Orissa High Court
Biswanath Dhar vs State Of Odisha & Others ...... ... on 18 April, 2023
Author: S.K. Sahoo
Bench: S. K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P. (C) No. 12479 of 2019
Applications under Articles 226 and 227 of the Constitution of
India.
-----------------------------
Biswanath Dhar ...... Petitioner
-versus-
State of Odisha & others ...... Opp.Parties
W.P.(C) No. 12481 of 2019
Kamalendu Mendli ...... Petitioner
-versus-
State of Odisha & others ...... Opp.Parties
W.P.(C) No. 12483 of 2019
Prakash Kumar Mahana ...... Petitioner
-versus-
State of Odisha & others ...... Opp.Parties
For petitioners: Mr. Budhadev Routray
(in all the cases) (Senior Advocate)
For Opp. parties: Mr. Saswat Das
(in all the cases) Addl. Govt. Advocate
Mr. Kousik Ananda Guru
Advocate
(for opp. parties nos.2 to 4)
-----------------------------
2
P R E S E N T:
THE HONOURABLE MR. JUSTICE S. K. SAHOO
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Date of Judgment: 18.04.2023
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S. K. SAHOO, J. The petitioners have filed these writ petitions
challenging the order dated 31.05.2019 passed by the
Government of Odisha in the Department of Higher Education,
Odisha in rejecting their claim for regularization in the posts of
Junior Assistant in Sambalpur University from the date of their
initial engagement.
Since common questions of facts and law are
involved in all the three writ petitions, with the consent of the
learned counsel for the parties, these are heard analogously and
disposed of by this common judgment.
2. The facts of these three cases are stated in short as
under:-
2.1. Pursuant to the notice dated 08.05.2002 under Annexure-1
for filling up of the posts of Office Assistant under the
Department of Distance Education, which is coming under the
Administrative Control of the Sambalpur University (hereafter, in
short, 'University'), the petitioners offered their candidatures.
Accordingly, an interview was conducted by a Selection
Committee of the University wherein fifty seven candidates
3
appeared and out of them, the petitioners were selected as per
the proceedings of the Selection Committee dated 20.05.2002
under Annexure-2 series. Thereafter, as per order dated
29.05.2002 under Annexure-3, orders were issued in favour of
the petitioners appointing them as Office Assistants in the
Directorate of Distance Education under the University for a
period of 89 days on daily wage basis on a consolidated pay of
Rs.2,000/- (rupees two thousand) and in the said appointment
order, it has been mentioned that the service is purely
temporary and in no way the incumbents have a right of claim
for a permanent post.
2.2. By office order dated 04.08.2009 under Annexure-3, the
post of the petitioners has been re-designated as Computer
Assistant and their consolidated remuneration was enhanced
from Rs.2,000/- (two thousand) to Rs.5,000/- (rupees five
thousand) with effect from 1st June 2009.
2.3. By letter dated 24.12.2013, the University addressed a
letter to the Additional Secretary to the Government in the
Department of Higher Education to accord approval to the
appointment of the petitioners taking into consideration the
length of service rendered by them as well as long experience in
the clerical work in the University.
4
2.4. By office order dated 03.06.2014 under Annexure-5, the
consolidated salary of the petitioners was enhanced from
Rs.5,000/- (rupees five thousand) to Rs.7,100/- (rupees seven
thousand one hundred) (Basic Pay Rs.5200/- + Grade Pay
Rs.1900/-) and it has been stated therein that the petitioners will
be covered under the E.P.F. scheme.
2.5. The University by letter dated 01.08.2014 under Annexure-6
requested the Government in the Department of Higher
Education to regularize the services of forty three nos. of
candidates including the petitioners. In pursuance of the decision
of the Syndicate vide resolution no.45 dated 16.05.2015, the
posts held by the petitioners as Office Assistants and Computer
Assistants under different units were re-designated as Junior
Assistant on temporary basis by office order dated 16.07.2015
under Annexure-8.
2.6. The University by letter dated 26.11.2015 requested the
Special Secretary to the Hon'ble Chancellor to accord necessary
permission for regularization of the services of the petitioners
along with others in order to enable the University to cope up
with the emerging situation and taking into account the
persistent demand of the employees' association.
5
2.7. Since no action was taken, the petitioners moved this Court
in separate writ petitions bearing W.P.(C) No.23322 of 2015,
W.P.(C) No.23323 of 2015 and W.P.(C) No.23326 of 2015
ventilating their grievance for regularization of the services and
this Court by order dated 07.01.2016 disposed of all those writ
petitions directing the State Authority to consider the
recommendation made by the University and pass appropriate
order by sanctioning the posts and regularize the services of the
petitioners taking into consideration that they are continuing in
service w.e.f. 2002 in accordance with law as expeditiously as
possible preferably within a period of four months from the date
of communication of this order.
2.8. The State Government intimated the Registrar of the
University vide letter dated 11.04.2018 under Annexure-11 for
filling up of forty one nos. of vacant posts of Junior Assistant as
per the Orissa Universities Recruitment & Promotion of non-
teaching Employees Rules, 1992 (hereafter in short, 'OURP
Rules, 1992').
2.9. The University vide letter dated 25.07.2018 requested the
State in the Higher Education Department for according approval
for regularization of thirty two nos. of candidates including the
petitioners.
6
2.10. By the impugned order dated 31.05.2019 under Annexure-
12, the State Government rejected the case of the petitioners on
the ground that the petitioners have not completed ten years as
on 2006 and the post has not been sanctioned.
3. No counter affidavit has been filed by the State
Government.
4. The Opposite parties nos.2 to 4 have filed counter
affidavit stating, inter alia, that the posts against which the
petitioners were appointed were non-sanctioned posts and prior
approval of the State Government has also not been obtained by
the University for creating such posts. It is further stated that
the action of the University to engage the petitioners against
such non-sanctioned posts was in contravention of section 22 of
Odisha University Act, 1989 (hereafter '1989 Act'). It is also
stated that the Syndicate of the University vide resolution No. 45
dated 16.05.2015, re-designated the petitioners as Junior
Assistant without prior approval of the State Government and
the appointment of the petitioners as Junior Assistants was made
in violation of the OURP Rules, 1992 by not following the
prescribed open competitive selection process. It is further
stated that in view of the ratio laid down by the Hon'ble Supreme
Court in the case of State of Karnataka -Vrs.- Umadevi
7
reported in (2006) 4 Supreme Court Cases 1, the
appointment of the petitioners is illegal as because their
appointment has not been made against any sanctioned posts
and hence the services of the petitioners cannot be regularized.
