Orissa High Court

Afr Niranjan Mishra vs Shree Jagannath Sanskrit on 8 January, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                        W.P (C) Nos. 15982 of 2017

       An application under Articles 226 and 227 of the Constitution
       of India)
                                     ---------------

AFR    Niranjan Mishra                            ......          Petitioner

                               -Versus-

       Shree Jagannath Sanskrit
       Vishwavidyalaya,
       Shri Vihar, Puri and Others              ......        Opp. Parties
       Advocate(s) appeared in this case:-
       _______________________________________________________
          For Petitioner       : M/s. Sanjib Kumar Rath, Mr. G.K.
                                 Nanda, Mr.B.N. Biswal & R.H. Barik,
                                 Advocates

          For Opp. Parties : Mr. Gopal Kumar Agarwal,
                             Additional Government Advocate
                             & Mr. S.N. Nayak, Advocate
       _______________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA
                                JUDGMENT

th 8 January, 2025 SASHIKANTA MISHRA, J.

The petitioner has approached this Court seeking the

following relief:

"It is, therefore, prayed that this Hon'ble Court may graciously be pleased to admit the writ

petition and issue Rule "NISI" to the Opp. Parties to show cause as to;

(i) Why the recommendation made by O.P. No.3 to abolish the 2nd post of driver vide the impugned communication dated 30.03.2016 in the facts and circumstances of the case will not be declared as illegal and as such liable to be set aside; and (1)

(ii) Why the O.P. No.1 & 2 will not be directed to move the O.P. No.3 for creation of the post of Driver and for appointment of the petitioner on regular basis forthwith; and

(iii) Why the O.P. No.3 will not be directed to create the post of driver for such appointment of the petitioner on regular basis within a stipulated time;

And if the Opp. Parties do not show cause then the Rule be made absolute by issuing appropriate writ/writs and any other order as deem fit be passed;

And for this act of kindness, the petitioner shall as in duty bound ever pray."

2. The facts of the case, briefly stated are that the

petitioner was initially engaged as Driver on daily wage

basis on 07.10.1997 in the Shree Jagannath Sanskrit

Vishwavidayalaya, Puri (in short, the University). Such

engagement was against the vacancy created by the death

of the regular incumbent, Bhaskar Panda. It was the third

post of Driver. By letters dated 09.12.2009 & 28.05.2010,

the University moved the Government for de-reservation of

second post of Driver and on the same day, the University

also moved for de-reservation of the post of Driver and for

regularization of the services of the petitioner. The

petitioner was allowed to draw consolidated pay by order

dated 21.01.2011 by the University. The Government

refused to accept the request of the University. Said order

of the Government dated 17.04.2012 has been challenged

by the petitioner before this Court in W.P.(C) No.13688 of

2013 and is sub-judice. By order dated 17.01.2014 of the

University, the petitioner was allowed to draw pay and

grade pay with effect from 01.12.2013 admissible to the

post of Driver. By letter dated 08.12.2016, the University

requested the Government for creation of some non-

teaching posts including the post of Driver. However, the

Government in its letter dated 12.09.2018 intimated

regarding abolition of the vacant post of Driver. On

11.03.2019, the Registrar of the University intimated the

fact of retirement of the Driver and sought for permission

to appoint Driver on regular basis. The petitioner also

submitted a representation on 14.03.2019 praying for

regularization of his services, which was disposed by the

Government by order dated 01.05.2019, copy of which is

enclosed as Annexure-12. The Government in Department

of Higher Education rejected the case of the petitioner by

holding that his appointment was irregular and that by

the date of passing of the judgment by the Supreme Court

in the case of Umadevi v. State of Karnataka1, i.e. on

10.04.2006, he had not completed ten years of continuous

service. Pursuant to such order, the University issued an

office order dated 18.03.2023 attaching the petitioner to

the Central Library of University until further orders.

