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2016 DIGILAW 806 (ORI)

State of Odisha v. Pramila Mishra

2016-09-14

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. This writ appeal has been filed under Article 4 of the Orissa High Court Order, 1948 read with Clause-10 of the Letters Patent constituting the High Court of Judicature at Patna assailing the order passed in W.P.(C) No.4863 of 2012 dtd.13.5.2014. 2. The brief facts of the case in short is that the writ petitioner, respondent herein was appointed as Junior Clerk / Typist in the office of opposite party no.3 vide order dtd.25.7.1994. The petitioner continued to work in the above post throughout practically having no break. The writ petitioner was given an appointment posted against a sanctioned post of Junior Clerk under the establishment of District Rural Development Authority (D.R.D.A.), Kendrapara as would be evident from the letter dtd.15.1.2005. The writ petitioner is continuing in service for the last 17 years being posted against a sanctioned post. However, proposal of regularization was sent before the Government for its consideration but no decision has been taken. Being aggrieved writ petition has been filed before this court. The order has been passed by the learned Single Judge of this court taking into consideration the judgments rendered by Hon’ble Apex Court in the case of Secretary, State of Karnataka Vrs. Uma Devi, (2006) 4 SCC 1 and State of Karnataka and others Vrs. M.L. Keshari and Others, 2010 (II) OLR (SC) 982 and placing reliance upon these judgments and also on the order passed by this court in W.P.(C) No.8340 of 2012 in the case of Manoj Kumar Parida has directed the opposite party to take note of the judgments governing the field and consider the representation of the petitioner under Annexure-4 dtd.16.9.2011 in the light of the said judgments within reasonable period, preferably within three months from the date of receipt of copy of the order. The State of Odisha has filed this appeal assailing the order passed by the learned Single Judge on the grounds that (i) The judgment passed by this court in the light of order passed in W.P.(C) No.8340 of 2012 within a period of three months from the date of receipt of copy of the order is not proper as because the same is in violation of principle of natural justice. (ii) There cannot be any consideration for regularization of service of the writ petitioner in view of the provision as contained in Regulation-9 of the Orissa District Rural Development Agency Employees (Recruitment and Conditions of Service) Regulations, 1989 (for short ‘Regulations 1989’) which governs the recruitment and allied things in D.R.D.As. which provides that no direct recruitment to the posts of Jr. Clerk-cum-Typist, Jr. Stenographer and Driver of D.R.D.A. shall be made from the date of adoption of the Regulations, 1989 on 7.12.1989. (iii) The Government of India in the Ministry of Agriculture and Department of Rural Development vide letter dtd.11.12.1989 directed the State Government to direct the D.R.D.As. of the State not to resort to temporary appointment of staffs in D.R.D.As. on daily wage basis. (iv) The writ petitioner being an outsider was engaged on daily wage basis by the then Addl. Project Officer, D.R.D.A., Kendrapara vide order dtd.25.7.1994 without any recruitment test and in absence of any sanction post for such engagement, hence the service of the petitioner is purely on contractual basis. The writ petitioner since has been appointed against a post which is not sanctioned, as such the ratio laid down by the Hon’ble Apex Court in the case of Uma Devi (supra) is not applicable. 3. The writ petitioner, respondent herein has appeared and contested the case by vehemently arguing out the case at length that this writ appeal is not worth to be considered as because the learned Single Judge while disposing of the writ petition has only directed the authority to consider the representation of the petitioner under Annexure-4 dtd.16.9.2011 in the light of the said judgment within period of three months from the date of receipt of copy of the order and as such the authority ought to have taken into consideration the grievance of the petitioner considering the fact that the writ petitioner is continuing on daily wage basis since the year 1994. He further submits that although on the date when the writ petitioner was taken in service, the post was not sanctioned, but by virtue of the order passed by the State Government in Panchayati Raj Department vide letter No. 2229 dtd.14.3.1995 the post of Jr. He further submits that although on the date when the writ petitioner was taken in service, the post was not sanctioned, but by virtue of the order passed by the State Government in Panchayati Raj Department vide letter No. 2229 dtd.14.3.1995 the post of Jr. Clerk for the first time was sanctioned and even if on the date of engagement the post was not sanctioned, but since the post has been sanctioned on 14.3.1995 and since then the petitioner has continued regularly for a period of ten years without any protection of any interim order passed by any court of law, hence the writ petitioner is coming under the parameter of ration laid down by the Hon’ble Apex Court at para 53 of Uma Devi’s case and as such the case of the petitioner is to be considered for regularization and taking into consideration this aspect of the matter the learned Single Judge has passed order for its consideration. It has been submitted that the Constitution Bench of Hon’ble Apex Court has directed the State Government to complete the exercise of regularization by way of one stroke within period of six months and regularize the services of such irregular appointees who are continuing against the sanctioned post continuously for a period of more than ten years without any support of interim order passed by any court of law, and as such since the petitioner is continuing till date and he has already completed twenty years of continuous service, hence his case is to be considered in the light of ratio laid down by Hon’ble Apex Court in the case of Uma Devi. In the light of these submissions it has been argued that this writ appeal is not worth to be considered and fit to be dismissed. 