Orissa High Court
Harapriya Patra vs State Of Odisha And Ors. .... Opp. ... on 25 August, 2022
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OAC) No.2709 of 2016
and
batch of Writ Petitions
(In the matter of applications under Articles 226 and 227 of the
Constitution of India, 1950).
In WPC (OAC) No.2709 of 2016
Harapriya Patra .... Petitioner
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. S.Das, Adv.
Mr. R.P. Dalai, Adv.
Mr. K. Mohanty, Adv.
Mr. S. Jena, Adv.
Mr. S.K. Samal, Adv. and
Mr. S.P. Nath, Adv.
-versus-
For Opp. Parties : Mr. Biplaba Mohanty, SC
(for S & ME Deptt.)
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-11.08.2022
DATE OF JUDGMENT:-25.08.2022
(WPC(OAC) No.2709 of 2016 along with WPC(OAC) Nos.
2706 of 2016, 2707 of 2016, 2708 of 2016, 2710 of 2016, 2711
of 2016 and 2712 of 2016),WPC(OAC) No.2143 of 2014 along
with WPC(OAC) No.4504 of 2016, WPC(OAC) No.227 of
2017),WPC(OA) No.845 of 2016, WPC(OA) No.1768 of 2017,
(W.P.(C) No.11710 of 2021 along with WPC(OAC) Nos.1317
of 2017, 1318 of 2017, 1319 of 2017, 1320 of 2017 & 2672 of
2017), WPC (OAC) No.1046 of 2009, W.P.(C) No.11713 of
2021 and W.P.(C) No.5573 of 2022.
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Dr. S.K. Panigrahi, J.
1. Since similar questions of law or facts are involved in all the above Writ Petitions, all the matters were heard together. However, this Court felt it appropriate to decide WPC (OAC) No.2709 of 2016 and whatever the outcome of the said Writ Petition, the same will be covered to other similar Writ Petitions mentioned above.
I. Facts of the case:
2. The petitioner having the qualification of B.A. B.Ed was initially appointed as an Assistant Teacher against a Trained Graduate Post as per the Order No.515 dated 21.01.1994 by the Executive Officer, Berhampur Municipality by following due procedure of selection. Accordingly, she joined at MPL Girls High School, Military line, Berhampur. The said School was managed by the Berhampur Municipal Council and from time to time the remuneration was enhanced and the services of the Petitioner was treated as remunerative Teacher by getting remuneration of Rs.2000/- per month without getting any increment, regular scale of pay and other consequential benefit at par with the other teachers of Municipality.
3. While the Petitioner was continuing as such in the year 2001, the Executive Officer, Berhampur Municipality vide 2 of 43 its letter No.10906 dated 08.10.2001 has informed the Director, Municipal Administration and Additional Secretary to Government, Housing and Urban Development Department, Orissa, Bhubaneswar regarding the vacancy position which were available and required to be filled up by obtaining concurrence of the Finance Department for smooth running of Schools. As can be seen, on a bare perusal of the said letter, 182 numbers of teaching posts were sanctioned by the Government for nine High Schools and two M.E. Schools run by Berhampur Municipality and out of which there were 93 regular vacancies in which 61 remunerative teachers and five ad hoc teachers were appointed by Municipal Council.
4. The position of the Petitioner was within the list of 61 numbers of remunerative teachers. While the Petitioner was serving as such, some of the remunerative teachers who were serving under the Berhampur Municipality had filed a Writ Petition bearing O.J.C. No.2230 of 2002 before this Court challenging the gradation list prepared by the Berhampur Municipality. In the said Writ Petition, this Court had directed the Berhampur Municipal Council to prepare a gradation list according to their date of joining. Accordingly, the Municipality prepared a gradation list of teachers serving in different High Schools under the control Page 3 of 43 of Berhampur Municipality. In the said gradation list the name of the present Petitioner found place at serial No.21.
5. The Petitioner continued at the post of Assistant Teacher till the year 2004. The Housing and Urban Development Department vide Resolution dated 28.02.2004 had declared the service condition of the teachers working in different Urban Local Bodies such as 65 Lower Secondary (M.E.) and 82 Secondary/High Schools by transferring them to the administrative control of School and Mass Education Department by declaring and treating them as Government employee with effect from 28.02.2004. In the said resolution the Government had decided the service condition of the Urban Local Bodies and it was further mentioned that the non-regular teaching staff 220 in number and non-teaching staff of 87 in number working in those Schools as on the date of takeover are also declared as Government servant.
6. While the matter stood thus, the School and Mass Education Department in order to implement the Resolution dated 28.02.2004 with respect to the services of 220 numbers of Non-regular teachers has issued a letter vide No.22298 dated 10.12.2010 in which they have regularized the services of some of the Non-regular teaching staff and on the same day issued another order vide No.22313 dated 10.12.2010 in which they have created 4 of 43 104 numbers of contractual posts for absorption of non- regular teachers and non-teaching staffs on contractual basis. The Opposite Parties on one hand created and regularized some of the non-regular teachers as regular and on the other hand placed some of the other non-regular teachers on contractual basis without making any contract agreement with the teachers who are paid the remuneration of contractual teacher which is a clear violation of their own policy decision and contrary to the guidelines.
