Orissa High Court
Bhakta Padarbinda Rath vs State Of Orissa &Ors. .... Opp. Parties on 25 June, 2024
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 16-Jul-2024 17:25:50
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.14049 of 2019
and
batch of Writ Petitions
(In the matters of applications under Articles 226 and 227 of the
Constitution of India, 1950).
(In W.P.(C) No. 14049 of 2019)
Bhakta Padarbinda Rath .... Petitioner(s)
-versus-
State of Orissa &Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Jayanta Rath, Sr. Adv.
along with
Mr. Durgesh Narayan Rath, Adv.
Mr. P.K. Rout, Adv.
Mr. A.K. Saa, Adv.
-versus-
For Opp. Parties : Mr. Saswat Das, AGA
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-17.05.2024
DATE OF JUDGMENT:-25.06.2024
WP(C) No.14049 of 2019
along with
W.P.(C) No.13439 of 2019, W.P.(C) No.13626 of 2019, W.P.(C)
No.14050 of 2019, W.P.(C) No.14289 of 2019, W.P.(C) No.14290 of
2019 and W.P.(C) No.14292 of 2019.
Dr. S.K. Panigrahi, J.
1. Since common question of facts and law are involved in all the above-
mentioned Writ Petitions, the same were heard together and are being
Location: ORISSA HIGH COURT, CUTTACK
disposed of by this common judgment. However, this Court felt it
apposite to deal the W.P.(C) No.14049 of 2019 as the leading case for
proper adjudication of all these cases.
2. The Petitioner, in W.P.(C) No.14049 of 2019, has made a prayer to
quash the Advertisement dated 02.07.2019 issued by the Opposite Party
No.4/ Principal Chief Conservator of Forests (Wildlife)-cum- Chief
Wildlife Warden, Odisha, Bhubaneswar inviting application for the
posts of Junior Research Fellow (JRF), GIS Analyst and Data Analyst
(Computer Programmer) vide Annexures-11 and 12. He has further
sought for a direction from this Court to the Opposite Party No.1/
Secretary, Forest and Environment Department, Odisha, Bhubaneswar
to take a decision taken by the State Board for Wildlife, Orissa vide
Annexure-10.
I. FACTUAL MATRIX OF THE CASE:
3. An advertisement was published in daily "Sambad" dated 04.06.2009
by the Opposite Party No.4 to conduct interview for two posts of
Research Fellow for Coordination Cell-cum-Data Centre at Wildlife
Headquarter and one post of Research Fellow for studying on
'Interstate Migration of Elephants'. The Essential Qualification
prescribed in the advertisement for post of Research Fellow for
Coordination Cell-cum-Data Centre at Wildlife Headquarter was (i)
MCA from a reputed University/GNIIT. (ii) At least 55%
marks/equivalent CGPA in Computer related qualification. (iii)
Completed Graduation in English medium with at least 55% marks.
Desirable:-Knowledge and experience of working with (i) Database
Location: ORISSA HIGH COURT, CUTTACK
Management (ii) Website Management and (iii) Networking. Since the
Petitioner was having the essential and desirable qualification to his
credit, the Petitioner applied for the post. The post carried a
consolidated remuneration of Rs.10,000/- per month. The
Advertisement stated that the engagement will be on contractual basis
and is initially for a period of one year which may be extended further.
4. A Board was constituted by the Opposite Party No.4 to conduct the
interview for selection of Research Fellows on 17.06.2009. The Board
conducted the interview on 22.06.2009 and the Petitioner was selected
in the interview.
5. The Petitioner was issued with an appointment order by the Opposite
Party No.4 vide order No.3764 dated 26.06.2009 and was directed to
join the assignment on or before 04.07.2009. The Petitioner joined the
said post pursuant to the appointment order issued to him by the
Opposite Party No.4 on 03.07.2009.
6. A meeting of the State Board of Wildlife, Odisha as notified vide
Notification No.21700 dated 23.12.2009 constituted under Section 6 of
The Wildlife (Protection) Act, 1972 was held on 06.01.2011 under the
Chairmanship of the Chief Minister of Odisha. In the said meeting, it
was decided at Clause-8 of the decision that the Department would
examine the regularization of eleven Research Fellows recruited
following due recruitment procedure on contractual basis and creation
of four posts of Research Officers for Sanctuaries of the State.
