Shakti Prasad Dash vs State Of Odisha & Others
2021 Latest Caselaw 6728 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                 WPC (OA) No.3314 of 2018

Shakti Prasad Dash                    ....            Applicant-
                                                     Petitioner
       M/s. Manas Pati, Mr.S. Kar, Mr.P. Das, Mr.S.S. Pati and
                                      Mr. B.Panda, Advocates
                          -versus-
State of Odisha & others             ....          Respondents-
                                              Opposite Parties
                         Mr. N.Praharaj, learned State Counsel
          CORAM:
          JUSTICE BISWANATH RATH
                       JUDGMENT

30.06.2021

1. This matter is taken up through video conferencing mode.

2. Originally the Original Application was filed on 29th July, 2010 vide O.A. No.1954(c) of 2015 in the bench of Tribunal at Cuttack. Subsequently transferred to State Administrative Tribunal, Bhubaneswar Bench, Bhubaneswar it was re- registered as O.A. No.3314 of 2018, then on abolition of State Administrative Tribunal, the case was further transferred to Hon'ble High Court of Orissa and renumbered as WPC(OA) No.3314 of 2018.

3. Background involving the case that initially the petitioner was appointed in the post of Messenger for a period of 44 days by the respondent no.3, vide order dated 27.5.1996 claimed to be against permanent vacancy. There has been extension of the services of the petitioner vide Annexure-2.

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It discloses while continuing as such, petitioner was appointed temporarily against the post of Messenger, vide Annexure-3.

4. Taking this Court to the conditions under Annexure-3, Mr.Pati, learned counsel for the petitioner contended that though the nature of appointment is temporary but Government at the relevant point of time was issuing regular appointment orders in this fashion. It is on the basis of regular appointment was given to the petitioner, vide Annexure-3 in the year 1999 and while the petitioner was continuing as such, he has been disengaged, vide Annexure- 8 series appears to have passed on 31.5.2007, leading the petitioner making a representation to the competent authority for consideration of his case in restoration of his services. It is at this point of time finding no answer from the competent authority, petitioner filed O.A. No.1155 of 2009 in the State Administrative Tribunal, which was disposed of with a direction to the competent authority to consider the case of the petitioner through his grievance petition. It is on consideration of the grievance petition, the concerned department passed the order, vide Annexure-10 thereby rejecting the claim of the petitioner on the short grounds disclosed therein leading to the present litigation. Learned counsel for the petitioner referring to paragraph-53 of the judgment in Secretary State of Karnataka and Others Vrs. Umadevi (3) and Others : (2006) 4 SCC 1 and reading through Annexure-3, learned counsel for the petitioner

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claimed that since the appointment of the petitioner was regular, vide Annexure-3 against a permanent vacancy, there was direct application of the direction of the Hon'ble apex Court in the above decision vide paragraph-53 therein. Mr.Pati, learned counsel for the petitioner therefore contended that the impugned order remains contrary to the direction of the Hon'ble apex Court and there is mechanical disposal of the representation of the petitioner, vide Annexure-10. Accordingly a prayer is made to reconsider the case of the petitioner and interfering in the impugned order, this Court may pass suitable order.

5. To the contrary, Mr.Praharaj, learned Government Advocate for the contesting Opposite Parties 1 to 4 in reference to the plea taken in the counter affidavit further reading through the enquiry on the appointment of the person involving the petitioner submitted that there has been an enquiry to find out the genuineness of the appointment of the persons including that of the petitioner and disposed of reported that the engagement of the petitioner for 44 days basis in the year 1996 becomes illegal being contrary to the Finance Department restrictions. Such appointment also opposed to the direction of the Hon'ble apex Court in the case Umadevi (supra). It is in the above circumstances, learned State Counsel prayed for dismissal of the WPC (OA) No.3314 of 2018.

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6. Considering the rival contentions of the parties, this Court finds there is no dispute that initial appointment of the petitioner was made in the year 1996. It is at this stage, taking into consideration the claim of the State Counsel that such appointment remains contrary to Finance Department restriction. On query being made to the State Counsel, a fair statement is made that the author of such appointment was not taken to task. This Court also finds a surprise movement of the government in not taking any action on the author of such appointment. It is at this stage, this Court also finds based on such official appointment, the petitioner involved herein was given temporary appointment against permanent vacancy. The appointment order vide Annexure-3 reads as follows :

"OFFICE OF THE GENERAL MANAGER:D.I.C.,GANJAM:BERHAMPUR OFFICE NO.509/Dt.29.1.99.

Sri Shakti Prasad Dash, S/o.Sri Sadananda Das, City post office road, Berhampur, who belongs to Gen. Category and now working on adhoc basis is hereby temporarily appointed as messenger against the vacant post in the scale of pay of Rs.2550-55-2660-60-3200/- with the usual D.A. and other allowance as admissible by the Govt. from time to time.