7. One TGT Teacher sought for an information from the Office of the Opposite Party No.2- Director, Secondary Education, Odisha, Bhubaneswar under the RTI Act regarding the number of teachers regularized out of 220 numbers of regular teachers cited in paragraph-7 of Orissa Gazettee No.4942/M-lll-M 43/2003/HUD Resolution dated 28.02.2004. A list of these teachers may be provided from the date of 28.02.2004. Further, a file containing the lists of these teachers' names of 220 teachers and their concerned School mentioned in para-7 of Resolution may be provided. The Opposite Party No.2 vide letter No.49005, dated 23.11.2012 directed the PIO of different District Education Officers to provide information regarding the list of 220 numbers of Non-regular Teachers to which the Opposite Party No.3/ District Education Officer, Ganjam vide letter No.20704 Page 5 of 43 dated 12.12.2012 provided information regarding the list of Non-Regular Teachers of Ganjam circle, in which the name of the petitioner found place. The list contains the name of the Non-Regular teachers in which some of the Non- Regular teachers have been regularized in Ganjam circle.
8. While the matter stood thus, the Opposite Party No.1/Commissioner-cum-Secretary to Government of Orissa, School and Mass Education Department vide order No.2429 dated 03.02.2011 passed an order stating therein that the Government has created some contractual posts in different takeover ULB High Schools vide department letter No.22313 dated 10.12.2010 and the posts are meant for absorption of non-regular teaching and non-teaching staff of ULB High Schools. Six contractual posts of Trained Graduate Teachers have been created for BAS Municipal High School, Aska Road, Berhampur in which the Petitioner was working. Out of such said six posts, the Inspector of Schools, Ganjam had been requested to absorb the Petitioner in the said School after verification of the records.
9. As per the procedure and practice, the contractual posts are always created on abolition of regular vacant posts. But in the instant case, no such abolition order has been made since the petitioner is continuing against a sanctioned TGT 6 of 43 post from the very beginning of her appointment. So there is no question of abolition or surrender of such post as such the creation of such contractual post as well as the appointment of the Petitioner and others against such created contractual post instead of appointing them on regular basis is also said to be illegal and not sustainable in the eye law as the resolution does not prescribe such contractual appointment and even there is no such contract/agreement between the Petitioner with its employer for such contractual appointment.
10. After the interference of the Tribunal, the Opposite parties/ authority has issued a fresh office order No.2 dated 30.05.2011 to the Petitioner by absorbing her as contractual teacher against TGT post so created with effect from 28.02.2004 based on her initial appointment as well as seniority. Pursuant to the said office order dated 30.05.2011, the Petitioner submitted her joining report and being an obedient employee discharging her duty at MPL Girls' High School, Aska Road, Berhampur.
11. In spite of the Government Resolution dated 28.02.2004 and specific direction of the learned Tribunal to consider the case of the Petitioner in its order dated 28.11.2008, the Opposite Party No.3 has placed the Petitioner along with Page 7 of 43 other Non-Regular teachers by mis-interpreting the Government Resolution dated 28.02.2004 so also the order of the Tribunal in its own way with a mala fide intention to avoid and bypass the real issue involved i.e. equal to Service of Non-Regular Teaching staff.
12. The Opposite Parties/ authorities ignoring the regularization of the services of the Petitioner even went to the extent to regularize an ad- hoc Classical teacher who is junior to the Petitioner as per the gradation list. The person, namely, Susama Sahu, who joined in her service on 28.03.1995 has been regularized, whereas the Petitioner joined in her service on 21.01.1994 was over looked.
13. Similarly the Opposite Parties/ authorities have also regularized the services of Non-Regular Teachers of Sundargarh Circle, Cuttack Circle and Ganjam Circle out of 220 numbers as per the Government Notification 28.02.2004.
14. In spite of several communications and recommendations for consideration of regularization of service of the Petitioner, the Opposite Parities/ authorities did not take any effective steps. Rather, they slept over the matter for years together for which the Petitioner along with others are highly prejudiced and affected. So, there is a clear case 8 of 43 of discrimination on the part of the Opposite Parties towards the Petitioner.
15. In spite of constant approaches and several representations when the Opposite Parties/ authorities did not take any action and steps for regularization of her service, the Petitioner then submitted her last representation to the Grievance Cell of the Chief Minister, Odisha, Bhubaneswar ventilating her grievance and narrating the facts in detailed praying to consider her case sympathetically to regularize her service with effect from 28.02.2004 like that of other Non-Regular Teachers.
16. In spite of Government Resolution dated 28.02.2004 and specific direction of the Tribunal in OA.No.1447 of 2008, several communications, guidelines and circulars, representations of the Petitioner to regularize her service, the non-consideration of the case of the Petitioner for regularization of her service by the Opposite Parties/authorities is nothing but illegal and arbitrary. Therefore, the Petitioner is constrained to approach this Court.
II. Submissions advanced on behalf of the petitioner:
17. Learned counsel for the Petitioner submitted that in the instant Writ Petition the Petitioner has challenged the action Page 9 of 43 of the Opposite Parties in not regularizing her services and treating her to be a contractual employee against a substantive vacancy from the date she was appointed in Municipality High School i.e. on 21.01.1994 i.e. the period of service she has rendered prior to the date of taking over of the school i.e. prior to 28.02.2004. Moreover, the Petitioner has been treated as Government servant with effect from 28.02.2004 when the school was taken over by the State Government, but her service has been regularised with effect from 12.08.2016 vide the impugned order dated 8.09.2016 issued by the Opposite Party No.4/ District Education Officer, Ganjam.