3. The University has filed the counter affidavit

more or less admitting the case of the petitioner. It is

stated that initially the Government created two posts of

Driver for the University one for the General Category and

the other for Scheduled Tribe category. Both the posts

were filled up. The third post of Driver was created by the

Government in 1989, which was filled up in the year 1991,

but in view of sudden death of the incumbent in the year

1992, the post was abolished in the year 2004 following

the fiscal measures initiated by the Government. Further,

the second post of the Driver, which was reserved for

(2006) 4 SCC 1

Scheduled Tribe, also fell vacant in the year 2007 due to

voluntary retirement of the incumbent. As such, keeping

in view the requirement of the University the petitioner

was engaged on daily wage basis to drive the office vehicle

as and when necessary with effect from 07.10.1997 and

has been continuing as such till date. After voluntary

retirement of the driver occupying the second post in the

year 2007, the University moved the State Government

seeking de-reservation of the post and for permission to fill

up the vacant post keeping in view the representation

submitted by the petitioner. However, the Government

informed that the base level post is not permissible to be

de-reserved. The petitioner has been drawing fixed salary

as fixed by the syndicate on 30.08.2022. In the meantime,

the Government by order dated 30.03.2016, has abolished

another post of Driver, leaving only one post. The

petitioner has requested for regularization of his services

but the same has been turned down by the Government.

4. Counter affidavit has also been filed by the

State stating therein that the petitioner had earlier

approached this Court in W.P.(C) No.6351 of 2019 with

prayer for direction to regularize his services against the

vacant post of driver. This Court, by order dated

29.03.2019 disposed of the writ application directing the

State Authorities to take a decision on the

recommendation made by the University on 15.03.2019.

Pursuant to such direction, the case of the petitioner was

examined in light of the direction issued by the Supreme

Court in the case of Umadevi (supra). It was found that

the petitioner was working against a sanctioned post but

had been engaged without undergoing any process of open

competitive selection. As such, his appointment is to be

considered irregular. Moreover, the petitioner having been

first engaged with effect from 09.09.1997, did not

complete the required length of service i.e. ten years as on

the date of passing of the judgment in Umadevi (supra)

i.e. 10.04.2006. As such, his claim for regularization was

rightly turned down.

5. Heard Mr. S.K. Rath, learned counsel for the

petitioner; Mr. G.K. Agarwal, learned Addl. Government

Advocate for the State; and Mr. S.N. Nayak, learned

counsel appearing for the University.

6. Mr. Rath would argue that the petitioner was

engaged against a validly sanctioned post with effect from

07.10.1997. He has continued to work as such till date

thereby rendering service for more than twenty seven

years to the University which itself proves that the work

rendered by the petitioner to the University is regular in

nature. With regard to the grounds cited by the State

while rejecting his claim for regularization, Mr. Rath has

referred to the judgment passed by a coordinate Bench of

this Court in the case of Biswanath Dhar v. State of

Odisha and others2, wherein the petitioner despite not

having completed ten years of service as on 10.04.2006,

was directed to be regularized taking note of the fact that

he had been continuously serving the establishment

against a sanctioned post.

7. Mr. Agarwal, learned State counsel, on the other

hand, forcefully argues that the ratio laid down in

Umadevi (supra) makes it clear that any irregular

appointment can be regularized, if at all, only if the person

concerned has rendered ten years continuous service as

2023 (II) ILR -CUT- 165

on the cut-off date i.e. 10.04.2006. In the instant case,

admittedly the petitioner had not rendered ten years of

service. Moreover, his present continuation of service is

because of an interim order passed by this Court, which

cannot enure to his benefit.

8. Mr. Nayak, learned counsel appearing for the

University would argue that admittedly the petitioner has

been working in the establishment since 1997 without any

break. Since only one post of Driver exists as the other

posts have been abolished by the Government, the

services of the petitioner are necessary to manage the

affairs of the establishment. Considering these facts, the

claim of the petitioner for regularization was duly

forwarded to the Government but the same having been

turned down, the University Authorities cannot regularize

the services of the petitioner on their own.

