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2017 DIGILAW 207 (ORI)

Prakasha Kumar Mohanty v. State of Odisha

2017-02-28

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT S.N.PRASAD, J. - This writ petition has been filed under Articles 226 and 227 of the Constitution of India for quashing the order dated 21.8.2012 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.247 (C) of 2001 whereby and where under claim of regularisation of the petitioner in service has been rejected with an observation to participate in the open recruitment test as an open candidate with due age relaxation. 2. Brief facts of the case is that the petitioner has been appointed as an adhoc employee as Cook-cum-Attendant on consolidated play of Rs.550/- per month by the order of the District Welfare Officer, Jajpur, opposite party No.3 vide order dated 15.12.1994 and posted in Raijhar Residential Sevashram. Subsequently he was appointed temporarily in regular pay scale of Rs.2550/3200 till the post is filed up by way of regular process of recruitment and posted to Chingudipal Ashram School against the existing vacancy vide Memo No.27 dated 6.1.2000. He was relieved from his duties w.e.f. 31.3.2000 but again was appointed vide order dated 6.6.2000 and thereafter has been engaged as daily wages employee in Chingudipal Ashram School. The petitioner approached the Orissa Administrative Tribunal for regularisation of his service in view of the fact that he is continuously discharging his duty against a sanctioned post for last 18 yearsl. The Tribunal has rejected claim of the petitioner on the ground that he has been appointed without following due procedure of recruitment but, however, he has been allowed to participate in the recruitment test by giving him age relaxation, being aggrieved, this writ petition has been filed. 3. We have heard learned Counsel for the parties, perused the materials available on record including the submissions made by the State-opposite parties in the Counter Affidavit filed before the Orissa Administrative Tribunal. 4. The stand taken by the opposite party-State before the Tribunal is that the petitioner is continuing till today on daily wages against regular post in the specified pay scale as Cook-cum-Attendant and is still in service. However, a separate Counter Affidavit has been filed before this Court where total contrary stand has been taken regarding status of the petitioner stating that the post against which the petitioner working is not a sanctioned post. However, a separate Counter Affidavit has been filed before this Court where total contrary stand has been taken regarding status of the petitioner stating that the post against which the petitioner working is not a sanctioned post. We have perused the order passed by the Orissa Administrative Tribunal and as such the material available before the Tribunal is supposed to be scrutinised by us and accordingly we have proceeded by putting reliance upon the pleadings of the parties before the Tribunal and not relied upon the averments made by the opposite party-State in the Counter Affidavit filed before this Court for the reason that it is a writ of certiorari and parties cannot improve their case before higher forum. 5. From the pleadings, admitted position is that the petitioner is continuing in service for about 18 years against a regular post. Matter related to regularisation in service fell for consideration in the case of Secretary, State of Karnataka and others vrs. Umadevi (3) and others reported in (2006) 4 SCC 1 wherein their Lordship at paragraph-53 has laid down the proposition which is being reproduced herein below: 53, “One aspect needs to be clarified. There may be cases where irregular appoints (not illegal appointments) as explained in S.V. Narayanappa, (1967) 1 SCR 128 : AIR 1967 SC 1071 , R.N. Nanjundappa, (1972) 1 SCC 409 : (1972) 2 SCR 799 and B.N. Nagarajan, (1979) 4 SCC 507 and referred 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 regularisation 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 regularisation 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 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 case 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 regularisation, 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. The ratio laid down in the case of Secretary, State of Karnataka and others vrs. Umadevi (3) and others (supra) has been reiterated in the case of State of Karnataka and others vrs. M.L. Kesari and others reported in (2010) 9 SCC 247 . 6. We, after going through the authoritative pronouncement of the judgments rendered by the Hon’ble Apex Court as referred to above, are of the considered view that the process of backdoor appointment has been deprecated by the Hon’ble Apex Court but exception has been carved out at para-53 of the judgment rendered in the case of Secretary, State of Karnataka and others vrs. Umadevi (3) and others (supra) by directing the authorities to complete the process of regularisation within six months from the date of pronouncement of the judgment if they are in requirement of service of employee and to complete the exercise within six months by one time measure, same thing has been reiterated by the Hon’ble Apex Court in the case of State of Karnataka and others vrs. M.L. Kesari and others (supra). M.L. Kesari and others (supra). We have perused the ratio laid down by the Hon’ble Apex Court that cases of such employees who are rendering their service for more than 10 years without having any support from interim order from any Court of law in sanctioned posts, then their cases is to be considered for regularisation. 7. We have examined the facts of this case in the light of the proposition laid down by the Hon’ble Apex Court and considering the fact that the petitioner is continuing in service against regular post for last 18 years, as has been admitted by the State in Counter Affidavit filed before the Tribunal, without having any support of interim order passed by Court of law and as such his case is to be considered in the light of the observations made by the Hon’ble Apex Court at para-53 of Umadevi case as referred to above. We, after perusing the order impugned, have found that the judgment rendered by the Hon’ble Apex Court in Umadevi case has been referred, but without appreciating it the petitioner has been asked to go for regular recruitment process, hence the Tribunal has not appreciated the entire aspects of the matter in right perspective, hence the order passed by the Tribunal is not sustainable in the eye of law, as a result, the same is set aside. 8. Accordingly, the matter is remitted back to the competent authority to take decision on the grievance of the petitioner in the light of the observations at para-53 of the Umadevi Case within eight weeks from the date of receipt of copy of this order. It is made clear that the authorities will take its independent decision regarding factual aspects. The writ petition is accordingly disposed of. Petition disposed of.