Dismissed

Uco Bank v. Sk. Fayazuddin

Orissa HC18 Dec 2019WA/307/2019

Case brief

AI extract

What is this about?

This Writ Appeal challenges the Single Judge's order directing UCO Bank to regularize the respondent's services as a driver. The Division Bench found no error in fact or law and dismissed the appeal, noting the petitioner had cleared selection criteria for a permanent post and discharged duties for over two decades.

What did the court decide?

The writ appeal was dismissed and the impugned order of the Single Judge directing regularization was affirmed.

Uco Bank Vs Sk. Fayazuddin — Pension and Retirement Benefits | Orissa HC (2019)

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IN THE HIGH COURT OF ORISSA: CUTTACK

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WRIT APPEAL No. 307 of 2019

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An application under Article 4 of the Orissa High Court Order, 1948 read with clause 10 of the Letters Patent Act, 1992 read with Chapter VIII Rule 2 of the Rules of the High Court of Orissa, 1948.

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UCO Bank represented by its General Manager & Another	.......	Appellants
	-Versus-
Sk Fayajuddin	.......	Respondent
For Appellants:	-	M/s. Subrat Mishra S. Mohapatra
		B.N. Swarnakar
For Respondent: -------	- -------------	Mr. Surendra Nath Panda -----

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P R E S E N T:

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THE HONOURABLE KUMARI JUSTICE SANJU PANDA

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AND

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THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Argument: 06.12.2019 Date of Judgment: 18.12.2019

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S.K. SAHOO, J . Aggrieved by the impugned judgment and order

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dated 20.06.2019 passed by the learned Single Judge of this

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Court in W.P. (C) No. 13355 of 2015, the unsuccessful appellants therein have preferred the present writ appeal.

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2. The appellants were the opposite parties and the respondent was the petitioner in W.P.(C) No.13355 of 2015 wherein a prayer was made by the respondent seeking for a direction to the opposite party-Bank to regularize his services forthwith taking into account his past service, for the purpose of calculating retirement benefits at least from the year 2007 when the services of his juniors were regularized and further to grant him all consequential service benefits by quashing the order dated 17.07.2015 under Annexure-14 passed by the appellant no.2 i.e. Zonal Manager, UCO Bank, Zonal Office, Sambalpur, Odisha (opposite party no.2 in the writ petition).

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This Court allowed the writ petition and quashed the order dated 17.07.2015 under Annexure-14 passed by the appellant no.2 and directed the appellants to regularize the services of the respondent in the post of driver in which he has been discharging his duty on being duly selected pursuant to the advertisement dated 17.02.1995 under Annexure-1 to the writ petition.

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3. The case of the respondent is that he was engaged as a personal driver by the Zonal Manager, UCO Bank, Bhubaneswar w.e.f. 27.03.1989 to drive the car of the Bank provided to the Zonal Manager for his official use by the Bank. Along with the respondent, others were also appointed for similar nature of job under the Bank. Pursuant to the notification issued under Annexure-1 dated 17.02.1995, the Bank invited applications in the prescribed proforma from the personal drivers of Branch Managers/Divisional Managers and subordinate staff members possessing the requisite driving licence for the post of driver to work at Dhera Branch. In response to same, the respondent applied for the post and on being selected, he was engaged as driver. The Zonal Manager vide letter dated 20.03.1995 sought approval for appointment of the respondent as permanent driver in the vacancy of driver for the currency chest of Dhera Branch to drive the Bank’s cash van which was not responded to by the authority of Head Office of the Bank. The Zonal Manager of the UCO Bank again sought permission vide letter dated 23.02.1996 for appointment of the respondent as driver indicating therein that in case the same is not possible, to authorise him to engage the respondent at least on daily wage basis. The competent authority of the Head Office of the Bank authorised the Zonal Manager, Bhubaneswar as per letter dated

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01.07.1996, to engage the respondent as casual driver on daily wage basis to drive the cash van of Dhera Branch. Accordingly, the respondent was engaged as casual driver on daily wage basis by the Zonal Manager to drive the cash van w.e.f. 10.07.1996. 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 Branch submitted a statement mentioning the details of the respondent’s engagement, wages paid etc. as per format to the controlling office. 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 thirty nine 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 respondent was not taken into consideration for which he submitted a representation on 08.12.2014. The services of the respondent were neither regularized against the clear cut vacancy of driver nor were he absorbed regularly at par with his counterparts as Peon-cumFarash. As his services were not regularized, he approached this

