Court in
Amarkant Rai Vrs. State of Bihar & others reported in
(2015) 8 SC 265. As well as OA Case No.1495(C) of
1999 filed by Gobinda Chandra Das Vrs. State of
Odisha & Others and W.P.(C) No.12399/2020 filed by
Sushanta Kumar Acharya Vrs. State of Odisha & Others
as those are different cases.
However, it is pertinent to mention here that the Revenue
and Disaster Management has already rejected the
prayer of the petitioner for regularization of his service
notionally from 20.02.1992 to 14.02.2016 without
monetary benefit and to extend the monetary benefit
from 15.02.2016 i.e. the date of joining as Class IV as
per Finance Department Resolution No.31715, dated
04.09.2012 vide Order No.RDM-Reg-CASEHC-0041-
2023--19028/R&DM dated 20.06.2024 and
communicated the same to the petitioner (through
Registered Post) vide Memo No.19032 dated
20.06.2024."
HEARING:
4. Pleadings being completed and exchanged between the
counsel for respective parties, the matter is taken up for
final hearing. Heard Sri Prakash Kumar Rout, learned
W.P.(C) No.37540 of 2023 Page 12 of 65
counsel appearing for the petitioner and Sri Pusparaj
Bharadwaj, learned Additional Standing Counsel for the
opposite parties.
RIVAL CONTENTIONS AND SUBMISSIONS:
5. Sri Prakash Kumar Rout, learned counsel for the
petitioner submitted that this Court while disposing of
W.P.(C) No.14961 of 2023 vide Order dated 17.05.2023
specifically directed the authority concerned (opposite
party) to consider the case of the petitioner for treating
regularization of service notionally from 20.02.1992 to
14.02.2016 without monetary benefit and extend the
monetary benefit from 15.02.2016, i.e., the date of
joining of the petitioner in the post of peon (regular)
adhering to the principles laid down in Amarkant Rai
(supra). Though in the impugned order, the opposite
party has not whispered about principles enunciated in
the Amarkant Rai (supra) being taken into consideration,
nevertheless revised the impugned order superseding it
during the pendency of this writ petition. As is manifest,
after receipt of the notice from this Court pursuant to
Order dated 21.11.2023 the opposite party has passed
revised Order on 20.06.2024 (enclosed to counter
affidavit as Annexure-A/4) in "supersession of previous
Order No.32676, dated 12.09.2023". It is urged that
such recourse to revise the impugned Order, while the
propriety of Order dated 21.11.2023 is impugned and
W.P.(C) No.37540 of 2023 Page 13 of 65
sub judice before this Court is not sustainable in the eye
of law and such an action of the opposite party cannot
withstand judicial scrutiny. In this regard he has placed
reliance on Mohinder Singh Gill Vrs. The Chief Election
Commissioner, (1978) 2 SCR 272.
5.1. It is submitted by Sri Prakash Kumar Rout, learned
counsel for the petitioner that the subterfuge method
adopted to deny the relief claimed for by the petitioner is
unbecoming of an authority like Additional Chief
Secretary to Government. Being conscious of the fact
that the Order dated 12.09.2023 in Annexure-14
(impugned in the writ petition), stated to be passed in
compliance of direction contained in Order dated
17.05.2023 in W.P.(C) No.14961 of 2023, refusing the
claim of the petitioner, the Additional Chief Secretary to
Government committed grave error in law by passing the
revised Order dated 20.06.2024 in supersession of his
earlier Order. This is contended by the learned counsel
for the petitioner to be beyond scope of authority and
imprudent. No power of review being conferred on the
said authority and after passing the Order on
12.09.2023, the opposite party has become functus
officio. Sri Prakash Kumar Rout, learned Advocate
vehemently urged that the opposite party having revised
the Order at Annexure-14 by superseding has, therefore,
conceded that he committed mistake in rejecting the
W.P.(C) No.37540 of 2023 Page 14 of 65
prayer of the petitioner. In such view of the matter, the
case of the petitioner is liable to be allowed, as the Order
under challenge, i.e., Order dated 12.09.2023
(Annexure-14) does not exist in the eye of law after
revised Order dated 20.06.2024 is passed and the later
Order (Annexure-A/4 to the counter affidavit) passed
after the earlier Order (Annexure-14 to the writ petition)
deserves to be ignored.
5.2. It is also argued by the learned counsel for the petitioner
that similarly situated persons having been granted the
identical relief as sought for by the petitioner in this case
based on decisions of this Court as well as the Odisha
Administrative Tribunal, taking recourse to Finance
Department Resolution dated 04.09.2012 has no bearing
to the present fact-situation.
6. Opposing the contention raised by the learned counsel
for the petitioner, Mr. Pusparaj Bharadwaj, learned
Additional Standing Counsel referring to the Finance
Department Resolution dated 04.09.2012 strenuously
argued that the date of absorption is the date to be
reckoned as first appointment to the service for the
purpose of retirement and other service benefit. He
submitted that by issuing revised Order dated
20.06.2024, copy of which is enclosed at Annexure-A/4
to the counter affidavit, the principles laid down in
Amarkant Rai (Supra) as directed by this Court in Order
W.P.(C) No.37540 of 2023 Page 15 of 65
dated 17.05.2023 has been considered by the Additional
Chief Secretary, Revenue and Disaster Management
Department) and on account of distinguishing facts
emanating from said case, the authority has felt the
principles therein are not applicable to the present case
in view of specific provision made in the Finance
Department Resolution dated 04.09.2012.
6.1. He strenuously argued that in view of the Finance
Department Resolution dated 04.09.2012 clearly
stipulating in Clause 6(x) that "the date of absorption
shall be reckoned as the first appointment to the service
for the purpose of retirement and other service benefits",
the opposite party is justified in rejecting the prayer of
the petitioner for regularization of service notionally from
20.02.1992 to 14.02.2016 (without pecuniary benefit)
and to extend the financial benefit from 15.02.2016, i.e.,
the date on which the petitioner joined in service as
Class-IV employee.
ANALYSIS AND DISCUSSIONS:
7. The impugned Order dated 12.09.2023 in Annexure-14
has been passed in pursuance of Order dated
17.05.2023 in W.P.(C) No.14961 of 2023, which reads as
under:
"Government of Odisha
Revenue and Disaster Management Department
W.P.(C) No.37540 of 2023 Page 16 of 65
RDM-REG-CASEHC-0041-2023-32676/R&DM
Dated 12 September 2023
ORDER
Whereas the petitioner, Sri Srinibas Das working as Night Watchman-cum-sweeper in the office of the SR Office, Rasagobindapur has filed the Writ Petition bearing WPC No. 14961/2023 before the Hon'ble High Court praying for regularization of his service notionally from 20.02.1992 to 14.02.2016 without monetary benefit and extend the monetary benefit to be paid from 15.02.2016 i.e. the date of joining as Class IV.
Whereas the Hon'ble Court disposed of the case vide order No 1 dated 17.05.2023 and directed the opposite party No 1 (Additional Chief Secretary, Revenue & DM Department) to consider the representation of the petitioner under Annexure-7 in accordance with law within a period of eight weeks from the date of production of certified copy.
