Orissa High Court
Harapriya Patra vs State Of Odisha And Ors on 25 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OAC) No.2709 of 2016
and
batch of Writ Petitions
(In the matter of applications under Articles 226 and 227 of the
Constitution of India, 1950).
In WPC (OAC) No.2709 of 2016
Harapriya Patra .... Petitioner
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. S.Das, Adv.
Mr. R.P. Dalai, Adv.
Mr. K. Mohanty, Adv.
Mr. S. Jena, Adv.
Mr. S.K. Samal, Adv. and
Mr. S.P. Nath, Adv.
-versus-
For Opp. Parties : Mr. Biplaba Mohanty, SC
(for S & ME Deptt.)
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-11.08.2022
DATE OF JUDGMENT:-25.08.2022
(WPC(OAC) No.2709 of 2016 along with WPC(OAC) Nos.
2706 of 2016, 2707 of 2016, 2708 of 2016, 2710 of 2016, 2711
of 2016 and 2712 of 2016),WPC(OAC) No.2143 of 2014 along
with WPC(OAC) No.4504 of 2016, WPC(OAC) No.227 of
2017),WPC(OA) No.845 of 2016, WPC(OA) No.1768 of 2017,
(W.P.(C) No.11710 of 2021 along with WPC(OAC) Nos.1317
of 2017, 1318 of 2017, 1319 of 2017, 1320 of 2017 & 2672 of
2017), WPC (OAC) No.1046 of 2009, W.P.(C) No.11713 of
2021 and W.P.(C) No.5573 of 2022.
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Dr. S.K. Panigrahi, J.
1. Since similar questions of law or facts are involved in all the
above Writ Petitions, all the matters were heard together.
However, this Court felt it appropriate to decide WPC
(OAC) No.2709 of 2016 and whatever the outcome of the
said Writ Petition, the same will be covered to other similar
Writ Petitions mentioned above.
I. Facts of the case:
2. The petitioner having the qualification of B.A. B.Ed was
initially appointed as an Assistant Teacher against a
Trained Graduate Post as per the Order No.515 dated
21.01.1994 by the Executive Officer, Berhampur
Municipality by following due procedure of selection.
Accordingly, she joined at MPL Girls High School, Military
line, Berhampur. The said School was managed by the
Berhampur Municipal Council and from time to time the
remuneration was enhanced and the services of the
Petitioner was treated as remunerative Teacher by getting
remuneration of Rs.2000/- per month without getting any
increment, regular scale of pay and other consequential
benefit at par with the other teachers of Municipality.
3. While the Petitioner was continuing as such in the year
2001, the Executive Officer, Berhampur Municipality vide
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its letter No.10906 dated 08.10.2001 has informed the
Director, Municipal Administration and Additional
Secretary to Government, Housing and Urban
Development Department, Orissa, Bhubaneswar regarding
the vacancy position which were available and required to
be filled up by obtaining concurrence of the Finance
Department for smooth running of Schools. As can be seen,
on a bare perusal of the said letter, 182 numbers of teaching
posts were sanctioned by the Government for nine High
Schools and two M.E. Schools run by Berhampur
Municipality and out of which there were 93 regular
vacancies in which 61 remunerative teachers and five ad
hoc teachers were appointed by Municipal Council.
4. The position of the Petitioner was within the list of 61
numbers of remunerative teachers. While the Petitioner was
serving as such, some of the remunerative teachers who
were serving under the Berhampur Municipality had filed a
Writ Petition bearing O.J.C. No.2230 of 2002 before this
Court challenging the gradation list prepared by the
Berhampur Municipality. In the said Writ Petition, this
Court had directed the Berhampur Municipal Council to
prepare a gradation list according to their date of joining.
Accordingly, the Municipality prepared a gradation list of
teachers serving in different High Schools under the control
of Berhampur Municipality. In the said gradation list the
name of the present Petitioner found place at serial No.21.
5. The Petitioner continued at the post of Assistant Teacher till
the year 2004. The Housing and Urban Development
Department vide Resolution dated 28.02.2004 had declared
the service condition of the teachers working in different
Urban Local Bodies such as 65 Lower Secondary (M.E.) and
82 Secondary/High Schools by transferring them to the
administrative control of School and Mass Education
Department by declaring and treating them as Government
employee with effect from 28.02.2004. In the said resolution
the Government had decided the service condition of the
Urban Local Bodies and it was further mentioned that the
non-regular teaching staff 220 in number and non-teaching
staff of 87 in number working in those Schools as on the
date of takeover are also declared as Government servant.
6. While the matter stood thus, the School and Mass
Education Department in order to implement the
Resolution dated 28.02.2004 with respect to the services of
220 numbers of Non-regular teachers has issued a letter
vide No.22298 dated 10.12.2010 in which they have
regularized the services of some of the Non-regular
teaching staff and on the same day issued another order
vide No.22313 dated 10.12.2010 in which they have created
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104 numbers of contractual posts for absorption of non-
regular teachers and non-teaching staffs on contractual
basis. The Opposite Parties on one hand created and
regularized some of the non-regular teachers as regular and
on the other hand placed some of the other non-regular
teachers on contractual basis without making any contract
agreement with the teachers who are paid the remuneration
of contractual teacher which is a clear violation of their own
policy decision and contrary to the guidelines.
7. One TGT Teacher sought for an information from the Office
of the Opposite Party No.2- Director, Secondary Education,
Odisha, Bhubaneswar under the RTI Act regarding the
number of teachers regularized out of 220 numbers of
regular teachers cited in paragraph-7 of Orissa Gazettee
No.4942/M-lll-M 43/2003/HUD Resolution dated 28.02.2004.
