Orissa High Court
An Application Under Article 4 Of The ... vs Sk Fayajuddin on 18 December, 2019
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA: CUTTACK
WRIT APPEAL No. 307 of 2019
An application under Article 4 of the Orissa High Court Order,
1948 read with clause 10 of the Letters Patent Act, 1992 read
with Chapter VIII Rule 2 of the Rules of the High Court of Orissa,
1948.
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UCO Bank represented
by its General Manager
& Another ....... Appellants
-Versus-
Sk Fayajuddin ....... Respondent
For Appellants: - M/s. Subrat Mishra
S. Mohapatra
B.N. Swarnakar
For Respondent: - Mr. Surendra Nath Panda
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P R E S E N T:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
AND
THE HONOURABLE MR. JUSTICE S.K. SAHOO
...........................................................................................................................................
Date of Argument: 06.12.2019 Date of Judgment: 18.12.2019
...........................................................................................................................................
S.K. SAHOO, J. Aggrieved by the impugned judgment and order
dated 20.06.2019 passed by the learned Single Judge of this
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Court in W.P. (C) No. 13355 of 2015, the unsuccessful appellants
therein have preferred the present writ appeal.
2. The appellants were the opposite parties and the
respondent was the petitioner in W.P.(C) No.13355 of 2015
wherein a prayer was made by the respondent seeking for a
direction to the opposite party-Bank to regularize his services
forthwith taking into account his past service, for the purpose of
calculating retirement benefits at least from the year 2007 when
the services of his juniors were regularized and further to grant
him all consequential service benefits by quashing the order
dated 17.07.2015 under Annexure-14 passed by the appellant
no.2 i.e. Zonal Manager, UCO Bank, Zonal Office, Sambalpur,
Odisha (opposite party no.2 in the writ petition).
This Court allowed the writ petition and quashed the
order dated 17.07.2015 under Annexure-14 passed by the
appellant no.2 and directed the appellants to regularize the
services of the respondent in the post of driver in which he has
been discharging his duty on being duly selected pursuant to the
advertisement dated 17.02.1995 under Annexure-1 to the writ
petition.
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3. The case of the respondent is that he was engaged
as a personal driver by the Zonal Manager, UCO Bank,
Bhubaneswar w.e.f. 27.03.1989 to drive the car of the Bank
provided to the Zonal Manager for his official use by the Bank.
Along with the respondent, others were also appointed for similar
nature of job under the Bank. Pursuant to the notification issued
under Annexure-1 dated 17.02.1995, the Bank invited
applications in the prescribed proforma from the personal drivers
of Branch Managers/Divisional Managers and subordinate staff
members possessing the requisite driving licence for the post of
driver to work at Dhera Branch. In response to same, the
respondent applied for the post and on being selected, he was
engaged as driver. The Zonal Manager vide letter dated
20.03.1995 sought approval for appointment of the respondent
as permanent driver in the vacancy of driver for the currency
chest of Dhera Branch to drive the Bank's cash van which was
not responded to by the authority of Head Office of the Bank.
The Zonal Manager of the UCO Bank again sought permission
vide letter dated 23.02.1996 for appointment of the respondent
as driver indicating therein that in case the same is not possible,
to authorise him to engage the respondent at least on daily wage
basis. The competent authority of the Head Office of the Bank
authorised the Zonal Manager, Bhubaneswar as per letter dated
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01.07.1996, to engage the respondent as casual driver on daily
wage basis to drive the cash van of Dhera Branch. Accordingly,
the respondent was engaged as casual driver on daily wage basis
by the Zonal Manager to drive the cash van w.e.f. 10.07.1996.
Subsequently, the Bank came out with a circular dated
30.05.2002 to empanel the daily wagers for regularization in
bank service. The Branch Manager, Dhera Branch submitted a
statement mentioning the details of the respondent's
engagement, wages paid etc. as per format to the controlling
office. Some of the casual drivers approached the CGIT, Kolkata
for regularization of their services by filing Reference Case No.45
of 2003 and the Tribunal passed the award on 17.07.2006 as
"No Dispute" since the matter was settled amicably between the
parties. Accordingly, the Board of Directors of UCO Bank
approved the absorption of thirty nine personal drivers in regular
service of the bank as Peon-cum-Farash as a one-time measure.
