Orissa High Court
Shri V. Narasingha Murty vs State Of Odisha on 13 December, 2023
Author: B.R. Sarangi
Bench: B.R. Sarangi
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.4078 of 2013
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
Shri V. Narasingha Murty
@ V. Narasimha Murty
Aged about 45 years
Son of V. Narayan Murty
At/P.O./P.S.: Berhampur
District: Ganjam, Odisha State ... Petitioner
-VERSUS-
1. State of Odisha
Represented through
Commissioner-cum-Secretary
Rural Development Department
Secretariat, Odisha, Bhubaneswar
2. Executive Engineer
Rural Works Division-II, Ganjam
At/P.O.: Berhampur
District: Ganjam, Odisha State... Opposite parties
Counsel appeared for the parties:
For the petitioner : M/s. Tanmay Mishra and
Sangramjeet Senapati,
Advocates
For the opposite parties : Mr. Sachidananda Nayak,
Additional Standing Counsel
P R E S E N T:
THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R. SARANGI
AND
THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing : 07.12.2023 :: Date of Judgment : 13.12.2023
J UDGMENT
MURAHARI SRI RAMAN, J.--
THE PRAYER FOR RELIEF:
Aggrieved by the Order dated the 23rd September, 2011
passed by the learned Odisha Administrative Tribunal,
Bhubaneswar in Original Application under Section 19
of the Administrative Tribunals Act, 1985, registered as
O.A. No.807 of 1999, the petitioner, one of the six other
joint-applicants, came up before this Court in the
instant writ petition for issue of writ in the nature of
certiorari as also writ of mandamus, beseeching the
following relief(s):
<It is, therefore, most respectfully prayed that the Hon9ble
Court would be graciously pleased to admit the writ
petition,
And
Issue notice to the opposite parties and after hearing the
parties be pleased to set aside the impugned Order dated
23.09.2011 in O.A. No.807 of 1999 (Annexure-13):
And
Be pleased to direct that the Petitioner is entitled to
regularization in accordance with the scheme prepared
under Annexures-6, 7, 8 and 9
and further be pleased to declare that since the petitioner
is not engaged after 12.04.1993, Orders at Annexure-10
and 11 read with Annexure-6 are not binding on the
petitioner.
And
Further be pleased to grant the consequential service
benefits.
And
May grant any other relief/reliefs as deemed fit and
proper.=
PLEADINGS:
2. The factual details as adumbrated by the petitioner in
the writ application necessary for addressing the
grievance would suffice to say like thus:
2.1. The petitioner-V. Narasingha Murty @ V. Narasimha
Murty, a Diploma holder in Mechanical Engineering,
having made application along with many others, was
engaged as <consolidate wager= on 20.11.1991 in Rural
Works Section (Stores), Berhampur, in terms of
Paragraph (v) of Appendix-XXXIII4 <DEPARTMENTAL
EXECUTION OF WORK= as inserted by Office Memorandum
No.26178-Code-11/86, dated 14.10.1987 forming part of
Volume-II contained in the Odisha Public Works
Department Code.
2.2. For engagement of unemployed Graduate Engineers and
Diploma Holders in supervision, survey and
investigation etc. of Departmental execution of works
under the Departmental Engineers, the Orissa Public
Works Department Code had provided certain provision.
2.3. The Superintending Engineer, Rural Works Circle,
Berhampur prepared seniority/gradation list of Daily
Labour Rate workers engaged in the Berhampur
Division, where the name of the petitioner claimed to
have stood at Serial No.7 depicting engagement in 1991
for 36 days, 1992 for 313 days, 1993 for 352 days, 1994
and 1995 for 365 days each, 1996 for 366 day, 1997 for
365 days and 1998 for 151 days.
2.4. It is stated by the petitioner that while he was being paid
Rs.40/- per day on daily wage basis, the wage has been
enhanced vide Letter No.8800, dated 18.04.1994 issued
by Financial Adviser-cum-Joint Secretary to Government
of Odisha in Works Department addressed to Chief
Engineer/ Roads/ N.Hs./ Buildings, Odisha,
Bhubaneswar, to the following effect:
<Sub.: Revision of wages of NMR/DLR Engineering
Diploma Holder.
I am directed to say that consequent upon the
revision of wages of N.M.R. Graduate Engineers the
question of revision of wages of NMR/DLR
Engineering Diploma Holders engaged in
Investigation, Survey, Supervision etc. of works was
under active consideration of Government for some
time past.
After careful consideration, Government have been
pleased to revise the wages of N.M.R./D.L.R.
Engineering Diploma Holders from Rs.1416/- to
Rs.1600/- per month effect from the date of its
issue.
This has been concurred in by Finance Department
in their U.O.R. No.98 WF-I dated 4.2.94.=
2.5. While the matter stood thus, on 10.03.1999 following
letter came to be issued by the Executive Engineer,
Rural Works Division-II, Ganjam, Berhampur indicating
advance three months9 notice indicating disengagement:
<Office of the Executive Engineer,
Rural Works Division II, Ganjam, Berhampur 3 760 010
No.3247 Date:10.03.1999
In accordance with the Government of Odisha, Finance
Department, Bhubaneswar Resolution No.22764/F.,
dated 15.05.1997 read with Finance Department, Odisha,
Circular No.17015/F., dated 12.04.1993 and Rural
Development Department, Odisha Letter No.9390, dated
24.05.1997 and Memo No.2511, dated 16.02.1999. It is
hereby notified that the following D.L.R. workers of the
categories against such sub-division and sections of this
division are not required for engagement after
10.06.1999.
This notice is issued as no examination has been
made/conducted for their engagement and engagement
has been made according to Appendix XXXIII, Note (v) of
O.P.W.D. Code, Vol.II for Graduate/Diploma Engineers.
This is also as per provisions contained in the I.D. Act.
This may please be treated as an advance notice for
disengagement of D.L.R. workers under this Division
engaged authorisedly in conformity to the Letter No.12620
dated _____ and No.13174 dated 14.12.1998 of S.E.,R.W.
Circle.
This three month advance notice is issued for arranging
their livelyhood elsewhere.
This notice is issued further in continuation to this Office
notice No.2919, dated 06.03.1999.
Sl. Name of D.L.R. Category Name of Name of
No. R.W. Sub-divn. R.W. section
where working where working
1 Sri Chitaranjan Supervisory Berhampur Berhampur
Panda
2 Sri V.N. Murty -do- -do- -do-
3 Sri pradeep Kr. -do- -do- -do-
Padhi
4 Sri S.S. Narayan
Subudhi -do- -do- -do-
5 Sri Braja Ballabha -do- Digapahandi Digapahandi
Padhi
6 Sri Arjun Kr. Padhi -do- -do- Nuapada
7 Sri Jyoti Prasad -do- -do- -do-
Biswasray
8 Sri P.K. Padhi -do- Berhampur Kukudakhandi
9 Sri Monaj Kr. -do- Khalikote Khalikote
Panigray
10 Sri Bijaya Kr. Nayak Semiskilled Chatrapur Ganjam
Sd./-
(B.K. Das)
Executive Engineer,
R.W. Divn-II, Ganjam, Berhampur=
2.6. Citing that such disengagement vide Letter dated
10.03.1999 (Annexure-5) was issued having no regard
for certain directions and considered views of the
Government in various letters/circulars, the petitioner
along with six others, namely Pradip Kumar Padhi,
Graduate Engineer, Chittaranjan Panda, Graduate
Engineer, Anjana Kumar Padhy, Diploma Holder, S.
Sankar Narayan Subudhi, Diploma Holder, Jyoti Prasad
Biswashray, Diploma Holder, Pradeep Kumar Padhi,
Diploma Holder, approached the Odisha Administrative
Tribunal, Bhubaneswar, by way of filing Original
Application under Section 19 of the Administrative
Tribunals Act, 1985, seeking for a direction to the
opposite parties to regularize their services. Declining to
show indulgence, said Tribunal passed following Order
on 23.09.2011 in O.A. No.807 of 1999:
<Heard learned counsel for the applicant and State-
Respondents at length.
The applicant seeks regularization of service pursuant to
Order of Finance Department dated 15.05.1997 at
Annexure-6.
In view of the decision in the case of Secretary of State of
Karnataka and Others Vrs. Umadevi, 2006 (3) SLJ-I S.C.
[(2006) 4 SCC 1] such an incumbent cannot claim for
regularization of service.
However, if applicant has already been regularized in
service and order has been obtained for regularization of
service that shall stand.
The O.A. is accordingly disposed of.=
2.7. Questioning propriety of said Order of the Odisha
Administrative Tribunal, Bhubaneswar, the petitioner
seeking invocation of jurisdiction of this Court under
Article 226/227 of the Constitution of India, filed the
aforenoted writ petition.
3. Counter affidavit on behalf of the opposite parties has
been filed on 01.09.2016 contending that in view of the
Finance Department Office Memorandum No.WF-I-
105/944 30375, dated 01.08.1995, since there is no
necessity for engaging the Engineers holding Diploma
qualification in supervisory position for the purpose of
departmental execution of work on daily wage basis,
notice has been issued contemplating disengagement.
3.1. Referring to Notice No. 5592, dated 30.04.1999 issued
by the Executive Engineer, Rural Works Division-II,
Ganjam, Berhampur indicating that the services of daily
labour rate workers of different categories including that
of Graduate Engineers and Diploma Engineers in Sub-
Division/Sections of the Division were not required on or
after 10.06.1999, it has been stated that 76 employees
including the present petitioner were intimated with
regard to disengagement and the engagement, if any,
after 10.06.1999 would be treated as unauthorized.
3.2. In the said Letter dated 30.04.1999 it has been made
clear that:
<As no examination for recruitment has been conducted
for their engagement.
As there is no authority to empower the Executive
Engineer to engage Degree/Diploma holders deviating the
list from the panel.
As there is no authority to engage Degree/Diploma
holders empowering the Executive Engineer to engage
them for a longer period.
As no notice has been issued inviting application for
engagement of Degree/Diploma Engineers and other
category of D.L.Rs.
Since no appointment orders have been issued for their
engagement and no recruitment procedure has been
followed.
As the DLRs listed below (name of petitioner appears at
Serial No.2 among total serial numbers of 76) has not
been engaged against any sanctioned posts.=
3.3. It is further stated by the opposite parties that since no
cadre of engineers does exist nor is it maintained under
the opposite party No.1-Rural Development Department,
the claim of the petitioner for regularization cannot be
acceded to. This apart, the petitioner does not draw
salary, but was paid daily wage as per the norm fixed
from time to time under the Minimum Wages Act, 1948.
3.4. The aforesaid factual position does not entail
consideration of the case of the petitioner for
regularization in service as none of the criteria envisaged
in State of Karnataka Vrs. Uma Devi, (2006) 4 SCC 1 is
satisfied.
3.5. Raising objection against the averments of the petitioner
justifying consideration for regularization in service in
view of Finance Department Resolution dated 15th May,
1997 with regard to <Scheme for absorption of
NMR/DLR/Job Contract workers under Regular
Establishment= (Annexure-6), Rural Development
Department Letter No.8390/RD, dated 24.05.1997
regarding <Scheme for absorption of NMR/DLR/Job
Contract workers under Regular Establishment=
(Annexure-7) and Letter vide Memo No.2511/RD, dated
16.02.1998 issued by the Principal Secretary to
Government, Rural Development Department (Annexure-
8), the opposite parties have contended that the said
scheme is applicable to the cases of <menial and
ministerial workers=, but not to Engineers (Graduate/
Diploma Holders).