A list of these teachers may be provided from the date of
28.02.2004. Further, a file containing the lists of these
teachers' names of 220 teachers and their concerned School
mentioned in para-7 of Resolution may be provided. The
Opposite Party No.2 vide letter No.49005, dated 23.11.2012
directed the PIO of different District Education Officers to
provide information regarding the list of 220 numbers of
Non-regular Teachers to which the Opposite Party No.3/
District Education Officer, Ganjam vide letter No.20704
dated 12.12.2012 provided information regarding the list of
Non-Regular Teachers of Ganjam circle, in which the name
of the petitioner found place. The list contains the name of
the Non-Regular teachers in which some of the Non-
Regular teachers have been regularized in Ganjam circle.
8. While the matter stood thus, the Opposite Party
No.1/Commissioner-cum-Secretary to Government of
Orissa, School and Mass Education Department vide order
No.2429 dated 03.02.2011 passed an order stating therein
that the Government has created some contractual posts in
different takeover ULB High Schools vide department letter
No.22313 dated 10.12.2010 and the posts are meant for
absorption of non-regular teaching and non-teaching staff
of ULB High Schools. Six contractual posts of Trained
Graduate Teachers have been created for BAS Municipal
High School, Aska Road, Berhampur in which the
Petitioner was working. Out of such said six posts, the
Inspector of Schools, Ganjam had been requested to absorb
the Petitioner in the said School after verification of the
records.
9. As per the procedure and practice, the contractual posts are
always created on abolition of regular vacant posts. But in
the instant case, no such abolition order has been made
since the petitioner is continuing against a sanctioned TGT
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post from the very beginning of her appointment. So there
is no question of abolition or surrender of such post as such
the creation of such contractual post as well as the
appointment of the Petitioner and others against such
created contractual post instead of appointing them on
regular basis is also said to be illegal and not sustainable in
the eye law as the resolution does not prescribe such
contractual appointment and even there is no such
contract/agreement between the Petitioner with its
employer for such contractual appointment.
10. After the interference of the Tribunal, the Opposite parties/
authority has issued a fresh office order No.2 dated
30.05.2011 to the Petitioner by absorbing her as contractual
teacher against TGT post so created with effect from
28.02.2004 based on her initial appointment as well as
seniority. Pursuant to the said office order dated 30.05.2011,
the Petitioner submitted her joining report and being an
obedient employee discharging her duty at MPL Girls'
High School, Aska Road, Berhampur.
11. In spite of the Government Resolution dated 28.02.2004
and specific direction of the learned Tribunal to consider
the case of the Petitioner in its order dated 28.11.2008, the
Opposite Party No.3 has placed the Petitioner along with
other Non-Regular teachers by mis-interpreting the
Government Resolution dated 28.02.2004 so also the order
of the Tribunal in its own way with a mala fide intention to
avoid and bypass the real issue involved i.e. equal to
Service of Non-Regular Teaching staff.
12. The Opposite Parties/ authorities ignoring the
regularization of the services of the Petitioner even went to
the extent to regularize an ad- hoc Classical teacher who is
junior to the Petitioner as per the gradation list. The person,
namely, Susama Sahu, who joined in her service on
28.03.1995 has been regularized, whereas the Petitioner
joined in her service on 21.01.1994 was over looked.
13. Similarly the Opposite Parties/ authorities have also
regularized the services of Non-Regular Teachers of
Sundargarh Circle, Cuttack Circle and Ganjam Circle out of
220 numbers as per the Government Notification
28.02.2004.
14. In spite of several communications and recommendations
for consideration of regularization of service of the
Petitioner, the Opposite Parities/ authorities did not take
any effective steps. Rather, they slept over the matter for
years together for which the Petitioner along with others
are highly prejudiced and affected. So, there is a clear case
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of discrimination on the part of the Opposite Parties
towards the Petitioner.
15. In spite of constant approaches and several representations
when the Opposite Parties/ authorities did not take any
action and steps for regularization of her service, the
Petitioner then submitted her last representation to the
Grievance Cell of the Chief Minister, Odisha, Bhubaneswar
ventilating her grievance and narrating the facts in detailed
praying to consider her case sympathetically to regularize
her service with effect from 28.02.2004 like that of other
Non-Regular Teachers.
16. In spite of Government Resolution dated 28.02.2004 and
specific direction of the Tribunal in OA.No.1447 of 2008,
several communications, guidelines and circulars,
representations of the Petitioner to regularize her service,
the non-consideration of the case of the Petitioner for
regularization of her service by the Opposite
Parties/authorities is nothing but illegal and arbitrary.
Therefore, the Petitioner is constrained to approach this
Court.
II. Submissions advanced on behalf of the petitioner:
17. Learned counsel for the Petitioner submitted that in the
instant Writ Petition the Petitioner has challenged the action
of the Opposite Parties in not regularizing her services and
treating her to be a contractual employee against a
substantive vacancy from the date she was appointed in
Municipality High School i.e. on 21.01.1994 i.e. the period of
service she has rendered prior to the date of taking over of
the school i.e. prior to 28.02.2004. Moreover, the Petitioner
has been treated as Government servant with effect from
28.02.2004 when the school was taken over by the State
Government, but her service has been regularised with
effect from 12.08.2016 vide the impugned order dated
8.09.2016 issued by the Opposite Party No.4/ District
Education Officer, Ganjam.
18. He further submitted that the present Petitioner who has
been working against a Trained Graduate Post since
24.01.1994 and has served more than 28 years as Trained
Graduate Teacher against a substantive vacant post. The
State Government itself in its Resolution No.4942 dated
28.02.2004 under Clause-7 decided to declare the Non-
Regular Teaching and Non-teaching staff as regular
Government Servant as on date of takeover i.e. on
28.02.2004. Therefore, when the Government itself has
decided to regularize the service of the staffs like the
present Petitioner and declare them as Government
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Servant, no departure from the same will be permissible in
the law and it is incumbent on the part of the Opposite
Parties to provide regular service benefits as due and
admissible to the present Petitioner with effect from the
date of her initial joining as Trained Graduate Teacher.
