Abhaya Kumar Padhi vs State Of Odisha & Others
2023 Latest Caselaw 4870 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                           WPC(OAC) NO.86 of 2015

        Abhaya Kumar Padhi                      ....  Petitioner
                                                    Mr. M.K. Panda, Adv.
                                            -versus-

        State of Odisha & Others                ....     Opp. Parties
                                                       Mr. D.K. Mohanty, ASC

                            CORAM:
               JUSTICE BIRAJA PRASANNA SATAPATHY

                                            ORDER

02.05.2023 Order No

7. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard Mr. M.K. Panda, learned counsel appearing for the Petitioner and Mr. D.K. Mohanty, learned A.S.C.

3. The present Writ Petition has been filed inter alia with the following prayer.

"It is, therefore, prayed that this Hon9ble Tribunal may kindly be pleased to admit the original application, issue notice to the respondents as to why the applicant will not be permanently absorbed in Class-IV post of the Office of the Tahasildar, Niali with payment of salary for the month of Nov. & Dec. 2014 and get the arrear Revised Scale of Pay applicable to other Govt. servants working as Peon at part with the applicant.

The relevant documents and papers be called for from the office of the Respondents9 and if they fail to show cause or show insufficient cause, the respondents be directed to absorb the applicant in service permanently against the permanent post.=

4. Learned counsel for the Petitioner contended that the Petitioner was engaged on 44 days basis vide order issued on 30.10.1990 under Annexure-1. It is // 2 //

contended that even though the Petitioner was allowed to continue on 44 days basis with one day break and his services was not regularized, he approached the Tribunal in O.A. No.2093(C) of 1994 seeking his absorption in the regular establishment. It is contended that the aforesaid Original Application was disposed of by the Tribunal vide order dated 23.07.2012 under Annexure-13 with the following order:

<Admittedly the applicant does not have a claim for regularization in view of the stipulation in the aforesaid decision i.e. Secretary, State f Karnatak Vs. Uma Devi, not having been recruited through a regular recruitment, process and having continued on the basis of an interim order of this Tribunal.

However, in view of the fact that the juniors of the applicant, i.e. Niranjan Mahalik and Rama Muduli, have since been appointed on regular basis, the Government respondents shall at liberty to consider the case of the applicant for regularization in accordance with the decision of the Hon9ble High Court in the case of State of Orissa and others Vs.Hrudananda Panda, (2010) 2 ATT (HC ) 51, appropriate orders in the matter be passed within a period of six months under intimation to the application.=

4.1. It is contended that on the face of the order passed by the Tribunal on 23.07.2012, when the claim of the Petitioner was not considered, nor he was absorbed in the regular establishment, the Petitioner filed the present matter before the Tribunal and the Tribunal while issuing notice of the matter on 09.02.2015, passed the following order.

<Heard Mr. Niranjan Panda, learned counsel for the applicant and Mr. R.K. Dash, learned Government Advocate.

Issue notice on admission.

Counter to the respondents be filed within a period of four weeks. Rejoinder, if any, be filed within a period of two weeks thereafter.

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Learned counsel for the applicant submitted that the applicant is not getting his pay for duty period despite the Revenue Inspector, Niali Circle already submitting absentee statements for the month of November and December 2014 as at Annexure-11 series in his favour/as an interim order the State respondents are directed to pay his salary, if he is performing his duty forthwith, if there are no other impediments.

List this matter after six weeks.=

4.2. Learned counsel appearing for the Petitioner contended that there is no dispute that the petitioner is continuing on 44 days basis with one day break since 1990 and in the meantime, he has already completed more than 32 years of service. It is also contended that the Petitioner is going to retire within two(2) years and unless he is absorbed in the regular establishment, he will be deprived to get the benefit of pension and other pensionary benefits.

4.3. In support of his aforesaid submission, Mr. Panda, learned counsel appearing for the Petitioner relied on a decision of this Court in the case of Ranjit Kumar Das Vs. State of Odisha & Others, reported in 2018 (Suppl.) Vol.1 OLR 111. This Court in the said reported judgment in Paragraph 6 to 18 has held as follows.

