Orissa High Court
Smt. Rashmita Das vs State Of Odisha & Others .... Opposite ... on 18 May, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC(OAC) No.3122 of 2018
In the matter of an application under Section 19 of the
Administrative Tribunal Act, 1985.
..................
Smt. Rashmita Das .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s.S.B. Jena & S. Behera.
For Opp. Parties : Addl. Government Advocate
Mr.R.N. Mishra.
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:19.04.2023 and Date of Order:05.05.2023
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Biraja Prasanna Satapathy, J.
1. The present Writ Petition has been filed by the Petitioner inter alia with the following prayer:-
"Under the circumstances, it is humbly prayed that this Hon'ble Tribunal may graciously be pleased to direct the authorities to regularize the services of the Applicant retrospectively with consequential service benefits by quashing Annexure-21.
And/or pass any other order/orders as this Hon'ble Tribunal deems fit and proper in this case".
2. It is the case of the Petitioner that the Petitioner after facing due process of selection was appointed as a Computer Operator in the Office of Opposite Party No.3 // 2 // w.e.f. 01.10.2002. On such appointment of the Petitioner as a Computer Operator, the Petitioner was imparted with different training programme conducted at different point of time vide Annexure-2-Series. The Petitioner even though was allowed to continue as a Computer Operator w.e.f. 01.10.2002 with consolidated remuneration of Rs.4,000/- and no step was taken to absorb her in the regular establishment, the Petitioner moved the Chief Secretary, Government of Odisha on 15/16.3.2012 under Annexure-3. Even though such claim of the Petitioner was duly forwarded to the Opposite Party No.2 under Annexure-4, but no decision was taken in the matter. However, in the meantime the monthly remuneration of the Petitioner was enhanced to Rs.5,200/- w.e.f. 02.06.2010 vide Annexure-7 and Opposite Party No.2 also intimated about the continuance of the Petitioner in the Office of Opposite Party No.3 w.e.f. 01.10.2002.
3.1. During such continuance of the Petitioner vide order dated 10.06.2015, the monthly remuneration of the Petitioner was enhanced to Rs.8,000/- per month and subsequently it was further enhanced to Rs.9,000/- per month. However, when no step was taken to absorb the petitioner in the regular establishment, the Petitioner moved Opposite Party No.2 on 09.12.2016 under Page 2 of 15 // 3 // Annexure-17 and Opposite Party No.1 on 31.07.2017 under Annexure-19 seeking her absorption in the regular establishment.
3.2. It is contended that without taking any step to absorb the Petitioner in the regular establishment when steps were taken to engage the Petitioner through service provider vide letter dated 22.09.2018 under Annexure-21, the present Writ Petition was filed with a direction to the Opposite parties to absorb the Petitioner in the regular establishment taking into account her long continuance w.e.f. 01.10.2002. 3.3. Mr. S.B. Jena, learned counsel for the Petitioner contended that the Petitioner was not only engaged as a Computer Operator after facing due process of selection on 01.10.2002, but also the Petitioner was allowed to continue in the said capacity with enhancement of her monthly wages at different point of time. The prayer of the Petitioner to absorb her in the regular establishment so made under Annexure-3 though was forwarded to Opposite Party No.2 vide letter dated 29.03.2012 under Annexure-4, but no action was taken on such claim of the Petitioner. 3.4. It is also contended that the monthly wages of the Petitioner though was enhanced from time to time and the Petitioner w.e.f. 01.10.2002 is continuing in her service Page 3 of 15 // 4 // without any break in her engagement, the Petitioner has accrued the right of regularization in her favour.
In support of his aforesaid submission, Mr. Jena relied on the decision of the Hon'ble Apex Court in the case of Secretary, State of Karnataka vs. Uma Devi (3), (2006) 4 SCC-1, State of Karnatak vs. M.L.Keshari, (2010) 9 SCC 247, Nihal Singh & Others vs. State of Punjab & Others, 2013 (14) SCC 65 and Amarkant Rai vs. State of Bihar & Others, 2015 (8) SCC 265.