Location: ORISSA HIGH COURT, CUTTACK
7. The minutes of the second meeting of the State Board of Wildlife held
on 06.01.2011, after due approval, was communicated by the Opposite
Party No.1 to the Opposite Party No.4 for compliance on 01.02.2011.
8. As per the decision of the Board Meeting held on 06.01.2011, the
Opposite Party No.4 vide letter No.5550 dated 05.07.2013 requested the
Opposite Party No.1 for creation of eleven posts of Research Fellows.
The financial implication of creation of such posts was also submitted
along with the proposal to the Opposite Party No.1 for taking
necessary action at his end.
9. The Opposite Party No.1 vide letter No.44 dated 01.01.2014
communicated to the Opposite Party No.4 regarding creation of eleven
post of Research Fellows with the post fact approval of the Finance
Department vide order No.204 dated 11.10.2013 with reference to the
letter of the Opposite Party No.4 bearing No.5550 dated 05.07.2013 and
in compliance to the decision under item No.8 of the Second Meeting of
State Board of Wildlife.
10. From the above, it is crystal clear that the post of Research Fellow in
which the Petitioner was appointed through due process of selection,
having the requisite qualification by a duly constituted selection
committee formed by the competent Authority was to be made regular
pursuance to the decision of the State Board of Wildlife, Odisha and
since the same has been created with post facto approval made by the
Finance Department. But for the reasons best known to the authorities,
instead of regularizing the services of the Petitioner, the remuneration
Location: ORISSA HIGH COURT, CUTTACK
of the Petitioner as Research Fellow was increased from Rs.10,000/- to
Rs.12,000/- per month.
11. Further, the Opposite Party No.1 vide letter No.2603 dated 09.02.2016
communicated to the Opposite Party No.4 for enhancement of monthly
remuneration of Research Fellows from Rs.12,000/- to Rs.15,000/- per
month prospectively.
12. It was submitted that on reading of the said order it is seen that the
Opposite Party No.4 instead of regularizing the service of the
Petitioner, Research Fellow, it appears that he submitted proposal vide
letter No.10521 dated 04.12.2015 for enhancement of remuneration of
Research Fellows from Rs.12,000- to Rs.15,000/- per month for which
such order was passed by the Opposite Party No.1 and the Petitioner
was extended with such enhanced remuneration.
13. The Opposite Party No.4 vide letter No.2560 dated 31.03.2016 again
requested to the Opposite Party No.1 giving a further detailed proposal
in continuation of his earlier order dated 05.07.2013 for creation of
eleven posts of Research Fellows in Wildlife Organization in
compliance with the decision taken under item No.8 of the Second
Meeting of State Board of Wildlife with a request that once the posts
are created, further follow up action will be taken by the Opposite
Party No.4.
14. It was submitted that since the posts had already been created by the
Government, there was no need to submit further proposal. However,
the Opposite Party No.4 once again submitted the proposal.
Location: ORISSA HIGH COURT, CUTTACK
15. The Opposite Party No.4 vide letter No.1888 dated 28.02.2017
requested the Opposite Party No.1 by giving a detailed information of
functioning of the Wildlife Organization and the decision taken by the
State Board Wildlife, Odisha as well as the need for regularization of
services of the Research Fellows and creation of other posts such as
Research Officer etc. under Wildlife Organization.
16. The Opposite Party No.1 in his letter No.25244 dated 05.12.2017 had
further enhanced the consolidated remuneration of Research Fellows to
Rs.28,000/- per month with immediate effect. The Petitioner was also
benefitted by the enhanced remuneration.
17. The Opposite Party No.4 vide letter No.730 dated 19.01.2018
addressed to the Opposite Party No.1 has categorically stated that since
seven persons including the present Petitioner who have been working
as Research Fellows have completed more than 8 years of service in
Wildlife Organization, early action may please be taken at the
Government level to regularize the services of Research Fellows as
Research Assistant referring the General Administration Resolution
No.4591 dated 15.02.2014 and Panchayati Raj & D.W. Department
Resolution No.23525 dated 29.11.2017.