19. It is further submitted that similarly situated Teaching Staff
like that of the Petitioner, who are coming within 220
numbers of Non-Regular Teaching staff and were working
as Ad hoc teachers in different Urban Local Body (ULB)
High Schools, their services were regularized by the
Opposite Parties with effect from 28.02.2004 i.e. the date of
Resolution. Whereas some of the teaching staff working in
ULB of Cuttack Circle, who were also amongst the 220
numbers of Non-Regular Teaching staff, the Opposite
Parties have regularized their services counting their past
period of service with effect from 2003. Therefore, it is
crystal clear that the Opposite Parties have regularized
similarly situated teachers like that of the present Petitioner
with effect from 28.02.2004 and in the case of teachers
working in ULB of Cuttack Circle with effect from 2003. But
in the case of the Petitioner, the Opposite Parties
regularised her service with effect from 12.08.2016 wiping
out the past period of service rendered by her which is in
gross violation of Articles 14 and 16 of the Constitution of
India.
20. Learned counsel for the Petitioner contended that in the
counter affidavit dated 15.01.2018 filed by the Opposite
Party No.3, it has been specifically stated that the Petitioner
was one amongst the 220 number of non-regular teaching
staff which was taken over by the Opposite Party No.1 vide
Resolution dated 28.02.2004 and those teaching staff were
declared as Government Servants with effect from
28.02.2004. It was further admitted that the services of
Susama Sahu, Ad-Hoc Classical Teacher, Municipality
Girls' High School, Aska Road, Berhampur who was in
position as on 28.02.2004 like that of the present Petitioner,
the Opposite Parties have regularized her service with
effect from 28.02.2004 but the petitioner's case was
overlooked even if she is in a similar footling. Her services
were regularized with effect from 12.08.2016 which is a
classic case of discrimination hitting Article 14 of the
Constitution of India.
21. Learned counsel for the Petitioner also submitted that the
Supreme Court in catena of decisions has categorically held
that the service rendered by a teacher in an educational
institution and the teaching experience acquired before
taking over of the institution cannot be obliterated on the
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ground that the institution is taken over by a new
management. It is understandable that the teacher has to
join service under a new management for the first time and
so could be in that sense regarded as a fresh entrant. But his
/ her teaching experience in the institution before its taking
over cannot be completely effaced. One of the judgments of
the Supreme Court is in the case of State of Orissa and Anr.
-vrs.- N.N. Swamy and Ors. Etc.1
III. Submissions by the Opposite Parties:
22. Learned Standing Counsel for the Department of School
and Mass Education submitted that the petitioners in all
these batch of Writ Petitions sought for a direction from this
Court to regularise their services with effect from the date
when they have been appointed under Berhampur
Municipality along with all service and consequential
benefit. It is stated that in some of the Writ Petitions the
respective Petitioners have sought for a direction for
regularisation of their service with effect from 28.02.2004.
23. In all these Writ Petitions it is the admitted case of the
respective Petitioners that they have been appointed on the
basis of the order passed by the Executive Officer,
(1977) 2 SCC 508
Berhampur Municipality and their initial appointment as
Remunerative/ Adhoc/ on daily wages basis.
24. On a close reading of the very initial so called appointment
made in favour of the Petitioners, it is apparently clear that
their appointment itself is not in accordance with the
prescribed norms and guidelines. In this connection, it is
mentioned that all these Petitioners have never been
appointed in a regular process of selection by issuing
advertisement inviting applications from general public nor
there was any regular process of recruitment through which
these Petitioners were appointed by the then Executive
Officer, Berhampur Municipality. In other words, the very
initial appointment of the Petitioners is illegal, irregular,
dehorce the prescribed norms and guidelines and the said
appointment was never made by the then Executive Officer,
Berhampur Municipality against substantive vacant post.
25. He further submitted that it is the case of the Petitioners
that while the Petitioners were continuing on adhoc/
remunerative' daily wages basis and as high skilled
employees, the Government in the Department of Housing
and Urban Development Department took a decision to
transfer the schools, which were under the administrative
control of Urban Local Bodies to the control of the School
and Mass Education Department. While taking such
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decision the Government in the Department of Housing
and Urban Development issued a resolution bearing
Resolution No. 4942/M-III-M-43/2003/HUD dated 28.2.2004
wherein it has been specifically stipulated under Clause-4
of the said resolution with the heading "Regularisation of
Surplus Staff" that the staff will be absorbed on the basis of
students strength as well as Additional Sections of these
schools as per methods followed by School and Mass
Education Department.
26. Pursuant to such decision of the Government under
Resolution dated 28.2.2004, the ULB schools came to the
control of the Government under the Department of School
and Mass Education. The Petitioners who are continuing as
NMR, DLR, Remunerative Teachers, their services were
transferred to the control of School and Mass Education
Department with the very same status as they were
continuing as against the teaching post under the Housing
and Urban Development Department. The petitioners after
transfer of all these ULB schools to the control of School and
Mass Education Department, they continued under the
control of School and Mass Education Department with the
same status as before as NMR, DLR, and Remunerative
Teachers with the same conditions.
27. It is submitted that while the matter stood thus, the
Government in the Department of School and Mass
Education after obtaining necessary sanction from the
Governor in due consultation with the Finance Department,
the Government in School and Mass Education Department
took a decision for creation of contractual posts in ULB high
schools transferred by Housing Urban Development
Department to School and Mass Education Department
vide Resolution No. 4942/ H &UD dated 28.2.2004. The sole
purpose of taking such a decision at the instance of the
Government by obtaining necessary sanction from the
Governor in this regard was to create certain teaching and
non-teaching posts for different taken over ULB high
schools in order to absorb non-regular teaching and non-
teaching staff. Such decision of the Government in School
and Mass Education Department was taken under letter
No. 22313/SME dated 10.12.2010.