18. He further submitted that the present Petitioner who has been working against a Trained Graduate Post since 24.01.1994 and has served more than 28 years as Trained Graduate Teacher against a substantive vacant post. The State Government itself in its Resolution No.4942 dated 28.02.2004 under Clause-7 decided to declare the Non- Regular Teaching and Non-teaching staff as regular Government Servant as on date of takeover i.e. on 28.02.2004. Therefore, when the Government itself has decided to regularize the service of the staffs like the present Petitioner and declare them as Government 10 of 43 Servant, no departure from the same will be permissible in the law and it is incumbent on the part of the Opposite Parties to provide regular service benefits as due and admissible to the present Petitioner with effect from the date of her initial joining as Trained Graduate Teacher.
19. It is further submitted that similarly situated Teaching Staff like that of the Petitioner, who are coming within 220 numbers of Non-Regular Teaching staff and were working as Ad hoc teachers in different Urban Local Body (ULB) High Schools, their services were regularized by the Opposite Parties with effect from 28.02.2004 i.e. the date of Resolution. Whereas some of the teaching staff working in ULB of Cuttack Circle, who were also amongst the 220 numbers of Non-Regular Teaching staff, the Opposite Parties have regularized their services counting their past period of service with effect from 2003. Therefore, it is crystal clear that the Opposite Parties have regularized similarly situated teachers like that of the present Petitioner with effect from 28.02.2004 and in the case of teachers working in ULB of Cuttack Circle with effect from 2003. But in the case of the Petitioner, the Opposite Parties regularised her service with effect from 12.08.2016 wiping out the past period of service rendered by her which is in Page 11 of 43 gross violation of Articles 14 and 16 of the Constitution of India.
20. Learned counsel for the Petitioner contended that in the counter affidavit dated 15.01.2018 filed by the Opposite Party No.3, it has been specifically stated that the Petitioner was one amongst the 220 number of non-regular teaching staff which was taken over by the Opposite Party No.1 vide Resolution dated 28.02.2004 and those teaching staff were declared as Government Servants with effect from 28.02.2004. It was further admitted that the services of Susama Sahu, Ad-Hoc Classical Teacher, Municipality Girls' High School, Aska Road, Berhampur who was in position as on 28.02.2004 like that of the present Petitioner, the Opposite Parties have regularized her service with effect from 28.02.2004 but the petitioner's case was overlooked even if she is in a similar footling. Her services were regularized with effect from 12.08.2016 which is a classic case of discrimination hitting Article 14 of the Constitution of India.
21. Learned counsel for the Petitioner also submitted that the Supreme Court in catena of decisions has categorically held that the service rendered by a teacher in an educational institution and the teaching experience acquired before taking over of the institution cannot be obliterated on the 12 of 43 ground that the institution is taken over by a new management. It is understandable that the teacher has to join service under a new management for the first time and so could be in that sense regarded as a fresh entrant. But his / her teaching experience in the institution before its taking over cannot be completely effaced. One of the judgments of the Supreme Court is in the case of State of Orissa and Anr.
-vrs.- N.N. Swamy and Ors. Etc.1 III. Submissions by the Opposite Parties:
22. Learned Standing Counsel for the Department of School and Mass Education submitted that the petitioners in all these batch of Writ Petitions sought for a direction from this Court to regularise their services with effect from the date when they have been appointed under Berhampur Municipality along with all service and consequential benefit. It is stated that in some of the Writ Petitions the respective Petitioners have sought for a direction for regularisation of their service with effect from 28.02.2004.
23. In all these Writ Petitions it is the admitted case of the respective Petitioners that they have been appointed on the basis of the order passed by the Executive Officer, 1 (1977) 2 SCC 508 Page 13 of 43 Berhampur Municipality and their initial appointment as Remunerative/ Adhoc/ on daily wages basis.
24. On a close reading of the very initial so called appointment made in favour of the Petitioners, it is apparently clear that their appointment itself is not in accordance with the prescribed norms and guidelines. In this connection, it is mentioned that all these Petitioners have never been appointed in a regular process of selection by issuing advertisement inviting applications from general public nor there was any regular process of recruitment through which these Petitioners were appointed by the then Executive Officer, Berhampur Municipality. In other words, the very initial appointment of the Petitioners is illegal, irregular, dehorce the prescribed norms and guidelines and the said appointment was never made by the then Executive Officer, Berhampur Municipality against substantive vacant post.
25. He further submitted that it is the case of the Petitioners that while the Petitioners were continuing on adhoc/ remunerative' daily wages basis and as high skilled employees, the Government in the Department of Housing and Urban Development Department took a decision to transfer the schools, which were under the administrative control of Urban Local Bodies to the control of the School and Mass Education Department. While taking such 14 of 43 decision the Government in the Department of Housing and Urban Development issued a resolution bearing Resolution No. 4942/M-III-M-43/2003/HUD dated 28.2.2004 wherein it has been specifically stipulated under Clause-4 of the said resolution with the heading "Regularisation of Surplus Staff" that the staff will be absorbed on the basis of students strength as well as Additional Sections of these schools as per methods followed by School and Mass Education Department.
