Orissa High Court

Afr Sunil Barik vs State Of Odisha And Others on 22 June, 2021

                  ORISSA HIGH COURT: CUTTACK


                       WPC(OAC) NO. 2818 OF 2014

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

AFR      Sunil Barik                            .....     Petitioner


                                     -Versus-

         State of Odisha and others             .....   Opp. Parties


           For Petitioner   :    M/s. K.K. Swain,
                                 P.N. Mohanty, B. Jena,
                                 S.C. Dash, P.K. Mohanty and
                                 R.P. Das, Advocates

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


         P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing and judgment : 22.06.2021

DR. B.R. SARANGI, J. The petitioner, by way of this writ

petition, seeks direction to the opposite parties to

regularize his service as Barber in the office of the

Superintendent of Police, Jajpur with all consequential // 2 //

service and financial benefits taking into consideration

his past service rendered in the said post.

2. The factual matrix of the case, in brief, is

that the petitioner, by following due procedure of

selection, was appointed as a Home Guard pursuant to

appointment order issued on 01.10.1997 and

undergone training from 25.12.1998 to 31.01.1999.

After completion of training, certain posts including the

post of Barber was created by the Government vide

order dated 28.06.1999 in the scale of pay of Rs.2550-

3200/-. By virtue of the Government order dated

28.06.1999, the petitioner submitted representation to

the Superintendent of Police, Jajpur with a prayer to

absorb him in the said post. Accordingly,

Superintendent of Police, Jajpur, vide letter dated

19.11.1999, sought permission from the D.I.G. of Police

(Administration), Orissa, Cuttack to fill up the post of

regular Barber, as the police personnel at the district

headquarters were facing considerable difficulties.

// 3 //

2.1 Subsequently, the Superintendent of

Police, Jajpur, on 24.12.1999, also moved the D.I.G. of

Police (Administration), Orissa, Cuttack to appoint the

petitioner against the post of Barber, as he had been

performing the duties of Barber since 1993 with utmost

sincerity. As there was no response, Superintendent of

Police, Jajpur again, vide letter dated 27.12.1999,

moved the D.I.G. of Police (Administration), Orissa,

Cuttack seeking permission to fill up the post of Barber

in the district. When the matter stood thus, the State

Government issued an order on 09.02.2000 to the

Superintendent of Police, Jajpur to fill up the post of

Barber after the election process is over. Thereafter, on

12.06.2000, the petitioner was appointed as Barber on

ad hoc basis for 89 days, pursuant to which he joined

as Barber and continued till 21.08.2002 on daily wage

basis, which is evident from the certificate issued by

the Superintendent of Police, Jajpur on 18.08.2014. By

the time the petitioner approached the tribunal, he had

already completed 16 years of service on daily wage // 4 //

basis. Needless to say, the initial appointment of the

petitioner was Home Guard, but due to regular vacancy

available in the post of Barber, he was allowed to

continue against the said post on daily wage basis and,

as such, the said post was duly sanctioned by the

authority. Consequentially, the petitioner submitted a

representation, which was forwarded by the I.G. of

Police, Central Range, Cuttack to Government on

16.08.2010 for his appointment on permanent basis.

But the same has remained unattended to till date.

Though in the meantime the State Government has

taken a decision for regularization of contractual

Group-C and Group-D employees after completion of

six years of service, the petitioner having continued for

more than 16 years, by the time the original application

was filed before the tribunal, as Home Guard on ad hoc

daily wage basis, his service has not been regularized.

3. Hence, seeking the above relief the

petitioner filed O.A. No. 2818 (C) of 2014 before the

Odisha Administrative Tribunal, Cuttack Bench, // 5 //

Cuttack, but on abolition of the same, the said O.A.

was transferred to this Court, in pursuance of order

dated 03.12.2019 passed in W.P.(C) No. 22335 of 2019

by a Division Bench of this Court, and registered as

above and taken up for hearing.

4. Mr. K.K. Swain, learned counsel for the

petitioner contended that the petitioner had been duly

selected for the post of Home Guard pursuant to which

he joined in the said post and undergone training. Due

to creation of some posts, including the post of Barber,

he represented for regular absorption in the said post.

But, instead of absorbing him in the said post, he was

permitted to discharge the duties of Barber against a

sanctioned post on daily wage basis. In the meantime,

although more than 16 years have passed till the

petitioner approached the tribunal, but no action has

been taken by the authority. Therefore, the services of

the petitioner should be regularized in the said post.

// 6 //

To substantiate his contention, he has

relied upon the judgments of the apex Court in State

of Karnataka v. Umadevi, (2006) 4 SCC 1; State of

Karnataka v. M.L. Kesari, (2010) 9 SCC 247; Nihal

Singh v. State of Punjab, (2013) 14 SCC 65; and also

judgments of this Court in Nakula Naik v. Executive

Officer, Bhubaneswar Municipal Corporation, 2017

(I) OLR 293; Rajendra Kumar Nayak v. Orissa

Mining Corporation, 2017 (II) ILR 912; and Ranjeet

Kumar Das v. State of Orissa, 2018 (Supp.I) OLR

111.