28. On a meticulous reading of the contents of the letter dated
10.12.2010 it is apparently clear that necessary sanction has
been accorded by the Governor for creation of 104 numbers
of teaching (75 TGT + 10 TI +2 TM +7 Classical Teacher +10
Hindi Teacher) and 43 numbers of non teaching (two PET +
14 numbers of classical + 27 peons) contractual post as per
the list enclosed to the said letter in respect of different
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taken over high schools transferred by H and UD
Department to School and Mass Education Department
under Resolution dated 28.2.2004.
29. It is also submitted pursuant to taking such a decision at
the instance of the Government in the department of School
and Mass Education, the present Petitioners those who
were continuing as NMR, DLR, Remunerative Teachers on
consolidated basis, they were appointed on contractual
basis with effect from 30.5.2011. The petitioners along with
other irregular appointees who were continuing with the
status of NMR, DLR, Remunerative Teachers were
appointed on contract basis and such decision of the
Government in the Department of School and Mass
Education was made in order to regularise the irregular
appointment appointed them on contract basis.
30. Pursuant to such decision of the Government, the
Petitioners have accepted the offer of said contractual
appointment and by accepting such contractual
appointment they joined in their services as per the
conditions stipulated in the said contractual engagement.
31. It is contended that the Petitioners have never preferred to
challenge the decision of the Government under
Government letter dated 10.12.2010. Therefore, the decision
taken by the Government in the Department of School and
Mass Education for creation of such number of teaching
and non teaching staffs in respect of transferred ULB
schools to the Department of School and Mass Education
and the decision taken therein for absorption of the
irregular appointees whose position stood as such on the
date of transfer i.e on 28.2.2004, the status of NMR, DLR,
Remunerative Teachers and on daily wage basis and hence,
the decision of the Government in the Department of School
and Mass Education remain un-assailed, unchallenged and
reached its finality.
32. The Petitioners while continuing in their service on
contract basis have approached the learned Tribunal in O.A
No.1690 of 2014 along with batch of O.As, wherein prayer
was made for issuance of direction to the authorities of the
Government to declare them as regular Government
employees with effect from 28.2.2004 and to extend all
service benefit along with arrear salary etc.
33. The authorities of the State Government filed counter
affidavit denying the allegations and averments made in
the Original Applications. The Original Applications were
heard on 09.02.2016 and the Tribunal disposed of the same
analogously by delivering common judgment on 09.02.2016.
34. During course of hearing of the Original Applications
though it was submitted on behalf of the Petitioners to
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regularise their services with effect from 28.2.2004, the
Tribunal was not inclined to grant such prayer. On the
other hand, the Tribunal upon hearing the authorities
formed an opinion that the regularisation of the petitioner
is a policy decision, which has to be taken by the authorities
of the Government and accordingly the Tribunal while
disposing of the said Original Applications observed as
follows:
"In view of the above discussion, respondent
No.1 is directed to formulate a policy regarding
regularisation of the applicants in all the O.As
keeping in view their qualification and
experience within a period of four months from
the date of receipt of a copy of this order."
35. Pursuant to the direction dated 09.02.2016 passed by the
Tribunal in O.A No.1690 of 2014 along with batch of cases,
the Government in the Department of School and Mass
Education in due consultation with the Finance Department
vide UOPR No.23 SS.1/ dated 22.2.2016 took a policy
decision for regularisation of the services of the teaching
and non teaching employees engaged on adhoc NMR, DLR,
Consolidated remuneration basis beyond the yardstick and
who have subsequently adjusted against the contractual
post with effect from 28.2.2004. In order to regularise the
service of such employees, the Government after careful
consideration was pleased to absolve 186 numbers of
teaching and non teaching contractual employees of
transferred ULB high schools by way of regularisation of
their services absolving seniority against the corresponding
regular vacant post available under the respective DEOS
prospectively i.e from the date of issue of the said order.
Such decision was taken by the then Commissioner-cum-
Secretary to Government in the Department of School and
Mass Education after obtaining necessary concurrence from
the Government in the Finance Department. The aforesaid
decision was taken by the Commissioner-cum Secretary to
Government under letter No. 16249/SME dated 12.8.2016.
36. Pursuant to the aforesaid decision of the Government
under letter dated 12.8.2016 the then DEO, Ganjam issued
office order bearing office order No.10439 dated 28.9.2016,
wherein the services of the Petitioners as well as the
contractual teaching and non teaching employees of
transferred ULB high schools of the district of Ganjam were
regularised with effect from 12.8.2016 and the persons
whose service have not regularised, they were posted as
such in different schools as reflected under the said office
order dated 28.9.2016.
37. It is also submitted that the applicant in O.A No. 1690 of
2014, which was lead case before the learned Tribunal, the
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applicant in the said O.A namely Md. Zahiruddin has
approached this Court in W.P(C) No.19144 of 2016
challenging the common order dated 09.02.2016 passed by
the Tribunal in O.A No.1690 of 2014 along with batch of
cases. The said Writ Petition was taken up for consideration
on the question of hearing and admission on 27.04.2017.
During course of hearing, this Court was not inclined to
interfere with the grievance as their grievance was pending
before the authority. The counsel for the Petitioner in the
said Writ Petition bearing W.P(C) No.19144 of 2016 seeking
liberty to withdraw the Writ Petition in order to enable him
to approach the appropriate authority for redressal of his
grievance. Accordingly the said Writ Petition was
withdrawn at the instance of the petitioner namely Md.
Zahiruddin.
38. The Petitioners pursuant to regularisation of their services
on the basis of the office order dated 28.9.2016 accepted
their place of posting as reflected in the said office order in
their respective place of posting and joined in their services
and since then they are getting all the benefits of
Government servant from time to time as they are entitled
to.