5. We have heard the parties at length and perused the documents available on record. The fact which is not in dispute in this case is that the petitioner was appointed ad Jr. Clerk on daily wage basis on 25.7.1994 as would be evident from Annexure-1 annexed to the writ petition, thereafter he was allowed to continue in service. Along with petitioner one Manoj Kumar Parida has also been appointed as Steno. The fact which is not in dispute in this case is that the petitioner was appointed ad Jr. Clerk on daily wage basis on 25.7.1994 as would be evident from Annexure-1 annexed to the writ petition, thereafter he was allowed to continue in service. Along with petitioner one Manoj Kumar Parida has also been appointed as Steno. It further transpires form order no.100 dtd.15.1.2005 annexure-2 annexed to the writ petition regarding information with respect to ad hoc employees working under the D.R.D.A., Kendrapara and from its perusal it is evident that the writ petitioner has been appointed on 44 days basis against the post of Jr. Clerk sanctioned vide Panchayati Raj Department letter No.2229 dtd.14.3.1995 while Sri Manoj Kumar Parida has been appointed on 44 days basis against the post of Steno, sanctioned vide above said letter of the Government. The details of period of engagement and type of engagement has also been furnished in that communication and from its perusal it is evident that the writ petitioner was continuing regularly from 25.7.1994 till 15.1.2005 and it has been submitted that as on date also he is continuing in the service. The detail of service of the petitioner as has been referred in Annexure-2 is being quoted herein below: Name Post against which engagement made Period of engagement Type of engagement Pramila Mishra Jr. Clerk From 25.7.1994 to 31.10.1994 DLR basis From 1.11.1994 to 6.3.96 Consolidated basis @ Rs.950/- per month From 7.3.96 to 13.8.99 44 days basis From 14.8.99 to 3.9.2000 Discontinued From 10.3.2000 to till date 44 days basis Likewise Manoj Kumar Parida who has been appointed as Jr. Steno is also continuing right from his initial engagement, i.e. from 3.6.1994 till 15.1.2005 and it has been informed that as on date he is discharging his duties. Steno is also continuing right from his initial engagement, i.e. from 3.6.1994 till 15.1.2005 and it has been informed that as on date he is discharging his duties. The writ petitioner claims his regularization but when refused, he approached this court by filing writ petition and the learned Single Judge of this court has been pleased to pass order taking into consideration the ratio laid down by Hon’ble Apex Court in the case of Uma Devi (supra) and M.L. Keshari’ case (supra) as also the judgment passed in W.P.(C) No.8340 of 2012 in the case of Manoj Kumar Parida which has been affirmed by Division Bench of this court vide Writ Appeal No.413 of 2014 decided on 15.5.2015 and thereby directed the authorities to take into consideration the judgments governing the field and consider the representation of the petitioner under Annexure-4 dtd.16.9.2011 in the light of judgment within period of three months from the date of receipt of copy of the order. The order passed by the learned Single Judge is under challenge on various grounds as has been referred herein above. The matter of irregular appointment was under consideration before the Constitution Bench of Hon’ble Apex Court in the case of Secretary, State of Karnatak Vrs. Uma Devi (3) and Others wherein their Lordships have been pleased to hold that the appointment made without following the due process or the rules relating to appointment did not confer any right on the appointees and Courts cannot direct their absorption / regularization for re-engagement nor make their services permanent and the High Court in exercise of jurisdiction under Article 226 of t he Constitution should not ordinarily issue direction for absorption / regularization or permanent continuance unless the recruitment had been done in regular manner in terms of the constitutional scheme and that the courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of the affairs of the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates. The Hon’ble Apex Court has further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. The Hon’ble Apex Court has further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. The Hon’ble Apex Court however made one exception to the above position and the same is extracted below : "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [ 1967 (1) SCR 128 ], R.N. Nanjundappa [ 1972 (1) SCC 409 ] and B.N. Nagarajan [ 1979 (4) SCC 507 ] 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. 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. ...." It is evident from the above that there is an exception to the general principles against ‘regularization’ enunciated in Umadevi’s case, 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. (ii) The appointment of such employee should not be illegal, even if irregular. 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 person 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. The case of Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. The further direction is that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006). The judgment rendered by Hon’ble Apex Court in the case of Umadev (3) has been taken note by Hon’ble Apex Court in the case of State of Karnataka Vrs. M.L. Kesari and others wherein their lordships have been pleased to analyze the term ‘one time measure’ which has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services. The Hon’ble Apex Court has also taken note of the fact that even after end of period of six months from the date of decision in Umadevi case, cases of several daily-wage/ad-hoc/casual employees were still pending before Courts. Consequently, several departments and instrumentalities did not commence the one-time regularization process. On the other hand, some Government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. Consequently, several departments and instrumentalities did not commence the one-time regularization process. On the other hand, some Government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of Para 53 of the decision in Umadevi, will not lose their right to be considered for regularization, merely because the one-time exercise was completed without considering their