Whereas, the petitioner had joined in the office of Sub- Registrar, Rasagobindapur on 20.02.1992 as casual/daily wage labourer prior to the cut of date i.e. 12.04.1993 and was conferred with the temporary status as per paragraph 5(b) of Finance Department Resolution No. 31715/F dated 04.09.2012 and vide ADM-cum-DR, Mayurbhanj Letter No. 1230, dated 06.06.2013.
Whereas, his service was regularized vide Revenue & DM Department in the office of the District Sub-Registrar, Mayurbhanj on 15.02.2016 vide Office Letter No. 310/Regn. Dated 15.02.2016.
Whereas, the period of engagement on daily wages basis of Sri Srinibas Das is from dated 20.02.1992 to W.P.(C) No.37540 of 2023 Page 17 of 65 05.06.2013, the period of 'Temporary Status' is from dated 06.06.2013 to 14.02.2016 and his service regularized from 15.02.2016 by maintaining all formalities keeping in view of Para-6 of Finance Department Resolution No. 31715 dated 04.09.2012.
Whereas, as per para 5 (viii) of Finance Department Resolution No. 31715/F dated 04.09 2012, the period of service rendered by a person as casual/daily wage labourer and the period of rendered with 'Temporary Status' will not count towards retirement and other service benefits in case of subsequent absorption against a regular vacant post, as per para-6 of the scheme.
Further, para 6 (x) of Finance Department Resolution No. 31715 dated 04.09.2012, the date of absorption shall be reckoned as the first appointment to the service for the purpose of retirement and other service benefit.
Therefore, the prayer of the petitioner for regularization of his service nationally from 20.02.1992 to 14.02.2016 without monetary benefit and to extend the monetary benefit from 15.02.2016 i.e. the date of joining as Class IV cannot be considered as per Finance Department Resolution No.31715 dated 04.09.2012 and hence rejected.
Sd/-
Additional Chief Secretary to Government."
7.1. As is apparent from the highlighted portion of the aforesaid order of the opposite party that he has misread the purport and tenor of direction of this Court contained in order dated 17.05.2023 wherein it has been W.P.(C) No.37540 of 2023 Page 18 of 65 clearly stated that, he shall do well to dispose of the representation of the petitioner by passing a speaking and reasoned order. This apart, it was further directed that while considering the representation of the petitioner the authority shall do well keep in mind the principles laid down by the Hon'ble Supreme Court in Amarkant Rai Vrs. State of Bihar & others, (2015) 8 SCC
265. 7.2. This Court, on 21.11.2023, when took up the matter on board for entertainment, passed the following order:
" This matter is taken up through hybrid arrangement (virtual/physical mode)
2. Heard the learned counsel for the Petitioner.
3. Issue notice on the question of admission to the Opposite Parties.
4. Since Mr. Sanjay Rath, learned Additional Standing Counsel accept notice on behalf of all the Opposite Parties, four extra copies of the writ petition be served on him within a week hence in order to enable him to obtain instruction in the matter by the next date.
5. Counter affidavit, if any, be filed within six weeks hence.
6. List this case in the last week of February, 2024."W.P.(C) No.37540 of 2023 Page 19 of 65
7.3. Again when the matter was listed on 10.04.2024, as no response was filed by the opposite parties, this Court passed the following order on the said date:
"1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).
2. As prayed for by the learned counsel for the State, he is granted four weeks' time to file counter affidavit, after serving a copy thereof on learned counsel for the petitioner who shall file rejoinder within two weeks.
3. List this matter in the week commencing 13th May, 2024."
7.4. Even on the subsequent date when the matter appeared on board on 18.06.2024 there was non-compliance on the part of the opposite parties. Therefore, this Court on the said date made the following observation:
" This matter is taken up through Hybrid Mode.
2. Mr. P.K. Rout, learned counsel for the petitioner referred to the order of this Court dated 17.05.2023 passed in W.P.(C) No.14961 of 2023, wherein this Court has directed to dispose of the representation of the petitioner by passing a speaking and reasoned order keeping in mind the principles laid down by the Hon'ble Apex Court in Amarkant Rai v. State of Bihar & others, reported in (2015) 8 SCC 265. Since the representation was not disposed of within the time stipulated therein, a contempt petition vide CONTC No.5753 of 2023 came to be filed and the W.P.(C) No.37540 of 2023 Page 20 of 65 same was disposed of on 18.08.2023 with the following observation:
"3. Considering the submission made, this Court, by providing a last chance, deems it proper to dispose of the Contempt Petition with a direction to the Opposite Party Contemnor to comply with the direction of this Court dated 17.05.2023 passed by this Court in W.P.(C) No.14961 of 2023, if the same has not been complied with in the meantime, within a period of two months from the date of service of a certified copy of this order by the Petitioner, provided the operation of order/judgment has not been stayed by higher forum and file compliance report before the Registry of this Court within one week thereafter. It is made clear that in the event the order of the Court is not given effect to within the time stipulated hereinabove; it will be construed to be deliberate violation of this Court's order."
3. Mr. Rout, learned counsel for the petitioner submitted that an order has been passed by the Additional Chief Secretary to Government on 12.09.2023 indicating compliance of this Court's order passed in W.P.(C) No.14961 of 2023. However, nothing is spelt out with regard to adherence of principles laid down in the case of Amarkant Rai (supra) by the said Authority while disposing of the representation stated to have complied with the orders of this Court in the writ petition as well as contempt petition. Mr. Rout, learned counsel for the petitioner further pointed out that the petitioner is going to retire on 30.06.2024. He also submitted that the case of the similarly situated persons has been W.P.(C) No.37540 of 2023 Page 21 of 65 considered by the Authority and copies of the said orders are annexed to the writ petition as Annexures-5 and 6.
4. At this stage, Mr. P. Bharadwaj, learned Additional Standing Counsel appearing for the State seeks one week time to obtain instructions.
5. List this matter on 26.06.2024. On that date, instructions must be placed on record, failing which this matter shall be disposed of on its merit with the available materials on record."
7.5. Though the impugned Order dated 12.09.2023 at Annexure-14 to the writ petition was passed by the Additional Chief Secretary to the Government of Odisha in Revenue and Disaster Management Department, after such order being passed on 18.06.2024, a counter affidavit sworn to by Sri Bibhuti Bhusan Nayak, Additional District Magistrate-cum-District Registrar, Mayurbhanj has been filed on 25.06.2024 affirming on oath for the opposite party No.4 and, being duly authorized, on behalf of the opposite party Nos.1 and 2 that, "However, it is pertinent to mention here that the Revenue and Disaster Management has already rejected the prayer of the petitioner for regularization of his service notionally from 20.02.1992 to 14.02.2016 without monetary benefit and to extend the monetary benefit from 15.02.2016 i.e. the date of joining as Class IV as per Finance Department Resolution No.31715, dated 04.09.2012 vide Order No.RDM-Reg-CASEHC-0041- W.P.(C) No.37540 of 2023 Page 22 of 65 2023--19028/R&DM dated 20.06.2024 and communicated the same to the petitioner (through Registered Post) vide Memo No.19032 dated 20.06.2024.
Copy of the Order No.RDM-Reg-CASEHC-0041-2023-- 19028/R&DM dated 20.06.2024 is annexed herewith as Annexuure-A/4."
