Orissa High Court
Saroj Kumar Mohanty vs State Of Odisha And Others ..... ... on 5 April, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.17636 of 2024
Saroj Kumar Mohanty ..... Petitioner
Represented By Adv. -
Mr. Abhisek Mohanty
-versus-
State Of Odisha and others ..... Opposite Parties
Represented By Adv. -
Ms. B.K. Sahu, AGA
Mr. Mr. Sailaza Nandan
Das, Advocate along with
Mr. Abinash Acharya,
Advocate appearing for
the Sewerage Board.
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
ORDER
02.04.2025
Order No.
03. 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 and Mr. S.N.
Das, learned counsel along with Mr. Abinash Acharya, learned
counsel appearing for the Sewerage Board. Perused the
pleadings of the parties 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 the impugned order dated
18.5.2024 under Annexure-3 shall not be quashed
and set aside and the writ in nature of mandamus
shall not be issued directing the opp. parties to
regularize the service of the petitioner under
Semi-skilled DLR category as his juniors were
regularized as per the judgment passed by this
Hon'ble Court in W.P.(C) No.3921 of 2006
decided 16.07.2019 vide Annexure-4 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 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 05.10.1994, but till
date he has not been regularized, although more than 30 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 30 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 and
M.L.Keshari (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 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 sanction of posts to
absorb/regularize of 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 three decades and as such the
nature of work they are performing perennial in nature.
8. With the aforesaid observation/ direction, the writ
application stands disposed of.
Issue urgent certified copy of this order as per Rules.
( A.K. Mohapatra )
Judge
Debasis