18. Though the decision had already been taken by the Opposite Party
No.1 to regularize the services of the Research Fellows but the services
of the Research Fellows including the Petitioner were extended from
time to time by the Opposite Party No.4 treating them as contractual
Research Fellows and the remuneration was enhanced instead of
putting them in the regular salary of the post which has been created
Location: ORISSA HIGH COURT, CUTTACK
by the Government as per the decision of the State Board with the
approval of the Finance Department. However, the Petitioner was
intimated vide Office Order No.3085 dated 31.03.2018 of the Opposite
Party No.4 that he was allowed to continue from 1st April, 2018 to 31st
March, 2019.
19. Again the Opposite Party No.4 vide letter No.11660 dated 22.12.2018
requested the Opposite Party No.1 for extension of contractual
engagement of the Research Fellows in Wildlife Organization. It was
categorically stated in the said letter that research in Wildlife
Organization is a continuation and long term process for better
management of wildlife and its habitat and the work done by the
Research Fellows are satisfactory and their services are essentially
required for shaping the future in Wildlife Conservation and Research
in the State.
20. The Opposite Party No.4 again requested the Opposite Party No.1.
reiterating its earlier request to regularize the services of the Research
Fellows including the petitioner. While the matter was pending,
surprisingly, the Opposite Party No.4 issued an Advertisement dated
02.07.2019 published in Daily Sambad dated 03.07.2019 for engagement
of five posts of Junior Research Fellows, one post of GIS Analyst and
one post of Data Analyst (Computer Programmer) on contractual basis
under Elephant Management Action Plan of Forest and Environment
Department. The Advertisement indicated that minimum educational
qualification, desirable qualification, job requirement, application form
Location: ORISSA HIGH COURT, CUTTACK
and general terms and conditions are available in the official website to
be downloaded.
21. Since such posts are not prescribed under the scheme and made for
the work managed by the Research Fellows, therefore, the Petitioner is
constrained to approach this Court by filing this Writ Petition
challenging the Advertisement dated 02.07.2019 under Annexures-11
and 12.
II. PETITIONERS' SUBMISSIONS:
22. Learned counsel for the Petitioner earnestly made the following
submissions in support of his contentions.
(i) The Opposite Party No.1 vide letter No.2603 dated 09.02.2016
communicated to the Opposite Party No.4 for enhancement of monthly
remuneration of Research Fellows from Rs.12,000/- to Rs.15,000/- per
month prospectively.
(ii) It was submitted that on reading of the said order it is seen that the
Opposite Party No.4 instead of regularizing the service of the
Petitioner, Research Fellow, it appears that the proposal was submitted
vide letter No.10521 dated 04.12.2015 for enhancement of remuneration
of Research Fellows from Rs.12,000/- to Rs.15,000/- per month for which
such order was passed by the Opposite Party No.1 and the Petitioner
was extended with such enhanced remuneration.
(iii) The Opposite Party No.4 vide letter No.2560 dated 31.03.2016 had
requested to the Opposite Party No.1 giving a further detailed proposal
in continuation of his earlier dated 05.07.2013 for creation of eleven
posts of Research Fellows in Wildlife Organization in compliance to the
Location: ORISSA HIGH COURT, CUTTACK
decision taken under item No.8 of the Second Meeting of State Board of
Wildlife with a request that once the posts are created, further follow of
action will be taken by the Opposite Party No.4.
(iv) It was submitted that since the posts had already been created by the
Government, there was no need to submit further proposal. However,
the Opposite Party No.4 once again submitted the proposal.
(v) The Petitioner is continuing as a Research Fellow since July, 2009 and,
in the meantime, he has completed more than 12 years service. The
Petitioner has been duly selected through due process of selection by
the competent Selection Committee having the requisite qualification
and the Board having decided to regularize the service of the petitioner
as Research Fellows pursuance to the decision taken by the State Board
of Wildlife Odisha, a statutory body, and the posts having been created
by the State Government with the approval of the Finance Department,
non-regularization of the service of the Petitioner is hit by the law
established by the Apex Court in the cases of Secretary State of
Karnataka Vrs. Uma Devi1 and State of Karnataka Vrs. M.L. Kesari2.