The appointment is purely temporary and can be terminated at any time without assigning any reason thereof.

Sd/-

General Manager, DIC, Ganjam, Berhampur.

Memo No.510/Dt.29.1.99 Copy to Sri Shakti Prasad Das, S/o.Sri Sadananda Das, City post office road, Berhampur for information and necessary action. He is directed to report for duty along with the following documents.

1. Medical Certificate of fitness from the C.D.M.O., Ganjam, Bam.

2. Two recent passport size photographs duly attested by a Gazetted Officer not below the rank of "Group-B" officer.

3. The Certificate s regarding character and antecedents from the "Group-B" officers.

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4. Declaration to the effect that he will abide by the Orissa Govt. Servant Condcut Rules, 1959.

5. Declaration to the effect that he has got only one wife living in case he is married.

6. Oath of allegiance to the constitution of India.

7. Educational qualification Certificate in original.

8. Declaration of Age according to Christian era.

9. Declaration of assets at the time of joining the post.

10. Caste Certificate duly issued by the proper authority.

11. Employment Regn. No. if any.

Sd/-

General Manager, DIC, Ganjam, Berhampur.

Memo No.______/Dt.

Copy forwarded to Director of Industries, Orissa, Cuttack for favour of information.

Sd/-

General Manager, DIC, Ganjam, Berhampur.

Memo No.______/Dt.

Copy to Account Section/Personal file/Estt. File for record.

Sd/-

General Manager, DIC, Ganjam, Berhampur."

7. On perusal of the order clearly discloses that petitioner who was already an employee was appointed as against the regular vacancy. But on temporary basis with scale of pay attached to such post. It goes without saying here that petitioner was appointed against a permanent vacancy. It is here reading the Annexure-5, this Court finds petitioner while was continuing as Messenger in the headquarter was transferred being a Class-IV employee of the establishment to join the newly created establishment at Paralakhemundi. There is also statement forth coming that petitioner was appointed in a duly constituted selection process. From the above development, this Court further observes unless petitioner is a regular employee could not have been

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transferred. The claim of the petitioner counsel that petitioner was engaged against a permanent vacancy as a regular employee though the nomenclature reflected as temporary employment finds force. There is also no dispute that at the relevant point of time that sort of appointment order was being issued involving regular employees and even followed till now. This Court also reiterates that petitioner was continuing against a regular vacancy with scale of payment for it.

8. Now coming to the challenge to the order under Annexures-

8 and 10, this Court takes note herein the direction of the Hon'ble apex Court in the case of Umadevi (supra). Paragraph-53 of the said judgment reads as follows:

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071], R.N.Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799 and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] 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 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

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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 regularization, if any already made, but not subjudice, need not be reopened based on this judgment, 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."

9. Reading the aforesaid judgment, the direction of the Hon'ble apex Court in paragraph-53 therein directs that there remains no doubt that there is a direction not to disturb the persons who are already engaged regularly against regular vacancy. For the observation of this Court that at no point of time, there is any action against the author of the irregular appointment. So that there is no question affecting the poor employees got into the employment. Further, for the observation of this Court with the nature of engagement under Anenxure-3 that there remains no doubt that petitioner was already appointed against a regular vacancy with particular scale of pay and transferred being effected involving the petitioner, vide Annexure-5, this Court has no hesitation to hold that the petitioner was a regular employee.

10. Considering the reasons under Annexure-1 in the rejection of the claim of the petitioner through his grievance petition, this Court finds Annexure-10 the reasons assigned under Annexure-10 remains contrary to the actual position that petitioner was already appointed against a regular appointment with award of particular scale of pay attached to that post leaving there no doubt there is financial

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concurrence to the said post. Further the ground no.2 in the rejection order, this Court finds, the same also remains contrary to the direction of the Hon'ble apex Court in the case of Umadevi(supra) at paragraph-53 indicated hereinabove and the impugned decision is on misreading of the decision of this Hon'ble apex Court otherwise.

11. Keeping this in view, this Court sets aside both the orders under Annexures-8 and 10 and directs the competent authority to reinstate the petitioner in the post of Messenger, but since the petitioner is not worked out all these years, the reinstatement of the petitioner will be notionally but with entitlement of revision in the scale of pay involving such post, if any, in the meantime. The entire exercise for reinstatement of the petitioner shall be completed within a period six weeks. It is clarified that for no award of back wages but however reinstatement notionally, petitioner will be deemed to have been continuing althrough and his entire period will however be taken for consideration of the pension, if any available involving the petitioner.

12. With the above direction, the writ petition succeeds. There shall be no order as to cost.

(Biswanath Rath) Judge

Umakanta Sahoo