Orissa High Court
Tusara Ranjan Patra vs State Of Odisha on 30 October, 2024
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: MANAS KUMAR PANDA
Reason: Authentication
Location: OHC, Cuttack
Date: 04-Nov-2024 18:20:58
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 16486 of 2020
(Under Article 226 and 227 of the Constitution of India)
Tusara Ranjan Patra .... Petitioner
-versus-
State of Odisha, represented through
its Commissioner-cum-Secretary, Food
Supplies and Consumer Welfare
Department and Others .... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioner : Mr. Sameer Kumar Das, Advocate
For Opposite Parties : Mr. S.P. Panda, AGA
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
30th October, 2024 B.P. Routray, J.
1. Heard Mr. S.K. Das, learned counsel for the Petitioner and Mr. S.P. Panda, learned AGA for State - Opposite Parties.
2. The Petitioner was initially appointed as Junior Clerk in the office of Assistant Controller of Legal Meteorology, Dhenkanal on ad-hoc basis on 18th October 1996 by the Government of Odisha in the Food Supplies and Consumer Welfare Department. Then his pay was revised at par with the pay of regular Ministerial staff of District Forum in the WP(C) No.16486 of 2020 Page 1 of 9 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:20:58 composite cadre of Food Supplies and Consumer Welfare Department. He continues in service and his pay was also revised from time to time including grant of grade pay at par with the regular employees in the same cadre. Further, a high power committee constituted for the purpose of regularization of the service of the Petitioner and similarly situated persons considered the case of the Petitioner and recommended to the Government for regularization. Since no action was taken on such recommendation, the Petitioner approached this court in W.P.(C) No.29515 of 2019, wherein this Court directed the Government to work out on the recommendation of the Petitioner within the stipulated period. Then the Commissioner-cum-Secretary of Government in Food Supplies and Consumer Welfare Department in his order dated 19th June, 2020 (Annexure-7) rejected the recommendation for regularization of the Petitioner. Said order of the Government under Annexure-7 is impugned in the present writ petition with the prayer for regularization of service of the Petitioner.
3. The Government has filed its counter supporting its stand in the impugned order that the appointment of the Petitioner is inter alia not as per the Odisha Group-C and Group-D Posts (Contractual Appointment) Rules, 2013 and not in consonance with the circular of G.A. Department WP(C) No.16486 of 2020 Page 2 of 9 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:20:58 dated 16th January, 2014. It is also averred in the counter that the initial appointment of the Petitioner is without due procedure of selection and therefore, the claim of the Petitioner for regularization of his service is liable to be rejected.
4. It is seen that the initial appointment of the Petitioner as Junior Clerk on ad hoc basis was made against a sanctioned vacant post and the same is never disputed. The continuance of the Petitioner in service with grant of such pay and grade pay at par with his counterpart regular employees is also admitted. It is further admitted that the Petitioner is continuing as such since 18th October 1996 till date and the authorities have recommended in favour of regularization of the Petitioner upon his satisfactory discharge of duty.
5. For the question of regularization of the Petitioner, the first thing to be counted is that, the Petitioner is continuing in the post uninterruptedly for last 28 years without any blemish from the authority. His initial appointment is against a sanctioned vacant post which continues to be as such till date, in confirmity with the continuance of the Petitioner.
WP(C) No.16486 of 2020 Page 3 of 9 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:20:58
6. The law on regularization of service has been well settled in different decisions of Hon'ble Supreme Court. By taking note of the principles decided in the cases of State of Karnataka and Others. V. Umadevi and Others, (2006) 4 SCC 1, State of Karnataka and Others. V. M.L. Kesari and Others, (2010) 9 SCC 247, Nihal Singh and Others. V. State of Punjab and Others, (2013) 14 SCC 65, the Hob'ble Supreme Court in the case of Amarkant Rai v. State of Bihar and Others, (2015) 8 SCC 265 have observed as follows:-
"11. As noticed earlier, the case of the appellant was referred to a three-member Committee and the three-member Committee rejected the claim of the appellant declaring that his appointment is not in consonance with the ratio of the decision laid down by this Court in Umadevi case [(2006) 4 SCC 1]. In Umadevi case [(2006) 4 SCC 1], even though this Court has held that the appointments made against temporary or ad hoc are not to be regularised, in para 53 of the judgment, it provided that irregular appointment of duly qualified persons in duly sanctioned posts who have worked for 10 years or more can be considered on merits and steps to be taken as a one-time measure to regularise them. In para 53, the Court observed as under:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [State of Mysore v. S.V. Narayanappa, AIR 1967 SC 1071] , R.N. Nanjundappa [R.N. Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409] and B.N. WP(C) No.16486 of 2020 Page 4 of 9 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:20:58 Nagarajan [B.N. Nagarajan v. State of Karnataka, (1979) 4 SCC 507 : 1980 SCC (L&S) 4] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily-wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
The objective behind the exception carved out in this case was prohibiting regularisation of such appointments, appointed persons whose appointmdents is irregular but not illegal, ensure security of employment of those persons who served the State Government and their instrumentalities for more than ten years.