9. The facts of the case as narrated above are not

disputed. The petitioner was engaged against the vacancy

created by the sudden death of the third driver Bhaskar

Panda. He was engaged with effect from 07.10.1997. It is

not disputed that he was in employment as on

10.04.2006, though by such time he had rendered nine

years and five months of service. As has already been

stated by learned counsel appearing for the University,

there were three posts of Drivers, out of which two have

been abolished in the meantime. The petitioner was

rendering service as driver till as late as 18.03.2023, when

he was attached to the Central Library. In the impugned

order under Annexure-12, the claim of the petitioner has

been rejected on the ground that he was selected without

undergoing any process of open competitive selection and,

therefore, he is an irregular appointee. Further, he had not

completed ten years of continues service as on

10.04.2006.

10. It is true that certain principles of regularization

of service were laid down by the Supreme Court in

Umadevi (supra). Such directions were followed by the

Supreme Court in the case of State of Karnataka v. M.L.

Keshari3. It was highlighted in both the cases that any

public appointment has to be in terms of the

constitutional scheme but then taking note of the irregular

AIR 2010 SC 2587

appointments so made and continuance of such

appointees for long periods without break, the Supreme

Court also held that the State being a model employer,

should undertake a one-time exercise to regularize the

services of persons who had put in ten years of

continuance of service as on 10.04.2006 without availing

the protection of an interim order of Courts or tribunals.

Admittedly, such an exercise has not been done in the

instant case by the University Authorities. Moreover, the

petitioner's engagement was never terminated after

passing of the judgment in the case of Umadevi (supra).

In fact, he was allowed to continue and even draw the

driver's consolidated scale of pay equal to the driver's

basic with grade pay. It cannot, therefore, be held that

there is no requirement for the services of the petitioner.

The petitioner admittedly had completed nine years and

five months of service as on 10.04.2006. The question is,

can his claim for regularization be denied only on the

technical ground of not rendering the remaining seven

months of service required to complete the ten years

period by the cut-off date. Considering the fact that, the

petitioner even before approaching this Court and being

favoured with an interim order had already completed

more than ten years of service, this Court is of the

considered view that the aforementioned technicality

should not come on the way of regularizing his services. In

the case of Biswanath Dhar (supra) a Coordinate Bench

of this Court in a case involving similar facts held as

follows;-

"In my humble view, the purpose and intent of the decision rendered in the case of Umadevi (supra) by the Hon'ble Supreme Court has been misinterpreted and subsequent decisions of the Hon'ble Supreme Court on this issue have not been taken into account while considering the case of the petitioners for regularization and passing the impugned order under Annexure-12 in rejecting their claim for regularisation on the ground that they have not worked for more than ten years by 10.04.2006 i.e. the date of decision in the case of Umadevi (supra) and the post has not been sanctioned. The order is unreasonable, arbitrary and thus the conclusion can be corrected by a writ of certiorari. The University has employed the petitioners and continued them in service voluntarily and continuously for more than two decades by now and the petitioners possess the prescribed qualifications for the post of Junior Assistant and they have been selected undergoing selection process on the recommendation of Selection Committee which was also approved by Vice-Chancellor of the University and they are now working against sanctioned posts and have acquired vast experience. In such a scenario, non-regularisation of their services against the available sanctioned posts is unfair, unjustified and arbitrary. The employees are not milking cows in the diary farm of the University from which they are to be driven out on stopping producing milk."

11. For the forgoing reasons therefore, this Court is

of the view that the State being a model employer cannot

adopt a hyper technical approach to defeat the genuine

claim of a person. Moreover, the petitioner having

rendered twenty seven years of service by now cannot

simply be thrown out of employment at this distance of

time as it would certainly defeat his right to livelihood

guaranteed under Article 21 of the Constitution of India.

Therefore, taking an overall view of the matter, this Court

holds that the petitioner's services need to be regularized

without any further delay.

12. In the result, the writ application is allowed. The