It is further stated that even if it is held that the appointment of
the petitioners is not illegal but irregular, then also the services
of the petitioners cannot be regularized as they have not worked
for more than ten years as on 10.04.2006 i.e. the date of
judgment of the Hon'ble Supreme Court in Umadevi case
(supra). It is further contended that as per the notification of the
University dated 08.05.2002 under Annexure-1, it has been
clearly mandated that the post of Office Assistant is purely
temporary and no way serves as a right of claim for permanent
post and their services shall be terminated at any time without
assigning any reason thereof. It is also stated that the
petitioners were initially engaged on 89 days basis and due to
the requirement of the services of the petitioners, their services
have been extended 38 times with a break up till 23.01.2014. It
further stated that the Syndicate in its meeting held on
16.05.2015 has resolved that the employees working as Office
Assistant and Computer Assistant may be brought to the
establishment fold of the University as Junior Assistant (T)
8
subject to fulfillment of the following conditions and availability
of sanctioned vacancies:-
(i) The employee should have completed not less
than ten years of service in the University funded
units only;
(ii) They should have possessed minimum
qualification of Jr. Asst. as prescribed in OURP Rules,
1991;
(iii) Their original appointment should have been
approved by the Vice-Chancellor;
(iv) Prior to their re-designation as Junior Asst.
(Temporary) under Establishment fold, they will have
to furnish an affidavit in the prescribed format of the
University on a non-judicial stamp paper to the effect
that they will neither claim for any retrospective
financial and seniority benefit nor claim for
permanent absorption in the University.
It is admitted by the University that on fulfillment of
the above conditions by the petitioners along with others, they
were re-designated as Junior Assistant (T) and were brought to
the establishment fold of the University. It is further stated that
the Syndicate resolution No.45 dated 16.05.2015 has been
9
revoked in the meeting of the Syndicate held on 21.12.2021 and
the office order dated 16.07.2015 under Annexure-8 has been
withdrawn as per office Order dated 04.01.2022. It is also stated
that the petitioners have admitted that the posts held by them
are not sanctioned posts and though recommendation has been
made by the University, but the same has not been accepted by
the State Government.
It is stated by the University that as per section 22 of
the 1989 Act, the posts shall be created by the Hon'ble
Chancellor subject to specific allotment of funds for the purpose
in the budget of the University and shall be in accordance with
the yardstick formulated by the University with the approval of
the State Government and whenever posts are created beyond
the yardstick approved by the State Government, prior
concurrence of the State Government on the decision of the
Syndicate for regularization of the services of the petitioners in
the University is necessary and unless or until the Government
has given concurrence, the University may not be able to
regularize any person.
5. Rejoinder has been filed by the petitioners reiterating
the stand taken in the writ petition.
10
6. Mr. Budhadev Routray, learned Senior Advocate
appearing for the petitioners contended that the appointment of
the petitioners was made following a fair and transparent
method of selection, which was duly approved by the Vice-
Chancellor of the University, which can be ascertained from the
proceedings of the Selection Committee meeting dated
20.05.2002 (Annexure-2). He further contended that the
Registrar of the University addressed a letter to the State
Government in the Department of Higher Education vide letter
dated 01.08.2014 under Annexure-6 intimating about 39 nos. of
vacant posts of Junior Assistant and 43 nos. of candidates
engaged on contractual/daily wage/temporary basis and
requested the Government for regularization of the incumbents
in the post of Junior Assistant. The Registrar informed the State
Government about the Syndicate's decision regarding re-
designation of the petitioners along with others as Junior
Assistant on temporary basis against the vacant sanctioned
strength of Junior Assistant pursuant to which the Government
was also pleased to allow for filling up of 41 nos. of vacant posts
of Junior Assistant in the University, but despite such
communication and overlooking such decision of the State
Government under Annexure-11, the impugned order under
11
Annexure-12 has been passed rejecting the case of the
petitioners for regularization.
Learned counsel further urged that the reason shown
in the impugned order that the petitioners had not completed ten
years of service as on 10.04.2006, i.e. the date of passing of the
judgment of the Hon'ble Supreme Court in Umadevi (supra) has
no bearing as the said case has been misinterpreted while
considering the case of the petitioners for regularization. He
further contended that the law is well settled by a series of
judgments of the Hon'ble Apex Court as well as this Court that
the purpose and intent of the decision rendered in Umadevi
(supra) was two folds; (i) to prevent irregular and illegal
appointments in future and (ii) to confer benefit on those who
have been irregularly appointed in the post. He further submitted
that the State Government being a model employer, cannot
exploit the services of the petitioners by not giving them the
benefit of regularization and if irregular appointees have
completed ten years of service, then their services should be
regularized.
Learned counsel further urged that even assuming
though not admitting that the appointment of the petitioners was
on temporary basis and not against any sanctioned post, but
12
considering the fact that there is necessary of manpower in the
University and the University has been utilizing the services of
the petitioners for decades together, the failure of the State
Government to take a decision to create posts itself is arbitrary
and amounts to sheer exploitation. He further contended that
absorbing the petitioners in the regular post would not cause any
additional financial burden to the State exchequer.
Learned counsel further urged that there was clear
cut vacancies in the office establishment of the University and
considering the necessity of manpower for smooth functioning,
pursuant to the notice inviting applications for the post of Office
Assistant on 08.05.2002 fixing criteria mentioned therein, the
petitioners submitted their applications and having been selected
by the Selection Committee, they were appointed as such and
have been discharging their duties since 29.05.2002 and thus,
the benefit of regularization cannot be denied to the petitioners
on the plea that there is no sanctioned post.
Learned counsel emphatically contended that on a
bare perusal of the office order dated 03.06.2014 under
Annexure-5, it can be clearly seen that while enhancing the
consolidated remuneration of the petitioners, they have also
been extended with the grade pay and the benefits of EPF
13
scheme which is available to only regular appointees and thus,
instead of regularizing the services of the petitioners, the action
of the opposite parties in rejecting their claim for regularization
is not sustainable in the eye of law.
