Orissa High Court
Jalendra Kumar Paramanik vs State Of Odisha And Others on 14 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No. 23542 of 2010
An application under Sections 226 and 227 of the Constitution of
India)
---------------
Jalendra Kumar Paramanik ...... Petitioner
-Versus-
State of Odisha and others ....... Opp. Parties
Advocate(s) appeared in this case :-
_______________________________________________________
For Petitioner : M/s. S.B. Jena, S.K. Das,
R.C. Ray, S. Behera,
S.S. Mohapatra, J.K. Swain,
A. Mishra & S. Soren,
Advocates.
For Opp. Parties : Mr. B.P. Tripathy,
Addl. Government Advocate
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGEMENT
14th March, 2023
SASHIKANTA MISHRA, J.
The sole grievance of the petitioner as laid in the
instant writ petition is, his case for regularization in
service was not considered by the opposite party-
authorities at par with his co-employee Jawaharlal
Mohanta despite order of this Court passed in W.P.(C) No.
20494 of 2009.
2. The facts of the case, briefly stated are that by
order dated 29.07.1995, the Chief Engineer,
Subarnarekha Irrigation Project, Laxmiposi in the district
of Mayurbhanj permitted engagement of one Jawaharlal
Mohanta as Science teacher and the petitioner as PET in
SIP composite High School, Laxmiposi for taking classes
for a period of three months or posting of regular teacher,
whichever is earlier. As such, the petitioner joined as PET
in the School on 29.07.1995 and was paid remuneration
@ Rs.30/- per class subject to maximum of 20 classes per
month. His service was continued from time to time and
as such he and the said Jawaharlal Mohanta worked
continuously. By order dated 28.04.1994, the State
Government sanctioned the creation of one post of PET for
the composite High School in the scale of pay of Rs.1080-
1800 per month during the year, 1995-96. Both the
petitioner as well as Jawaharlal Mohanta approached the
Odisha Administrative Tribunal in O.A. No. 4148(C) of
1996 and O.A. No. 4147 (C) of 1996 respectively. The O.A.
filed by the Jawaharlal Mohanta was disposed of by order
dated 31.01.2002 directing the opposite party authorities
to pay minimum of the pay in the scale of pay of Rs.5000-
8000 (revised TG scale) if he is still utilized for teaching in
the project school till the school is closed down. By order
dated 27.07.2003, the opposite party authorities
appointed Jawaharlal Mohanta as TG Science Teacher
(CBZ) in the time scale of pay of Rs.5000-150-8000/-
though, the same was subsequently modified to the
minimum scale of pay. The O.A. filed by the present
petitioner was disposed of by the Tribunal by its order
dated 07.04.2004 whereby the authorities were directed to
consider his case for regularization having regard to the
fact that a similarly placed person (Jawaharlal Mohanta)
had been given the benefits of regularization and if funds
are available. The authorities however rejected the prayer
for regularization of the petitioner by order dated
27.08.2004 citing the ban imposed by the State
Government in filling up regular vacancies due to
financial stringency and that he had been appointed as
contractual teacher. The petitioner again approached the
Tribunal in O.A. No.1937(C) of 2004 which was disposed
of by order dated 08.12.2009 by holding that the
petitioner was appointed on contractual basis and not
recruited through open competition and therefore, his
appointment is de hors the rules for which he has no right
to the post claimed by him and anything beyond the
stipulated wages. However, on equitable consideration,
the Tribunal directed the authorities to allow the
petitioner to appear in the recruitment test for
appointment as PET by relaxing the upper age limit as per
the existing rules. The petitioner challenged the said order
of the Tribunal before this Court in W.P.(C) No.20494 of
2009. A Division Bench of this Court by order dated
14.01.2010 disposed of the writ petition with direction to
the authorities to consider the case of the petitioner at par
with the case of Jawaharlal Mohanta (OJC No. 2977 of
2002). Pursuant to such order, the authorities by office
order dated 01.10.2010 appointed the petitioner as PET in
the scale of pay of Rs.5200-20200/- with grade pay of
Rs.2200/- and other allowances with effect from
14.01.2022. This order, enclosed as Annexure-16 to the
writ petition is impugned as according to the petitioner
the date of appointment should have been the same as
that of Jawaharlal Mohanta, i.e., 29.07.1995 or the
benefit of minimum scale of pay with effect from
31.02.2002 and regular scale with effect from 02.08.2005
should have been allowed to him.