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Court in W.P.(C) No.4147 of 2015 and this Court by order dated 10.03.2015 disposed of the said writ petition directing the appellants to consider the representation filed by the respondent. In compliance of the same, the appellant no.2 passed the order dated 17.07.2015 under Annexure-14 to the writ petition rejecting the representation of the respondent dated 08.12.2014 stating, inter alia, that the demand for regularization/absorption in Bank’s services is devoid of any merit and accordingly, his request was declined.

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4. It is the case of the appellants that since the absorption of thirty nine personal drivers in regular service of the Bank was approved by the Board of Directors of UCO Bank as a one-time measure on the basis of settlement arrived between the parties during the pendency of Reference Case No.45 of 2003 pending before the CGIT, Kolkata which was filed by some casual drivers and the respondent’s service was not regularised against a clear cut vacancy of drivers and he was never absorbed regularly at par with his counterparts as Peon-cum-Farash, there is no illegality or irregularity in the order of the appellant no.2 in rejecting the representation of the respondent.

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5. The learned Single Judge in the impugned judgment after carefully considering the contentions raised by the learned

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counsel for the parties as well as facts pleaded on their behalf held that in the order impugned, it is categorically admitted that the personal drivers who were attached to different Branch Managers/Divisional Managers and subordinate staff members of the Bank have been absorbed as Peon-cum-Farash pursuant to the award dated 17.07.2006 passed by the CGIT, Kolkata in Reference Case No.45 of 2003 and 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 such award but the same was not done by the concerned authority even though the juniors to the respondent were absorbed on regular basis in the Bank. It was further held that when a clear cut vacancy was available at Dhera Branch and the Bank issued an advertisement on 17.02.1995 under Annexure-1 fixing eligibility criteria mentioned therein, pursuant to which the respondent submitted his application and having been selected, he got appointed as driver and discharged his duty w.e.f. 16.07.1996, it cannot be said that the judgment passed by the Hon’ble Supreme Court in the case of Secretary, State of Karnataka and others -Vrs.Umadevi and others reported in (2006) 4 Supreme Court

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Cases 1 is not applicable. Since there was availability of regular post and the respondent was selected by following due procedure and has been discharging his duty, he cannot be

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denied regularization of service, taking into consideration the length of service he had rendered in the post itself and when there is still requirement for the Bank. When the services of some personal drivers have been regularised by absorbing them as Peon-cum-Farash in the bank service, pursuant to the award dated 17.07.2006 passed by the CGIT, Kolkata, there was no justifiable reason available with the Bank not to regularise the services of the respondent at par with his counterparts whose services have already been regularised. Accordingly, the order dated 17.07.2015 passed by the appellant no.2 under Annexure14 was quashed.

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6. Mr. Subrat Mishra, learned counsel appearing for the appellants contended that irregular appointments can be regularised and not illegal appointments as observed by the Hon’ble Supreme Court in the case of Umadevi (supra). The respondent’s initial appointment was illegal due to advertisement in the notice board and as no due procedure was followed in view of the ban on appointment. The respondent was not qualified to be regularised as per UCO Bank circular dated 19.10.1989. It is contended that since the services of some personal drivers were regularised as peons on the basis of CGIT award and the respondent did not approach the Tribunal for similar relief, he

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cannot claim parity with those persons whose services were regularised. He placed reliance in the case of Umadevi (supra) and also on the decision of the Hon’ble Supreme Court in the case of Smt. Asha Devi -Vrs.- Dukhi Sao reported in A.I.R. 1974 S.C. 2048 and contended that since the findings of the learned Single Judge are perverse and the same is contrary to the records, it should be set aside.

