Swagatika Patel vs Orissa Administrative Tribunal
2023 Latest Caselaw 11443 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK
                         W.P.(C) No.22772 of 2018
Swagatika Patel                     .....                            Petitioner
                                                 Mr. Abhiram Swain, Advocate
                                    Vs.
Orissa Administrative Tribunal,     .....                       Opposite Parties
Cuttack Bench, Cuttack &
Others
                                                          Mr. S.N. Nayak, ASC
             CORAM:
                DR. JUSTICE B.R. SARANGI
                MR. JUSTICE MURAHARI SRI RAMAN

                                           ORDER

21.09.2023 Order No. This matter is taken up through hybrid mode.

12.

2. The Petitioner, who is engaged as a Cook-cum-Attendant, being aggrieved by order dated 02.11.2018 passed in O.A. No.2551(C) of 2015 by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack, approached this Court by way of filing the aforesaid writ petition invoking provisions of Article 226/227 of the Constitution of India with a prayer to direct the Opposite Parties to regularise her service as "Cook-cum-Attendant" by quashing the said order in Annexure-6.

3. Facts adumbrated by the Petitioner, as transpaired from the pleadings, lead to show that in response to communication vide Notification No.3221/W, dated 17.11.2007 made by the District Welfare Officer, Sundargarh from the Collectorate, Sundargarh for publication of notification bearing No.3320/W, dated 17.11.2007 issued in the Office of Collector and District Magistrate, Sundargarh, the Petitioner applied for engagement in

the category of post of "Cook-cum-Attendant" in Educational Institutions managed by the Scheduled Tribes and Scheduled Castes Development Department on contractual basis. Being found suitable engagement order bearing No.653/W dated 26.02.2008 was issued by the Collector, Sundargarh and on execution of agreement dated 26.02.2008 between the Petitioner and the Collector, Sundargarh, she is engaged in the post of Cook- cum-Attendant in Telendihi Government High School, an Educational Institution of S.T. & S.C. Development Department, on a fixed monthly remuneration of Rs.1,500/- with the following terms and conditions;

"1. They shall be engaged and assigned with the work by the Headmaster/Headmistress concerned.

2. Whenever applicable they will work under the administrative control of the Headmaster/Headmistress in change of the school to which they assigned. They shall perform duties as will be entrusted to them by the concerned Headmaster/Headmistress.

3. They may be assigned any other work by any competent authority as decided by Government in ST & SC Development Department from time to time."

Though the engagement order dated 26.02.2008 stipulated that the engagement shall be for a period with effect from the date of actual joining till the end of February, 2008, the petitioner has been continuing till date in the said post and discharging her duty.

It is submitted by the Petitioner that the notification dated 17.11.2007 apart from the post of Cook-cum-Attendant, it specified other categories of posts namely, TGT, BSC, BED, Sanskrit Teacher, P.E.T., Junior Clerk and Peon. Though the S.T. & S.C. Development Department took steps to regularise the services of persons engaged in the said posts on contractual basis,

the service of present petitioner in the post of Cook-cum- Attendant has not yet been regularised. Therefore, the Petitioner approached the authority concerned by way of representation. As nothing fruitful came out, the Petitioner was constrained to approach the Odisha Administrative Tribunal, Cuttack Bench, Cuttack by way of filing original application which was registered as O.A. No. 2551(C) of 2015. By filing counter before the Odisha Administrative Tribunal, the Opposite Parties have asserted that the S.T. and S.C. Development Department has enhanced the remuneration from time to time and vide notification No.353/SSD, dated 08.01.2016 the remuneration was fixed at Rs.7,480/- with effect from 24.07.2015. However, by notification No.3582-STSCD-ESP-ESTT-0004-2015/SSD, dated 04.03.2022, the Government in S.T. and S.C. Development Department have been pleased to enhanace the remuneration of Cook-cum- Attendant to Rs.12,000/- with effect from 04.03.2022.

