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2009 DIGILAW 500 (ORI)

MOHAMMED AFSAR v. STATE OF ORISSA

2009-07-10

B.N.MAHAPATRA, L.MOHAPATRA

body2009
JUDGMENT : L. Mohapatra, J. - Both the writ applications have been filed against the judgment and order dated 18.6.2007 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No. 732 of 2007. W.P.(C) No. 2244 of 2008 has been filed by the Applicants whereas W.P.(C) No. 10922 of 2008 has been filed by the State authorities. 2. The three Applicants before the Tribunal had earlier filed three Original Applications vide O.A. No. 691(C) of 2003, O.A. No. 692(C) of 2003 and O.A. No. 1305(C) of 2001 seeking regularization of their services from different dates and claiming all other consequential service and financial benefits and prayer was also made for their placement in the gradation list. Though all the three Applicants were appointed on different dates, they had continued for fairly long period of time which was found to be more than two decades. Considering their length of services, the Tribunal disposed of all the above three Original Applications by order dated 23.3.2006 directing the State authorities to take cognizance of the communication in Original Application No. 691 of 2003 and keeping in view the requirement of work and availability of posts as well as directions of various courts in regard to requirement of regularization of long term casual employees and take an appropriate decision within a period of four months. In pursuance of the said order, the State authority in the Department of Revenue and Disaster Management considered the case of the three Applicants and passed the order in Annexure-13 to W.P.(C) No. 2244 of 2008. It is stated in the said order dated 1.12.2006 that as per F.D.O.M. No. 10954/F dated 14.3.2001, Circular No. 32916/F dated 8.8.1997 imposing austerity measures and Labour and Employment Circular No. 12394/LE dated 7.10.2002 banning ad hoc appointment, it was not possible on the part of the department to accede the request of the Applicants for regularization of their services as well as for further continuance in ad hoc appointment on 44 days basis. The claim of the Applicants having been turned down in the said order dated 1.12.2006, the Applicants in a joint application approached the Tribunal again challenging the said order in the present application vide O.A. No. 732 of 2007. The claim of the Applicants having been turned down in the said order dated 1.12.2006, the Applicants in a joint application approached the Tribunal again challenging the said order in the present application vide O.A. No. 732 of 2007. While considering the claim of the Applicants in the present Original Applications, the Tribunal referred to decisions of the Apex Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, as well as in the case of Mineral Exploration Corporation Employees' Union v. Mineral Exploration Corporation Ltd. and Anr. reported in 2006 SCC 1318 and directed reconsideration of the case of the Applicants in the light of the aforesaid two judgments of the Supreme Court. 3. Learned Counsel for the Applicants assails the impugned order on the ground that even in the case of Secretary, State of Karnatake and Ors. v. Uma Devi and Ors. (Supra), the Apex Court had observed that those casual employees, who have put in more than 10 years of services and whose appointments were irregular, should be considered for regularization. Undisputedly, all the three Applicants having put in service as Casual Labours for more than two decades, the Tribunal instead of directing reconsideration of the case of the Applicants, should have allowed their prayer directing regularization of their service. Learned Counsel for the State also assails the impugned order on the ground that in the earlier three Original Applications filed by the Applicants, the Tribunal had directed for consideration of their cases for regularization and the same having been turned down for the reasons mentioned in order dated 1.12.2006, there was no further jurisdiction left with the Tribunal to entertain the second original application for the self-same relief. 4. Undisputedly, all the three Applicants had approached the Tribunal earlier in three individual Original Applications seeking for regularization of their services. All the three Original Applications were disposed of in a common order directing the employer to consider their cases for regularization. In pursuance of such direction, the employer considered the case of the Applicants and rejected their claim for regularization by order dated 1.12.2006. The order dated 1.12.2006 gave rise a fresh cause of action and, therefore, the Tribunal was justified in entertaining the present Original Application wherein the Applicants challenged the order dated 1.12.2006 and also prayed for regularization. In pursuance of such direction, the employer considered the case of the Applicants and rejected their claim for regularization by order dated 1.12.2006. The order dated 1.12.2006 gave rise a fresh cause of action and, therefore, the Tribunal was justified in entertaining the present Original Application wherein the Applicants challenged the order dated 1.12.2006 and also prayed for regularization. We, therefore do not find any force in the contention of the learned Counsel for the State with regard to maintainability of the Second Original Application. So far as contention of the learned Counsel for the Applicants that on the basis of the decision of the Apex Court in the case of Secretary, State of Karnatake and Ors. v. Uma Devi and Ors. (Supra), the Tribunal should have set aside the order dated 1.12.2006 passed by the Department of Revenue and Disaster Management Departmental and directed for regularization. Reliance is placed on the observation made by the Apex Court in the aforesaid case in paragraph-53 of the judgment. The said observation of the Apex Court is quoted below: One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunal. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme. 5. On a reading of the said paragraph, it appears that the Apex Court considered the case of irregular appointees, who were otherwise qualified and worked against the sanctioned vacant posts and worked as such for more than ten years without intervention of orders of the courts or of Tribunals. The question of regularization of services of such employees may have to be considered on merits in the light of the principles settled by the Supreme Court in the decisions referred to in the said paragraph. If the entire judgment is read, it will be found that the Apex Court held that merely because an employee had continued under cover of an order of the court under litigious employment or had continued 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. The observation made in paragraph-53 of the judgment is only an exception. The Court in the judgment also explained what is irregular appointment and/or illegal appointment. The said judgment again came for consideration before the Apex Court in the case of Mineral Exploration Corporation Employees' Union v. Mineral Exploration Corporation Ltd., and Anr. (Supra). The Court considering the case of some temporary/casual employees, who were doing work of permanent nature, the work which used to be done by the skilled employees but were continued as temporary/contingent workmen for long duration of time and also considering the fact that the Corporation was having permanent nature of work and had sufficient regular work and was also in a satisfactory financial condition, observed that it will be proper to regularize the services of such workmen, who had worked for several years. However, the workmen in order to succeed will have to substantiate their claims as per established principles of law. 6. However, the workmen in order to succeed will have to substantiate their claims as per established principles of law. 6. On reading of both the decisions, it is clear that in order to claim regularization/permanency in services, the employee has to prove that he had been recruited through regular recruitment process and his appointment is not illegal. Apart from the above, the employee is required to prove that he is working against sanctioned vacancies which are on permanent nature and without intervention of the court or Tribunal. Since all these factors are required to be examined before regularizing the services of the Applicants and such examination had not been done in order dated 1.12.2006 while turning down the claim of the Applicants, we are of the view that the Tribunal was justified in directing the employer i.e. the Department of Revenue and Disaster Management, Orissa to reconsider the case of the Applicants in the light of the aforesaid two decisions. 7. For the reasons stated above, we do not find any merit in both the writ applications and, accordingly, they are dismissed. Final Result : Dismissed