5. Mr. M. Balabantaray, learned Addl.

Standing Counsel appearing for the State, referring to

paragraphs-6 and 8 of the counter affidavit, contended

that the DIG of Police (Administration), Odisha,

Cuttack, vide letter dated 09.02.2000, directed to fill up

the post of Barber by recruitment after election process

is over. Accordingly, the petitioner was appointed as

Barber on ad hoc basis for a period of 89 days, vide

letter dated 14.03.2000 with regular scale of pay. After // 7 //

completion of 89 days, he was discharged from service

and again appointed as Barber on ad hoc basis for

another 89 days and the said process was continued till

20.08.2002. On 21.08.2002, he was appointed as

Barber on daily wage basis in accordance with the letter

dated 12.08.2002, by which direction was issued to fill

up the vacancies in all Group-D posts on daily wage

basis. Consequentially, he continued on daily wage

basis from that date. It is further contended that

Government of Orissa in General Administration

Department issued resolution dated 17.09.11 that

Group-D employees, those who were appointed against

the contractual posts created with the concurrence of

Finance Department on abolition of the corresponding

regular posts or contractual appointments/

engagements made against contractual posts created

with the concurrence of Finance Department without

abolition of any corresponding regular posts in case of

new offices or for strengthening of the office/services,

following the recruitment procedures prescribed for the // 8 //

corresponding regular posts and the principle of

reservation of posts and services for different categories

of persons decided by the State Government from time

to time, shall be made regular after completion of six

years of service. Consequentially, it is contended that

the services of the petitioner cannot be regularized in

the post of Barber, even though he is continuing

against the sanctioned post, since he was appointed as

such on 89 days ad hoc basis.

6. This Court heard Mr. K.K. Swain,

learned counsel for the petitioner and Mr. M.

Balabantaray, learned Addl. Standing Counsel for the

State opposite parties by virtual mode, and perused the

record. Since pleadings having been exchanged between

the parties, with the consent of learned counsel for the

parties, this writ petition is being disposed of finally at

the stage of admission.

7. In the instant case, there is no dispute

with regard to appointment of the petitioner as Home // 9 //

Guard and undergoing training for the said post. There

is also no dispute that the petitioner was engaged as

Barber on an ad hoc basis against a sanctioned

vacancy for a period of 89 days. But, subsequently, he

was allowed to discharge the duty of Barber on daily

wage basis and in the meantime more than 16 years

have passed. Needless to say that the petitioner was

continuing against the sanctioned post of Barber on

daily wage basis for more than 16 years, which itself

amounts to exploitation to the employee by the

employer.

8. In the case of Umadevi (3), even though

the apex Court has held that the appointments made

against temporary or ad-hoc are not to be regularized,

in para 53 of the judgment, it is provided that irregular

appointment of duly qualified persons in duly

sanctioned posts, who have worked for 10 years or

more, can be considered on merits and steps to be

taken as a one-time measure to regularize them. In para

53, the apex Court observed as under:-

// 10 //

"53. 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 abovereferred 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 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 sub judice, 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."

The objective behind the exception carved out in this

case was prohibiting regularization of such

appointments, appointed persons whose appointments

are irregular but not illegal, ensure security of

employment of those persons who served the State // 11 //

Government and their instrumentalities for more than

ten years.

9. Elaborating upon the principles laid

down in the case of Umadevi (3) (supra) and explaining

the difference between „irregular‟ and „illegal‟

appointments in M.L. Kesari (supra), the apex Court

held as under:

"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 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, // 12 //

such appointments are considered to be irregular."

10. Applying the ratio decided in the case of

Umadevi (3) (supra), the apex Court in Nihal Singh

(supra) directed absorption of the Special Police Officers

in the services of the State of Punjab holding as under:

"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 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 providing benefits on a par with the police officers of similar rank employed by the State results in further financial // 13 //

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."

The above judgments are also referred to by a Division

Bench of this Court in Ranjeet Kumar Das and also

Rajendra Kumar Nayak mentioned supra.

11. In the case of Nakula Naik mentioned

supra, this Court held that though the petitioner was

appointed as a Sweeper (Regular) by designation, he

had been assigned to work as Market Fee

Collector/Rent Collector and he had been discharging

such duty for more than 26 years and, therefore, his

services against the said post should be regularized and

consequentially also he should be allowed to get the

scale of pay, as admissible to the post.

12. As it appears from the record itself, the

case of the petitioner is squarely covered by the

exception carved out in paragraph-53 of the judgment // 14 //

rendered in Umadevi(3) mentioned supra. Meaning

thereby, against an existing sanctioned vacancy in the

post of Barber, the petitioner having been engaged by

following due procedure of selection in the post of Home

Guard and continued for a quite long period, which is

not disputed by the opposite parties-State as per the

pleadings available in the counter affidavit and, as

such, the petitioner is still continuing, the same cannot

be treated as an "illegal engagement", rather it may be

nomenclature as an "irregular engagement".

13. In State of Jammu and Kashmir v.

District Bar Association, Bandipora, (2017) 3 SCC

410, wherein a distinction has been made with regard

to "irregular" and "illegal" engagement, referring to the

exception carved out in Umadevi(3) mentioned supra,

in paragraph-12 of the said judgment it has been stated

as follows:

"12. The third aspect of Umadevi (3) which bears notice is the distinction between an "irregular" and "illegal" appointment. While answering the question of whether an appointment is irregular or illegal, the Court // 15 //

would have to enquire as to whether the appointment process adopted was tainted by the vice of non-adherence to an essential prerequisite or is liable to be faulted on account of the lack of a fair process of recruitment. There may be varied circumstances in which an ad hoc or temporary appointment may be made. The power of the employer to make a temporary appointment, if the exigencies of the situation so demand, cannot be disputed. The exercise of power however stands vitiated if it is found that the exercise undertaken (a) was not in the exigencies of administration; or (b) where the procedure adopted was volatile of Articles 14 and 16 of the Constitution; and/or