Admittedly the Petitioner was working as an
NMR Watchman from 1.7.1976 under R&B Sub-
Superintending Engineer,
Central Circle, Rural Works, Bhubaneswar
xxx xxx xxx"
2-B. For reasons best known by the impugned order
dated 19.02.1999 the appointment of the Petitioner
along with several others were cancelled and assailing
the same the Petitioner approached the Orissa
Administrative Tribunal by fling OA No.2871(C) of 2000
and by order dated 18.09.2000 learned Tribunal while
issuing notice specifically took note of the fact that the
Petitioner who was applicant therein worked as an NMR
for more than 20 years and was appointed as a Peon in
the regular establishment.
Learned Tribunal further directed that pendency
of the matter before the learned Tribunal would not be
a bar to examine and dispose of the representation of
the Petitioner which was annexed as Annexure-4 and 5
to the O.A.
While the lis was pending before the learned
Tribunal, on account of abolition of the Tribunal, the
docket was transferred to this Court and renumbered
as WP(OAC) No.2871(C) of 2000. And, by order dated
10.11.2021 since there was no representation on behalf
of the Petitioner and taking note that this is a year old
case the matter was disposed of by this Court giving
opportunity to the Petitioner to re-agitate his grievance,
if any cause of action still survives. Thereafter, the
present writ petition has been preferred in the year
2023.
3. Mr. Mohanty, learned counsel appearing on
behalf of the Petitioner, submits that in terms of the
scheme for absorption of NMR formulated by the
Government of Orissa in terms of the resolution of the
Finance Department dated 15.05.1997 taking into
account the direction of the Apex Court as well as this
Court by which, it was decided that those who have
worked under the administrative control of the
Department concerned directly for minimum period of
10 years shall be considered for absorption and the
time line fixed in the said resolution was that the
workers concerned should have been engaged prior to
12.4.1993 i.e. prior to promulgation of ban on
engagement of NMR/DLR/Job Contract Workers etc.
vide Finance Department Circular No.WF-II-180/92-
17815/F dt.12.4.93.
For convenience the relevant paragraph of the
said resolution at Annexure-1 which has a bearing on
the point at issue is extracted hereunder:
"xxx xxx xxx
3. The workers should have been engaged prior
to 12.4.1993 i.e. prior to promulgation of ban on
engagement of NMR/DLR/Job Contract Workers
etc. vide Finance Department Circular No.WF-II-
180/92-17815/F dt.12.4.93.
xxx xxx xxx"
Referring to the said Scheme for absorption
more particularly Paragraph-2 thereof Mr. Mohanty,
learned counsel for the Petitioner submits that the case
of the Petitioner is squarely covered and examining the
case of the Petitioner in the light of the resolution of the
Finance Department the authorities have rightly
regularized the services by virtue of Annexure-2 but
arbitrarily exercising the power cancelled Annexure-2
Hence, the case at hand merits interference of
this Court and the impugned order of reversion as well
as bringing over the Petitioner to the work charge
employee is liable to be set aside.
It is the further submission of the learned
counsel for the Petitioner that the Petitioner is a senior
citizen aged about 69 years.
4. Per contra, Mr. Swain, learned Addl.
Government Advocate, referring to the counter affidavit
submits that there is no illegality in the impugned order
inasmuch as admittedly the concurrence of the Finance
Department was not taken and in this context he refers
to Paragraph-14 which is extracted hereunder:
"14. That in reply to the averments made in
Paras-11 to 14 of the writ petition it is humbly
submitted that it has been already stated in the
preceding paragraphs of this counter that the
appointment dtd.15.01.1999 was illegal as it
was erroneously issued by the then
Superintending Engineer without following the
procedure for regularization of NMR/DLR workers
issued by the Government and without obtaining
the permission of Finance Advisor of the
Department. After observing the procedures
issued by the Govt. and the guidelines of
Finance Department Resolution No.22764
dtd.15.05.1997 the Petitioner has been brought
over to the work charged establishment w.e.f.