Even though the personal drivers were absorbed on regular basis
as Peon-cum-Farash, the case of the respondent was not taken
into consideration for which he submitted a representation on
08.12.2014. The services of the respondent were neither
regularized against the clear cut vacancy of driver nor were he
absorbed regularly at par with his counterparts as Peon-cum-
Farash. As his services were not regularized, he approached this
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Court in W.P.(C) No.4147 of 2015 and this Court by order dated
10.03.2015 disposed of the said writ petition directing the
appellants to consider the representation filed by the respondent.
In compliance of the same, the appellant no.2 passed the order
dated 17.07.2015 under Annexure-14 to the writ petition
rejecting the representation of the respondent dated 08.12.2014
stating, inter alia, that the demand for regularization/absorption
in Bank's services is devoid of any merit and accordingly, his
request was declined.
4. It is the case of the appellants that since the
absorption of thirty nine personal drivers in regular service of the
Bank was approved by the Board of Directors of UCO Bank as a
one-time measure on the basis of settlement arrived between
the parties during the pendency of Reference Case No.45 of
2003 pending before the CGIT, Kolkata which was filed by some
casual drivers and the respondent's service was not regularised
against a clear cut vacancy of drivers and he was never absorbed
regularly at par with his counterparts as Peon-cum-Farash, there
is no illegality or irregularity in the order of the appellant no.2 in
rejecting the representation of the respondent.
5. The learned Single Judge in the impugned judgment
after carefully considering the contentions raised by the learned
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counsel for the parties as well as facts pleaded on their behalf
held that in the order impugned, it is categorically admitted that
the personal drivers who were attached to different Branch
Managers/Divisional Managers and subordinate staff members of
the Bank have been absorbed as Peon-cum-Farash pursuant to
the award dated 17.07.2006 passed by the CGIT, Kolkata in
Reference Case No.45 of 2003 and if the petitioner was not
absorbed as driver for some reason or other, he could have been
absorbed as Peon-cum-Farash in compliance of such award but
the same was not done by the concerned authority even though
the juniors to the respondent were absorbed on regular basis in
the Bank. It was further held that when a clear cut vacancy was
available at Dhera Branch and the Bank issued an advertisement
on 17.02.1995 under Annexure-1 fixing eligibility criteria
mentioned therein, pursuant to which the respondent submitted
his application and having been selected, he got appointed as
driver and discharged his duty w.e.f. 16.07.1996, it cannot be
said that the judgment passed by the Hon'ble Supreme Court in
the case of Secretary, State of Karnataka and others -Vrs.-
Umadevi and others reported in (2006) 4 Supreme Court
Cases 1 is not applicable. Since there was availability of regular
post and the respondent was selected by following due
procedure and has been discharging his duty, he cannot be
7
denied regularization of service, taking into consideration the
length of service he had rendered in the post itself and when
there is still requirement for the Bank. When the services of
some personal drivers have been regularised by absorbing them
as Peon-cum-Farash in the bank service, pursuant to the award
dated 17.07.2006 passed by the CGIT, Kolkata, there was no
justifiable reason available with the Bank not to regularise the
services of the respondent at par with his counterparts whose
services have already been regularised. Accordingly, the order
dated 17.07.2015 passed by the appellant no.2 under Annexure-
14 was quashed.
6. Mr. Subrat Mishra, learned counsel appearing for the
appellants contended that irregular appointments can be
regularised and not illegal appointments as observed by the
Hon'ble Supreme Court in the case of Umadevi (supra). The
respondent's initial appointment was illegal due to advertisement
in the notice board and as no due procedure was followed in view
of the ban on appointment. The respondent was not qualified to
be regularised as per UCO Bank circular dated 19.10.1989. It is
contended that since the services of some personal drivers were
regularised as peons on the basis of CGIT award and the
respondent did not approach the Tribunal for similar relief, he
8
cannot claim parity with those persons whose services were
regularised. He placed reliance in the case of Umadevi (supra)
and also on the decision of the Hon'ble Supreme Court in the
case of Smt. Asha Devi -Vrs.- Dukhi Sao reported in A.I.R.
1974 S.C. 2048 and contended that since the findings of the
learned Single Judge are perverse and the same is contrary to
the records, it should be set aside.