26. Pursuant to such decision of the Government under Resolution dated 28.2.2004, the ULB schools came to the control of the Government under the Department of School and Mass Education. The Petitioners who are continuing as NMR, DLR, Remunerative Teachers, their services were transferred to the control of School and Mass Education Department with the very same status as they were continuing as against the teaching post under the Housing and Urban Development Department. The petitioners after transfer of all these ULB schools to the control of School and Mass Education Department, they continued under the control of School and Mass Education Department with the same status as before as NMR, DLR, and Remunerative Teachers with the same conditions.
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27. It is submitted that while the matter stood thus, the Government in the Department of School and Mass Education after obtaining necessary sanction from the Governor in due consultation with the Finance Department, the Government in School and Mass Education Department took a decision for creation of contractual posts in ULB high schools transferred by Housing Urban Development Department to School and Mass Education Department vide Resolution No. 4942/ H &UD dated 28.2.2004. The sole purpose of taking such a decision at the instance of the Government by obtaining necessary sanction from the Governor in this regard was to create certain teaching and non-teaching posts for different taken over ULB high schools in order to absorb non-regular teaching and non- teaching staff. Such decision of the Government in School and Mass Education Department was taken under letter No. 22313/SME dated 10.12.2010.
28. On a meticulous reading of the contents of the letter dated 10.12.2010 it is apparently clear that necessary sanction has been accorded by the Governor for creation of 104 numbers of teaching (75 TGT + 10 TI +2 TM +7 Classical Teacher +10 Hindi Teacher) and 43 numbers of non teaching (two PET + 14 numbers of classical + 27 peons) contractual post as per the list enclosed to the said letter in respect of different 16 of 43 taken over high schools transferred by H and UD Department to School and Mass Education Department under Resolution dated 28.2.2004.
29. It is also submitted pursuant to taking such a decision at the instance of the Government in the department of School and Mass Education, the present Petitioners those who were continuing as NMR, DLR, Remunerative Teachers on consolidated basis, they were appointed on contractual basis with effect from 30.5.2011. The petitioners along with other irregular appointees who were continuing with the status of NMR, DLR, Remunerative Teachers were appointed on contract basis and such decision of the Government in the Department of School and Mass Education was made in order to regularise the irregular appointment appointed them on contract basis.
30. Pursuant to such decision of the Government, the Petitioners have accepted the offer of said contractual appointment and by accepting such contractual appointment they joined in their services as per the conditions stipulated in the said contractual engagement.
31. It is contended that the Petitioners have never preferred to challenge the decision of the Government under Government letter dated 10.12.2010. Therefore, the decision taken by the Government in the Department of School and Page 17 of 43 Mass Education for creation of such number of teaching and non teaching staffs in respect of transferred ULB schools to the Department of School and Mass Education and the decision taken therein for absorption of the irregular appointees whose position stood as such on the date of transfer i.e on 28.2.2004, the status of NMR, DLR, Remunerative Teachers and on daily wage basis and hence, the decision of the Government in the Department of School and Mass Education remain un-assailed, unchallenged and reached its finality.
32. The Petitioners while continuing in their service on contract basis have approached the learned Tribunal in O.A No.1690 of 2014 along with batch of O.As, wherein prayer was made for issuance of direction to the authorities of the Government to declare them as regular Government employees with effect from 28.2.2004 and to extend all service benefit along with arrear salary etc.
33. The authorities of the State Government filed counter affidavit denying the allegations and averments made in the Original Applications. The Original Applications were heard on 09.02.2016 and the Tribunal disposed of the same analogously by delivering common judgment on 09.02.2016.
34. During course of hearing of the Original Applications though it was submitted on behalf of the Petitioners to 18 of 43 regularise their services with effect from 28.2.2004, the Tribunal was not inclined to grant such prayer. On the other hand, the Tribunal upon hearing the authorities formed an opinion that the regularisation of the petitioner is a policy decision, which has to be taken by the authorities of the Government and accordingly the Tribunal while disposing of the said Original Applications observed as follows:
"In view of the above discussion, respondent No.1 is directed to formulate a policy regarding regularisation of the applicants in all the O.As keeping in view their qualification and experience within a period of four months from the date of receipt of a copy of this order."
35. Pursuant to the direction dated 09.02.2016 passed by the Tribunal in O.A No.1690 of 2014 along with batch of cases, the Government in the Department of School and Mass Education in due consultation with the Finance Department vide UOPR No.23 SS.1/ dated 22.2.2016 took a policy decision for regularisation of the services of the teaching and non teaching employees engaged on adhoc NMR, DLR, Consolidated remuneration basis beyond the yardstick and who have subsequently adjusted against the contractual post with effect from 28.2.2004. In order to regularise the service of such employees, the Government after careful Page 19 of 43 consideration was pleased to absolve 186 numbers of teaching and non teaching contractual employees of transferred ULB high schools by way of regularisation of their services absolving seniority against the corresponding regular vacant post available under the respective DEOS prospectively i.e from the date of issue of the said order. Such decision was taken by the then Commissioner-cum- Secretary to Government in the Department of School and Mass Education after obtaining necessary concurrence from the Government in the Finance Department. The aforesaid decision was taken by the Commissioner-cum Secretary to Government under letter No. 16249/SME dated 12.8.2016.
