Orissa High Court
State Of Odisha vs Sri Rushava Rana on 8 May, 2023
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 17064 OF 2016
In the matter of an application under
Articles 226 and 227 of the Constitution of India, 1950.
---------------
State of Odisha
represented by its
Secretary,
Food Supplies & Consumer
Welfare Department,
Bhubaneswar ... Petitioner
-VERSUS-
1. Sri Rushava Rana
@ Rustava Rana
son of Jugindra Rana
Kushanga, via: Chandanhati
Bolangir
2. Raja Kishore Mishra
(since dead, represented by
his Legal Representatives)
Sana Sathiabatia
Dhenkanal Sadar, Dhenkanal
3. Sri Basanta Kumar Tripathy
son of Late Duti Krushna Tripathy
Kabirajpur, Nenipada P.O.,
via: Gangapur, Ganjam
ASWINI
4. Sri Bijaya Bhanu Panigrahi
KUMAR SETHY son of Braja Mohan Panigrahi
Digitally signed by
ASWINI KUMAR SETHY
Aurobinda Nagar, 2nd Lane,
Date: 2023.05.08
18:35:48 +05'30'
Berhampur P.O.
Ganjam
5. Director of Legal Metrology
Food Supplies & Consumer
Welfare Department, Bhubaneswar
6. Jyoti Bhusan Das
Office of the President,
District Consumer Redressal
Forum, Balasore
7. Sri A.K. Sathua
Junior Clerk
Office of the MIO
Sambalpur ... Opposite Parties
Counsel appeared for the parties:
For the Petitioner : Sri Amiya Kumar Mishra,
Additional Government Advocate
For the Opposite Party : Sri Asok Mohanty,
Senior Advocate
with Sri Gouri Mohan Rath
and Ms. Lopamudra Pradhan,
Advocates
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R. SARANGI
AND
THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing: 03.05.2023 :: Date of Judgment: 08.05.2023
MURAHARI SRI RAMAN, J.-- In the writ petition filed under Article
226/227 of the Constitution of India, the petitioner-
Government of Odisha in Food Supplies & Consumer
Welfare Department, Bhubaneswar, by assailing the
Order dated 03.02.2016 passed in Original Application
being No.1569 of 2002 by the learned Odisha
Administrative Tribunal, Bhubaneswar, vide Annexure-
6, questioned the legal sanctity of direction to reconsider
the cases of the opposite parties for regularisation of
their services, as they had completed more than 20
years of service by the date of said Order, even while the
contention of the petitioner, that the promotion of the
opposite party Nos.1 to 3 as Junior Clerk-cum-Typist
from Group D post and the opposite party No.4 on ad
hoc basis is in contravention of the Odisha Ministerial
Service (Method of Recruitment to Posts of Junior Clerks
in the District Offices) Rules, 1985 (for brevity referred to
as "OMS Rules"), has been accepted by said Tribunal.
FACTS OF THE CASE:
2. The facts, as adumbrated by the petitioner, reveal that
the opposite party Nos.1 to 3, while working as Class-IV
(Group-D) employees in different zones of the Legal
Metrology Organisation, being selected for the promotion
pursuant to recommendation of the Departmental
Promotion Committee held on 25.09.1995 under the
Chairmanship of the Controller, Legal Metrology, were
appointed as Junior Clerk-cum-Junior Grade Typist in
the pay scale of Rs.950/- -- Rs.1,500/- vide Order dated
12.10.1995 issued by the Order of the Commissioner-
cum-Secretary to Government, Food Supplies &
Consumer Welfare Department, Directorate of Legal
Metrology. Similarly, the opposite party No.4 was directly
appointed by virtue of Office Order dated 12.02.1996
issued from the Directorate of Legal Metrology, Food
Supplies & Consumer Welfare Department and posted
as Junior Clerk-cum-Junior Grade Typist on ad hoc
basis in the Office of the Assistant Controller, Legal
Metrology, Keonjhar vide Order dated 28.12.1996 of the
Controller, Legal Metrology, Odisha, Bhubaneswar, who
is the senior most administrative officer heading the
Metrology Department. While the opposite party Nos.1 to
3 joined respective duties on 12.10.1995, the opposite
party No.4 joined on 12.02.1996.