Learned counsel further argued that it is not the case
that the petitioners are continuing against non-sanctioned posts,
rather from a bare perusal of the letter dated 22.10.2016 under
Annexure-10, it can be clearly seen that the petitioners have
been re-designated as Junior Assistants on temporary basis
against vacant sanctioned posts and that apart, from the own
letter of the State Government in its letter dated 11.04.2018
under Annexure-11, it reveals that the State Government has
allowed the University for filling up 41 nos. of vacant posts of
Junior Assistant in the University as per the OURP Rules, 1992
and thus, the objection raised by the learned counsel for the
State that the petitioners continued in the post of Junior
Assistant against a non-sanctioned post has no bearing. He
further urged that when the posts were very much available with
the University, no further permission is required to be obtained
from the State Government for approval of the posts as the
same is only required for creation of the post and so far as the
role of the State Government is concerned, since the posts
14
involve financial aspect, the State Government is only required
to pass an order of sanction. Thus, the impugned order under
Annexure-12 is not sustainable in the eye of law.
In support of his contention, learned counsel for the
petitioner has placed reliance on the decisions of the Hon'ble
Supreme Court as well as this Court in the State of Karnataka
and others -Vrs.- M.L. Kesari and others reported in
(2010) 9 Supreme Court Cases 247, Nihal Singh and
others -Vrs.- State of Punjab and others reported in
(2013) 14 Supreme Court Cases 65, Sachin Ambadas
Dawale and others -Vrs.- State of Maharashtra and
another (Bombay High Court decision was upheld by
Supreme Court in SLP No.39014 of 2013), Sanatan Sahoo
-Vrs.- State of Odisha and others reported in 2017(II)
ILR-CUT- 1059 (Orissa High Court decision was upheld by
Supreme Court in SLP No.11911 of 2018), Narendra
Kumar Tiwari and others -Vrs.- The State of Jharkhand
and others reported in (2018) 8 Supreme Court Cases
238, Sheo Narain Nagar -Vrs.- State of U.P. reported in
A.I.R. 2018 Supreme Court 233, UCO Bank and others
-Vrs.- Sk. Fayajuddin reported in 2020(I) ILR-CUT 68 and
15
Padmanava Pradhan and others -Vrs.- State of Odisha and
others reported in 2020 (II) Orissa Law Reviews 462.
7. Per contra, Mr. Saswat Das, learned Additional
Government Advocate has filed written note of argument and
argued that the conditions of services of the employees of the
University including the present petitioners are governed by the
provisions of 1989 Act and the first statute framed thereunder.
Learned counsel for the State further argued that section 22 of
the 1989 Act deals with the provisions for creation of posts in the
University and on a bare perusal of the aforesaid provision, it
would be apparent that the post of officers, teachers and
employees of the University shall be created and the scale of pay
and allowances attached to such posts shall be determined by
the Chancellor subject to specific allotment of funds for the
purpose of payment of the concerned University and shall be in
accordance with the yardstick formulated by the University with
the prior approval of the State Government. Referring to Rule
10(a) of Odisha Government Rules of Business and Section 22 of
1989 Act, he argued that on a conjoint reading of both the
provisions leave no room for doubt that prior approval of the
State Government for creation of posts is mandatory and though
the Department of Higher Education is the Nodal Department for
16
Higher Education but creation of posts in the University requires
prior approval/sanction of the Finance Department of the State
Government which was obviously required to be worked out
through Department of Higher Education.
Learned counsel for the State argued that so far as
the petitioners are concerned, although they were appointed
initially on daily wage basis/89 days basis and subsequently were
re-designated as Junior Assistant, but the fact remains that,
there is no provision provided under the 1989 Act or under the
OURP Rules, 1992 for such re-designation. On the contrary, the
rules prescribed that the posts are to be created with the
sanction of competent authority (State) and as such, posts can
only filled up through a duly constituted Selection Committee
and by competitive selection process through open
advertisement in compliance to the mandate of Articles 14 and
16 of the Constitution of India. He further submitted that in the
case in hand, since the resolution of the Syndicate of the
University bearing No.45 dated 16.05.2015, re-designating the
petitioners as Junior Assistants without prior approval of the
State Government has been revoked by the Syndicate in their
meeting held on 21.12.2021, the petitioners are no more
continuing as Junior Assistant and therefore, they have no right
17
to claim regularization of service. Learned counsel further argued
that there is no doubt that creation of post and regularization in
service is a prerogative of the employer keeping in view the
number of factors like the nature of work, number of posts lying
vacant, the financial condition of the employer, the additional
financial burden likely to be caused, the suitability of the
workmen for the job, the manner and reasons for which the
initial appointments were made, however, when the statutory
provisions have not been taken into consideration by the
University while creating the posts and re-designating the
petitioners as Junior Assistant, therefore, the claim of the
petitioners for regularization of service merits no consideration
and thus, the writ petitions are liable to be dismissed.
In support of such submissions, he has relied upon
the judgments of the Hon'ble Supreme Court in the case of
Divisional Manager, Aravali Golf Club and another -Vrs.-
Chander Hass reported in (2008) 1 Supreme Court Cases
683, Maharashtra State Road Transport Corporation and
Anr. -Vrs.- Casteribe Rajya Parivahan Karamchari
Sanghatana reported in (2009) 8 Supreme Court Cases
556 and The Managing Director, Ajmer Vidhyut Vitaran
18
Nigam Ltd., Ajmer and another -Vrs.- Chiggan Lal and
others reported in 2022 SCC OnLine SC 1351.
8. Mr. Kousik Ananda Guru, Advocate appearing on
behalf of University contended that the posts against which the
petitioners were appointed were not sanctioned posts and the
prior approval of the State Govt. has also not been obtained by
the University for creation of such posts. The action of the
University to engage the petitioners against the non-sanctioned
posts was in contravention of section 22 of 1989 Act. He
reiterated the stand taken by the University in the counter
affidavit and argued that the petitioners are not entitled to get
any relief.
