Orissa High Court
Surendra Barik vs State Of Odisha & Others ...... ... on 1 June, 2023
Author: S.K. Sahoo
Bench: S. K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P. (C) No. 12484 of 2019
Applications under Articles 226 and 227 of the Constitution of
India.
-----------------------------
Surendra Barik ...... Petitioner
-versus-
State of Odisha & others ...... Opp.Parties
W.P. (C) No. 12485 of 2019
Sudhakar Barik ...... Petitioner
-versus-
State of Odisha & others ...... Opp.Parties
W.P. (C) No. 12486 of 2019
Sadananda Pradhan ...... Petitioner
-versus-
State of Odisha & others ...... Opp.Parties
W.P. (C) No. 12487 of 2019
Aurobinda Behera ...... Petitioner
-versus-
State of Odisha & others ...... Opp.Parties
W.P. (C) No. 12488 of 2019
Premraj Panda ...... Petitioner
-versus-
State of Odisha & others ...... Opp.Parties
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For petitioners: Mr. Budhadev Routray
(Senior Advocate)
For Opp. parties: Mr. Saswat Das
Addl. Govt. Advocate
Mr. Kousik Ananda Guru
Advocate
(for opp. parties nos.2 to 4)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S. K. SAHOO
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Date of Judgment: 01.06.2023
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S. K. SAHOO, J. The petitioners have filed these writ petitions
challenging the order dated 31.05.2019 under Annexure-12
passed by the Commissioner -cum- Secretary, Higher Education
Department, Government of Odisha in rejecting the claim for
regularization of their services in the posts of Junior Assistant in
Sambalpur University (hereafter, in short, 'University').
Since the issues involved in all the writ petitions are
identical, with the consent of parties, all the matters were heard
analogously and disposed of by this common judgment.
2. The facts of the case are stated in short as under:-
2.1. As per the Private Examination Rules, 2001
(hereafter '2001 Rules') of the University, the Programme
Coordinator of the Private Examination Cell (hereafter 'PEC') who
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is appointed by the Vice-Chancellor from among the
Professors/Readers of the University as per Rule 4.1.1 and is the
Head of PEC subject to the control of the Vice-Chancellor and has
control over all regular and part-time staff engaged for non-
confidential work and has got power as per Rule 5.2 to appoint
additional staff (part-time/daily wage) as and when required for
private examination work with the approval of the Vice-
Chancellor, considering the requirement and necessity in the
private examination work of the University, by office order dated
11.01.2002 under Annexure-2 series, with the due approval of
the Vice-Chancellor, engaged the petitioner Surendra Barik who
is having qualification of M.A., LLPM, PGDCA and belonged to
Scheduled Caste category and the petitioner Premraj Panda who
is having qualification of B.A. with PGDCA and belonged to
General category, in the PEC of the University both on daily wage
basis of Rs.58.50 paisa for a period of 179 days i.e. w.e.f.
11.01.2002 to 30.06.2002 and in the said engagement order, it
was mentioned that the authority of the University reserved the
right to discontinue their engagement as and when necessary
and that they would not claim such engagement for continuance
and/or regular assignment in future. The petitioners Surendra
Barik and Premraj Panda joined as Office Assistants on
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12.01.2002 in the PEC which was a non-sanctioned post and
their daily wage was enhanced to Rs.70/- per day w.e.f.
01.07.2002 each and subsequently enhanced to Rs.2,500/- per
month, Rs.3,000/- per month, Rs.4,000/- per month, Rs.5,000/-
per month, Rs.7,100/- per month and Rs.8,880/- per month
each w.e.f. 01.10.2003, 03.07.2007, 01.06.2009, 01.02.2013,
01.03.2014 and 01.09.2017 respectively and for payment of
wages, sanction orders were issued from time to time.
The petitioner Sudhakar Barik and the petitioner
Sadananda Pradhan who are having qualification of B.A. and
belonged to O.B.C. category were engaged in the PEC, each on a
daily wage basis of Rs.42.50 paisa for a period of 59 days i.e.
from 01.11.1999 to 31.12.1999 and sanction order was issued
on 11.02.2000 under Annexure-2 series for payment of their
wages for such period with the approval of the Vice-Chancellor in
the concerned files and they were later on allowed to work as
Office Assistants in the PEC which was a non-sanctioned post and
their daily wage was enhanced to Rs.58.50 per day w.e.f.
01.09.2001 each and subsequently enhanced to Rs.70/- per day
each, Rs.2,500/- per month, Rs.3,000/- per month, Rs.4,000/-
per month, Rs.5,000/- per month, Rs.7,000/- per month,
Rs.7,100/- per month and Rs.8,880/- per month each w.e.f.
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01.07.2002, 01.10.2003, 03.07.2007, 01.06.2009, 01.02.2013,
06.07.2013, 01.03.2014 and 01.09.2017 respectively and for
payment of wages, sanction orders were issued from time to
time.
The petitioner Aurobindo Behera who was having
qualification of B.A. and belonged to Scheduled Caste category
was engaged in the PEC on a daily wage basis of Rs.42.50 paisa
for a period of twenty one days i.e. from 10.08.2000 to
31.08.2000 and sanction order was issued for payment of his
wages for such period with the approval of the Vice-Chancellor in
the concerned files and he was later on allowed to work as Office
Assistant in the PEC which was a non-sanctioned post and his
daily wage was enhanced to Rs.58.50 per day w.e.f. 01.09.2001
and subsequently enhanced to Rs.70/- per day, Rs.2,500/- per
month, Rs.3,000/- per month, Rs.4,000/- per month, Rs.5,000/-
per month, Rs.7,000/- per month, Rs.7,100/- per month and
Rs.8,880/- per month w.e.f. 01.07.2002, 01.10.2003,
03.07.2007, 01.06.2009, 01.02.2013, 06.07.2013, 01.03.2014
and 01.09.2017 respectively and for payment of wages, sanction
orders were issued from time to time.