4. Explaining the delay in approaching this Court in writ
application challenging the Order dated 23.09.2011
passed in O.A. No.807 of 1999, the petitioner by way of
additional affidavit dated 21.07.2014 submitted that he
was unaware of dismissal of said Original Application as
the conducting lawyer before the Odisha Administrative
Tribunal did not intimate the fact. Therefore, he could be
able to challenge said Order before this Court only in the
year 2013. He has further submitted that <till date the
petitioner is continuing on daily wage basis=. Further
additional affidavit dated 08.05.2022 has come to be
filed affirming therein,
<5. That it is further humbly submitted that the
petitioner had filed the O.A. No.807 of 1999 along
with 6 others. The other applicants in the said O.A.
No.807 of 1999 have been regularized in the
meantime but the petitioner has not yet been
regularized. The petitioner is still continuing on DLR
basis.=
5. Against such affidavit, in compliance of direction of this
Court in Order dated 18.08.2023 that <as to why the
services of the petitioner have not been regularized, even
though he has already rendered more than 32 years of
service on DLR basis in the meantime, when the services
of similarly situated persons serving under Mechanical
Engineering wing have been regularized, particularly
when there is availability of vacancy and he has been
continuing against a vacant post=, it has been stated by
the opposite parties by way of affidavit that vide Order
No.8, dated 17.05.1999, the Odisha Administrative
Tribunal directed as follows:
<the services of the applicant shall not be terminated
without leave of the Tribunal.=
5.1. However, in the said affidavit, the opposite parties
asserted that since by Order dated 23.09.2011 the
Odisha Administrative Tribunal, applying the principles
laid down in the case of Umadevi, (2006) 4 SCC 1,
dismissed the Original Application, there is no merit in
the matter for consideration of the case of the petitioner
for regularization in service.
5.2. Notwithstanding the fact of dismissal of such Original
Application at the instance of the petitioner, the opposite
party No.2-Superintending Engineer (upgraded post of
Executive Engineer), Rural Works Division-II, Ganjam,
Berhampur in the aforesaid affidavit conceded the
position as follows:
<Therefore, on the strength of the interim order of the
learned Tribunal the petitioner is continuing as DLR
worker and is paid wages as admissible.=
HEARING OF WRIT PETITION BEFORE THIS COURT:
6. On the pleadings being exchanged among counsel for
respective parties, on their consent, the matter is taken
up for final hearing at the stage of admission. This Court
heard Sri Sangramjeet Senapati, learned Advocate for
the petitioner and Sri Sachidananda Nayak, learned
Additional Standing Counsel appearing on behalf of the
opposite parties.
SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES:
7. Sri Sangramjeet Senapati, learned Advocate submitted
that vide Finance Department Resolution No.WF-I-
24/974 22764/F., dated 15.05.1997 under Annexure-6,
it is clearly mentioned that large number of persons were
engaged as workmen on Nominal Muster Roll (NMR)/
Daily Labour Roster (DLR)/Job Contract basis under
different Departments of regular establishments of the
Government of Odisha and considering the directions of
this High Court as well as the Hon9ble Supreme Court
for absorption of such workers, schemes were prepared.
It has categorically been mentioned in Resolution dated
15.05.1997 (Annexure-6) that the Schemes were
prepared for absorption of workers, who were engaged
prior to 12.04.1993, i.e., prior to promulgation of ban on
engagement of NMR/DLR/Job Contract workers, vide
Finance Department Circular No.WF-II-180/924
17815/F., 12.04.1993. In the Letter bearing
No.8390/RD, dated 24.05.1997 under Annexure-7,
Rural Development Department also issued orders for
absorption of such workers. Sri Sangramjeet Senapati,
learned counsel has pressed into service paragraph 2.3
of said letter which stated as follows:
<Therefore, it is necessary to ascertain the seniority of a
worker belonging to his category for the purpose of
preparation of gradation list. In this connection it may be
stated that the workers must have been engaged in any
one of the five categories namely (a) unskilled, (b) semi-
skilled, (c) skilled, (d) highly skilled and (e) clerical and
supervisory as per Notifications of Labour and
Employment Department. *** Clerical and Supervisory
category consists of clerk, cashier, accountant, steno,
typist, steno-typist, foreman, time-keeper, storekeeper,
manager and supervisor.=
7.1. It is, therefore, submitted that since the present
petitioner, being engaged in <supervisor= category in
terms of Paragraph (v) of Appendix-XXXIII of Volume-II
of the Odisha Public Works Department Code, for
<supervision, survey, investigation etc. of departmental
execution of works under the direction of departmental
engineers=, the assertion of the opposite parties at
paragraph 11 of the counter affidavit that <Annexures-6
and 7 are only applicable to the cases of menial and
ministerial workers= is thoroughly misconceived and the
opposite parties have misdirected themselves.
7.2. It is further forcefully submitted by the counsel for the
petitioner that vide Finance Department Circular No.WF-
II-180/92417815/F., 12.04.1993 under Annexure-8,
the ban was applicable on recruitment of work-charged
employees, NMRs and DLRs. Said letter has clarified as
follows:
<*** However, this may not be applicable for payment of
wages to labourers actually engaged in execution of
works, against labour component of estimates of works,
directly undertaken by the Departments. ***=
7.3. It is, thus, submitted that as per Paragraph (v) of
Appendix-XXXIII of Volume-II of the Odisha Public
Works Department Code that the pay and allowances of
engineers engaged for supervision, survey, investigation,
etc. of departmental Engineers <shall be provided for in
the estimates under a separate unit 8overhead expenses9
for such survey, investigation, supervision of works,
etc.=.
7.4. Sri Sangramjeet Senapati, learned counsel strenuously
urged that the Letter No.12620/RWC/BAM, dated
02.12.1998 issued by the Superintending Engineer,
Rural Works Circle, Berhampur, under Annexure-10 and
Letter No.13174, dated 14.12.1998 issued by the
Superintending Engineer, Rural Works Department,
under Annexure-11 stating that <any engagement after
12.04.1993 is unauthorised violating Finance
Department Circular= and payment of wages made to the
DLR staff engaged <after 12.04.1993= was construed to
be deviation of instructions of higher authorities, the
Letter No.3247, dated 10.03.1999 issued by the
Executive Engineer, Rural Works Division-II, Ganjam at
Berhampur vide Annexure-5 contemplating three
months9 advance notice for <disengagement of DLR
workers=, appending a list thereto including therein the
name of the petitioner at Serial No.2, is fallacious,
inasmuch as the authority treated the petitioner as if
engaged after 12.04.1993. Attention is drawn to the fact
on record, which is apparent from the
seniority/gradation list vide Annexure-2, that the
petitioner has been engaged to work as DLR since 1991.
7.5. Therefore, Sri Sangramjeet Senapati, learned Advocate
for the petitioner prayed for consideration of the case of
the petitioner for absorption who has been working till
date, being engaged prior to 12.04.1993.
7.6. It is asserted that without any discussion with respect to
substantive merit of the matter the Odisha
Administrative Tribunal, Bhubaneswar merely referred
to Umadevi, (2006) 4 SCC 1. Therefore, it could not have
dismissed the Original Application. The counsel for the
petitioner has placed for consideration the factual
position that even though the Odisha Administrative
Tribunal dismissed the Original Application on
23.09.2011, the petitioner has been continuing in the
vacant post. Amplifying his submission Sri Sangramjeet
Senapati, learned Advocate laid stress on the additional
affidavit dated 08.05.2022 of the petitioner, wherein the
petitioner affirmed as follows:
<5. That it is further humbly submitted that the
petitioner had filed the O.A. No. 807 of 1999 along
with 6 others. The other applicants in the said O.Α.
No. 807 of 1999 have been regularized in the
meantime but the petitioner has not yet been
regularized. The petitioner is still continuing on DLR
basis. This fact is clear from the Letter dated
25.03.2022 of the Superintending Engineer, letter
dtd.27.08.2021 of Engineer-in-Chief, Rural Works
along with chart, Account statement and Hand
Receipt, copies of which are annexed hereto as
Annexure-15 Series.
6. That it is pertinent to mention here that a Diploma
Holder in Mechanical Engineering, who had been
engaged on DLR basis in the year 1991 in Jajpur
Rural Works Division-II namely Sri Madhusudan
Mishra has been absorbed vide Order dated
20.09.2021 but the petitioner has not yet been
absorbed in regular establishment, which is clear
case of discrimination and violation of Articles-14
and 16 of the Constitution of India. Copies of
Gradation List of R. W. Division-II, Jajpur and order
dtd.20.09.2021 are annexed hereto as ANNEXURE-
16 Series.=
7.7. As the position elicited in the above additional affidavit
of the petitioner has not been answered nor has it been
denied by the opposite party No.2 in the compliance
affidavit dated 16.11.2023 furnished to this Court in
pursuance of Order dated 18.08.2023, learned counsel
for the petitioner, Sri Sangramjeet Senapati, thus,
contended that discrimination attracting vice of Article
14 and Article 16 of the Constitution of India is writ
large for the opposite parties could not have and ought
not to have ignored to consider the case of the petitioner
for absorption in service. He placed reliance on the
decision of the Hon9ble Supreme Court of India in the
case of Raman Kumar Vrs. Union of India, 2023 LiveLaw
(SC) 520.
8. Reiterating the stand taken by the opposite parties in
counter affidavit as also compliance affidavit, Sri
Sachidananda Nayak, learned Additional Standing
Counsel opposing the arguments advanced by Sri
Sangramjeet Senapati, learned Advocate, submitted that
the petitioner has not been engaged against any
<sanctioned post= and his engagement was also not
preceded by following any recruitment procedure nor by
way of any open selection process. He was engaged as
DLR in 1991 and continuing as such till date. He
clarified that such continuance of the petitioner was by
virtue of protection granted by the Odisha
Administrative Tribunal by Order dated 17.05.1999.
8.1. Supporting the rejection of claim of the petitioner by the
Odisha Administrative Tribunal vide Order dated
23.09.2011 passed in O.A. No.807 of 1999 (Annexure-
13), Sri Sachidananda Nayak, learned Additional
Standing Counsel vehemently urged that the petitioner
was not entitled to be engaged to work as DLR employee
in view of Office Memorandum No. WF-I-105/944
30375, dated 01.08.1995 issued by the Finance
Department instructing for <abolition of the system of
departmental execution of work=. Regularising his
services and thereby absorbing the petitioner in service
would fall foul of interdiction laid down in Secretary,
State of Karnataka Vrs. Umadevi (3), (2006) 4 SCC 1.
DISCUSSIONS AND ANALYSIS:
9. What remains as a matter of fact is this that the
petitioner, a Diploma Holder in Mechanical Engineering,
has been working as DLR, being engaged in the year
1991 as provided in Paragraph (v) of Appendix-XXXIII of
Volume-II contained in the Odisha Public Works
Department Code, which reads as follows:
<Unemployed Graduate Engineers and Diploma Holders of
the State shall be engaged in supervision, survey,
investigation etc. of departmental execution of works
under the direction of departmental Engineers and their
pay and allowances shall be provided for in the estimates
under a separate unit 8overhead expenses9 for such
survey, investigation, supervision of works, etc. The
expenditure of this account shall not exceed 12½ per cent
of the estimate in each case.=
9.1. Thus, it transpires from the pleading that he was not
engaged against any sanctioned post nor working
against any vacant post. It is apparently clear from
Notice/Letter No.5592, dated 30.04.1999 of the
Executive Engineer, Rural Works Division-II, Ganjam at
Berhampur vide Annexure-D/1 enclosed to counter
affidavit that no examination for recruitment was
conducted; there was no authority vested and/or
delegated on the Executive Engineer to engage such
Engineers for a long period; no notice was issued inviting
application for engagement of Degree/Diploma
Engineers to work as DLR. It was also made clear in the
said letter that:
<This notice is issued without any prejudice to claim of
anybody and claim of others to disengage after
10.06.1999 the unauthorized engagees.=
9.2. The engagement of the petitioner was for limited purpose
to carry out supervision, survey and investigation, etc.,
of Departmental execution of work under the direction of
the Departmental Engineers.