4. Mr. R. N. Mishra, learned Addl. Government Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that the Petitioner was engaged as a Computer Operator without facing any regular process of selection and because of administrative exigency, she was engaged as a Computer Operator w.e.f. 01.10.2002 in the Office of Opposite Party No.3.
4.1. It is contended that the Petitioner is not continuing against any sanctioned post and she is engaged for day to day Computer work in the Office of Opposite Party No.3. Though, it is not disputed that the Petitioner is continuing as a Computer Operator w.e.f. 01.10.2002 and her wages was enhanced from time to time, but the State in the Page 4 of 15 // 5 // meantime has already decided to engage such Computer Operators through service provider and the Petitioner has got no vested right of regularization as prayed for in the writ petition.
5. Taking into account the rival contentions raised by the learned counsel for the Parties, this Court initially vide order dated 07.12.2022 when directed the learned State Counsel to obtain instruction as to how many number of Computer Programmers / Data Entry Operators are continuing in different divisions coming under the Opposite Party No.2, an affidavit was filed in that regard by the Opposite Party No.4. But this Court on not being satisfied with the same directed the State Counsel to file an affidavit through the Opposite Party No.2 vide order dated 10.02.2023. Pursuant to the said order, Opposite Party No.2 filed an affidavit on 21.02.2023 and in the said affidavit it was indicated that the Petitioner along with similarly situated 18 numbers of Computer Programmers are working in different Division Office and they are receiving their remuneration under the heading of miscellaneous contingencies.
5.1. Since the affidavit so filed by the Opposite Party No.2 did not indicate anything about the step to be taken by the Opposite Parties for absorption of the Petitioner in the Page 5 of 15 // 6 // regular establishment, this Court vide order dated 17.03.2023 though directed the State Counsel to obtain instruction in the matter, but no instruction since came forth, the matter was finally heard on the consent of the learned counsels appearing for the Parties.
6. Having heard learned counsel for the Parties and after going through the materials available on record, it is not disputed that the Petitioner is continuing as a Computer Operator/Data Entry Operator w.e.f. 01.10.2002 and in the meantime she has already completed more than 20 years of engagement on contractual basis. It is also found from the record that the monthly wages of the Petitioner has been enhanced from time to time and the Petitioner though was initially engaged with monthly remuneration of Rs.4,000/-, but the same was enhanced from time to time and the Petitioner is getting remuneration of Rs.9,000/- per month now. It is the view of this Court that the Petitioner in view of such long continuance has accrued a right in her favour for absorption in the regular establishment. 6.1. Hon'ble Apex Court in the case of Uma Devi in Para- 44 has held as follows:-
"44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra) and B.N. Nagarajan (Supra), and Page 6 of 15 // 7 // referred to in paragraph-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 courts or of tribunals. The question of regularization 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 above referred 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 regularize 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 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 wages 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 judgement, but there should be no further by passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
6.2. Similarly Hon'ble Apex Court in the case of M.L. Keshari in Para- 8 and 13 has held as follows:-
"8. Umadevi (3) 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 (3) 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).
13. The Division Bench of the High Court has directed that the cases of the respondents should be considered in accordance with law. The only further direction that needs to be given, in view of Umadevi (3), is that the Zila Panchayat, Gadag should not undertake an exercise within six months, as a general one-time regularisation exercise, to find out whether there are daily- wage/casual/adhoc employees serving the Zila Panchayat Page 7 of 15 // 8 // and if so whether such employees (including the respondents) fulfil the requirements mentioned in para-53 of Umadevi (3). If they fulfill them, their services have to be regularised. If such an exercise has already been undertaken by ignoring or omitting the cases of Respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said one-time exercise within three months. It is needless to say that if the respondents do not fulfill the requirements of para 53 of Umadevi (3), their services need not be regularised. If the employees who have completed ten years' service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularisation in suitable lower posts."
6.3. In the case of Nihal Singh in Para-35 to 38, Apex Court has held as follows:-
"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 tin 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.
