Orissa High Court
Ramachandra Muduli vs State Of Odisha & Ors on 25 August, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OAC) No. 4121 of 2013
Ramachandra Muduli ..... Petitioner
Mr. Sanjib Mohanty, Advocate
- Versus-
State of Odisha & Ors. ..... Opp. Parties
Mr. M. Balabantaray,
Standing Counsel for the State
CORAM:
DR. JUSTICE B.R. SARANGI
ORDER
25.08.2021
Order No. This matter is taken up through hybrid mode.
2. Heard Mr. Sanjib Mohanty, learned counsel for the petitioner,
and Mr. M. Balabantaray, learned Standing Counsel for the State.
3. The petitioner has filed this writ petition seeking direction to
the opposite parties to regularize the service of the petitioner in the
sanctioned post within a stipulated period and also grant all
consequential financial benefits in terms of the judgments of the apex
Court.
4. Mr. Sanjib Mohanty, learned counsel appearing for the
petitioner contended that the petitioner, who is continuing in the post
of Night Watchman-cum-Sweeper in the office of the District
Registrar-cum-Addl. Dist. Magistrate, Malkangiri for more than ten
years, on being appointed on 01.08.1994, claims for regularization of
service as his name finds place in the list prepared by the
Government, in the light of the law laid down by the apex Court.
5. Mr. M. Balabantaray, learned Standing Counsel for the State
contended that though the matter was placed before the Government,
but the same was not approved and, therefore, the relief claimed by
the petitioner cannot be extended to him and, as such, the writ
petition should be dismissed.
6. Having heard learned counsel for the parties and after going
through the records, it appears that the petitioner, after coming to
know that some Class-IV posts were lying vacant in the office of
opposite party no.4, applied for and was duly selected and posted as
Night Watchman-cum-Sweeper in the office of the District Registrar-
cum-Addl. Dist. Magistrate, Malkangiri on 01.08.1994 against a
sanctioned post, as is apparent from the gradation list maintained by
the opposite parties. From the date of initial appointment, the
petitioner is continuously discharging his duty without any
interruption and also completed more than ten years. Therefore, his
service should have been regularized as per the law laid down by the
apex Court in Secretary State of Karnataka and Others v. Umadevi,
(2006) 4 SCC 1. The apex Court in the said case held that if duly
qualified persons are continuing for ten years and more against
sanctioned vacant posts, which are perennial in nature, 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 the apex
Court. Thereby, the case of the petitioner should also be considered
for regularization.
7. As it appears, on 08.09.1999, the IGR-cum-Excise
Commissioner, Odisha, Cuttack wrote a letter to the District Sub-
Registrar regarding absorption of contingent paid Night Watchman-
cum-Sweeper into regular cadre and on 30.11.2010, the IGR, Odisha,
Cuttack wrote a letter to opposite party no.1 to regularize the services
of the petitioner and other similarly placed employees against the
sanctioned post. In the said letter, it was specifically indicated that
taking into consideration the facts, it was essential to provide
watchman to all the Registration Offices of the State for safety of
Government resources, and that 89 persons were engaged in different
registration offices on daily wages basis to perform such duties for
the last so many years, and that keeping in view the shortage of staff
in registration offices and the experience of DLR/NMR, their
services are essential in the exigencies of public services. In the list
which was enclosed to the said letter, the name of the petitioner also
finds place at serial no.20 and it has been specifically mentioned that
the petitioner has been working against the post sanctioned by IGR
during the year 1992.
8. In paragraph 6.5 of the writ petition, the petitioner has made
specific pleading to the following effect:-
"6.5 That on 30.11.2010, the I.G.R. Orissa, Cuttack wrote a
letter to the respondent No.1 requesting him to regularize the
services of the applicant and other similarly placed employees
against the sanction post which is clear from his letter vide
Annexure-4 dt.30.11.2010. He has attached a list of 89 persons
those who are working along with the applicant and similarly
placed like the applicant all over the State. That as per the order
of the Hon'ble apex Court, the respondent prepared a gradation
list in order of seniority in order to regularize the service of the
applicant and similarly placed employees. The copy of the said
list is attached to this as Annexure-5, where the applicant's
position finds place at Sl.No.20. There it has been stated that the
applicant's first date of engagement is 01.08.1994 and place of
posting at DSR, Malkangiri."
9. In the counter affidavit filed on behalf of opposite parties no.2
and 4 in reply to para-6.5 of the writ petition, it has been stated in
para-5 as follows:-
"5. That, in reply to Para 6.5 of the O.A., it is submitted
that though the I.G.R., Odisha, Cuttack submitted a list of 89
persons to the Government in Revenue & Disaster
Management Department, Odisha, Bhubaneswar for
regularization of Night Watcher-cum-Sweeper, but no
approval has been received till date in this regard and also
there is no such copy of approval letter of Gradation List in
the Office of the District Sub Registrar, Malkanagir."
10. As such, there is no denial that the petitioner is continuing
against sanctioned post of Night Watchman-cum-Sweeper and he has
rendered more than ten years of service. In view of such position,
since petitioner is continuing in service for more than ten years and
his name finds place in the State level gradation list at serial no.20
and is continuing against sanctioned post which is perennial in
nature, in view of the judgment of the apex Court in Umadevi,
mentioned supra, his service should be regularized. The plea taken,
that due to non-approval by the State Government the benefit has not
been extended, cannot sustain in view of the fact that the petitioner
has been discharging his duty for more than 19 years. In such a
situation, the State Government cannot be a mute spectator and the
authority cannot exploit the petitioner in this manner, which amounts
to unfair labour practice. This Court takes a serious view in the
matter and directs the opposite parties to regularize the petitioner in
service within a period of three months from the date of
communication of this order.
11. With the above observation and direction, the writ petition
stands disposed of.
Issue urgent certified copy as per rules.
(DR. B.R. SARANGI)
GDS JUDGE