9. Before adverting to the contentions raised by the
learned counsel for the respective parties, let me now jot down
the factual scenario as projected by the petitioners in their writ
petitions supported by documents. It appears that notice no.593
dated 08.05.2002 was issued by Directorate of Distance
Education, Sambalpur University inviting applications from
interested candidates for the post of Office Assistants on
temporary basis. The qualification prescribed for applying for the
post of Office Assistants was that the candidate must be a
graduate in any discipline and it was further stipulated that the
19
candidate having working knowledge in computer would be
preferred. There were seventy four applicants and on 20.05.2002
proceeding of the Selection Committee was held wherein fifty
seven candidates appeared and the names of the petitioners
were recommended for appointment in order of merits which was
approved by the Vice-Chancellor on 23.05.2002. On 29.05.2002
the petitioners were issued with appointment orders against the
posts of the Office Assistant on a consolidated pay of Rs.2,000/-.
On 04.08.2009 in partial modification to the office order dated
29.05.2002, the post of Office Assistant was redesignated as
Computer Assistant with remuneration of Rs.5,000/-. On
24.12.2013 Registrar, Sambalpur University requested the State
Govt. in the Dept. of Higher Education indicating therein about
the recommendation of the Syndicate Committee in its meeting
dated 21.11.2013 to regularize the service of the employees
against regular vacant post of Junior Assistant from among the
Computer Assistant. By virtue of an office order, the consolidated
remuneration of the petitioners was enhanced from Rs.5,000/- to
Rs.7,000/-. The Registrar, Sambalpur University requested the
State Govt. in the Dept. of Higher Education for regularization of
43 nos. of candidates against the post of Junior Assistant
including the petitioners. As on 01.07.2015, a total number of 40
20
vacancies of posts of Junior Assistant were shown. On
16.07.2015 an office order was issued pursuant to the decision
of the Syndicate by virtue of which Office Assistant and
Computer Assistant were redesignated as Junior Assistant. On
26.11.2015 the Registrar, Sambalpur University requested the
Special Secretary to Hon'ble Chancellor to accord necessary
permission for regularization of services of employees to enable
the University to cope up with emerging situation and persistent
demand of employees from different quarters by submitting list
of such employees to place it before appropriate authority. When
the petitioners approached this Court by filing writ petitions, a
direction was issued by this Court to the State Govt. in Higher
Education Department as per order dated 07.01.2016 to consider
the cases of the petitioners for regularization by sanctioning the
posts and taking into account that the petitioners are continuing
in the service since 2002. On 18.08.2016 considering the
increase in workload of the University due to increase in number
of colleges and opening of new departments/hostels/courses, the
Registrar, Sambalpur University requested the State Govt. in
Higher Education Dept. for regularization of services of
contractual/daily wagers/NMR employees of Sambalpur
University. The Registrar, Sambalpur University on 22.10.2016
21
communicated the Higher Education Department about the
redesignation of the incumbents like the petitioners as Junior
Assistants vide resolution dated 16.05.2015, who have rendered
more than ten years of service and possess educational
qualification as per rule. The State Govt. in the Department of
Higher Education on 11.04.2018 intimated the Registrar,
Sambalpur University about filling up of 41 nos. of vacant post of
Junior Assistant as per OURP Rules, 1992. The Registrar,
Sambalpur University on 25.07.2018/08.09.2018 requested the
State Govt. in the Department of Higher Education regarding 32
nos. of candidates working as Junior Assistants on temporary
basis against sanctioned posts having requisite qualification as
per OURP Rules, 1992 to accord approval to University for
regularization against the released 41 posts. The petitioners
name find place in the list. The opp. party no.1 rejected the
cases of the petitioners as per order dated 31.05.2019 mainly on
the ground that they have not completed ten years of service as
on 2006 and the posts were not sanctioned.
10. At this stage, it would be profitable to discuss the
principles enunciated in the citations placed by the learned
counsel for the petitioners.
22
In the case of M.L. Kesari and others (supra), the
Hon'ble Supreme Court in paragraphs 7 and 8 held as follows:-
"7. It is evident from the above that there is an
exception to the general principles against
"regularisation" enunciated in Umadevi (supra),
if the following conditions are fulfilled:-
(i) The employee concerned should have worked
for 10 years or more in duly sanctioned post
without the benefit or protection of the interim
order of any court or tribunal. In other words,
the State Government or its instrumentality
should have employed the employee and
continued him in service voluntarily and
continuously for more than ten years.
(ii) The appointment of such employee should
not be illegal, even if irregular. Where the
appointments are not made or continued against
sanctioned posts or where the persons
appointed do not possess the prescribed
minimum qualifications, the appointments will be
considered to be illegal. But where the person
employed possessed the prescribed
qualifications and was working against
sanctioned posts, but had been selected without
undergoing the process of open competitive
selection, such appointments are considered to
be irregular.
8. Umadevi (supra) casts a duty upon the
Government or instrumentality concerned, to
23
take steps to regularise the services of those
irregularly appointed employees who had served
for more than ten years without the benefit or
protection of any interim orders of courts or
tribunals, as a one-time measure. Umadevi
(supra) directed that such one-time measure
must be set in motion within six months from
the date of its decision (rendered on 10-4-
2006)."
This decision supports the contentions raised by the
learned counsel for the petitioners for regularisation of services
of the petitioners inasmuch as the petitioners not only possess
the prescribed qualification for Junior Assistant and they are
working against sanctioned posts at least from 11.04.2018 when
the State Govt. in the Department of Higher Education allowed
the Registrar, Sambalpur University for filling up of 41 nos. of
vacant post of Junior Assistant in the University. The petitioners
have not only been employed by the University but allowed to
continue in service voluntarily and continuously for about twenty
one years by now after they were issued with appointment
orders on 29.05.2002 and nothing has been brought on record
by the opposite parties that such continuance was with the
benefit or protection of the interim order of any Court or
Tribunal.