Mr. Surendra Nath Panda, learned counsel appearing
for the respondent on the other hand supported the impugned
judgment and contended that since the respondent was
discharging his duties as a personal driver of the Zonal Manager,
UCO Bank, Bhubaneswar w.e.f. 27.03.1989 and pursuant to
notification issued under Annexure-1 dated 17.02.1995, he
applied for the post and on being selected, he was engaged as
driver and discharging his duties and the competent authority of
the Head Office of the Bank authorised the Zonal Manager,
Bhubaneswar as per letter dated 01.07.1996, to engage the
respondent as casual driver on daily wage basis to drive the cash
van of Dhera Branch and accordingly, the Zonal Manager passed
the order and the respondent has served the Bank for more than
two decades and services of similarly situated persons have been
regularised since long and the posts are lying vacant and the
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Bank is utilizing the services of the respondent since long, there
is no illegality in the order of the learned Single Judge in
directing the appellants to regularise the services of the
respondent in the post of driver and also quashing the order
dated 17.07.2015 passed by the appellant no.2 under Annexure-
14. He relied upon the decisions of the Hon'ble Supreme Court in
the case of Amarkant Rai -Vrs.- State of Bihar reported in
2015 -II- Labour Law Journal 1 and Narendra Kumar
Tiwari -Vrs.- State of Jharkhand reported in 2018 -IV-
Labour Law Journal 331.
7. Let us first examine the power of a Division Bench
while entertaining a Letters Patent appeal against the judgment
of a Single Judge.
In the case of Smt. Asha Devi (supra), it is held
that the power of a Division Bench hearing a Letters Patent
appeal under Cl. 10 from the judgment of a Single Judge in first
appeal is not limited only to a question of law under section 100
Civil Procedure Code but it has the same power which the Single
Judge has as a first Appellate Court. The limitations on the power
of the Court imposed by Ss. 100 and 101 Code of Civil Procedure
cannot be made applicable to an Appellate Court hearing a
10
Letters Patent Appeal for the simple reason that a Single Judge
of the High Court is not a Court subordinate to the High Court.
This writ appeal has been nomenclatured as an
application under Article 4 of the Orissa High Court Order, 1948
read with clause 10 of the Letters Patent Act, 1992. Letters
Patent of the Patna High Court has been made applicable to this
Court by virtue of Orissa High Court Order, 1948. Letters Patent
Appeal is an intra Court Appeal where under the Letters Patent
Bench, sitting as a Court of Correction, corrects its own orders in
exercise of the same jurisdiction as vested in the Single Bench.
(Ref:- (1996) 3 SCC 52, Baddula Lakshmaiah -Vrs.- Shri
Anjaneya Swami Temple). The Division Bench in Letters
Patent Appeal should not disturb the finding of fact arrived at by
the learned Single Judge of the Court unless it is shown to be
based on no evidence, perverse, palpably unreasonable or
inconsistent with any particular position in law. This scope of
interference is within a narrow compass. Appellate jurisdiction
under Letters Patent is really a corrective jurisdiction and it is
used rarely only to correct errors, if any made.
In the case of B. Venkatamuni -Vrs.- C.J.
Ayodhya Ram Singh reported in (2006) 13 Supreme Court
Cases 449, it is held that in an intra-court appeal, the Division
11
Bench undoubtedly may be entitled to reappraise both questions
of fact and law, but entertainment of a letters patent appeal is
discretionary and normally the Division Bench would not, unless
there exist cogent reasons, differ from a finding of fact arrived at
by the Single Judge. Even a court of first appeal which is the
final court of appeal on fact may have to exercise some amount
of restraint. Similar view was taken in the case of Umabai
-Vrs.- Nilkanth Dhondiba Chavan reported in (2005) 6
Supreme Court Cases 243. In the case of Commissioner of
Income Tax -Vrs.- Karnataka Planters Coffee Curing Work
Private Limited reported in (2016) 9 Supreme Court Cases
538, it is held that the jurisdiction of the Division Bench in a writ
appeal is primarily one of adjudication of questions of law.
Findings of fact recorded concurrently by the authorities under
the Act and also in the first round of the writ proceedings by the
learned Single Judge are not to be lightly disturbed.
