Orissa High Court
Basanta Kumar Barik vs State Of Odisha And Others .... Opposite ... on 26 November, 2021
Author: A.K. Mohapatra
Bench: A. K.Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) (O.A.) No.616 OF 2017
(An application under Articles 226 and 227 of the Constitution of
India)
Basanta Kumar Barik .... Petitioner
-versus-
State of Odisha and Others .... Opposite Parties
Appeared in this case:
For Petitioner : Mr. S.C. Acharya,
Mr. A. Mohanty,
Mr. A.P. Dhirsamanta
and Mr. C.R. Dash
For Opposite Parties : Mr. N.K.Praharaj,
Standing Counsel for State-
Opp. Party Nos.1 and 2.
CORAM:
JUSTICE A. K.MOHAPATRA
DATE OF HEARING : 12.11.2021 | DATE OF JUDGMENT: 26.11.2021
A.K. Mohapatra, J.
1. The facts narrated in the present writ petition depicts the misery and exploitation of a person by his employer over a period of 25 years. The Petitioner has been engaged by Sailabala Women's College, Cuttack on adhoc basis against a class VI post of the college for a meager salary. Despite assurances given by WPC (OA) No.616 of 2017 Page 1 of 31 // 2 // the College Authorities, his services have neither been regularized nor has he been absorbed against an existing vacancy in any of the Class VI posts stated to have been lying vacant in the College. The conduct of the college Authorities is not only against all canons of law, the same is against morality and humanitarian values. Moreover, the College Authorities have engaged in a practice which has been clearly deprecated by the Hon'ble Supreme Court of India in Secretary, State of Karnataka Vs. Uma Devi; reported in (2006) 4 SCC 1 as well as by this Hon'ble Court in a catena of judgments.
2. Initially the Petitioner moved an application bearing O.A. No.616 of 2017 before the Orissa Administrative Tribunal, Principal Bench, Bhubaneswar for regularization of his services in any suitable Class IV post at Sailabala Women's College, Cuttack considering his long service of 21 years. The learned Tribunal vide order dtd.27.04.2017 admitted the O.A. and further directed that the pendency of the O.A. shall not be a bar for the Respondents to consider the grievance of the Applicant with regard to regularization of his services.
WPC (OA) No.616 of 2017 Page 2 of 31
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3. While the matter stood thus, the Orissa Administrative Tribunal was abolished. In the year 2019, the Applicant Petitioner filed a writ petition before this Hon'ble Court bearing W.P.(C) No.25528/2019 for transfer of his case records to this Hon'ble Court. Finally vide order dtd.10.01.2020, the case records of the O.A. No.616/2017 were transferred to this Hon'ble Court and were renumbered as W.P.(C)(O.A.) No.616/2017.
4. By way of this writ petition, Petitioner has sought for a direction to the Opposite Parties to regularize the services of the Petitioner in any suitable Class-IV post at Sailabala Women's College, Cuttack, considering his long and continuous service in the said Institution.
5. Heard submission of Mr. S.C. Acharya, learned counsel for Petitioner and Mr. N.K. Praharaj, learned Standing Counsel for State-Opposite Party Nos.1 and 2.
