Orissa High Court
Debaraj Sahoo vs State Of Odisha And Others on 1 November, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC(OAC) No. 912 of 2008
Debaraj Sahoo ..... Petitioner
Mr. S. Mohanty, Advocate
Vs.
State of Odisha and others ..... Opposite party
Mr. M. Balabantaray, Standing
Counsel for State
CORAM:
DR. JUSTICE B.R. SARANGI
ORDER
01.11.2021
Order No. This matter is taken up through hybrid mode.
2. Heard Mr. S. Mohanty, learned counsel for the
petitioner and Mr. M. Balabantaray, learned Standing
Counsel for the state.
3. The petitioner files this writ petition seeking direction
to opposite party no.1 to regularize the service of the
petitioner from the date of his initial appointment and to pay
the financial as well as consequential benefits.
4. Mr. S. Mohanty, learned counsel for the petitioner
contended that on 21.09.1994, opposite party no.1 issued a
letter to all the President, District Consumer Disputes
Redressal Forum to fill up the posts of Jr. clerk-cum-Typist
on temporary basis with a consolidated salary till regular Jr.
Clerk-cum-Typist are appointed, as the District Forums of
the State are lack of regular staff. Consequentially, against a
sanctioned post of Jr. Clerk-cum-Typist the petitioner, having
the requisite qualification, i.e. B.Com, LL.B. and Diploma in
Computer Education, submitted his application and on
consideration of the same he was appointed with a
remuneration of Rs.1000/- per month vide appointment order
dated 14.12.1995. From the initial date of appointment he
was continuing against the sanctioned post. On 03.09.1996,
Government issued a letter to all the Presidents, District
Consumer Dispute Redressal Forum to fill up the Class-III &
IV posts of the District Forums delegating financial power,
so that the Forum's work will not be disturbed. As the
petitioner was continuing against a regular sanctioned post,
this Court vide order dated 22.03.1999 in OJC No. 673 of
1995 directed the State Government to give regular
appointment of the supporting staff in the district forum, but
the State Government took seven years time to prepare a
Rule for regular recruitment of the staff. Subsequently, vide
letter dated 30.07.2015 under Annexure-6, the petitioner was
paid regular salary as Jr. Clerk-cum-Typist in the scale of pay
of Rs.5200/- with Grade Pay of Rs.1900, i.e. in toto
Rs.7100/- per month. It is contended that that though the
petitioner had rendered more than 20 years of service by the
time he was given regular scale of pay, but he was deprived
of the financial benefits for the last twenty years without
regularization of his service, which causes great prejudice to
him.
5. Mr. M. Balabantaray, learned Standing Counsel for the
State, referring to the counter affidavit, contended that the
appointment of the petitioner was governed by the
Resolution dated 11.11.1993 issued by the Government of
Odisha, Food & Civil Supplies Department. As per clause-6
of the said Resolution dated 11.11.1993, all the ministerial
employees, as indicated in the said resolution, constitute
Single State Cadre. As such, the petitioner was appointed on
14.12.1995 by the President, District Consumer Dispute
Redressal Forum, Koraput at Jeypore to mitigate the urgency
of the post in respect of District Consumer Dispute Redressal
Forum, which were created in the year 1994 and such
appointment was given on ad hoc basis with a monthly
consolidated salary of Rs.1000/- till regular appointment of
Jr. Clerk-cum-Typist is made with certain stipulation.
Clause-8 of the appointment order clearly indicates that the
candidate appointed cannot claim his continuity in service
after filling up the post by regular appointment by the
Government or from deputation from the Revenue Cadre and
any decision of the Appointing Authority to remove him at
any given time cannot be challenged in any court of
law/Orissa Administrative Tribunal. In view of such
condition, the petitioner's service cannot be regularized by
the opposite parties.
6. Having heard Mr. S. Mohanty, learned counsel for the
petitioner and Mr. Balabantaray, learned Standing Counsel
for the State, there is no dispute before this Court with regard
to appointment of the petitioner on a consolidated
remuneration of Rs.1000/- against a sanctioned post. Though
the post was created in the year 1994, the petitioner was
appointed in the year 1995 on ad hoc basis. Subsequently, he
was allowed to continue without any break in service. More
so, he was discharging his duty assigned to him. Because of
the condition stipulated in clasue-8 of the appointment order,
the petitioner could not have claimed for regularization of
services. That clause-8 of the appointment order is purely a
Henry Clause VIII, which is absolutely arbitrary,
unreasonable and contrary to the provisions of law. If any
citizen's right is affected, he can have a right to approach the
Court. By putting such stringent condition, the petitioner has
been deprived of ventilating his grievance before this Court,
for which the opposite party-State has taken the advantage of
such situation, which cannot sustain in the eye of law. More
so, considering the long continuance of the petitioner in
service, he has been granted the scale of pay of Rs.5200/-
along with G.P. of Rs.1900, in toto Rs.7100/- per month
vide office order dated 30.07.2015 under Annexure-6.
Though this Court had directed the opposite parties for
regularization of service of the employees working in district
cadre posts pursuant to the order dated 22.03.1999 passed in
OJC No. 673 of 1995, but effectively the Rule has come into
force only in the year 2008. If the State Government can take
so much of time to prepare a rule for implementation and
allowed the persons to continue with a paltry sum of
remuneration, that itself amounts to exploitation of the
employees. Therefore, this Court is of the considered view
that as a model employer, the State cannot utilize the services
of the petitioner and deny the benefits of scale of pay
admissible to the post, even though the benefit has been
extracted from the petitioner by utilizing his service for quite
a long period. Similar question had also come up for
consideration before this Court in W.P.(C) No. 15996 of
2019, which was disposed of vide order dated 30.03.2021.
The Division Bench of this Court directed to regularize the
services of the petitioner taking into consideration the ratio
decided by the apex Court in the case of Secretary, State of
Karnataka v. Umadevi-3 AIR 2006 Sc 1806, Amarkanti Rai
v. State of Bihar and others, (2015) 8 SCC 265, from the
date of initial appointment and the entire exercise was
directed to be done within a period of six months from the
date of communication of the order. Apart from the above, in
the case of Chander Mohan Negi & Ors Vs. State of
Himachal Pradesh & Ors, 2020 (I) OLR (SC) 865, the apex
Court held that the appointments under the scheme notified
by Government, may be irregular, but not illegal and the
condition that the appointees cannot seek regularization will
not stand as a bar for regularization, when the State for its
own requirement has extended the term of appointment from
time to time and as such appointees have continued for more
than 15 years.
7. Applying the aforementioned ratio to the present
context, this Court is of the considered view that it is the
need of the State by which the petitioner was engaged and
allowed to continue for last more than 20 years and more so,
because of the stringent condition stipulated in clause-8 of
the appointment order, the petitioner could not have come for
regularization of services well within the time specified. That
itself cannot be a bar seeking regularization of service in
view of the judgment of the Apex Court as mentioned above.
8. In view of such position, this Court is of the
considered view that since the petitioner has rendered service
for more than last 20 years against the sanctioned post, let the
services of the petitioner be regularized in terms of the
judgments of the apex Court Umadevi (supra), Amarkanti
Rai (supra) and Chander Mohan Negi (supra), as
expeditiously as possible, preferably within a period of four
months from the date of communication of this order.
Accordingly, the writ petition is allowed.
Issue urgent certified copy as per rules.
Arun (DR. B.R. SARANGI)
JUDGE