39. He further submitted that the petitioners after accepting
their order of regularisation and after joining in their
service as a regular teachers while continuing as such have
again approached this Court in the present Writ Petition
with the self same grievance, which has been urged by
them before the Tribunal for regularisation of their service
with effect from 28.2.2004 with all consequential benefits.
40. It is also submitted that during course of hearing of the
case, the counsel for the Petitioner led much emphasis on
Clause-7 of the Government Resolution dated 28.02.2004. It
was vehemently contended by the learned counsel for the
petitioner that non-regular teaching staff of 220 in number
and non-teaching staff of 87 in number working in these
schools as on the date of taken over i.e. 28.02.2004 are also
declared as Government servants. On the basis of such
provision, it was vehemently contended on behalf of the
counsel for the petitioner that the date i.e the ULB schools
were taken over/ transferred by the Government in School
and Mass Education Department, these transferred
employees are to be treated as Government servant as per
Clasue-7 of the Resolution dated 28.02.2004 and all such
benefit bar with the Government servant should be
extended to them.
41. On the other hand, it was submitted by the learned counsel
for the State that the very initial appointment of the
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Petitioners, which is apparent from the document annexed
by the respective petitioners with regard to their initial
engagement by the then Executive Officer, Berhampur
Municipality that none of them were appointed by a regular
process of selection by resorting to an open advertisement
inviting application from general public and selected such
candidates in a regular process of recruitment. So, the very
initial appointment of the Petitioners as is apparent from
their engagement letters annexed to the Writ Petitions, it is
clear that they have been appointed illegally in an irregular
process.
42. It was further contended by the learned counsel for the
State that the Petitioners are well aware of the fact that at
the time of transfer of ULB school to the control of School
and Mass Education Department they were continuing as
irregular appointees on the basis of NMR, DLR,
remunerative teachers, adhoc teachers and high skilled
employees. After transfer of such ULB schools in order to
regularise those irregular appointees, Government in the
Department of School and Mass Education took a decision
by according sanction from the Governor for creation of
such number of teaching and non-teaching staff to give
them appointment on contract basis. Such decision of the
Government was taken after obtaining necessary sanction
from the Government in due consultation and concurrence
of the Government in Finance Department under letter
dated 10.12.2010. Pursuant to such decision, the Petitioners
were appointed on contract basis with effect from 30.5.2011.
Furthermore, as there are several grievances from different
corners as well as the direction issued by the Tribunal in
batch of Original Applications wherein the lead case being
O.A No. 1690 of 2014, the Government in the Department of
School and Mass Education took a decision to regularise the
service of such contractual employees and pursuant to the
decision of the Government, the Petitioners services have
been regularised with effect from 28.09.2016.The Petitioners
at present make a grievance as if their grievance with
regard to regularisation was never taken care by the
Government and they sought for their regularisation with
effect from 28.02.2004 i.e. the date of notification made by
the Government and as because there is a stipulation under
Clause-7 that the non-regular teaching and non-teaching
staff, their services were declared as Government servant
on the basis of such process under Clause-7. They are
seeking direction to regularise their services with effect
from 28.02.2004. Such contention raised by the Petitioners is
unsustainable in law in view of the fact that the very initial
appointment of the Petitioners is illegal and irregular and at
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the time of transfer of such ULB schools to the control of
School and Mass Education Department, the Petitioners
who are continuing as NMR, DLR, Remunerative Teacher,
Daily wage, came over to the Department of School and
Mass Education with the same status. The Government at
the different points of time has taken several steps to bring
the end to these irregular and illegal appointees and to
regularise their services. In such process from 2010 till 2016
several steps have been taken at the instance of the
Government to give such employee as regular status. All
the steps taken at the instance of the Government at that
point of time should be taken note while dealing with the
grievances of the Petitioners as has been made in the writ
petitions.
43. Learned counsel for the State further submitted that this
Court may visualize the steps taken by the Government at
different point of time for creation of adequate numbers of
post by according sanction from the Governor in order to
give contractual appointment to the Petitioners so as to
regularise their service in due time as per the policy
decision of the Government. As such there is neither any
illegalities nor any irregularities committed on the part of
the Opposite Parties while regularising the service of the
petitioner with effect from 28.9.2016.
44. It is also submitted that from 2010 when the authorities of
the Government have taken steps for creation of posts and
pursuant to creation of such post, the Petitioners were
appointed on contract basis. The Petitioners availed such
benefit by accepting such contractual appointment and
continued in their service. They never preferred to
challenge the decision made by the Government by offering
them the contract appointment at any point of time. The
Petitioners who are brought over to School and Mass
Education Department with NMR, DLR, remunerative
teachers, adhoc teachers and high skilled employees status
after availing the benefit of contractual appointment made a
further grievance for their regularisation of service by
approaching the Tribunal and the Tribunal upon hearing
the grievance of the Petitioners was not inclined to entertain
their prayer for regularization of their services with effect
from 28.02.2004. The Tribunal while disposing of the
Original Applications was of the view that the question of
regularisation of the Petitioners relates to a policy decision
of the Government and let the Government take a policy
decision with regard to regularisation of the services of the
Petitioners. Accordingly, the Tribunal while disposing of
the Original Appliations in leading O.A No.1690 of 2014
specifically directed the authorities of the Government to
26 of 43
take a policy decision in this regard. The Petitioners though
challenge the said order passed by the Tribunal before this
Court, they failed in their attempt to vary/ reverse the order
passed by the Tribunal. As such the decision rendered by
the Tribunal in O.A No.1690 of 2014 along with batch of
cases reached its finality and consequent upon the direction
issued by the Tribunal, the services of the Petitioners have
been regularised on the basis of policy decision taken by the
Government. Such policy decision taken by the
Government is strictly in accordance with the existing
norms and guidelines as prescribed by the Government.