24
In the case of Sachin Ambadas Dawale (supra),
the Bombay High Court dealing with various judgments of the
Hon'ble Supreme Court observed as follows:-
"10....However, it is important to consider that
the petitioners are appointed after following the
procedure of issuance of advertisement and
conducting interviews by a duly constituted
Selection Committee....In view of the above
facts, it cannot be said that the appointments of
the petitioners are back door or illegal. It cannot
be said that the petitioners are appointed
arbitrarily or haphazardly or clandestinely
without issuing advertisement and without
giving an opportunity to all the eligible
candidates to participate in the selection
process. From the record it clearly appears to be
an undisputed position that in response to the
advertisement several candidates had
participated in the selection process and it is the
petitioners who were found eligible and suitable
for the posts and as such were selected and
appointed. It is not the case of the respondents
that any illegalities took place during the
selection process.
xx xx xx xx xx xx xx xx xx xx xx xx xx
13....The respondent-State has extracted the
work from the petitioners for years together.
Now, by efflux of time and on account of the
respondent- State not holding the selection
25
process for years together, many of the
petitioners have become over-aged and would
not be in a position to participate in the selection
process through MPSC. It could be clearly seen
that the issue before the Apex Court in case of
Secretary, State of Karnataka & Ors. V/s.
Umadevi & Ors. (supra) was pertaining to the
appointments which were made clandestinely
and without advertisement and the persons were
appointed without following due selection
process. The facts of the present case are totally
different. In the present case, the petitioners
have been appointed after the posts were
advertised, they were selected in a selection
process by Committee of Experts duly
constituted as per the said Government
Resolution. In that view of the matter, the law
laid down by the Apex Court in the case of
Secretary, State of Karnataka & Ors. V/s.
Umadevi & Ors. (supra) would not be
applicable to the facts of the present case.
xx xx xx xx xx xx xx xx xx xx xx xx xx
19. One more fact that needs to be taken into
consideration is that even according to the
respondent-State there are more than 5000
teaching posts which are still vacant and the
advertisement issued by the MPSC is only for
400 posts. It can, thus, be clearly seen that
even after the candidates who would be selected
through the selection process conducted by the
26
MPSC are available, more than 4500 posts will
be vacant. It is, therefore, clear that the
petitioners' absorption would in no way affect
the candidates who would now be selected
through the MPSC. It is, thus, clear that the
petitioners' continuation in service would not
adversely affect the fundamental right
guaranteed under Article 16 to the citizens. We
are of the considered view that the respondent-
State having extracted the work from the
petitioners for years together, the petitioners
cannot be deprived of the right of regular
employment particularly when their entry can
neither be termed as 'illegal' nor 'back door'."
This decision supports the stand taken by the
petitioners for regularisation of their service inasmuch as
following the procedure of issuance of advertisement and
conducting interviews by a duly constituted Selection Committee
in which out of 74 applicants, 57 candidates participated, the
names of the petitioners were recommended for appointment in
order of merits as they were found eligible and suitable for the
posts which was approved by the Vice-Chancellor. Therefore, the
appointment of the petitioners to the posts of Office Assistant
cannot be said to have been made arbitrarily or haphazardly or
clandestinely without issuing advertisement and without giving
an opportunity to all the eligible candidates to participate in the
27
selection process. The University has extracted the work from
the petitioners for years together and now, by efflux of time, the
petitioners have become over-aged and are not in a position to
participate in the selection process.
In the case of Nihal Singh (supra), the Hon'ble
Supreme Court held as follows:-
"22. It was further declared in Umadevi that
the jurisdiction of the Constitutional Courts
under Article 226 or Article 32 cannot be
exercised to compel the State or to enable the
State to perpetuate an illegality. This Court held
that compelling the State to absorb persons who
were employed by the State as casual workers
or daily-wage workers for a long period on the
ground that such a practice would be an
arbitrary practice and violative of Article 14 and
would itself offend another aspect of Article 14
i.e. the State chose initially to appoint such
persons without any rational procedure
recognized by law thereby depriving vast
number of other eligible candidates who were
similarly situated to compete for such
employment.
23. Even going by the principles laid down in
Umadevi's case, we are of the opinion that the
State of Punjab cannot be heard to say that the
28
appellants are not entitled to be absorbed into
the services of the State on permanent basis as
their appointments were purely temporary and
not against any sanctioned posts created by the
State.
xx xx xx xx xx xx xx xx xx xx xx xx
35. Therefore, it is clear that the existence of
the need for creation of the posts is a relevant
factor reference to which the executive
government is required to take rational decision
based on relevant consideration. In our opinion,
when the facts such as the ones obtaining in the
instant case demonstrate that there is need for
the creation of posts, the failure of the executive
government to apply its mind and take a
decision to create posts or stop extracting work
from persons such as the appellants herein for
decades together itself would be arbitrary action
(inaction) on the part of the State.
36. The other factor which the State is required
to keep in mind while creating or abolishing
posts is the financial implications involved in
such a decision. The creation of posts
necessarily means additional financial burden on
the exchequer of the State. Depending upon the
priorities of the State, the allocation of the
finances is no doubt exclusively within the
domain of the legislature. However in the instant
29
case creation of new posts would not create any
additional financial burden to the State as the
various banks at whose disposal the services of
each of the appellants is made available have
agreed to bear the burden. If absorbing the
appellants into the services of the State and
providing benefits at par with the police officers
of similar rank employed by the State results in
further financial commitment, it is always open
for the State to demand the banks to meet such
additional burden. Apparently no such demand
has ever been made by the State. The result is-
the various banks which avail the services of
these appellants enjoy the supply of cheap
labour over a period of decades. It is also
pertinent to notice that these banks are public
sector banks.
37. We are of the opinion that neither the
Government of Punjab nor these public sector
banks can continue such a practice consistent
with their obligation to function in accordance
with the Constitution. Umadevi's judgment
cannot become a licence for exploitation by the
State and its instrumentalities.
38. For all the above mentioned reasons, we are
of the opinion that the appellants are entitled to
be absorbed in the services of the State. The
appeals are accordingly allowed. The judgments
under appeal are set aside."
30
This decision supports the contentions raised by the
learned counsel for the petitioners for regularisation of services
of the petitioners inasmuch as since 2002, there was need for
the creation of posts, but the failure of the executive government
to apply its mind and take a decision to create posts or stop
extracting work from the petitioners for decades together would
reflect arbitrary action (inaction) on the part of the State and if
at this age, they are thrown out of service, then it would be
sheer exploitation of the petitioners by the opposite parties.