2.2. The Registrar of the University by letter dated
01.08.2014 under Annexure-6 requested the Government in the
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Department of Higher Education to regularize the services of
forty three nos. of candidates including the petitioners who were
engaged on contractual/daily wage/temporary basis. It is
needless to say that by that time, the petitioners were having
more than twelve years of experience in the post of Office
Assistant. While the petitioners were continuing as such, in
pursuance of the decision of the Syndicate of the University vide
resolution no.45 dated 16.07.2015, the posts held by the
petitioners as Office Assistant and Computer Assistants under
different units were re-designated as 'Junior Assistant' on
temporary basis by office order dated 16.07.2015 under
Annexure-8. The counter affidavit filed on behalf of the opposite
parties nos.2 to 4 indicates that the service of the petitioners
Surendra Barik, Sudhakar Barik, Sadananda Pradhan, Aurobinda
Behera and Premraj Panda was extended 46, 68, 68, 63 and 46
times respectively with break up to 16.07.2015.
2.3. The University by letter dated 26.11.2015 under
Annexure-9 requested the Special Secretary to the Hon'ble
Chancellor to accord necessary permission for regularization of
services of the petitioners along with others in order to enable
the University to cope up with the emerging situation and taking
into account the persistent demand of the employees'
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association. In the said letter, it is stated that considering the
engagement of the petitioners, length of service and satisfactory
performance, the Syndicate vide resolution no.18 dated
13.02.2014 has allowed payment of pay plus grade pay in favour
of the employees from the limited funds generated out of the
own sources.
2.4. Since no action was taken by the Government on the
recommendation made by the University, the petitioners
Surendra Barik, Sudhakar Barik, Sadananda Pradhan, Aurobinda
Behera and Premraj Panda moved this Court in writ petitions
bearing W.P.(C) No.23327 of 2015, W.P.(C) No.23596 of 2015,
W.P.(C) No.23597 of 2015, W.P.(C) No.23598 of 2015 and
W.P.(C) No.23599 of 2015 respectively ventilating their
grievances for regularization of their service and this Court by
order dated 07.01.2016 disposed of the writ petitions directing
the State Authority to consider the recommendation made by the
University and pass appropriate order by sanctioning the posts
and regularize the services of the petitioners taking into
consideration that they are continuing in service w.e.f. 2002,
1999, 1999, 2000 and 2002 respectively in accordance with law
as expeditiously as possible preferably within a period of four
months from the date of communication of the order.
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2.5. The Registrar of the University vide letter dated
18.08.2016 addressed a letter to the State Government in
Higher Education Department informing about the necessity of
manpower in managing day to day affair of the University
considering the increase in workload of the University due to
increase in the number of colleges and opening of new
departments/courses and to take steps for regularisation of the
services of the petitioners. A list of forty group C employees
engaged in the University up to 12.11.2013 including the names
of the petitioners in serial no.36, 34, 33, 35 and 37 respectively
was submitted with the letter dated 18.08.2016.
2.6. The Registrar of the University vide letter dated
22.10.2016 also intimated the State Government in Higher
Education Department after receipt of copy of the orders passed
by this Court in the writ petitions filed by the petitioners that the
Syndicate of the University vide resolution no.45 dated
16.05.2015 by considering the length of service of the
petitioners to be more than ten years and their educational
qualification as per the established rule, redesignated the
petitioners as 'Junior Assistant' on temporary basis against
vacant sanctioned strength of Junior Assistant of the University
Establishment.
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2.7. The State Government intimated the Registrar of the
University vide letter dated 11.04.2018 under Annexure-11 for
filling up of forty one nos. of vacant posts of Junior Assistant as
per the Orissa University Recruitment & Promotion of Non-
Teaching Employees Rules, 1992 (hereafter in short, 'OURP
Rules, 1992').
2.8. The University vide letter dated 25.07.2018
requested the State Government in the Higher Education
Department for according approval for regularization of thirty
two nos. of Junior Assistants by submitting a list including the
names of petitioners Surendra Barik, Sudhakar Barik, Sadananda
Pradhan, Aurobinda Behera and Premraj Panda in serial nos.28,
26, 25, 27 and 29 respectively who were working on temporary
basis with remuneration equal to pay plus grade pay of the
corresponding cadre, who were having requisite educational
qualification as per OURP Rules, 1992.
2.9. The Registrar of the University issued another letter
dated 08.09.2018 in reply to the letter no.24081/HE dated
24.08.2018 of the State Government in the Higher Education
Department reiterating for filling up thirty two posts of Junior
Assistants and giving detailed information in respect of the
petitioners Surendra Barik, Sudhakar Barik, Sadananda Pradhan,
10
Aurobinda Behera and Premraj Panda whose names find place in
serial nos. 28, 26, 25, 27 and 29 respectively and other Junior
Assistants who were working on temporary basis in the
University. It was indicated that the petitioners were appointed
with the approval of the Vice-Chancellor and the office orders
were also enclosed. However, it was indicated that the vacancies
have not been notified to the local Employment Exchange,
advertisement was not made for recruitment and no competitive
examination was held, but the petitioners were redesignated as
Junior Assistant vide Office Order No.6047/Estt-I, dated
16.07.2015.
2.9. By the impugned order dated 31.05.2019 under
Annexure-12, the State Government rejected the cases of the
petitioners on the ground that the petitioners had not worked for
more than ten years as on 10.04.2006 i.e. the date of passing of
the order of the Hon'ble Supreme Court in the case of State of
Karnataka -Vrs.- Umadevi reported in (2006) 4 Supreme
Court Cases 1 and the appointment was not made against any
sanctioned post. Even after the impugned order was passed,
communications were made to the petitioners by the Registrar of
the University on dated 24.09.2021 as per the order of the Vice-
Chancellor wherein submission of regularisation proposal of
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thirty two Junior Assistants working on temporary basis including
the names of the petitioners to the Government in Higher
Education Department were indicated.
3. No counter affidavit has been filed by the State
Government.