36. Pursuant to the aforesaid decision of the Government under letter dated 12.8.2016 the then DEO, Ganjam issued office order bearing office order No.10439 dated 28.9.2016, wherein the services of the Petitioners as well as the contractual teaching and non teaching employees of transferred ULB high schools of the district of Ganjam were regularised with effect from 12.8.2016 and the persons whose service have not regularised, they were posted as such in different schools as reflected under the said office order dated 28.9.2016.
37. It is also submitted that the applicant in O.A No. 1690 of 2014, which was lead case before the learned Tribunal, the 20 of 43 applicant in the said O.A namely Md. Zahiruddin has approached this Court in W.P(C) No.19144 of 2016 challenging the common order dated 09.02.2016 passed by the Tribunal in O.A No.1690 of 2014 along with batch of cases. The said Writ Petition was taken up for consideration on the question of hearing and admission on 27.04.2017. During course of hearing, this Court was not inclined to interfere with the grievance as their grievance was pending before the authority. The counsel for the Petitioner in the said Writ Petition bearing W.P(C) No.19144 of 2016 seeking liberty to withdraw the Writ Petition in order to enable him to approach the appropriate authority for redressal of his grievance. Accordingly the said Writ Petition was withdrawn at the instance of the petitioner namely Md. Zahiruddin.
38. The Petitioners pursuant to regularisation of their services on the basis of the office order dated 28.9.2016 accepted their place of posting as reflected in the said office order in their respective place of posting and joined in their services and since then they are getting all the benefits of Government servant from time to time as they are entitled to.
39. He further submitted that the petitioners after accepting their order of regularisation and after joining in their Page 21 of 43 service as a regular teachers while continuing as such have again approached this Court in the present Writ Petition with the self same grievance, which has been urged by them before the Tribunal for regularisation of their service with effect from 28.2.2004 with all consequential benefits.
40. It is also submitted that during course of hearing of the case, the counsel for the Petitioner led much emphasis on Clause-7 of the Government Resolution dated 28.02.2004. It was vehemently contended by the learned counsel for the petitioner that non-regular teaching staff of 220 in number and non-teaching staff of 87 in number working in these schools as on the date of taken over i.e. 28.02.2004 are also declared as Government servants. On the basis of such provision, it was vehemently contended on behalf of the counsel for the petitioner that the date i.e the ULB schools were taken over/ transferred by the Government in School and Mass Education Department, these transferred employees are to be treated as Government servant as per Clasue-7 of the Resolution dated 28.02.2004 and all such benefit bar with the Government servant should be extended to them.
41. On the other hand, it was submitted by the learned counsel for the State that the very initial appointment of the 22 of 43 Petitioners, which is apparent from the document annexed by the respective petitioners with regard to their initial engagement by the then Executive Officer, Berhampur Municipality that none of them were appointed by a regular process of selection by resorting to an open advertisement inviting application from general public and selected such candidates in a regular process of recruitment. So, the very initial appointment of the Petitioners as is apparent from their engagement letters annexed to the Writ Petitions, it is clear that they have been appointed illegally in an irregular process.
42. It was further contended by the learned counsel for the State that the Petitioners are well aware of the fact that at the time of transfer of ULB school to the control of School and Mass Education Department they were continuing as irregular appointees on the basis of NMR, DLR, remunerative teachers, adhoc teachers and high skilled employees. After transfer of such ULB schools in order to regularise those irregular appointees, Government in the Department of School and Mass Education took a decision by according sanction from the Governor for creation of such number of teaching and non-teaching staff to give them appointment on contract basis. Such decision of the Government was taken after obtaining necessary sanction Page 23 of 43 from the Government in due consultation and concurrence of the Government in Finance Department under letter dated 10.12.2010. Pursuant to such decision, the Petitioners were appointed on contract basis with effect from 30.5.2011. Furthermore, as there are several grievances from different corners as well as the direction issued by the Tribunal in batch of Original Applications wherein the lead case being O.A No. 1690 of 2014, the Government in the Department of School and Mass Education took a decision to regularise the service of such contractual employees and pursuant to the decision of the Government, the Petitioners services have been regularised with effect from 28.09.2016.The Petitioners at present make a grievance as if their grievance with regard to regularisation was never taken care by the Government and they sought for their regularisation with effect from 28.02.2004 i.e. the date of notification made by the Government and as because there is a stipulation under Clause-7 that the non-regular teaching and non-teaching staff, their services were declared as Government servant on the basis of such process under Clause-7. They are seeking direction to regularise their services with effect from 28.02.2004. Such contention raised by the Petitioners is unsustainable in law in view of the fact that the very initial appointment of the Petitioners is illegal and irregular and at 24 of 43 the time of transfer of such ULB schools to the control of School and Mass Education Department, the Petitioners who are continuing as NMR, DLR, Remunerative Teacher, Daily wage, came over to the Department of School and Mass Education with the same status. The Government at the different points of time has taken several steps to bring the end to these irregular and illegal appointees and to regularise their services. In such process from 2010 till 2016 several steps have been taken at the instance of the Government to give such employee as regular status. All the steps taken at the instance of the Government at that point of time should be taken note while dealing with the grievances of the Petitioners as has been made in the writ petitions.