The Odisha Administrative Tribunal, after hearing both sides, held as follows:-

"xxx xxx xxx So, it seems, the post is purely temporary in nature though their services have been extended from time to time and they are continuing till date as such. As there is no sanctioned post of Cook-Cum-Attendant or no contractual post created after surrender of sanctioned post, the applicant cannot claim the benefit of contractual appointment of Group-C and Group-D staff as per G.A. Department Notification, 2013. Hence, no direction can be given to the State Respondents to regularize the service of the applicant.

7. Learned counsel for the applicant has cited the decision of State of Karnatak and others-Vrs-M.L. Keshari and Other, reported in 2010(2) SCC (L&S) 826, State of Punjab and Others-Vrs-Jagjit Singh and others, reported in A.I.R. 2016 Supreme Court 5176. But the ratio decided

in those cases have no application to the present O.A.

8. Hence, the O.A. has got no merit and accordingly, stands dismissed. But the state respondents may take policy decision to regularize the service of Cook-cum- Attendant working under the S.T. & S.C. Department."

4. Challenging the said order, the Petitioner has filed the present writ petition by making a grievance that though services of teaching and non-teaching staff engaged on contractual basis in the Educational Institutions managed by the Government of Odisha in the S.T. & S.C. Welfare Department in respective Ashram Schools have been regularised in due course, the case of Petitioner has not been considered in proper prospective; thereby, the inaction of the Government attracts vice of Article 14 and Article 16 of the Constituion of India. Counter affidavit has come to be filed on behalf of Opposite Party Nos.4 & 5 (District Magistrate & Collector, Sundargarh and District Welfare Officer, Sundargarh). In the said Counter, it is stated that Rule 3 of the Odisha Group-C and Group-D Posts (Contractual Appointment) Rules, 2013 specifies that these Rules shall apply to Group-C and Group-D which are filled up by way of direct recruitment. As per Rule 3(4) of the said Rules they shall not apply to contractual appointment made under: (a) Temporary Plan Schemes (including those under Centrally Sponsored Plan Schemes, Externally Aided Projects); (b) Temporary Establishments; and (c) Tenure Based Posts. In Rule 4 of the said Rules, it is stated that for the purpose of these Rules all contractual appointment made prior to the commencement of these rules shall be classified into two categories namely, Category 1-- Contractual appointment/

engagements made against contractual posts created with the concurrence of Finance Department without following the recruitment procedure including the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 and the rules made thereunder and the rule regulating recruitment for the regular posts; Category 2-- Contractual engagements made through manpower service provider agencies with concurrence of Finance Department. However, Rule 8 lays down special provision for different categories of existing contractual employees, which reads as follows:

"8. Special provision for different Categories of existing Contractual Employees:

(a) The contractual employees belonging to category-I and the persons provided by the manpower service provider agencies under Category-II, who shall be less than 45 years of age and shall have completed at least one year of continuous service, in case they apply for Recruitment under sub-rule (1) of rule 5 for any Group C and Group D posts, shall be allowed relaxation of upper age limit for entry into Government service; provided they satisfy all other eligibility criteria for the post as laid down in the relevant recruitment rules.

(b) They shall be allowed one per cent extra marks on the total marks of the examination for each completed years of continuous service subject to a maximum of fifteen per cent, which shall be added to the marks secured by them for deciding the merit position."

5. In the said Counter, it has been admitted that the case of the Petitioner, being an existing contractual employee, would be governed under the Provisions of Rule 8.

6. A rejoinder affidavit has been filed by the Petitioner stating that the Petitioner has been continuously discharging her duties since 2008 till date. Though pursuant to notification dated

17.11.2007, whereby applications were invited from the deserving candidates of Sundargarh District for engagement in the post of Cook-cum-Attendant and considering the application of the Petitioner, she was issued with the engagement order dated 26.02.2008, the authorities have not taken steps to regularise her service. The length of service rendered by the Petitioner should have been taken into consideration by the authorities as also the Odisha Administrative Tribunal. The service of Petitioner has been utilised uninterruptedly since her joining in the post of Cook-cum-Attendant till date.

7. Pleadings having been completed and exchanged, this Court heard Mr. Abhiram Swain, learned counsel appearing for the Petitioner and Mr. S.N. Nayak, learned Additional Standing Counsel for the Opposite Parties.