6. The case of the Petitioner, in a nutshell, is that since he is having requisite qualifications, he was appointed for the post of 'Gardener' on contractual basis at Sailabala Women's College, Cuttack on 1st August, 1996. Subsequently, he was directed by the WPC (OA) No.616 of 2017 Page 3 of 31 // 4 // College Authority to perform his duties as a watchman at the main gate of the college vide Order No.1947, dated 18th December, 2007. Further vide Order No.286 dtd.8.02.2010, the Petitioner was directed by the Opposite Party No.3 to perform his duty as 'Watchman' at the main gate of the College. Further, vide Office Order No.286, dated 8th February, 2010, Opposite Party No.3 allotted the Petitioner to work as 'Night Watchman' on Sundays in place of another regular employee of the College. Again, vide Order No.323, dated 13th February, 2010 while posting the Petitioner to work as 'Night Watchman' at the main gate of Arts Block, Opposite Party No.3 while observing that his duties found to be satisfactory, assigned him to work at the college main gate and public examination during the summer vacation in the year 2010. Satisfied with his work, the Authorities have also issued certificate of bonafideness. While this was so, the Opposite Party No.3 vide letter bearing Memo No.1217 dated 6th July, 2010 sought for clarification from Opposite Party Nos.1 and 2 for absorption of the Petitioner in regular establishment of Opposite Party No.3's institution, copy of the said letter is filed along with the writ petition as Annexure-4. Further apart from his regular WPC (OA) No.616 of 2017 Page 4 of 31 // 5 // work, the Petitioner was also assigned duties such as seat arrangements for interviews, e-admissions, annual athletic meet etc. The Petitioner was also asked to work as a gardener vide order No.2787 dtd.28.12.2011 w.e.f. 1.01.2012 and vide order No.1987 dtd.6.08.2013, he was assigned the additional duty as night watchman and finally vide order No.1169 dtd.6.04.2017, the Petitioner has been directed to work as gardener remaining in charge of all gardens in the Administrative Block and Old Hostel Garden. On a careful examination of the pleadings of the Petitioner, it appears that the Petitioner since the date of his initial appointment is being engaged by the college authority continuously till date.
7. Mr. Acharya, learned counsel appearing on behalf of the Petitioner submits that although Petitioner has been working regularly in the Opposite Party No.3's institution since last 25 years continuously, the college authorities as well as the government is not considering his case for regularization/ absorption in service against any of the sanctioned vacant Class IV post lying vacant in the college. Instead of regularizing the services of the Petitioner, the College Authorities are utilizing the WPC (OA) No.616 of 2017 Page 5 of 31 // 6 // services of the Petitioner for different purposes continuously and mercilessly for almost over two and half decades for a paltry sum as remuneration for his valuable services rendered to the College.
8. Mr. Acharya further submitted that a large number of regular posts in the establishment pertaining to class-III and IV employees are lying vacant in the Opposite Party No.3's institution. Mr. Acharya further submitted that Petitioner being a poor man, the Petitioner has no other alternative than to continue working at Opposite Party No.3's institution with a very meager monthly remuneration.
9. Learned counsel for the Petitioner referring to the judgment of the Hon'ble Supreme Court reported in the case of Secretary, State of Karnataka and others Vrs. Umadevi and others : reported in AIR 2006 SC 1806 and in the case of State of Karnataka Vrs. M.L. Kesari & Ors.: reported in AIR 2010 SC 2587 submits that since the Petitioner has been working for more than 10 years as a temporary employee against various regular posts, lying vacant under the Opposite Party No.3's institution, Opposite Party No.3-authority should have considered his case for regularization/absorption in service.
WPC (OA) No.616 of 2017 Page 6 of 31
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10. The main contesting Opp. Party i.e. the Opposite Party No.3 has filed a counter affidavit in this case. In the said counter affidavit, the factum of Petitioner's engagement by Opposite Party No.3 against different vacant posts has not been denied or disputed by the said Opposite Party No.3. In the counter affidavit filed by the Opp. Party No.3 it has been stated by the Opp. Party No.3 that the Petitioner passed Class IX and that he was engaged by the then Principal of the College as a gardener on 1st August, 1996. It has also been stated by the Opp. Party No.3 that the Petitioner was being engaged for different works of the College at different points in time. The Opp. Party No.3 has further stated that no proposal for regularization of services of daily wage workers has been sent to the higher authorities. The Opp. Party No.3 has further stated that the Petitioner's service was on contractual basis (89 days basis) and the same was being renewed from time to time. It has been specifically stated by the Opp. Party No.3 in his counter affidavit that a number posts remaining vacant is a long standing problem of their institution (Shailabala Women's College, Cuttack) and the same is evident across all categories of posts However, they have specifically stated in their WPC (OA) No.616 of 2017 Page 7 of 31 // 8 // counter affidavit that Petitioner is not a regular recruitee and he has not been selected for any post by any recruitment process or selection hence his case for regularization /absorption cannot be considered in view of the judgment in the case of State of Odisha Vrs. Mamata Mohanty: reported in 2011 (2) SCALE 377.