45. He further submitted that it is well settled principle of law
as has been laid down by the Supreme Court that the date
from different regularisation is to be granted is a matter to
be decided by the employer keeping in view the number of
factors like the nature of work, number of post lying vacant,
the financial condition of the employer, the additional
financial burden cause, the suitability of the workmen for
the job, the manner and reason for which the initial
appointment were made etc. The said decision will depend
upon the facts of each year. This well settled principle of
law has been laid down by the Supreme Court in the
decision rendered by the Supreme Court in Managing
Director, Ajmer Vidhyut Vitran Nigam Ltd. Ajme and
another Versus Chiggan Lal and others2.
46. Lastly learned counsel for the State submitted that in view
of the above facts and circumstances, the policy decision of
the Government with regard to the regularisation of the
services of the Petitioner by regularising him with effect
from 12.08.2016 made by the Government caused neither
any illegality nor any irregularity by the authorities of the
Government and as such the Writ Petition and the
grievance of the Petitioner made therein are devoid of any
merit and the Writ Petition is liable to be dismissed.
47. A counter affidavit has also been filed by the Opposite
Party No.3/ District Education Officer, Ganjam stating
therein that the petitioner having B.A B.Ed. qualification
was appointed as Remunerative Assistant Teacher against
Trained Graduate post by the Executive Officer, Berhampur
Municipality with monthly consolidated remuneration of
Rs.2000/ per month at MPL Girls' High School, Military
Line, Berhampur. Such designation was assigned by the
Berhampur Municipal Authority without obtaining any
instruction/ order of the Housing and Urban Development
Department. There is no such order of Housing and Urban
2 Civil Appeal No.1875/2022 (arising out of SLP (C) No. 19181 of 2017)
28 of 43
Development Department in support of sanction of such
remunerative teacher. The engagement of the Petitioner by
the Municipal authority is not against existing post. As a
matter of which the Petitioner failed to submit the
appointment order against a vacant regular Trained
Graduate post. Therefore, the claim of the Petitioner
regarding appointment against a regular teacher post is not
correct at all.
48. It is further stated submitted that subsequently the said
High School has been transferred from Housing and Urban
Development Department to the School and Mass
Education Department, Odisha vide Resolution
No.4942/H&UD dated 28.02.2004. with effect from
28.02.2004. The non-regular teaching and non-teaching
employees including the Petitioner working in different
ULB High Schools have been taken over by the School and
Mass Education Department with effect from 28.02.2004.
Accordingly, as per the policy decision of the Government,
the pay of the non-regular employees including the
Petitioner has been paid on consolidated remuneration by
the Government in School and Mass Education Department
with effect from 28.02.2004 as per Finance Deptt. O.M
No.32986 (255)/F dated 07.07.2008 and as revised from time
to time. Therefore the claim of the Petitioner for regular
scale of pay attached to the post from retrospective date is
not maintainable in the eye of the law.
49. It has been further stated that after taken over of the ULB
High Schools including non-regular teaching and non-
teaching employees, the Government in their order
No.22313/SME dated 10.12.2010 have been pleased to create
some contractual posts for absorption of non-regular
teaching and non-teaching employees who were working in
different ULB High Schools as remunerative teacher as on
the date of taken over i.e 28.02.2004. Accordingly, the
Petitioner has been absorbed as contractual remunerative
teacher and the remuneration has been paid to the
Petitioner as per policy decision of the Government.
50. It has also been stated that similarly engaged contractual
teachers had prayed before the Tribunal with the claim for
regularisation of their services from retrospective effect
vide O.A Nos.1690 of 2014, 1691 of 2014, 1692 of 2014, 1693
of 2014, 1694 of 2014 and 2590 of 2014. It has been
contended that the Petitioner was never appointed by the
Government on regular basis having regular scale of pay by
the Executive Officer, Berhampur Municipality. Rather, the
Executive Officer, Berhampur Municipality vide its letter
dated 08.10.2001 sought instruction from the Government
30 of 43
for filling up of the said vacancies. Hence, the averment that
the Petitioner was appointed against regular vacancy is not
correct. He was one of 220 numbers non-regular and adhoc
teaching staff taken over by Opposite Party No.1 in
Housing and Urban Development Department Resolution
dated 28.2.2004. 220 numbers of non-regular teaching staff
and 87 numbers of non-teaching staff working in different
ULB High Schools as on the date of taking over i.e.
28.02.2004 were also declared as Government servants. Out
of the said non-regular teachers, some were working on
adhoc basis having regular scale of pay along with other
allowances like D.A and H.R.A etc. However, some non-
regular teachers including the Petitioner were working as
remunerative teacher appointed by the Municipal Council
with a consolidated remuneration which are not coming
under standard staffing pattern of High Schools framed by
the School and Mass Education Department. It was further
stated that as per Order dated 27.5.2011 the Petitioner is
being given a consolidated remuneration against the
Contractual post so created for absorption of remunerative
teacher. The services of Smt. Susama Sahu, Ad-hoc Classical
Teacher, MPL Girls' High School, Aska Road, Berhampur
who is in position on 28.2.2004 and against whom the post
of Classical Teacher has been created in the said High
School for her absorption in the aforesaid letter of School
and Mass Education Department, Government of Orissa is
regularized from 28.02.2004. The service condition between
Susama Sahu and the Petitioner is totally different.
IV. Court's Reasoning, Conclusion and Order:
51. Heard learned counsel for the parties.
52. The Appointment on public post should be strictly in
accordance with Articles 14 (Equality before law) and 16
(Equality of opportunity in matters of public employment)
of the constitution of India. Public employment i.e. jobs
controlled by the Government sector in a sovereign socialist
secular democratic republic has to be as set down by the
Constitution and the laws made there under. Our
constitutional scheme envisages employment by the
Government and its instrumentalities on the basis of a
procedure established in that behalf.
