Orissa High Court
Biswanath Das vs State Of Odisha on 23 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: 29-Oct-2024 15:50:18
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 16479 of 2022
(Under Article 226 and 227 of the Constitution of India)
Biswanath Das .... Petitioner
-versus-
State of Odisha, represented through
its Principal Secretary, Excise
Department and Others .... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioner : Mr. Umakanta Sahoo, Advocate
For Opposite Parties : Mr. B.P. Tripathy, AGA
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
rd 23 October, 2024 B.P. Routray, J.
1. Heard Mr. U. Sahoo, learned counsel for the Petitioner and Mr. B.P. Tripathy, learned AGA for State - Opposite Parties.
2. The Petitioner claims his regularization in the post of driver in the office of Superintendent of Excise, Kendrapara under the authority of Opposite Party No.1. According to the Petitioner he was validly appointed in due process of selection on 16th October, 2001 against the sanctioned vacant post and is continuing in temporary contractual basis till date. He earlier approached the Tribunal in OAC No.1520 of 2017 WP(C) No.16479 of 2022 Page 1 of 9 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Oct-2024 15:50:18 and pursuant to the direction passed therein, the Government of Odisha considered his case for regularization. In the impugned order dated 20th June, 2022 (Annexure-18) his case for regularization was rejected mainly on the ground that the Finance Department did not approve the proposal of regularization of the Petitioner.
3. Mr. Sahoo, learned counsel for the Petitioner submits that the Petitioner being appointed under due process of law in a sanctioned vacant post and continued therein for last 23 years, it is unfortunate on the part of the authority to refuse his regularization. Mr. Sahoo in order to substantiate the prayer for regularization of the Petitioner takes support from the decisions of the Hon'ble Supreme Court in 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.
4. Mr. Tripathy, learned AGA on the other hand submits that the Petitioner was never appointed in due process of selection and therefore his claim for regularization is without any merit. He further submits that continuation of the Petitioner for more than 23 years cannot confer any right on the Petitioner for his regularization in the post. WP(C) No.16479 of 2022 Page 2 of 9 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Oct-2024 15:50:18
5. In course of hearing the availability of sanctioned vacant post at the time of appointment of the Petitioner as a driver under Opposite Party No.4 is never disputed. So far as the appointment of the Petitioner in due process of law is concerned, though it is averred by the Petitioner that he has applied for the post and faced the interview to be selected as such, but no such document could be placed in support of his contention. This part of the averment made in the writ petition has been denied by the Opposite parties in their counter and according to the Opposite Parties the Petitioner was not appointed under due process of selection. But it remains undisputed that the Petitioner was given appointment in a sanctioned vacant post and he still continues on temporary contractual basis. It is also not disputed that the Petitioner has the qualification to be appointed to the post of driver and on the date of his appointment he had the required qualification for such post.
6. The cases of Umadevi, M.L. Kesari and Nihal Singh (supra) as stated above have been taken note of in the case of Amarkant Rai v. State of Bihar and Others, (2015) 8 SCC 265. In the said case the Supreme Court have observed as follows:-
"11. As noticed earlier, the case of the appellant was referred to a three-member Committee and the three-member WP(C) No.16479 of 2022 Page 3 of 9 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Oct-2024 15:50:18 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. 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 WP(C) No.16479 of 2022 Page 4 of 9 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Oct-2024 15:50:18 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 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:WP(C) No.16479 of 2022 Page 5 of 9 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Oct-2024 15:50:18
(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 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.WP(C) No.16479 of 2022 Page 6 of 9 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Oct-2024 15:50:18
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 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 WP(C) No.16479 of 2022 Page 7 of 9 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Oct-2024 15:50:18 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, the Petitioner has served in the office of Superintendent of Excise for last 23 years continuously though contractually on temporary basis. When the post is sanctioned and lying vacant on the date of appointment of the Petitioner and he was allowed to continue for last 23 years uninterruptedly, the question of his initial appointment as irregular, can be ignored for he having the requisite qualification to hold the post. It is though not disputed in the counter affidavit that that no interview was held but the question raised was with regard to making any open advertisement. Thus applying the principles afore-cited, the claim of the Petitioner for regularization cannot be avoided, particularly when he is serving to the authority for last 23 years.
8. So, in the circumstances stated above and the principles settled in different decisions of the Hon'ble Supreme Court, the reasoning given by the authority in the impugned order to refuse the prayer for regularization of the Petitioner for want of approval of Finance Department is unsustainable. It is reiterated here that when the post is vacant and sanctioned such reason assigned by the authority to refuse the prayer for regularization of the Petitioner on the ground of absence of approval WP(C) No.16479 of 2022 Page 8 of 9 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Oct-2024 15:50:18 from Finance Department is none-est in the eye of law. Accordingly the impugned order is liable to be set aside.
9. In the result the impugned order under Annexure-8 is set aside and the Opposite Parties are directed to regularize the services of the Petitioner in the vacant post of driver in the office of Opposite Party No.5 within a period of two months from the date of receipt of certified copy of this order and extend all consequential benefits in his favour from the date of regularization of his service.
10. The writ petition is disposed of as allowed.
(B.P. Routray) Judge M.K. Panda, P.A. WP(C) No.16479 of 2022 Page 9 of 9