III. SUBMISSIONS OF THE OPPOSITE PARTIES/ STATE:
23. Per contra, learned counsel for the Opposite Parties / State earnestly
made the following submissions in support of his contentions:
24. In the Writ Petition no specific prayer has been made by the Petitioner
claiming regularisation of service. On the contrary, he has only prayed
for his continuance as research fellow. However, an argument was
AIR 2006 (SC) 1086
AIR 2010 (SC) 2585
Location: ORISSA HIGH COURT, CUTTACK
advanced by the learned Senior Counsel for the Petitioner claiming
regularisation of service against the post of JRF (Junior Research
Fellow) which is/was never a substantive regular sanctioned vacant
post. The Petitioner basically laid his claim for
continuance/regularisation on the basis of decisions of different
committees and internal correspondences regarding creation of posts
which have never been worked out with the sanction of competent
authorities. Moreover, the impugned Advertisement under Annexures-
11 and 12 of the Writ Petition having been cancelled/withdrawn vide
Notice No.WL-Estt.- Misc-20/2019-6464 dated 03.08.2019, the Writ
Petition has become infructuous.
25. The engagement of the Petitioner as Research Fellow under Elephant
Management Action Plan is purely temporary and contractual
engagement with consolidated salary which was terminable at any
time without assigning any reason. The post held by the Petitioner as
Research Fellow was co-terminus to the "Elephant Management Action
Plan". Admittedly, after closure of such plan the post does not exist.
Such engagement was made with a pre-condition that such
engagement will not confer any claim for Government job as per bullet
point 12 to the engagement letter under Annexure-3. The
Advertisement for walk-in interview was also specific to the extent that
the engagement will be initially for a period of one year and can be
extended further. Therefore, the engagement of the Petitioner can never
be treated as an engagement against a sanctioned vacant post. The
engagement of the Petitioner is purely based on the performance report
Location: ORISSA HIGH COURT, CUTTACK
which is renewed annually by permitting him to submit his joining
report afresh as a Research Fellow.
26. It is relevant to state that the Petitioner was allowed to continue as
Research Fellow till 31.03.2019 i.e. till the contract period was renewed
from time to time. Thereafter, in absence of any renewal of the contract,
the Petitioner cannot claim continuance of service beyond the
contractual period. The said claim of the Petitioner is hit by the
judgment rendered in case of Yogesh Mahajan Vrs. Professor R.C.
Deka3.
27. As per the second meeting of the State Board for Wildlife Odisha
particularly with respect to creation of posts under Clause-8, no
sanction or approval/ post-facto approval has been received from the
Finance Department for creation of the posts. Several internal
correspondences regarding creation of posts although made up-to 2019
but such proposal could not be materialised in any point of time.
Clause-8 of the minutes of the meeting of the State Board for Wildlife
Odisha and further internal correspondences for creation of posts being
merely proposals for creation of posts, have no legal basis and cannot
be legally enforceable under law. The said claim of the Petitioner is hit
by the law laid down in the case of Laxminarayan R. Bhattad vrs.
State of Maharashtra4; State of Orissa & Ors. vrs. M/S Mesco Steels
Ltd. & Anr.5, Union of India & Ors. v. Vartak Labour Union6 and
Jasbir Singh Chhabra & Ors vrs. State of Punjab & Ors.7.
(2018) 3 SCC 218
2003(5) SCC 413
(2013) 4 SCC 340
Location: ORISSA HIGH COURT, CUTTACK
28. The basic requirement for regularisation of posts is that there must be
a sanctioned vacant post and the incumbent must have been continuing
uninterruptedly against such sanctioned vacant posts. In the present
case, there is no sanctioned post of Research Fellow or Junior Research
Fellow against which the Petitioner claims engagement, continuance
and regularisation. As on date, there is no Advertisement to fill-up the
post of Research Fellow after withdrawal/cancellation of the
Advertisement which is impugned in the present Writ Petition. The
present Petitioner is not continuing in service after 31.03.2019.
Therefore, the claim of the Petitioner for regularisation of his service is
further hit by the judgment by the Apex Court rendered in the cases of
Vibhuti Shankar Pandey vrs. The State of Madhya Pradesh & Ors.8;
The Managing Director, Ajmer Vidhyut Vitran Nigam Ltd., Ajmer &
Anr. vrs. Chiggan Lal & Ors.9, Union of India & Ors. vrs. Ilmodevi &
Anr.10 and The State of Gujarat & Ors. vrs. R.J. Pathan & Ors.11,.
29. Accordingly, it was submitted that the prayer made by the Petitioner is
not sustainable in law and, hence, this Writ Petition is liable to be
dismissed.