21. In the first instances, the petitioner and the other Election Commissioners were appointed when the work of the Commission did not warrant their appointment. The reason given by Respondent 1 (Union of India), that on account of the Constitution (61" Amendment) Act reducing the voting age and the Constitution (64th Amendment) and (65 Amendment) Bills relating to election to the Panchayats and Nagar Paliks, the work of the Commission was expected to increase and, therefore, there was need for more Election Commissioners, cuts notice. As has been pointed out by Respondent 2, the work relating to revision of electoral roll on account of the reduction of voting age was completed in all the States except Assam by the end of July 1989 itself, and at the Conference of the Chief Electoral Officers at Tirupati.Page 8 of 15
// 9 // Respondent 2 had declared that the entire preparatory work relating to the conduct of the then ensuing general elections to the Lok Sahba would be completed by August in the whole of the country except Assam. Further the Constitution (64th and 65th Amendment) Bills had already fallen in Parliament before the appointments. In fact, what was needed was more secretarial staff for which the Commission was pressing, and not more Election Commissioners. What instead was done was to appoint the petitioner and the other Election Commissioner on 16.01.1989. Admittedly, further the view of the Chief Election Commissioner were not ascertained before making the said appointments. In fact, he was presented with them for the first time in the afternoon of the same day i.e, 16-10-1989.
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 finance 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.
37. We are of the opinion that neither the Governmnet of Punjab nor these public sector banks can continue such a practice consistent with their obligations to function in accordance with the Constitution. Umadevi (3) judgement cannot became a licence for exploitation by the State and its instrumentalities.
38. For all the abovementioned reasons, we are of the opinion that the appellants are entitled to be absorbed in the services of the State. The appeal are accordingly allowed. The judgements under appeal are set aside."Page 9 of 15
// 10 // 6.4. In the case of Amarkanti Rai, Hon'ble Apex Court in Para-8, 9, 11 to 14 has held as follows:-
"8. Insofar as contention of the respondent that the appointment of the appellant was made by the Principal who is not a competent authority to make such appointment and is in violation of the Bihar State Universities Act and hence the appointment is illegal appointment, it is pertinent to note that the appointment of the appellant as night guard was done out of necessity and concern for the College. As noticed earlier, the Principal of the College vide letters dated 11-3-1988, 7-1-1993, 8-1- 2002 and 12-7-2004 recommended the case of the appellant for regularisation on the post of night guard and the University was thus well acquainted with the appointment of the appellant by the then Principal even though the Principal was not a competent authority to make such appointments and thus the appointment of the appellant and other employees was brought to the notice of the University in 1988. In spite of that, the process for termination was initiated only in the year 2001 and the appellant was reinstated w.ef. 3-1-2002 and was removed from services finally in the year 2007. As rightly contended by the learned counsel for the appellant, for a considerable time, the University never raised the issue that the appointment of the appellant by the Principal is ultra vires the rules of the BSU Act. Having regard to the various communications between the Principal and the University and also the educational authorities and the facts of the case, in our view, the appointment of the appellant cannot be termed to be illegal, but it can only be termed as irregular.
9. The Human Resources Development, Department of Bihar Government, vide its Letter dated 11-7-1989 intimated to the Registrar of all the Colleges that as per Page 10 of 15 // 11 // the settlement dated 26-4-1989 held between Bihar State University and College Employees' Federation and the Government it was agreed that the services of the employees working in the educational institutions on the basis of prescribed staffing pattern are to be regularised. As per sanctioned staffing partien, in Ramashray Baleshwar College, there were two vacant posts of Class IV employees and the appellant was appointed against the same. Further, Resolution No. 989 dated 10-5-1991 issued by the Human Resources Development Department provides that employee working up to 10-5-1986 shall be adjusted against the vacancies arising in future. Although, the appellant was appointed in 1983 temporarily on the post that was not sanctioned by the State Government, as per the above communication of the Human Resources Development Department, it is evident that the State Government issued orders to regularise the services of the employees who worked up to 10-5-1986. In our considered view, the High Court ought to have examined the case of the appellant in the light of the various communications issued by the State Government and in the light of the circular, the appellant is eligible for consideration for regularisation.