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Mr. Surendra Nath Panda, learned counsel appearing for the respondent on the other hand supported the impugned judgment and contended that since the respondent was discharging his duties as a personal driver of the Zonal Manager, UCO Bank, Bhubaneswar w.e.f. 27.03.1989 and pursuant to notification issued under Annexure-1 dated 17.02.1995, he applied for the post and on being selected, he was engaged as driver and discharging his duties and the competent authority of the Head Office of the Bank authorised the Zonal Manager, Bhubaneswar as per letter dated 01.07.1996, to engage the respondent as casual driver on daily wage basis to drive the cash van of Dhera Branch and accordingly, the Zonal Manager passed the order and the respondent has served the Bank for more than two decades and services of similarly situated persons have been regularised since long and the posts are lying vacant and the

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Bank is utilizing the services of the respondent since long, there is no illegality in the order of the learned Single Judge in directing the appellants to regularise the services of the respondent in the post of driver and also quashing the order dated 17.07.2015 passed by the appellant no.2 under Annexure14. He relied upon the decisions of the Hon’ble Supreme Court in the case of Amarkant Rai -Vrs.- State of Bihar reported in 2015 –II- Labour Law Journal 1 and Narendra Kumar Tiwari -Vrs.- State of Jharkhand reported in 2018 -IVLabour Law Journal 331 .

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7. Let us first examine the power of a Division Bench while entertaining a Letters Patent appeal against the judgment of a Single Judge.

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In the case of S mt. Asha Devi (supra), it is held that the power of a Division Bench hearing a Letters Patent appeal under Cl. 10 from the judgment of a Single Judge in first appeal is not limited only to a question of law under section 100 Civil Procedure Code but it has the same power which the Single Judge has as a first Appellate Court. The limitations on the power of the Court imposed by Ss. 100 and 101 Code of Civil Procedure cannot be made applicable to an Appellate Court hearing a

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Letters Patent Appeal for the simple reason that a Single Judge of the High Court is not a Court subordinate to the High Court.

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This writ appeal has been nomenclatured as an application under A rticle 4 of the Orissa High Court Order, 1948 read with clause 10 of the Letters Patent Act, 1992. Letters Patent of the Patna High Court has been made applicable to this Court by virtue of Orissa High Court Order, 1948. Letters Patent Appeal is an intra Court Appeal where under the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as vested in the Single Bench. (Ref:- (1996) 3 SCC 52, Baddula Lakshmaiah -Vrs.- Shri Anjaneya Swami Temple) . The Division Bench in Letters Patent Appeal should not disturb the finding of fact arrived at by the learned Single Judge of the Court unless it is shown to be based on no evidence, perverse, palpably unreasonable or inconsistent with any particular position in law. This scope of interference is within a narrow compass. Appellate jurisdiction under Letters Patent is really a corrective jurisdiction and it is used rarely only to correct errors, if any made.

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In the case of B. Venkatamuni -Vrs.- C.J. Ayodhya Ram Singh reported in (2006) 13 Supreme Court

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Cases 449 , it is held that in an intra-court appeal, the Division

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Bench undoubtedly may be entitled to reappraise both questions of fact and law, but entertainment of a letters patent appeal is discretionary and normally the Division Bench would not, unless there exist cogent reasons, differ from a finding of fact arrived at by the Single Judge. Even a court of first appeal which is the final court of appeal on fact may have to exercise some amount of restraint. Similar view was taken in the case of Umabai -Vrs.- Nilkanth Dhondiba Chavan reported in (2005) 6 Supreme Court Cases 243 . In the case of C ommissioner of Income Tax -Vrs.- Karnataka Planters Coffee Curing Work Private Limited reported in (2016) 9 Supreme Court Cases 538 , it is held that the jurisdiction of the Division Bench in a writ appeal is primarily one of adjudication of questions of law. Findings of fact recorded concurrently by the authorities under the Act and also in the first round of the writ proceedings by the learned Single Judge are not to be lightly disturbed.

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A writ appeal is an appeal on principle where the legality and validity of the judgment and/or order of the Single Judge is tested and it can be set aside only when there is a patent error on the face of the record or the judgment is against established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by

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a Single Judge, the other view, howsoever appealing may be to the Division Bench; it is the view adopted by the Single Judge, which would, normally be allowed to prevail. If the discretion has been exercised by the Single Judge in good faith and after giving due weight to relevant matters and without being swayed away by irrelevant matters and if two views are possible on the question, then also the Division Bench in writ appeal should not interfere, even though it would have exercised its discretion in a different manner, were the case come initially before it. The exercise of discretion by the Single Judge should manifestly be wrong which would then give scope of interference to the Division Bench.