11. To defeat the claim of the Petitioner for regularization of his services, the Opp. Party No.3 in his counter affidavit has relied upon the judgment of the Hon'ble Supreme Court of India in the matter of State of Odisha Vrs. Mamata Mohanty : reported in 2011(2) SCALE 377. The subject matter involved in the said judgment is completely different from the facts of the present case. The Hon'ble Supreme Court of India in the aforesaid case was dealing with cases of the teaching staffs and the Rule involved was "The Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974. However, in the present case the institution involved is a Government College under the Odisha Government. Therefore, the ratio laid down in the said judgment is not applicable to the facts of case at hand. WPC (OA) No.616 of 2017 Page 8 of 31
// 9 //
12. After going through the pleadings and the submissions made by the respective parties, I am of the firm view that it is no more open to the Opposite Party to take the plea of irregular recruitment/not selected through a valid recruitment process, as such a stand at the instance of the Opposite Parties would amount to allowing Opposite Parties to take advantage of their own wrong. Having utilized the service of the Petitioner for almost last 25 years regularly, it is no more open to the Opposite Parties to take a stand as has been taken in the counter affidavit filed. The law laid down by the Hon'ble Apex Court in Umadevi (supra) is a clear guideline to be followed in these types of matter. It is submitted by learned counsel for the Petitioner that Petitioner has submitted several representations to the authorities requesting them to consider his case for regularization/absorption, such representations have been annexed to the writ petition as Annexure-8 series.
13. In the aforesaid facts and circumstances, now let us examine the legal position as it stands till today. The landmark judgment of the Hon'ble Supreme Court of India in the case of Secretary, State of Karnatak Vrs. Uma Devi (supra) does not WPC (OA) No.616 of 2017 Page 9 of 31 // 10 // preclude the claims of employees who seek regularization after the exercise has been undertaken with respect to some employees, provided that the said employees have completed the years of service as mandated by Uma Devi. The ruling casts an obligation on the State and its instrumentalities to grant a fair opportunity of regularization to all such employees which are entitled according to the mandate under Uma Devi and ensure that the benefit is not conferred on a limited few or a selected few as per the sweet will and whims of the executives or bureaucracy. The subsequent regularization of employees who have completed the requisite period of service is to be considered as a continuation of the one- time exercise. The relevant paragraph of the judgment in Uma Devi (supra) has been extracted here in below;
"53. ...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 sub judice, need not be reopened based on this WPC (OA) No.616 of 2017 Page 10 of 31 // 11 // judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
14. The directions issued in Uma Devi have been considered by subsequent Benches of the Hon'ble Supreme Court of India in State of Karnataka Vrs. M.L. Kesari : reported in (2010) 9 SCC 247, a two-judge Bench of the Hon'ble Apex Court held that the "one-time measure" prescribed in Uma Devi must be considered as concluded only when all employees who were entitled for regularization under Uma Devi, had been considered. Justice R. V. Raveendran, who wrote the opinion of the Court, held:
"9. The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.
10. At the end of six months from the date of decision in Umadevi, cases of several daily-wage/ad WPC (OA) No.616 of 2017 Page 11 of 31 // 12 // hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularization process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi, will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six- month period mentioned in para 53 of Umadevi has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi, are so considered.
11. The object behind the said direction in para 53 of Umadevi is two-fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ adhoc/ casual basis for long periods and then periodically regularise them on the ground that WPC (OA) No.616 of 2017 Page 12 of 31 // 13 // they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi as a one-time measure."
15. The ground reality after Uma Devi judgment has been correctly assessed in paragraph 11 of the judgment of the Hon'ble Supreme Court of India in State of Karnataka Vrs. M.L. Kesari : reported in (2010) 9 SCC 247. It has been specifically observed that the State and its instrumentalities, despite the direction of the Hon'ble Supreme Court of India, have not completed the one time regularization of daily wage/ adhoc / casual employees. The process of regularization of such employees should have been concluded by the State within a period of 6 months from date of judgment in Uma Devi's case. However, the case at hand is a glaring example as to how the State machinery has failed to consider the case of the Petitioner WPC (OA) No.616 of 2017 Page 13 of 31 // 14 // and similarly situated persons. The State and its instrumentalities have failed in their duty to carry out the mandate of the Hon'ble Supreme Court of India in para 53 of the Uma Devi's judgment.