9.3. As remained uncontroverted by the learned counsel for
the petitioner neither during the course of hearing nor
by way of filing any reply/objection, factually, it seems to
be correct statement of fact as affirmed in the
compliance affidavit dated 16.11.2023 sworn to by the
Superintending Engineer (upgraded post of Executive
Engineer), Rural Works Division-II, Ganjam at
Berhampur that:
<*** the petitioner had initially filed O.A. No.807 of 1999
for regularization of his service before the learned Odisha
Administrative Tribunal, Bhubaneswar. In the interim the
learned Odisha Administrative Tribunal vide their Order
No.8 dated 17.05.1999 directed that,
8the services of the applicant shall not be terminated
without leave of the Tribunal9.
Therefore, on the strength of the interim order of the
learned Tribunal the petitioner is continuing as DLR
worker and is paid wages as admissible.=
10. With the above factual matrix, this Court, before
proceeding to ascertain whether the petitioner is entitled
to claim regularization and/or absorption in service
having stated to have worked for around 32 years, feels
it expedient to have overview of the legal position.
10.1. Any discussion on the contentious issue as raised in the
instant case would be incomplete without reference to
the Constitution Bench decision in Umadevi (3), (2006) 4
SCC 1 which marks a watershed moment in the
development of law in this country by providing a legal
foundation for equality of opportunity in the matter of
public employment. For better understanding, certain
excerpts of said Judgment considered apt to the present
context are placed hereunder:
<3. A sovereign Government, considering the economic
situation in the country and the work to be got done,
is not precluded from making temporary
appointments or engaging workers on daily wages.
Going by a law newly enacted, the National Rural
Employment Guarantee Act, 2005, the object is to
give employment to at least one member of a family
for hundred days in a year, on paying wages as
fixed under that Act. But, a regular process of
recruitment or appointment has to be resorted to,
when regular vacancies in posts, at a particular
point of time, are to be filled up and the filling up of
those vacancies cannot be done in a haphazard
manner or based on patronage or other
considerations. Regular appointment must be the
rule.
4. But, sometimes this process is not adhered to and
the constitutional scheme of public employment is
bypassed. The Union, the States, their departments
and instrumentalities have resorted to irregular
appointments, especially in the lower rungs of the
service, without reference to the duty to ensure a
proper appointment procedure through the Public
Service Commissions or otherwise as per the rules
adopted and to permit these irregular appointees or
those appointed on contract or on daily wages, to
continue year after year, thus, keeping out those
who are qualified to apply for the post concerned
and depriving them of an opportunity to compete for
the post. It has also led to persons who get
employed, without the following of a regular
procedure or even through the backdoor or on daily
wages, approaching the courts, seeking directions to
make them permanent in their posts and to prevent
regular recruitment to the posts concerned. The
courts have not always kept the legal aspects in
mind and have occasionally even stayed the regular
process of employment being set in motion and in
some cases, even directed that these illegal,
irregular or improper entrants be absorbed into
service. A class of employment which can only be
called 8litigious employment9, has risen like a
phoenix seriously impairing the constitutional
scheme. Such orders are passed apparently in
exercise of the wide powers under Article 226 of the
Constitution. Whether the wide powers under Article
226 of the Constitution are intended to be used for a
purpose certain to defeat the concept of social justice
and equal opportunity for all, subject to affirmative
action in the matter of public employment as
recognised by our Constitution, has to be seriously
pondered over. It is time, that the courts desist from
issuing orders preventing regular selection or
recruitment at the instance of such persons and from
issuing directions for continuance of those who have
not secured regular appointments as per procedure
established. The passing of orders for continuance
tends to defeat the very constitutional scheme of
public employment. It has to be emphasised that this
is not the role envisaged for the High Courts in the
scheme of things and their wide powers under
Article 226 of the Constitution are not intended to be
used for the purpose of perpetuating illegalities,
irregularities or improprieties or for scuttling the
whole scheme of public employment. Its role as the
sentinel and as the guardian of equal rights
protection should not be forgotten.
***
12. In spite of this scheme, there may be occasions
when the sovereign State or its instrumentalities will
have to employ persons, in posts which are
temporary, on daily wages, as additional hands or
taking them in without following the required
procedure, to discharge the duties in respect of the
posts that are sanctioned and that are required to be
filled in terms of the relevant procedure established
by the Constitution or for work in temporary posts or
projects that are not needed permanently. This right
of the Union or of the State Government cannot but
be recognised and there is nothing in the
Constitution which prohibits such engaging of
persons temporarily or on daily wages, to meet the
needs of the situation. But the fact that such
engagements are resorted to, cannot be used to
defeat the very scheme of public employment. Nor
can a court say that the Union or the State
Governments do not have the right to engage
persons in various capacities for a duration or until
the work in a particular project is completed. Once
this right of the Government is recognised and the
mandate of the constitutional requirement for public
employment is respected, there cannot be much
difficulty in coming to the conclusion that it is
ordinarily not proper for the Courts whether acting
under Article 226 of the Constitution or under Article
32 of the Constitution, to direct absorption in
permanent employment of those who have been
engaged without following a due process of selection
as envisaged by the constitutional scheme.
***
14. During the course of the arguments, various orders
of the courts either interim or final were brought to
our notice. The purport of those orders more or less
was the issue of directions for continuation or
absorption without referring to the legal position
obtaining. Learned counsel for the State of
Karnataka submitted that chaos has been created
by such orders without reference to the legal
principles and it is time that this Court settled the
law once and for all so that in case the Court finds
that such orders should not be made, the courts,
especially, the High Courts would be precluded from
issuing such directions or passing such orders. The
submission of learned counsel for the respondents
based on the various orders passed by the High
Court or by the Government pursuant to the
directions of the Court also highlights the need for
settling the law by this Court. The bypassing of the
constitutional scheme cannot be perpetuated by the
passing of orders without dealing with and deciding
the validity of such orders on the touchstone of
constitutionality. While approaching the questions
falling for our decision, it is necessary to bear this in
mind and to bring about certainty in the matter of
public employment. The argument on behalf of some
of the respondents is that this Court having once
directed regularisation in Dharwad District PWD
Literate Daily Wage Employees Association Vrs.
State of Karnataka, (1990) 2 SCC 396 all those
appointed temporarily at any point of time would be
entitled to be regularised since otherwise it would be
discrimination between those similarly situated and
in that view, all appointments made on daily wages,
temporarily or contractually, must be directed to be
regularised. Acceptance of this argument would
mean that appointments made otherwise than by a
regular process of selection would become the order
of the day completely jettisoning the constitutional
scheme of appointment. This argument also
highlights the need for this Court to formally lay
down the law on the question and ensure certainty
in dealings relating to public employment. The very
divergence in approach in this Court, the so-called
equitable approach made in some, as against those
decisions which have insisted on the rules being
followed, also justifies a firm decision by this Court
one way or the other. It is necessary to put an end to
uncertainty and clarify the legal position emerging
from the constitutional scheme, leaving the High
Courts to follow necessarily, the law thus laid down.
***
43. Thus, it is clear that adherence to the rule of equality
in public employment is a basic feature of our
Constitution and since the rule of law is the core of
our Constitution, a court would certainly be disabled
from passing an order upholding a violation of Article
14 or in ordering the overlooking of the need to
comply with the requirements of Article 14 read with
Article 16 of the Constitution. Therefore, consistent
with the scheme for public employment, this Court
while laying down the law, has necessarily to hold
that unless the appointment is in terms of the
relevant rules and after a proper competition among
qualified persons, the same would not confer any
right on the appointee. If it is a contractual
appointment, the appointment comes to an end at
the end of the contract, if it were an engagement or
appointment on daily wages or casual basis, the
same would come to an end when it is discontinued.
Similarly, a temporary employee could not claim to
be made permanent on the expiry of his term of
appointment. It has also to be clarified that merely
because a temporary employee or a casual wage
worker is continued for a time beyond the term of his
appointment, he would not be entitled to be
absorbed in regular service or made permanent,
merely on the strength of such continuance, if the
original appointment was not made by following a
due process of selection as envisaged by the
relevant rules. It is not open to the court to prevent
regular recruitment at the instance of temporary
employees whose period of employment has come to
an end or of ad hoc employees who by the very
nature of their appointment, do not acquire any right.
The High Courts acting under Article 226 of the
Constitution, should not ordinarily issue directions
for absorption, regularisation, or permanent
continuance unless the recruitment itself was made
regularly and in terms of the constitutional scheme.
Merely because an employee had continued under
cover of an order of the court, which we have
described as 'litigious employment' in the earlier part
of the judgment, he would not be entitled to any
right to be absorbed or made permanent in the
service. In fact, in such cases, the High Court may
not be justified in issuing interim directions, since,
after all, if ultimately the employee approaching it is
found entitled to relief, it may be possible for it to
mould the relief in such a manner that ultimately no
prejudice will be caused to him, whereas an interim
direction to continue his employment would hold up
the regular procedure for selection or impose on the
State the burden of paying an employee who is
really not required. The courts must be careful in
ensuring that they do not interfere unduly with the
economic arrangement of its affairs by the State or
its instrumentalities or lend themselves the
instruments to facilitate the bypassing of the
constitutional and statutory mandates.
44. The concept of <equal pay for equal work= is
different from the concept of conferring permanency
on those who have been appointed on ad hoc basis,
temporary basis, or based on no process of selection
as envisaged by the rules. This Court has in various
decisions applied the principle of equal pay for equal
work and has laid down the parameters for the
application of that principle. The decisions are rested
on the concept of equality enshrined in our
Constitution in the light of the directive principles in
that behalf. But the acceptance of that principle
cannot lead to a position where the court could direct
that appointments made without following the due
procedure established by law, be deemed
permanent or issue directions to treat them as
permanent. Doing so, would be negation of the
principle of equality of opportunity. The power to
make an order as is necessary for doing complete
justice in any cause or matter pending before this
Court, would not normally be used for giving the go-
by to the procedure established by law in the matter
of public employment. Take the situation arising in
the cases before us from the State of Karnataka.
Therein, after Dharwad decision, (1990) 2 SCC 396
= (1990) 1 SCR 544 the Government had issued
repeated directions and mandatory orders that no
temporary or ad hoc employment or engagement be
given. Some of the authorities and departments had
ignored those directions or defied those directions
and had continued to give employment, specifically
interdicted by the orders issued by the executive.
Some of the appointing officers have even been
punished for their defiance. It would not be just or
proper to pass an order in exercise of jurisdiction
under Article 226 or 32 of the Constitution or in
exercise of power under Article 142 of the
Constitution permitting those persons engaged, to be
absorbed or to be made permanent, based on their
appointments or engagements. Complete justice
would be justice according to law and though it
would be open to this Court to mould the relief, this
Court would not grant a relief which would amount
to perpetuating an illegality.