2.1. Shorn off unnecessary details, suffice it to note that
though the names of the opposite party Nos.1 to 4
appeared at serial Nos.16, 17, 18 and 31 respectively in
the "Tentative Gradation List of Junior Clerks/Junior
Clerk-cum-Typist appointed under Composite Cadre of
Food Supplies & Consumer Welfare Department" vide
Office Order No. FE-II-VI(M)-- 25291/Bhubaneswar,
dated 05.09.2001, their names did not find place in the
Final Gradation List vide Office Order No.FE-II-VI-
(M)/15/2001-- 31614/Bhubaneswar, dated 16.11.2001.
2.2. Therefore, the opposite parties approached the learned
Odisha Administrative Tribunal invoking Section 19 of
the Administrative Tribunals Act, 1985, which was
registered as O.A. No.1569 of 2002, with the following
prayer:
"Modify the Final Gradation List under Annexure-3 and
direct the Respondents to fix the seniority of the
applicants 1 to 3 above Jyoti Bhusan Das (Serial No.16)
and below R.K. Rath (Serial No.15) and fix the seniority of
applicant No.4 above A.K. Sathua (Serial No.27) and
below R.K. Mallia (Serial No.26)."
2.3. Having considered claims of respective parties and
taking into consideration its earlier Order dated
11.09.2012 passed in O.A. No.1110/2010 and also O.A.
No.2168(C)/2012, the learned Odisha Administrative
Tribunal, disposed of the Original Application of the
opposite parties herein vide Order dated 03.02.2016
with the following observation:
"9. In the present case, admittedly the applicants were
appointed as Junior Clerks in violation of the OMS
Rules in the year 1995-96 and by now they have
completed nearly 20 years of service. Hence keeping
in view the earlier orders of this Tribunal (supra), we
direct the State-respondents to reconsider the cases
of the applicants for regularization of their services
by relaxation of OMS Rules and pass appropriate
Orders within a period of three months from the date
of receipt of a copy of this Order. Till a decision is
taken in this regard, no coercive action be taken
against the applicants.
With these orders, the O.A. is disposed of."
2.4. Aggrieved by such a direction, the State of Odisha
approached this Court by way of the present writ
petition.
ARGUMENTS ADVANCED BY COUNSEL FOR THE RESPECTIVE PARTIES:
3. Sri Amiya Kumar Mishra, learned Additional
Government Advocate, appearing for the petitioner
submitted that on consideration of objection against the
Tentative Gradation List dated 05.09.2001 and as
instructed by the Government of Odisha in Food
Supplies & Consumer Welfare Department vide Order
dated 10.12.2002 issued by the Under Secretary vide
Letter No. FE-II-VI-M/18/2001-- 27818/FS&CW, dated
10.12.2002, on the advice of the General Administrative
Department to revert the opposite parties, who were
promoted from the Class-IV posts, the names of the
opposite parties were not placed in the Final Gradation
List dated 16.11.2001. It is forcefully argued by the
learned Additional Government Advocate that the
promotions of the opposite parties were neither in
consonance with the provisions of OMS Rules, 1985 (as
amended in 2001) nor in terms of the Resolution dated
09.02.1994 of the General Administrative Department
which fact was acceded to by the learned Odisha
Administrative Tribunal in its Order dated 03.02.2016,
and, hence, the direction contained therein for
reconsideration of regularization of their services is not
only fallacious but also incoherent.
4. Sri Asok Mohanty, learned Senior Counsel being
assisted by Ms. Lopamudra Pradhan, Advocate
appearing for the opposite parties submitted that it is
admitted fact vide Tentative Gradation List, dated
05.09.2001 (Annexure-2) that whereas the opposite
party Nos.1 to 3 were appointed on 12.10.1995, the
opposite party No.4 got appointment on 12.02.1996.
This is indicative of the fact that on the date of passing
of Order dated 03.02.2016 by the learned Tribunal, they
had completed more than 20 years of service. It is
submitted that since Departmental Promotion
Committee took up their cases as per the requirements
in Resolution dated 09.02.1994, their eligibility to man
the promotional post cannot be doubted. Therefore, their
respective promotion could not be imputed as "illegal"
albeit the same may be irregular (for the sake of
argument, but not conceding).