7.6. It is, at this stage, taken note of that the authority in the rank of Additional Chief Secretary to the Government of Odisha adopted ingenious method in the garb of compliance with the orders of this Court and, thereby attempted to nullify the effect of his own Order dated 12.09.2023, when the same was sub judice before this Court. Realising that this Court's Order dated 17.05.2023 passed in earlier writ petition, being W.P.(C) No.14961 of 2023, read with the Order dated 18.08.2023 passed in contempt proceeding, being CONTC No.5753 of 2023, has not been fully complied with, the opposite party has revised the impugned order on 20.06.2024 (copy of which is enclosed to the counter affidavit as Annexure-A/4), when his earlier Order is in seisin of this Court.
7.7. Following is the Order dated 20.06.2024:
"Government of Odisha Revenue and Disaster Management Department *** RDM-Reg-CASEHC-0041-2023--19028/R&DM.
Dated 20 JUN 2024 W.P.(C) No.37540 of 2023 Page 23 of 65 ORDER Whereas the petitioner, Sri Srinibash Das working as Night Watchman-cum-sweeper in the office of the SR Office, Rasagobindapur has filed the Writ Petition bearing WPC No. 14961/2023 before the Hon'ble High Court praying for regularization of his service notionally from 20.02.1992 to 14.02.2016 without monetary benefit and extend the monetary benefit to be paid from 15.02.2016 i.e. the date of joining as Class IV.
Whereas the Hon'ble Court has disposed of the case vide order No. 1 dated 17.05.2023 and directed the opposite party No. 1 (Additional Chief Secretary, Revenue & DM Department) 'to consider the representation of the petitioner under annexure-7 in accordance with law within a period of eight weeks from the date of production of certified copy of this order taking into consideration Annexures-5 & 6. The Opposite Party No.1 shall do well to dispose of the representation of the Petitioner under Annexure-7 by passing a speaking and reasoned order. While considering the representation of the Petitioner, the Opposite Parties shall do well to keep in mind the principle laid down by the Hon'ble Supreme Court in Amarkant Rai Vrs, State of Bihar & others, reported in (2015) 8 SC 265.
In obedience to the order of Hon'ble High Court in the above writ Government in R&DM Department after careful consideration has rejected the prayer of the petitioner on the basis of the Finance Department Resolution No. 31715 dated 04.09.2012. Being aggrieved by the order No. 32676 dated 12.09.2023 of Government, the petitioner filed another writ bearing WP(C) No. 37540 of 2023 wherein the petitioner has contended that while passing the order, the Government has not spelt out the adherence W.P.(C) No.37540 of 2023 Page 24 of 65 of principle laid down in the case of Amarkant Rai Vs State of Bihar by the Hon'ble Apex Court.
In view of this in supersession of the previous order No 32676 dated 12.09.2023 of Government and in compliance to the order of Hon'ble High Court dated 18.06.2024 in WP(C) No 37540 of 2023 the revised speaking order is made as under:
Whereas, the petitioner had joined in the office of Sub- Registrar, Rasagobindpur on 20.02.1992 as casual/daily wage labourer prior to the cut-off date i.e. 12.04.1993 and was conferred with the 'temporary status' as per paragraph 5(b) of Finance Department Resolution No. 31715/F dated 04.09.2012 and vide ADM-cum-DR, Mayurbhanj Letter No. 1230 dated 06.06.2013.
Whereas, his service was regularized w.e.f. 15.02.2016 vide Letter No. 310/Regn dated 15.02.2016 of office of the ADM-cum-DR, Mayurbhanj.
Whereas, the period of engagement on daily wages basis of Sri Srinibash Das is from dt. 20.02.1992 to 05.06.2013, the period of 'Temporary Status' is from dt. 06.06.2013 to 14.02.2016 and his service has been regularized w.e.f 15.02.2016 by maintaining all formalities as per Para-6 of Finance Department Resolution No. 31715 did. 04.09.2012.
Whereas, the Case of Amarkant Rai Vrs. State of Bihar & others is different from the instant case, as the Hon'ble Apex Court in that case has retrospectively regularized the service of the applicant and granted notional benefits to him on the basis of compassionate grounds ie the applicant has served the University for more than 29 years on the post of Night Guard on daily wages. The Hon'ble apex Court has also stated that no additional W.P.(C) No.37540 of 2023 Page 25 of 65 financial burden will be created on the State. But, in the instant case if the petitioner is granted such benefits there will be huge financial implications on the State and such an action will have cascading effect on similarly situated persons in Revenue & Disaster Management Department and other Departments.
Whereas, the cases referred by the petitioner in Annexure- 5 & 6 of the petition is different from the instant case. In those Instances, the petitioners had prayed for regularization of their service, which was subsequently considered. However, in the present case the service of the petitioner has already been regularized w.e.f 15.02.2016 and petitioner's prayer for regularization of his service notionally from 20.02.1992 to 14.02.2016 will have financial implication on the State.
Whereas, as per para 5 (viii) of Finance Department Resolution No. 31715/F dated 04.09.2012, the period of service rendered by a person as casual/daily wage labourer and the period of rendered with 'Temporary Status' will not count towards retirement and other service benefits in case of subsequent absorption against a regular vacant post, as per para-6 of the scheme.
Further as per para 6.(x) of Finance Department Resolution No. 31715 did. 04.09.2012, the date of absorption shall be reckoned as the first appointment to the service for the purpose of retirement and other service benefit.
Therefore, the prayer of the petitioner for regularization of his service notionally from 20.02.1992 to 14.02.2016 without monetary benefit and to extend the monetary benefit from 15.02.2016 i.e. the date of joining as Class IV cannot be considered as per Finance Department W.P.(C) No.37540 of 2023 Page 26 of 65 Resolution No. 31715 dtd. 04.09.2012 and hence rejected.
Sd/- 20.06.2024 Additional Chief Secretary to Government"
7.8. It is most deplorable attempt on the part of the opposite party to have passed the Order dated 12.09.2023 (Annexure-14 to the writ petition) by-passing the direction of this Court in Order dated 17.05.2023 passed in W.P.(C) No.14961 of 2023 read with the Order dated 18.08.2023 passed in CONTC No.5753 of 2023. The revised Order dated 20.06.2024 (Annexure-A/4 to the counter affidavit)-- nullifying the effect of his own Order passed on 12.09.2023 and/or seeking to supplement reasons after Order dated 18.06.2024 being passed by this Court in the instant case adjourning the matter by considering the request of the learned Additional Standing Counsel seeking to obtain instructions in course of hearing on 18.06.2024-- is indicative of the fact that the opposite party, conceded that the Order dated 12.09.2023 was not passed in compliance of direction contained in Order dated 17.05.2023 of this Court in W.P.(C) No.14961 of 2023 in true letter and spirit. The opposite party-authority has arrogated to himself power of revision, that he does not possess, consequently, he passed a revised order that supersedes the impugned order. Such a course of invoking power of W.P.(C) No.37540 of 2023 Page 27 of 65 revision suo motu by the authority would tantamount to overreaching the orders of this Court.
7.9. The Order dated 12.09.2023 passed by the opposite party, who is directed to pass "a speaking and reasoned order" and "keep in mind the principle laid down by the Hon'ble Supreme Court in Amarkant Rai Vrs. State of Bihar & others, reported in (2015) 8 SCC 265", vide Order dated 17.05.2023, while disposing of the writ petition, having disposed of the representation of an employee (peon) of the State Government in cavalier manner, this Court has no alternative than to quash the impugned Order in Annexure-4 of the writ petition.
