Jaya Bharat Saraf vs State Of Odisha And Others
2023 Latest Caselaw 13773 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                            W.P.(C) No.35461 of 2023

                 Jaya Bharat Saraf                       ....            Petitioner
                                                              Mr. N.Rath, Advocate
                                              -versus-
                 State of Odisha and others              ....         Opp. Parties
                                                              Mr.T.Patnaik, A.S.C.
                                        CORAM:

                            JUSTICE A.K. MOHAPATRA
                                        ORDER

Order No.                              07.11.2023
    01.     1.      This matter is taken up through Hybrid Arrangement (Virtual
            /Physical Mode).

2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel for the State-Opposite Parties.

3. The present writ application has been filed by the Petitioners with a prayer to quash Office Order No.10449 dated 06.06.2013 passed by the Chief Engineer, Rural Works-I, Government of Odisha, Department of Rural Development under Annexure-8 and further to direct the Opposite Parties to regularize the services of the Petitioners in the light of the law laid down by the Hon'ble Apex Court in the case of Secretary, State of Karnatak -v.-Uma Devi reported in AIR 2006 Supreme Court, 1806, in the case of Mt.Mira Piri-v.-State of Odisha and others reported in 2007(II) OLR 533 and in the case of Amarkant Rai-v.-Stte of Bihar reported in (2015)8 Supreme Court Cases 265 and also in the case of State of Karnataka & others-vrs.-M.L.Kesari and others involving SLP© 15774 of 2006 and further he has prayed to direct the Opposite Parties to sanction and disburse all consequential service s well as financial benefit upon regularization of service of the Petitioners keeping in view the fact that the similarly situated // 2 //

employees have already been regularized and they have also been extended such benefit.

4. The case of the Petitioner in short is that he was engaged as DLR employees after 12.04.1993 under Rural Development Department, Government of Odisha. After their initial appointment, the Petitioner continued to discharge his duties in different establishments under the Government without any break for more than 25 years. In the year 2013 the Petitioner approached the Government for regularization of his service which was rejected by order dated 06.06.2013 under Annexure-8. The order under Annexure-8 has been assailed in the present writ application.

5. It is submitted by the learned counsel for the Petitioner that although the Petitioner was engaged as DLR employee initially in the year 1993 after the cutoff date, he has been discharging his duties to the satisfaction of all concerned for all these years. However, after working for more than 25 years continuously with unblemished service career, the authorities have not considered the case of regularization of service of the Petitioner. It is further contended by the learned counsel for the Petitioner that similarly situated employees approached the Orissa Administrative Tribunal for regularization of their services by filing O.A.No.883(C) of 2009. Pursuant to the order passed by the learned Tribunal dated 14.12.2012 their services have been regularized. Learned counsel for the Petitioner also draws the attention of this Court to a case i.e. State of Odisha and others -v.-P.Prasanna Kumar Patro (W.P.(C) No.19767 of 2019 disposed of on 12.10.2022).He further contends that the above named P.Prasanna Kumar Patro, Opp.Party in W.P.(C) No.19767 of 2019 had joined as a DLR along with the present Petitioners. However, pursuant to the order passed by the // 3 //

learned Tribunal in O.A.No.1715 of 2015 dated 10.08.2018 which was confirmed by this Court in the abovenamed W.P.(C) No.19767 dated 02.08.2022 (State of Odisha and others-v.-P.Prasanna Kumar Patro) had already been regularized his service.

6. It is submitted by the learned counsel for the Petitioner that the rejection order under Annexure-8 reveals that the Opposite Parties have rejected the case of the Petitioner on the ground that the Petitioner was appointed after cut-off date i.e. 12.04.1993 and that they were not appointed against the sanctioned post. In the aforesaid context, learned counsel for the Petitioner submits that the authorities have rejected the claim of the Petitioner for regularization of his service after almost two decades on some vague grounds and the grounds which have been reflected in the rejection order is unsustainable in law.

7. Learned Additional Standing Counsel appearing on behalf of the Opposite Parties submitted that they have filed an Original Application. On perusal of the counter Affidavit, it is revealed that the Petitioner was engaged on daily wage basis after 12.04.1993 i.e. after the ban order issued by the Finance Department on 12.04.1993 prohibiting the engagement of NMR/DLR workers and their engagement was is illegal and his engagement has not been done following any recruitment procedure. It has also been stated that the appointment of the Petitioner was on stop gap basis and as such their engagement is not against any substantive vacancy. Counter Affidavit further reveals that there is no scheme to regularize the services of DLR/NMR workers engaged after 12.04.1993. Accordingly, the Finance Department took a decision in the year 2009 to disengage the workers engaged after 12.04.1993. However the Petitioner is working by virtue of interim order passed by either // 4 //

the State Administrative Tribunal or by this Court.