4.1. The learned Senior Counsel went on to urge that at the
relevant point of time, no rules with regard to promotion
of Class-IV employees to the post of Class-III were in
vogue. Thus, Resolution No.3180-Gen., dated 9th
February, 1994, of the Government of Odisha in General
Administrative Department was the guiding factor. Said
Resolution inter alia provided as follows:
"In order to provide adequate promotional facilities
to qualified Class-IV Government Servants to Class-
III Posts, Government after careful consideration have
been pleased to decide that 50% of the vacancies arising
in the categories of Class-III posts like Recorder, Assistant
Recorder, Diarist, Pasting Clerk and similar other posts in
which noting and drafting are not ordinarily required
should be filled up by Class-IV employees who have
passed atleast M.E. School Certificate Examination or an
equivalent examination and have rendered not less than 5
years of service under Government, provided they come
out successful in a qualifying test prescribed for the
purpose of this Resolution.
***
5. For each Department of Government the qualifying
test will be conducted once a year by a Committee
consisting of two officers of the rank of Joint
Secretary/Deputy Secretary to Government to be
nominated by the Secretary of the Department and
the Under-Secretary/Section Officer in-charge of the
Office Establishment in the Department. In respect of
other Offices, the qualifying test will be conducted by
a Committee consisting of the Officer in-charge of the
Office Establishment in the Office of appointing
authority and two other Gazetted Officers to be
nominated by the appointing authority. The senior
most Officer will preside over the meeting of the
Committee."
4.2. It is not in dispute that the promotions of the opposite
parties to the post of Clerk-cum-Typist in the category of
Class-III were accorded pursuant to recommendation of
the Departmental Promotion Committee. Therefore, the
objection of the learned Additional Government
Advocate, that the Controller, Legal Metrology, who
heads the Legal Metrology Organisation, was not the
competent authority, cannot be held to be in tune with
the terms of Resolution, dated 09.02.1994.
4.3. Amplifying further, Sri Asok Mohanty, learned Senior
Counsel contended that Rule 12 of the OMS Rules as
substituted by virtue of Government of Odisha in
General Administration Department Notification
No.10974/Gen., dated 30.03.2001, as relied on by Sri
Amiya Kumar Mishra, learned Additional Government
Advocate, cannot have any bearing on the present fact-
situation. He sought to cite distinction between pre-
amended and post amended position in Rule 12 of OMS
Rules, 1985 with respect to "Validity of the Select List".
The provisions of Rule 12 are given hereunder which
were substituted by virtue of the Odisha Ministerial
Service (Method of Recruitment to the Posts of Junior
Clerks in the District Offices) Amendment Rules, 2001
vide Government of Odisha in General Administration
Notification bearing Memo No.10974/Gen., dated
30.03.2001:
Position prior to Position after 01.04.2001
01.04.2001 since
06.03.1986, i.e., date of
effect of OMS Rules,
12. Filling up 12. Validity of Select List.--
vacancies after the list
The Select List prepared under sub-
of successful
candidates is rule (1) of Rule 11* in case of direct
recruitment and by the Departmental
exhausted.--
Promotion Committee in case of
In case a vacancy occurs promotion under Rule 11D(1)** to
after the list of successful the post of Junior Clerk shall
candidates for the year remain valid for a period of one year
has been exhausted from the date of publication of the
before announcement of same or till drawal of the next year's
the results of the next list, whichever is earlier.
examination such
*Rule 11(1).-- The Chairman of the Board shall
vacancy may be filled up ensure completion of evaluation of answer papers
by a successful candidate and preparation of the list of successful candidates
who have qualified by such standard as will be
of the previous year;
decided by him ordinarily within two months from
the date of examination. The candidates' names
Provided that his age shall be arranged in order of merit on the basis of
does not exceed the marks secured by them in the examination
conducted by Board. This List of successful
maximum age-limit laid candidates drawn in order of merit shall be equal
down in the rules and to the number of vacancies as determined under
failing that by any Rule 6.
candidate who satisfies **Rule 11D(1).-- The Departmental Promotion
the condition laid down Committee while preparing the list of suitable
Group-D employees for promotion to the post
shall not continue beyond of Junior Clerk shall follow the provisions of the
the date when the results Odisha Civil Services (Zone of Consideration for
Promotion) Rules, 1988, and the Odisha Civil
of the next year's
Services (Criteria for Promotion) Rules, 1992.
examination are declared.
