Krushna Chandra Behera vs State Of Odisha
2025 Latest Caselaw 4364 Ori

Orissa High Court

Krushna Chandra Behera vs State Of Odisha on 24 February, 2025

Author: V. Narasingh

Bench: V. Narasingh

    IN THE HIGH COURT OF ORISSA AT CUTTACK

             W.P.(C) No.10888 of 2023

In the matter of an application under Articles 226 and 227 of
the Constitution of India

  Krushna Chandra Behera ....              Petitioner


                      -versus-

 1. State of Odisha
 2. Director of Health      ....    Opposite Parties
    Services (M & S)
    Odisha, Bhubaneswar
 3. Deputy Director Health
    Services (Faileria)
    National Faileria
    Control Program,
    Bhubaneswar
 4. Chief District Medical
    Officer & Public Health
    Officer, Khurda
 5. City Health Officer,
    Bhubaneswar
    Municipal Corporation,
    Bhubaneswar


         For Petitioner : Mr. S. Mohanty, Advocate
         For Opposite Parties : Mr. S.N. Das, ASC



           CORAM: JUSTICE V. NARASINGH

     Date of hearing & Judgment :       24.02.2025




                                                  Page 1 of 11
 V. Narasingh, J.

Heard learned counsel for the Petitioner, Mr. S. Mohanty and learned counsel for the State, Mr. S.N. Das, ASC.

2. This is the second journey of this Petitioner, a daily wage mulia invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. The Petitioner had earlier moved this Court in WPC(OAC) No.989 of 2020 ventilating his grievance for non-regularization. During the course of hearing of the said writ petition, the impugned order under Annexure-19 was brought on record.

The Petitioner withdrew the same and is assailing the order under Annexure-19 in the present writ petition.

For convenience of reference, the prayer of the writ petition is culled out hereunder:-

"Therefore, it is prayed that this Hon'ble Court may kindly be pleased to admit the case and issue notice to the opposite parties to file their show cause as to why the case of the petitioner shall not be allowed and after hearing the parties, the case of the petitioner be allowed and pass necessary order to set aside the Annexure-19 dt.17.03.2023 and pass necessary order for regularization of services of the petitioner w.e.f. the date persons similarly placed employees and juniors were regularized. The petitioner be given pension and pensionary benefit without any further delay and the petitioner be given

all the other financial and consequential benefits from the date similarly placed and his junior regularised.

xxx xxx xxx

3. It is submitted by the learned counsel that the Petitioner, who was working as a Daily Wage Mulia, was engaged in the National Faileria Control Programme (hereinafter referred to as 'the NFCP') since 01.10.1982 under the administrative control of Opposite Party No.5. And, seeking regularization of services, he along with similarly placed moved the learned Tribunal by filing O.A. No.2243(C)/1994. The Petitioner was applicant No.6 before the learned Tribunal.

4. Learned Tribunal by order dated 28.02.2006 directed for consideration of the grievance of the Petitioner and others to be absorbed in the grade of Senior Helper in the NFCP, Bhubaneswar if vacancy still exists.

5. Learned counsel for the Petitioner invites the attention of this Court to the communication of the Government dated 23.09.2006 in the Health & Family Welfare Department addressed to the CDMO, Khurda referring to the very order of the learned Tribunal, directing for implementation of the same, in order to avoid contempt.

In view of the same, the CDMO, Khurda (Opposite Party No.4) by order dated 26.10.2006

regularized the services of the Petitioners and others similarly circumstanced.

For convenience of reference, the said order is culled out hereunder:-

The name of the Petitioner appears at Sl. No.6.

6. When the matter stood thus, services of the persons at Sl. No.2, 9,7,15,13,10 and 4 were regularized and it is the submission of the learned counsel for the Petitioner that except persons at Sl.

No.2 & 4 all others have put in less number of years than the Petitioner which is evident on a bare perusal of Annexure-9 the certificate in the said regard. The said certificate is extracted hereunder:-

7. Ventilating his grievance that though he is similarly circumstanced yet his services have not been regularized while services of Juniors have been regularized, the Petitioner approached this Court as noted hereinabove.

8. It is the submission of the learned counsel for the Petitioner that there is no distinguishable feature between the persons, who have been regularized and the Petitioner and in fact Petitioner is better placed than 10 of others who have been regularized as adverted to hereinabove. As such there has been patent discrimination. In this context, he relied on the following judgments.

(i) Raman Kumar & Ors. v. Union of India & Ors., 2023 LiveLaw (SC) 520

(ii) Niranjan Nayak v. State of Odisha & Ors., 2023 (I) OLR - 407.

9. Learned counsel for the State, per contra, submits that the Petitioner ex facie is not similarly circumstanced, since the persons who have been regularized were granted temporary status. Hence, merely because, the name of the persons who have been regularized also appears in the same list along with the Petitioner that does not ipso facto confer any right on the Petitioner to claim regularization.

10. In this context, learned counsel for the Petitioner draws the attention of this Court to the lis before this Court in the earlier writ petition at the behest of the Petitioner, i.e., W.P.(OAC) No.989 of 2018 wherein pursuant to the direction of this Court dated 25.01.2023 a further affidavit was filed by the CDMO, who was arrayed as Opposite Party No.4 therein.

