Orissa High Court

Afr Rabindra Kumar Patanaik vs State Of Odisha & Others on 24 August, 2021

                  ORISSA HIGH COURT: CUTTACK


                       WPC(OAC) NO. 1491 OF 2014

         In the matter of an application under Article 226 of the
         Constitution of India.
                                ---------------

AFR Rabindra Kumar Patanaik ..... Petitioner

-Versus-

State of Odisha & others ..... Opp. Parties

For Petitioner : M/s. S. Mohanty, B. Biswal, C. Sethy and S.C. Mohanty, Advocates.

For Opp. Parties : Mr. M. Balabantaray, Standing Counsel

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing and judgment : 24.08.2021

DR. B.R. SARANGI, J. The petitioner, who has been working

as Night Watchman-cum-Sweeper in the office of Sub-

Registrar, Koraput, being initially appointed as such

under the control of the District Registrar, Koraput, has // 2 //

filed this writ petition seeking direction to opposite

parties no. 2 and 3 to regularize his service, in the light

of proposition of law as laid down by the apex Court,

and to grant all financial and consequential benefits, as

due and admissible to him in accordance with law.

2. The factual matrix of the case, in precise,

is that the District Registrar, Koraput felt that the office

work is being hampered due to shortage of Class-IV and

Class-III staff. As a post of Night Watchman-cum-

Sweeper was lying vacant, opposite party no.4, vide

letter dated 03.08.1992, requested opposite party no.2

to allow them to appoint/engage Night Watchman-cum-

Sweeper, which was accepted by opposite party no.2,

vide letter dated 24.12.1992. Consequentially, the

petitioner was appointed as Night Watchman-cum-

Sweeper on DLR basis on the remuneration of Rs.300/-

per month and from the date of his joining he

continued to discharge his duty. In the year 2005, the

petitioner was directed to work in the District Sub-

Registrar Office, Jeypore regarding benchmark // 3 //

valuation work and computerization of benchmark

valuation. In the process, the petitioner has already

rendered more than 10 years of service and his work is

perennial in nature and he has got requisite

qualification for the said post. Thereby, he claimed for

regularization of his service and the same having not

been granted, he approached the Odisha Administrative

Tribunal, Cuttack Bench, Cuttack in O.A. No. 1491(C)

of 2014 seeking relief, as mentioned above, and on

abolition of the said tribunal the Original Application

has been transferred to this Court and registered as

above.

3. Mr. S. Mohanty, learned counsel for the

petitioner contended that the petitioner, having got the

requisite qualification and rendered more than ten

years of service, his service should be regularized

keeping in view the law laid down by the apex Court,

but the same having not been done, he has filed this

writ petition.

// 4 //

4. Mr. M. Balabantaray, learned Standing

Counsel for the State vehemently contended that the

petitioner was not appointed against sanctioned post.

As his claim is not admissible, thereby, the benefit has

not been granted to him and, thereby, the State

authority has not committed any illegality or

irregularity in not regularizing the service of the

petitioner.

5. This Court heard Mr. S. Mohanty, learned

counsel for the petitioner and Mr. M. Balabantaray,

learned Standing Counsel for State-opposite parties by

hybrid mode. Pleadings having been exchanged between

the parties and with the consent of the learned counsel

for the parties, this writ petition is being disposed of

finally at the stage of admission.

6. The factual matrix, as delineated above,

clearly indicates that the petitioner was appointed as a

Night Watchman-cum-Sweeper and he has been

discharging his duty from the date of his initial // 5 //

appointment. Even though the petitioner has been

rendering service for more than ten years, he has not

been regularized. As such, the petitioner is rendering

his service against a sanctioned post, as per Annexure-

4, the statement showing engagement of DLR/NMR

employees in Registration Organization. In the said

statement, it has been specifically mentioned against

serial no. 20 at Column-6 that the post has been

sanctioned by IGR during 1992, and against the name

of the petitioner which finds place at serial no. 39 at the

very same column a mention has been made that the

post was sanctioned by IGR during 1992. Meaning

thereby, the petitioner is continuing against a post,

which was sanctioned by IGR during 1992. If that be so,

the petitioner, having completed more than ten years of

service and he having got the requisite qualification,

there is no impediment on the part of the authority to

regularize his service and by not doing so the petitioner

has been put to harassment for years together.

// 6 //

7. The petitioner has specifically pleaded in

paragraph-6.7 of the writ petition to the following

effect:-

"That while the matter stood as such, the respondents prepared a list of DLR/NMR employee in the Registration Office in order to regularize their services, so that they can maintain their family. Now gradation list vide Annexurfe-4. It is found that the applicant at sl. No. 39 and his appointment is against the sanction post by the IGR during the year 1992. The applicant was also appointed by the competent authority and copy is enclosed to the gradation list prepared by the respondents through the applicant has rendered more than 10 years of service and his appointment to sanction post and moreover he has requisite qualification for the post, so the authority should regularize his service without any further delay."

