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2015 DIGILAW 669 (ORI)

Prasana Kumar Mishra v. State of Orissa

2015-12-01

B.R.SARANGI

body2015
JUDGMENT Dr. B.R. SARANGI, J. - The petitioner, who is presently working as Lecturer in Mathematics in the College of Engineering and Technology, Bhubaneswar has filed the application seeking for regularisation of his services and grant of consequential service and financial benefits retrospectively. 2.The factual matrix of the case in hand is that initially the petitioner was appointed as part time Lecturer on 06.11.1995 in the discipline of Mathematics in the College of Basic Science and Humanities. OUAT, Bhubaneswar with a remuneration of Rs.75/- per theory class. Rs.25 per period for practical class and Rs.30/- per trip (to & fro) as conveyance allowance. Pursuant to advertisement issued by the Registrar, Orissa University of Agriculture and Technology (in short hereinafter referred to as “OUAT”, Bhubaneswar for engagement of part-time Teachers under the University in different faculties/colleges on prescribed remuneration for the academic year 1999-2000 in which it was advertised that there were four vacancies in the discipline of Mathematics. The petitioner applied for the same and having been selected against the post of Lecturer in Mathematics, he was issued appointment letter on 06.11.11995. Such engagement of the petitioner was extended from time to time. When the petitioner was continuing as such on contractual basis, an advertisement was issued by the Director of College of Basic Science and Humanities on 05.01.2002 fixing the date of interview on 17.01.2002 for recruitment to the post of Lecturer in Mathematics to which the petitioner applied for. He appeared and stood first in the interview and consequently, he was appointed on contractual basis with consolidated remuneration @ Rs.5,500/- per month from the date of joining till the end of April, 2002.Such engagement was extended from time to time with the same terms and conditions. Again on 26.07.2002 another advertisement was issued by the Registrar, OUAT for engagement of contractual Teachers on a consolidated pay of Rs.8,000/-.The petitioner again appeared before the selection committee on 16.08.2002 and he was selected and appointed as Lecturer in Mathematics on consolidated amount of Rs.8000/- per month vide order dated 22.08.2002 under Annexure-9 issued by OUAT. Again on 26.07.2002 another advertisement was issued by the Registrar, OUAT for engagement of contractual Teachers on a consolidated pay of Rs.8,000/-.The petitioner again appeared before the selection committee on 16.08.2002 and he was selected and appointed as Lecturer in Mathematics on consolidated amount of Rs.8000/- per month vide order dated 22.08.2002 under Annexure-9 issued by OUAT. The establishment of Biju Patnaik University of Technology (in short hereinafter referred to as ‘BPUT’) was notified w.e.f. 09.07.2002 as per the Government in Industries Department notificfation dated 01.07.2002.The College of Engineering and Technology in which the petitioner was continuing as Lecturer in Mathematics became a constituent College of BPUT as per Section 37 (1) of BPUT Act and a request was made to Vice-Chancellor, BPUT to make necessary service conditions at par with the OUAT service conditions. Accordingly, the services of the petitioner, who was continuing on contractual basis in the College of Engineering and Technology were placed under the control of BPUT. Accordingly, the petitioner has been continuing as Lecturer in Mathematics from 23.08.2002 uninterruptedly without any break. In the meantime, he has completed 20 years of service. It is stated that since the petitioner is continuing in a sanctioned post of Lecturer in Mathematics, considering his length of service period, his services should be regularised. Hence, this application. 3.Mr.A.K. Mishra, learned Senior Counsel appearing for the petitioner submits that the petitioner having been selected and appointed by following due procedure of selection on contractual basis and the same has been extended from time to time and in the meantime he having completed 20 years of service, his services should be regularized against the sanctioned post of Lecturer in Mathematics in the College of Engineering and Technology, Bhubaneswar under the Biju Pattnaik University of Technology (in shsort hereinafter referred to ‘BPUT’). In order to substantiate his contention he has relied upon the judgments in Binan Kumar Mahanty & others v. Water & Land Management Institute (WALMI) & others, 2015 (I) OLR 347 , Akhilanath Sahoo v. Joint General Manager, OSFC & others,2015 (Supp-1) OLR 111, Narendra Kumar Ratha and others v. State of Orissa and others, 20 (I) OLR 197,Subash Chandra Nayak v. State of Orissa and others, 2015 (I) OLR 108 and Suvendu Mohanty v. State of Orissa and another (W.P. (C) No.8350/2012 and batch of cases decided on 28.07.2015). 4.Per contra, Mr. 4.Per contra, Mr. S. Palit, learned counsel appearing for the BPUT urges that the petitioner having been engaged on contractual basis as a Lecturer in Mathematics pursuant to advertisement issued it shall not confer right for regular appointment nor for further continuance under this faculty in any of the Colleges of BPUT. He furether urges that BPUT has been established under5 BPUT Act notified on 09.07.2002 as per the Govt. in Industries Department notification dated 01.07.2002. As per Section 37 (1) of BPUT Act, the College of Engineering and Technology became th4e constituent College of BPUT and the terms and conditions of the employees were the same as in Annexure-11.The contractual engagement of the petitioner has been extended from time to time with the same conditions. He urges that the contractual engagement does not confer any right for regular appointment nor for further continuance under the faculty of any of the colleges of BPUT and no claim for any service benefit for this contractual engagement shall be admissible. It is further urged that the