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2019 DIGILAW 413 (ORI)

Sk. Fayajuddin v. General Manager, UCO Bank

2019-06-20

B.R.SARANGI

body2019
JUDGMENT : B.R. Sarangi, J. 1. The petitioner has filed this writ petition seeking direction to the opposite party-Bank to regularize his services forthwith taking into account his past service, for the purpose of retirement benefits, at least from 2007, when the services of his juniors were regularized, and grant all consequential benefits, by quashing the order dated 17.07.2015 in Annexure-14 passed by opposite party No. 2 - Zonal Manager, UCO Bank, Sambalpur, Odisha. 2. The factual matrix of the case, in hand, is that the petitioner was engaged as personal driver by the Zonal Manager, UCO Bank, Bhubaneswar w.e.f. 27.03.1989 to drive the Bank's car provided to the Zonal Manager for his official use by the Bank. Along with the petitioner, others were also appointed for similar nature of job under the Bank. The Bank issued a circular on 17.02.1995 and invited applications from among the existing sub-staff members and personal drivers engaged by the Bank authorities stipulating criteria required for the post of driver. The petitioner, along with others, had applied for the same. In response to the said circular the petitioner was the only applicant for the post who satisfied all the criteria stipulated in the notification. He was selected and consequentially, the Zonal Manager vide letter dated 20.03.1995 sought approval for appointment of the petitioner as permanent driver in the vacancy of driver for the currency chest of Dhera Branch to drive the Bank's Cash Van. But the same was not responded to by the authority of Head. Office of the Bank. 2.1. Consequentially, the Zonal Manager took up the appointment of the petitioner as permanent Bank's driver, pursuant to letter dated 23.02.1996, and also recommended the name of the petitioner for appointment at least on daily wage basis, if there is no possibility of appointment on permanent basis, due to restrictions on recruitment. Thereby the competent authority of Head Office of the Bank authorized the Zonal Manager, Bhubaneswar to engage the petitioner as casual daily wager to drive the vehicle for the currency chest of Dhera Branch, pursuant to letter dated 01.07.1996. Accordingly, the petitioner was engaged as casual driver by the Zonal Manager vide letter dated 10.07.1996 at Dhera Branch. 2.2. Subsequently, the Bank came out with a circular dated 30.05.2002 to empanel the daily wagers for regularization in bank service. Accordingly, the petitioner was engaged as casual driver by the Zonal Manager vide letter dated 10.07.1996 at Dhera Branch. 2.2. Subsequently, the Bank came out with a circular dated 30.05.2002 to empanel the daily wagers for regularization in bank service. The Branch Manager, Dhera submitted a statement mentioning the details of the petitioner's engagement, wages paid, etc as per format to the controlling office. When the petitioner was waiting to get his letter of regularization, as permanent driver, the Bank regularized the personal drivers as Peons who were attached to Zonal Office and other branches ignoring the case of the petitioner. Thereafter, the petitioner submitted his application to absorb him as a regular Peon, but the same was not acceded to. Hence this application. 3. Mr. S.N. Panda, learned counsel for the petitioner contended that the petitioner got appointed as driver by the opposite party-bank and started discharging his duty, which he has been doing till date. As his services were not regularized, the petitioner had approached this Court by filing W.P.(C) No. 4147 of 2015 and this Court by order dated 10.03.2015 disposed of the said writ petition directing the opposite party-bank to consider the representation filed by the petitioner within a period of four months. In compliance of the same, the order impugned dated 17.07.2015 in Annexure-14 has been passed by opposite party No. 2 rejecting the representation of the petitioner stating, inter alia, that the services of the petitioner do not deserve to be regularized. Hence, this application. 4. Pursuant to notice dated 05.08.2015, Mr. C.N. Murty and associates entered appearance for the opposite parties No. 1 and 2 by filing vakalatnama. Subsequently, the file was transferred from their office to the office of M/s. S. Mishra and associates pursuant to which they appeared in the case and filed their counter affidavit wherein opposite party No. 2 specifically admitted that the petitioner was working as a personal driver of the Zonal Manager, UCO Bank, Bhubaneswar w.e.f. 27.03.1989. Pursuant to advertisement issued in Annexure-1 dated 17.02.1995, the bank notified and called for applications from the personal drivers of Branch Managers/Divisional Manager and sub-ordinate staff members possessing requisite driving licence for the post of driver to work at Dhera Branch. In response to same, the petitioner applied for and on being selected he was engaged as driver. Pursuant to advertisement issued in Annexure-1 dated 17.02.1995, the bank notified and called for applications from the personal drivers of Branch Managers/Divisional Manager and sub-ordinate staff members possessing requisite driving licence for the post of driver to work at Dhera Branch. In response to same, the petitioner applied for and on being selected he was engaged as driver. When his name was recommended for appointment, due to restriction imposed, the Zonal Manager recommended for considering his engagement at least on daily wage and casual basis. Accordingly, the petitioner was engaged as driver on daily wage basis w.e.f. 16.07.1996. It is contended that some of the casual drivers approached the CGIT, Kolkata for regularization of their services by filing Reference Case No. 45 of 2003 and the Tribunal passed the award on 17.07.2006 as "No Dispute" since the matter was settled amicably between the parties. Accordingly, the Board of Directors of UCO Bank approved the absorption of 39 personal drivers in regular service of the bank as Peon-cum-Farash as a one-time measure: Even though the personal drivers were absorbed on regular basis as Peon-cum-Farash, the case of the petitioner was not taken into consideration. For the said purpose, even though he filed a representation subsequently on 08.12.2014, but the same was not considered. Thereby, the petitioner's service neither was regularized against the clear cut vacancy of driver nor was he absorbed regularly at par with his counterparts as Peon-cum-Farash. Therefore, it has been contended that no illegality or irregularity has been committed by the opposite party-bank in passing the order impugned. 