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Coming to the facts of the case, it is not in dispute that the respondent has rendered his service as personal driver of the Zonal Manager, UCO bank, Bhubaneswar w.e.f. 27.03.1989. It is also not dispute that a notification for filling up the post of Bank’s driver at Dhera Branch was issued on 17.02.1995 in which applications were invited in the enclosed proforma from personal drivers of Branch Managers/Divisional Managers and subordinate staff members who possess the requisite driving licence. The age, qualification and other guidelines were given in the said notification and it was

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circulated to all Branches/Offices in the Orissa Zone of the Bank. The last date of receiving the applications was fixed to 04.03.1995. The respondent having satisfied the requirement of eligibility criteria mentioned in the notification, submitted his application for selection of driver and accordingly, after following the due procedure of selection, the respondent was selected for the post of driver. The Zonal Manager vide letter dated 20.03.1995 intimated the Head Office that they notified the vacancy by inviting applications from the eligible persons being working in the subordinate carder and since no other applications except that of the respondent was received and he fulfilled the eligibility criteria and was the senior most among the existing personal drivers, his name was recommended. The restrictions imposed as per circular dated 28.01.1991 was indicated in the aforesaid letter dated 20.03.1995 and a statement containing the biodata of the respondent was enclosed and request was made to sanction the appointment of the driver for Dhera Branch. Subsequently, another letter dated 23.02.1996 was issued by the Zonal Manager to the Head Office making reference to the earlier letter dated 20.03.1995 requesting to authorise to engage the respondent as driver on daily wage basis. The Head Office in its letter dated 01.07.1996 addressed to the Zonal Manager passed order for engaging the respondent

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as casual driver on daily wage basis to drive the cash van of Dhera Branch at the rates applicable to the empanelled casual workers and for payment of pro rata allowances payable to a driver and accordingly, the Zonal Manager issued letter dated 10.07.1996 engaging the respondent as casual driver on daily wage basis to drive the cash van of the Branch. It is not in dispute that since the date of his initial appointment, the respondent is discharging his duties on daily wage basis against the substantive vacant post of driver and in the meantime twenty three years have passed. It is also not dispute that services of some personal drivers have been regularised in the meantime those who are juniors to the respondent by absorbing them as Peon-cum-Farash in the Bank service. The contention of the learned counsel for the appellants that the respondent should have approached the Tribunal to get the relief cannot be a ground to deny such relief to him particularly when there is availability of regular posts of driver and the petitioner was selected for the post in pursuance to the advertisement for such posts way back in 1995 and he is discharging his duties in the said post and there is any blemish record against him.

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Though it is contended by the learned counsel for the

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appellants that the advertisement was illegal as it was issued in

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the notice board but there is no material in that respect rather the notification relating to filling up the post of Bank’s driver at Dhera Branch seems to have communicated to all the Branches/Offices in the Orissa Zone. It is not the case of the appellants that there was no requirement for engaging a driver at the relevant point of time, on the other hand the Head Office being satisfied about such requirement authorised the Zonal Manager in its letter dated 01.07.1996 to engage the respondent as casual driver. Even though there was restriction imposed on regular appointment but since there was necessity for such appointment and after due notification and selection, the Head Office authorised the Zonal Manager for the appointment of the respondent as casual driver, it cannot be said that there is any illegality in the initial appointment as contended by the learned counsel for the appellants. Though the learned counsel for the appellants contended that due procedure was not followed in the appointment of the respondent but such type of submission is vague inasmuch as it is not clarified as to which specific procedure was not followed in the appointment more particularly when the notification issued by the authorities for filling up the post of driver not only indicated the age, qualification of the applicant but also other guidelines. It is also the case of the respondent that since he fulfilled all the eligibility criteria, taking

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into account his past experience as a personal driver of the Zonal Manager, he got selected and accordingly his name was recommended for appointment which was accepted by the Head Office.