Simultaneously, it can also be observed that the revised Order dated 20.06.2024 (Annexure-A/4), being passed without authority, is non est in the eye of law.
7.10. Therefore, it is evinced that the Additional Chief Secretary, in the garb of supersession of his earlier Order dated 12.09.2023 and in order to obliterate the effect of said order, when this court is ceased of the matter, has ascribed further and supplementary reasons while passing the revised Order dated 20.06.2024, which in the considered view of this Court is impermissible in law inasmuch as power of review is not vested in the said authority.
W.P.(C) No.37540 of 2023 Page 28 of 657.11. Though it is found passing of revised Order on 20.06.2024 (Annexure-A/4 to the counter affidavit) by the said authority, stated to have superseded the Order dated 12.09.2023 (Annexure-14 of the writ petition) in his revised Order dated 20.06.2024, during the pendency of the writ petition and that too in view of Order dated 18.06.2024 passed in the course of hearing of instant writ petition, is contemptuous, this Court desists from proceeding against the authority, but considering the submission of Sri Prakash Kumar Rout, learned Advocate on 18.06.2024 that the petitioner would retire on 30.06.2024, suffice it to observe at this juncture that the revised Order dated 20.06.2024 is to be ignored, as it is ineffective, inoperative and non est.
8. This Court is reminded of oft-quoted ruling in Mohinder Singh Gill Vrs. The Chief Election Commissioner, (1978) 2 SCR 272, which has been reiterated in State of Punjab Vrs. Bandeep Singh, (2015) 10 SCR 496, wherein the Hon'ble Supreme Court has observed to the following effect:
"There can be no gainsaying that every decision of an administrative or executive nature must be a composite and self-sustaining one, in that it should contain all the reasons which prevailed on the official taking the decision to arrive at his conclusion. It is beyond cavil that any Authority cannot be permitted to travel beyond the stand adopted and expressed by it in the impugned action. If precedent is required for this proposition it can be found W.P.(C) No.37540 of 2023 Page 29 of 65 in the celebrated decision titled Mohinder Singh Gill Vrs. The Chief Election Commissioner, New Delhi, (1978) 2 SCR 272, of which the following paragraph deserves extraction:
'8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji, (1952) 1 SCR 135:
Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of Explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older.' ***"
8.1. It may be apt to quote the observation of the Hon'ble Supreme Court of India from Southern Power Distribution Power Company Limited of Andhra Pradesh (APSPDCL) W.P.(C) No.37540 of 2023 Page 30 of 65 Vrs. M/s. Hinduja National Power Corporation Limited, 2022 LiveLaw (SC) 117:
"101. We may gainfully refer to the following observations of this Court in the case of Kumari Shrilekha Vidyarthi Vrs. State of U.P., (1991) 1 SCC 212:
'27. Unlike a private party whose acts uninformed by reason and influenced by personal predilections in contractual matters may result in adverse consequences to it alone without affecting the public interest, any such act of the State or a public body even in this field would adversely affect the public interest. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. This is equally true of all actions even in the field of contract. Thus, every holder of a public office is a trustee whose highest duty is to the people of the country and, therefore, every act of the holder of a public office, irrespective of the label classifying that act, is in discharge of public duty meant ultimately for public good. With the diversification of State activity in a Welfare State requiring the State to discharge its wide ranging functions even through its several instrumentalities, which requires entering into contracts also, it would be unreal and not pragmatic, apart from being unjustified to W.P.(C) No.37540 of 2023 Page 31 of 65 exclude contractual matters from the sphere of State actions required to be non-arbitrary and justified on the touchstone of Article 14.
28. Even assuming that it is necessary to import the concept of presence of some public element in a State action to attract Article 14 and permit judicial review, we have no hesitation in saying that the ultimate impact of all actions of the State or a public body being undoubtedly on public interest, the requisite public element for this purpose is present also in contractual matters. We, therefore, find it difficult and unrealistic to exclude the State actions in contractual matters, after the contract has been made, from the purview of judicial review to test its validity on the anvil of Article 14.'
102. It will also be apposite to refer to the following observations of this Court in the case of Food Corporation of India Vrs. M/s. Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71:
'7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is 'fairplay in action'. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his W.P.(C) No.37540 of 2023 Page 32 of 65 interaction with the State and its instrumentalities, with this element forming a necessary component of the decision making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.
8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case.W.P.(C) No.37540 of 2023 Page 33 of 65
Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.'
103. Recently, this Court in the case of Indian Oil Corporation Limited and others Vrs. Shashi Prabha Shukla and another, (2018) 12 SCC 85 after referring to earlier judgments of this Court on the present issue has observed thus:
"33. Jurisprudentially thus, as could be gleaned from the above legal enunciations, a public authority in its dealings has to be fair, objective, non-arbitrary, transparent and non- discriminatory. The discretion vested in such an authority, which is a concomitant of its power is coupled with duty and can never be unregulated or unbridled. Any decision or action contrary to these functional precepts would be at the pain of invalidation thereof. The State and its instrumentalities, be it a public authority, either as an individual or a collective has to essentially abide by this inalienable and non-negotiable prescriptions and cannot act in breach of the trust reposed by the polity and on W.P.(C) No.37540 of 2023 Page 34 of 65 extraneous considerations. In exercise of uncontrolled discretion and power, it cannot resort to any act to fritter, squander and emasculate any public property, be it by way of State largesse or contracts, etc. Such outrages would clearly be unconstitutional and extinctive of the rule of law which forms the bedrock of the constitutional order.' ***"
8.2. The following observation of the Hon'ble Supreme Court of India in Kumari Shrilekha Vidyarthi Vrs. State of U.P., (1990) Supp.1 SCR 625, fits to the present situation, "The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that 'be you ever so high, the laws are above you'. This is what men in power must remember, always.
Almost a quarter century back, this Court in S.G. Jaisinghani Vrs. Union of India and Ors., (1967) 2 SCR W.P.(C) No.37540 of 2023 Page 35 of 65 703, at p. 718-19, indicated the test of arbitrariness and the pitfalls to be avoided in all State actions to prevent that vice, in a passage as under:
'In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey-- 'Law of the Constitution'-- Tenth Edition, Introduction cx). 'Law has reached its finest moments', stated Douglas, J. in United States v. Wunderlick, (*), 'when it has freed man from the unlimited discretion of some ruler ... Where discretion is absolute, man has always suffered'. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilker(*), 'means sound discretion guided by law. It must be governed by rule, not humour: it must not be arbitrary, vague and fanciful.' After Jaisinghani's case (supra), long strides have been taken in several well-known decisions of this Court expanding the scope of judicial review in such matters. It has been emphasized time and again that arbitrariness is anathema to State action in every sphere and wherever the vice percolates, this Court would not be impeded by technicalities to trace it and strike it down. This is the W.P.(C) No.37540 of 2023 Page 36 of 65 surest way to ensure the majesty of rule of law guaranteed by the Constitution of India. It is, therefore, obvious that irrespective of the nature of appointment of the Government Counsel in the districts in the State of U.P. and the security of tenure being even minimal as claimed by the State, the impugned circular, in order to survive, must withstand the attack of arbitrariness and be supported as an informed decision which is reasonable.