8. A counter affidavit has been filed on behalf of

opposite parties no. 1 to 5 on 05.12.2012. In response

to the pleadings made in paragraph-6.7 of the writ

petition, reply has been given in paragraph-10 of the

counter affidavit, which reads as follows:-

"10. That, in response to Para No. 6.7 of the O.A., it is humbly submitted that the averments made by the applicant that the respondents have prepared list of DLR/NMR employees in registration office in order to regularize their services are not correct. Sri R.K. Pattnaik was engaged as Night Watchman-cum- Sweeper on part time // 7 //

basis on 01.03.2004 after the promulgation of the ban period declared by the Govt. which is 12.04.1993. No such Gradation list has been prepared by the Respondents. Only a statement showing the engagement of DLR/NMR employees in registration organization has been worked out by the Respondents. As there is no sanctioned post of the Night Watchman-cum- Sweeper sanctioned by the Govt. in Sub-Registrar office Koraput the regularization of service of the applicant does not arise."

9. In the rejoinder affidavit, reply to para-10 of

the counter affidavit has been given in para-12, which

reads as follows:-

" 12. That in reply to para 10, it is stated that the list prepared by the respondent clearly shows the service particulars of those employees who are working in the office of the respondents and that list has been prepared in order to give benefit of regularization and the wages sanction by the Government from time to time. If the plea of the respondent is accepted that there is no sanction post, then the respondents should not have allowed the applicant to discharge his duty in a perennial in a manner from the year 2004. It is stated here that the employees those who are working in the said office in the class III post their service have already been regularized one such employee is Mr. Durga Prasad Pattnaik. The said Pattnaik approached to this Hon'ble Tribunal by filing Original Application bearing O.A. No. 2021 of 2012 and this Hon'ble Tribunal allowed his case on 27.10.2016 and his // 8 //

service has been regularized. As the ratio laid down by this Hon'ble Tribunal, Hon'ble Supreme Court as well as this Hon'ble Tribunal is clear and on the same basis the case of the other employees office regularized hence without further delay, the case of the applicant should be regularized."

10. A perusal of the above pleadings would

indicate, the State has taken a stand that since no post

of Night Watchman-cum-Sweeper was sanctioned by

the Government in Sub-Registrar Office, Koraput,

regularization of service of the petitioner does not arise.

Whereas the pleadings made in paragraph-6.7 clearly

indicate that the petitioner is continuing in service

against a post which was sanctioned by the IGR in the

year 1992.

11. According to Section 58 of the Indian

Evidence Act, 1872, 'pleading' means the plaint or

written statement containing in a concise form, the

material facts on which the party pleading relies for his

claim or defence. Similarly, taking into consideration

Section 3(vi) of Debts Recovery Tribunal Regulations of

Practice, 1997, "pleading" shall include original // 9 //

applications, reply statements, rejoinders and

additional statements supplementing the original

applications and reply statements as may be permitted

by the tribunal.

12. In Vidyawati Gupta v. Bhakti Hari Nayak,

(2006) 2 SCC 777, the apex Court held that the word

'pleadings' under Order VI Rule 1 and Order VII of the

Code means 'plaint' or written statement.

13. In K. Laxmanan v. Thekkayil Padmini,

(2009) 1 SCC 354, the apex Court held that pleadings

consist only of a plaint and a written statement. A

replication if filed by plaintiff and allowed by the Court

would be a part of 'pleadings'.

14. Keeping in view the meaning of 'pleadings',

as stated above, the contention raised in the writ

petition, counter filed by the opposite parties and

consequential rejoinder filed by the petitioner, and on

careful analysis of the pleaded facts, it is evident that

the petitioner has been rendering service against a // 10 //

sanctioned post and he has been discharging the duty

assigned to him to the satisfaction of the authority for

more than ten years and he has got requisite

qualification besides having more than ten years of

experience.

15. At this juncture, it is of relevance to note that

the apex Court in Secretary State of Karnataka and

Others v. Umadevi (3) and Others (2006) 4 SCC 1,

taking into consideration the long continuance of the

employees in service, held in paragraph 54 as follows:

"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases 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 regularise as a one-time measure, the services of such irregularly // 11 //

appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."

16. In such view of the matter and keeping in

view the facts and circumstances, which are admitted,

this Court is of the considered opinion that the benefit

claimed cannot be denied to the petitioner, especially

when similarly situated persons have already been

extended with such benefits, pursuant to the order

dated 27.10.2016 passed by the Orissa Administrative

Tribunal in O.A. No. 2021 of 2012, otherwise it would

amount to discrimination. Consequentially, this Court

directs opposite parties no. 2 and 3 to regularize the

service of the petitioner and extend all the

consequential service and financial benefits as // 12 //