4. The Opposite parties nos.2 to 4 have filed counter
affidavit stating, inter alia, that the posts against which the
petitioners were appointed were non-sanctioned posts and prior
approval of the State Government had not been obtained by the
University for creating such posts. It is further stated that the
action of the University to engage the petitioners against such
non-sanctioned posts was in contravention of section 22 of
Odisha University Act, 1989 (hereafter '1989 Act'). It is also
stated that the Syndicate of the University vide resolution No. 45
dated 16.05.2015, re-designated the petitioners as 'Junior
Assistants' without prior approval of the State Government and
the appointment of the petitioners as Junior Assistants was made
in violation of the OURP Rules, 1992 by not following the
prescribed open competitive selection process. It is further
stated that in view of the ratio laid down by the Hon'ble Supreme
Court in the case of Umadevi (supra), the appointment of the
petitioners is illegal as because their appointments have not
12
been made against any sanctioned post and hence the services
of the petitioners cannot be regularized. It is further stated that
even if it is held that the appointments of the petitioners are not
illegal but irregular, then also the services of the petitioners
cannot be regularized as they had not worked for more than ten
years as on 10.04.2006 i.e. the date of judgment of the Hon'ble
Supreme Court in Umadevi (supra). It is further stated that as
per the notification of the University dated 08.05.2002 under
Annexure-1, it has been clearly mandated that the post of Office
Assistant is purely temporary and no way served as a right of
claim for permanent post and the services would be terminated
at any time without assigning any reason thereof. It is further
stated that the Syndicate in its meeting held on 16.05.2015
resolved that the employees working as Office Assistants and
Computer Assistants might be brought to the establishment fold
of the University as Junior Assistant (T) subject to fulfillment of
the following conditions and availability of sanctioned vacancies:-
(i) The employee should have completed not less
than ten years of service in the University funded
units only;
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(ii) They should have possessed minimum
qualification of Junior Assistant as prescribed in
OURP Rules, 1991;
(iii) Their original appointment should have been
approved by the Vice-Chancellor;
(iv) Prior to their re-designation as Junior Asst.
(Temporary) under Establishment fold, they will have
to furnish an affidavit in the prescribed format of the
University on a non-judicial stamp paper to the effect
that they will neither claim for any retrospective
financial and seniority benefit nor claim for
permanent absorption in the University.
It is admitted by the University that on fulfillment of
the above conditions by the petitioners along with others, they
were re-designated as Junior Assistant (T) and were brought to
the establishment fold of the University. It is further stated that
the Syndicate resolution No.45 dated 16.05.2015 has been
revoked in the meeting of the Syndicate held on 21.12.2021 and
the office order dated 16.07.2015 under Annexure-8 has been
withdrawn as per office Order dated 04.01.2022. It is also stated
that the petitioners have admitted that the posts held by them
are not sanctioned posts and though recommendation has been
14
made by the University, but the same has not been accepted by
the State Government.
It is stated by the University that as per section 22 of
the 1989 Act, the posts shall be created by the Hon'ble
Chancellor subject to specific allotment of funds for the purpose
in the budget of the University and shall be in accordance with
the yardstick formulated by the University with the approval of
the State Government and whenever posts are created beyond
the yardstick approved by the State Government, prior
concurrence of the State Government on the decision of the
Syndicate for regularization of the services of the petitioners
along with others in the University was necessary and unless or
until the Government had given concurrence, the University
would not be able to regularize any person.
5. Rejoinder affidavits have been filed by the petitioners
in their respective writ petitions wherein it is stated that though
the posts were admissible and justified and the University had
moved the State Government time and again in a series of
letters for sanction of such posts against which the petitioners
were working on account of increase of workload of the
University day by day due to increase in the number of colleges
and opening of new departments/hostels/courses to cope up with
15
the present needs and the fact that certain numbers of posts of
Junior Assistant have been sanctioned by the State Government
in the meantime, but all the same the opposite party no.1 while
passing the impugned order has not taken into consideration all
such facts and whimsically rejected the claim of the petitioners
solely on the ground that the posts were not sanctioned in which
the petitioners were working and therefore, the petitioners
cannot take the advantage of the judgment of Umadevi (supra).
It is further stated that the petitioners have been engaged by
the University and they are having requisite qualification and
experience and they are continuing against the posts and their
services have been utilized against Group C post in which they
have rendered more than twenty years of service to the
University. It is stated that there are catena of decisions in which
it has been held that if a ministerial staff in Group C post has
completed six years of service, his case should be considered for
regularisation against such post.
6. Mr. Budhadev Routray, learned Senior Advocate
appearing for the petitioners contended that the engagement of
the petitioners was made in accordance with 2001 Rules by a
competent authority like Programme Coordinator which was also
approved by the Vice-Chancellor of the University. He further
16
contended that when to meet emergent situation and work load,
the engagement of the petitioners was made on daily wage basis
in the PEC and they have continued for a period of more than
two decades, it would be unfair and unreasonable not to
regularize them particularly when sanctioned posts are now
available and the petitioners have requisite qualification to hold
such posts. It is argued that Registrar of the University under
Annexure-6 intimated the State Government in the Department
of Higher Education about 39 nos. of vacant posts of Junior
Assistant and 43 nos. of candidates engaged on contractual/daily
wage/temporary basis and requested the Government for
regularization of the incumbents in the post of Junior Assistant.
The Registrar also informed the State Government about the
Syndicate's decision regarding re-designation of the petitioners
along with others as 'Junior Assistant' on temporary basis
against the vacant sanctioned strength of Junior Assistant
pursuant to which the Government was also pleased to allow for
filling up of 41 nos. of vacant posts of Junior Assistant in the
University, but despite such communication and overlooking
such decision of the State Government under Annexure-11, the
impugned order under Annexure-12 has been passed rejecting
the cases of the petitioners for regularization.
