Research › Search › Judgment

Orissa High Court · body

2019 DIGILAW 363 (ORI)

Ramesh Chandra Behera v. State of Orissa

2019-04-26

B.R.SARANGI

body2019
JUDGMENT : B.R. Sarangi, J. 1. The petitioners, who are working as drivers under the Balasore Municipality, have filed this application to quash order dated 23.08.2013 in Annexure-7, wherein the Government of odisha in Housing & Urban Development Department has directed has directed that the petitioners may be allowed to face the selection committee in the posts they are interested and after observing the recruitment procedure the selected candidates may be regularly posted obtaining prior approval of the Finance Department/Housing.& Urban & Development Department compliance of the order dated 17.07.2013 passed in W.P.(C) No. 13820 of 2013 (Ramesh Chandra Behera & others v. State & others) where direction was given to consider the case of the petitioners for regularization. 2. Factual matrix of the case, In hand, is that the petitioners, being engaged as drivers on NMR (Nominal Muster Roll) basis with effect from 03.02.1997 on a consolidated salary of Rs. 5200/- per month, have been discharging their duties assigned to them from the date of their engagement. Due to non regularization of their post, had approached this Court by filing W.P.(C) No. 13820 of 2013, which was disposed of on 17.07.2013 with the direction to consider their case for regularization. In compliance of the said order, the opposite parties No. 1 and 2 directed Balasore Municipal Council to observe procedure for direct recruitment and allow, the petitioners to face the selection committee. Needless to mention that opposite parties No. 1 and 2, vide office order No. 24822/HUD dated 05.08.2013, regularized the services of 336 numbers of DLR/NMR workers working against existing vacancies under different Municipal Councils/U.L.Bs., whereas the petitioners have been discriminated. Hence this application. 3. Mr. B.P. Das, learned counsel appearing for the petitioners contended that since the petitioners have been discharging duties with effect from 03.02.1997 and in the meantime more than 20 years have elapsed, even though they are running from pillar to post, their services have not been regularized. Hence this application. 3. Mr. B.P. Das, learned counsel appearing for the petitioners contended that since the petitioners have been discharging duties with effect from 03.02.1997 and in the meantime more than 20 years have elapsed, even though they are running from pillar to post, their services have not been regularized. Finding no way out, the petitioners approached this Court by filing W.P.(C) No. 13820 of 2013, which was disposed of on 17.07.2013 directing the opposite parties to consider the case of the petitioners for regularization, but instead of regularizing the services of the petitioners now direction has been given by opposite parties No. 1 and 2 to Balasore Municipal Council to observe the procedure for direct recruitment and allow the petitioners to face the selection committee, which is arbitrary, unreasonable and contrary to the provisions of law. It is further contended that opposite parties No. 1 and 2, by office order dated 05.08.2013, have regularized services of 336 numbers of DLR/NMR workers working against existing vacancies under different Municipal Councils/U.L.Bs., whereas petitioners have been discriminated. Therefore, it is contended that direction may be given to regularize the services of the petitioners following the ratio decided in Secretary, State of Karnatak v. Umadevi, AIR 2006 SC 1806 ; State of Karnatak v. M.L. Keshan, AIR 2010 SC 2587 ; Nihal Singh v. State of Punjab, AIR 2013 SC 3547 ; and Amarkant Rai v. State of Bihar and others, (2015) 8 SCC 265 . 4. Mr. B. Seriapati, learned Addl. Government Advocate appearing for the State opposite parties No. 1 and 2, on the other hand, contended that the petitioners have sought for regularization of their service's in the posts of driver, which requires to be filled up by way of direct recruitment observing recruitment procedure with concurrence of the Finance Department. Therefore, communication dated 07.06.2013 issued by Commissioner-cum-Director Municipal Administration (D.M.A.), in Housing & Urban Development Department directing the Executive Officer, Balasore Municipality to fill up the posts, 'which are held by the petitioners, by observing recruitment procedure and with concurrence of the Finance Department, cannot be faulted with. As such, by passing the impugned order dated 23.08.2013 the opposite parties No. 1 and 2 have not committed any illegality or irregularity so as to warrant interference of this Court at this stage. 5. As such, by passing the impugned order dated 23.08.2013 the opposite parties No. 1 and 2 have not committed any illegality or irregularity so as to warrant interference of this Court at this stage. 5. Learned counsel for opposite party No. 3 admitted the fact that the petitioners were continuing temporarily as ambulance driver on daily wage basis during the year 1995. Since 03.02.1997, they were engaged as NMR (Nominal Muster Roll) employee on consolidated pay against the vacant posts and such engagement was made by the Municipality under Section 73 of the Orissa Municipal Act, 1950, as they were non-Local Fund Service (LFS) cadre posts and during their initial engagement no such recruitment procedure or the O.R.V. Act was followed nor government approval was obtained to do so. Therefore, the Government in Housing and Urban Development Department passed an order on 23.08.2013 directing the Executive Officer, Balasore Municipality that the petitioners may be allowed to face the selection committee along with other applicants and after observing the recruitment procedure the selected candidates can be regularly posted obtaining prior approval of the Finance Department/Housing & Urban Development Department. Pursuant thereto, the Municipality has taken steps for regularization of services of the petitioners since it has not violated the Government circular dated 15.05.1999 issued in conformity with the provisions under Section 73-B of the Orissa Municipal (Amendment) Act, 1997, and as such there was no bar for regularization of services of the petitioners as had been stipulated therein. Therefore, contended that the services of the petitioners should be regularized, instead of directing them to face the selection procedure, taking into consideration the period of long service rendered by them in Balasore Municipality. 