45. While directing that appointments, temporary or
casual, be regularised or made permanent, the
courts are swayed by the fact that the person
concerned has worked for some time and in some
cases for a considerable length of time. It is not as if
the person who accepts an engagement either
temporary or casual in nature, is not aware of the
nature of his employment. He accepts the
employment with open eyes. It may be true that he
is not in a position to bargain4 not at arm9s length4
since he might have been searching for some
employment so as to eke out his livelihood and
accepts whatever he gets. But on that ground alone,
it would not be appropriate to jettison the
constitutional scheme of appointment and to take the
view that a person who has temporarily or casually
got employed should be directed to be continued
permanently. By doing so, it will be creating another
mode of public appointment which is not permissible.
If the court were to void a contractual employment of
this nature on the ground that the parties were not
having equal bargaining power, that too would not
enable the court to grant any relief to that employee.
A total embargo on such casual or temporary
employment is not possible, given the exigencies of
administration and if imposed, would only mean
that some people who at least get employment
temporarily, contractually or casually, would not be
getting even that employment when securing of such
employment brings at least some succour to them.
After all, innumerable citizens of our vast country
are in search of employment and one is not
compelled to accept a casual or temporary
employment if one is not inclined to go in for such an
employment. It is in that context that one has to
proceed on the basis that the employment was
accepted fully knowing the nature of it and the
consequences flowing from it. In other words, even
while accepting the employment, the person
concerned knows the nature of his employment. It is
not an appointment to a post in the real sense of the
term. The claim acquired by him in the post in which
he is temporarily employed or the interest in that
post cannot be considered to be of such a magnitude
as to enable the giving up of the procedure
established, for making regular appointments to
available posts in the services of the State. The
argument that since one has been working for some
time in the post, it will not be just to discontinue him,
even though he was aware of the nature of the
employment when he first took it up, is not one that
would enable the jettisoning of the procedure
established by law for public employment and
would have to fail when tested on the touchstone of
constitutionality and equality of opportunity
enshrined in Article 14 of the Constitution.
***
47. When a person enters a temporary employment or
gets engagement as a contractual or casual worker
and the engagement is not based on a proper
selection as recognised by the relevant rules or
procedure, he is aware of the consequences of the
appointment being temporary, casual or contractual
in nature. Such a person cannot invoke the theory of
legitimate expectation for being confirmed in the post
when an appointment to the post could be made only
by following a proper procedure for selection and in
cases concerned, in consultation with the Public
Service Commission. Therefore, the theory of
legitimate expectation cannot be successfully
advanced by temporary, contractual or casual
employees. It cannot also be held that the State has
held out any promise while engaging these persons
either to continue them where they are or to make
them permanent. The State cannot constitutionally
make such a promise. It is also obvious that the
theory cannot be invoked to seek a positive relief of
being made permanent in the post.
48. It was then contended that the rights of the
employees thus appointed, under Articles 14 and 16
of the Constitution, are violated. It is stated that the
State has treated the employees unfairly by
employing them on less than minimum wages and
extracting work from them for a pretty long period in
comparison with those directly recruited who are
getting more wages or salaries for doing similar
work. The employees before us were engaged on
daily wages in the department concerned on a wage
that was made known to them. There is no case that
the wage agreed upon was not being paid. Those
who are working on daily wages formed a class by
themselves, they cannot claim that they are
discriminated as against those who have been
regularly recruited on the basis of the relevant rules.
No right can be founded on an employment on daily
wages to claim that such employee should be
treated on a par with a regularly recruited
candidate, and made permanent in employment,
even assuming that the principle could be invoked
for claiming equal wages for equal work. There is no
fundamental right in those who have been employed
on daily wages or temporarily or on contractual
basis, to claim that they have a right to be absorbed
in service. As has been held by this Court, they
cannot be said to be holders of a post, since, a
regular appointment could be made only by making
appointments consistent with the requirements of
Articles 14 and 16 of the Constitution. The right to be
treated equally with the other employees employed
on daily wages, cannot be extended to a claim for
equal treatment with those who were regularly
employed. That would be treating unequals as
equals. It cannot also be relied on to claim a right to
be absorbed in service even though they have never
been selected in terms of the relevant recruitment
rules. The arguments based on Articles 14 and 16 of
the Constitution are therefore overruled.
***
52. Normally, what is sought for by such temporary
employees when they approach the court, is the
issue of a writ of mandamus directing the employer,
the State or its instrumentalities, to absorb them in
permanent service or to allow them to continue. In
this context, the question arises whether a
mandamus could be issued in favour of such
persons. At this juncture, it will be proper to refer to
the decision of the Constitution Bench of this Court
in Rai Shivendra Bahadur (Dr.) Vrs. Governing Body
of the Nalanda College, AIR 1962 SC 1210. That
case arose out of a refusal to promote the writ
petitioner therein as the Principal of a college. This
Court held that in order that a mandamus may issue
to compel the authorities to do something, it must be
shown that the statute imposes a legal duty on the
authority and the aggrieved party had a legal right
under the statute or rule to enforce it. This classical
position continues and a mandamus could not be
issued in favour of the employees directing the
Government to make them permanent since the
employees cannot show that they have an
enforceable legal right to be permanently absorbed
or that the State has a legal duty to make them
permanent.
53. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa,
AIR 1967 SC 1071, R.N. Nanjundappa, (1972) 1 SCC
409 and B.N. Nagarajan, (1979) 4 SCC 507 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 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 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.=
10.2. It may be fruitful to have reference to observations made
in Union of India Vrs. Lalita V. Mertia, 2021 SCC OnLine
Bom 3363:
<18. Despite the law on regularization having been
authoritatively laid down by the Constitution Bench
in Umadevi (3), (2006) 4 SCC 1, a Division Bench of
two Judges of the Supreme Court struck a somewhat
discordant note in Uttar Pradesh State Electricity
Board Vrs. Pooran Chandra Pandey, reported in
(2007) 11 SCC 92. Not too long thereafter, a Bench of
three Judges in Official Liquidator Vrs. Dayanand,
reported in (2008) 10 SCC 1, considered the
permissibility of the attempt in Pooran Chandra
Pandey (supra) to dilute the binding effect of
Umadevi (supra) and remedied the situation by
declaring that the decision in Pooran Chandra
Pandey (supra) should neither be treated as binding
by any fora nor should it be relied upon or made the
basis for bypassing the principles laid down in
Umadevi (supra). It was also held that the decision
in Umadevi (supra), by virtue of Article 141 of the
Constitution, is binding on all courts including the
Supreme Court till it is overruled by a larger bench.
Umadevi (supra) was again followed by a three-
Judge Bench in Renu Vrs. District and Sessions
Judge, reported in (2014) 14 SCC 50. It was
emphasized that all appointments, even by the Chief
Justices of the High Courts, ought to be made on the
touchstone of equality of opportunity which is the
cornerstone of the Constitution and under no
circumstances should illegal/irregular appointments
in the judiciary be saved.=
10.3. In Vibhuti Shankar Pandey Vrs. State of Madhya
Pradesh, 2023 LiveLaw (SC) 91 = (2023) 3 SCC 639, it
has been restated as follows:
<*** The Division Bench rightly held that the learned
Single Judge has not followed the principle of law as
given by this Court in Secretary, State of Karnataka and
Others Vrs. Umadevi and Others, (2006) 4 SCC 1, as
initial appointment must be done by the competent
authority and there must be a sanctioned post on which
the daily rated employee must be working. ***=
10.4. This Court in the case of Niranjan Nayak Vrs. State of
Odisha & Others, 2023 (I) OLR 407, held as follows:
<It is a settled position in law that when a particular set of
employees is given relief by the court, all other identically
situated persons need to be treated alike by extending
that benefit. Not doing so would amount to discrimination
and would be violative of Article 14 of the Constitution of
India. This view has also been iterated in State of Uttar
Pradesh and Others Vrs. Arvind Kumar Srivastava and
Others, (2015) 1 SCC 347.=
10.5. After noticing the Judgment of the Hon9ble Supreme
Court in the case of Secretary, State of Karnataka and
Others Vrs. Umadevi and Others, (2006) 4 SCC 1, in
Niranjan Nayak (supra) the observation of this Court
runs as follows:
<12. Similarly, in the case of Amarendra Kumar
Mahapatra and Others Vrs. State of Odisha and
Others, (2014) 4 SCC 583 = AIR 2014 SC 1716, 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.
13. In the case at hand, it can be ascertained that the
petitioner was appointed against a substantive
vacant post and he had been discharging his duties
in the said post since 1993. The appointment was
made on an ad hoc basis and was extended from
time to time. Since the petitioner was appointed
against substantive vacancy and the post was
sanctioned by higher authorities, the petitioner
should have been extended the benefit of
regulatisation like other similarly situated persons.=
10.6. Fruitful to refer to what was set forth in the case of State
of Haryana Vrs. Piara Singh, (1992) 4 SCC 118 = AIR
1992 SC 2130:
<The main concern of the Court in such matters is to
ensure the Rule of Law and to see that the executive acts
fairly and gives a fair deal to its employees consistent
with the requirements of Articles 14 and 16. It also means
that the State should not exploit its employees nor should
it seek to take advantage of the helplessness and misery
of either the unemployed persons of the employees, as the
case may be. As is often said, the State must be a model
employer. It is for this reason, it is held that equal pay
must be given for equal work, which is indeed one of the
directive principles of the Constitution. It is for this very
reason, it is held that a person should not be kept in a
temporary or ad hoc status for long. Where a temporary or
ad hoc appointment is continued for long, the Court
presumes that there is need and warrant for a regular
post and accordingly directs regularization.=
10.7. Noteworthy here to quote from State of Rajasthan Vrs.
Dayalal, (2011) 2 SCC 429 with respect to issue of writ in
exercise of power under Article 226 of the Constitution of
India:
<8. We may at the outset refer to the following well-
settled principles relating to regularization and
parity in pay, relevant in the context of these
appeals:
(i) High Courts, in exercise of power under Article
226 of the Constitution will not issue directions
for regularization, absorption or permanent
continuance, unless the employee claiming
regularization had been appointed in
pursuance of a regular recruitment in
accordance with relevant rules in an open
competitive process, against sanctioned vacant
posts. The equality clause contained in Articles
14 and 16 should be scrupulously followed and
courts should not issue a direction for
regularization of services of an employee which
would be violative of constitutional scheme.
While something that is irregular for want of
compliance with one of the elements in the
process of selection which does not go to the
root of the process, can be regularized, back
door entries, appointments contrary to the
constitutional scheme and/or appointment of
ineligible candidates cannot be regularized.
(ii) Mere continuation of service by an temporary or
ad hoc or daily-wage employee, under cover of
some interim orders of the court, would not
confer upon him any right to be absorbed into
service, as such service would be 8litigious
employment9. Even temporary, ad hoc or daily-
wage service for a long number of years, let
alone service for one or two years, will not
entitle such employee to claim regularization, if
he is not working against a sanctioned post.
Sympathy and sentiment cannot be grounds for
passing any order of regularization in the
absence of a legal right.
(iii) Even where a scheme is formulated for
regularization with a cut-off date (that is a
scheme providing that persons who had put in
a specified number of years of service and
continuing in employment as on the cut-off
date), it is not possible to others who were
appointed subsequent to the cut-off date, to
claim or contend that the scheme should be
applied to them by extending the cut-off date or
seek a direction for framing of fresh schemes
providing for successive cut off dates.
(iv) Part-time employees are not entitled to seek
regularization as they are not working against
any sanctioned posts. There cannot be a
direction for absorption, regularization or
permanent continuance of part time temporary
employees.