17
Learned counsel further urged that the reason shown
in the impugned order that the petitioners had not completed ten
years of service as on 10.04.2006, i.e. the date of
pronouncement of judgment of the Hon'ble Supreme Court in
Umadevi (supra) has no bearing as the said case has been
misinterpreted while considering the case of the petitioners for
regularization. He further contended that the law is well settled
by a series of judgments of the Hon'ble Apex Court as well as
this Court that the purpose and intent of the decision rendered in
Umadevi (supra) was two folds; (i) to prevent irregular and
illegal appointments in future and (ii) to confer benefit on those
who have been irregularly appointed in the post. He further
argued that the State Government being a model employer,
cannot exploit the services of the petitioners by not giving them
the benefit of regularization and if irregular appointees have
completed ten years of service, then their services should be
regularized.
Learned counsel further urged that even though the
initial engagement of the petitioners was on temporary basis and
not against any sanctioned post, but considering the fact that
there was necessity of manpower in the University and the
University has been utilizing the services of the petitioners for
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two decades and the petitioners have got requisite qualification,
the failure of the State Government in taking an early decision to
create posts in spite of repeated communication from the side of
University and then rejecting the claim of regularization of
services of the petitioners even when posts were sanctioned is
arbitrary and amounts to sheer exploitation. Mr. Routray,
learned counsel further contended that absorbing the petitioners
in the regular posts would not cause any additional financial
burden to the State exchequer.
Learned counsel emphatically contended that the
Registrar of the University has furnished a list of employees, who
have been allowed payment of pay plus grade pay as per the
resolution No.18 dated 13.02.2014 of the Syndicate for
regularization of the services of the petitioners along with others
and thus, instead of regularizing the services of the petitioners,
the action of the opposite parties in rejecting their claim for
regularization is not sustainable in the eye of law and thus, the
impugned order under Annexure-12 should be quashed and
necessary direction be issued to the opposite parties for
regularization of the services of the petitioners in the posts of
Junior Assistant in the University.
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In support of his contention, learned counsel for the
petitioners has placed reliance on the decisions of the Hon'ble
Supreme Court as well as this Court in the cases of State of
Karnataka and others -Vrs.- M.L. Kesari reported in (2010)
9 Supreme Court Cases 247, Nihal Singh -Vrs.- State of
Punjab reported in (2013) 14 Supreme Court Cases 65,
Sanatan Sahoo -Vrs.- State of Odisha reported in 2017
(II) ILR-CUT-1059 (Orissa High Court upheld by Supreme
Court in SLP No.11911 of 2018), Narendra Kumar Tiwari
and others -Vrs.- The State of Jharkhand and others
reported in (2018) 8 Supreme Court Cases 238, Sheo
Narain Nagar -Vrs.- State of U.P. reported in A.I.R. 2018
S.C. 233, Basanta Kumar Barik -Vrs.- State of Odisha and
others reported in 2021 (III) ILR-CUT 624.
7. Per contra, Mr. Saswat Das, learned Additional
Government Advocate has filed written note of argument and
argued that the conditions of services of the employees of the
University including the present petitioners are governed by the
provisions of 1989 Act and the first statute framed thereunder.
Learned counsel for the State further argued that section 22 of
the 1989 Act deals with the provisions for creation of posts in the
University and on a bare perusal of the aforesaid provision, it
20
would be apparent that the post of officers, teachers and
employees of the University shall be created and the scale of pay
and allowances attached to such posts shall be determined by
the Chancellor subject to specific allotment of funds for the
purpose of payment of the concerned University and shall be in
accordance with the yardstick formulated by the University with
the prior approval of the State Government. Referring to Rule
10(a) of Odisha Government Rules of Business and Section 22 of
1989 Act, he argued that on a conjoint reading of both the
provisions leave no room for doubt that prior approval of the
State Government for creation of posts is mandatory and though
the Department of Higher Education is the Nodal Department for
Higher Education but creation of posts in the University requires
prior approval/sanction of the Finance Department of the State
Government which was obviously required to be worked out
through Department of Higher Education.
Learned counsel for the State argued that so far as
the petitioners is concerned, although they were engaged initially
on daily wage basis for some period and allowed to work as
Office Assistants which was extended from time to time and
subsequently was re-designated as Junior Assistant, but the fact
remains that, there is no provision provided under the 1989 Act
21
or under the OURP Rules, 1992 for such re-designation. On the
contrary, the rules prescribed that the posts are to be created
with the sanction of competent authority (State) and as such,
posts can only filled up through a duly constituted Selection
Committee and by competitive selection process through open
advertisement in compliance to the mandate of Articles 14 and
16 of the Constitution of India. He further submitted that in the
case in hand, since the resolution of the Syndicate of the
University bearing No.45 dated 16.05.2015, re-designating the
petitioners as Junior Assistants without prior approval of the
State Government has been revoked by the Syndicate in their
meeting held on 21.12.2021, the petitioners are no more
continuing as Junior Assistant and therefore, they have got no
right to claim regularization of service. Learned counsel further
argued that there is no doubt that creation of post and
regularization in service is a prerogative of the employer keeping
in view the number of factors like the nature of work, number of
posts lying vacant, the financial condition of the employer, the
additional financial burden likely to be caused, the suitability of
the workmen for the job, the manner and reasons for which the
initial appointments were made, however, when the statutory
provisions have not been followed by the University while
22
creating the posts and re-designating the petitioners as Junior
Assistant, therefore, the claim of the petitioners for
regularization of service merits no consideration and thus, the
writ petitions are liable to be dismissed.
In support of such submissions, he has relied upon
the judgments of the Hon'ble Supreme Court in the case of
Divisional Manager, Aravali Golf Club and another -Vrs.-
Chander Hass reported in (2008) 1 Supreme Court Cases
683, Maharashtra State Road Transport Corporation and
Anr. -Vrs.- Casteribe Rajya Parivahan Karamchari
Sanghatana reported in (2009) 8 Supreme Court Cases
556 and The Managing Director, Ajmer Vidhyut Vitaran
Nigam Ltd., Ajmer and another -Vrs.- Chiggan Lal and
others reported in 2022 SCC OnLine SC 1351.
