Orissa High Court
Krushna Chandra vs State Of Odisha & Others ..... Opposite ... on 5 August, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OAC) No.1490 of 2014
Krushna Chandra ..... Petitioner
Mahapatra
Mr. S. Mohanty, Adv
-versus-
State of Odisha & Others ..... Opposite Parties
Mr. S. Jena, AGA
CORAM:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
05.08.2024
Order No.3
1. This matter is taken up through hybrid mode.
2. Heard learned counsel for the parties.
3. Petitioner has filed the present Writ Petition inter alia
with the following prayer.
"Under such circumstances, it is humbly prayed
that this Hon'ble Court may kindly be pleased to
admit the case and issue notice to the Opp. Parties
to file their show cause as to why the case of the
applicant shall not be allowed and after hearing
the parties, the case of the applicant be allowed
and give a direction to the Respondents more
particularly 2 and 3 for regularisation of the
service of the applicant in the light of the law laid
down by the Hon'ble Supreme Court and the
applicant be paid all the financial and
consequential benefits.
And/or pass any other order(s) which deems fit
and proper for adjudication of the case."
4. Learned counsel for the Petitioner contended that
Petitioner was engaged as a Night Watcher cum Sweeper vide
order of engagement issued on 21.11.2003 under Annexure-3
.
of Opp. Party No.4. Pursuant to the order issued under
Annexure-3, petitioner joined as a Night Watcher-cum-
Sweeper in the office of Sub-Registrar, Machkund on
02.01.2004 as reflected in Annexure-4. Subsequently vide
Office Order dt.18.10.2005 of Opp. Party No.4 under
Annexure-6, Petitioner was posted in the Office of Sub-
Registrar, Pattangi where he joined on 21.10.2005.
4.1. It is further contended that vide Office order
dt.09.09.2011 of Opp. Party No.4, Petitioner was posted in the
Office of Sub-Registrar, Machkund and accordingly he was
relieved vide Order dt.16.09.2011 under Annexure-8 for his
joining. It is contended that in terms of the order issued under
Anexure-8, Petitioner till date is continuing as a Night Watcher-
cum-Sweeper in the office of Sub-Registrar, Machkund on daily
Wage basis.
4.2. Learned counsel for the Petitioner contended that since
w.e.f 02.01.2004 to till date, Petitioner is continuing as a Night
Watcher-cum-Sweeper in the office of Sub-Registrar,
Machkund and/or Sub-Registrar, Pattangi without any break
in engagement and without being protected by any interim
order passed by any Court of law, he is eligible and entitled to
get the benefit of regularisation, in view of the decision of the
Hon'ble Apex Court in the case of State of Karnatak Vs. Uma
Devi, (2006) 4 SCC-1 as well as the decision in the case of
Amarkant Rai Vs. State of Bihar & Others, 2015(8)
SCC 265
In the case of Uma Devi, Hon'ble Apex Court in Para-44
has held as follows:-
"44. One aspect needs to be clarified. There may be
cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa
.
(supra), R.N. Nanjundappa (supra) and B.N. Nagarajan
(Supra), and referred to in paragraph-15 above, of duly
qualified persons in duly sanctioned vacant posts might
have been made and the employees have continued to
work for ten years or more but without the intervention of
orders of courts or of tribunals. The question of
regularization of the services 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 regularize 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
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 wages are being
now employed. The process must be set in motion within
six months from this date. We also clarify that
regularisation, if any already made, but not subjudice,
need not be reopened based on this judgement, but there
should be no further by passing of the constitutional
requirement and regularizing or making permanent,
those not duly appointed as per the constitutional
scheme."
In the case of Amarkanti Rai, Hon'ble Apex Court in
Para-8, 9, 11 to 14 has held as follows:-
"8. Insofar as contention of the respondent that the
appointment of the appellant was made by the Principal
who is not a competent authority to make such
appointment and is in violation of the Bihar State
Universities Act and hence the appointment is illegal
appointment, it is pertinent to note that the appointment
of the appellant as night guard was done out of necessity
and concern for the College. As noticed earlier, the
Principal of the College vide letters dated 11-3-1988, 7-
1-1993, 8-1-2002 and 12-7-2004 recommended the case
of the appellant for regularisation on the post of night
guard and the University was thus well acquainted with
the appointment of the appellant by the then Principal
even though the Principal was not a competent authority
to make such appointments and thus the appointment of
the appellant and other employees was brought to the
notice of the University in 1988. In spite of that, the
process for termination was initiated only in the year
.
2001 and the appellant was reinstated w.ef. 3-1-2002
and was removed from services finally in the year 2007.
As rightly contended by the learned counsel for the
appellant, for a considerable time, the University never
raised the issue that the appointment of the appellant by
the Principal is ultra vires the rules of the BSU Act.
Having regard to the various communications between
the Principal and the University and also the educational
authorities and the facts of the case, in our view, the
appointment of the appellant cannot be termed to be
illegal, but it can only be termed as irregular.
9. The Human Resources Development, Department of
Bihar Government, vide its Letter dated 11-7-1989
intimated to the Registrar of all the Colleges that as per
the settlement dated 26-4-1989 held between Bihar
State University and College Employees' Federation and
the Government it was agreed that the services of the
employees working in the educational institutions on the
basis of prescribed staffing pattern are to be regularised.