petitioner though applied for regular appointment under the BPUT pursuant to which he was called for to appear in the interview by letter dated 07.10.2005, he did not appear. Pursuant to advertisement under Annedure-8, he attended the interview on 15.12.2008 and 16.12.2008 for the vacancy of a single post. The petitioner having secured 3rd position in the merit list and since the list was valid for a period of one year as per the provision of Section 24 (8) of the BPUT Act, 2002, he could not have been considered for such regular appointment. It is further submitted that the First Statute of the BPUT 2006 has been notified on 29.12.2006. Section 31 of Chapter-IV of the said First Statute deals with the appointment of teachers and it is clearly mentioned regarding the selection procedure by the selection committee. The petitioner though had once appeared before the Selection Committee in the year 2008 and remained in 3rd position in the merit list against the vacancy of a single post, he cannot claim for regularization of his services. The petitioner though had once appeared before the Selection Committee in the year 2008 and remained in 3rd position in the merit list against the vacancy of a single post, he cannot claim for regularization of his services. He has relied upon Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1 , State of Orissa v. Chandrasekhar Mishra, (2002) SCC 583, Satish Chandra Anand v. Union of India, AIR 1953 SC 250 , Director, Institute of Management Development v. Pushpa Srivastava, AIR 1992 SC 2070 , Salkhan Murmu v. Union of India, 2010 (Suppl.I) OLR 687 and University of Rajasthan v. Premalata Agrawal, (2013) 3 SCC 705 . 5.On the basis of the facts pleaded above, the admitted fact is that the petitioner has been engaged on contractual basis having been duly selected by following due procedure of selection pursuant to advertisement issued by OUAT and continuing in service by getting an extension from time to time. Not only once, four times advertisement was issued by the OUAT and the petitioner appeared such interviews and having qualified he has been issued engagement order from time to time by OUAT as a Lecturer in Mathematics. The petitioner has filed an additional affidavit on 14.10.12015 annexing the information received under R.T.I. Act, 2005 in Annexure-49 wherein question no.7 and answer to the said question is stated as follows: “Question No.7–In the above dept. The contractual appointment against the clear vacant post sanction post or not at that time August, 2002. Answer – As there was restriction for filling up of the vacancies in regular manner by the Finance Department as indicated at Para-5, contractual appointment was made against the sanctioned vacant posts”. 6.In Annexure-E to the said additional affidavit it is stated that as against two sanctioned posts of Lecturer in Mathematics, one post is vacant. Therefore, the petitioner is continuing in other sanctioned post. 6.In Annexure-E to the said additional affidavit it is stated that as against two sanctioned posts of Lecturer in Mathematics, one post is vacant. Therefore, the petitioner is continuing in other sanctioned post. Since the petitioner is continuing as lecturer against the sanctioned post on contractual basis by following due procedure of selection, he could not have been denied regularization by the authority inasmuch as the reasons for allowing the petitioner to continue as contractual engagement is well founded from the answer given in question No.7 pursuant to Annexure-49 wherein it has been stated that due to restriction of filling up of the vacancies in regular manner to the Finance Department, contractual appointment was made by the OUAT against the sanctioned vacant posts. This clearly indicates that at no point of time the fault is with the petitioner for such contractual engagement made by the authority. If the reason given for such employment is financial crunch, in that case the petitioner could not have been denied the regularization of services. Admittedly the petitioner is continuing in second post as Lecturer in Mathematics on contractual basis for a quite long time. This clearly indicates that there is need of his continuance of service against the vacancy as available and after exploiting for so many years and after the petitioner became age barred he cannot be said that he should come through the process of selection by following recruitment rules governing the field. After creation of BPUT, College of engineering and Technology has been placed under the control of the said University and as such the service of the petitioner was also placed under the BPUT. 7.In Binan Kumar Mohanty & others (supra) referring to Kapila Hingorani v. State of Bihar (2003) 6 SCC 1 the Apex Court held that the Government company/public sector undertakings being “States) would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution of India. Therefore, if the petitioner has rendered service for around 20 years, keeping in view the ratio decided in Kapila Hingorani (supra), this Court issues direction to the opposite parties to mitigate the hardship of the employees. Financial stringency is no ground for not issuing requisite directions when there is violation of fundamental rights of the petitioner. Therefore, if the petitioner has rendered service for around 20 years, keeping in view the ratio decided in Kapila Hingorani (supra), this Court issues direction to the opposite parties to mitigate the hardship of the employees. Financial stringency is no ground for not issuing requisite directions when there is violation of fundamental rights of the petitioner. Allowing a person to continue for a quite long period of 20 years of service and exploiting him on the pretext of financial crunch in violation of Article 21 of the Constitution of India is sheer arbitrariness of the authority which is highly condemnable. 