Orissa High Court
Laxmipriya Mohanty vs State Of Odisha And Others ..... ... on 20 May, 2024
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.12611 of 2024
Laxmipriya Mohanty ..... Petitioner
Represented By Adv. -
Mr. Abhisek Mohanty
-versus-
State of Odisha and others ..... Opposite Parties
Represented By Adv. -
Mr. Saswat Das, A.G.A.
Mr. S.N. Das, Advocate
for O.P. No.2
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
ORDER
20.05.2024
Order No.
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 Government Advocate for the State. Perused the writ
petition as well as the documents annexed thereto.
3. The Petitioner has filed the present writ application with the
following prayer:
"Under the aforesaid facts and
circumstances of the case, it is therefore,
prayed that this Hon'ble Court may
graciously be pleased to issue Rule NISI
calling upon the opp. parties to show cause as
to why a writ in the nature of mandamus shall
not be issued directing the opp. Parties to
regularize the service of the petitioner in the
post of junior clerk as her juniors were
regularized as per the judgment passed by
this Hon'ble Court in W.P.(C) No.3921 of
2006 decided on 16.07.2019 vide Annexure-3
which has been confirmed by the Hon'ble
Supreme Court vide its order dated
17.11.2020 passed in SLP No.9599 of 2020.
And made further to be pleased to
quash/set aside the letter dtd. 17.08.2021
under Annexure-1 of the writ petition.
And further be pleased to direct the
opp. Parties to give all consequential service
benefits from the initial date of appointment
within a stipulated period and upon perusal
of causes shown if any or upon sufficient
causes shown make the said Rule absolute.
And pass any other order(s) or issue
direction(s) as may be deemed fit and proper
in the bonafide interest of justice."
4. Learned counsel for the petitioner states that the petitioner
has been continuing as a DLR employee under the Orissa Water
Supply and Sewerage Board with effect from 30.12.1997, but till
date he has not been regularized, although more than 27 years
have passed in the meantime. He has referred to the case of State
of Karnataka v. Umadevi, 2006(4) SCC 1, wherein in paragraph
53 the apex Court has held that the State Governments and their
instrumentalities should take steps to regularize as a one-time
measure the services of such irregularly appointed persons who
have worked for ten years or more in duly sanctioned posts.
Similar view has also been taken by the apex Court in State of
Karnataka and others v. M.L.Keshari and others, 2010(II) OLR
(SC) 982, wherein in paragraph 7 the apex Court has held as
follows :
"7. 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 WP(C) No. 3921 of 2006 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 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. In that view of the matter, since the petitioner is continuing
as DLR employee under the Orissa Water Supply and Sewerage
Board and completed 27 years of service in the meantime and
even though his appointment is irregular he should be regularized
in service by following the principle of law laid down in the
judgments of the apex Court in Umadevi's case and
M.L.Keshari's case (supra), as well as Amarkanti Rai v. State of
Bihar and others, (2015) 8 SCC 265.
6. Furthermore, this Court further directs that while
considering the case of the Petitioner for regularization the
Opposite Parties shall also keep in view the order passed in
W.P.(C) No.3921 of 2006 disposed of on 16.07.2019 by this Court
and which has been confirmed by the Hon'ble Supreme Court in
an appeal filed by the Opposite Party-Orissa Water Supply &
Sewerage Board in the shape of Special Leave to Appeal (C)
No.9599 of 2020 disposed of on 17.11.2020. In the above noted
appeal, the Hon'ble Supreme Court while dismissing the appeal of
the Sewerage Board, has confirmed the order passed by the
learned Coordinate bench. On a careful analysis of the factual
backdrop of the above noted case it appears that the facts of the
present case are almost identical to the facts of the aforesaid case.
In such view of the matter, the Opposite Parties are directed to
consider the case of the Petitioner for regularization of his service
in the light of the order passed by the Coordinate Bench referred
to hereinabove which has been confirmed by the Hon'ble Supreme
Court within a period of two months from the date of
communication of a certified copy of this order.
7. It is further directed that while considering the case of the
Petitioner for regularization as his service as directed hereinabove,
the Opposite Party cannot reject the claim only on the ground that
there are no sanctioned posts. Further it is directed that in such
eventuality, the Opposite Parties shall take a decision with regard
to creation and sanctioning of posts to absorb/regularize the
Petitioner. In the event such decision is taken pursuant to the
aforesaid direction and the same requires the concurrence of State,
the State-Opposite Parties shall consider grant of concurrence
keeping in mind that the Petitioner has been working for more
than two decades and as such the nature of work they are
performing is perennial in nature. Furthermore, in view of the
aforesaid analysis of law, this Court is of the considered view that
the impugned order dated 17.08.2021 under Annexure-1 has not
been passed in the legal prospect. Therefore, the same is hereby
quashed. Further, the matter is remanded back to the Opposite
Party.
8. With the aforesaid observation/ direction, the writ
application stands disposed of.
9. Issue urgent certified copy of this order as per Rules.
( A.K. Mohapatra )
Judge
Debasis