16. The Petitioner who was initially appointed by the Opp. Party No.3 college authority in the year 1996, had almost completed 10 years of continuous service in the Opp. Party No.3 college. The Petitioner is otherwise eligible to be appointed in the vacant posts of the college.
17. The Hon'ble Supreme Court of India in matter of Nihal Singh and Ors. Vrs. State of Punjab and Ors.: reported in (2013) 14 SCC 65 has taken note of the fact as to how the State and its instrumentalities are subjecting the daily wagers / casual workers to exploitation. It has been specifically observed that the judgment in Uma Devi's (Supra) case doesn't give the State and its instrumentality a licence to indulge in exploitation. The relevant portion of the judgment has been quoted here in below;
"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 WPC (OA) No.616 of 2017 Page 14 of 31 // 15 // 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 at par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is - the various banks which avail the services of these Appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks. We are of the opinion that neither the Government of Punjab nor these public sector banks can continue such a practice consistent with their obligation to function in accordance with the Constitution. Umadevi's judgment cannot become a licence for exploitation by the State and its instrumentalities.
37. For all the above mentioned reasons, we are of the opinion that the Appellants are entitled to be absorbed in the services of the State. The appeals are accordingly allowed. The judgments under appeal are set aside."
18. In yet another case of the Hon'ble Supreme Court of India viz. Malathi Das & Ors Vrs. State & ors.: reported in (2014) 13 SCC 249, has observed as follows;
"8. It is not in dispute that the original batch of employees who had filed writ petition Nos. 33541- WPC (OA) No.616 of 2017 Page 15 of 31 // 16 // 571/1998 on the basis of which the writ petitions filed by the Respondents herein (W.P. Nos. 39117- 176/1999) were allowed by the order dated 15.12.1999 have been regularized. It is also not in dispute that out of the 445 employees who had filed writ petition Nos. 39117-176/1999, by separate government orders, the service of 161, 64 and 55 employees have been regularized in three batches. The records placed before the Court would indicate that 7 other persons have been regularized during the pendency of the present appeal. In a situation where a Scheme had been framed on 29.12.2005 to give effect to the order of the High Court dated 15.12.1999 passed in the writ petitions filed by the Respondents herein and many of the similarly situated persons have been regularized pursuant thereto the action of the Appellants in not granting regularization to the present Respondents cannot appear to be sound or justified. The fact that the regularization of 55 employees, similarly situated to the present Respondents, was made on 18.04.2006 i.e. after the decision of this Court in Umadevi (supra) is also not in serious dispute though Shri Bhat, learned senior Counsel for the Appellants, has tried to contend that the said regularizations were made prior to the decision in Umadevi (supra). The date of the order of regularization of the 55 persons i.e. 18.4.2006 will leave no doubt or ambiguity in the matter. In the aforesaid undisputed facts it is wholly unnecessary for us to consider as to whether the cases of persons who were awaiting regularization on the date of the decision in Umadevi (supra) is required to be dealt with in accordance with the conditions stipulated in para 53 of Umadevi (supra) inasmuch as the claims of the Respondent employees can well be decided on principles of parity. Similarly placed employees having been regularized by the State and in case of some of them such regularization being after the decision in Umadevi (supra) we are of the view that WPC (OA) No.616 of 2017 Page 16 of 31 // 17 // the stand taken by the Appellants in refusing regularization to the Respondents cannot be countenanced. However, as the said stand of the Appellants stem from their perception and understanding of the decision in Umadevi (supra) we do not hold them liable for contempt but make it clear that the Appellants and all the other competent authorities of the State will now be obliged and duty bound to regularize the services of the Respondents (74 in number) which will now be done forthwith and in any case within a period of two months from the date of receipt of this order."