A writ appeal is an appeal on principle where the
legality and validity of the judgment and/or order of the Single
Judge is tested and it can be set aside only when there is a
patent error on the face of the record or the judgment is against
established or settled principle of law. If two views are possible
and a view, which is reasonable and logical, has been adopted by
12
a Single Judge, the other view, howsoever appealing may be to
the Division Bench; it is the view adopted by the Single Judge,
which would, normally be allowed to prevail. If the discretion has
been exercised by the Single Judge in good faith and after giving
due weight to relevant matters and without being swayed away
by irrelevant matters and if two views are possible on the
question, then also the Division Bench in writ appeal should not
interfere, even though it would have exercised its discretion in a
different manner, were the case come initially before it. The
exercise of discretion by the Single Judge should manifestly be
wrong which would then give scope of interference to the
Division Bench.
8. Coming to the facts of the case, it is not in dispute
that the respondent has rendered his service as personal driver
of the Zonal Manager, UCO bank, Bhubaneswar w.e.f.
27.03.1989. It is also not dispute that a notification for filling up
the post of Bank's driver at Dhera Branch was issued on
17.02.1995 in which applications were invited in the enclosed
proforma from personal drivers of Branch Managers/Divisional
Managers and subordinate staff members who possess the
requisite driving licence. The age, qualification and other
guidelines were given in the said notification and it was
13
circulated to all Branches/Offices in the Orissa Zone of the Bank.
The last date of receiving the applications was fixed to
04.03.1995. The respondent having satisfied the requirement of
eligibility criteria mentioned in the notification, submitted his
application for selection of driver and accordingly, after following
the due procedure of selection, the respondent was selected for
the post of driver. The Zonal Manager vide letter dated
20.03.1995 intimated the Head Office that they notified the
vacancy by inviting applications from the eligible persons being
working in the subordinate carder and since no other applications
except that of the respondent was received and he fulfilled the
eligibility criteria and was the senior most among the existing
personal drivers, his name was recommended. The restrictions
imposed as per circular dated 28.01.1991 was indicated in the
aforesaid letter dated 20.03.1995 and a statement containing
the biodata of the respondent was enclosed and request was
made to sanction the appointment of the driver for Dhera
Branch. Subsequently, another letter dated 23.02.1996 was
issued by the Zonal Manager to the Head Office making
reference to the earlier letter dated 20.03.1995 requesting to
authorise to engage the respondent as driver on daily wage
basis. The Head Office in its letter dated 01.07.1996 addressed
to the Zonal Manager passed order for engaging the respondent
14
as casual driver on daily wage basis to drive the cash van of
Dhera Branch at the rates applicable to the empanelled casual
workers and for payment of pro rata allowances payable to a
driver and accordingly, the Zonal Manager issued letter dated
10.07.1996 engaging the respondent as casual driver on daily
wage basis to drive the cash van of the Branch. It is not in
dispute that since the date of his initial appointment, the
respondent is discharging his duties on daily wage basis against
the substantive vacant post of driver and in the meantime
twenty three years have passed. It is also not dispute that
services of some personal drivers have been regularised in the
meantime those who are juniors to the respondent by absorbing
them as Peon-cum-Farash in the Bank service. The contention of
the learned counsel for the appellants that the respondent should
have approached the Tribunal to get the relief cannot be a
ground to deny such relief to him particularly when there is
availability of regular posts of driver and the petitioner was
selected for the post in pursuance to the advertisement for such
posts way back in 1995 and he is discharging his duties in the
said post and there is any blemish record against him.
Though it is contended by the learned counsel for the
appellants that the advertisement was illegal as it was issued in
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the notice board but there is no material in that respect rather
the notification relating to filling up the post of Bank's driver at
Dhera Branch seems to have communicated to all the
Branches/Offices in the Orissa Zone. It is not the case of the
appellants that there was no requirement for engaging a driver
at the relevant point of time, on the other hand the Head Office
being satisfied about such requirement authorised the Zonal
Manager in its letter dated 01.07.1996 to engage the respondent
as casual driver. Even though there was restriction imposed on
regular appointment but since there was necessity for such
appointment and after due notification and selection, the Head
Office authorised the Zonal Manager for the appointment of the
respondent as casual driver, it cannot be said that there is any
illegality in the initial appointment as contended by the learned
counsel for the appellants. Though the learned counsel for the
appellants contended that due procedure was not followed in the
appointment of the respondent but such type of submission is
vague inasmuch as it is not clarified as to which specific
procedure was not followed in the appointment more particularly
when the notification issued by the authorities for filling up the
post of driver not only indicated the age, qualification of the
applicant but also other guidelines. It is also the case of the
respondent that since he fulfilled all the eligibility criteria, taking
16
into account his past experience as a personal driver of the Zonal
Manager, he got selected and accordingly his name was
recommended for appointment which was accepted by the Head
Office.