53. Regularization of contractual services has been a persistent
matter of litigation for several decades now. In this regard,
the Apex Court has clarified that the same has to be based
on the necessity of the said post and the duration of the
service of the employee. Constitution Bench of the Supreme
32 of 43
Court in the case of Secretary, State of Karnataka & Ors vs.
Umadevi & Ors.3 has laid down the following ratio:-
"(I) The questions to be asked before regularization
are:-
(a)(i) Was there a sanctioned post (court cannot order
creation of posts because finances of the state may go
haywire), (ii) is there a vacancy, (iii) are the persons
qualified persons and (iv) are the appointments
through regular recruitment process
(b) A court can condone an irregularity in the
appointment procedure only if the irregularity does not
go to the root of the matter.
(II) For sanctioned posts having vacancies, such posts
have to be filled by regular recruitment process of
prescribed procedure otherwise, the constitutional
mandate flowing from Articles 14,16,309, 315, 320 etc
is violated.
(III) In case of existence of necessary circumstances the
government has a right to appoint contract employees
or casual labour or employees for a project, but, such
persons form a class in themselves and they cannot
claim equality(except possibly for equal pay for equal
work) with regular employees who form a separate
class. Such temporary employees cannot claim
legitimate expectation of absorption/regularization as
they knew when they were appointed that they were
temporary inasmuch as the government did not give
and nor could have given an assurance of
regularization without the regular recruitment process
being followed. Such irregularly appointed persons
cannot claim to be regularized alleging violation of
Article 21. Also the equity in favour of the millions
who await public employment through the regular
3 2006(4) SCC 1
recruitment process outweighs the equity in favour of
the limited number of irregularly appointed persons
who claim regularization.
(IV) Once there are vacancies in sanctioned posts such
vacancies cannot be filled in except without regular
recruitment process, and thus neither the court nor the
executive can frame a scheme to absorb or regularize
persons appointed to such posts without following the
regular recruitment process.
(V) At the instance of persons irregularly appointed
the process of regular recruitment shall not be stopped.
Courts should not pass interim orders to continue
employment of such irregularly appointed persons
because the same will result in stoppage of recruitment
through regular appointment procedure.
(VI) If there are sanctioned posts with vacancies,
and qualified persons were appointed without a
regular recruitment process, then, such persons
who when the judgment of Uma Devi is passed
have worked for over 10 years without court
orders, such persons be regularized under schemes
to be framed by the concerned organization.
(VII) The aforesaid law which applies to the Union and
the States will also apply to all instrumentalities of the
State governed by Article 12 of the Constitution".
54. In the case of Roshan Lal Tandon v. Union of India4, the
Supreme Court observed:
"It is 'true that the origin of Government service is
contractual. There is an offer and acceptance in every
case. But once appointed to his post or office the
Government servant acquires a status and his rights
and obligations are no longer determined by consent
4 1968 SCR (1) 185
34 of 43
of both parties, but by statute or statutory rules which
may be framed and altered unilaterally by the
Government. In other words, the legal position of a
government servant is more one of status than of
contract. The hall-mark of status is the attachment to
a legal relationship of rights and duties imposed by
the public 'law and not by mere agreement of the
parties. The emolument of the Government servant
and his terms of service are governed by statute or
statutory rules which may be unilaterally altered by
the Government without the consent of the employee.
It is true that Art. 311 imposes constitutional
restrictions upon the power of removal granted to the
President and the Governor under Art. 310. But it is
obvious that the relationship between the Government
and its servant is not like an ordinary contract of
service between a master and servant. The legal
relationship is something entirely different,
something in the nature of status. It is much more
than a purely contractual relationship voluntarily
entered into between the parties. The duties of status
are 'fixed by the law and in the enforcement of these
duties society has an interest."
55. Moreover, the Petitioner has rightfully contended that as
per the procedure and practice, the contractual posts are
always created on abolition of regular vacant posts. But in
the instant case, no such abolition order has been made
since the Petitioner is continuing against a sanctioned TGT
post from the very beginning of her appointment. Hence,
there is no question of abolition or surrender of such post as
such the creation of such contractual post as well as the
appointment of the Petitioner and others against such
created contractual post instead of appointing them on
regular basis is also said to be illegal and not sustainable in
the eye law as the resolution does not speak about such
contractual appointment and even there is no such
contract/agreement between the Petitioner with its
employer for such contractual appointment. Additionally, it
is pertinent to note the necessary provisions of the
Government resolution dated 28.02.2004., wherein it was
noted that:
"4. Regularisation of surplus staff- The School
and Mass Education Department have pointed out
some surplus staff on the basis of the staffing pattern.
These staff are not surplus as per the requirement of
Urban Local Bodies. Because the Schools functioning
in urban areas having higher density of population
enrol more students than in rural areas of any school
under School and Mass Education Department. These
staff will be absorbed on the basis of student strength
as well as additional sections of these schools as per
methods followed by School and Mass Education
Department.
7. Non-Regular Services - The Non-Regular
Teaching Staff 220 in number and Non-Teaching
Stall 87 in number working in these schools as on the
date of taken over i.e. 28.02.2004 are also declared as
Government Servant."
36 of 43
56. In Ashwani Kumar and others v. State of Bihar and
others5, while considering the validity of confirmation of
the irregularly employed, the Apex Court observed that:
"In this connection it is pertinent to note that
question of regularization in any service including
any government service may arise in two
contingencies. Firstly, if on any available clear
vacancies which are of a long duration appointments
are made on ad hoc basis or daily-wage basis by a
competent authority and are continued from time to
time and if it is found that the incumbents concerned
have continued to be employed for a long period of
time with or without any artificial breaks, and their
services are otherwise required by the institution
which employs them, a time may come in the service
career of such employees who are continued on ad hoc
basis for a given substantial length of time to
regularize them so that the employees concerned can
give their best by being assured security of tenure.