No doubt, it is for the person alleging arbitrariness who has to prove it. This can be done by showing in the first instance that the impugned State action is uninformed by reason inasmuch as there is no discernible principle on which it is based or it is contrary to the prescribed mode of exercise of the power or is unreasonable. If this is shown, then the burden is shifted to the State to repel the attack by disclosing the material and reasons which led to the action being taken in order to show that it was an informed decision which was reasonable. If after a prima facie case of arbitrariness is made out, the State is unable to show that the decision is an informed action which is reasonable, the State action must perish as arbitrary."
8.3. The underlying principle of functus officio may be found in the decision of the Hon'ble Supreme Court of India in the case of Ajay Mohan Vrs. H.N. Rai, (2008) 2 SCC 507, wherein at paragraph 24 the following observation has been made:
"The order of the City Civil Court dated 13.10.2006 may be bad but then it was required to be set aside by the Court of Appeal. An appeal had been preferred by the W.P.(C) No.37540 of 2023 Page 37 of 65 appellants thereagainst but the same had been withdrawn. The said order dated 13.10.2006, therefore, attained finality. The High Court, while allowing the appellant to withdraw the appeal, no doubt, passed an order of status quo for a period of two weeks in terms of its order dated 23.11.2006 but no reason therefor had been assigned. It ex facie had no jurisdiction to pass such an interim order. Once the appeal was permitted to be withdrawn, the Court became functus officio. It did not hear the parties on merit. It had not assigned any reason in support thereof. Ordinarily, a court, while allowing a party to withdraw an appeal, could not have granted a further relief. [See G.E. Power Controls India Vrs. S. Lakshmipathy & Ors., (2005) 11 SCC 509]."
8.4. It is expedient in the present context to refer to the following exposition with regard to application of doctrine of functus officio in Odisha Administrative Tribunal Bar Association Vrs. Union of India, (2023) 6 SCR 731, "90. P. Ramanatha Aiyer's The Law Lexicon (1997 edition) defines the term functus officio as:
'A term applied to something which once has had a life and power, but which has become of no virtue whatsoever ... One who has fulfilled his office or is out of office; an authority who has performed the act authorised so that the authority is exhausted'.
91. Black's Law Dictionary (5th edition) defines the term as follows:
W.P.(C) No.37540 of 2023 Page 38 of 65'Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority ... an instrument, power, agency, etc. which has fulfilled the purpose of its creation, and is therefore of no further virtue or effect.'
92. The doctrine of functus officio gives effect to the principle of finality. Once a judge or a quasi-judicial authority has rendered a decision, it is not open to her to revisit the decision and amend, correct, clarify, or reverse it (except in the exercise of the power of review, conferred by law). Once a judicial or quasi- judicial decision attains finality, it is subject to change only in proceedings before the appellate court.
93. For instance, Section 362 of the Code of Criminal Procedure 1973 provides that a court of law is not to alter its judgment once it is signed:
"362. Court not to alter judgment.--Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."
In Hari Singh Mann Vrs. Harbhajan Singh Bajwa, (2001) 1 SCC 169, this Court recognized that Section 362 was based on the doctrine of functus officio:
'10. *** The section is based on an acknowledged principle of law that once a matter is finally disposed of by a court, W.P.(C) No.37540 of 2023 Page 39 of 65 the said court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error."
94. The doctrine of functus officio exists to provide a clear point where the adjudicative process ends and to bring quietus to the dispute. Without it, decision- making bodies such as courts could endlessly revisit their decisions. With a definitive endpoint to a case before a court or quasi judicial authority, parties are free to seek judicial review or to prefer an appeal. Alternatively, their rights are determined with finality. Similar considerations do not apply to decisions by the state which are based entirely on policy or expediency."
8.5. The doctrinaire concept of functus officio can be perceived in the judgment rendered by the Hon'ble Supreme Court of India in the case of State of Punjab Vrs. Davinder Pal Singh Bhullar, (2011) 15 (Addl.) SCR
540. Relevant portions of said reported judgment need to be extracted hereunder for clarity in approach:
"26. There is no power of review with the Criminal Court after judgment has been rendered. The High Court W.P.(C) No.37540 of 2023 Page 40 of 65 can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 Cr.P.C. is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. (See: Hari Singh Mann Vrs. Harbhajan Singh Bajwa, AIR 2001 SC 43; and Chhanni Vrs. State of U.P., AIR 2006 SC 3051). Moreover, the prohibition contained in Section 362 Cr.P.C. is absolute; after the judgment is signed, even the High Court in exercise of its inherent power under Section 482 Cr.P.C. has no authority or jurisdiction to alter/review the same. (See: Moti Lal Vrs. State of M.P., AIR 1994 SC 1544; Hari Singh Mann (supra); and State of Kerala Vrs. M.M. Manikantan Nair, AIR 2001 SC 2145).
27. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the W.P.(C) No.37540 of 2023 Page 41 of 65 reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/ alteration has to establish that it was not at fault. (Vide: Chitawan Vrs. Mahboob Ilahi, 1970 Crl.L.J. 378; Deepak Thanwardas Balwani Vrs. State of Maharashtra & Anr., 1985 Crl.L.J. 23; Habu Vrs. State of Rajasthan, AIR 1987 Raj. 83 (F.B.); B Swarth Mahto & Anr. Vrs. Dharmdeo Narain Singh, AIR 1972 SC 1300; Makkapati Nagaswara Sastri Vrs. S.S. Satyanarayan, AIR 1981 SC 1156; Asif Kumar Kar Vrs. State of West Bengal & Ors., (2009) 2 SCC 703; and Vishnu Agarwal Vrs. State of U.P. & Anr., AIR 2011 SC 1232).
28. This Court by virtue of Article 137 of the Constitution has been invested with an express power to review any judgment in Criminal Law and while no such power has been conferred on the High Court, inherent power of the court cannot be exercised for doing that which is specifically prohibited by D the Code itself. (Vide: State Represented by D.S.P., S.B.C.I.D., Chennai Vrs. K. V. Rajendran & Ors., AIR 2009 SC 46).
29. In Smt. Sooraj Devi Vrs. Pyare Lal & Anr., AIR 1981 SC 736, this Court held that the prohibition in Section 362 Cr.P.C. against the Court altering or reviewing its judgment, is subject to what is 'otherwise provided by this Code or by any other law for the time being in force'. Those words, however, refer to those provisions only where the W.P.(C) No.37540 of 2023 Page 42 of 65 Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 Cr.P.C. and, therefore, the attempt to invoke that power can be of no avail.
30. Thus, the law on the issue can be summarised to the effect that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law."
8.6. It may be noted that the decision of the Additional Chief Secretary is on account of quasi judicial function inasmuch as he has exercised authority to decide the entitlement of the petitioner with respect to the prayer to regularise his service taking into consideration past service from 20.02.1992 to 14.02.2016 instead of with effect from 15.02.2016, i.e., from the date of joining as employee (peon) in the category of Class-IV, notionally without pecuniary benefit for the purpose of pension and pensionary benefit and with all consequential and financial benefit with effect from 15.02.2016.