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In the case of Umadevi (supra), the Hon’ble Supreme Court passed the 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 so as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. In our humble view, the learned Single Judge was justified in holding that the ratio laid down in the case of Umadevi (supra) is very much applicable to the present case as there was a clear cut vacancy at Dhera Branch for which an advertisement was issued on 17.02.1995 fixing criteria mentioned therein, pursuant to which the respondent submitted his application and having been selected, he got appointed as driver and discharged his duty since July 1996 and therefore, he cannot be denied regularization of his service.

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In the case of Amarkant Rai (supra), the Hon’ble Supreme Court held as follows:

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“15. Considering the facts and circumstances of the case that the Appellant has served the University for more than 29 years on the post of Night Guard and that he has served the College on daily wages, in the interest of justice, the authorities are directed to regularize the services of the Appellant retrospectively w.e.f. 03.01.2002 (the date on which he rejoined the post as per direction of Registrar).”

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In the case of Narendra Kumar Tiwari (supra), the

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Hon’ble Supreme Court held as follows:

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“11. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the Appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct etc.

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The impugned judgment and order passed by the High Court is set aside in view of our conclusions. The State should take a decision within four months from today on regularization of the status of the Appellants.”

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The learned counsel for the appellants contended

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that the respondent has not made specific prayer in the writ petition for regularization of his services in the post of driver and therefore, it was not proper on the part of the learned Single

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Judge to grant him such relief. He placed reliance in the case of National Board of Examination -Vrs.G. Ananda Ramamurti reported in (2006) 5 Supreme Court cases 515

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wherein it is held that the High Court was not justified in granting a relief not sought for by the respondents in the writ petition.

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In the writ petition, the prayer of the respondent

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who was the petitioner in the said case is as follows:-

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“Under the above stated facts, the petitioner most respectfully prays that Your Lordship may graciously be pleased to issue a Rule of NISI calling upon the Opp. party Bank to regularise him in the Bank forthwith giving the benefit of past service for the purpose of retirement benefits, at least from 2007, i.e. the date of regularization of his juniors so that he can live retirement period peacefully by making use of the benefits at his dotage and quashing Order dtd.17.07.2015 (Annexure14) and oblige.

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And/or may pass such order/orders, as this Hon’ble Court may deem fit and proper.

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And for this act of your kindness the petitioner as in duty bound ever pray.”

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The impugned order dated 17.07.2015 under

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Annexure-14 which was challenged in the said writ petition relates to consideration of the representation dated 08.12.2014

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of the respondent, casual driver, Dhera Branch, Angul, Odisha towards his regularization in bank services. In the entire body of the writ petition, the respondent has indicated as to how he was initially engaged as personal driver by the Zonal Manager and how he applied for the post of driver as per the notification dated 17.02.1995 and how he got selected on account of fulfilling all the eligibility criteria and accordingly appointed on the daily wages basis by the Zonal Manager, Bhubaneswar on being authorised by the competent authority of the Head office of Bank, how he was discharging the duty of the driver since then and how the juniors were regularised ignoring his case. The respondent has specifically mentioned that he was continuing in the permanent vacancy and therefore, his services be regularised. In the prayer portion of the writ petition, since it is mentioned ‘And/or may pass order/orders, as this Hon’ble Court may deem fit and proper’, even though it is not specifically mentioned in the prayer portion to direct the appellants to regularise the services of the respondent in the post of driver but in view of the settled principle of law that a writ Court has ample power to modify reliefs to make that reliefs available which would meet the ends of justice ( Ref:- State of Orissa -Vrs.Janamohan Das, A.I.R. 1993 Orissa 180 ), the contentions

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raised by the learned counsel for the appellants is not acceptable.

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In view of the foregoing discussions, we are of the humble view that the view taken by the learned Single Judge is reasonable and logical and there is no patent error on the face of the impugned judgment or any perversity therein and therefore, we are not inclined to interfere with the same.

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Accordingly, the writ appeal stands dismissed.

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…………………………… S.K. Sahoo, J.

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S. Panda, J. I agree.

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Orissa High Court, Cuttack The 18^th December 2019/Pravakar/Sisir/RKM/Sukanta

Uco Bank v. Sk. Fayazuddin

Case brief

What is this about?

What did the court decide?

Uco Bank v. Sk. Fayazuddin

Case brief

What is this about?

What did the court decide?

What the court decided

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