12. Elaborating upon the principles laid down in Umadevi (3) case [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] and explaining the WP(C) No.16486 of 2020 Page 5 of 9 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:20:58 difference between irregular and illegal appointments in State of Karnataka v. M.L. Kesari [(2010) 9 SCC 247], this Court held as under:
"7. It is evident from the above that there is an exception to the general principles against 'regularisation' enunciated in Umadevi [(2006) 4 SCC 1], 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."
13. Applying the ratio of Umadevi case [(2006) 4 SCC 1] , this Court in Nihal Singh v. State of Punjab [(2013) 14 SCC 65] directed the absorption of the Special Police Officers in the services of the State of Punjab holding as under:
"35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which WP(C) No.16486 of 2020 Page 6 of 9 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:20:58 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 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 on a 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."
14. In our view, the exception carved out in para 53 of Umadevi [(2006) 4 SCC 1] is applicable to the facts of the present case. There is no material placed on record by the respondents that the appellant has been lacking any qualification or bear any blemish WP(C) No.16486 of 2020 Page 7 of 9 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:20:58 record during his employment for over two decades. It is pertinent to note that services of similarly situated persons on daily wages for regularisation viz. one Yatindra Kumar Mishra who was appointed on daily wages on the post of clerk was regularised w.e.f. 1987. The appellant although initially working against unsanctioned post, the appellant was working continuously since 3-1-2002 against sanctioned post. Since there is no material placed on record regarding the details whether any other night guard was appointed against the sanctioned post, in the facts and circumstances of the case, we are inclined to award monetary benefits to be paid from 1-1-2010."
7. In the instant case neither the appointment of the Petitioner nor his continuance in the post of Junior Clerk for last 28 years was ever questioned by the Government for lack of regular process of selection. What is stated in the impugned order to refuse the regularization of the Petitioner is that, the appointment of the Petitioner was against the principles of engagement of contractual posts guided by the circular of General Administration Department Resolution No.1066 dated 16th January, 2014 and the Group-C and Group-D Posts (Contractual Appointment) Rules, 2013. It needs to be mentioned here that the appointment of the Petitioner is dated back to the year 1996 when no such rules for contractual posts were there and the continuance of the Petitioner for the post was never objected by the Government at any point of time. So the objection made in the counter affidavit of the WP(C) No.16486 of 2020 Page 8 of 9 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:20:58 State with regard to initial appointment of the Petitioner as irregular cannot be allowed to sustain for the reason that his employment and continuance in service was though irregular but never stated as illegal and never objected by anyone at any point of time. The long continuance of the Petitioner in service for last 28 years without any interruption would definitely justify his requirement in the post for substantial discharge of duty necessited for the employer. Therefore, in view of the principles settled by Hon'ble Apex Court as stated above the Petitioner has a strong case and right in his favour to be permanently observed in the post as a regular employee. Accordingly the impugned order of the Government dated 19th June, 2020 (Annexure-7) to refuse the regularization of the Petitioner as such is quashed and the Opposite Parties are directed to regularize the service of the Petitioner in the post of Junior Clerk with all consequential service benefits from the date of his regularization, within a period of two months from the date of receipt of certified copy of this order.
8. The Writ Petition is disposed of as allowed.
(B.P. Routray) Judge M.K. Panda, P.A./ Ms. S. Dash, Jr. Steno WP(C) No.16486 of 2020 Page 9 of 9