01.09.2010."
5. It is trite that any order which confers a civil
right cannot be set aside without giving incumbent an
opportunity of hearing. Since the same is a
fundamental principle this Court does not want to
burden this judgment by the catena of decisions of the
Apex Court in the said regard.
6. Admittedly, the Petitioner was regularized as per
the order at annexure-2 and while passing the order at
Annexure-3 there is no dispute at the Bar that no
opportunity of hearing was ever afforded. Curiously
enough in Paragraph-10 of the counter, the authorities
have taken a stand that,
"....By cancelling the appointment order of the
Petitioner a mistake was avoided in time to
establish equal justice for all similar employees
as well as observation of the guideline and
principle of the Govt. and to obtain approval of
the Financial Advisor of Government in R.D.
Department."
This Court to say the least is baffled by the
stand taken by the authorities who claim themselves to
be model employer since such stand militates against
fundamentals of service jurisprudence.
7. Recently Apex Court had an occasion to deal
with the cases of similar nature in two of its judgment
in the case of Jaggo vrs. Union of India & others,
2024 SCC OnLine SC 3826 which was subsequently
reiterated in the case of Shripal & another vrs.
Nagar Nigam, Ghaziabad, 2025 SCC OnLine SC
221. In the said judgment the Apex Court has made a
detailed reference to lower bargaining power of the
employees and in fact expressed its concern in
Paragraph-25 which is respectfully quoted hereunder:
"25. It is a disconcerting reality that temporary
employees, particularly in government
institutions, often face multifaceted forms of
exploitation. While the foundational purpose of
temporary contracts may have been to address
short-term or seasonal needs, they have
increasingly become a mechanism to evade long
term obligations owed to employees."
(Emphasized)
The same was further reiterated in the case of
Shripal (supra) and while doing so the Apex Court also
took note of the mischief that is being resorted to by
misquoting and misapplying the judgment of the Apex Court
in the case of Secretary, State of Karnataka vrs. Uma
Devi, (2006) 4 SCC 1.
7-A. The claim for regularization of the Petitioner has
to be considered on the touchstone of the fundamental
principle of law of affording opportunity of hearing to the
Petitioner which was ex facie followed in its breach and the
judgment of the Apex Court cited hereinabove.
It is not in dispute that the Petitioner was in fact
regularized as per the order at Annexure-2 and reason for
cancelling the same, as has been noted in the
aforementioned paragraph militates against the common
sense and to say the least unfair to a person who has
served more than two decades by the date he was
regularized. This Court is conscious that in a matter where
regularization is sought for normally a direction is given for
consideration. But it is trite that the decisions of the Apex
Court have to be applied in the facts of each case.
8. In the case at hand it is seen that the Petitioner
was regularized after putting 22 years of service and
thereafter he was brought over to the work charged
establishment by order dated 1.9.2010 wherein he
continued till retirement, aged about 69 years and as
submitted by the learned for the Petitioner suffering from
the issues on account of geriatrics.
In such given circumstances, this Court is of the
considered view relegating the matter to the authorities for
considering the claim of the Petitioner for regularization
would amount to push him into quagmire of uncertainty.
Hence, this Court in the peculiar facts of the
present case while setting aside the impugned order at
Annexure 3 directs that the Petitioner should be treated to
be a regular employee in terms of Anneure-2 dated
15.05.1997 till his retirement and he shall be given all
consequential financial benefits accrued to him after
deducting the emoluments which he has already got and
taking into account his age it is directed that the said
exercise shall be completed within a period of three months
from the date of receipt/production of a copy of this
judgment.
9. The writ petition is accordingly disposed of. No
costs.
(V. NARASINGH)
Judge
Orissa High Court, Cuttack
Dated the 8th April, 2025/ Pradeep
Signed by: PRADEEP KUMAR SWAIN
Location: Orissa High Court, Cuttack
Date: 17-Apr-2025 16:40:35