19. In Prem Ram Vrs. Managing Director, Uttarakhand Pey Jal and Nirman Nigam and Ors.: reported in (2015) 11 SCC 255 it has been held;
"9. If that be so, there is no denying the fact that the persons who were junior to the Appellant, having been engaged much later than him, steal a march over him in terms of regularization in service while the Appellant remained embroiled in litigation over what was eventually found to be an illegal termination of his service. It is true that the Appellant has already superannuated. That does not, however, make any difference. What is important is that the Appellant had been appointed as early as in the year 1988 and had by the time the decision of this Court in Umadevi's (3) case (supra) pronounced, already completed more than 10 years service. Government has formulated rules for regularization of such daily-wagers, no matter the same are the subject matter of a challenge before the High Court. What is noteworthy is that neither the State Government nor the Jal Nigam has resented the idea of regularization of those who have served for over a decade. The rules providing for regularization are a sufficient enough indication of that fact. We do WPC (OA) No.616 of 2017 Page 17 of 31 // 18 // not, therefore, see any impediment in directing regularization of the service of the Appellant on the analogy of his juniors with effect from the date his juniors were regularized and for the release of all retiral benefits in his favour on that basis by treating him to be in continuous service till the date of his superannuation. We make it clear that this direction will not entitle the Appellant to claim any amount towards arrears of salary based on such regularization.
20. In Narendra Kumar Tiwari and Ors. Vrs. The State of Jharkhand and Ors. : reported in (2018) 8 SCC 238 it has been observed as follows;
"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.
9. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3), is to be taken into consideration then no irregularly appointed employee of the State WPC (OA) No.616 of 2017 Page 18 of 31 // 19 // of Jharkhand could ever be regularised since that State came into existence only on 15th November, 2000 and the cut-off date was fixed as 10th April, 2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.
10. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise - the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.
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."
21. In Sheo Narain Nagar and Ors. Vrs. State of Uttar Pradesh and Ors. : reported in (2018) 13 SCC 432, the Hon'ble Supreme Court has held in paras 9 and 10 as follows;
"9. Coming to the facts of the instant case, there was a direction issued way back in the year 1999, to consider the regularization of the Appellants. However, regularization was not done. The WPC (OA) No.616 of 2017 Page 19 of 31 // 20 // Respondents chose to give minimum of the pay scale, which was available to the regular employees, way back in the year 2000 and by passing an order, the Appellants were also conferred temporary status in the year 2006, with retrospective effect on 2.10.2002. As the Respondents have themselves chosen to confer a temporary status to the employees, as such there was requirement at work and posts were also available at the particular point of time when order was passed. Thus, the submission raised by learned Counsel for the Respondent that posts were not available, is belied by their own action. Obviously, the order was passed considering the long period of services rendered by the Appellants, which were taken on exploitative terms.
10. The High Court dismissed the writ application relying on the decision in Uma Devi (supra). But the Appellants were employed basically in the year 1993; they had rendered service for three years, when they were offered the service on contract basis; it was not the case of back door entry; and there were no Rules in place for offering such kind of appointment. Thus, the appointment could not be said to be illegal and in contravention of Rules, as there were no such Rules available at the relevant point of time, when their temporary status was conferred w.e.f. 2.10.2002. The Appellants were required to be appointed on regular basis as a one- time measure, as laid down in paragraph 53 of Uma Devi (supra). Since the Appellants had completed 10 years of service and temporary status had been given by the Respondents with retrospective effect in the 2.10.2002, we direct that the services of the Appellants be regularized from the said date i.e. 2.10.2002, consequential benefits and the arrears of pay also to be paid to the Appellants within a period of three months from today."WPC (OA) No.616 of 2017 Page 20 of 31
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22. The Hon'ble Supreme Court of India in Amarendra Kumar Mohapatra and Ors. Vrs. State of Orissa and Ors.: reported in AIR 2014 SC 1716 has analyzed the law on regularization of services as follows;
"41. As to what would constitute an irregular appointment is no longer res integra. The decision of this Court in State of Karnataka v. M.L. Kesari and Ors. (2010) 9 SCC 247, has examined that question and explained the principle regarding regularisation as enunciated in Umadevi's case (supra). The decision in that case summed up the following three essentials for regularisation (1) the employees worked for ten years or more, (2) that they have so worked in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal and (3) they should have possessed the minimum qualification stipulated for the appointment. Subject to these three requirements being satisfied, even if the appointment process did not involve open competitive selection, the appointment would be treated irregular and not illegal and thereby qualify for regularisation. Para 7 in this regard is apposite and may be extracted at this stage:
7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi, 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 WPC (OA) No.616 of 2017 Page 21 of 31 // 22 // 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."