4.4. It is contended that the Odisha Ministerial Service
(Method of Recruitment to the Posts of Junior Clerks in
the District Offices) Amendment Rules, 2001 is
prospective in nature. With the above backdrop, it is
submitted by the learned Senior Counsel that as per the
Resolution dated 09.02.1994, qualifying test was
required to be conducted by the Committee consisting of
Officer in-charge of the Office Establishment in the
Office of the Appointing Authority and two other
Gazetted Officers to be nominated by the Appointing
Authority. Therefore, the objection of the State of Odisha
based on the Odisha Ministerial Service (Method of
Recruitment to the Posts of Junior Clerks in the District
Offices) Amendment Rules, 2001, cannot hold water in
view of the fact that the Controller, Legal Metrology,
Odisha is the Appointing Authority and respective
promotions of the opposite parties were considered in
the duly constituted Departmental Promotion
Committee. Sri Mohanty pressed into service the
following fact as stated in the written note of submission
dated 20.04.2023 filed on behalf of the opposite parties:
"4. That the Controller, Legal Metrology, Odisha is the
Appointing Authority and their promotion orders
were issued by the Order of the Commissioner-cum-
Secretary to Government, Food Supplies and
Consumer Welfare Department. Further all the
eligible Class-IV employees working in different
zones under the Controller, Legal Metrology were
considered for such promotion which will be evident
from Annexure-1 (Page 17) of the writ application."
Said averment of the opposite parties remained
unchallenged by the learned Additional Government
Advocate. Under such premise, it is vehemently
impressed upon that even though the promotion is
considered to be not consistent with the Odisha
Ministerial Service (Method of Recruitment to the Posts
of Junior Clerks in the District Offices) Amendment
Rules, 2001, by the learned Odisha Administrative
Tribunal, there is no occasion for the State of Odisha to
contend that the appointments of the opposite parties
are "illegal". The learned Tribunal has rightly exercised
its power by directing the Government to reconsider the
cases for regularization in services of the opposite
parties.
4.5. Sri Asok Mohanty, Senior Advocate brought on record
the fact by way of Memo dated 01.08.2017 to submit
that by Letter bearing No.2E(16)/16/2010-- 2317/Agril.,
dated 19th November, 2010 issued from the Office of the
Director of Agriculture & Food Production, Odisha,
Bhubaneswar, the posts of Junior Clerks/Junior Clerk-
cum-Typist in respect of forty-nine "irregular recruitees"
in the "district and subordinate offices under the control
of Directorate of Agriculture and Food Production" were
considered for regularization by the Government of
Odisha in Agriculture Department "in exercise of powers
conferred under Rule 14 of the Odisha Ministerial
Services (Method of Recruitment to the Post of Junior
Clerks in the District Offices) Rules, 1985". He submits
that parity be maintained in respect of present opposite
parties.
4.6. Pursuant to direction of this Court vide Order dated
17.07.2017, an affidavit dated 17.11.2017 sworn to by
Joint Secretary to Government, Food Supplies &
Consumer Welfare Department has come to be filed. Sri
Amiya Kumar Mishra, learned Additional Government
Advocate sought to distinguish the situations by
referring to the contents of paragraph 7 of said affidavit
that the promotions of the present opposite parties are
illegal inasmuch as "the opposite parties were promoted
to the post of Junior Clerk/Junior Clerk-cum-Typist
from Group-D post irregularly recruited in the post of
Junior Clerk. In fact, the opposite parties Sri Rushava
Rana, Sri R.K. Mishra and Sri B.K. Tripathy who were
working as Peons in Class-IV category in different zones
of Legal Metrology Organisation were promoted to the
post of Junior Clerk-cum-Typist during 1995 by Order
dated 12.10.1995 on ad hoc basis in the Office of the
Assistant Controller, Legal Metrology, Keonjhar under
Chairmanship of the Controller, Legal Metrology and
while Sri Bijay Bhanu Panigrahi was promoted from
Class-IV to the post of Junior Clerk vide Order No.594,
dated 12.02.1996 and then continued as such vide
Order No.9352, dated 28.12.1996 of the Controller,
Legal Metrology without recommendation of
Departmental Promotion Committee or the appropriate
authority as the Cadre of Class-III is a composite Cadre
under the Government in Food Supplies & Consumer
Welfare Department".