8. Perusal of impugned order of the learned Tribunal would reveal that without any discussion with regard to applicability of the ratio laid down in the State of Karnataka Vrs. M. L. Kesari (2010) 9 SCC 247 and State of Punjab Vrs. Jagjit Singh & Another, AIR 2016 SC 5176 to the fact situation of the present case, gross error apparently has been committed by the said Tribunal. On consideration of material available on record it is but clear that the Petitioner applied for the post of Cook-cum- Attendant pursuant to notification dated 17.11.2007 and was duly selected having requisite eligibility criteria stipulated in the said notification. It is admitted case that since the date of engagement in the said post the Petitioner has been continuously and uninterruptedly discharging her duties till date. It is also not

disputed by the Opposite Parties that the services of teaching and non-teaching staff of Educational Institutions managed by the Government of Odisha in S.T. and S.C. Development Department engaged on contractual basis have been regularised. Merely because the Government has not taken step to regularise the service of Cook-cum-Attendant engaged on contractual basis, the same would not disentitle the service of Petitioner from being considered for regularisation. Mr. Abhiram Swain, learned counsel appearing for the Petitioner has placed reliance on very many judgments as referred to and relied on by this Court in the judgment delivered on 09.09.2021 by a Single Bench of this Court, which was presided over by one of us (Dr. B.R. Sarangi, J), in the case of Patitapaban Dutta Dash & Others Vrs. State of Odisha & Others, W.P.(C) No.19951 of 2020.

9. Considering the contentions raised by the learned counsel for Petitioner and the learned Additional Standing Counsel and after going through the records, it is found that the Petitioner has rendered service for more than fifteen years on monthly remuneration basis. This is indicative that there is need of the post of "Cook-cum-Attendant". Hence, the grievance of the petitioner should receive favourable consideration for regularisation of her service, keeping in view the Judgments rendered in Secretary, State of Karnanataka Vrs. Umadevi (3), (2006) 4 SCC 1 and State of Karanataka Vrs. M.L. Kesari, (2010) 9 SCC 247 and also Resolution of G.A. Department dated 17.09.2013 and other decisions of the Hon'ble Supreme Court of India rendered in the similar lines.

10. In a similar set of facts in the case of State of Odisha Vrs. Jatin Kumar Das being W.P.(C) No.666 of 2018 by order dated 10.05.2018, this Court dismissed the petition with the following observation:-

"However, while parting with the order we may note that whatever may be the mode of engagement/appointment there was concurrence of the Finance Department and the employees in question engaged in different departments of Government and rendered their services uninterruptedly. Besides that mode of engagement adopted and selection process followed was consciously adopted and law prevalent at the relevant time for engagement of contractual employees was scrupulously followed under the aegis of Government functionaries. But, surprisingly, after utilising their service for more than a decade, when question of bringing them, under Regular Establishment arises, they (employees) have been pushed to a corner. Government functionaries in a welfare stages should refrain from adopting hire and fire policy. The action taken amounts to gambling with the carrer of the employees, some of whom might have been overaged to compete for employment."

Said order was carried in appeal to the Hon'ble Supreme Court of India by the State of Odisha in SLP (C) No.18642 of 2018 which came to be disposed of on 06.08.2018 with the following order:-

"No ground for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India.

The Special Leave Petition is, accordingly, dismissed. Pending application, if any, stands disposed of."

11. In yet another case, where the Petitioner in Laxmidhar Sahoo Vrs. State of Odisha in W.P.(C) No.4884 of 2020 vide order dated 24.09.2022, prayed for regularisation of service in the post of "Attendant" in the Orissa High Court Homeopathy

Dispensary. This Court in consideration of the case of Secretary, State of Karnanataka Vrs. Umadevi (3), (2006) 4 SCC 1 and State of Karanataka Vrs. M.L. Kesari, (2010) 9 SCC 247 observed as follows:-

"Considering the contention raised by learned counsel for the parties and after going through the records since the petitioner is rendering service since last 23 years uninterruptedly and he has been allowed to draw house rent and other allowances as due and admissible to the post that itself indicates that there is need of the said post and as such the petitioner is continuing in service uninterruptedly for a quite long period. In view of the law laid down by the apex Court in Umadevi (supra) and M.L.Keshari (supra) and also the order of this Court, dated 27.11.2014, which has been confirmed by the apex Court so far as employees of Angul Municipality is concerned, the opposite parties are directed to regularize the service of the petitioner as expeditiously as possible preferably within a period of three months from the date of passing of this order and also grant all consequential benefit as due and admissible to him in accordance with law."