23. In Rajnish Kumar Mishra and Ors. Vrs. State of Uttar Pradesh and Ors.: reported in (2019) 17 SCC 648 the Hon'ble Supreme Court of India while examining the facts in the context of regularization has held, which is quoted here in below;
"17. Another aspect that needs consideration is that during the pendency of the petitions, the Rules with regard to regularization were amended which provided cut-off date of 31.12.2001. Undisputedly, all the Appellants were appointed prior to 31.12.2001. The change in position of law ought to have been taken into consideration by the High Court. It is not in dispute that all the Appellants were appointed prior to 31.12.2001. Undisputedly, the Appellants were continued in services from 01.08.2006 on account of interim orders passed in writ petitions. However, the selection process in which the Appellants were permitted to participate, could not see the light of the day, as it was subsequently cancelled in 2008. As such, as a matter of fact, when the Appellants' case was considered WPC (OA) No.616 of 2017 Page 22 of 31 // 23 // for regularization by a Committee under the chairmanship of Additional District Judge, the Appellants had, in fact, put in service almost for a period of 12 years.
18. As such, apart from the circular issued by the Registrar General of the High Court dated 05.11.2009, the Appellants' cases were also required to be taken into consideration in view of the exception carved out in the case of Umadevi (supra). We find that the Committee under the chairmanship of the Additional District Judge had rightly submitted its report dated 12.07.2012 and the then District Judge had rightly passed the order of regularization on 09.11.2012 granting regularization from 01.06.2012. We find, that while considering the representation of some of the employees for promotion, the successor in the office of the District Judge could not have annulled the order of the regularization of the Appellants which was done after following the proper procedure. The least that was required to be done was to follow the principles of natural justice by giving an opportunity of being heard to the Appellants. We find, that the three orders passed by the District Judge dated 16.08.2014 also suffer from violation of the principles of natural justice.
19. In any case, we find that in view of the exception carved out in the case of Umadevi (supra) providing for one-time regularization of employees who have completed 10 years or above; the parity of similarly circumstanced employees who have been granted benefit in the case of Sheo Narain Nagar (supra) and the Rules amended in 2016 which provide a cut-off date of 31.12.2001, the Appellants are also entitled for regularization of their services."WPC (OA) No.616 of 2017 Page 23 of 31
// 24 //
24. In Union of India (UOI) and Ors. Vrs. Central Administrative Tribunal and Ors. : reported in (2019) 4 SCC 290, the Hon'ble Supreme Court of India while speaking through Hon'ble Justice D.Y. Chandrachud has analyzed the law on regularization and has observed in paras-25 and 26 as follows;
"25. The Court noted in the above judgment that if a strict and literal interpretation was given to the decision in Uma Devi, no employee from the State of Jharkhand appointed on an irregular basis could ever be regularized as the State was formed on 15 November 2000 and the cut-off date had been fixed as 10 April 2006. The intent of the Court was to grant similarly-placed employees who had put the requisite years of service as mandated by Uma Devi, the benefit of regularization. The Court thus held that the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015 ("the Regularisation Rules") must be interpreted in a pragmatic manner and employees of the State who had completed 10 years of service on the date of promulgation of the rules, ought to be regularized. In doing so, the Court ensured that employees in the State of Jharkhand who had completed the same years of service as employees from other States, are granted parity in terms of regularization. The spirit of non-discrimination and equity runs through the decisions in Uma Devi, ML Kesari and Narendra Kumar Tiwari.