In the case of Sanatan Sahoo (supra), this Court in
paragraph 9 has held as follows:-
"9. Admittedly in the present case, the petitioner
having the requisite qualification was engaged
as Data Entry Operator since September, 1995
and he has been continuing as such till date
without the intervention of the Courts. He
approached the Tribunal in the year 2013 for his
regularization before the notification issued by
the State Government regarding Odisha Group
'C' and Group 'D' posts (contractual
appointment) Rules, 2003. The recruitment rule
came into force only in the year 2008 and the
rule regarding contractual engagement as
contended by the State Government was
followed later on. Thus the engagement of the
31
petitioner at best can be termed as irregular
engagement and not illegal engagement. That
apart, it is also admitted that sanctioned posts
are available since 2009 and the petitioner had
also completed more than 10 years by then. In
view of the discussions made hereinabove
paragraphs and in the peculiar facts and
circumstances of this case, this Court is of the
opinion that the Tribunal has lost sight of all
such facts while passing the impugned order and
it has not appreciated the entire facts in right
perspective in the light of the aforesaid decisions
of the Apex Court. Thus, this Court sets aside
the impugned order dated 14.05.2015 passed in
O.A. No. 3421 of 2013 and remits the matter
back to the authorities to regularize the service
of the petitioner by applying the aforementioned
ratio and to extend consequential service
benefits to the petitioner accordingly, within a
period of eight weeks. The writ petition is
disposed of accordingly."
This decision supports the contentions raised by the
learned counsel for the petitioners for regularisation of services
of the petitioners inasmuch as the petitioners having the
requisite qualification were engaged as Office Assistants since
May, 2002 after facing due selection process and they have been
continuing till date without the intervention of the Courts though
32
the post was redesignated as Computer Assistant and then as
Junior Assistant.
In the case of Narendra Kumar Tiwari (supra), the
Hon'ble Supreme Court in paragraphs 7 and 8 held as follows:-
"7. The purpose and intent of the decision in
Umadevi was therefore two-fold, namely, to
prevent irregular or illegal appointments in the
future and secondly, to confer a benefit on those
who had been irregularly appointed in the past.
The fact that the State of Jharkhand continued
with the irregular appointments for almost a
decade after the decision in Umadevi is a clear
indication that it believes that it was all right to
continue with irregular appointments, and
whenever required, terminate the services of the
irregularly appointed employees on the ground
that they were irregularly appointed. This is
nothing but a form of exploitation of the
employees by not giving them the benefits of
regularization and by placing the sword of
Damocles over their head. This is precisely what
Umadevi and Kesari sought to avoid.
8. If a strict and literal interpretation, forgetting
the spirit of the decision of the Constitution
Bench in Umadevi, is to be taken into
consideration then no irregularly appointed
employee of the State of Jharkhand could ever
33
be regularised since that State came into
existence only on 15th November, 2000 and the
cut-off date was fixed as 10th April, 2006. In
other words, in this manner the pernicious
practice of indefinitely continuing irregularly
appointed employees would be perpetuated
contrary to the intent of the Constitution
Bench."
This decision supports the contentions raised by the
learned counsel for the petitioners for regularisation of services
of the petitioners inasmuch as the appointment of the petitioners
cannot be said to be illegal one. At this stage, after so many
years of continuous service, if they are thrown out of their
services and the benefits of regularization is not extended to
them, then it would be a sheer case of exploitation.
In the case of Sheo Narain Nagar (supra), the
Hon'ble Supreme Court in paragraph 8 held as follows:-
"8. When we consider the prevailing scenario, it
is painful to note that the decision in Umadevi
(supra) has not been properly understood and
rather wrongly applied by various State
Governments. We have called for the data in the
instant case to ensure as to how many
employees were working on contract basis or ad
hoc basis or daily-wage basis in different State
34
departments. We can take judicial notice that
widely aforesaid practice is being continued.
Though this Court has emphasised that
incumbents should be appointed on regular
basis as per Rules but new devise of making
appointment on contract basis has been
adopted, employment is offered on daily-wage
basis etc. in exploitative forms. This situation
was not envisaged by Umadevi (supra). The
prime intendment of the decision was that the
employment process should be by fair means
and not by back door entry and in the available
pay scale. That spirit of the Umadevi (supra) has
been ignored and conveniently overlooked by
various State Governments/authorities. We
regretfully make the observation that Umadevi
(supra) has not been implemented in its true
spirit and has not been followed in its pith and
substance. It is being used only as a tool for not
regularizing the services of incumbents. They
are being continued in service without payment
of due salary for which they are entitled on the
basis of Article 14, 16 read with Article 34(1)(d)
of the Constitution of India as if they have no
constitutional protection as envisaged in D.S.
Nakara v. Union of India : A.I.R. 1983 S.C.
130 from cradle to grave. In heydays of life,
they are serving on exploitative terms with no
guarantee of livelihood to be continued and in
old age, they are going to be destituted, there
35
being no provision for pension, retiral benefits
etc. There is clear contravention of constitutional
provisions and aspiration of downtrodden class.
They do have equal rights and to make them
equals, they require protection and cannot be
dealt with arbitrarily. The kind of treatment
meted out is not only bad but equally
unconstitutional and is denial of rights. We have
to strike a balance to really implement the
ideology of Umadevi (supra). Thus, the time
has come to stop the situation where Umadevi
(supra) can be permitted to be flouted, whereas,
this Court has interdicted such employment way
back in the year 2006. The employment cannot
be on exploitative terms, whereas Umadevi
(supra) laid down that there should not be back
door entry and every post should be filled by
regular employment, but a new device has been
adopted for making appointment on payment of
paltry sum on contract/ad hoc basis or
otherwise. This kind of action is not permissible,
when we consider the pith and substance of true
spirit in Umadevi (supra)."
This decision supports the contentions raised by the
learned counsel for the petitioners for regularisation of services
of the petitioners inasmuch as their appointment cannot be said
to be back door entry but on the recommendation of Selection
Committee after inviting applications on open notice in which
36
qualification was prescribed to be a graduate in any discipline
and working knowledge on computer and the recommendation
was also approved by Vice-Chancellor. In heydays of their lives,
they served the institution for two decades and there is nothing
against their performance in duty. At this stage, if they are
denied of regularisation, it would lead to arbitrariness and the
action of the employer State would be unconstitutional.