"6. The undisputed fact being that the petitioner had been engaged as a driver in the office of the CDPO, ICDS Project, Pattamundai under Women and Child Development Department and was allowed to continue, initially for a period of 44 days basis, but subsequently on a temporary basis, and continued till today as such by virtue of the order passed by the tribunal. For last 19 years, the petitioner bas been continuing on temporary basis. He had approached the tribunal seeking for regularization of service, but the tribunal, instead of passing an order regularizing the services of the petitioner,' disposed of the Original Application directing that till a regular driver is

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appointed or till continuance of the project or till the vehicle exists in that office, whichever is earlier, the petitioner may be allowed to continue in accordance with existing terms and conditions of his engagement. Paragraphs 6 and 7 of the counter affidavit, wherein it has been admitted that the petitioner is still continuing in service, are extracted hereunder:

"6. That in reply to the averments made in Paragraph-3 of the writ application, it is humbly submitted that petitioner temporarily was engaged as Driver for a period of 44 days w.e.f. 3.4,1999 to 16.05.1999 as per order of Collector, Kendrapara ,by Office Order No. 6989', dtd.17.04.1999. Copy of order NO.6989 dtd.17.04.1999 is enclosed herewith and marked as Annexure-A/2 for kind perusal of the Hon'ble Court. Subsequently the engagement was continued in spells from 18.05.1999 -30.06.1999, 02.07.1999 -14.08.1999, 16.08.1999-

28.09.1999,30.09.1999-12.11.1999,15.11.1999- 28.12.1999,30.12.1999-11.02.2000, 19.12.2000- 31.01.2001,02.02.2001 -17.03.2001, 19.03.2001 - 01.05.2001, 03.05.2001 , 15.06.2001, 18. 06~2001, 31.07.2001, 02.08.2001 -14.01.2001, 1 8 .01.200 1

-31. 10. 2001 .

7. That in reply to the averments made in paragra'ph-4 of the writ application, it is humbly submitted that as pr the order of . the district office vide letter no. 1843-, dtd. 30.06.2008 the applicant has been continuing as Driver till date in daily wages basis."

So far as payment of salary is concerned, in terms of the direction · given by the tribunal since no decision has been taken at the level of District" Office, Kendrapara; pursuant to letter dated 05.05.2014, the said salary has not been paid, but 'he has been continuing in service till date. Needless to say that the petitioner having approached' the tribunal for regularization of services, the tribunal ought to have passed an order to ·that extent. Instead of giving any other reasons: the tribunal should have decided the Original Application on the basis of the relief sought' by the petitioner. ,

7. Before delving into the niceties of the order passed by the tribun.al, this Court deems it proper to examine the claims of the petitioner on the basis of the factual matrix available on record itself. On the basis of the' pleadings available before this Court, no doubt the petitioner had approached the tribunal seeking regularization of 'his services. Regularization in service

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Iaw connotes official formalization .of an appointment, which was made on temporary' or ad hoc or stop gap or casual basis or the like, in deviation from the normal rules of " applicable norms of appointment. Such formalization makes the appointment regular. The ordinary meaning of regularisation is "to make regular" according to The Shorter Oxford English rd Dictionary, 3 Edition,' and according to Black9s Law th Dictionary, 6 Edition, the word "regular" . means:

."Conformable to law. Steady or uniform in course, ,practice, or occurrence; not subject to unexplained or irrational variation. Usual, customary, normal or general. Gerald v. American Cas . Co of Reading, Pa., .D.C.N.C., 249 F, Supp. 355, 357. Made . " according to rule, duly authorized, formed after uniform type; built or arranged according to established plan, law or principle, Antonym of <Casua= or <occasional,= Palle v. Industrial Commission, 79 Utah 47, 7 P. 2d. 248, 290.=

8. The above being the meaning of <regular=, as per the common parlance given in dictionary, in B.N. Nagaranja, v. State of Karnataka, AIR 1979 SC 1676 : (1979) 4 SCC 507, the apex Court held that the effect of such regularization would depend on the object or purpose for which the regularization is made or the stage at which is is made once regularized, the procedural infirmities which attended the appointment are cured. Regularization, however, does not necessarily connote permancence.

9. The word 8regular9 or 8regularisation9 do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. Relying on the judgments of the apex Court in B.N. Nagarjan v. State of Karnataka, AIR 1979 SC 166 : (1979) 4 SCC 507, the Constitution Bench of the Apex Court in State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 has also taken the same view, which has also been followed by the apex Court in Hindustan Petroleum Corpn. Ltd. v. Ashok Ranghba Ambre, (008) 2 SCC 717 and also in Hindustan Aeronautics Ltd. V. Dan Bahadur Singh, (2007) 6 SCC 207.

10. Temporary or ad hoc or stop gap or causal 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

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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 psots by regularization is against the constitutional provisions of equality of opportunity in the matter of public employment violating Articles 14 & 16 of the Constitution by not making the offer of employment to the world at large and allowing all eligible candidates euqlity 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.