8. Mr. Kousik Ananda Guru, Advocate appearing on
behalf of University contended that the posts against which the
petitioners along with others was appointed were not sanctioned
posts and the prior approval of the State Govt. has also not been
obtained by the University for creation of such posts. The action
of the University to engage the petitioners against the non-
sanctioned posts was in contravention of section 22 of 1989 Act.
He reiterated the stand taken by the University in the counter
23
affidavit and argued that the petitioners are not entitled to get
any relief.
9. Before adverting to the contentions raised by the
learned counsel for the respective parties, let me now jot down
the factual scenario as projected before me which are as
follows:-
(i) Considering the requirement and necessity in the private
examination work of the University, the Programme Coordinator
in exercising his power under Rule 5.2 of 2001 Rules of the
University, engaged the petitioners in the PEC of the University
on daily wage basis for different periods from the date of
engagement in the Cell with the due approval of the Vice-
Chancellor.
(ii) The petitioners who were having requisite educational
qualification joined as Office Assistants in the PEC.
(iii) The petitioners' daily wages were enhanced by the University
from time to time. Considering the engagement of the
petitioners, length of service and satisfactory performance, the
Syndicate vide resolution no.18 dated 13.02.2014 allowed
payment of pay plus grade pay in favour of the employees
including the petitioners from the limited funds generated out of
the own sources.
24
(iv) The Registrar of the University by letter dated 01.08.2014
requested the State Govt. in the Dept. of Higher Education for
regularization of 43 nos. of candidates against the posts of Junior
Assistant including the petitioners.
(v) While the petitioners was continuing as such, as on
01.07.2015, a total number of 40 vacancies of posts of Junior
Assistant were shown and in pursuance of the decision of the
Syndicate of the University vide resolution no.45 dated
16.07.2015, the posts held by the petitioners and some others
as Office Assistants and Computer Assistants under different
units were re-designated as 'Junior Assistant' on temporary basis
by office order dated 16.07.2015.
(vi) On 26.11.2015, the Registrar, Sambalpur University
requested the Special Secretary to Hon'ble Chancellor to accord
necessary permission for regularization of services of employees
to enable the University to cope up with emerging situation and
persistent demand of employees from different quarters by
submitting list of such employees to place it before appropriate
authority.
(vii) The petitioners approached this Court by filing writ petitions
ventilating their grievances for regularization of their services in
which direction was issued by this Court to the State Govt. in
25
Higher Education Department as per order dated 07.01.2016 to
consider the recommendation made by the University and to
pass appropriate order by sanctioning the posts and to regularize
the services of the petitioners taking into consideration that he
was continuing in service since long.
(viii) On 18.08.2016 considering the increase in workload of the
University due to increase in number of colleges and opening of
new departments/hostels/courses, the Registrar of the University
requested the State Govt. in Higher Education Dept. for
regularization of services of contractual/daily wagers/NMR
employees of the University.
(ix) The Registrar of the University on 22.10.2016 communicated
the Higher Education Department about the re-designation of the
incumbents like the petitioners and others as Junior Assistants
vide resolution dated 16.05.2015, who have rendered more than
ten years of service and possess educational qualification as per
rules.
(x) The State Govt. in the Department of Higher Education on
11.04.2018 intimated the Registrar of the University about filling
up of 41 nos. of vacant posts of Junior Assistant as per OURP
Rules, 1992.
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(xi) The Registrar of the University on 25.07.2018/08.09.2018
requested the State Govt. in the Department of Higher Education
by submitting a list of 32 nos. of candidates working as Junior
Assistants on temporary basis against sanctioned posts having
requisite qualification as per OURP Rules, 1992 to accord
approval to University for their regularization against the
released 41 posts. The names of the petitioners found place in
such lists.
(xii) The opp. party no.1 rejected the case of the petitioners as
per order dated 31.05.2019 mainly on the ground that they had
not completed ten years of service as on 2006 and the posts
were not sanctioned.
10. At this stage, it would be profitable to discuss the
principles enunciated in the citations placed by the learned
counsel for the petitioners.
In the case of M.L. Kesari and others (supra), the
Hon'ble Supreme Court in paragraphs 7 and 8 held as follows:-
"7. It is evident from the above that there is an
exception to the general principles against
"regularisation" enunciated in Umadevi (supra),
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
27
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.
8. Umadevi (supra) casts a duty upon the
Government or instrumentality concerned, to
take steps to regularise the services of those
irregularly appointed employees who had served
for more than ten years without the benefit or
protection of any interim orders of courts or
tribunals, as a one-time measure. Umadevi
(supra) directed that such one-time measure
must be set in motion within six months from
the date of its decision (rendered on 10-4-
2006)."
28
This decision supports the contentions raised by the
learned counsel for the petitioners for regularisation of service of
the petitioners to a great extent inasmuch as the petitioners not
only possess the prescribed qualification for the post of Junior
Assistant but also they are also working against the sanctioned
posts at least from 11.04.2018 when the State Govt. in the
Department of Higher Education allowed the Registrar of the
University for filling up of 41 nos. of vacant posts of Junior
Assistant in the University. The petitioners have not only been
employed by the University but also allowed to continue in
service voluntarily and continuously for more than twenty years
by now after they were engaged and nothing has been brought
on record by the opposite parties that such continuance was with
the benefit or protection of the interim order of any Court or
Tribunal. Of course, the petitioners had not worked for more
than ten years as on 10.04.2006 on which date the judgment in
Umadevi (supra) was pronounced, however, it cannot be lost
sight of the fact that the University has extracted the work from
the petitioners for years together and now, by efflux of time, the
petitioners have become over-aged and they are not in a
position to participate in any selection process.
29
In the case of Nihal Singh (supra), the Hon'ble
Supreme Court held as follows:-
"22. It was further declared in Umadevi that
the jurisdiction of the Constitutional Courts
under Article 226 or Article 32 cannot be
exercised to compel the State or to enable the
State to perpetuate an illegality. This Court held
that compelling the State to absorb persons who
were employed by the State as casual workers
or daily-wage workers for a long period on the
ground that such a practice would be an
arbitrary practice and violative of Article 14 and
would itself offend another aspect of Article 14
i.e. the State chose initially to appoint such
persons without any rational procedure
recognized by law thereby depriving vast
number of other eligible candidates who were
similarly situated to compete for such
employment.