Said order was challenged before the Hon'ble Supreme Court of India by the State of Odisha in SLP (C) Diary No.5877 of 2023, which came to be disposed of on 21.04.2023.

12. In the case of Patitapaban Dutta Dash (supra), this Court has taken note of Judgements of the Hon'ble Supreme Court of India rendered in the context of contractual appointment and observed as follows:-

"In view of the factual and legal aspects as discussed above, this Court is of the considered view that the services of the Petitioners should be regularized by issuing formal letters of regularization in terms of the G.A. Department letter dated 17.09.2013, as they have already completed 6 years of service, on bearing appointed against sanctioned posts by following due procedure of selection. Otherwise also they having completed more

than ten years of service, on beaing employed and continued by the authorities, in terms of the judgments of the apex Court, as discussed above, their services are also to be regularized. Accordingly, this Court directs the Opposite Parties to regularize the services of the Petitioners and grant them all consequential service and financial benefits in accordance with law as expeditiously as posisble, preferably within a period of two months from the date of communication of this Judgment."

To ventilate their grievance, the State of Odisha challenged the said order in intra-Court appeal being W.A. No.777 of 2021. This Court in Division Bench disposed of said writ appeal along with batch of writ appeals vide Judgment dated 12.04.2023, wherein the case of Patitapaban Dutta Dash (supra) has been affirmed with the following observation:-

"43. As regards the decision in Umadevi (supra) as explained later in M.L. Kesari (supra), the Respondents can possibly seek the extension of the benefit of the ratio of the aforementioned decisions for two reasons. One, that the Respondents were engaged against sanctioned posts and two, they were engaged after qualifying in a computer test. In M.L. Kesari (supra), the Supreme Court explained:

"It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi, if the following conditions are fulfilled:

(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.

(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and

was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.

Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure." (emphasis supplied)

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 regularisation. The law in M.L. Kesari (supra), has been reiterated in Amarkant Rai v. State of Bihar (2015) 8 SCC 265, Sheo Narain Nagar v. State of U.P. AIR 2018 SC 233 and in Rajnish Kumar Mishra v. State of U.P. (2019) 17 SCC 648.

xxxx xxxx xxxx xxxx

47. For the aforementioned reasons, the Court is not persuaded to interfere with the impugned judgment of the learned Single Judge. It should now be implemented in letter and spirit within a period of twelve weeks. The writ appeals are dismissed, but in the circumstances, with no orders as to costs. "

13. In the result, in view of the discussions made hereinabove and for the reasons stated, this Court is of the considered view that the order dated 02.11.2018 of the Odisha Administrative Tribunal, Cuttack Bench, Cuttack warrants interference and is, therefore, set aside. In view of the fact that the petitioner has been serving continuously since 2008 till date in the post of Cook-cum- Attendant, and said post is not against any scheme, this Court directs the Opposite Parties to consider the case of Petitioner for regularisation in service keeping in view the rulings of Hon'ble Supreme Court as also this Court as stated in the judgments referred to in the foregoing paragraphs. In the event of

regularisation of service of the Petitioner, it is needless to say that she shall be entitled to all consequential services and financial benefits in accordance with law. This Court hopes and trusts that the Opposite Parties shall take pragmatic view of the matter within a period of three months from today.

14. Accordingly, the writ petition stands allowed in the above terms.

(DR. B.R. SARANGI) JUDGE

Laxmikant (M.S. RAMAN) JUDGE

Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Sep-2023 15:41:28