43. Learned counsel for the State further submitted that this Court may visualize the steps taken by the Government at different point of time for creation of adequate numbers of post by according sanction from the Governor in order to give contractual appointment to the Petitioners so as to regularise their service in due time as per the policy decision of the Government. As such there is neither any illegalities nor any irregularities committed on the part of the Opposite Parties while regularising the service of the petitioner with effect from 28.9.2016.
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44. It is also submitted that from 2010 when the authorities of the Government have taken steps for creation of posts and pursuant to creation of such post, the Petitioners were appointed on contract basis. The Petitioners availed such benefit by accepting such contractual appointment and continued in their service. They never preferred to challenge the decision made by the Government by offering them the contract appointment at any point of time. The Petitioners who are brought over to School and Mass Education Department with NMR, DLR, remunerative teachers, adhoc teachers and high skilled employees status after availing the benefit of contractual appointment made a further grievance for their regularisation of service by approaching the Tribunal and the Tribunal upon hearing the grievance of the Petitioners was not inclined to entertain their prayer for regularization of their services with effect from 28.02.2004. The Tribunal while disposing of the Original Applications was of the view that the question of regularisation of the Petitioners relates to a policy decision of the Government and let the Government take a policy decision with regard to regularisation of the services of the Petitioners. Accordingly, the Tribunal while disposing of the Original Appliations in leading O.A No.1690 of 2014 specifically directed the authorities of the Government to 26 of 43 take a policy decision in this regard. The Petitioners though challenge the said order passed by the Tribunal before this Court, they failed in their attempt to vary/ reverse the order passed by the Tribunal. As such the decision rendered by the Tribunal in O.A No.1690 of 2014 along with batch of cases reached its finality and consequent upon the direction issued by the Tribunal, the services of the Petitioners have been regularised on the basis of policy decision taken by the Government. Such policy decision taken by the Government is strictly in accordance with the existing norms and guidelines as prescribed by the Government.
45. He further submitted that it is well settled principle of law as has been laid down by the Supreme Court that the date from different regularisation is to be granted is a matter to be decided by the employer keeping in view the number of factors like the nature of work, number of post lying vacant, the financial condition of the employer, the additional financial burden cause, the suitability of the workmen for the job, the manner and reason for which the initial appointment were made etc. The said decision will depend upon the facts of each year. This well settled principle of law has been laid down by the Supreme Court in the decision rendered by the Supreme Court in Managing Page 27 of 43 Director, Ajmer Vidhyut Vitran Nigam Ltd. Ajme and another Versus Chiggan Lal and others2.
46. Lastly learned counsel for the State submitted that in view of the above facts and circumstances, the policy decision of the Government with regard to the regularisation of the services of the Petitioner by regularising him with effect from 12.08.2016 made by the Government caused neither any illegality nor any irregularity by the authorities of the Government and as such the Writ Petition and the grievance of the Petitioner made therein are devoid of any merit and the Writ Petition is liable to be dismissed.
47. A counter affidavit has also been filed by the Opposite Party No.3/ District Education Officer, Ganjam stating therein that the petitioner having B.A B.Ed. qualification was appointed as Remunerative Assistant Teacher against Trained Graduate post by the Executive Officer, Berhampur Municipality with monthly consolidated remuneration of Rs.2000/ per month at MPL Girls' High School, Military Line, Berhampur. Such designation was assigned by the Berhampur Municipal Authority without obtaining any instruction/ order of the Housing and Urban Development Department. There is no such order of Housing and Urban 2 Civil Appeal No.1875/2022 (arising out of SLP (C) No. 19181 of 2017) 28 of 43 Development Department in support of sanction of such remunerative teacher. The engagement of the Petitioner by the Municipal authority is not against existing post. As a matter of which the Petitioner failed to submit the appointment order against a vacant regular Trained Graduate post. Therefore, the claim of the Petitioner regarding appointment against a regular teacher post is not correct at all.
48. It is further stated submitted that subsequently the said High School has been transferred from Housing and Urban Development Department to the School and Mass Education Department, Odisha vide Resolution No.4942/H&UD dated 28.02.2004. with effect from 28.02.2004. The non-regular teaching and non-teaching employees including the Petitioner working in different ULB High Schools have been taken over by the School and Mass Education Department with effect from 28.02.2004. Accordingly, as per the policy decision of the Government, the pay of the non-regular employees including the Petitioner has been paid on consolidated remuneration by the Government in School and Mass Education Department with effect from 28.02.2004 as per Finance Deptt. O.M No.32986 (255)/F dated 07.07.2008 and as revised from time to time. Therefore the claim of the Petitioner for regular Page 29 of 43 scale of pay attached to the post from retrospective date is not maintainable in the eye of the law.
49. It has been further stated that after taken over of the ULB High Schools including non-regular teaching and non- teaching employees, the Government in their order No.22313/SME dated 10.12.2010 have been pleased to create some contractual posts for absorption of non-regular teaching and non-teaching employees who were working in different ULB High Schools as remunerative teacher as on the date of taken over i.e 28.02.2004. Accordingly, the Petitioner has been absorbed as contractual remunerative teacher and the remuneration has been paid to the Petitioner as per policy decision of the Government.