3. The stand of the opposite parties as reflected in
their counter affidavit is that the petitioner was never
appointed against a sanctioned post but as a qualified
hand on class basis remuneration unconditionally. He
was never appointed as a regular PET and as such,
cannot claim the benefits at par with a regular teacher.
The Tribunal, in its order dated 07.04.2004 passed in O.A
No.4148(C) of 1996 had directed the authorities to
consider the case of the petitioner for regularization, if
funds are available. Since funds were not available the
petitioner's case was rejected. As regards the co-employee,
namely, Jawaharlal Mohanta, he being a Science teacher
cannot be compared to the petitioner since the subjects
taught by him are essential for HSC Examination, which
is not so for a PET like the petitioner. In any case, in the
subsequent order passed in OA No. 1937(C) of 2004, the
Tribunal has permitted the petitioner to appear in the
recruitment test. Since the petitioner challenged the said
decision before this Court in W.P(C) No.20494 of 2009,
which was disposed of without going to the merits and
simply by directing the authorities to consider the case of
the petitioner at par Jawaharlal Mohanta, the case of the
petitioner was considered and he was brought to the work
charged establishment like him. Thus, according to the
opposite parties, the order of this Court has been fully
complied with.
4. Heard Mr. Satyajit Behera, learned counsel for the
petitioner and Mr. B.P. Tripathy, learned Additional
Government Advocate for the State
5. Mr. Behera would argue that the opposite parties
authorities are guilty of gross discrimination inasmuch as
the petitioner and Jawaharlal Mohanta stand exactly on
the same footing and therefore both are entitled to the
same benefits, but while Jawaharlal Mohanta was granted
regularization with effect from 02.08.2005, the petitioner
has been granted such benefit from 14.01.2010. Mr.
Behera further submits that the petitioner has discharged
his duties for more than thirty years which by itself proves
that the post held by him was a regular post.
6. Mr. B.P. Tripathy, on the other hand, contends
that the whole premise of the claim made by the petitioner
is misconceived inasmuch as neither Jawarhalal Mohanta
nor the petitioner have been regularized. In any event, the
petitioner was appointed in the work charged
establishment with effect from 14.01.2010 which is not a
regular appointment in the strict sense of the term. It is
further argued by Mr. Tripathy that the petitioner cannot
claimed any vested right over a regular post, since he has
not been appointed on the basis of a valid recruitment
process. Moreover, the date of granting the benefit is to be
decided by the employer depending on various factors like
availability of funds, number of posts, manner of
recruitment etc.
7. From the above narration, it is apparent that the
only grievance of the petitioner is, apparent refusal of the
authorities to treat him at par with Jawaharlal Mohanta,
despite direction of this Court. The other facts of the case
not being disputed, it would be profitable to first refer to
the judgment passed by the Tribunal in O.A. No.1937(C)
of 2004, which was challenged before this Court in the
form of W.P.(C) No.20494 of 2009. The Tribunal in its
judgment passed on 08.12.2009, inter alia, held as
follows:-
"9. The applicant was appointed on contractual
basis for a period of three months or till posting of
a regular teacher and has joined in the school on
29.07.1995 as per the order as at Annexure 1. As
it appears, the process of regular recruitment has
not yet started even though the Chief Engineer
and Basin has given a requisition to the Collector
& District Magistrate, Mayurbhanj to sponsor the
names of candidates for appointment of teachers
including the physical Education Teacher as at
Annexure-7. The learned counsel for the applicant
has produced letter No.2956 dated 16.03.2009 of
the Chief Engineer and Basin Manger, Baitarani
Subarnarekha and Budhabalanga Basin,
Laxmiposi, to the Financial Advisors and Chief
Accounts officer in which a request has been made
for extension of temporary post under regular
establishment for the year, 2009-2010. The post
of P.E.T. in the aforesaid High School finds place
in that list. The engagement of the applicant on
contractual basis was being extended from time to
time and he has been allowed to continue till a
regular recruitment is made. As the applicant has
not been recruited through open competition, and
his appointment is 'dehors' the rules, he has no
right to the post claimed by him or anything
beyond the stipulated wages.
10. But considering the equity and the fact that
the applicant has been continuing in the said
school since 1995 and he may not be in a position
to find a suitable avenue for future employment at
their point of time, it will be appropriate for the
respondents to allow the applicant to appear in the
recruitment test for appointment as P.E.T. by
relaxing the upper age limit as per the existing
rules. He may, thereafter, be considered for
appointment if he is found suitable in all respects
and is eligible as per merit."
8. The petitioner, as already stated, carried the
matter to this Court in the aforementioned writ petition.
