A Single judge bench of the Orissa HC comprising of Justice Sashikanta Mishra allowed a Writ Petition under Article 226 & 227 challenging an order by the Director of Higher Education Odisha which rejected the regularization of a Junior Clerk employed on contractual basis in a Govt. College for 26 years. The Court relied on the SC judgment of Uma devi to rule that the Petitioner’s service was irregular but not illegal and he was employed for more than 10 years on 10.04.2006
Facts:
The petitioner was engaged as Junior Clerk-cum-Typist since august 1995 on daily wage basis in S.C.S. (Autonomous) College, Puri. Despite working for long his services have not been regularized. He approached the authorities on several occasions requesting consideration for regular appointment. In 2010, the Principal of the College sought permission from the Director, Higher Education, Odisha regarding regular absorption of the daily wage workers in the College, however no action was taken regarding the same. The Petitioner challenged the inaction in Orissa HC wide a writ petition under which the Orissa HC ordered the decision regarding regularization fo daily wage workers to be taken within 2 months.
The director rejected the case of the petitioner on the grounds that after promulgation of Orissa Government Colleges Ministerial Service (Method of Recruitment and Conditions of Service) Rules, 1999, recruitment to the post of Junior Clerk can only be made through direct recruitment by means of competitive examination. The order was challenged again in a Writ Petition by the petitioner and the Orissa HC quashed the said order of the director ad remitted the matter back to him for reconsideration in accordance with the law.
In pursuance of the judgment, the deputy director asked about the number of vacancies against the post of Junior Clerk-cum-Typist as on 01.08.1995 and the names of persons who were working in the College against the post of Junior Clerk-cum-Typist as on 01.08.1995. The college principal informed that there were 11 sanctioned posts, out of which 1 was vacant as on august 1995 and he further told the name of the 4 person who were working as Junior Clerk-cum-Typist as on 01.08.1995. Based on this information, the director again rejected the claim of the petitioner for regularization on the grounds that there was no vacancy of Junior Clerk-cum-Typist against which the petitioner was engaged in the year 1995 and the petitioner was engaged in violation of the ban imposed by the Government in Finance Department letter dated 12.04.1993.
Observations of the Court:
The court observed that the number of sanctioned posts in the cadre of Junior Clerk is 11 and the nomenclature Junior Clerk- cum-Typist was used loosely, thus it cannot straightaway be said that there was no sanctioned post or any vacancy in the cadre of Junior Clerk as on 01.08.1995. Further the continuance of the petitioner for 26 years implies that that there is requirement of the work rendered by the petitioner. It is for the authorities concerned to create/sanction posts and the employee cannot be blamed for non-creation of the post after extracting work from him for more than two decades. This tantamount to gross exploitation which the State as a model employer is not expected to do.
The court further observed that the grounds taken for rejection of the petitioner’s claim are entirely different from the grounds originally taken while rejecting the claim earlier. The stand of the Govt. with respect to the claims of the petitioner keeps on improving and such a conduct is neither expected from the Govt. nor is accepted in law. Remitting the matter back for reconsideration doesn’t mean that the authority concerned would re-invent further grounds to somehow vindicate its decision of not allowing the claim of the petitioner.
The petitioner has continued in service without intervention of any order from a court or tribunal. He also fulfils the condition of rendering service for 10 years continuously as on 10.04.2006. Thus in light of the judgment of the SC in Uma Devi, his appointment can only be treated as irregular but not illegal by any means.
Decision:
The Orissa HC directed the authorities to regularize the services of the petitioner against the available vacant post without any further delay and quashed the order of the Director
Case: Gadei Swain Vs State of Odisha & Ors
Citation: W.P.(C) No. 33108 of 2020
Coram: Justice Sashikanta Mishra
Decided on: 12th October 2022
Read Judgment @Latestlaws.com
Picture Source :