IV. THIS COURT'S REASONING AND ANALYSIS:
30. The stand of the Petitioner is that he has completed more than ten years
of service and the post against which he was appointed and continuing
(2011) 4 SCC 200
[(2010) 4 SCC 192
(2023) 3 SCC 639
2022 LiveLaw (SC) 296
LiveLaw 2021 (SC) 561
2022 LiveLaw (SC) 313
Location: ORISSA HIGH COURT, CUTTACK
is a sanctioned and an existing post under the Opposite Parties. But,
instead of regularizing his service, an Advertisement has been floated
to fill up the post denying his right for regularization. On such plea, the
Petitioner has made prayer to quash the Advertisement vide
Annexures-11 and 12 impugned in this Writ Petition. The further
contention of the Petitioner is that the post of Research Fellow in which
he was appointed through a due process of selection having the
requisite qualification by a duly constituted selection committee
formed by the competent authority was to be made regular pursuant to
the decision of the State Board of Wildlife, Odisha as the same has been
created with post fact approval made by the Finance Department. In
order to substantiate his contentions, the Petitioner has relied on the
decisions of the Apex Court in the cases of Secretary State of
Karnataka Vrs. Uma Devi and State of Karnataka Vrs. M.L. Kesar
(supra).
31. In the counter affidavit filed on behalf of the Opposite Party Nos.1 and
4, it has been averred that the Advertisement issued in daily
Newspaper on 04.06.2009 under Annexure-1 for engagement of
Research Fellow for Coordination Cell-cum-Data Centre at Wildlife
Headquarters under the "Elephant Management Action Plan" of the
Forest and Environment Department wherein the Petitioner (Bhakta
Padarbinda Rath) had attended the walk-in interview on 22nd and 23rd
June, 2009. Being selected, offer letter containing certain terms and
conditions was issued in favour of the Petitioner vide Office Letter
No.3764 dated 26.06.2009 under Annexure-3 issued by the PCCF
Location: ORISSA HIGH COURT, CUTTACK
(Wildlife) and Chief Wildlife Warden, Orissa requesting him to join on
or before 04.07.2009. As per the said offer letter, the Petitioner joined in
his assignment on 03.07.2009.
32. It has been clearly mentioned in the said Advertisement and offer letter
that this engagement is purely temporary and contractual in nature and
is terminable at any time without assigning any reason thereof. The
terms and condition of offer letter clearly spells out that this
engagement will not confer any claim for a Government job. Initially
the engagement would be for one year and might be extended for
further period. Further, this engagement is purely based on
management needs and has nothing to do with provisions of Wildlife
(Protection) Act, 1972 as claimed by the Petitioner.
33. Thereafter, the engagement of the Petitioner was being extended for
each year from 01.04.2010-11 to 31.03.2018-19 on the same terms and
conditions. In the meanwhile, while processing the proposal for
enhancement of remuneration, the Government vide F & E Dept. Letter
No.25244/F&E dated 05.12.2017 (Annexure-B/4) communicated the
following condition imposed by the Finance Department.
"The Junior Research Fellows should not continue for
more than 5 (Five) years. Therefore, the Department may
at best continue those Jr. Research Fellows who are
working for more than 5 (Five) years for one more year.
They should select new JFRs in the meanwhile."
34. Accordingly, the last extension of the Petitioner's engagement was
done up to 31.03.2019 vide Office Order No.3085 dated 31st March, 2018
Location: ORISSA HIGH COURT, CUTTACK
under Annexure-7 issued by the Opposite Party No.4/Principal Chief
Conservator of Forests (Wildlife) and Chief Wildlife Warden, Odisha.
35. It was contended by the Opposite Parties that the engagement of the
Petitioner stands automatically ceased with effect from 01.04.2019 as no
further extension of his engagement has been made beyond 31.03.2019.
After disengagement of the Petitioner and in the spirit of subsequent
letter of Government of Odisha in Forest and Environment vide letter
No.9291/F&E dated 16.05.2019, the Opposite Party No.4/Principal Chief
Conservator of Forests (Wildlife) and Chief Wildlife Warden, Odisha
has taken necessary action for publication of an Advertisement in daily
Newspaper on 03.07.2019 as well as in office Website for engagement of
the following personnel under the "Elephant Management Action
Plan" as per requirement at present scenario.
"1. Jr. Research Fellow- 5 (Five) Nos.