XXX XXX XXX
11. Elaboration upon the principles laid down in Umadevi (3) Case and explaining the difference between irregular and illegal appointments in State of Karnataka Vs. M.L Kesari, this Court held as under (ML Kesari case SSC p 250, para 7) 7. It is evident from the above that there is an exception to the general principles against 'regularisation enunciated in Umadevi (3). 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 Page 11 of 15 // 12 // 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 possesses the prescribed minimum qualifications, the appointments will be considered to be illegal., But where the persons 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."
12. Applying the ratio of Umadevi (3) case, this Court in Nihal Singh v. State of Punjab directed the absorption of the Special Police Officers in the services of the State of holding as under: (Nihal Singh Case, SCC pp. 79-80, paras- 35-36) "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 extracting work from persons such as the appellants herein for decades together itself would he 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 Page 12 of 15 // 13 // 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 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
13. In our view, the exception carved out in para 53 of Umadevi (3)3 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 bore 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 post, in the facts and circumstances of the case, we are inclined to award monetary benefits to be paid from 1.-1-2010.
14. Considering the facts and circumstances of the case that the appellant has served the University for more than
29. years of the post of night guard and that he has served the College on daily wages, in the interest of justice, the authorities are directed to regularise the services of the appellant retrospectively w.ef. 3-1-2002 (the date on which he rejoined the post as per the direction of the Registrar)."
Page 13 of 15
// 14 // 6.5. Similarly, this Court in the case of Dr. Prasanna Kumar Mishra vs. State of Odisha & Others reported in 2016(1) ILR (CUT)-373 in Para-22 has held as follows:-
"22. In that view of the matter, this Court is of the considered view that the opposite parties should absorb the petitioner on regular basis against sanctioned vacant post taking into account the length of service rendered by him as a Lecturer in Mathematics in which he is continuing without insisting him to undergo the rigors of the selection procedure laid down under the BPUT Act and Rules framed thereunder reason being in the meantime the petitioner has become over aged and he has also been exploited for 20 years for no reasons though he has qualified in all the interviews conducted by the authority for his engagement on contractual basis. The petitioner being not a backdoor entrant to the service, the opposite party-University should extend all consequential benefits as due and admissible in accordance with law as expeditiously as possible preferably within a period of four months. The writ petition is allowed. No order to cost."
6.6. Placing reliance on the aforesaid decisions, this Court vide its judgment dated 17.02.2023 in WPC(OAC) Nos.373, 374 and 375 of 2019, while allowing similar claim directed the Opposite Parties to absorb the Petitioners therein in the regular establishment. This Court in Para-6.8 of the judgment dated 17.02.2023 has held as follows:-
"6.8. Therefore, placing reliance on the decisions of the Hon'ble Apex Court as well as of this Court as cited (supra) and taking into account the fact that the Petitioners who possess similar qualification as like Gram Panchayat Technical Assistants and the only difference being that the Petitioners were engaged as Technical Consultants and the other Diploma Engineers as Gram Panchayat Technical Assistants on being sponsored from out of the Panel, this Court is inclined to hold that the Petitioners are eligible and Page 14 of 15 // 15 // entitled for their absorption in the regular establishment. While holding so, this Court directs the Opp. Parties to absorb the Petitioners in the regular establishment within a period of three (3) months from the date of receipt of this order".
6.7. In view of such continuance of the Petitioner for the last 20 years and placing reliance of the decision of the Hon'ble Apex Court as cited (supra), this Court is of the view that the claim of the Petitioner for her absorption in the regular establishment deserves favourable consideration by the Opposite Parties. Not only that since the Petitioner is continuing for the last 20 years, this Court is also of the view that the Petitioner is continuing as against a substantive vacant post. While holding so, this Court directs the Opposite Parties to take appropriate step for absorption of the Petitioner in the regular establishment within a period of three (3) months from the date of receipt of this order.
7. With the aforesaid observations and directions, the Writ Petition stands disposed of.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 5th of May, 2023/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Designation: Senior Stenographer Reason: ... Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-May-2023 17:37:02 Page 15 of 15