4.7. At this juncture, Sri Asok Mohanty, learned Senior
Counsel being assisted by Ms. Lopamudra Pradhan,
Advocate appearing for the opposite parties submitted
that the learned Additional Government Advocate has
not disputed the power conferred on the competent
Government under Rule 14 of the OMS Rules with
regard to "relaxation" to the effect that "where the
Government are of opinion that it is necessary or
expedient to do so, they may by order and for reasons to
be recorded in writing, relax any of the provisions of
these rules in respect of any class or category of persons
in public interest" nor has he denied steps being taken
in respect of forty-nine "irregularly recruitees" for
regularization of services in the post of Junior
Clerk/Junior Clerk-cum-Typist. Sri Mohanty, submitted
that the opposite party No.2-Raja Kishore Mishra died
on 04.02.2017, leaving behind Kiran Tripathy-wife,
Sonam Mishra-married daughter, Punam Mishra-
unmarried daughter and Ashish Mishra-unmarried son,
who are brought on record by consideration of petition
for substitution bearing I.A. 10742 of 2022 vide Order
dated 07.09.2022. He further submitted that during the
pendency of the writ petition, the opposite party No.1
has already attained the age of superannuation. On
account of such subsequent events, therefore, while not
pressing for fixation of seniority in the promotional post,
he confined his argument by urging that the respective
cases of the opposite parties are required to be
reconsidered for regularization of services by the
authorities concerned as directed by the learned Odisha
Administrative Tribunal.
4.8. It is submitted by the learned Senior Counsel for the
opposite parties that after discharging duties of peon for
5 years, the opposite parties were considered for
promotion in the post of Junior Clerk-cum-Typist by the
Departmental Promotion Committee and accordingly,
they continued to serve in the said promoted post since
1995-96. Sri Asok Mohanty, learned Senior Counsel,
resisting the contention of Sri Amiya Kumar Mishra,
learned Additional Government Advocate stated that if at
all the promotions of the opposite parties are considered
to be irregular, the appointments of the opposite parties
cannot be said to be illegal. The promotion may be
irregular one, but the services of the opposite parties can
be considered for regularization. Though the learned
Odisha Administrative Tribunal held that "the promotion
to the post of Junior Clerk-cum-Junior Typist from
Group-D post given to the applicant Nos.1 to 3 and
appointment of the applicant No.4 on ad hoc basis, is in
contravention of Odisha Ministerial Services (Method of
Recruitment to the Post of Junior Clerks in the District
Offices) Rules, 1985", since the opposite parties have
served for more than 27-28 years against vacant
sanctioned posts, the Order dated 03.02.2016 does not
suffer from any infirmity in directing the Government to
reconsider their cases for regularization in services
particularly when the Government have been conferred
with power to relax under Rule 14 of the OMS Rules.
ANALYSIS AND DISCUSSIONS IN CONSIDERATION OF RIVAL
CONTENTIONS AND ARGUMENTS:
5. Before delving into merit of the matter, it is felt expedient
to discuss the criteria for regularization in service as
propounded in various Judgments.
5.1. In Vibhuti Shankar Pandey Vrs. State of Madhya Pradesh
& Others, 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. ***"
5.2. 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."
5.3. After noticing the Judgment of the Hon'ble 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."
5.4. 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, 'A nation's greatness is measured
by how it treats its weakest members'. 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."
5.5. 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
'regularisation' 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."
5.6. 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
('the Regularisation Rules') 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."
5.7. 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.
5.8. 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. B.R. Sarangi, J.) 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."
5.9. 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. While directing the State of
Odisha to implement the direction of the Single Judge
"in letter and spirit", this Court in the ultimate held as
follows:
"44. Going by the above legal position, in the present
cases, at the highest, the respondents could be
considered to be 'irregularly' 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."
6. It is undisputed that the opposite parties have been
appointed since 1985-86 in the posts in the category of
Class IV. Rule 12 as substituted by virtue of the Odisha
Ministerial Service (Method of Recruitment to the Posts
of Junior Clerks in the District Offices) Amendment
Rules, 2001, spells out that there is scope for promotion
to the post of Junior Clerk from suitable Group-D
employees; however, such promotional avenue was
absent prior to said amendment. Therefore, the only
guiding principle for such promotion was laid in the
Resolution dated 09.02.1994 of the General
Administrative Department. Since the opposite party
No.2 is dead and the opposite party No.1 attained age of
superannuation, as Sri Asok Mohanty, learned Senior
Counsel insisted for consideration of regularization of
service so as to extend the benefits on retirement, this
Court without going into the aspect of promotional
prospects of the opposite parties vis-à-vis seniority,
wishes to proceed to decide whether the opposite parties
are liable to be regularized in service.