50. It has also been stated that similarly engaged contractual teachers had prayed before the Tribunal with the claim for regularisation of their services from retrospective effect vide O.A Nos.1690 of 2014, 1691 of 2014, 1692 of 2014, 1693 of 2014, 1694 of 2014 and 2590 of 2014. It has been contended that the Petitioner was never appointed by the Government on regular basis having regular scale of pay by the Executive Officer, Berhampur Municipality. Rather, the Executive Officer, Berhampur Municipality vide its letter dated 08.10.2001 sought instruction from the Government 30 of 43 for filling up of the said vacancies. Hence, the averment that the Petitioner was appointed against regular vacancy is not correct. He was one of 220 numbers non-regular and adhoc teaching staff taken over by Opposite Party No.1 in Housing and Urban Development Department Resolution dated 28.2.2004. 220 numbers of non-regular teaching staff and 87 numbers of non-teaching staff working in different ULB High Schools as on the date of taking over i.e. 28.02.2004 were also declared as Government servants. Out of the said non-regular teachers, some were working on adhoc basis having regular scale of pay along with other allowances like D.A and H.R.A etc. However, some non- regular teachers including the Petitioner were working as remunerative teacher appointed by the Municipal Council with a consolidated remuneration which are not coming under standard staffing pattern of High Schools framed by the School and Mass Education Department. It was further stated that as per Order dated 27.5.2011 the Petitioner is being given a consolidated remuneration against the Contractual post so created for absorption of remunerative teacher. The services of Smt. Susama Sahu, Ad-hoc Classical Teacher, MPL Girls' High School, Aska Road, Berhampur who is in position on 28.2.2004 and against whom the post of Classical Teacher has been created in the said High Page 31 of 43 School for her absorption in the aforesaid letter of School and Mass Education Department, Government of Orissa is regularized from 28.02.2004. The service condition between Susama Sahu and the Petitioner is totally different. IV. Court's Reasoning, Conclusion and Order:
51. Heard learned counsel for the parties.
52. The Appointment on public post should be strictly in accordance with Articles 14 (Equality before law) and 16 (Equality of opportunity in matters of public employment) of the constitution of India. Public employment i.e. jobs controlled by the Government sector in a sovereign socialist secular democratic republic has to be as set down by the Constitution and the laws made there under. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf.
53. Regularization of contractual services has been a persistent matter of litigation for several decades now. In this regard, the Apex Court has clarified that the same has to be based on the necessity of the said post and the duration of the service of the employee. Constitution Bench of the Supreme 32 of 43 Court in the case of Secretary, State of Karnataka & Ors vs. Umadevi & Ors.3 has laid down the following ratio:-
"(I) The questions to be asked before regularization are:-
(a)(i) Was there a sanctioned post (court cannot order creation of posts because finances of the state may go haywire), (ii) is there a vacancy, (iii) are the persons qualified persons and (iv) are the appointments through regular recruitment process
(b) A court can condone an irregularity in the appointment procedure only if the irregularity does not go to the root of the matter.
(II) For sanctioned posts having vacancies, such posts have to be filled by regular recruitment process of prescribed procedure otherwise, the constitutional mandate flowing from Articles 14,16,309, 315, 320 etc is violated.
(III) In case of existence of necessary circumstances the government has a right to appoint contract employees or casual labour or employees for a project, but, such persons form a class in themselves and they cannot claim equality(except possibly for equal pay for equal work) with regular employees who form a separate class. Such temporary employees cannot claim legitimate expectation of absorption/regularization as they knew when they were appointed that they were temporary inasmuch as the government did not give and nor could have given an assurance of regularization without the regular recruitment process being followed. Such irregularly appointed persons cannot claim to be regularized alleging violation of Article 21. Also the equity in favour of the millions who await public employment through the regular 3 2006(4) SCC 1 Page 33 of 43 recruitment process outweighs the equity in favour of the limited number of irregularly appointed persons who claim regularization.
(IV) Once there are vacancies in sanctioned posts such vacancies cannot be filled in except without regular recruitment process, and thus neither the court nor the executive can frame a scheme to absorb or regularize persons appointed to such posts without following the regular recruitment process.
(V) At the instance of persons irregularly appointed the process of regular recruitment shall not be stopped.
Courts should not pass interim orders to continue employment of such irregularly appointed persons because the same will result in stoppage of recruitment through regular appointment procedure.
(VI) If there are sanctioned posts with vacancies, and qualified persons were appointed without a regular recruitment process, then, such persons who when the judgment of Uma Devi is passed have worked for over 10 years without court orders, such persons be regularized under schemes to be framed by the concerned organization. (VII) The aforesaid law which applies to the Union and the States will also apply to all instrumentalities of the State governed by Article 12 of the Constitution".
54. In the case of Roshan Lal Tandon v. Union of India4, the Supreme Court observed:
"It is 'true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent 4 1968 SCR (1) 185 34 of 43 of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public 'law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Art. 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Art. 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are 'fixed by the law and in the enforcement of these duties society has an interest."