11. Keeping this backdrop of the case in view, it is to be examined whether this Court. has been able to obtain the benefit of constitutional philosophy of social and economic justice or not. Have the lofty ideals which the founding fathers placed before us any effect in our daily life-the answer cannot however but be in the negative-what happens to the constitutional philosophy as is available in the Constitution itself, which we ourselves have so fondly conferred on to ourselves. The socialistic pattern of society as envisaged in the Constitution has to be attributed its full meaning .

12. In view of above constitutional philosophy, whether Courts can remain as mute spectator, is matter to be considered to achieve the constitutional goal in proper perspective, But all these questions had come up for consideration and decided by the Constitution Bench of the apex Court in Umadevi (3) mentioned supra, The factual matrix of the case in Umadevi (3) arose for consideration from a judgment of Karnataka High Court. In some of the cases; 'the Karnataka High Court rejected the claims of persons, Why had been temporarily engaged as daily wagers but' were continued for more than 10 years in the Commercial Taxes Department of the State of Karnataka for regularization as permanent employees and their entitlement to all the. benefits of . regular ,employees. Another set of civil appeals arose from the order passed by the same High Court on a writ petition challenging the order of the government directing cancellation of appointments of all casual workers/daily rated workers and seeking a further direction for the regularization of all such daily wage earners engaged by the . State or local bodies, These claims were rejected by the Division Bench of the

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Karnataka High Court on appeal from the judgment of the learned Single Judge. The reason for the mater being considered by the Constitution Bench arose because of two earlier orders of reference made by a Bench of two-Judge and subsequently by Bench of three-Judge-Secretary, State of Karnatak v. Uma Devi (1) (2004) 7 SCC 132, and Secretary, State of Karnataka v. Uma Devi (2) (2006) 4 SCC 44, respectively, as they noticed the conflicting opinions expressed by the earlier 3 Bench judgments in relation to regularization.

13. In the case of Umadevi (3). even though this Court has held that the appointments made against temporary or ad-hoc are not to be regularized, in para 53 of the judgment, it is provided that irregular appointment of duly qualified persons in duly sanctioned posts, who have worked for 10 years or more, can be considered on merits and' steps to be taken as a one- time measure to regularize them. In para 53, the Court observed as under:

".53, One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan 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 f0r ten years. or ~ore but .·without the intervention of orders of the ·Courts or Of tribunals. The question of regularization of the service~ 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 regularization, 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 regularizing or making permanent, those not duly appointed as per the constitutional scheme."

The objective behind the exception carved out in this case was prohibiting regularization of such appointments,

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appointed persons whose appointments is irregular. but not illegal ensure security of employment of those persons who served the State Government and their instrumentalities for more than ten years.

14. Elaborating upon the principles laid down in the case of Umadevi (3) (supra) and explaining the difference between irregular and illegal appointments in State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247, this Court held as under: <7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi (3), 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 i~ servi<;:e voluntarily and continuously for more than ten years.

.(ii) The appointment of such employee should not be illegal, even regular. Where the appointments are not made or continued against sanctioned posts or where the persons appointment 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." Antony in of "casual" or "occasional," Palle v. Industrial Commission, 79 Utah 47, 7 P. 2d. 248, 290."

15.' Applying the ratio of U'madevi (3) case, this Court in Nlha'i Singh v. State of Punjab, (2013) 14 see 65 directed the 'absorption of the Special Police Officers in the ,services of .the State of Punjab , holding as under:

"35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the bureau of the executive government to apply its mind and take decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) 'on the part of the State.

36 . .The other factor which the State is required to keep in mind while creating or, abolishing posts is the financial implications , involved ,in such a decision. The creation of posts

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necessarily , means additional financial burden on the exchequer of the State. ' Depending upon the priorities of the State, the allocation of the ' finances is no doubt exclusively within the domain-of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each ef the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to' meet such additional burden. Apparently no such demand has ever been made by the State. The result is-the various banks which avail the services of these appellants enjoy the supply of cheap labeur over a period Of decades. It is also pertinent to notice that these banks are public sector banks."

16. As it appears from the record itself, the case of the petitioner is covered under the exception carved out in paragraph 53 of Umadevi (3) (supra), which is applicable to the present case. Meaning thereby, against an existing vacancy the petitioner having been engaged by following due procedure of selection and continued for a quite long period and, as admitted by Mr, R.K. Mohapatra, learned Government Advocate appearing for the State opposite parties and as is evident from the pleadings in the counter affidavit, the petitioner is still continuing, the same cannot be treated as an""illegal" appointment rather it may be-nomenclature as an "irregular" appointment.