cases, or because the six month period mentioned in para 53 of Umadevi’s case has expired. The object behind the said direction at para-53 of Umadevi’s case is two-fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. In the judgment rendered by Hon’ble Apex Court in the case of Amarkant Rai Vrs. State of Bihar and Others, reported in (2015) 8 SCC 265 their Lordships have been pleased to direct for regularization of employees in view of para 53 of the judgment rendered by Hon’ble Apex Court in Umadevi’s case. In that case the point which were raised by the employer that the appointment of the appointee was made by the principal who is not the competent authority to make such appointment and is in violation of the Bihar State Universities Act and hence appointment is illegal appointment and in pursuance to the same process for termination was initiated only in the year 2001 and the employer was reinstated from 3.1.2002 and was removed from service only in the year 2007. The further point has been urged that the employees working up to 10.5.1986 shall be adjusted against the vacancies arising in future and since the employee was appointed in the year 1983 temporarily on the post that was not sanctioned by the State Government, hence the employee of that case cannot be regularized. On this backdrop the Hon’ble Apex Court in that case after taking into consideration the ratio laid down in Umadevi (3) case, M.L. Kesri’s case as also the judgment in the case of Nihal Singh Vrs. State of Punjab, (2013) 14 SCC 65 and further taking into consideration that the employee has served the University for more than 29 years on the post of night guard and he has served the college on daily wages, in the interest of justice, the authorities are directed to regularize the services retrospectively w.e.f. 3.1.2002. In the light of these legal proposition the case in hand is to be judged as to whether the learned Single Judge while passing the order is erred or not? 6. We found that learned Single Judge of this court has passed direction to consider the case of the writ petitioner in the light of the judgment in the case of Umadevi and M.L. Keshri and to take decision on the pending representation dtd.16.9.2011. There is no dispute about the fact that the writ petitioner was continuing since the year 1994, although according to the appellant on the date of engagement the post was not sanctioned, but it is admitted case that the post was sanctioned by the order passed by the competent authority w.e.f. 14.3.1995. The writ petitioner can be said to have not engaged against the sanctioned post on the date of initial engagement but while he was in service the post was sanctioned vide order dtd.14.3.1995 and against that sanctioned post he is continuing till date, as would be evident from Annexure-2 annexed to the writ petition. Hence the plea taken by the appellant herein that the petitioner’s initial engagement since was not against the sanctioned post, his case is not worth to be considered. Hence the plea taken by the appellant herein that the petitioner’s initial engagement since was not against the sanctioned post, his case is not worth to be considered. But we cannot accept this submission for the reason that even accepting the plea that as on the date of initial appointment the post was not sanctioned, but the admitted position is that the post against which the petitioner is discharging has been sanctioned w.e.f. 14.3.1995 and in that very post he is continuing as yet, meaning thereby, even excluding the period from 25.7.1994 to 14.3.1995 he has completed ten years of continuous service without any protection of interim orders passed by any court of law or tribunal, hence he has completed more than ten years of service as on the date of pronouncement of judgment by the Constitution Bench of Hon’ble Apex Court in the case of Umadevi, i.e. 10.4.2006. In view of these factual aspects the main ground taken regarding non-applicability of the judgment passed by Hon’ble Apex Court in the case of Umadevi (3) is of no substance and accordingly the same is rejected. Moreover the order passed by this court in W.P.(C) No.8340 of 2012 in connection with Manoj Kumar Parida and another has also been dealt in a writ appeal being Writ Appeal No.413 of 2014 and this court has dismissed the appeal taking into consideration the law laid down by Hon’ble Apex Court as discussed by us above. Moreover the order passed by this court in W.P.(C) No.8340 of 2012 in connection with Manoj Kumar Parida and another has also been dealt in a writ appeal being Writ Appeal No.413 of 2014 and this court has dismissed the appeal taking into consideration the law laid down by Hon’ble Apex Court as discussed by us above. The prayer made by the writ petitioner in the writ petition regarding consideration of his case in the light of the representation made by him on 16.9.2011 and since then no decision has been taken which is also not proper as because if any representation is being filed before any authority having competency to decide the grievance, it is the duty of the authority concerned to pass an appropriate order in accordance with law on the grievance of the petitioner, but the authorities without any rhyme and reason has kept the matter pending since 16.9.2011 and the learned Single Judge also after taking into consideration this aspect of the matter has passed the order to decide the claim of the writ petitioner in the light of the judgments passed by Hon’ble Apex Court in the cases of Umadevi (3) (supra) and M.L. Keshri (supra), hence in that view of the matter also, according to us, there is no infirmity in the direction passed by the learned Single Judge of this court in the writ petition. 7. Since the learned Single Judge has passed order to take a decision on the pending representation which is pending since 16.9.2011, as such the order / direction passed by the learned Single Judge warrants no interference by this court. Accordingly the writ appeal is dismissed being devoid of merit. The appellant is directed to take decision regarding the grievance of the writ petitioner as per the observation made by learned Single Judge of this court within six weeks from the date of receipt / production of the copy of this judgment. With these observations and directions and writ appeal is disposed of.