8.7. The distinction between administrative function and quasi judicial function as culled out in Odisha W.P.(C) No.37540 of 2023 Page 43 of 65 Administrative Tribunal Bar Association Vrs. Union of India, (2023) 6 SCR 731, is as follows:
"46. This Court discussed the meaning and contours of a quasi judicial act in Province of Bombay Vrs. Khushaldas S. Advani, (1950) SCC 551, where SR Das, J. in his concurring opinion held:
'80.1.(i) that if a statute empowers an authority, not being a court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi judicial act; and 80.2.(ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially.
81. In other words, while the presence of two parties besides the deciding authority will prima facie, and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority W.P.(C) No.37540 of 2023 Page 44 of 65 out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially.'
47. In Indian National Congress (I) Vrs. Institute of Social Welfare, (2002) 5 SCC 685 = (2002) 3 SCR 1040, this Court held that:
'29. ... another test which distinguishes administrative function from quasi judicial function is, the authority who acts quasi judicially is required to act according to the rules, whereas the authority which acts administratively is dictated by the policy and expediency.'
48. In Board of High School and Intermediate Education Vrs. Ghanshyam Das Gupta, AIR 1962 SC 1110 this Court expounded upon when an authority is required to act judicially:
'8. ... Now it may be mentioned that the statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the right affected, the manner of the disposal provided, the objective criterion if any to be adopted, the W.P.(C) No.37540 of 2023 Page 45 of 65 effect of the decision on the person affected and other indicia afforded by the statute.'
49. From the above decisions, it emerges that:
a. The decision of an authority is prima facie, and in the absence of any other factor, a quasi judicial act when there is a lis before it, with two parties with competing claims;
b. When the authority has the power to do something which will prejudicially affect the subject, the decision it takes is a quasi-judicial act even in the absence of a lis and two parties with competing claims, when the authority is required by the statute in question to act judicially. The express provisions of the statute, the nature of the right affected, the manner of disposal, the objective criterion (if any) to be adopted while deciding one way or the other, the effect of the decision, and other signs in the statute may be considered when evaluating whether there is a duty to act judicially; and c. The decision of an authority is quasi-
judicial when it is made in accordance with rules. The decision is administrative when it is dictated by policy and expediency.
50. Having laid down the above principles, it must be realised that the distinction between quasi judicial and administrative acts is not always well defined and its application is not always certain. Doctrine and practice are not necessarily happy partners. The instant case evidently does not involve a lis or two parties with competing claims appearing before an W.P.(C) No.37540 of 2023 Page 46 of 65 authority who will determine their respective rights.
Further, the act of the Union Government establishing the OAT did not prejudicially affect the subject in any manner. Litigants or other citizens were not left without a forum. They could continue to pursue their remedies before the OAT when it was first established, instead of before the Orissa High Court."
8.8. In the present matter, once the opposite party had passed Order dated 12.09.2023 stated to be in compliance of the direction of this Court contained in Order dated 17.05.2023 passed in W.P.(C) No.14961 of 2023, the authority is rendered functus officio; more so, when the said order is sub judice before this Court in the instant writ petition. The so-called "revised speaking order" dated 20.06.2024 passed in supersession of Order dated 12.09.2023 cannot be said to be an order suffering clerical or arithmetical error calling for review of the Order. Such a course as adopted by the Additional Chief Secretary to clarify the decision taken earlier is impermissible and untenable in the eyes of law.
CONCLUSION AND DECISION:
9. The arbitrary action of the Additional Chief Secretary to the Government of Odisha in Revenue and Disaster Management cannot be protected and in consequence thereof the Order dated 12.09.2023 is liable to be quashed. This apart, the opposite party after this Court W.P.(C) No.37540 of 2023 Page 47 of 65 passed Order dated 18.06.2024 during pendency of the instant writ petition sought to supplement his decision with fresh reasons by superseding his own Order dated 12.09.2023 in the garb of revised Order dated 20.06.2024. Since earlier order does not exist, and subsequent order is non est in the eye of law, this Court is inclined to allow this writ petition by acceding to the prayer(s) of the petitioner in the writ petition.
9.1. In response to Letter dated 20.02.1992 of the Sub-
Registrar, Rasgobindpur (enclosed as Annexure-1 to the writ petition), the petitioner joined in service with effect from 20.02.1992. The contents of said letter reads as follows:
"Office of the Sub Registrar : Rasgobindpur No.95 / Dated the 20th February, 1992 To The District Registrar, Mayurbhanj Baripada Sub: Approval of selection of suitable candidate for appointment to the temporary post of Night Watchman- cum-Sweeper in S.R. Office, Rasgobindpur.
Sir, I am to say that as per instruction of I.C.R., Orissa, vide his letter No.2441, dated 14.06.1990 and Memo No.214(7) dated 27.01.1991 of the District Registrar, Mayurbhanj, a suitable candidate named Sri Srinibas Das having employment Regn. No.U/1568/81 of the W.P.(C) No.37540 of 2023 Page 48 of 65 District Employment Exchange, Mayurbhanj, Baripada has been selected by the selection committee formed by me consisting of myself, Sri I.C. Singh, R.S. Rasgovindpur and Sri G.C. Satpathy, Senior Clerk of this Office after obtaining a list of candidates having requisite qualification and as from the local employment exchange at Baripada. The selected candidate, Sri Das has been appointed temporarily on contingent paid basis to discharge the duties of Night Watchman-cum-Sweeper in this office with effect from 20.02.1992 in anticipation of approval of the competent authority, as the new record room building has been taken over by me from the P.W.D. authorities on 19.02.1992.
I would, therefore, request you to obtain and communicate kind approval of the above appointment of the D.R. Mayurbhanj at a very early date."
9.2. Consequent upon Order dated 06.06.2013 (Annexure-3) of the ADM-cum-District Registrar, Mayurbhanj, Baripada according 'Temporary Status' in terms of Finance Department Resolution No.31715--FIN-BUDS- MISC-0009/2012/F., dated 04.09.2012, acknowledging joining of the petitioner on 20.02.1992 as Nightwatchman-cum-Sweeper in the Office of Sub- Registrar, Rasgobindpur, by virtue of Order dated 06.02.2016 (Annexure-4) the ADM-cum-Registrar, Mayurbhanj has regularized the service of the petitioner against the vacant Class-IV post inter alia stating that "The date of absorption shall be reckoned on the first W.P.(C) No.37540 of 2023 Page 49 of 65 appointment to the service for the purpose of retirement and other service benefits on absorption in the regular establishment".
9.3. It may be worthwhile to notice that the Letter dated 20.02.1992 depicts that the Sub-Registrar, Rasgovindpur having taken over new record room building engaged the petitioner in a vacant position to work as "Nightwatchman-cum-Sweeper" after selecting him in a duly constituted Selection Committee. Therefore, since the petitioner was engaged against a vacant position on 20.02.1992 and worked till his retirement on 30.06.2024 (as informed by learned counsel for the petitioner during the course of hearing) his claim does not appear to be unreasonable nor contrary to what has been laid down in Amarkant Rai (supra).
9.4. This Court is not oblivious of what has been laid down in The Managing Director, Ajmer Vidhyut Vitran Nigam Ltd., Ajmer Vrs. Chiggan Lal, (2022) LiveLaw (SC) 296:
"It is the settled position that the date from which regularization is to be granted is a matter to be decided by the employer keeping in view a number of factors like the nature of the work, number of posts lying vacant, the financial condition of the employer, the additional financial burden caused, the suitability of the workmen for the job, the manner and reason for which the initial appointments were made etc. The said decision will W.P.(C) No.37540 of 2023 Page 50 of 65 depend upon the facts of each year and no parity can be claimed based on regularization made in respect of the earlier years."