2. GIS Analyst- 1 (One) no.
3. Data Analyst- 1(One) no."
36. It has also been averred in the counter affidavit that the Petitioner has
been engaged as Research Fellow with effect from 03.07.2009 (2009-10)
till 31.03.2019 (2018-19) by way of year-wise extension of his
engagement period and due to cessation of his engagement with effect
from 01.04.2019, the question for payment of his remuneration with
effect from 01.04.2019 and onwards does not arise.
37. In fact, from a thorough scrutiny of the materials on record it appears
that the Petitioner engagement had come to an end on 31.03.2019.
Petitioner's engagement was purely temporary and contractual in
nature. His engagement was purely on management needs. The
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Petitioner had joined the said post. Moreover, the Advertisement under
Annexure-1 and offer letter under Annexure-3 clearly reveal that the
engagement of the Petitioner was purely temporary and contractual in
nature and is terminable at any time without assigning any reason
thereof. The terms and condition of offer letter also clearly shows that
this engagement will not confer any claim for a Government job.
Hence, it has rightly been contended by the Opposite Parties that the
engagement of the Petitioner was purely on management needs and
has nothing to do with the provisions of Wildlife (Protection) Act, 1972
as claimed by the Petitioner.
38. It is the fact that the State Board for Wildlife vide its Minutes of the 2nd
Meeting held on 06.01.2011 has advised the Government as follows:
"xx xx xx xx xx
Research activities would be strengthened in Wildlife
Organization. Department would examine regularization
of 11 Research Fellows recruited following due
recruitment procedure on contractual basis and 4 more
posts of Research Officers would be created for four
Sanctuaries i.e. Similipal, Satkosia, Bhitarkanika and
Chilika."
39. However, the State Board Wild Life is constituted under the provisions
of. Section 8 Wild Life (Protection) Act, 1972 provides as follows:
"8. Duties of 1 [State Board for Wild Life].--It shall be
the duty of [State Board for Wild Life] to advise the State
Government,--
[(a) in the selection and management of areas to be
declared as protected areas;]
[(b) in formulation of the policy for protection and
conservation of the wild life and specified plants;]
Location: ORISSA HIGH COURT, CUTTACK
(c) in any matter relating to the amendment of any
Schedule;
[(cc) in relation to the measures to be taken for
harmonising the needs of the tribals and other dwellers of
the forest with the protection and conservation of wild life;
and]
(d) in any other matter connected with the protection of
wild life, which may bereferred to it by the State
Government."
40. In order to counter the contentions made by the learned counsel for the
Petitioner regarding regularization of service relying on the judgments
of the Apex Court i.e. Secretary State of Karnataka Vrs. Uma Devi and
State of Karnataka Vrs. M.L. Kesar (supra), learned counsel for the
Opposite Parties/ State has relied on the decision of the Apex Court in
the case of Vibhuti Shankar Pandey v. The State of Madhya Pradesh &
Ors.12, wherein it has been held as follows:
"4. The learned Single Judge while allowing the writ
petition gave directions for regularisation of the appellant
from the date on which his juniors were regularised. This
order was challenged by the State Government before a
Division Bench which allowed the appeal of the State
Government. The Division Bench rightly held that the
learned Single Judge has not followed the principle of law as
given by this Court in State of Karnataka v. Umadevi (3)
[State of Karnataka v. Umadevi (3), (2006) 4 SCC 1: 2006
SCC (L&S) 753], 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. These two conditions were clearly missing in the
case of the present appellant. The Division Bench [State of
M.P. v. Vibhuti Shankar Pandey, 2020 SCC OnLine MP
4645] of the High Court therefore has to our mind rightly
(2023) 3 SCC 639
Location: ORISSA HIGH COURT, CUTTACK
allowed the appeal and set aside the order dated 27-6-2019
[Vibhuti Shankar Pandey v. State of M.P., 2019 SCC
OnLine MP 7136]."
41. In the present case, the sanctioned post was not available. Further, in
the case of The Managing Director, Ajmer Vidhyut Vitran Nigam Ltd.,
Ajmer & Anr. V. Chiggan Lal & Ors.13, it has been held that:
"9. It is the settled position that the date from which
regularization is to be granted is a matter to be decided by the
employer keeping in view a number of factors like the nature
of the work, number of posts lying vacant, the financial
condition of the employer, the additional financial burden
caused, the suitability of the workmen for the job, the manner
and reason for which the initial appointments were made etc.