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 and discharged his duty since July 1996 and
therefore, he cannot be denied regularization of his service.
In the case of Amarkant Rai (supra), the Hon'ble
Supreme Court held as follows:
17
"15. Considering the facts and circumstances
of the case that the Appellant has served the
University for more than 29 years on the post
of Night Guard and that he has served the
College on daily wages, in the interest of
justice, the authorities are directed to
regularize the services of the Appellant
retrospectively w.e.f. 03.01.2002 (the date on
which he rejoined the post as per direction of
Registrar)."
In the case of Narendra Kumar Tiwari (supra), the
Hon'ble Supreme Court held as follows:
"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.
12. The impugned judgment and order passed
by the High Court is set aside in view of our
conclusions. The State should take a decision
within four months from today on
regularization of the status of the Appellants."
9. The learned counsel for the appellants contended
that the respondent has not made specific prayer in the writ
petition for regularization of his services in the post of driver and
therefore, it was not proper on the part of the learned Single
18
Judge to grant him such relief. He placed reliance in the case of
National Board of Examination -Vrs.- G. Ananda
Ramamurti reported in (2006) 5 Supreme Court cases 515
wherein it is held that the High Court was not justified in
granting a relief not sought for by the respondents in the writ
petition.
In the writ petition, the prayer of the respondent
who was the petitioner in the said case is as follows:-
"Under the above stated facts, the petitioner
most respectfully prays that Your Lordship
may graciously be pleased to issue a Rule of
NISI calling upon the Opp. party Bank to
regularise him in the Bank forthwith giving the
benefit of past service for the purpose of
retirement benefits, at least from 2007, i.e.
the date of regularization of his juniors so that
he can live retirement period peacefully by
making use of the benefits at his dotage and
quashing Order dtd.17.07.2015 (Annexure-
14) and oblige.
And/or may pass such order/orders, as
this Hon'ble Court may deem fit and proper.
And for this act of your kindness the
petitioner as in duty bound ever pray."
The impugned order dated 17.07.2015 under
Annexure-14 which was challenged in the said writ petition
relates to consideration of the representation dated 08.12.2014
19
of the respondent, casual driver, Dhera Branch, Angul, Odisha
towards his regularization in bank services. In the entire body of
the writ petition, the respondent has indicated as to how he was
initially engaged as personal driver by the Zonal Manager and
how he applied for the post of driver as per the notification dated
17.02.1995 and how he got selected on account of fulfilling all
the eligibility criteria and accordingly appointed on the daily
wages basis by the Zonal Manager, Bhubaneswar on being
authorised by the competent authority of the Head office of
Bank, how he was discharging the duty of the driver since then
and how the juniors were regularised ignoring his case. The
respondent has specifically mentioned that he was continuing in
the permanent vacancy and therefore, his services be
regularised. In the prayer portion of the writ petition, since it is
mentioned 'And/or may pass order/orders, as this Hon'ble Court
may deem fit and proper', even though it is not specifically
mentioned in the prayer portion to direct the appellants to
regularise the services of the respondent in the post of driver but
in view of the settled principle of law that a writ Court has ample
power to modify reliefs to make that reliefs available which
would meet the ends of justice (Ref:- State of Orissa -Vrs.-
Janamohan Das, A.I.R. 1993 Orissa 180), the contentions
20
raised by the learned counsel for the appellants is not
acceptable.
10. In view of the foregoing discussions, we are of the
humble view that the view taken by the learned Single Judge is
reasonable and logical and there is no patent error on the face of
the impugned judgment or any perversity therein and therefore,
we are not inclined to interfere with the same.
Accordingly, the writ appeal stands dismissed.
.................................
S.K. Sahoo, J.
S. Panda, J. I agree.
................................ S. Panda, J.
Orissa High Court, Cuttack The 18th December 2019/Pravakar/Sisir/RKM/Sukanta