(v) Part time temporary employees in government
run institutions cannot claim parity in salary
with regular employees of the Government on
the principle of equal pay for equal work. Nor
can employees in private employment, even if
serving full time, seek parity in salary with
government employees. The right to claim a
particular salary against the State must arise
under a contract or under a statute.
[See : Secretary, State of Karnataka Vrss. Uma Devi,
(2006) 4 SCC 1; M. Raja Vrs. CEERI Educational
Society, Pilani, (2006) 12 SCC 636; S.C. Chandra
Vrs. State of Jharkhand, (2007) 8 SCC 279;
Kurukshetra Central Co-operative Bank Ltd. Vrs.
Mehar Chand, (2007) 15 SCC 680; and Official
Liquidator Vrs. Dayanand, (2008) 10 SCC 1].=
10.8. The Madras High Court in the case of N. Karunanidhi
Vrs. Union of India, W.P. No.12887 of 2016, vide
Judgment dated 22.04.2022 made the following
benevolent observation in favour of employees whose
services have been utilized by the Government for a long
time:
<18. If the Courts cannot give direction for their
regularisation of service, in the constrained legal
scenario what other remedies that are available to
these unfortunate employees, who have been
engaged in service for public purpose, without
having any definite future to hold on? These
petitioners cannot be kept on the tenterhooks of their
employment for years together, by brushing aside
and discarding their concerned yearning for a
definite future, with unresponsive indifference.
19. A welfare State grounded on constitutional values,
cannot come up with apathetic and callous stand
that despite continued employment of these
petitioners for years together, no semblance of right
is available to them. Such stand by the State is
opposed to constitutional values as enshrined in
Article 21 of the Constitution of India. The Courts of
course have held that equal opportunity must be
provided in public employment and entry through
back door should be discountenanced. When Article
21 being violated by the State action towards its
servants, the consideration of the Government must
primarily be focussed on alleviating legitimate
grievances of its employees. Even assuming that the
recruitment of these writ petitioners had not been
fully in consonance with the procedure for
appointment in Government services, the fact
remained that these persons have been consciously
appointed by the Government for implementing
public projects and the work has been extracted
from them continuously for several years. It is
therefore, not open to the Government after a period
of time to turn around and contend that these writ
petitioners have no right at all to seek any kind of
guarantee for their future.
20. In the opinion of this Court, continued employment
for several years, even on a projects meant to serve
the State as a whole, certain rights would definitely
accrue to them, atleast to the extent of making a
claim for formulation of a scheme towards their
absorption. This Court is quite conscious of the fact
that the Government has been benevolent and had
come up with several schemes in the past and
directed regularisation of services of thousands of
employees over a period of time. Such benevolence
ought to permeate to the lowest levels to take within
its sweep the desperate cry of the petitioners as
well. As in the sublime words of the father of nation,
Mahatma Gandhi, 8A nation9s greatness is measured
by how it treats its weakest members9. Merely
because these writ petitioners have been employed
in the projects, the policy makers may not shut their
mind and close their eyes to their precarious plight
having to serve public purpose but left in the lurch
and unprotected, at the end of the day.=
10.9. Culling out distinction between <illegal= and <irregular=
appointments in Amarendra Kumar Mohapatra and
Others Vrs. State of Odisha and Others, (2014) 4 SCC 583
= AIR 2014 SC 1716 it has been laid down as follows:
<7. It is evident from the above that there is an exception
to the general principles against 8regularisation9
enunciated in Umadevi, (2006) 4 SCC 1, 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, such appointments are
considered to be irregular.=
10.10. In the case of Union of India and Others Vrs.
Central Administrative Tribunal and Others, (2019) 4 SCC
290 the following is the observation:
<25. The Court noted in the above judgment that if a strict
and literal interpretation was given to the decision in
Uma Devi, no employee from the State of Jharkhand
appointed on an irregular basis could ever be
regularized as the State was formed on 15
November 2000 and the cut-off date had been fixed
as 10 April 2006. The intent of the Court was to
grant similarly-placed employees who had put the
requisite years of service as mandated by Uma Devi,
the benefit of regularization. The Court thus held
that the Jharkhand Sarkar ke Adhinasth Aniyamit
Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa
Niyamitikaran Niyamawali, 2015 (8the
Regularisation Rules9) must be interpreted in a
pragmatic manner and employees of the State who
had completed 10 years of service on the date of
promulgation of the rules, ought to be regularized. In
doing so, the Court ensured that employees in the
State of Jharkhand who had completed the same
years of service as employees from other States, are
granted parity in terms of regularization. The spirit
of non-discrimination and equity runs through the
decisions in Uma Devi [(2006) 4 SCC 1], ML Kesari
[(2010) 9 SCC 247] and Narendra Kumar Tiwari
[(2018) 8 SCC 238].
26. In this background, the issue which now arises
before this Court is in regard to the effective direction
which would govern the present case. The High
Court has directed the Union of India to absorb the
casual workmen, if it is not possible at the Institute
in question, then in any other establishment. The
latter part of the direction, as we have already
noted, cannot be sustained. Equally, in our opinion,
the authorities cannot be heard to throw their hands
in despair by submitting that there are no vacancies
and that it had already regularized such of the
persons in the seniority list, who reported for work.
The Tribunal has entered a finding of fact that this
defence is clearly not borne out of the record.
Accordingly, we are of the view that having decided
to implement the decision of the Tribunal, which was
affirmed by the High Court, the Union of India must
follow a rational principle and abide strictly by the
seniority list in proceeding to regularize the workmen
concerned. Accordingly, we direct that the case for
regularization shall be considered strictly in
accordance with the seniority list in pursuance of the
directions which were issued by the Tribunal and
confirmed by the High Court and such of the
persons, who are available for regularization on the
basis of vacancies existing at present, shall be
considered in accordance with law. The Tribunal has
denied back-wages but has ordered a notional
fixation of pay and allowances. While affirming that
direction, we also direct that persons who have
crossed the age of superannuation will be entitled to
the computation and payment of their retiral dues on
that basis. This exercise shall be carried out within a
period of three months from the receipt of a copy of
the judgment. If it becomes necessary to grant age
relaxation to the concerned workmen, the Appellants
shall do so.=
10.11. In Ranjeet Kumar Das Vrs. State of Odisha, 2018 (I)
ILR-CUT 695, paragraph 9 runs as follows:
<9. Temporary or ad hoc or stop gap or casual basis or
the like appointments are made for various reasons.
An emergent situation might make it necessary to
make such appointments. Since the adoption of the
normal method of regular recruitment might involve
considerable delay regulating in failure to tackle the
emergency. Sometimes such appointments were to
be made because although extra hands are required
to meet the workload, there are no sanctioned posts
against which any regular recruitment could be
made. In fact in the case of ad hoc or casual
appointees, the appointments, are in the majority of
cases, not against sanctioned posts and the
appointments are made because of the necessity of
workload and the constraints of sanctioning such
post (mainly on financial consideration) on
permanent basis. Needless to say that filling up
vacancies against sanctioned posts by
regularisation is against the constitutional provisions
of equality of opportunity in the matter of public
employment violating Articles 14 and 16 of the
Constitution by not making the offer of employment
to the world at large and allowing all eligible
candidates equality of opportunity to be considered
on merits. If that be so, considering the emergent
necessity of filling up of vacancies and allowing the
petitioner to continue for a quite long period, even if
with one day break in service, cannot be stated to be
a reasonable one, rather, this is an unfair and
unreasonable action of the authority concerned.
10.12. In Patitapaban Dutta Dash and Others Vrs. State of
Odisha and Others, W.P.(C) No. 19951 of 2020, vide
Judgment dated 09.09.2021, the Single Bench of this
Court (one of us, Dr. Justice B.R. Sarangi, ACJ.) has
made the following observation:
<8. It is worthwhile to mention here that the Court comes
into picture only to ensure observance of
fundamental rights, and to ensure the rule of law
and to see that the executive acts fairly and gives a
fair deal to its employees consistent with
requirements of Articles 14 and 16 of the
Constitution, and that the authority should not
exploit its employees nor should it seek to take
advantage of the helplessness and misery of either
the unemployed persons or the employees, as the
case may be. For this very reason, it is held that a
person should not be kept in contractual, temporary
or ad hoc status for a long period. Where a
contractual, temporary or ad hoc appointment is
continued for long, the Court presumes that there is
need of a regular post and accordingly directs for
regularization. While issuing direction for
regularization, the Court must first ascertain the
relevant fact, and must be cognizant of the several
situations and eventualities that may arise on
account of such direction. If for any reason, a
contractual, ad hoc or temporary employee is
continued for a fairly long spell, the authorities must
consider his case for regularization, provided he is
eligible and qualified according to rules and his
service record is satisfactory and his appointment
does not run counter to the reservation policy of the
State. Even though a casual labourer is continued
for a fairly long spell, say two or three years, a
presumption may arise that there is regular need for
his service. In such a situation, it becomes obligatory
for the concerned authority to examine the feasibility
of his regularization. While doing so, the authorities
ought to adopt a positive approach coupled with
empathy for the person.=
10.13. Aforesaid Judgment rendered by the Single Judge
of this Court in Patitapaban Dutta Dash (supra) got the
seal of approval by the Division Bench of this Court
being carried in appeal before the Division Bench
bearing W.A. No.777 of 2021, which came to be disposed
of vide Judgment dated 12.04.2023 reported at 2023 (I)
ILR-CUT 906. While directing the State of Odisha to
implement the direction of the Single Judge <in letter
and spirit=, this Court in the said intra-Court appeal
made it clear as follows:
<43. As regards the decision in Secretary, State of
Karnataka Vrs. Umadevi, (2006) 4 SCC 1 as
explained later in State of Karnataka Vrs.
M.L.Kesari, 2010 (II) OLR (SC) 982, the Respondents
can possibly seek the extension of the benefit of the
ratio of the aforementioned decisions for two
reasons. One, that the Respondents were engaged
against sanctioned posts and two, they were
engaged after qualifying in a computer test. In M.L.
Kesari (supra), the Supreme Court explained:
8It is evident from the above that there is an
exception to the general principles against
8regularization9 enunciated in Umadevi, 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, such appointments
are considered to be irregular.
Umadevi casts a duty upon the concerned
Government or instrumentality, to take
steps to regularize the services of those
irregularly appointed employees who had
served for more than ten years without the
benefit or protection of any interim orders
of courts or tribunals, as a one-time
measure.9
44. Going by the above legal position, in the present
cases, at the highest, the respondents could be
considered to be 8irregularly9 appointed and
therefore would, even on the touchstone of Umadevi
(supra), be eligible for regularization. The law in M.L.