Reliance was placed in the case of UCO Bank and
others (supra), this Court has held as follows:-
"In the case of Umadevi (supra), the Hon'ble
Supreme Court passed the order that the claim
acquired by a person in the post in which he is
temporarily employed or the interest in that post
cannot be considered to be of such a magnitude
so as to enable the giving up of the procedure
established, for making regular appointments to
available posts in the services of the State. In
our humble view, the learned Single Judge was
justified in holding that the ratio laid down in the
case of Umadevi (supra) is very much
applicable to the present case as there was a
clear cut vacancy at Dhera Branch for which an
advertisement was issued on 17.02.1995 fixing
criteria mentioned therein, pursuant to which
the respondent submitted his application and
having been selected, he got appointed as driver
37
and discharged his duty since July 1996 and
therefore, he cannot be denied regularization of
his service."
Further reliance was placed by the learned counsel
for the petitioner on the decision of this Court in the case of
Padmanava Pradhan and others (supra), wherein it is held as
follows:-
"10. In the backdrop of the aforesaid factual
exposition and after having bestowed my
anxious consideration to the rivalised
submissions, the cases of the petitioners
deserve consideration for regularization in view
of the following facts reasons and judicial
pronouncement.
i) Admittedly, all the petitioners in pursuance
of the advertisement and after undergoing the
process of selection were appointed as Executive
Assistant on contractual basis since 2012. In the
meantime they have completed more than eight
years of contractual services against the post of
Executive Assistant which has been
subsequently re-designated as Junior Assistant
on the recommendation of the Syndicate Sub-
committee in the year 2013.
ii) Government of Odisha vide Notification
dated 16th January, 2014 has published a
38
Contractual Rule 2013 wherein on completion of
six years of contractual services, one will be
eligible for regularization in service. Since the
petitioners have completed the requisite period
of services, their services ought to have been
regularized by the University in the light of the
Notification of the G.A. Department,
Government of Odisha.
iii) Much has been argued on behalf of the
State that initial appointment of the petitioners
was against a non-sanctioned post. Therefore,
regularization of the petitioners against the non-
sanctioned post is not legally permissible, but
the letter of the Government of Odisha, in the
Department of Higher Education dated
08.07.2008 which pertains to the Review
committee meeting regarding filling up of the
teaching and non-teaching posts in Sambalpur
University indicates that the said Review
committee meeting was being attended by the
members of the Higher Education department,
Finance Department and by a conscious
decision, the post of Junior Assistant was re-
designated as Executive Assistant. Accordingly,
the advertisement was published and the
petitioners appeared the selection process and
they were appointed against the post of
Executive Assistant in lieu of Junior Assistant.
Subsequently in the year 2013, by virtue of the
39
decision of the Syndicate subcommittee the post
of Executive Assistant has been re-designated
as Junior Assistant and the petitioners have
been continuing against the post of Junior
Assistant since 2013 taking into consideration
the uninterrupted services rendered by the
petitioners against the redesignated post of
Junior Assistant and on perusal of the
notification of the State Government regarding
regularisation of contractual appointees, it is
quite luculent that the petitioners have rendered
more than the requisite period of service against
the sanctioned and vacant post of Junior
Assistant to stake their claim for regularization
of services.
11. At this stage, the contentions raised by Mr. Das are
necessary to be considered. Without filing any counter affidavit
on behalf of the State of Odisha, Mr. Das has referred to section
22 of the 1989 Act, which is quoted as follows:-
"Creation of Posts:- (1) All posts of officers
(which shall not include the Vice-Chancellor),
teachers and other employees of a University
shall be created and the scales of pay and
allowances attached to such posts shall be
determined by the Chancellor subject to specific
allotment of funds for this purpose in the budget
of the concerned University and shall be in
accordance with the yardstick formulated by
40
such University with the approval of the State
Government.
(2) Till such yardstick is finalized, the yardstick
for the reaching posts prescribed by the
University Grants Commission and that for the
other corresponding posts under the State
government shall be followed.
(3) Whenever posts are created beyond the
yardstick approved by the State Government
under Sub-Section (1), prior concurrence of the
State Government shall be obtained."
According to Mr. Das, in exercise of power conferred
by Clause (3) of Article 166 of the Constitution of India, the
State Government has framed a rule namely Orissa Government
Rules of Business and Rule 10 of the said Rules stipulates as
follows:-
"10.(1) No department shall without previous
consultation with the Finance Department
authorise any orders (other than orders
pursuant to any general delegations made by
the Finance Department) which either
immediately or by their repercussions will affect
the finances of the State or which in particular,
either-
(a) relate to the number or grading or cadres of
posts or the emoluments or other conditions of
service or post; or
41
(b) involve any grant of land or assignment of
revenue or concession, grant lease or licence of
mineral or forest rights or a right to water,
power or any easement or privilege in respect of
such concession; or
(c) in any way involve any relinquishment of
revenue."
There is no dispute there is always financial
implications for the creation of posts and therefore, financial
sanction is necessary for it. The power to create a post rests with
the Government. Whether a particular post is necessary is a
matter which depends upon the exigencies of the situation and
administrative necessity. Creation of post is a matter of
government policy and every sovereign government has this
power in the interest and necessity of internal administration.
Reliance was placed by Mr. Das in the case of Aravali Golf Club
(supra), in which the Hon'ble Supreme Court held that the Court
cannot direct the creation of posts. Creation and sanction of
posts is a prerogative of the executive or legislative authorities
and the Court cannot arrogate to itself this purely executive or
legislative function, and direct creation of posts in any
organisation. It involves economic factors. Similar view was held
in the case of Maharashtra State Road Transport
Corporation (supra), wherein the Hon'ble Supreme Court held
42
that creation of posts is not within the domain of judicial
functions which obviously pertains to the executive and the
status of permanency cannot be granted by the Court where no
such posts exist and that executive functions and powers with
regard to the creation of posts cannot be arrogated by the
Courts, however, keeping posts temporary for long and denying
the claims of the incumbents on the score that their posts are
temporary makes no sense and strikes as arbitrary, especially
when both temporary and permanent appointees are functionally
identified. If, in the normal course, a post is temporary in the
real sense and the appointee knows that his tenure cannot
exceed the post in longevity, there cannot be anything unfair or
capricious in clothing him with no rights. Not so, if the post is,
for certain departmental or like purposes, declared temporary,
but it is within the ken of both the government and the
appointee that the temporary posts are virtually long-lives. It is
irrational to reject the claim of the 'temporary' appointee on
nominal score of the terminology of the post. Of course, in view
of the law laid down by the Hon'ble Supreme Court in the case of
Ajmer Vidhyut Vitaran Nigam Ltd. (supra), 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
43
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.