17. Coming to the judgment of the Apex Court in State of Jammu and Kashmir v. District Bar Association, Bandipora, (2017) 3 see 410 on which reliance has been placed by Mr. R.K. Mohapatra, learned Government Advocate appearing for the State opposite parties, wherein a distinction' has been made with regard to "irregular" and "illegal" appointment referring to the <exception carved out in Umadevi (3) (supra). In paragraph 12 of the said judgment it has been stated as follows:

"12. The third aspect of Umadevi (3) which bears notice is the distinction between an "irregular" and "illegal" appointment. While answering the question of whether an appointment is irregular or illegal, the Court would have to enquire as to whether the appointment process adopted was tainted by the vice of non adherence to an essential

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prerequisite or is liable to be faulted on account of the lack of a fair process of recruitment. There may be varied circumstances in which an ad hoc or temporary appointment may be made. The power of the employer to ,make a temporary appointmentl if the exigencies of the situation so demand, cannot be disputed. The exercise of power however stands vitiated if it is found that the exercise undertaken (a) was not in the exigencies of administration; or (b) where the procedure adopted was volatile of Articles 14 'and 16 of the Constitution; and/or (c) where the9 recruitment process was overridden by the vice of nepotism, bias or mala fides ."

The above noted principle is squarely applicable to the case of the petitioner than opposite parties. 'If the petitioner has been engaged against an existing vacancy, by following due process of selection, and continued for a quite long period and his engagement "is due to the emergent situation, the appointment being "irregular" one , his services pre to be regularized in accordance with law.

18. The tribunal having failed to give any direction SC' far as relief claimed in the Original Application for regularization of services of the petitioner, we are of the view that the impugned order, having not beet:' passed in conformity with the relief sought, cannot sustain in the eye of law and the same is liable to be quashed . Accordingly, the order dated 04.10.2010 passed by the Orissa Administrative Tribunal Bhubaneswar in O.A. No.1335 of 2003 is hereby quashed. The opposite parties are directed to take' necessary steps in accordance with law for .regularization of services of the petitioner treating the same as an Irregular appointment as per the exception carved out in the case of Umadevi mentioned supra as expeditiously as possible, preferably Within a period of four months from the date of communication of this judgment, and also release the legitimate dues as admissible to the petitioner forthwith=

5. Mr. D.K. Mohanty, learned ASC on the other hand made his submission basing on the stand taken in the counter affidavit.

It is contended that even though the Petitioner was appointed on 44 days basis vide order under Annexure-1 dt.30.10.1990, but because of the interim

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order passed by the Tribunal in O.A. No.2093(C) of 1994, he could not be disengaged and accordingly he was allowed to continue. It is also contended that the final order passed by the Tribunal on 23.07.2012 since was not within the knowledge of the Opp. Parties, no action was taken against the Petitioner in disengaging him from his work. It is also contended that the prayer for regularization of the services of the Petitioner as made in O.A No.2093(C ) of 1994 was not acceded to by the Tribunal and in the alternate, the Tribunal directed for consideration of the case of the petitioner for regularization basing on the decision of this Court in the case of State of Odisha & Others Vs. Hrudananda Panda, reported in (2010) 2 ATT (HC ) 51 It is however, contended that since the Opp. Parties had no knowledge about the disposal of O.A. No.2093(C) of 1994 on 23.07.2012 the Petitioner managed to continue in his service as on date. The petitioner accordingly is not entitled to get the benefit of regularization.

6. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that vide order dated 30.10.1990 under Annexure-1, the Petitioner was engaged on 44 days basis with one day break. Though pursuant to the interim order passed by the Tribunal in O.A.No.2093(C ) of 1994, the Petitioner was allowed to continue in his work but the said matter was disposed of vide order dated 23.07.2012 with a direction on the Opp. Parties to consider the case of the petitioner for his regularization.

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The stand taken by the learned A.S.C that the order dated 23.04.2012 was not within the knowledge of the opp. parties cannot be accepted as the said order was not only passed in presence of the learned State Counsel but also the order was communicated to all the opp. parties by the Tribunal vide Memo No.7370 dt.6.8.2012. This Court finds that after 23.07.2012 without having any interim order in his favour, the Petitioner is continuing as on date.

6.1. Therefore, taking into account the continuance of the Petitioner on 44 days basis since 1990, this Court placing reliance on the decision in the case of Ranjit Kumar Das as cited (supra) is inclined to direct Opp. party No.1 to absorb the Petitioner in the regular establishment. Such a decision shall be taken with due communication to the Petitioner, within a period of one month from the date of receipt of this order.

The Writ Petition is accordingly disposed of.

(Biraja Prasanna Satapathy) Judge Sangita

Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Designation: Personal Assistant Reason: authentication of order Location: High Court of Orissa, Cuttack Date: 06-May-2023 16:41:40