23. Even going by the principles laid down in
Umadevi's case, we are of the opinion that the
State of Punjab cannot be heard to say that the
appellants are not entitled to be absorbed into
the services of the State on permanent basis as
their appointments were purely temporary and
not against any sanctioned posts created by the
State.
30
xx xx xx xx xx xx xx xx xx xx xx xx
35. Therefore, it is clear that the existence of
the need for creation of the posts is a relevant
factor 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.
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
31
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.
37. 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.
38. 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."
This decision supports the contentions raised by the
learned counsel for the petitioners for regularisation of services
of the petitioners inasmuch as since last two decades, there was
need in the University for the creation of posts, but in spite of
32
repeated communication from Registrar of the University in that
respect, the failure of the executive government to apply its
mind and take a decision to create posts or stop extracting work
from the petitioners and similarly situated persons like the
petitioners for decades together would reflect arbitrary action
(inaction) on the part of the State and if at this age, the
petitioners are thrown out of service, then it would be sheer
exploitation of the petitioners by the opposite parties.
In the case of Sanatan Sahoo (supra), this Court in
paragraph 9 has held as follows:-
"9. Admittedly in the present case, the
petitioners having the requisite qualification was
engaged as Data Entry Operator since
September, 1995 and he has been continuing as
such till date without the intervention of the
Courts. He approached the Tribunal in the year
2013 for his regularization before the notification
issued by the State Government regarding
Odisha Group 'C' and Group 'D' posts
(contractual appointment) Rules, 2003. The
recruitment rule came into force only in the year
2008 and the rule regarding contractual
engagement as contended by the State
Government was followed later on. Thus the
engagement of the petitioners at best can be
33
termed as irregular engagement and not illegal
engagement. That apart, it is also admitted that
sanctioned posts are available since 2009 and
the petitioners had also completed more than 10
years by then. In view of the discussions made
hereinabove paragraphs and in the peculiar facts
and circumstances of this case, this Court is of
the opinion that the Tribunal has lost sight of all
such facts while passing the impugned order and
it has not appreciated the entire facts in right
perspective in the light of the aforesaid decisions
of the Apex Court. Thus, this Court sets aside
the impugned order dated 14.05.2015 passed in
O.A. No. 3421 of 2013 and remits the matter
back to the authorities to regularize the service
of the petitioners by applying the
aforementioned ratio and to extend
consequential service benefits to the petitioners
accordingly, within a period of eight weeks. The
writ petition is disposed of accordingly."
This decision supports the contentions raised by the
learned counsel for the petitioners for regularization of the
services of the petitioners inasmuch as the petitioners who were
having requisite qualification were engaged as Office Assistants
at the initial stage by the Programme Coordinator on daily wage
basis in exercising his power under Rule 5.2 of 2001 Rules of the
University with the approval of the Vice-Chancellor and they
34
have been continuing till date without the intervention of any
Court order and that the Syndicate vide resolution no.18 dated
13.02.2014 has allowed them to receive pay plus grade pay and
the posts have been re-designated as Junior Assistants.
In the case of Narendra Kumar Tiwari (supra), the
Hon'ble Supreme Court in paragraphs 7 and 8 held as follows:-
"7. The purpose and intent of the decision in
Umadevi 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 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
regularization and by placing the sword of
Damocles over their head. This is precisely what
Umadevi and Kesari sought to avoid.
8. If a strict and literal interpretation, forgetting
the spirit of the decision of the Constitution
Bench in Umadevi, is to be taken into
35
consideration then no irregularly appointed
employee of the State 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."
This decision supports the contentions raised by the
learned counsel for the petitioners for regularisation of services
of the petitioners inasmuch as the engagement of the petitioners
as per 2001 Rules of the University which was four years prior to
the decision of the Constitution Bench in Umadevi (supra)
cannot be said to be an illegal one. At this stage, after so many
years of continuous service, if they are thrown out of services
and the benefits of regularization are not extended to them, then
it would be a sheer case of exploitation.
In the case of Sheo Narain Nagar (supra), the
Hon'ble Supreme Court in paragraph 8 held as follows:-
"8. When we consider the prevailing scenario, it
is painful to note that the decision in Umadevi
(supra) has not been properly understood and
36
rather wrongly applied by various State
Governments. We have called for the data in the
instant case to ensure as to how many
employees were working on contract basis or ad
hoc basis or daily-wage basis in different State
departments. We can take judicial notice that
widely aforesaid practice is being continued.
Though this Court has emphasised that
incumbents should be appointed on regular
basis as per Rules but new devise of making
appointment on contract basis has been
adopted, employment is offered on daily-wage
basis etc. in exploitative forms. This situation
was not envisaged by Umadevi (supra). The
prime intendment of the decision was that the
employment process should be by fair means
and not by back door entry and in the available
pay scale. That spirit of the Umadevi (supra) has
been ignored and conveniently overlooked by
various State Governments/authorities. We
regretfully make the observation that Umadevi
(supra) has not been implemented in its true
spirit and has not been followed in its pith and
substance. It is being used only as a tool for not
regularizing the services of incumbents. They
are being continued in service without payment
of due salary for which they are entitled on the
basis of Article 14, 16 read with Article 34(1)(d)
of the Constitution of India as if they have no
constitutional protection as envisaged in D.S.
37
Nakara v. Union of India : A.I.R. 1983 S.C.
130 from cradle to grave. In heydays of life,
they are serving on exploitative terms with no
guarantee of livelihood to be continued and in
old age, they are going to be destituted, there
being no provision for pension, retiral benefits
etc. There is clear contravention of constitutional
provisions and aspiration of downtrodden class.