But this would require one precondition that the
initial entry of such an employee must be made
against an available sanctioned vacancy by following
the rules and regulations governing such entry. The
second type of situation in which the question of
regularization may arise would be when the initial
entry of the employee against an available vacancy is
found to have suffered from some flaw in the
procedural exercise though the person appointing is
competent to effect such initial recruitment and has
otherwise followed due procedure for such
recruitment. A need may then arise in the light of the
exigency of administrative requirement for waiving
5 1996 Supp. (10) SCR 120
such irregularity in the initial appointment by a
competent authority and the irregular initial
appointment may be regularized and security of
tenure may be made available to the incumbent
concerned."
57. This is a case where the Government has failed to take any
steps for regularization of their contractual employees
working over the years. In very few years there have been
several litigations pertaining to regularization. In such
cases, the Court has to play a guiding role while issuing
directions for regularizing such employees more
particularly when the conditions prescribed in the said
orders can be said to be either unreasonable, arbitrary or
discriminatory.
58. The Opposite Parties have contended that the Petitioner's
appointment itself is not in accordance with the prescribed
norms and guidelines. In this connection, it is mentioned
that all these Petitioners have never been appointed in a
regular process of selection by issuing advertisement
inviting applications from general public nor there have
been any regular process of recruitment through which
these Petitioners were appointed by the then Executive
Officer, Berhampur Municipality. In the case of Secretary,
38 of 43
State of Karnataka v. Umadevi And Others6, the Supreme
Court iterated:
"One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal
appointments) 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 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."
6 Appeal (civil) 3595-3612 of 1999
59. In the case of Narendra Kumar Tiwari vs The State of
Jharkhand7, while inferring the decision of Umadevi (supra)
with respect to illegal appointments observed that:
"8. The purpose and intent of the decision in
Umadevi (3) was therefore two-fold, namely, to
prevent irregular or illegal appointments in the
future and secondly, to confer a benefit on those who
had been irregularly appointed in the past. The fact
that the State of Jharkhand continued with the
irregular appointments for almost a decade after the
decision in Umadevi (3) is a clear indication that it
believes that it was all right to continue with
irregular appointments, and whenever required,
terminate the services of the irregularly appointed
employees on the ground that they were irregularly
appointed. This is nothing but a form of exploitation
of the employees by not giving them the benefits of
regularisation and by placing the sword of Damocles
over their head. This is precisely what Umadevi (3)
and Kesari sought to avoid.
11. Under the circumstances, we are of the view
that the Regularisation Rules must be given a
pragmatic interpretation and the appellants, if
they have completed 10 years of service on the
date of promulgation of the Regularisation
Rules, ought to be given the benefit of the
service rendered by them. If they have
completed 10 years of service they should be
regularised unless there is some valid objection
to their regularisation like misconduct etc."
7 CIVIL APPEAL NOS.7423-7429 OF 2018 (Supreme Court)
40 of 43
60. It has been well established that the purpose and intent of
the decision in Umadevi (supra) was therefore two-fold,
namely, to prevent irregular or illegal appointments in the
future and secondly, to confer a benefit on those who had
been irregularly appointed in the past. Accordingly, the
State Government and their instrumentalities should have
taken 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. The case of the
petitioner falls under the purview of the same. Similarly, as
established in the case of Narendra Kumar Tiwari (supra),
the Regularisation Rules must be given a pragmatic
interpretation and the petitioners, if they have completed 10
years of service on the date of promulgation of the
Regularisation Rules, they ought to be given the benefit of
the service rendered by them. If they have completed 10
years of service they should be regularised unless there is
some valid objection to their regularization.
61.Similarly, in the case of Amarendra Kumar Mahapatra &
Ors. vs State of Orissa & Ors.8, the Supreme Court was of
the opinion that the appellants were entitled to
regularization in service having regard to the fact that they
have rendered long years of service on ad hoc basis for 17 to
8 (2014) 4 SCC 583.
18 years in some cases. Reliance can also be placed on the
case of Amarkant Rai vs State of Bihar & Ors.9; wherein
the Supreme Court directed the University to regularise the
service of the appellant as he rendered service for more
than 29 years in the post on daily wages.
62. It is also pertinent to note that the Opposite Parties/
authorities have also regularized the services of Non-
Regular Teachers of Sundargarh Circle, Cuttack Circle and
Ganjam Circle out of 220 numbers as per the Government
Notification 28.02.2004.
63. Therefore, this Court is inclined to iterate that the
Petitioner has been appointed in the post of Trained
Graduate Post since 24.01.1994 and has served more than 28
years as Trained Graduate Teacher against a substantive
vacant post. The State Government itself in its Resolution
No.4942 dated 28.02.2004 under Clause-7 decided to declare
the Non-Regular Teaching and Non-teaching staff as
regular Government Servant as on date of takeover i.e. on
28.02.2004. Therefore, when the Government itself has
decided to regularise the service of the staffs like the
present Petitioner and declare them as Government
Servant, no departure from the same will be permissible in
the law and it is incumbent on the part of the Opposite
9 (2015) 8 SCC 265
42 of 43
Parties to provide regular service benefits as due and
admissible to the present Petitioner with effect from the
date of her initial joining as Trained Graduate Teacher.
64. In light of the above-mentioned facts and precedents cited
hereinabove, the Court is not inclined to allow for the
regularization of the service of the Petitioner from 1994. The
Opposite Parties are hereby directed to regularize the
services of the Petitioner from the date of Government
resolution i.e. 28.02.2004 and extend the benefits for the
same.
65. Accordingly, all the Writ Petitions are disposed of.
( Dr. S.K. Panigrahi )
Judge
Orissa High Court, Cuttack,
Dated the 25th of August, 2022/B. Jhankar