26. In this background, the issue which now arises before this Court is in regard to the effective direction which would govern the present case. The WPC (OA) No.616 of 2017 Page 24 of 31 // 25 // High Court has directed the Union of India to absorb the casual workmen, if it is not possible at the Institute in question, then in any other establishment. The latter part of the direction, as we have already noted, cannot be sustained. Equally, in our opinion, the authorities cannot be heard to throw their hands in despair by submitting that there are no vacancies and that it had already regularized such of the persons in the seniority list, who reported for work. The Tribunal has entered a finding of fact that this defence is clearly not borne out of the record. Accordingly, we are of the view that having decided to implement the decision of the Tribunal, which was affirmed by the High Court, the Union of India must follow a rational principle and abide strictly by the seniority list in proceeding to regularize the workmen concerned. Accordingly, we direct that the case for regularization shall be considered strictly in accordance with the seniority list in pursuance of the directions which were issued by the Tribunal and confirmed by the High Court and such of the persons, who are available for regularization on the basis of vacancies existing at present, shall be considered in accordance with law. The Tribunal has denied back-wages but has ordered a notional fixation of pay and allowances. While affirming that direction, we also direct that persons who have crossed the age of superannuation will be entitled to the computation and payment of their retiral dues on that basis. This exercise shall be carried out within a period of three months from the receipt of a copy of the judgment. If it becomes necessary to grant age relaxation to the concerned workmen, the Appellants shall do so."
25. The latest judgment on regularization of daily wagers like the Petitioner by the Hon'ble Supreme Court of India has been delivered by L. Nageswar Rao J. in Vice Chancellor, Anand WPC (OA) No.616 of 2017 Page 25 of 31 // 26 // Agriculture University Vrs. Kanubhai Nanubhai Vaghela and Ors.: reported in AIR 2021 SC 3529, where in the regularization of services of the daily wagers of the Anand Agricultural University has been allowed with the following observation;
"11. We have heard Mr. P.S. Patwalia, learned Senior Counsel for the university and Mr. Nachiketa Joshi, learned Counsel for the Respondents. The main contention of the university is that after the judgment of this Court in Secretary, State of Karnataka and Ors. v. Umadevi and Ors. MANU/ SC/1918/2006: (2006) 4 SCC 1, the Respondents are not entitled for regularization as there are no sanctioned posts available. Another submission made on behalf of the Appellant is that the judgment of this Court dated 18.01.2001 in Gujarat Agricultural University (supra) does not survive after the judgment of this Court in Uma Devi. It is no doubt true that in Umadevi's case, it has been held that regularization as a one-time measure can only be in respect of those who were irregularly appointed and have worked for 10 years or more in duly sanctioned posts. However, in the instant case the Respondents are covered by the judgment of this Court in Gujarat Agricultural University (supra). This Court approved the proposed scheme of the State of Gujarat and directed regularization of all those daily wagers who were eligible in accordance with the scheme phase-wise. The right to be regularized in accordance with the scheme continues till all the eligible daily-wagers are absorbed. Creation of additional posts for absorption was staggered by this Court permitting the Appellant and the State of Gujarat to implement the scheme phase- wise. We are not impressed with the submissions made on behalf of the university that the judgment of this Court in Umadevi's case overruled the WPC (OA) No.616 of 2017 Page 26 of 31 // 27 // judgment in Gujarat Agricultural University (supra). The judgment of this Court in Gujarat Agricultural University (supra) inter parts has become final and is binding on the university. Even according to Para 54 of Uma Devi's case, any judgment which is contrary to the principles settled in Umadevi shall be denuded of status as precedent. This observation at Para 54 in Umadevi's case does not absolve the university of its duty to comply with the directions of this Court in Gujarat Agricultural University (supra)."
26. Let us now examine some of the judgments delivered by this Hon'ble Court. During post 2006 period (i.e. post Uma Devi's Case) all most all the judgments have followed the law laid down in Uma Devi's Case (Supra). The ratio laid down in Uma Devi's case has been followed by this Hon'ble Court while considering regularization of service of the adhoc/ temporary/ daily wage employees in R.K.Nayak Vrs OMC Ltd.: reported in 2017 (II) ILR Cuttack 912, in Ranjeet Kumar Das Vrs. State of Orissa:
reported in 2018 (I) ILR Cuttack 695 (DB), in Kalyani Pattnaik Vrs. Registrar, Utkal University & Ors.: reported in 2020 (I) ILR Cuttack 415, in Sunil Barik Vrs. State of Odisha; reported in 2021 (II) ILR Cuttack 469.