Kesari (supra), has been reiterated in Amarkant Rai
Vrs. State of Bihar, (2015) 8 SCC 265, Sheo Narain
Nagar Vrs. State of U.P., AIR 2018 SC 233 and
Rajnish Kumar Mishra Vrs. State of U.P., (2019) 17
SCC 648.=
10.14. While the position stood thus, this Court came
across with a Judgment rendered by the Hon9ble
Supreme Court of India in the case of Ganesh Digamber
Jambhrunkar Vrs. State of Maharashtra, 2023 LiveLaw
(SC) 801, wherein it has been observed as follows:
<The petitioners want to be regularized in the post for
which such appointment process has been started and, in
this regard, learned counsel for the petitioners has relied
on a Judgment of this Court in the case of Sheo Narain
Nagar and Others Vrs. State of Uttar Pradesh and
Another: (2018) 13 SCC 432. Paragraph 879 of this
judgment reads as under:
87. When we consider the prevailing scenario, it is
painful to note that the decision in Umadevi (3),
(2006) 4 SCC 1 has not been properly understood
and rather wrongly applied by various State
Governments. We have called for the data in the
instant case to ensure as to how many employees
were working on contract basis or ad hoc basis or
daily-wage basis in different State departments. We
can take judicial notice that widely aforesaid
practice is being continued. Though this Court has
emphasised that incumbents should be appointed on
regular basis as per rules but new devise of making
appointment on contract basis has been adopted,
employment is offered on daily-wage basis, etc. in
exploitative forms. This situation was not envisaged
by Umadevi (3), (2006) 4 SCC 1. The prime
intendment of the decision was that the employment
process should be by fair means and not by back
door entry and in the available pay scale. That spirit
of the Umadevi (3), (2006) 4 SCC 1, has been ignored
and conveniently overlooked by various State
Governments/authorities. We regretfully make the
observation that Umadevi (3), (2006) 4 SCC 1 has
not been implemented in its true spirit and has not
been followed in its pith and substance. It is being
used only as a tool for not regularising the services
of incumbents. They are being continued in service
without payment of due salary for which they are
entitled on the basis of Articles 14, 16 read with
Article 34(1)(d) of the Constitution of India as if they
have no constitutional protection as envisaged in
D.S. Nakara Vrs. Union of India, (1983) 1 SCC 305 =
(1983) 2 SCR 165, from cradle to grave. In heydays
of life they are serving on exploitative terms with no
guarantee of livelihood to be continued and in old
age they are going to be destituted, there being no
provision for pension, retiral benefits, etc. There is
clear contravention of constitutional provisions and
aspiration of downtrodden class. They do have
equal rights and to make them equals they require
protection and cannot be dealt with arbitrarily. The
kind of treatment meted out is not only bad but
equally unconstitutional and is denial of rights. We
have to strike a balance to really implement the
ideology of Umadevi (3), (2006) 4 SCC 1. Thus, the
time has come to stop the situation where Umadevi
(3), (2006) 4 SCC 1 can be permitted to be flouted,
whereas, this Court has interdicted such
employment way back in the year 2006. The
employment cannot be on exploitative terms,
whereas Umadevi (3), (2006) 4 SCC 1 laid down that
there should not be back door entry and every post
should be filled by regular employment, but a new
device has been adopted for making appointment on
payment of paltry system on contract/ad hoc basis
or otherwise. This kind of action is not permissible
when we consider the pith and substance of true
spirit in Umadevi (3), (2006) 4 SCC 1.9
The issue with which we are concerned in this petition is
as to whether by working for a long period of time on
contractual basis, the petitioners have acquired any
vested legal right to be appointed in the respective posts
on regular basis.
We appreciate the argument of the petitioners that they
have given best part of their life for the said college but so
far as law is concerned, we do not find their continuous
working has created any legal right in their favour to be
absorbed. In the event there was any scheme for such
regularization, they could have availed of such scheme
but in this case, there seems to be none. We are also
apprised that some of the petitioners have applied for
appointment through the current recruitment process. The
High Court has rejected their claim mainly on the ground
that they have no right to seek regularization of their
service. We do not think any different view can be taken.=
10.15. In Umadevi9s case referred supra [(2006) 4 SCC 1],
the concept of appointment, regularization for
permanent continuance of temporary, contractual,
casual, daily wage or ad hoc employee
appointed/recruited and continued for long in public
employment was considered. It is clearly held that
merely because an employee had continued under cover
of an order of the Court, under litigious employment or
had been continued beyond term of his appointment he
would not be entitled to any right to be absorbed or
made permanent in service, merely on the strength of
such continuance, if the original appointment was not
made by following due process of selection as envisaged
by the relevant rules. It is, however, not open to the
Court to prevent regular recruitment at the instance of
such employees.
10.16. Union of India Vrs. Tulsiram Patel, (1985) 3 SCC
398, is the authority for the proposition that the origin of
Government services is contractual, since there is an
offer and acceptance in every case; however, once
appointed to his post or office, the Government servant
acquires a status and his rights and obligations are no
longer determined by the consent of both the parties,
but by the statute or statutory rules, as framed, and
unilaterally altered by the Government. In other words,
the legal position of a Government servant is more of
status than that of contract. This law would apply to a
permanent employee, who by reason of appointment
acquires a right to post and hence would be entitled to
Constitutional and statutory safeguards in relation to
his service. It also applies to temporary employees to the
extent their conditions of service are regulated by
statutory rules framed in exercise of the power conferred
by the proviso to Article 309 of the Constitution of India
and such employees could claim protection of such
rules.
10.17. To acquire a right to post, it is imperative that the
appointee is recruited according to law; meaning
thereby, that:
(i) he is eligible, as per recruitment rules, to offer his
candidature for selection and consequent
appointment on a post that is appropriately
advertised,
(ii) he is made to face a selection process conducted by
the authority constituted therefor; and
(iii) upon his selection, he is appointed on a duly
sanctioned post, and thereafter, confirmed in
service after the period of probation, if any.
Bearing in mind these imperatives of a valid
appointment that one needs to proceed to decide a claim
for regularization in service which, as the Supreme
Court has time and again observed, is not and cannot be
a source of recruitment.
10.18. Be that as it may, a claim for regularization could
arise for consideration if, despite the appointee fulfilling
three conditions: viz. first, he satisfies the eligibility
criteria for appointment; secondly, he has faced a
process of selection which, though not illegal, can at
best be viewed as irregular; and thirdly, despite there
being a sanctioned post on which he could have been
appointed on substantive basis is not so appointed, but
is engaged either on an ad hoc or casual or temporary
basis, or even on a contract, and continues for years
together, with the ill-motive to deny him the
Constitutional/statutory safeguards.
10.19. It is, thus, obvious that the persons, who are
employed without following selection process, as
backdoor entrant have no right to claim regularization in
service. The expression 8back-door entrant9 has become
synonymous with public appointments not made legally.
However, the expression 8front-door entrant9 for an
appointee who is validly appointed in public service is
not usually used; understandably so, because
appointments made according to law in public service
conforming to Constitutional principles of equality in
matters of public employment speak for themselves and
are not part of 8litigious employment9 deserving any
castigation.
10.20. These being the tests, the petitioner does not
succeed in setting up a claim for regularization in
service. The documents placed on record for
consideration evinced that being engaged as DLR
employee/worker in the year 1991, the petitioner
claimed to have continued in service till date being
protected under the interim order dated 17.05.1999 of
the Odisha Administrative Tribunal in O.A. No.807 of
1999, which got ultimately dismissed by applying
criteria envisaged in Umadevi (3), (2006) 4 SCC 1. Thus,
from 1991 till 1999, the petitioner has not completed 10
years of service so as to be considered for absorption in
the service in view of Umadevi (3), (2006) 4 SCC 1 read
with also clarification rendered by this Court in the case
of State of Odisha Vrs. Patitapaban Dutta Dash, 2023 (I)
ILR-CUT 906. Nothing is placed on record to show that
the petitioner has been engaged against sanctioned post
and such engagement was after being declared
successful in test conducted by competent authority in
response to widely publicised invitation of application for
the post. Rather it is the case of the petitioner that he
was engaged in terms of Paragraph (v) of Appendix-
XXXIII4 <DEPARTMENTAL EXECUTION OF WORK= as inserted
by Office Memorandum No.26178-Code-11/86, dated
14.10.1987 forming part of Volume-II contained in the
Odisha Public Works Department Code.
11. So far as scope of power to exercise jurisdiction under
Article 226/227 of the Constitution while examining the
legal sanctity of Order of the Odisha Administrative
Tribunal, it would suffice to refer to the guidelines
outlined by the Hon9ble Supreme Court.
11.1. The Hon9ble Supreme Court of India stated in Orissa
Administrative Tribunal Bar Association Vrs. Union of
India, (2023) 6 SCR 731 as follows:
<The effect of Section 28 of the Administrative Tribunals
Act, therefore, was that appeals from the OAT lay directly
to the Supreme Court under Article 136 of the
Constitution. However, this changed with the decision of
this Court in L. Chandra Kumar Vrs. Union of India (1997)
3 SCC 261. In its decision in that case, this Court inter
alia ruled that:
a. Clause 2(d) of Article 323-A and clause 3(d) of Article
323-B were unconstitutional to the extent that they
excluded the jurisdiction of the High Courts under
Articles 226 and 227 and of the Supreme Court
under Article 32 of the Constitution;
b. Section 28 of the Administrative Tribunals Act was
unconstitutional as were 8exclusion of jurisdiction9
clauses in all other legislation enacted under Articles
323-A and 323- B;
c. The jurisdiction conferred upon the High Courts
under Articles 226 and 227 and upon the Supreme
Court under Article 32 of the Constitution form a part
of the basic structure of the Constitution; and d.
Other courts and Tribunals may perform a
supplemental role in discharging the powers
conferred by Articles 226/227 and 32 of the
Constitution.
As a consequence of this decision, challenges under
Article 226 of the Constitution to the decisions rendered
by the SATs lay to Division Benches of the respective High
Courts within whose jurisdiction the SATs operated. The
Supreme Court9s jurisdiction could be invoked under
Article 136 against the decisions of the High Courts.=
11.2. In Union of India Vrs. P. Gunasekaran, AIR 2015 SC 545,
the Hon9ble Supreme Court of India propounded the
following guidelines:
<The High Court, in exercise of its powers under Article
226/227 of the Constitution of India, shall not venture
into re-appreciation of the evidence. The High Court can
only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure
prescribed in that behalf;
c. there is violation of the principles of natural justice in
conducting the proceedings;
d. the authorities have disabled themselves from
reaching a fair conclusion by some considerations
extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be
influenced by irrelevant or extraneous
considerations;
f. the conclusion, on the very face of it, is so wholly
arbitrary and capricious that no reasonable person
could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to
admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence. Under
Article 226/227 of the Constitution of India, the High
Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in
case the same has been conducted in
accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on
which findings can be based.
(vi). correct the error of fact however grave it may
appear to be;
(vii). go into the proportionality of punishment
unless it shocks its conscience.=
11.3. Having glance at the Notice in Letter No.5592, dated
30.04.1999 vide Annexure-C/2 forming part of the
compliance affidavit dated 16.11.2023 filed by the
opposite party No.2, the facts are unambiguous that:
i. The services of the petitioner to work as DLR has
been treated unauthorized as there was no
authority to engage him after 10.06.1999.
ii. No examination for recruitment has been
conducted for his engagement
iii. There is no authority to empower the Executive
Engineer to engage Degree/Diploma holders
deviating the list from the panel.
iv. There is no authority to engage Degree/Diploma
holders empowering the Executive Engineers to
engage them for a longer period.
v. No Notice has been issued inviting application for
engagement of Degree/Diploma Engineers and
other category of D.L.Rs.
vi. No appointment order has been issued for his
engagement and no recruitment procedure has
been followed.
vii. The petitioner, whose name appears along with
other D.L.Rs. listed in the said notice, has not been
engaged against any sanctioned posts.
viii. The Government is not sanctioning wages to these
D.L.Rs. and they are paid out of S/R and M/R
grants of the Rural Works Division-II, Ganjam
restricting road maintenance.
ix. The engagement of D.L.R. is in violation of Rule 9 of
delegation of Finance Power Rules, 1978.
x. The notice was issued to disengage on or after
10.06.1999.
xi. Such notice is stated to be advance notice for
disengagement of unauthorized engagement of
Degree/Diploma Engineer/DLRs under the Rural
Works Division in conformity with the Letters No.