For convenience of reference a direction of this Court dated 25.01.2023 and the relevant extract of the further affidavit (paragraph-4) is quoted hereunder:-

"xxx xxx xxx xxx

3. Considering the nature of dispute involved in this matter, this Court directs learned ASC to obtain instruction from the O.P. No. 4 as to why on the face of the order passed by

the Tribunal and the order of regularisation extended in favour of similarly situated employees who were Parties before the Tribunal in O.A. No. 2243(C) of 1994 the Petitioner has not yet been conferred either with the temporary status or absorbed as against the post of Senior Helper. Such an instruction shall be provided to this Court on the next date."

Paragraph-4 of the further counter affidavit:-

"That pursuant to said direction, it is humbly submitted that all other seven persons similarly situated like that of the petitioner has already been regularized as indicated at Annexure-11 of the writ petition."

(Emphasized)

11. On a plain reading of the said paragraph, it can be seen that it was the unambiguous stand taken by the State functionaries that "all other seven persons similarly situated like that of the Petitioners had already been regularized as indicated at Annexure-11 of the writ petition".

Laying emphasis on the same, it is submitted by the learned counsel for the Petitioner that the stand taken by the State in the counter and the submission of the learned counsel for the State referring to "temporary Status" is untenable.

It is apt to note that a rejoinder affidavit has been filed by the Petitioner controverting the recitals in the counter affidavit.

12. On a perusal of the counter affidavit, it is seen that the State Authorities apart from the stand that the Petitioner has not been conferred with the temporary status have also relied on the judgment of the Apex Court in case of Secretary, State of Karnataka & Ors v. Umadevi & Ors., (2006) 4 SCC 1.

13. There is nothing on record to indicate the reasons as to why the temporary status was not conferred on the Petitioner and whether given such opportunity, the Petitioner failed to attain such 'temporary status'. In the absence of pleadings mere stand that the benefit of regularization cannot be granted to the Petitioner because he did not have temporary status amounts to justifying the unjustifiable. The Petitioner cannot be made to suffer because it was within the domain and discretion of the Authorities to grant temporary status and such discretion was evidently exercised arbitrarily. As such the Authority cannot now take shelter behind the cloak of non-conferment of temporary status to deny regularization of Petitioner's service. Rather this Court finds force in the submission of the learned counsel for the Petitioner that the Petitioner was deprived from getting temporary status and as such there has been discrimination and the same is tell- tale.

14. So far as the judgment of the Apex Court in the case of Umadevi (supra) referred to in the counter as relied upon by the learned counsel for the State, this Court takes note of the latest dictum of the Apex Court both in the case of Jaggo Verus Union of India and Others 2024 SCC OnLine 3826 and reiterated in Shripal and Another Versus Nagar Nigam, Ghaziabad 2025 SCC OnLine SC 211.

In Jaggo (supra) the Apex Court has referred to the principles as laid down in Umadevi (supra) inasmuch as it has clarified that the judgment Umadevi (supra) "does not intent to penalize employees who have rendered long years of service fulfilling ongoing and necessary functions of the State for its instrumentalities". The Apex Court has also taken note of the distinction between the irregular and illegal appointees.

In the case at hand, it is agreed at the Bar that the services of the Petitioners were regularized in terms of order passed by the Tribunal against existing vacancies and the persons whose names also figured along with the Petitioner have been regularized and as such denial of regularization on the bogey of "temporary status", as already been noted, cannot be sustained.

15. Learned counsel for the State also further submitted that since the order of retirement was

passed by the Bhubaneswar Municipal Corporation (BMC) and they have not been made party, the writ petition is liable to be rejected on the said ground.

16. On a perusal of the cause title, it is seen that the City Health Officer, Bhubaneswar Municipal Corporation has been cited as Opposite Party No.5 and it is not disputed at the Bar that the grievance of the Petitioner is against the State and hence, such contention does not find favour with this Court and on the said ground the Petitioner who has already retired cannot be relegated to fight another litigation since the grievance of the Petitioner is against the State and the State being adequately represented and the stand of the State being ably canvassed by the learned State Counsel on the basis of the counter affidavit.

17. On a conspectus of materials on record and taking the cue from the judgments of the Apex Court in the case of Jaggo (supra) and Shripal (supra), this Court is persuaded to hold that the impugned order at Annexure-19 rejecting the prayer of the Petitioner for regularization at par with his juniors is not sustainable and the same is quashed.

The Petitioner shall be entitled to consequential service and financial benefits at par with the incumbents at Anneuxre-9. And, the exercise is this regard in terms of the judgment be completed within a period of four months from the date of

production/receipt of the copy of this judgment, whichever is earlier.

18. Accordingly, the Writ Petition is allowed. No costs.

(V. NARASINGH) Judge Orissa High Court, Cuttack Dated the 24th February, 2025/ Himansu

Signed by: HIMANSU SEKHAR DASH

Location: Orissa High Court, Cuttack Date: 04-Mar-2025 18:05:43