The said decision will depend upon the facts of each year and
no parity can be claimed based on regularization made in
respect of the earlier years."
42. Further, the Supreme Court in the case of Union of India &Ors. V.
Ilmodevi & Anr.14 has held that:
"16. Thus, as per the law laid down by this Court in the
aforesaid decisions part-time employees are not entitled to
seek regularization as they are not working against any
sanctioned post and there cannot be any permanent
continuance of part-time temporary employees as held. Part-
time temporary employees in a Government run institution
cannot claim parity in salary with regular employees of the
Government on the principle of equal pay for equal work.
17. Applying the law laid down by this court in the aforesaid
decisions, the directions issued by the High Court in the
impugned judgment and order, more particularly, directions
in paragraphs 22 and 23 are unsustainable and beyond the
power of the judicial review of the High Court in exercise of
(2022 SCC Online SC 1351
(2021) 20 SCC 290
Location: ORISSA HIGH COURT, CUTTACK
the power under Article 226 of the Constitution. Even
otherwise, it is required to be noted that in the present case,
the Union of India/Department subsequently came out with
a regularization policy dated 30.06.2014, which is absolutely
in consonance with the law laid down by this Court in the
case of Umadevi (supra), which does no apply to the part-
time workers who do not work on the sanctioned post. As
per the settled preposition of law, the regularization can be
only as per the regularization policy declared by the
State/Government and nobody can claim the regularization
as a matter of right dehors the regularization policy.
Therefore, in absence of any sanctioned post and considering
the fact that the respondents were serving as a contingent
paid part-time Safai Karamcharies, even otherwise, they
were not entitled for the benefit of regularization under the
regularization policy dated 30.06.2014."
43. In the case of The State of Gujarat & Ors. V. R.J. Pathan & Ors.15, the
Apex Court has held:
"10.... Therefore, the unit in which the respondents were
appointed was itself a temporary unit and not a regular
establishment. The posts on which the respondents were
appointed and working were not the sanctioned posts in any
regular establishment of the Government. 11. Therefore,
when the respondents were appointed on a fixed term and on
a fixed salary in a temporary unit which was created for a
particular project, no such direction could have been issued
by the Division Bench of the High Court to absorb them in
Government service and to regularise their services. The
High Court has observed that even while absorbing and/or
regularising the services of the respondents, the State
Government may create supernumerary posts. Such a
direction to create supernumerary posts is unsustainable.
Such a direction is wholly without jurisdiction. No such
direction can be issued by the High Court for
(2022) 5 SCC 394
Location: ORISSA HIGH COURT, CUTTACK
absorption/regularisation of the employees who were
appointed in a temporary unit which was created for a
particular project and that too, by creating
supernumerary posts.
16. From the impugned order passed by the Division Bench
of the High Court it appears that the High Court has
observed hereinabove that in the peculiar facts and
circumstances of the case, it is directed that the order of
absorption and regularisation and if necessary, by creating
supernumerary posts, will not be treated as a precedent in
other cases. Even such a direction could not have been
passed by the Division Bench of the High Court as there
were no peculiar facts and circumstances which warranted
the above observation. No such order of absorption
and/or regularisation even if required for creating
supernumerary posts and not to treat the same as
precedent could have been passed by the High Court in
exercise of powers under Article 226 of the
Constitution of India."
44. Therefore, after going through the entire facts of the case and decisions
cited above, in view of the settled position of law and the submissions
made as above, this Court is inclined to accede with the submissions
made by the learned counsel for the Opposite Parties/ State. The claim
of the Petitioner for continuance or regularisation against the post of
Research Fellow/ Junior Research Fellow is denied since there was no
sanctioned post and the continuance of the Petitioner in the said post
was totally based on a contractual terms and conditions extendable as
per the requirement of the Department.
45. Accordingly, W.P.(C) No.14049 of 2019 is dismissed.
Location: ORISSA HIGH COURT, CUTTACK
46. Consequently, all the connected Writ Petitions are dismissed. No order
as to costs.
47. Interim order, if any, passed earlier in any of the Writ Petitions stands
vacated.
( Dr. S.K. Panigrahi )
Judge
Orissa High Court, Cuttack,
Dated the 25th June, 2024/B. Jhankar