12620, dated 02.12.1998 and No.13174, dated
14.12.1998 of Superintending Engineer, Rural
Works Circle, Berhampur.
xii. It is an additional fact that no name has been
brought from employment exchange.
xiii. The said unauthorized engagement is not only
irregular but also illegal. As most of the said
unauthorized engagements fail to give their out-
turn at road site and work site.
xiv. The said advance notice was stated to have been
issued in continuation to Office Notices No.2919,
dated 06.03.1999 and No.3247, dated 10.3.1999
and superseding all other notices issued earlier to
facilitate to eke out their livelihood elsewhere.
11.4. Perusal of record makes it clear that the petitioner has
been continuing in the position by virtue of interim order
dated 17.05.1999 of the Odisha Administrative Tribunal,
Bhubaneswar. The terms of aforesaid notice dated
30.04.1999 tested on the touchstone of guidelines laid
down in Secretary, State of Karnataka Vrs. Umadevi,
(2006) 4 SCC 1 and other subsequent decisions, it is
found that the Odisha Administrative Tribunal, though
protected the petitioner by way of passing interim order
on 17.05.1999, is correct in its approach by holding that
the petitioner <cannot claim for regularisation of service=.
CONCLUSION & DECISION:
12. The petitioner is engaged by <the departmental Engineer=
as provided under Paragraph (v) of Appendix-XXXIII of
Volume-II of the Odisha Public Works Department Code,
however, without any advertisement for any post and the
petitioner has never faced any recruitment process.
12.1. The reason for delay in approaching this Court by way of
filing writ petition on 20.02.2013 challenging the Order
dated 23.09.2011 passed in O.A. No.807 of 1999 as
ascribed by the petitioner in affidavit dated 21.07.2014
does not appeal to this Court. Simply making statement
alleging the laches on the part of the advocate without
anything more cannot justify entertainment of writ
petition, particularly so when the legal position, as
discussed in the foregoing paragraphs, if applied to the
fact situation of the present case, does not warrant
interference with the impugned Order passed by the
Odisha Administrative Tribunal, Bhubaneswar.
12.2. By way of separate affidavit dated 21.07.2014 the
petitioner made attempt to ascribe reason for the delay.
The contents of paragraphs 5, 6 and 7 of said affidavit
read thus:
<5. That the Hon9ble Tribunal has dismissed the
dtd.23.09.2011. The concerned Advocate of the
petitioner did not intimate him about the order. Since
the petitioner is continuing in service he was under
the impression that the O.A is pending before the
Tribunal.
6. That the co-applicants along with the petitioner
before the Hon9ble Tribunal were absorbed on
contractual basis in order to be regularised later on.
When the petitioner made query in his office he was
intimated that he would be regularised also. The
petitioner believed their words and was hopeful for
regularisation of his service.
7. That when all the co-applicants along with the
petitioner were absorbed on contractual basis in
service except the petitioner the petitioner finally
came to Bhubaneswar. He contacted his lawyer and
came to know that the O.A. has been dismissed
since dtd 23.09.2011.=
12.3. It does need to be highlighted that though the petitioner
has made scurrilous attack on the concerned advocate,
he neither disclosed the name of the advocate nor has
placed any material to ascertain veracity of such
statement. Nothing is also made available on record to
suggest that he has taken any step against his counsel
who is alleged to have made false statement. Under such
circumstance, this Court rejects to take into
consideration such affidavit which lacks material
particulars. Therefore, it is held that no plausible
explanation has been rendered by the petitioner with
regard to delay in approaching this Court by way of filing
writ petition questioning the legality of the Order dated
23.09.2011 passed by the learned Odisha Administrative
Tribunal, Bhubaneswar, in O.A. No.807 of 1999.
12.4. In consideration of long period of rendering service since
1991 till date as asserted by the petitioner by way of
swearing additional affidavit dated 08.05.2022 and
affirming therein that six other persons alongwith whom
he had approached the learned Odisha Administrative
Tribunal in O.A. No.807 of 1999, have been regularised
ignoring the case of the petitioner, this Court directed
the Additional Standing Counsel vide Order dated
18.08.2023 as follows:
<2. Mr. S. Nayak, learned Additional Standing Counsel
appearing for the State-opposite parties is directed to
obtain instructions as to why the services of the
petitioner have not been regularized even though he
has already rendered more than 32 years of service
on DLR basis in the meantime, when the services of
similarly situated persons serving under Mechanical
Engineering wings have been regularized,
particularly when there is availability of vacancy
and he has been continuing against a vacant post.=
12.5. In the compliance affidavit dated 16.11.2023 filed by the
opposite party No.2, it has been categorically stated that
by virtue of interim order dated 17.05.1999 passed by
the Odisha Administrative Tribunal that <the services of
the applicant shall not be terminated without leave of
the Tribunal=, the petitioner has been continuing in the
same position as DLR worker.
12.6. In view of authoritative enunciation in Ganesh Digamber
Jambhrunkar Vrs. State of Maharashtra, 2023 LiveLaw
(SC) 801 and Secretary, State of Karnataka Vrs. Umadevi,
(2006) 4 SCC 1, this Court has no alternative but to hold
that by working for a long period of time on daily wage
basis, that too under the umbrella of interim orders of
the Odisha Administrative Tribunal, the petitioner does
not acquire any vested legal right to be appointed in the
post on regular basis.
12.7. As the Odisha Administrative Tribunal in O.A. No.807 of
1999 by Order dated 23.09.2011 dismissed the case of
the petitioner along with six others applying the
principles laid down in Umadevi (3), (2006) 4 SCC 1, in
absence of reasonable explanation to come to this Court
challenging said Order of the Odisha Administrative
Tribunal with delay does not give scope for this Court to
interfere with the same invoking jurisdiction under
Article 226/227 of the Constitution of India.
12.8. It may be noted that writs are not a device to restart
proceedings after unreasonable and inordinate delay. It
is often seen that litigants, who sleep over their right of
appeal/revision or any other statutory mode for
redressal, decide at a much later time after
unreasonable and inordinate time to re-agitate the
matter especially against the Government or its
functionalities. Such a device seldom requires to be
attended to. Invocation of the extraordinary jurisdiction
of the High Court by filing writ petition under Article 226
of the Constitution of India craving for direction for
consideration of fresh plea or evidence with a hope to re-
enliven the proceeding, which had lapsed with the
passage of time, is liable to be deprecated. The Hon9ble
Supreme Court of India as also this Court has
consistently held that indolent person is not to be
protected and delay and laches on the part of the litigant
disentitle him to any relief.
12.9. It would be pertinent to refer to the Apex Court
Judgment in K.V. Raja Lakshmiah Vrs. State of Mysore,
AIR 1967 SC 973 which held that the High Court in
exercise of its discretion does not ordinarily assist the
tardy and the indolent or the acquiescent and the
lethargic and that the Court may decline to intervene
and grant relief in exercise of its writ jurisdiction
because it is likely to cause confusion and public
inconvenience and bring in its train new injustices. The
Court observed that if writ jurisdiction is exercised after
unreasonable delay, it may have the effect of inflicting
not only hardship and inconvenience but also causing
injustice to the third parties.
12.10. Regard may be had to Northern Indian Glass
Industries Vrs. Jaswant Singh and Others, 2002 Supp (3)
SCR 534, wherein the Hon9ble Court cautioned that the
High Court cannot ignore the delay and laches in
approaching the writ court and there must be
satisfactory explanation by the petitioner as to how he
could not come to the court well in time.
12.11. It is also well-settled principle of law that 8delay
defeats equity9. The principle underlying this rule is that
the one who is not vigilant and diligent and does not
seek intervention of the Court within reasonable time
from the date of accrual of cause of action or alleged
violation of constitutional, legal or other right is not
entitled to relief under Article 226 of the Constitution.
Another reason for the High Court9s refusal to entertain
belated claim is that during the intervening period rights
of third parties may have crystallized and it will be
inequitable to disturb those rights at the instance of a
person who has approached the Court after long lapse of
time and there is no cogent explanation for the delay.
12.12. In Shankara Co-op. Housing Society Ltd. Vrs. M.
Prabhakar and Others, (2011) 5 SCC 607, the Supreme
Court reiterated settled position of law and affirmed the
well-established criteria which has to be considered
before exercise of discretion under Article 226 of the
Constitution of India. The relevant portion is extracted
herein below:
<53. The relevant considerations, in determining whether
delay or laches should be put against a person who
approaches the writ court under Article 226 of the
Constitution is now well settled. They are:
1. there is no inviolable rule of law that whenever
there is a delay, the court must necessarily
refuse to entertain the petition; it is a rule of
practice based on sound and proper exercise of
discretion, and each case must be dealt with
on its own facts;
2. the principle on which the court refuses relief
on the ground of laches or delay is that the
rights accrued to others by the delay in filing
the petition should not be disturbed, unless
there is a reasonable explanation for the delay,
because court should not harm innocent parties
if their rights had emerged by the delay on the
part of the Petitioners;
3. the satisfactory way of explaining delay in
making an application under Article 226 is for
the Petitioner to show that he had been seeking
relief elsewhere in a manner provided by law.
If he runs after a remedy not provided in the
Statute or the statutory rules, it is not desirable
for the High Court to condone the delay. It is
immaterial what the Petitioner chooses to
believe in regard to the remedy;
4. no hard and fast rule, can be laid down in this
regard. Every case shall have to be decided on
its own facts;
5. that representations would not be adequate
explanation to take care of the delay.=
12.13. In C. Jacob Vrs. Director of Geology and Another,
(2008) 10 SCC 115, it has been observed thus:
<6. Let us take the hypothetical case of an employee
who is terminated from service in 1980. He does not
challenge the termination. But nearly two decades
later, say in the year 2000, he decides to challenge
the termination. He is aware that any such
challenge would be rejected at the threshold on the
ground of delay (if the application is made before
Tribunal) or on the ground of delay and laches (if a
writ petition is filed before a High Court). Therefore,
instead of challenging the termination, he gives a
representation requesting that he may be taken back
to service. Normally, there will be considerable delay
in replying such representations relating to old
matters.
Taking advantage of this position, the ex-employee
files an application/writ petition before the
Tribunal/High Court seeking a direction to the
employer to consider and dispose of his
representation. The Tribunals/High Courts routinely
allow or dispose of such applications/petitions
(many a time even without notice to the other side),
without examining the matter on merits, with a
direction to consider and dispose of the
representation.
The courts/tribunals proceed on the assumption,
that every citizen deserves a reply to his
representation. Secondly they assume that a mere
direction to consider and dispose of the
representation does not involve any 8decision9 on
rights and obligations of parties. Little do they
realize the consequences of such a direction to
8consider9. If the representation is considered and
accepted, the ex-employee gets a relief, which he
would not have got on account of the long delay, all
by reason of the direction to 8consider9.
If the representation is considered and rejected, the
ex-employee files an application/writ petition, not
with reference to the original cause of action of 1982,
but by treating the rejection of the representation
given in 2000, as the cause of action. A prayer is
made for quashing the rejection of representation
and for grant of the relief claimed in the
representation. The Tribunals/High Courts routinely
entertain such applications/petitions ignoring the
huge delay preceding the representation, and
proceed to examine the claim on merits and grant
relief. In this manner, the bar of limitation or the
laches gets obliterated or ignored.=
12.14. At this juncture, it is useful to refer to Ex. Capt.
Harish Uppal Vrs. Union of India, 1994 Supp. (2) SCC
195, wherein the following was the observation:
<8. The petitioner sought to contend that because of
laches on his part, no third party rights have
intervened and that by granting relief to the
petitioner no other person9s rights are going to be
affected. He also cited certain decisions to that
effect. This plea ignores the fact that the said
consideration is only one of the considerations which
the court will take into account while determining
whether a writ petition suffers from laches. It is not
the only consideration. It is a well-settled policy of
law that the parties should pursue their rights and
remedies promptly and not sleep over their rights.