They do have equal rights and to make them
equals, they require protection and cannot be
dealt with arbitrarily. The kind of treatment
meted out is not only bad but equally
unconstitutional and is denial of rights. We have
to strike a balance to really implement the
ideology of Umadevi (supra). Thus, the time
has come to stop the situation where Umadevi
(supra) can be permitted to be flouted, whereas,
this Court has interdicted such employment way
back in the year 2006. The employment cannot
be on exploitative terms, whereas Umadevi
(supra) laid down that there should not be back
door entry and every post should be filled by
regular employment, but a new device has been
adopted for making appointment on payment of
paltry sum on contract/ad hoc basis or
otherwise. This kind of action is not permissible,
when we consider the pith and substance of true
spirit in Umadevi (supra)."
38
This decision supports the contentions raised by the
learned counsel for the petitioners for regularisation of services
of the petitioners inasmuch as their initial engagement on daily
wage basis cannot be said to be back door entry but on the basis
of the power conferred on the Programme Coordinator under
Rule 5.2 of 2001 Rules of the University with the due approval of
the Vice-Chancellor. In heydays of lives, when the petitioners
served the institution for two decades and they are serving as
Junior Assistants on temporary basis in the University since long
and having requisite qualification and their names have been
recommended time to time by the University to the Government
for regularization and there is nothing against their performance
in duty, at this stage, if they are denied the benefits of
regularization, it would lead to arbitrariness and the action of the
Employer State would be unconstitutional.
In the case of Basanta Kumar Barik (supra), this
Court in paragraphs 28 and 29 held as follows:-
"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
39
judgments as well as by this Hon'ble Court, it is
crystal clear that the long uninterrupted services
of the Petitioners 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
Petitioners' initial appointment was only 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 Petitioners
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 Petitioners had completed almost 10 years
of continuous service in Opp. Party No. 3
40
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 ad hoc 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
the Petitioners 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
Petitioners within the aforesaid period."
This decision also supports the contentions raised by
the learned counsel for the petitioners for regularization of
services of the petitioners inasmuch as the initial engagement of
the petitioners may be irregular but not illegal as revealed from
the records of the case. They have completed two decades of
continuous service in the University and are having requisite
41
educational qualification for the post of Junior Assistant and have
acquired vast experience in working in such post.
11. At this stage, the contentions raised by Mr. Das are
necessary to be considered. Without filing any counter affidavit
on behalf of the State of Odisha, Mr. Das has referred to section
22 of the 1989 Act, which is quoted as follows:-
"Creation of Posts:- (1) All posts of officers
(which shall not include the Vice-Chancellor),
teachers and other employees of a University
shall be created and the scales of pay and
allowances attached to such posts shall be
determined by the Chancellor subject to specific
allotment of funds for this purpose in the budget
of the concerned University and shall be in
accordance with the yardstick formulated by
such University with the approval of the State
Government.
(2) Till such yardstick is finalized, the yardstick
for the reaching posts prescribed by the
University Grants Commission and that for the
other corresponding posts under the State
government shall be followed.
(3) Whenever posts are created beyond the
yardstick approved by the State Government
under Sub-Section (1), prior concurrence of the
State Government shall be obtained."
42
According to Mr. Das, in exercise of power conferred
by Clause (3) of Article 166 of the Constitution of India, the
State Government has framed a rule namely Orissa Government
Rules of Business and Rule 10 of the said Rules stipulates as
follows:-
"10.(1) No department shall without previous
consultation with the Finance Department
authorise any orders (other than orders
pursuant to any general delegations made by
the Finance Department) which either
immediately or by their repercussions will affect
the finances of the State or which in particular,
either-
(a) relate to the number or grading or cadres of
posts or the emoluments or other conditions of
service or post; or
(b) involve any grant of land or assignment of
revenue or concession, grant lease or licence of
mineral or forest rights or a right to water,
power or any easement or privilege in respect of
such concession; or
(c) in any way involve any relinquishment of
revenue."
There is no dispute there is always financial
implications for the creation of posts and therefore, financial
sanction is necessary for it. The power to create a post rests with
the Government. Whether a particular post is necessary is a
43
matter which depends upon the exigencies of the situation and
administrative necessity. Creation of post is a matter of
government policy and every sovereign government has this
power in the interest and necessity of internal administration.
Reliance was placed by Mr. Das in the case of Aravali Golf Club
(supra), in which the Hon'ble Supreme Court held that the Court
cannot direct the creation of posts. Creation and sanction of
posts is a prerogative of the executive or legislative authorities
and the Court cannot arrogate to itself this purely executive or
legislative function, and direct creation of posts in any
organisation. It involves economic factors. Similar view was held
in the case of Maharashtra State Road Transport Corporation
(supra), wherein the Hon'ble Supreme Court held that creation of
posts is not within the domain of judicial functions which
obviously pertains to the executive and the status of permanency
cannot be granted by the Court where no such posts exist and
that executive functions and powers with regard to the creation
of posts cannot be arrogated by the Courts, however, keeping
posts temporary for long and denying the claims of the
incumbents on the score that their posts are temporary makes
no sense and strikes as arbitrary, especially when both
temporary and permanent appointees are functionally identified.
44
If, in the normal course, a post is temporary in the real sense
and the appointee knows that his tenure cannot exceed the post
in longevity, there cannot be anything unfair or capricious in
clothing him with no rights. Not so, if the post is, for certain
departmental or like purposes, declared temporary, but it is
within the ken of both the government and the appointee that
the temporary posts are virtually long-lives. It is irrational to
reject the claim of the 'temporary' appointee on nominal score of
the terminology of the post. Of course, in view of the law laid
down by the Hon'ble Supreme Court in the case of Ajmer
Vidhyut Vitaran Nigam Ltd. (supra), the date from which
regularization is to be granted is a matter to be decided by the
employer keeping in view a number of factors like the nature of
the work, number of posts lying vacant, the financial condition of
the employer, the additional financial burden caused, the
suitability of the workmen for the job, the manner and reason for
which the initial appointments were made etc.
