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2014 DIGILAW 205 (ORI)

Gajendra Prasad Behera v. State of Orissa

2014-03-27

B.R.SARANGI

body2014
JUDGMENT : Dr. B.R.SARANGI, J. The Petitioner, who is working as a Tax Collector on DLR basis under N.A.C., Basudevpur, has filed this petition seeking for a direction for regularization of his service with effect from 18.1.1990, the date his juniors (Opp. Parties 6 & 7) have been regularized & for grant of other consequential service benefits. 2. The short fact of the case, in hand, is that the Petitioner being a Graduate in Arts, was appointed as Octroi Tax Collector on N.M.R basis from 14.1.1985 till 31.9.1995 & on 8.7.1997 onward8 under N.A.C., Basudevpur. From the date of his appointment, he is continuing in service by opening service book. In the year 1990 due to availability of regular vacancies, without preparing gradation list, the N.A.C., Basudevpur regularized the services of his juniors (Opp. Parties 6 & 7) on 18.1.1990. Apart from the same, the services of one Baikunth Barik, Octroi Peon has been regularized pursuant to the direction of this Court in OJC No. 1170 of 1990 disposed of on 15.3.1994. On 29.9.1993 & 31.3.1995 N.A.C., Basudevpur passed a resolution for regularization of the services of DLR & NMR employees but no steps have been taken so far as the Petitioner is concerned. The Opp. Parties 4 & 5 unanimously brought a resolution that the services of the employees in the post of Octror Tax Collector will be regularized & they will get equal pay for equal work with effect from 1.4.1995. The list of names was sent indicating the name of the Petitioner to the Executive Officer, Basudevpur N.A.C. from which it appears that the services of the persons appointed after the joining of the Petitioner have been regularized. Though the Petitioner joined on 8.7.1987 as Octroi Tax Collector, his case has been ignored without any rhyme & reason & by passing a resolution on 31.5.1995 the Opp. Party NO.5 reduced the wages of the DLR employees from RS.12.500 to Rs.5.000. Therefore, finding no other efficacious remedy, the Petitioner has filed this petition for regularization of his service from the date his juniors have been regularized & for grant of all other consequential service benefits admissible to him. 3. Though Opp. Party NO.5 entered appearance, no counter affidavit has been filed. 4. Mr. Therefore, finding no other efficacious remedy, the Petitioner has filed this petition for regularization of his service from the date his juniors have been regularized & for grant of all other consequential service benefits admissible to him. 3. Though Opp. Party NO.5 entered appearance, no counter affidavit has been filed. 4. Mr. Dillip Ray, Learned Counsel for the Petitioner urged that the action of the authorities is arbitrary & unreasonable & violative of Articles 14 & 16 of the Constitution of India in view of the fact that the Petitioner being the senior person is continuing on D.L.R. basis till date whereas the services of his juniors (Opp. Parties 6 to 8) have been regularized with effect from 18.1.1990 & they have been extended with the benefits from that date whereas the Petitioner has been discriminated though he is senior to the said Opp. Parties. He has relied upon the judgment of the Apex Court in Secretary, State of Karnataka & ors v. Umadevi & ors, (2006) 4 SCC 1 . 5. Mr. Sangram Das, Learned Addl. Govt. Advocate states that regularization of services is within the domain of the employer, namely, the Opp. Parties 4 & 5, N.A.C., Basudevpur & if financial condition so permits, the employer may regularizes the services of the Petitioner subject to the approval by the competent authority. 6. Mr. P.K. Rath, Learned Counsel appearing for Opp. Parties 6 to 8 states that the Opp. Parties 6 to 8 are the beneficiaries of the orders passed by the competent authority & their services have been regularized & no cause of action survives as against them. 7. Considering the contentions raised by the Learned Counsel for thE;1 parties & on perusing the records, it appears that the Petitioner is working as Octroi Tax Collector with effect from 8.7.1987 & his juniors, namely, Opp. Parties 6 to 8 though appointed later than the Petitioner, their services have been regularized & they have been extended with the benefit of regular scale of pay admissible to the post, thereby the Petitioner has been discriminated by the authorities for no fault of his own. It further appears that from the date of his appointment, the Petitioner is continuing in service & discharging the duties to the utmost satisfaction of the authorities concerned. It further appears that from the date of his appointment, the Petitioner is continuing in service & discharging the duties to the utmost satisfaction of the authorities concerned. As it appear from the staff position of N.A.C., Basudevpur, so far as the Petitioner is concerned, he joined in service on 8.7.1987 whereas the Opp. Parties 7 & 8 joined on 9.7.1987, but their services have been regularized pursuant to G.O,No. 7750 dated 3.3.1990 giving effect from 18.1.1990 & for no feasons, the Petitioner has been deprived of regularization of his services. So far as scale of pay is concerned, considering the fact that the Petitioner is continuing as DLR Octroi Tax Collector, he was being paid an amount of Rs.12,500, but by virtue of the resolution dated 31.10.2011 in Annexure-11, the same has been reduced to Rs.5,000, thereby the Petitioner has been affected grossly due to the arbitrary & unreasonable action of the Opp. Parties 4 & 5. 8. The Constitution Bench of the Apex Court in Umadevi (supra) in para 53 held as follows: "One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanppa & B.N. Nagarajan & referred to in para 15 above of duly qualified persons in duly sanctioned vacant posts might have been made & the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of tribunals. 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 & in the light of this Judgment. In that context, the Union of India, the State Governments & 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 & 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 musts be set in motion within six months from this date. The process musts 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 & regularizing or making permanent, those not duly appointed as per the constitutional scheme," 9. Considering the Judgment of the Apex Court in Umadevi (supra) & taking into consideration the guidelines formulated thereunder, the Petitioner having served for more than 10 years continuously as DLR Octroi Tax Collector, his service is to be regularized from the date his juniors were regularized, This Court in Shri Ashok Kumar Prusty v. State of Orissa & ors, 2013 (II) OLR 451 has also taken the similar view & stated that since the services of some of the juniors to the Petitioner have been regularized, the claim of the Petitioner in that case shoud be accepted & direction should be given for his regularization in service. 10. Taking into account the ratio decided in Umadevi (supra) & Ashok Kumar Prusty (supra) & applying the same to the present facts & circumstances of the case, this Court finds that the claim of the Petitioner is acceptable & therefore, issues the following directions: (i) The Petitioner be treated at par with his juniors like Opp. Parties 6 & 7, whose services have been regularized with effect from 18.1.1990 & his services be regularized from that date. (ii) After regularization of services, the Petitioner be granted all the financial benefits admissible to the post with all arrears as due & admissible, which should be paid to him within a period of three months from the date of communication of this order; 11. With the aforesaid observation & direction, the Writ Petition is allowed. In the circumstances, there shall be no order as to cost.