5. This Court carefully considered the contentions raised by learned counsel for the parties, as well as the facts pleaded on their behalf. 6. The petitioner has rendered his service as personal driver of the Zonal Manager, UCO Bank, Bhubaneswar w.e.f. 27.03.1989 as has been admitted in the counter affidavit. But, due to availability of a vacancy in the post driver at Dhera Branch, an advertisement was issued on 17.02.1995 for filling up of the said post. The petitioner, having satisfied the requirement of eligibility criteria mentioned in the advertisement, submitted his application for selection of driver. Following due procedure of selection, the petitioner was selected and given appointment as driver. The petitioner, having satisfied the requirement of eligibility criteria mentioned in the advertisement, submitted his application for selection of driver. Following due procedure of selection, the petitioner was selected and given appointment as driver. From the date of initial appointment, i.e., 16.07.1996, he has been discharging his duty on daily wage basis against the substantive vacant post of driver and, in the meantime; more than 23 years have elapsed. Earlier, the petitioner had approached this Court by filing W.P.(C) No. 4147 of 201-5 and the same was disposed of vide order dated 10.03.2015 with the direction to consider his representation pending before the authority. But on consideration of the representation, the opposite party-authority passed the order impugned, dated 17.07.2015 in Annexure-14 rejecting his claim for regularization. It has been categorically admitted in the order impugned that the personal drivers, who were attached to different Branch Managers/Divisional Manager and Sub-ordinate staff members of the Bank, have been absorbed as Peon-cum-Farash pursuant to award dated 17.07.2006 passed by the CGIT, Kolkata in Reference Case No. 45 of 2003. If the petitioner was not absorbed as driver for some reason or other, he could have been absorbed as Peon-cum-Farash in compliance of the award dated 17.07.2006 passed by the CGIT, Kolkata. But the same has not been done by the authority concerned, even though juniors to the petitioner have been absorbed on regular basis in the opposite party bank. 7. In the order of rejection dated 17.07.2015 in Annexure-14, it is has been mentioned that the ratio decided in the judgment passed by the apex Court in Secretary, State of Karnataka and Others v. Umadevi and others, (2006) 4 SCC 1 is not applicable to the present context, and a reference has been made in the said order to Civil Appeal No. 2417-2418/2014 (Hari Nandan Prasad & Anr. Vs. Employer I/R to Management of FCI & Anr.), but on thorough scrutiny of those cases this Court finds that opposite party No. 2 has not applied its mind in proper perspective to the ratio decided in those cases. Vs. Employer I/R to Management of FCI & Anr.), but on thorough scrutiny of those cases this Court finds that opposite party No. 2 has not applied its mind in proper perspective to the ratio decided in those cases. As such, in the case of Umadevi (supra), the apex Court passed an order that the claim acquired by a person in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. Presumably therefore, it has been stated in the order impugned that the petitioner's case is not covered by the ratio decided by the apex Court in Umadevi (supra). But fact remains, in the instant case when a clear cut vacancy was available at Dhera Branch, the opposite party bank issued an advertisement on 17.02.1995 in Annexure-1 fixing criteria mentioned therein, pursuant to which the petitioner submitted his application and having been selected he got appointed as driver and discharged his duty w.e.f. 16.07.1996. Therefore, it cannot be said that the judgment passed by the apex Court in Umadevi (supra) is not applicable to the present case. Since there is availability of regular post and the petitioner was selected by following due procedure and has been discharging his duty, he cannot be denied regularization of service, taking into consideration the length of service he has rendered in the post itself, and as such, there is still requirement of driver for the opposite party bank. Even otherwise also, the services of some personal drivers having been regularized by absorbing them as Peon-cum-Farash in the bank service, pursuant to the award dated 17.07.2006 passed by the CGIT, Kolkata in Reference Case No. 45 of 2003, there is no justifiable reason available to the opposite party bank not to regularize the services of the petitioner at par with his counterparts whose services have already been regularized pursuant to the award passed by the CGIT, Kolkata. 8. In the above view of the matter, this Court is of the considered opinion that the reasons stated in the order dated 17.07.2015 passed by the opposite party No. 2 in Annexure-14 cannot sustain in the eye of law and the same is hereby quashed. 8. In the above view of the matter, this Court is of the considered opinion that the reasons stated in the order dated 17.07.2015 passed by the opposite party No. 2 in Annexure-14 cannot sustain in the eye of law and the same is hereby quashed. The opposite parties are directed to regularize the services of the petitioner in the post of driver in which he has been discharging his duty on being duly selected pursuant to the advertisement in Annexure-1 dated 17.02.1995. The entire exercise shall be done within a period of two months from the date of production/communication of this judgment. 9. The writ petition is thus allowed. There shall be no order as to costs.