6.1. It is borne on record that having got appointment since
1985-86, the opposite party Nos.1 to 3 have
continuously discharged their respective duties as Peons
in Group-D post and the opposite party No.4 as Junior
Clerk-cum-Junior Grade Typist on ad hoc basis.
Thereafter, being found suitable, the Departmental
Promotion Committee recommended their cases for
promotion to the post of Junior Clerk/Junior-cum-
Typist. However, on being objected to, the said
promotional post was not accorded to them. It is matter
of record that they had worked continuously for more
than 20 years by the date of passing of Order dated
03.02.2016 by the learned Odisha Administrative
Tribunal. Never ever they were found unsuitable.
6.2. This Court takes into consideration the following
paragraph of the written note of submission dated
20.04.2023 filed on behalf of the opposite parties by Ms.
Lopamudra Pradhan, Advocate, which remained
uncontroverted by the Additional Government Advocate
appearing for the petitioner-State of Odisha:
"3. That there is no dispute that a Departmental
Promotion Committee was constituted by the
Controller, Legal Metrology who was the Appointing
Authority, who constituted the Promotion Committee.
Thereafter the Committee after conducting
necessary test selected the opposite party
Nos.1 to 3 for promotion by Order of
Commissioner-cum-Secretary to Government in
Food Supplies and Consumer Welfare
Department. The opposite party No.4 was
directly appointed on ad hoc basis and has
been continuing in the said post since 1996,
without any break. That in the meantime opposite
party No.1 has retired from Government service after
attaining the age of superannuation and that the
opposite party No.2 has died in the meanwhile.
4. That in view of the aforesaid facts it is humbly
submitted that the appointment of the opposite
parties were not illegal. However even if it is
construed that their appointment are irregular
then this Hon'ble Court may consider their
regularization in view of their long
continuance in the post for 27 to 28 years.
5. There is no dispute that the post against which the
opposite parties were promoted was sanctioned
permanent post. There is no dispute that the
opposite parties possess the requisite
qualification as prescribed under the
Resolution dated 09.02.1994. That it is also not
disputed that they have continued in the promotional
post without any interim order which expired after 3
months from the date of the receipt of the copy of the
order of Tribunal. More so no order of reversion has
yet been passed by the Authorities."
6.3. Such being the background, given legal position as set
forth by different Courts as discussed in the foregoing
paragraphs, since the employer-State of Odisha utilized
the services of the opposite parties for a long period
against substantive vacant post, the learned Odisha
Administrative Tribunal was correct in directing the
Government to reconsider the cases of the opposite
parties for regularization of services. The direction of the
learned Odisha Administrative Tribunal deserves to be
taken note of, which has already been reproduced herein
above.
6.4. This apart, this Court also takes cognizance of Rule 14
of the OMS Rules whereunder the Government of Odisha
is competent to relax any of the provisions of the OMS
Rules in respect of "any class or category of persons in
public interest". The Government of Odisha is required
to consider the cases of the opposite parties for
regularization in their services.
6.5. In fine, while confirming the decision of the learned
Odisha Administrative Tribunal, Bhubaneswar, this
Court is not inclined to accept the contentions and
arguments advanced on behalf of the petitioner
questioning the sanctity of impugned Order dated
03.02.2016 passed in O.A. No.1569 of 2002. The
challenge of the petitioner-State of Odisha by way of the
instant writ petition against said Order of the learned
Tribunal directing reconsideration of cases of the
opposite parties for regularization in services does not
warrant indulgence.
DECISION AND DIRECTION:
7. For the discussions made above and the reasons stated
supra, taking note of governing principles, this Court
directs the petitioner-State of Odisha to implement the
Order dated 03.02.2016 of the Odisha Administrative
Tribunal, Bhubaneswar passed in O.A. No.1569 of 2002
in letter and spirit within a period of six weeks hence.
7.1. The writ petition is, accordingly, dismissed, but in the
circumstances, with no order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
DR. B.R. SARANGI, J. I agree.
(DR. B.R. SARANGI)
JUDGE
Orissa High Court, Cuttack
The 8th May, 2023, Aks/MRS