8.In Narendra Kumar Ratha and others (supra) this Court has taken into consideration the object of Article 16 of the Constitution of India to create a constitutional right to equality of opportunity and employment in public offices. The word ‘employment of appointment’ cover not merely the initial appointment, but also other attributes like salary, increments, revision of pay, promotion, gratuity, leave pension and age of superannuation etc. Appointment to any post under the State can only be made in accordance with provisions and procedure envisage under the law and guidelines governing the field. 9.In Prabodh Verma and others v. State of U.P. and others, (1984) 4 SCC 251 , the apex Court held that Article 16 is an instance of the application of the general rule of equality laid down in Article 14, with special reference to the opportunity for appointment and employment under the Government. 10.Similar view has also been taken by the apex Court in Km. Neelima Mishra v. Harinder Kaur Paintal and others, (1990) 2 SCC 746 . AIR 1990 SC 1402 and E.P. Royappa v. State of Tamilnadu and another, (1974) 4 SCC 3 . Clause-1 of Article 16 guarantees equality of opportunity for all citizens in the matters of employment or appointment to any office under the State. The very concept of equality implies recourse to valid classification for preference in favour of the disadvantaged classes of citizens to improve their conditions so as to enable them to raise themselves to positions of equality with the more fortunate classes of citizens. This view has been taken note of by the apex Court in the case of Indra Sawhney and others v. Union of India and others, 1992 Supp. (3) SCC 217 : AIR 1993 SC 477 . This view has been taken note of by the apex Court in the case of Indra Sawhney and others v. Union of India and others, 1992 Supp. (3) SCC 217 : AIR 1993 SC 477 . 11.In view of such position, if the petitioner has been allowed to continue for a quite long period on contractual basis due to financial crunch, he cannot be thrown out stating that he has not been recruited as per the provisions of BPUT Act and Rules framed thereunder. Therefore, the petitioner’s case should be taken into consideration for regularization of his service. 12.In Suvendu Mohanty (supra) this Court has taken into consideration the judgment of the apex Court in Secretary, State of Karnataka v. Umadevi, 2006 (4) SCC 1 : AIR 2006 SC 1806 wherein the apex Court held that the appointments made against temporary or ad-hoc basis are not to be regularized. In paragraph 53 of the said judgment, it is provided that irregular appointment of duly qualified persons against sanctioned posts, who have worked for 10 years or more can be considered on merits and steps to be taken as one time measure to regularize them. In Paragraph 53 of the said judgment, the apex Court has held as follows : “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanapp, 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 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 and in the light of this judgment. 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 regularise as a non-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. 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 regularising or making permanent, those not duly appointed as per the constitutional scheme.” 13.The object behind the exception carved out in this case was to permit regularization of such appointments, when are irregular but not illegal, and to ensure security of employment of those persons who served the State Government and their instrumentalities for more than ten years. Similar question came up for consideration before the apex Court in Civlil Appeal No.2835 of 2015 (arising out of SLP (Civil) No.20169 of 2013 disposed of on 13.3.2015. In paragraphs 12 and 13, the apex Court has held as follows : “12.Elaborating upon the principles laid down in Umadevi’s case (supra) and explaining the difference between irregular and illegal appointments in State of Karnataka & Ors. V. M.L. Kesari & Ors., (2010) 9 SCC 247 , this Court held as under : “7. It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi (3) if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any Court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications the appointments will be considered to be illegal. But where the persons employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. 13. Applying the ratio of Umadevi’s case, the Court in Nihal Singh & Ors. V. State of Punjab & Ors., (2013) 14 SCC 65 directed the absorption of the Special Police Officers in the services of the State of Punjab holding as under : “35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State. 36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is-the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks. 14.The reference made to Akhilanath Sahoo” (supra) and Subash Chandra Nayak (supra) has no application to the present context as the same have been decided on the factual matrix of the said cases. 15. Mr. S. Palit, learned counsel for BPUT referring to paragraph -47 of Secretary, State of Karnatak (supra) submits that when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection. The reference made in paragraph-47 in Secretary, State of Karnatak (supra) clearly specified that engagement if not based on selection as recognized by the rules in that case no regularization can be claimed and as such theory of legitimate expectation may not apply. Here the case is different than that of the law enunciated in paragraphh-47 on the basis of the factual matrix available on record. The petitioner has been selected pursuant to advertisement issued by the authority and having been selected the engagement order has been issued in his favour and same has been extended from time to time allowing him to continue against the sanctioned post, he has not been given regular appointment on the plea of financial crunch. The petitioner has been selected pursuant to advertisement issued by the authority and having been selected the engagement order has been issued in his favour and same has been extended from time to