55. Moreover, the Petitioner has rightfully contended that as per the procedure and practice, the contractual posts are always created on abolition of regular vacant posts. But in the instant case, no such abolition order has been made since the Petitioner is continuing against a sanctioned TGT post from the very beginning of her appointment. Hence, there is no question of abolition or surrender of such post as such the creation of such contractual post as well as the Page 35 of 43 appointment of the Petitioner and others against such created contractual post instead of appointing them on regular basis is also said to be illegal and not sustainable in the eye law as the resolution does not speak about such contractual appointment and even there is no such contract/agreement between the Petitioner with its employer for such contractual appointment. Additionally, it is pertinent to note the necessary provisions of the Government resolution dated 28.02.2004., wherein it was noted that:
"4. Regularisation of surplus staff- The School and Mass Education Department have pointed out some surplus staff on the basis of the staffing pattern. These staff are not surplus as per the requirement of Urban Local Bodies. Because the Schools functioning in urban areas having higher density of population enrol more students than in rural areas of any school under School and Mass Education Department. These staff will be absorbed on the basis of student strength as well as additional sections of these schools as per methods followed by School and Mass Education Department.
7. Non-Regular Services - The Non-Regular Teaching Staff 220 in number and Non-Teaching Stall 87 in number working in these schools as on the date of taken over i.e. 28.02.2004 are also declared as Government Servant."
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56. In Ashwani Kumar and others v. State of Bihar and others5, while considering the validity of confirmation of the irregularly employed, the Apex Court observed that:
"In this connection it is pertinent to note that question of regularization in any service including any government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularize them so that the employees concerned can give their best by being assured security of tenure. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularization may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving 5 1996 Supp. (10) SCR 120 Page 37 of 43 such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularized and security of tenure may be made available to the incumbent concerned."
57. This is a case where the Government has failed to take any steps for regularization of their contractual employees working over the years. In very few years there have been several litigations pertaining to regularization. In such cases, the Court has to play a guiding role while issuing directions for regularizing such employees more particularly when the conditions prescribed in the said orders can be said to be either unreasonable, arbitrary or discriminatory.
58. The Opposite Parties have contended that the Petitioner's appointment itself is not in accordance with the prescribed norms and guidelines. In this connection, it is mentioned that all these Petitioners have never been appointed in a regular process of selection by issuing advertisement inviting applications from general public nor there have been any regular process of recruitment through which these Petitioners were appointed by the then Executive Officer, Berhampur Municipality. In the case of Secretary, 38 of 43 State of Karnataka v. Umadevi And Others6, the Supreme Court iterated:
"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
6 Appeal (civil) 3595-3612 of 1999 Page 39 of 43
59. In the case of Narendra Kumar Tiwari vs The State of Jharkhand7, while inferring the decision of Umadevi (supra) with respect to illegal appointments observed that:
"8. The purpose and intent of the decision in Umadevi (3) 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 (3) 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 regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and Kesari sought to avoid.
11. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct etc."
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60. It has been well established that the purpose and intent of the decision in Umadevi (supra) 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. Accordingly, the State Government and their instrumentalities should have taken steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts. The case of the petitioner falls under the purview of the same. Similarly, as established in the case of Narendra Kumar Tiwari (supra), the Regularisation Rules must be given a pragmatic interpretation and the petitioners, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, they ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularization.
61.Similarly, in the case of Amarendra Kumar Mahapatra & Ors. vs State of Orissa & Ors.8, the Supreme Court was of the opinion that the appellants were entitled to regularization in service having regard to the fact that they have rendered long years of service on ad hoc basis for 17 to 8 (2014) 4 SCC 583.
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18 years in some cases. Reliance can also be placed on the case of Amarkant Rai vs State of Bihar & Ors.9; wherein the Supreme Court directed the University to regularise the service of the appellant as he rendered service for more than 29 years in the post on daily wages.
62. It is also pertinent to note that the Opposite Parties/ authorities have also regularized the services of Non- Regular Teachers of Sundargarh Circle, Cuttack Circle and Ganjam Circle out of 220 numbers as per the Government Notification 28.02.2004.
63. Therefore, this Court is inclined to iterate that the Petitioner has been appointed in the post of Trained Graduate Post since 24.01.1994 and has served more than 28 years as Trained Graduate Teacher against a substantive vacant post. The State Government itself in its Resolution No.4942 dated 28.02.2004 under Clause-7 decided to declare the Non-Regular Teaching and Non-teaching staff as regular Government Servant as on date of takeover i.e. on 28.02.2004. Therefore, when the Government itself has decided to regularise the service of the staffs like the present Petitioner and declare them as Government Servant, no departure from the same will be permissible in the law and it is incumbent on the part of the Opposite 9 (2015) 8 SCC 265 42 of 43 Parties to provide regular service benefits as due and admissible to the present Petitioner with effect from the date of her initial joining as Trained Graduate Teacher.
64. In light of the above-mentioned facts and precedents cited hereinabove, the Court is not inclined to allow for the regularization of the service of the Petitioner from 1994. The Opposite Parties are hereby directed to regularize the services of the Petitioner from the date of Government resolution i.e. 28.02.2004 and extend the benefits for the same.
65. Accordingly, all the Writ Petitions are disposed of.
( Dr. S.K. Panigrahi ) Judge Orissa High Court, Cuttack, Dated the 25th of August, 2022/B. Jhankar Page 43 of 43