As per sanctioned staffing partien, in Ramashray
Baleshwar College, there were two vacant posts of Class
IV employees and the appellant was appointed against
the same. Further, Resolution No. 989 dated 10-5-1991
issued by the Human Resources Development
Department provides that employee working up to 10-5-
1986 shall be adjusted against the vacancies arising in
future. Although, the appellant was appointed in 1983
temporarily on the post that was not sanctioned by the
State Government, as per the above communication of the
Human Resources Development Department, it is evident
that the State Government issued orders to regularise the
services of the employees who worked up to 10-5-1986.
In our considered view, the High Court ought to have
examined the case of the appellant in the light of the
various communications issued by the State Government
and in the light of the circular, the appellant is eligible for
consideration for regularisation.
XXX XXX XXX
11. Elaboration upon the principles laid down in
Umadevi (3) Case and explaining the difference between
irregular and illegal appointments in State of Karnataka
Vs. M.L Kesari, this Court held as under (ML Kesari case
SSC p 250, para 7) 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 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 possesses the prescribed
minimum qualifications, the appointments will be
considered to be illegal., But where the persons
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."
12. Applying the ratio of Umadevi (3) case, this Court in
Nihal Singh v. State of Punjab directed the absorption of
the Special Police Officers in the services of the State of
holding as under: (Nihal Singh Case, SCC pp. 79-80,
paras- 35-36)
"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 failure extracting work from
persons such as the appellants herein for decades
together itself would he 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 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 of 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 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 labour over a period of decades. It is also
pertinent to notice that these banks are public sector
banks
13. In our view, the exception carved out in para 53 of
Umadevi (3)3 is applicable to the facts of the present
case. There is no material placed on record by the
respondents that the appellant has been lacking any
.
qualification or bore any blemish record during his
employment for over two decades. It is pertinent to note
that services of similarly situated persons on daily
wages for regularisation viz. one Yatindra Kumar Mishra
who was appointed on daily wages on the post of Clerk
was regularised w.e.f. 1987. The appellant although
initially working against unsanctioned post, the
appellant was working continuously since 3-1-2002
against sanctioned post. Since there is no material
placed on record regarding the details whether any other
night guard was appointed against the sanctioned post,
in the facts and circumstances of the case, we are
inclined to award monetary benefits to be paid from 1.-
1-2010.
14. Considering the facts and circumstances of the case
that the appellant has served the University for more
than 29. years of the post of night guard and that he has
served the College on daily wages, in the interest of
justice, the authorities are directed to regularise the
services of the appellant retrospectively w.ef. 3-1-2002
(the date on which he rejoined the post as per the
direction of the Registrar)."
4.3. It is accordingly contended that since Petitioner w.e.f
02.01.2004 to till date is continuing on Daily Wage basis,
Petitioner is eligible and entitled to get the benefit of
regularisation and appropriate order be issued in that regard
to Opp. Party No.4, who is the appointing authority with regard
to the post in question which is admitted in the counter
affidavit so filed by Opp. Party Nos.1 to 5.
5. Learned Addl. Govt. Advocate on the other hand made his
submission basing on the stand taken in the counter affidavit
so filed by Opp. Party Nos.1 to 5.
Basing on the affidavit, learned Addl. Govt. Advocate
contended that since Petitioner has been engaged against a
non-sanctioned post vide orders issued by Opp. Party No.4,
Petitioner is not eligible and entitled to get the benefit of
regularisation. However, it is not disputed that Petitioner was
so engaged vide order issued under Annexure-3 and
.
subsequent orders issued under Annexure-6 & 8 so issued by
Opp. Party No.4.
5.1. It is contended that since the Petitioner is being paid from
Contingency on Daily Wage basis, he is not eligible and entitled
to get the benefit of regularisation. It is accordingly contended
that the prayer as made in the Writ Petition is not
entertainable.
6. Having heard learned counsel for the parties and
considering the submission made, this Court finds that
Petitioner was engaged as a Night Watcher-cum-Sweeper vide
order dt.21.11.2003 of Opp. Party No.4 so issued under
Annexure-3. In terms of the said order, Petitioner joined as a
Night Watcher-cum-Sweeper in the office of Sub-Registrar,
Machkund on 02.01.2004. As further found from the various
documents enclosed to the Writ Petition, Petitioner since
02.01.2004 is continuing as a Night Watcher-cum-Sweeper
under Opp. Party No.4 on daily wage basis.
6.1. Considering the continuation of the Petitioner w.e.f
02.01.2004 without any break in the engagement and without
being protected by any interim order passed by any Court of
law, this Court is of the view that claim of the Petitioner to get
the benefit of regularisation requires appropriate consideration
by Opp. Party No.4.
This Court accordingly while disposing the Writ Petition
directs Opp. Party No.4 to take a decision on the claim of the
Petitioner to get the benefit of regularisation following the
decision in the case of Uma Devi and Amarkanta Rai as cited
(supra). Such a decision be taken within a period of two(2)
months from the date of receipt of this order with due
communication to the Petitioner.
.
Till a decision as directed, is taken, no coercive shall be
taken against the Petitioner.
With the aforesaid observation and direction, the Writ
Petition is disposed of.
( BIRAJA PRASANNA SATAPATHY)
Judge
sangita
Reason: authentication of order
Location: high court of orissa, cuttack
Date: 08-Aug-2024 12:48:02
.