6. This Court heard Mr. B.P. Das, learned counsel for the petitioners; Mr. B. Senapati, learned Addl. Government Advocate appearing for the State opposite parties No. 1 and 2; and Mr. S. Jena, learned counsel for opposite party No. 3. Pleadings having been exchanged between the parties and with the consent of the learned Counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 7. Admittedly, Balasore Municipality is a statutory body created under the provisions of the Orissa Municipal Act, 1950 and under Article 243-Q of the Constitution of India it is known as local self-government. 7. Admittedly, Balasore Municipality is a statutory body created under the provisions of the Orissa Municipal Act, 1950 and under Article 243-Q of the Constitution of India it is known as local self-government. It has been so constituted to bring smooth management and to administer for better administration of the Municipality and to provide proper service to the inhabitants of the Municipality. Therefore, different eligible persons have been appointed in different posts. The present petitioners, being qualified and having knowledge of driving, were recruited as drivers to drive different types of vehicles, initially on daily wage basis in the year 1995 and subsequently they were engaged as NMR (Nominal Muster Roll) employee on consolidated pay basis since 03.02. 1997 against the vacant posts and such engagement was made by the Municipality under Section 73 of the Orissa Municipal Act, 1950 since they were non-LFS cadre posts. During their initial engagement, no such recruitment procedure or O.R.V. Act was followed and Government approval was not obtained to do so. The Municipality took such steps keeping in view the letter No. 16880 dated 15.05.1999, which was issued by Housing & Urban Development Department under Section 73-B of the Orissa Municipal (Amendment) Act, 1997. There is no dispute with regard to the fact that the petitioners were engaged against the sanctioned posts initially on daily wage basis and thereafter as NMR (Nominal Muster Roll) employee w.e.f. 03.02.1997 and in the meantime more than 22 years have passed but their services have not been regularized. As the petitioners are discharging their duties against the sanctioned posts of driver and, as such, they have already rendered more than 10 years of service, may be their appointment was irregular, but that ipso facto cannot deprive of them from regularizing in service. 8. In Umadeui mentioned supra, paragraph-53 of the said judgment (para-44 of AIR), the apex Court held as follows: "53. One aspect needs to be clarified. 8. In Umadeui mentioned supra, paragraph-53 of the said judgment (para-44 of AIR), the apex Court 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. Narayanappa [ 1967 (1) SCR 128 ] : ( AIR 1967 SC 1071 ); R.N. Nanjundappa [ 1972 (1) SCC 409 ] : ( AIR 1972 SC 1767 ) and B.N. Nagarajan [ 1979 (4) SCC 507 ] : ( AIR 1979 SC 1676 ) 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 irregularity 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......." 9. The object behind the aforesaid direction is twofold. 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 the courts or tribunals, before the decision in Umadeui (supra) 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. 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 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. Following the aforesaid principles rendered in the case of Umadevi, in M.L. Kesari (supra) the apex Court held that case of such employees, who have Completed ten years of service and do not possess the educational qualification prescribed, for the post, at the time of their appointment, may be considered for regularization in suitable lower posts considering their length of service rendered to the organization. 10. In Nihal Singh mentioned supra, the apex Court directed for regularization, of service of the appellants creating new posts and on such regularization, the appellants creating be entitled to all the benefits of service attached to the posts, which ate similar in nature in the category of police service of the State, and also awarded cost to be paid to each of the appellants in the said case. 11. In the case of Amarkant Rai (supra), taking into consideration the cases of Umadevi, M.L. Kesari and Nihal Singh, mentioned supra, the apex Court came to conclusion that the appellant, served the University for mare than 29 years in the post of Night Guard and he has served the college on daily Wage Basis, and therefore, directed the authority to regularize the service of the appellant in the said case retrospectively w.e.f. 03.01.2002. 12. In such view of the matter, this Court is of the considered view that the order dated 23.08.2013 passed by the authority in Annexure-7 cannot sustain in the eye of law and is liable to be quashed and the same is hereby quashed. 12. In such view of the matter, this Court is of the considered view that the order dated 23.08.2013 passed by the authority in Annexure-7 cannot sustain in the eye of law and is liable to be quashed and the same is hereby quashed. Consequentially, applying the ratio decided in Umadevi M.L. Kesari, Nihal Singh and Amarkant Rai, mentioned supra, and taking into consideration the length of service rendered by the petitioners, Which is for more than 20 years, against sanctioned posts, this Court directs the opposite party-authorities to regularize the service of the petitioners and grant all consequential benefits, as due and admissible to them in accordance with law. The entire exercise shall be done within a period of three months from the date of communication of this judgment. 13. The writ petition is accordingly allowed. However, there shall be no order as to costs.