12. Adverting to the contentions raised by the learned
counsel for the respective parties, it is apparent that considering
the necessity of workload and requirement of manpower in the
PEC of the University, the Programme Coordinator in exercising
his power under Rule 5.2 of 2001 Rules of the University,
45
engaged the petitioners in the PEC on daily wage basis for
different period with the due approval of the Vice-Chancellor as
per the said Rules and the engagement period was extended
from time to time for each of the petitioners. The petitioners who
were having requisite educational qualification were allowed to
work as Office Assistants in the PEC. It is not in dispute that due
procedure for selection was not followed at the time of
engagement of the petitioners inasmuch as the vacancies were
not notified through the local Employment Exchange, there was
no advertisement and no competitive examination was held and
the engagement was also not made against any sanctioned post,
but since the adoption of normal method of recruitment might
have involved considerable delay resulting in failure to tackle the
emergency, the engagement was made to meet emergent
situation. Necessities non habet legem is an old age maxim
which means 'necessity knows no law'. It cannot be said that the
competent authority under 2001 Rules of the University
committed any illegality in engaging the petitioners on daily
wage basis which were made at the time of necessity with the
approval of the Vice-Chancellor. The petitioners are discharging
their duties since last two decades and the posts initially held by
them were re-designated as 'Junior Assistant' on temporary
46
basis since long as per the resolution dated 16.05.2015 of the
Syndicate Committee of the University and office order to that
effect was issued on 16.07.2015. The University has been
utilizing the services of the petitioners and there is nothing
against their performance in duty. The continuance of the
petitioners in service for such a long period was not with the
benefit or protection of the interim order of any Court or
Tribunal. When the request letter of the Registrar, Sambalpur
University dated 26.11.2015 to the Special Secretary to Hon'ble
Chancellor to accord necessary permission for regularization of
services of the petitioners and similar other employees to enable
the University to cope up with emerging situation and persistent
demand of employees from different quarters was not carried
out and in the writ petitions filed by the petitioners before this
Court, direction was issued to the State Govt. in Higher
Education Department as per order dated 07.01.2016 to
consider the recommendation made by the University and to
pass appropriate order by sanctioning the post and to regularize
the services of the petitioners taking into consideration that they
were continuing in service since long, the State Govt. in the
Department of Higher Education on 11.04.2018 intimated the
Registrar, Sambalpur University about filling up of 41 nos. of
47
vacant posts of Junior Assistant as per OURP Rules, 1992. When
the University has repeatedly requested the State in the Higher
Education Department by writing letters for according approval
for regularization of the petitioners and others, the sudden
change of stand by the University in opposing the regularization
in the counter affidavit is strange and not expected from an ideal
model employer and it amounts to exploit the services of the
educated youth like the petitioners and others and to take
advantage of their helplessness and misery.
Employment is not a tool in the hands of the
employer to exploit the employed as it would lead to unhealthy
and deleterious practices and social injustice, consequence of
which is terrible in a democratic nation and may lead to
revolution. Financial security of employees rest in the hands of
their employers and harassment of employees in any form falls
under exploitation. Exploitative employment in Universities not
only affects the employed, but it also flows on to the quality of
education the students receive and academic excellence. The
employees need to be treated with dignity and respect and fairly
compensated for their works done.
When the petitioners have approached this Court by
filing writ petitions since 19.07.2019 challenging order of the
48
Government of Odisha in rejecting their claim for regularization
of service in the posts of Junior Assistant in the University and
they are relying on the resolution dated 16.05.2015 of the
Syndicate Committee of the University and office order issued to
that effect on 16.07.2015 and orders were passed in the
respective writ petitions asking the learned State Counsel to
obtain instruction and notices were issued to the opposite parties
on 10.01.2020, the decision of the Syndicate in its meeting
dated 21.12.2021 in revoking the office order dated 16.07.2015
is unfair and arbitrary and seems to be under the pressure of the
opposite party no.1. At this stage, the petitioners have become
over-aged and they are not in a position to participate in the
selection process even though they have got requisite
educational qualification for such post and moreover they have
got two decades of experience behind them. There is no
likelihood of any additional financial burden to the State
exchequer by absorbing the petitioners in the regular posts.
In my humble view, the purpose and intent of the
decision rendered in the case of Umadevi (supra) by the Hon'ble
Supreme Court has been misinterpreted and subsequent
decisions of the Hon'ble Supreme Court on this issue have not
been taken into account while considering the cases of the
49
petitioners for regularization and passing the impugned order
under Annexure-12 in rejecting their claim for regularisation on
the ground that they had not worked for more than ten years by
10.04.2006 i.e. the date of decision in the case of Umadevi
(supra) and the posts had not been sanctioned. The impugned
order is unreasonable, arbitrary and thus the conclusion can be
corrected by a writ of certiorari. The University has engaged the
petitioners and allowed them to continue in service voluntarily
and continuously for more than two decades by now and the
petitioners possess the prescribed qualifications for the post of
Junior Assistant and they are now working against the
sanctioned posts and have acquired vast experience as Junior
Assistants and there is nothing against their fitness or capacity
to hold such posts. In such a scenario, non-regularisation of their
service against the available sanctioned posts is unfair,
unjustified and arbitrary.
13. In the final analysis, in the light of the foregoing
discussions, the impugned order dated 31.05.2019 passed by
the Government of Odisha in the Department of Higher
Education, Odisha under Annexure-12 in rejecting the claim of
the petitioners for regularization in the posts of Junior Assistant
in Sambalpur University cannot be sustained in the eye of law
50
and is hereby set aside. The opposite parties shall pass
appropriate order for regularisation of services of the petitioners
against the posts of Junior Assistant as expeditiously as possible
preferably within a period of three months from the date of
receipt of a copy of this judgment.
Resultantly, all the writ petitions are allowed.
In the circumstances, there will no order as to costs.
........................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 1st June 2023/PKSahoo/Pravakar Signature Not Verified Digitally Signed Signed by: PRAMOD KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 01-Jun-2023 11:41:33