8. In the counter affidavit, it has also be categorically stated that all DLR and NMR workers who have been engaged prior to 12.04.1993 in different divisions of R.D. department their services were brought over to Work Charged establishment by creating equal number of work post. Since the Petitioner was engaged after 12.04.1993 on stop gap basis depending upon availability of work, it cannot be said that he was engaged against any substantive vacancy. As such he has no right to claim regularization of his services.

9. On a careful scrutiny of the counter affidavit, it appears that the grounds mentioned herein above have been taken repeatedly.

10. Having heard learned counsel for both sides and after careful consideration of the pleadings as well as their respective submissions, this Court is of the considered view that it is too late for the State to take a stand that the Petitioner was initially not engaged on selection procedure and his engagement was made after 12.04.1993. The Opposite Parties having utilized the services of the Petitioner for more than 25 years are stopped to take a stand that he was not duly appointed and therefore, his services cannot be regularized. Further, if the Petitioner was engaged after the cut-off date when the ban order came into force, then nothing prevented the State Government to disengage the Petitioner within a reasonable time. Having engaged the Petitioner for several decades now the State cannot take a stand that he was irregularly appointed and his services cannot be regularized.

11. Similarly placed persons earlier approached the Orissa Administrative Tribunal i.e. in the case of State of Odisha and others -v.- P.Prasanna Kumar Patro) (supra) where the Tribunal had allowed their prayer for regularization. The order of the Tribunal // 5 //

was assailed before this Court by filing W.P.(C) No.19767 of 2019. On a perusal of the facts of that case, it appears that the facts of that case is similar to the facts of the present case as the Petitioners in the aforesaid cases were engaged as Diploma Holder in Mechanical Engineering on daily wage basis vide Office order dated 27.08.1999 i.e. after the cut-off date. They were also allowed to continue without any break for almost two decades keeping in view such background, this Court by a analysis passed a detailed order on 02.08.2022 by referring to the judgment of the Hon'ble Apex Court in Amarendra in C.A.No.8322 of 2009 dated 19.12.2014 and Umadevi (supra) and M.L.Keshari finally observed that long continuation of the Petitioner in service against the post clearly indicate that there is requirement of posts to be discharged by him and as such continuation is in public interest and since the Petitioner has not discharged his duty his service cannot be regularized. The Division Bench of this Court further held that long service rendered by the Petitioner the benefit of regularization has to be extended in favour of the Petitioners and accordingly the orders passed by the learned Tribunal was upheld and the Opposite Parties were directed to regularize the services of the opposite parties in the aforesaid writ application.

12. In a recent judgment delivered by this Court i.e. Basant Kumar Barik-v.-State of Odisha and others this Court also has taken a similar view that taking into consideration the long period of uninterrupted service, the case of the Petitioner needs to be regularized when his appointment is merely irregular and not illegal. Similar view has also been taken in a judgment in the matter of Gadei Swain-v.-State of Odisha and others in W.P.(C) No.33108 of 2020.

13. After a careful analysis of the factual background of the // 6 //

present case and further by applying the law laid down by the Hon'ble Supreme Court as well as by this Court particularly in the matters where the employees allowed to continue on ad hoc/temporary basis without any sanctioned post for decades, this Court by following the law laid down by this Court as well as the Hon'ble apex Court, deems it proper in the interest of justice to direct the Opposite Parties to regularize the service of the Petitioner even if the same requires creation of post. Accordingly the impugned order under Annexure-8 dated 06.06.2013 is hereby quashed. The Opposite Parties are directed to regularize the services of the Petitioner by obtaining approval of the Finance Department, Government of Odisha within a period of six weeks. Further, pursuant to his regularization all consequential service and financial benefits be released in favour of the Petitioner within four weeks thereafter. It is further directed that to the Opposite Parties till a final decision is taken, the Petitioner shall not be disengaged from service for a period of six weeks or till a decision is taken on the representation of the Petitioner.

14. With the aforesaid observation and direction the writ application stands disposed of.

Issue urgent certified copy of this order as per Rules.

( A.K. Mohapatra) Judge Anil

Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 08-Nov-2023 16:04:07