9.5. Even so, it is evinced from the Order dated 12.09.2023 that the opposite party has not taken into consideration the fact that the petitioner was not only engaged being selected by facing selection process and worked against vacant post but also rendered service for more than 32 years. He also failed to take into account the factual matrix of the matter juxtaposed with other relevant factors while applying the terms of Resolution dated 04.09.2012 (Annexure-13).
9.6. At this stage this Court would wish to refer to the following observation of the Hon'ble Supreme Court of India in the case of Vinod Kumar Vrs. Union of India, (2024) 1 SCR 1230:
"2. *** Despite being appointed for what was termed a temporary or scheme based engagement, the appellants have been continuously working in these positions from 1992 till the present, spanning a period exceeding 25 years.
***
7. The judgement in the case Secretary, State of Karnataka Vrs. Umadevi reported in (2006) 4 SCC 1 also distinguished between "irregular" and "illegal" appointments underscoring the importance of considering certain W.P.(C) No.37540 of 2023 Page 51 of 65 appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case. Paragraph 53 of the Umadevi (supra) case is reproduced hereunder:
'53. 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 = (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 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 W.P.(C) No.37540 of 2023 Page 52 of 65 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."
9.7. In State of Uttar Pradesh Vrs. Arvind Kumar Srivastava, (2015) 1 SCC 347 it has been observed with respect to relief to be granted in tune with relief granted to the similarly situated persons as follows:
"9. It is of interest to note that both the sides, in support of their respective submissions, have referred to certain judgments and the reading whereof would demonstrate that in certain cases benefit of a particular judicial pronouncement is extended to those who are identically situated on the principle of equality. On the other hand, there is a line of judgments denying such a benefit to the second group which approaches the court afterwards, even when the said second group is similarly situated as the persons belonging to the first group. However, there is no conflict between the two sets of cases. In order to find out the principles laid down on the basis of which benefit of the earlier judgment is extended to those coming subsequently and the situations where such benefit is denied, we will W.P.(C) No.37540 of 2023 Page 53 of 65 have to undertake a journey into these details and lay down clear parameters.
***
22. The legal principles which emerge from the reading of G the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:
22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2.However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated W.P.(C) No.37540 of 2023 Page 54 of 65 persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3.However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see, K.C. Sharma Vrs.
Union of India, (1997) 6 SCC 721). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."
9.8. To drive home his contention in line with aforesaid principles, in the course of hearing, Sri Prakash Kumar Rout, learned Advocate has drawn attention of this Court to a decision rendered by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack following Amarkant Rai Vrs. State of Bihar, (2015) 8 SC 265 vide Order dated 07.04.2016 in the case of Gobinda W.P.(C) No.37540 of 2023 Page 55 of 65 Chandra Das Vrs. State of Odisha, in O.A. No.1495(C) of 1999, wherein it has been observed as follows:
"*** It may be noted that even though no post of driver has been sanctioned, yet the services of the applicant has been utilized on daily wage basis, which shows the necessity of the post of driver. It is not the case of the respondent that the office of Tahasildar is a temporary creation which is likely to be abolished at any point of time for which the post has not been created. *** When the services of the applicant has been utilized continuously from the year 1990, he should not be deprived of regularization as has been done in the case of NMR/DLR employees as per the Resolution of the Government dated 15.5.1997. Of course regularization can be done only against a group-"D" post. However keeping in view the engagement of the applicant for long i.e. more than 25 years, the post of driver in Mahanga Tahasil shall be deemed to be a post of permanent nature, and following the principle as laid down by the Hon'ble Apex Court in the decision referred to above, we are of the view that the applicant should be regularized against any available vacancy as per the guidelines issued in the resolution of the Government dated 15.5.1997 subject to his fulfilling the eligibility criteria as per the relevant recruitment rule but with relaxation of age. If no vacancy is available within the administrative control of the Collector and District Magistrate, Cuttack steps be taken for creation of a post as the post of driver in Mahanga Tahasil is permanent in nature.
The entire exercise be completed within a period of four months from the date of receipt of a copy of this order.W.P.(C) No.37540 of 2023 Page 56 of 65
In the event the applicant is absorbed; such absorption shall be notional with effect from the date of his initial engagement, till the date of his actual absorption, and therefore, he will be entitled to actual financial benefits attached to the post. However, he shall be entitled to continuity in service only for the purpose of pensionary benefits, if absorbed as directed above.
With these order, the OA is disposed of. "
Said matter was carried by the State Government before a Division Bench of this Court in W.P.(C) No.25159 of 2017 [State of Odisha Vrs. Gobinda Chandra Das], which was dismissed on 06.03.2018 with the following Order:
"Heard learned Addl. Government Advocate for the petitioners.
Petitioners-State Authorities in the present writ petition assail the Order dated 07.04.2016 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 1495 (C) of 1999 as well as the Order dated 09.11.2016 passed by the Tribunal in R.P. No.96(C) of 2016.
The learned Addl. Government Advocate submits that since the opposite party No.1 was engaged on daily wage basis the Tribunal should not have passed the impugned order directing the Collector and District Magistrate to take step for creation of a post as the post of driver in Mahanga Tahasil is permanent in nature. Thus, the impugned order need be interfered with.
On perusal of the impugned order it appears that the opposite party No.1 was engaged as a driver in the year 1990 after the vehicle was purchased in the Tahasil of W.P.(C) No.37540 of 2023 Page 57 of 65 Mahanga. Even though there was no objection raised regarding purchase of the vehicle by the competent authority and the service of opposite party No.1 was utilized for a period more than two decades. Tribunal considering the above facts passed the impugned order as utilization of the vehicle in the Mahanga Tahasil is absolute and post of driver in the said vehicle was permanent in nature. The Tribunal also taken into consideration the decision of the Apex Court in the case of Amarkant Rai Vrs. State of Bihar and others reported in (2015) 8 SC 265 wherein the Apex Court has directed to regularize the service of a daily wager who has served the authority for a period of more than 29 years. As there is no error apparent on the face of the impugned order, we are not inclined to interfere with the same in exercising the jurisdiction under Article, 227 of the Con stitution of India.
The writ petition is dismissed."
Learned counsel for the petitioner further referring to Annexure-7, submitted that a letter bearing No.RDM- NGEA-CASEAT-0180-2016-35019/R&DM dated 19.09.2018 was issued by the Government of Odisha in Revenue and Disaster Management Department, instructing implementation of the Order dated 07.04.2016 of the Odisha Administrative Tribunal passed in O.A. No.1495(C) of 1999 in the case of Gobinda Chandra Das (supra) referred to above.
W.P.(C) No.37540 of 2023 Page 58 of 659.9. In Sushanta Kumar Acharya Vrs. State of Odisha and others, W.P.(C) No.12399 of 2020, this Court passed the following Order on 10.06.2020:
"*** The petitioner has filed this writ petition seeking direction to the opposite party No.2 to regularize the service of the petitioner against Class-IV post keeping in view the judgment of the apex Court in Secretary State of Karnataka and Others Vrs. Umadevi (3) and Others (2006) 4 SCC 1, and Amarkant Rai Vrs. State of Bihar, (2015) 8 SCC 265.