That is the whole policy behind the Limitation Act
and other rules of limitation. If they choose to sleep
over their rights and remedies for an inordinately
long time, the court may well choose to decline to
interfere in its discretionary jurisdiction under Article
226 of Constitution of India4 and that is what
precisely the Delhi-High Court has none. We cannot
say that the High Court was not entitled to say so in
its discretion.=
12.15. The Hon9ble Supreme Court in the case of State of
Maharashtra Vrs. Digambar, (1995) 4 SCC 683 laid down
as follows:
<14. How a person who alleges against the State of
deprivation of his legal right, can get relief of
compensation from the State by invoking writ
jurisdiction of the High Court under Article 226 of the
Constitution even though, he is guilty of laches or
undue delay is difficult to comprehend, when it is
well settled by decisions of this Court that no
person, be he a citizen or otherwise, is entitled to
obtain the equitable relief under Article 226 of the
Constitution if his conduct is blameworthy because
of laches, undue delay, acquiescence, waiver and
the like. Moreover, how a citizen claiming
discretionary relief under Article 226 of the
Constitution against a State, could be relieved of his
obligation to establish his unblameworthy conduct
for getting such relief, where the State against which
relief is sought is a Welfare State, is also difficult to
comprehend. Where the relief sought under Article
226 of the Constitution by a person against the
Welfare State is founded on its alleged illegal or
wrongful executive action, the need to explain laches
or undue delay on his part to obtain such relief,
should, if anything, be more stringent than in other
cases, for the reason that the State due to laches or
undue delay on the part of the person seeking relief,
may not be able to show that the executive action
complained of was legal or correct for want of
records pertaining to the action or for the officers
who were responsible for such action not being
available later on. Further, where granting of relief is
claimed against the State on alleged unwarranted
executive action, is bound to result in loss to the
public exchequer of the State or in damage to other
public interest, the High Court before granting such
relief is required to satisfy itself that the delay or
laches on the part of a citizen or any other person in
approaching for relief under Article 226 of the
Constitution on the alleged violation of his legal
right, was wholly justified in the facts and
circumstances, instead of ignoring the same or
leniently considering it. Thus, in our view, persons
seeking relief against the State under Article 226 of
the Constitution, be they citizens or otherwise,
cannot get discretionary relief obtainable thereunder
unless they fully satisfy the High Court that the
facts and circumstances of the case clearly justified
the laches or undue delay on their part in
approaching the Court for grant of such discretionary
relief. Therefore, where a High Court grants relief to
a citizen or any other person under Article 226 of the
Constitution against any person including the State
without considering his blameworthy conduct, such
as laches or undue delay, acquiescence or waiver,
the relief so granted becomes unsustainable even if
the relief was granted in respect of alleged
deprivation of his legal right by the State.=
12.16. In Chennai Metropolitan Water Supply and
Sewerage Board Vrs. T.T. Murali Babu reported in (2014)
4 SCC 108, the Hon9ble Supreme Court held as follows:
<16. Thus, the doctrine of delay and laches should not be
lightly brushed aside. A writ court is required to
weigh the explanation offered and the acceptability
of the same. The court should bear in mind that it is
exercising an extraordinary and equitable
jurisdiction. As a constitutional court it has a duty to
protect the rights of the citizens but simultaneously it
is to keep itself alive to the primary principle that
when an aggrieved person, without adequate
reason, approaches the court at his own leisure or
pleasure, the Court would be under legal obligation
to scrutinise whether the lis at a belated stage
should be entertained or not. Be it noted, delay
comes in the way of equity. In certain circumstances
delay and laches may not be fatal but in most
circumstances inordinate delay would only invite
disaster for the litigant who knocks at the doors of
the Court. Delay reflects inactivity and inaction on
the part of a litigant4 a litigant who has forgotten
the basic norms, namely, <procrastination is the
greatest thief of time= and second, law does not
permit one to sleep and rise like a phoenix. Delay
does bring in hazard and causes injury to the lis.=
12.17. The Madras High Court in the case of S.
Vaidhyanathan Vrs. Government of Tamil Nadu, 2018
SCC OnLine Mad 11463, held as under:
<13. Though reasonable time is not prescribed in the
rules framed under Article 229 of the Constitution of
India, the words <reasonable time=, as explained in
Veerayeeammal Vrs. Seeniammal reported in (2002)
1 SCC 134, at Paragraph 13, is extracted hereunder:
813. The word <reasonable= has in law prima facie
meaning of reasonable in regard to those
circumstances of which the person concerned is
called upon to act reasonably knows or ought
to know as to what was reasonable. It may be
unreasonable to give an exact definition of the
word <reasonable=. The reason varies in its
conclusion according to idiosyncrasy of the
individual and the time and circumstances in
which he thinks. The dictionary meaning of the
<reasonable time= is to be so much time as is
necessary, under the circumstances, to do
conveniently what the contract or duty requires
should be done in a particular case. In other
words it means, as soon as circumstances
permit. In P. Ramanatha Aiyar9s The Law
Lexicon it is defined to mean:
8A reasonable time, looking at all the
circumstances of the case; a reasonable time
under ordinary circumstances; as soon as
circumstances will permit; so much time as is
necessary under the circumstances,
conveniently to do what the contract requires
should be done; some more protracted space
than <directly=; such length of time as may
fairly, and properly, and reasonably be
allowed or required, having regard to the
nature of the act or duty and to the attending
circumstances; all these convey more or less
the same idea.9
14. There is an inordinate delay and laches on the part
of the appellant. What is laches is as follows:
8Laches or reasonable time are not defined under
any Statute or Rules. <Latches= or <Lashes= is an old
french word for slackness or negligence or not doing.
In general sense, it means neglect to do what in the
law should have been done for an unreasonable or
unexplained length of time. What could be the
latches in one case might not constitute in another.
The latches to non-suit, an aggrieved person person
from challenging the acquisition proceedings should
be inferred from the conduct of the land owner or an
interested person and that there should be a passive
inaction for a reasonable length of time. What is
reasonable time has not been explained in any of the
enactment. Reasonable time depends upon the facts
and circumstances of each case.9
15. Statement of law has also been summarized in
Halsbury9s Laws of England, Para 911, pg. 395 as
follows:
8In determining whether there has been such delay
as to amount to laches, the chief points to be
considered are:
(i) acquiescence on the claimant9s part; and
(ii) any change of position that has occurred on the
defendant9s part.
Acquiescence in this sense does not mean standing
by while the violation of a right is in progress, but
assent after the violation has been completed and
the claimant has become aware of it. It is unjust to
give the claimant a remedy where, by his conduct,
he has done that which might fairly be regarded as
equivalent to a waiver of it; or where by his conduct
and neglect, though not waiving the remedy, he has
put the other party in a position in which it would
not be reasonable to place him if the remedy were
afterwards to be asserted. In such cases lapse of
time and delay are most material. Upon these
considerations rests the doctrine of laches.9 ***=
12.18. Pertinent it is, in the present context, to take note
of the following observation of the Allahabad High Court
vide Judgment dated 18th March, 2021 rendered in
Ganga Sahay and 2 Others Vrs. Deputy Director of
Consolidation and 14 Others, WRIT - B No. 302 of 2021:
<13. Law has long set its face against delay in
approaching the court. The courts have consistently
declined to condone the delay and denied relief to
litigants who are guilty of laches. Litigants who are
in long slumber and not vigilant about their rights
are discouraged by the courts. Belated claims are
rejected at the threshold. Rip Van Winkles have a
place in literature, but not in law.
14. All this is done on the foot of the rule of delay and
laches. Statutes of limitation are ordained by the
legislature, rule of laches was evolved by the courts.
Sources of the law differ but the purpose is
congruent. Statutes of limitation and the law of
delay and laches are rules of repose.
15. The rule of laches and delay is founded on sound
policy and is supported by good authority. The rule
of laches and delay is employed by the courts as a
tool for efficient administration of justice and a
bulwark against abuse of process of courts.
16. Some elements of public policy and realities of
administration of justice may now be considered.
17. While indolent litigants revel in inactivity, the cycle
of life moves on. New realities come into existence.
Oblivious to the claims of the litigants, parties order
their lives and institutions their affairs to the new
realities. In case claims filed after inordinate delay
are entertained by courts, lives and affairs of such
individuals and institutions would be in a disarray
for no fault of theirs. Their lives and affairs would be
clouded with uncertainty and they would face
prospects of long and fruitless litigation.
18. The delay would entrench independent third party
rights, which cannot be dislodged. The deposit of
subsequent events obscures the original claim and
alters the cause itself. The refusal to permit agitation
of stale claims is based on the principle of
acquiescence. In certain situations, the party by its
failure to raise the claim in time waives its right to
assert it after long delay.
19. The rule of delay and laches by preventing the
assertion of belated claims puts to final rest long
dormant claims. This policy of litigative repose,
creates certainty in legal relations and curtails
fruitless litigation. It ensures that the administration
of justice is not clogged by pointless litigation.=
12.19. Such being the settled parameters for
consideration of condonation of delay as discussed above
on the question of exercise of discretion under Article
226/227 of the Constitution of India, it is difficult to
ignore the delay and laches on part of the instant
petitioner, as it is apparent on record that there is no
satisfactory explanation proffered in the writ petition.
The explanation for laches is self-serving and lacks
credibility. Therefore, the writ petition is barred by delay
and laches and is not liable to be entertained.
13. On the facts and in the circumstances of the present
case, it is borne on record that the engagement of the
petitioner was not preceded by following any recruitment
procedure nor by way of any open selection process
coupled with the fact that there was no wide publicity
inviting application for the subject-post. Long
continuance in service was occasioned by interim order
dated 17.05.1999 of the Odisha Administrative Tribunal
in O.A. No.807 of 1999, which matter got dismissed
without further extension of such interim protection.
That apart, it has not been demonstrated by placing
plausible material to the effect that the petitioner was
engaged against sanctioned post, and the criteria for
absorption in service laid down in various decisions
referred to supra. The above discussion leads this Court
to conclude that there is no scope to issue writ of
mandamus to the opposite parties qua the relief(s)
prayed for, for the petitioner is found not entitled to
claim for regularisation or absorption in service. Added
to this, this Court declines to exercise power under
Article 226/227 of the Constitution of India inasmuch as
the Order of the Odisha Administrative Tribunal has
been challenged with a delay without explaining
appropriately and the interim order dated 17.05.1999
passed in O.A. No.807 of 1999 came to be lapsed on
dismissal of said case on 23.09.2011.
13.1. Hence, in the above circumstances, the learned Odisha
Administrative Tribunal has dismissed the Original
Application by assigning appropriate reason that <in view
of the decision in the case of Secretary of State of
Karnataka and Others Vrs. Umadevi, 2006 (3) SLJ-I S.C.
= (2006) 4 SCC 1 such an incumbent cannot claim for
regularization of service=.
14. In the result, the Writ Petition/Original Application
stands dismissed, but in the circumstances without any
order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
DR. B.R. SARANGI, ACJ. I agree.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
Designation: PA(SECRETARY-IN-CHARGE)
Location: ORISSA HIGH COURT, CUTTACK
Date: 13-Dec-2023 18:54:36
High Court of Orissa, Cuttack
The 13th December, 2023//Aswini/MRS/Laxmikant