time allowing him to continue against the sanctioned post, he has not been given regular appointment on the plea of financial crunch. That itself cannot deprive him of regularization of his services if he is otherwise eligible in accordance with law. 16.Reliance placed on State of Orissa v. Chandrasekhar Mishra has no application in the present context in view of the fact that in that case the service of respondent-Chandrasekhar Mishra who was engaged on contractual basis had been terminated with effect from 31.01.1998 and he had not approached the Tribunal within a period of limitation. But the Tribunal entertained his application after limitation period and subsequently directed his regular appointment after his services were terminated on expiry of the contract. In that context, the apex Court has held that when the respondent was only a contractual employee, there could be no question of his being granted the relief of being directed to be appointed as a regular employee. Therefore, the factual matrix of the said case is absolutely distinguishable from that of the present case and the said judgment is not applicable to the present case. 17.In Satish Chandra Anand (supra) the fact of the case is that the petitioner is a civil servant, who had been engaged on the basis of special contract for a certain term and on the expiry of the term, was re-appointed by a further contract on a temporary basis. In accordance with the Government rules, which formed part of the contract, he was discharged from service after notice. He filed a petition under Article-32 (1) seeking redress for breach of his fundamental rights under Article 14 and 16 (1). Taking into account the factual matrix of this case and applying the law laid down therein to the present case, it cannot sustain in the eye of law. 18.In Director, Institute of Management Development (supra) the apex Court held that where the appointment is purely on ad hoc basis and is contractual and by efflux of time, the appointment comes to an end, the person holding such post can have no right to continue in the post. 18.In Director, Institute of Management Development (supra) the apex Court held that where the appointment is purely on ad hoc basis and is contractual and by efflux of time, the appointment comes to an end, the person holding such post can have no right to continue in the post. This is so even if the person is continued from time to time on ‘ad hoc’ basis for more than a year. He cannot claim regularization in service on the basis that he was appointed on ad hoc basis for more than a year. The factual matrix of this case is different from the case of the petitioner in the present case who has been appointed on contractual basis by following due procedure of selection on terms and conditions mentioned therein and such contractual employment has been given because of the financial crunch of the Government against the sanctioned vacancy. If the petitioner is continuing against the sanctioned vacancy by following due procedure of selection and due to financial difficulties if no regular appointment could have been made, in that case the petitioner’s claim for regularisation can be taken into consideration by the employer. Therefore, the fact of the case of Director, Institute of Management Development (supra) is totally different from that of the present case. 19.Reference is also made to Salkhan Murmu (supra) wherein the appointment to the tenure post has been extended from time to time. In that case the Court has held that the petitioner cannot claim anything over and above the terms incorporated in the letter of appointment and has no right to continue in service after expiry of the tenure of the post. The said principle is not applicable to the present case as the post itself is a sanctioned vacant post against which the petitioner is continuing for years together in view of the fact of financial crunch of the Government to give regular appointment. In that case, the employer should take into consideration the length of service rendered by the petitioner otherwise it will affect the livelihood of the petitioner which violates Article 21 of the Constitution of India. 20.Similarly the reference made to University of Rajasthan (supra) has no application to the present context. In that case, the employer should take into consideration the length of service rendered by the petitioner otherwise it will affect the livelihood of the petitioner which violates Article 21 of the Constitution of India. 20.Similarly the reference made to University of Rajasthan (supra) has no application to the present context. 21.No doubt after establishment of BPUT, the institutions under control of BPUT have to fill up the vacancies in accordance with the provisions of BPUT Act and Rules framed thereunder. If the institution has been taken over along with its staffs, in that case BPUT has to take necessary steps for regularization of the services instead of terminating them though the employees have not been appointed under the provisions of BPUT Act and Rules. 22.In that view of the matter, this Court is of the considered view that the opposite parties should absorb the petitioner on regular basis against sanctioned vacant post taking into account the length of service rendered by him as a Lecturer in Mathematics in which he is continuing without insisting him to undergo the rigors of the selection procedure laid down under the BPUT Act and Rules framed thereunder reason being in the meantime the petitioner has become over aged and he has also been exploited for 20 years for no reasons though he has qualified in all the interviews conducted by the authority for his engagement on contractual basis. The petitioner being not a backdoor entrant to the service, the opposite party-University should extend all consequential benefits as due and admissible in accordance with law as expeditiously as possible preferably within a period of four months. The writ petition is allowed. No order to cost. Petition allowed.