27. A Division Bench of this Hon'ble Court had the occasion to analyse and explain the terminology "irregular appointment" in WPC (OA) No.616 of 2017 Page 27 of 31 // 28 // Ranjeet Kumar Das Vrs. State of Orissa : reported in 2018(I) ILR Cuttack 695 (DB). In paragraph 9 of the aforesaid judgment, the Hon'ble Division Bench has taken note of the fact that allowing the persons to continue for a quite long period, even if with one day break in service, cannot be stated to be a reasonable one, rather, this is an unfair and unreasonable action of the authority concerned.
"9. Temporary or ad hoc or stop gap or casual basis or the like appointments are made for various reasons. An emergent situation might make it necessary to make such appointments. Since the adoption of the normal method of regular recruitment might involve considerable delay regulating in failure to tackle the emergency. Sometimes such appointments were to be made because although extra hands are required to meet the workload, there are no sanctioned posts against which any regular recruitment could be made. In fact in the case of ad hoc or casual appointees, the appointments, are in the majority of cases, not against sanctioned posts and the appointments are made because of the necessity of workload and the constraints of sanctioning such post (mainly on financial consideration) on permanent basis. Needless to say that filling up vacancies against sanctioned posts by regularisation is against the constitutional provisions of equality of opportunity in the matter of public employment violating Articles 14 and 16 of the Constitution by not making the offer of employment to the world at large and allowing all eligible candidates equality of opportunity to be considered on merits. If that be so, considering the emergent necessity of filling up of WPC (OA) No.616 of 2017 Page 28 of 31 // 29 // vacancies and allowing the petitioner to continue for a quite long period, even if with one day break in service, cannot be stated to be a reasonable one, rather, this is an unfair and unreasonable action of the authority concerned.
28. In the backdrop of the factual matrix as borne out from records placed before this Court and from the analysis of law laid down by the Hon'ble Supreme Court of India in Uma Devi's Case (Supra), which has been consistently followed by subsequent Supreme Court judgments as well as by this Hon'ble Court, it is crystal clear that the long uninterrupted services of the Petitioner should have been considered by the Opp. Party No.3 immediately after the Uma Devi's judgment and his services should have been regularized. The judgment in Uma Devi's case while deprecating the temporary / adhoc / illegal appointments by the State and its instrumentalities, have reminded the authorities of their constitutional obligations. Further, as an one time measure, direction has been given to the State Government and its instrumentalities to constitute a screening committee and to regularize the services of the persons who have been appointed irregularly and rendered more than 10 years of service uninterruptedly. The Petitioner's initial appointment was only WPC (OA) No.616 of 2017 Page 29 of 31 // 30 // irregular and not illegal as revealed from the records of the case. The State Govt. and the instrumentalities like the Opp. Party No.3 have failed to carry out the direction issued by the Hon'ble Supreme Court of India in Uma Devi's case as no such exercise as has been mandated have been carried out till date. Even after the said judgment, the exploitation of the Petitioner continued in the hands of the Opp. Party No.3. It is also clear from the record that by the time the judgment in Uma Devi's case was delivered, the Petitioner had completed almost 10 years of continuous service in Opp. Party No.3 College. Further it has been specifically stated in the Counter affidavit filed on behalf of the Opp. Party No.3 that sanctioned posts in Class IV are lying vacant in the college and due to want of approval by the Govt. the same are not being filled up.
29. In such view of the matter, the Opp. Parties are hereby directed to carry out the exercise as mandated in Uma Devi's case forth with and list of such temporary and adhoc employees working in the college be prepared and on the basis of their seniority and keeping in view the vacant posts available to be filled up, the Opp. Parties shall do well to regularize the service of WPC (OA) No.616 of 2017 Page 30 of 31 // 31 // the Petitioner within a period of three months from the date of communication of this judgment. Needless to say that all legitimate dues payable as per law be paid to the Petitioner within the aforesaid period.
30. Accordingly the writ petition filed by the Petitioner stands allowed. However, there shall be no order as to cost.
(A.K. Mohapatra) Judge U.K. Sahoo/PA-cum-Secretary.
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