Orissa High Court

Sudam Charan Nayak vs State Of Odisha& Others .... Opposite ... on 22 November, 2024

Author: S.K. Panigrahi

Bench: S.K. Panigrahi

                                                               Signature Not Verified
                                                               Digitally Signed
                                                               Signed by: BHABAGRAHI JHANKAR
                                                               Designation: AR-CUM-SR. SECRETARY
                                                               Reason: Authentication
                                                               Location: ORISSA HIGH COURT, CUTTACK
                                                               Date: 27-Nov-2024 17:57:33



               IN THE HIGH COURT OF ORISSA AT CUTTACK

          W.P.(C) No.21388 of 2016 with W.P.(C) No.5597 of 2016
     (In the matters of applications under Articles 226 and 227 of the
     Constitution of India, 1950).

    Sudam Charan Nayak                            ....                 Petitioner(s)
    (In both the Writ Petitions)

                                       -versus-

    State of Odisha& Others                       ....         Opposite Party (s)
  Advocates appeared in the case through Hybrid Mode:

    For Petitioner(s)              :               Mr. Aurovinda Mohanty, Adv.


    For Opposite Party (s)         :                   Mr. S.K. Pattnaik, Sr. Adv.
                                                             along with associates
                                                                   (for O.P. No.3)
                                                         Mr. Sonak Mishra, ASC


              CORAM:
              DR. JUSTICE S.K. PANIGRAHI

                   DATE OF HEARING: -04.09.2024
                  DATE OF JUDGMENT: -22.11.2024
  Dr. S.K. Panigrahi, J.

1. Since both the cases are interlinked in terms of the subject matter and

prayer, the same were heard together and are being disposed of by this

common judgment.

2. The petitioner challenges the order dated 28.10.2016 issued by the

General Manager (A&P)/ OFDC/ rejecting the petitioner's case for

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 27-Nov-2024 17:57:33

regularization of service. The petitioner seeks the issuance of a writ of

mandamus directing the Opposite parties to regularize the petitioner's

service from the date of appointment, along with the consequential

service benefits from the date of engagement until the date of

regularization.

 I.     FACTUAL MATRIX OF THE CASE:

 3.     The brief facts of the case are as follows:

(i)     The petitioner was appointed as a Nominal Muster Roll (NMR)

employee in the post of Watcher under the Orissa Plantation

Development Corporation (OPDC), which was later merged with the

Orissa Forest Corporation Ltd. (OFDC Ltd.) in 1990. He was initially

posted in the Plantation Division, Kujang, where he worked from the

year 1988 to 1989. Subsequently, he was transferred to the Chandikhole

Plantation Division, where he continued to serve in the same capacity

from the year 1989 onward.

(ii) A study was conducted by M/S Tata Consultancy Services in 1993,

which identified an excess workforce within OFDC Ltd., leading to

trimming of the workforce. Consequently, the Forest Department of the

Government of Orissa issued an order in the year 1994 banning all new

recruitments in OFDC Ltd., followed by resolutions aimed at gradually

reducing surplus manpower and retrenching daily wage workers, in

compliance with the Industrial Disputes Act.

(iii) In 1998, the petitioner filed a writ petition, O.J.C. No. 3123/1998, along

with Misc. Case No. 2773/1998, seeking regularization of his service.

The OFDC Ltd. opposed the petition, arguing that no vacancy existed

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 27-Nov-2024 17:57:33

for the Watcher position and that the Regularization Rule of 1980 ceased

to apply after the merger. This Court issued an interim order staying the

termination of the petitioner's service during the proceedings.

(iv) The writ petition, O.J.C. No. 3123/1998, was dismissed for default in

2016/ resulting in an order to dispense with the petitioner's service. This

decision led to the filing of W.P.(C) No. 5597/2016, which is still

pending. Additionally, the Managing Director of OFDC Ltd. rejected

the petitioner's representation for regularization due to the absence of a

vacancy and the ban on new recruitments.

(v) On 26th March 2016, the petitioner submitted a fresh representation,

which was again rejected. In response, this Court directed the petitioner

to submit another representation to the Managing Director of OFDC

Ltd., with instructions to dispose of it within two months. The Court

also directed that the petitioner's case be prioritized for future vacancies

(vi) In 2023, OFDC Ltd. issued an advertisement for the recruitment of 225

Field Assistant positions. However, the petitioner did not meet the

qualifications for the post and did not apply.

(vii) As the petitioner's earlier representations remained unresolved/ he filed

the present writ petition seeking regularization of his service from the

date of his initial appointment under the Orissa Forest Corporation Ltd.

Daily Rated/Consolidated Workers' Service Regularisation Rule, 1980.

II. SUBMISSIONS ON BEHALF OF THE PETITIONER:

4. Learned counsel for the Petitioner earnestly made the following

submissions in support of his contentions:

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 27-Nov-2024 17:57:33

(i) The Petitioner submitted that, despite being recommended for

regularization and performing duties alongside regular

employees, his case was ignored, and his representation was

rejected.