In course of hearing, learned counsel appearing for the petitioner states that highlighting the grievance the petitioner has made representation to opposite party No.2 vide Annexure-7 and direction be given to consider the same in the light of judgments passed by the apex Court in Secretary State of Karnataka and Amarkant Rai (supra) within a stipulated time.
In view of the aforesaid limited grievance of the petitioner, this Court, without expressing any opinion on the merits of the case, disposes of the writ petition directing opposite party No.2 to take a decision on the representation filed by the petitioner under Annexure-7 and pass appropriate order keeping in view the judgments of the apex Court in Secretary State of Karnataka and Amarkant Rai (supra) within a period of four months from the date of production of certified/authenticated copy this order."
Learned counsel for the petitioner referring to a Letter bearing No. 11939--RDM-NGEC-CESEAT-0002- 1017/R&DM, dated 07.04.2021 of the Revenue and W.P.(C) No.37540 of 2023 Page 59 of 65 Disaster Management Department (Annexure-8), submitted that the direction contained in the Order dated 10.06.2020 passed in the case of Sushanta Kumar Acharya Vrs. State of Odisha, W.P.(C) No.12399 of 2020, has been complied with accepting the principle laid down in Amarkant Rai (supra) in the following manner:
"Government of Odisha Revenue and Disaster Management Department No. 11939--RDM-NGEC-CASEAT-0002-2017/R&DM dated 07.04.2021 From Dharanidhar Mohanta Deputy Secretary to Government To The Collector, Cuttack Sub: W.P.(C) No.12399 of 2020 filed by Sushanta Kumar Acharya Vrs. State of Odisha and others.
Sir, With reference to your letter No.2700, dated 18.11.2020 on the subject cited above, I am directed to say that the Hon'ble High Court of Orissa, vide order dated 10.06.2020 passed in W.P.(C) No.12399 of 2020 filed by Sushanta Kumar Acharya Vrs. State of Odisha & Others have directed the opposite party No.2 to take a decision on the representation of the petitioner at Annexure-7 and pass appropriate order keeping in view the judgment of the Apex Court in Secretary, State of Karnataka Vrs. Amarkant Rai (Supra).
After due consideration, you are, hereby, requested to regularize the service of the petitioner Sushanta Kumar Acharya in a Group-D post in W.P.(C) No.37540 of 2023 Page 60 of 65 Kishannagar Tahasil in Cuttack District as per direction of the Hon'ble High Court dated 10.06.2020 in W.P.(C) No.12399 of 2020 and report compliance to this Department.
This may be treated as "most urgent".
(This has been concurred in by Law Department vide their UOR No.86/L, dated 18.01.2021 & Finance Department in their File No.FIN-CSI-CASE- 0038-2021) Yours faithfully, Sd/-
Deputy Secretary to Government"
9.10. As rightly urged by the learned counsel for the petitioner that the State Government while accepting the principle laid down in Amarkant Rai (supra) regularised the service of the employees in Group-D, the case of the petitioner could not have been treated differently only to deprive him of legitimate benefits.
9.11. The case of Amarkant Rai Vrs. State of Bihar, (2015) 8 SCC 265 turned on the fact that the appellant therein, being appointed temporarily in Class-IV post of Night Guard on daily wages which was done out of necessity and concern of the College, his case was recommended for regularisation on the post of Night Guard by the Principal, even though the University was well within its knowledge that the Principal of the College was not the competent authority to make such appointments. Regard being had to Secretary, State of Karnataka Vrs. Umadevi, (2006) 4 SCC 1, State of Karnataka Vrs. M.L. W.P.(C) No.37540 of 2023 Page 61 of 65 Kesari, (2010) 9 SCC 247, and Nihal Singh Vrs. State of Punhab, (2013) 14 SCC 65, the Hon'ble Supreme Court held as follows:
"14. In our view, the exception carved out in para 53 of Umadevi, (2006) 4 SCC 1 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 with effect from 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 circumstances of the case, we are inclined to award monetary benefits be paid from 01.01.2010.
15. 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 with effect from 03.01.2002 (the date on which he rejoined the post as per direction of Registrar)."W.P.(C) No.37540 of 2023 Page 62 of 65
9.12. In the present case of the writ petitioner, it is emanated from Letter dated 20.02.1992 of the Sub-Registrar, Rasgobindpur, vide Annexure-1, the petitioner was subjected to selection process and found suitable for the post of Nightwatchman-cum-Sweeper. Though the petitioner joined as Nightwatchman-cum-Sweeper on 20.02.1992, his service was regularized with effect from 15.02.2016 having such absorption and regularization been concurred by the Finance Department in UOR No.25-GSI, dated 21.01.2015. There is no dispute that since the date of joining on 20.02.1992, the petitioner has been working and completed more than 32 years in rendering service. In such circumstances, the case of Amarkant Rai (supra) is applicable to the factual scenario of the instant case.
9.13. Grievance of the petitioner in this case is that though his service has been regularized with effect from 15.02.2016, he should have been considered regularization since 20.02.1992, i.e., the first date on which he joined in the service. Therefore, he prayed for a direction to notionally regularize him in service without monetary benefit from 20.02.1992 to 14.02.2016 and extend pecuniary benefit with effect from 15.02.2016, i.e., the date of joining as Class-IV employee (peon). The prayers as made do not appear to be unreasonable in view of discussions made in the foregoing paragraphs.
W.P.(C) No.37540 of 2023 Page 63 of 659.14. Furthermore, the State Government in the same Revenue and Disaster Management Department implemented decisions of this Court as well as the Odisha Administrative Tribunal in respect of other employees, who are similarly circumstanced, in the case of the petitioner the Department cannot act arbitrarily and capriciously.
10. In view of the fact that this Court has already opined to ignore the Order dated 20.06.2024 (Annexure-A/4 to the counter affidavit) passed by the opposite party, being ineffective, inoperative and non est, and is inclined to set aside the Order 12.09.2013 (Annexre-14) as the same is not in conformity with the direction contained in the Order dated 17.05.2023 passed in W.P.(C) No.14961 of 2023 read with the Order dated 18.08.2023 passed in CONTC No.5753 of 2023.
11. In the result, the writ petition needs to succeed. For the reasons discussed above and the legal position made clear by the Courts, the impugned Order dated 12.09.2013 passed by the Additional Chief Secretary to Government, Revenue Disaster Management Department cannot withstand judicial scrutiny, as such the same deserves to be set aside, which this Court does.
11.1. As a sequel to the above, the opposite parties are directed to notionally regularize the service of the W.P.(C) No.37540 of 2023 Page 64 of 65 petitioner retrospectively with effect from 20.02.1992 without monetary benefit for the period from 20.02.1992 to 14.02.2016 and extend pecuniary benefit (service benefit as also financial benefit, as admissible) with effect from 15.02.2016. Needless to observe that the period from 20.02.1992 shall be taken for continuity of service and pensionary benefits.
12. With the aforesaid observation and direction, the writ petition stands disposed of, but in the circumstances there shall be no order as to costs.
(MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 22nd July, 2024//LAXMIKANT/SUCHITRA Signature Not Verified Digitally Signed Signed by: SUCHITRA BEHERA Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Jul-2024 18:22:43 W.P.(C) No.37540 of 2023 Page 65 of 65