12. Adverting to the contentions raised by the learned
counsel for the respective parties, it is not in dispute that when
there was necessity of manpower and engagement of Office
Assistants for smooth functioning of Department of Distance
Education in the University, open notice was issued on
08.05.2002 inviting applications by the Director for the post of
Office Assistants in which qualification was prescribed to be a
graduate in any discipline and working knowledge on computer.
There were seventy four applicants, out of which fifty seven
candidates appeared before the Selection Committee and the
petitioners were found eligible and suitable for the posts and
their names were recommended by the Selection Committee on
20.05.2002 and it was approved by the Vice-Chancellor of the
University on 22.05.2002 and accordingly, on 29.05.2002 the
petitioners were issued with appointment orders against the
posts of the Office Assistant by the Director, Distance Education
on a consolidated pay of Rs.2,000/-. There is no allegation of
mala fide, illegality or patent material irregularity in the decision
44
taken by the Selection Committee in recommending their names.
The appointment of the petitioners for the post of Office
Assistant seems to have been made following a fair and
transparent method of selection not by adopting any back door
method. The petitioners not only possess the prescribed
qualification for the post of Junior Assistant but they are also
discharging their duties since last two decades. The University
has been utilizing their services and there is nothing against
their performance in duty. The post held by the petitioners as
Office Assistant was subsequently redesignated as Computer
Assistant and then there was recommendation of the Syndicate
Committee in its meeting dated 21.11.2013 to regularize the
service of the employees against regular vacant post of Junior
Assistant from among the Computer Assistant. Then pursuant to
the decision of the Syndicate, the Office Assistant and Computer
Assistant were redesignated as Junior Assistant and accordingly,
office order was issued on 16.07.2015. The continuance of the
petitioners in service for such a long period was not with the
benefit or protection of the interim order of any Court or
Tribunal. When the University addressed a letter on 24.12.2013
to the Government in the Department of Higher Education to
accord approval to the appointment of the petitioners taking into
45
consideration the length of service rendered by them as well as
their long experience in the clerical work in the University and
again on 01.08.2014 the Government was requested by the
University to regularize the services of the petitioners and again
the University requested the Special Secretary to the Hon'ble
Chancellor by letter dated 26.11.2015 to accord necessary
permission for regularization of the services of the petitioners
and even after the disposal of the first set of writ petitions filed
by the petitioners, the University requested the State in the
Higher Education Department vide letter dated 25.07.2018 for
according approval for regularization of the petitioners, the
sudden change of stand by the University in opposing the
regularization of the services of the petitioners in the counter
affidavit is strange and not expected from an ideal model
employer and it amounts to exploit the services of the educated
youth like the petitioners and to take advantage of their
helplessness and misery. When the Syndicate took a decision
vide resolution dated 16.05.2015 and the posts held by the
petitioners as Office Assistants and Computer Assistants under
different units were re-designated as Junior Assistant on
temporary basis by office order dated 16.07.2015 and the
petitioners have approached this Court by filing writ petitions
46
since 09.07.2019 and relying on such resolution and office order,
the decision of the Syndicate in its meeting dated 21.12.2021 in
revoking the office order dated 16.07.2015 is unfair and
arbitrary and seems to be under the pressure of the opposite
party no.1. The State Govt. in the Department of Higher
Education in the meantime has allowed the Registrar, Sambalpur
University for filling up of 41 nos. of vacant post of Junior
Assistant since 11.04.2018. At this stage, the petitioners have
become over-aged and they are not in a position to participate in
the selection process even though they have got requisite
educational qualification for such post and moreover they have
got two decade of experience behind them. There is no likelihood
of any additional financial burden to the State exchequer by
absorbing the petitioners in the regular post.
In my humble view, the purpose and intent of the
decision rendered in the case of Umadevi (supra) by the Hon'ble
Supreme Court has been misinterpreted and subsequent
decisions of the Hon'ble Supreme Court on this issue have not
been taken into account while considering the case of the
petitioners for regularization and passing the impugned order
under Annexure-12 in rejecting their claim for regularisation on
the ground that they have not worked for more than ten years
47
by 10.04.2006 i.e. the date of decision in the case of Umadevi
(supra) and the post has not been sanctioned. The order is
unreasonable, arbitrary and thus the conclusion can be corrected
by a writ of certiorari. The University has employed the
petitioners and continued them in service voluntarily and
continuously for more than two decades by now and the
petitioners possess the prescribed qualifications for the post of
Junior Assistant and they have been selected undergoing
selection process on the recommendation of Selection Committee
which was also approved by Vice-Chancellor of the University
and they are now working against sanctioned posts and have
acquired vast experience. In such a scenario, non-regularisation
of their services against the available sanctioned posts is unfair,
unjustified and arbitrary. The employees are not milking cows in
the diary farm of the University from which they are to be driven
out on stopping producing milk.
13. In the final analysis, in the light of the foregoing
discussions, the impugned order dated 31.05.2019 passed by
the Government of Odisha in the Department of Higher
Education, Odisha under Annexure-12 in rejecting the claim of
the petitioners for regularization in the posts of Junior Assistant
in Sambalpur University cannot be sustained in the eye of law
48
and is hereby set aside. The opposite parties shall pass
appropriate order for regularisation of services of the petitioners
against the post of Junior Assistants as expeditiously as possible
preferably within a period of three months from the date of
receipt of copy of this judgment.
Resultantly, the writ petitions are allowed.
In the circumstances, there will no order as to costs.
........................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 18th April 2023/PKSahoo/Pravakar