(ii) The Petitioner submitted that the 125th meeting of the OFDC

Board of Directors, held on 28.06.1986, resolved to regularize daily

wage workers after five years of service, in line with the Finance

Department Resolution dated 22.01.2006. A resolution issued on

15.05.1997/ following the Hon'ble Supreme Court's direction/

recommended the absorption of NMR/DLR/Job Contract workers

by respective departments. However/ the Petitioner's

representation was rejected by order dated 28.10.2016.

(iii) The Petitioner submitted that, having served for 34 years, his case

was not treated equitably with similarly situated employees, and

his work should be regularized as per the established rules. The

Petitioner referred to Rule-2 (e) of the Odisha Forest Corporation

Limited Daily Rated/Consolidated Workers Service Rules of 1980,

which entitles workers engaged in permanent and continuous jobs

for at least two years on a daily wage basis to regularization.

(iv) The Petitioner submitted that, despite the rejection of his

representation, several similarly situated employees had their

services regularized during the years 1990 and 1991. This

discrepancy highlights the discriminatory and arbitrary treatment

in his case.

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 27-Nov-2024 17:57:33

III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:

5. The Learned Counsel for the Opposite Parties earnestly made the

following submissions in support of his contentions:

(i) It is submitted that the petitioner's engagement was not against any

regular vacancy and was in violation of recruitment procedures. The

division where he was engaged was transferred to the State

Government as of 01.03.1997, and no regular appointments have been

made since the merger.

(ii) It is submitted that the OFDC Ltd. has faced surplus manpower issues

since the merger of three corporations in 1990, which was confirmed by

a study conducted by Tata Consultancy Services. The study

recommended the reduction of surplus employees, including 3291

regular employees. Additionally, the State Government imposed a ban

on recruitment in 1994, further exacerbating the surplus manpower

issue.

(iii) It is submitted that the petitioner was not retrenched along with 1573

daily wage employees in 1998 due to the stay order passed by this

Court. The remaining employees were retrenched following due

procedure under the Industrial Disputes Act.

(iv) It is submitted that the petitioner's representation for regularization was

duly considered and rejected by the Managing Director, who cited the

lack of vacancies and the State Government's ban on recruitment as

reasons for the rejection. The Managing Director assured that the

petitioner's case would be reconsidered in the future when recruitment

for the suitable posts becomes available.

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 27-Nov-2024 17:57:33

(v) It is submitted that the petitioner has cited the employment of Sri

Duryodhan Mohapatra and Sri Ram Chandra Amat in support of his

case for regularization. OFDC Ltd. has reviewed the background facts

regarding their employment and the reasons for their regularization,

noting that their cases differ from that of the petitioner. Sri Mohapatra's

regularization was in compliance with a court order, as he was engaged

on daily wages following the ban on appointments and was regularized

after the court directed the corporation to do so. Similarly, Sri Amat's

regularization was based on a court's order following the

recommendation of a committee, and his service was regularized

pursuant to a similar directive.

IV. COURT'S REASONING AND ANALYSIS:

6. Heard Learned Counsels for the parties and perused the documents

placed before this Court.

7. The issue of regularization of contractual services has been the subject

of extensive litigation, and it is well-established that the entitlement to

regularization hinges on several key factors, including the duration of

service, availability of vacancies, and strict adherence to prescribed

recruitment procedures. The mere continuation of service beyond the

term of an appointment does not automatically entitle an employee to

regularization, unless supported by a valid legal foundation. In this

regard, the Apex Court in State of Karnataka v. Umadevi1 observed:

"43. ...Therefore/ consistent with the scheme for public employment, this Court while laying down the law, has

(2006) 4 SCC 1

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 27-Nov-2024 17:57:33

necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right."

8. In Ashwani Kumar v. State of Bihar2, the Supreme Court examined the

validity of the confirmation of irregularly employed individuals and

observed:

"14. ...In this connection it is pertinent to note that question of regularization in any service including any government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are

(1997) 2 SCC 1

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 27-Nov-2024 17:57:33

otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularize them so that the employees concerned can give their best by being assured security of tenure. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularization may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularized and security of tenure may be made available to the incumbent concerned. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment."

9. Furthermore, the creation of posts and the formulation of regularization

policies fall within the exclusive prerogative of the Government, and

the judiciary must refrain from intervening in such matters. In Union of

India v. Ilmo Devi,3 the Apex Court observed:

"13. ...The High Court cannot, in exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the

(2021) 20 SCC 290

Designation: AR-CUM-SR. SECRETARY

Location: ORISSA HIGH COURT, CUTTACK Date: 27-Nov-2024 17:57:33

Department to formulate a particular regularization policy.

Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts."

10. In the present case, the Petitioner's service has not been regularized on

the grounds of excess manpower and the unavailability of vacancies.

Despite the Petitioner's prolonged service, there is no lawful basis for

granting regularization, particularly given the state government's

imposition of a ban on such regularizations. However, the Opposite

Parties have indicated that the Petitioner's regularization may be

reconsidered if and when vacancies arise in the future.

11. It must be emphasized that entitlement to regularization is not an

automatic right. It depends on factors such as the duration of service,

the availability of vacancies, and strict adherence to prescribed

recruitment procedures. Mere continuation of service beyond the initial

term does not create an entitlement to regularization. Additionally, the