The said writ petition was disposed of on 14.01.2010 by
passing the following order:-
"Heard learned counsel for the parties.
The petitioner has filed this writ petition
challenging the order dated 08.12.2009,
passed by the Orissa Administrative Tribunal,
Cuttack Bench, Cuttack in O.A. No.1937(C) of
2004, rejecting the prayer for regularization of
the services of the petitioner as a P.E.T.
Learned counsel for the petitioner submits
that the case of the petitioner has not been
treated at par with the case of Sri Jawaharlal
Mohanta, who has been regularized in the
meantime by virtue of order of this Court,
passed in OJC No. 2977 of 2002 dated
2.08.2005."
Learned Advocate General stoutly denied
the aforesaid submission made by the learned
counsel for the petitioner and stated that Sri
Jawaharlal Mohanta, petitioner in OJC No.
2977 of 2002, has not been regularized
against any regular sanctioned post.
Considering the submissions made by
learned counsel for the parties, we dispose of
the writ petition directing the opposite parties
to consider the case of the petitioner at par
with the case of Sri Jawaharlal Mohanta-vrs-
State of Orissa and others in OJC No. 4977 of
2022, disposed of on 2.08.2005 and take a
decision within three months hence and
communicate the same to the petitioner.
W.P.(C) is accordingly disposed of."
Thus, no finding in respect of the judgment of the
Tribunal, was rendered by the Division Bench. Basing on
the submission that Jawaharlal Mohanta had been
regularized pursuant to order passed by this Court, which
was stoutly denied by the learned Advocate General, this
Court simply directed the authorities to consider the case
of the petitioner at par with the case of Jawaharlal
Mohanta. The said Jawaharlal Mohanta, as already
stated, was appointed as TGT (Science) in the minimum
scale of pay, i.e., Rs.5000-8000/-. The petitioner was
appointed as PET also in the scale of pay (revised) of
Rs.5200-20200/- with grade pay of Rs.2200/- and other
allowances. It has been stated in the counter that such
appointment was in the work charged establishment. The
nature of appointment of Jawaharlal Mohanta is not
clearly forthcoming from the records, but it is the common
ground of the parties that he was appointed in the
minimum scale at the relevant time. But whatever may be
the nature of such engagement, fact remains that the
petitioner was also, prima facie, granted the same benefit
as Jawaharlal Mohanta, i.e., appointment as PET on a
particular scale of pay as against the class based
remuneration granted earlier. It cannot, therefore, be said
that he was treated differently.
9. An important aspect which was evidently not
brought to the notice of the Division Bench in W.P.(C) No.
20494 of 2009 was the fact that neither Jawaharlal
Mohanta nor the petitioner were engaged against any
sanctioned posts after following due recruitment process
at the relevant time. True, there are materials on record to
show that some posts including that of PET were created
but then there is no law by which the petitioner could
have been straightaway appointed against such post
without undergoing due process of recruitment. The
Tribunal, having noted such fact granted liberty to the
petitioner to appear in the recruitment test for
appointment as PET with further direction to the
authorities to relax the upper age limit as per rules. The
authorities have nevertheless appointed the petitioner by
taking him in the work charged establishment. In the
considered view of this Court, the petitioner ought to be
satisfied with such benevolence of the State Government.
As regards the claim of allowing such
appointment retrospectively, this Court having found that
the petitioner does not have any vested right to the post
inasmuch as he has not been appointed after undergoing
a due process of recruitment, cannot stake any claim for
being regularized with effect from a particular date. It
would be profitable at this stage to rely upon a judgment
rendered by the Apex Court in the case of Managing
Director, Ajmer Vidhyut Vitran Nigam Ltd. Ajmer and
another vs. Chiggan Lal and others, reported in 2022
SCC OnLine SC 1351 when it was observed under
paragraph -9 as follows:-
"9. It is the settled position that the date from
which regularization is to be granted is a matter
to be decided by the employer keeping in view a
number of factors like the nature of the work,
number of posts lying vacant, the financial
condition of the of the employer, the additional
financial burden caused, the suitability of the
workmen for the job, the manner and reason for
which the initial appointments were made etc.
The said decision will depend upon the facts of
each year and no parity can be claimed based on
regularization made in respect of the earlier
years."
10. Thus, this Court finds the claim of the petitioner
for parity in so far as his date of appointment is concerned
to be entirely groundless. For such reason, this Court
finds no merit in the writ petition, which is, therefore,
dismissed.
.................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 14th March, 2023/ B.C. Tudu
