The High Court dismissed a writ petition assailing the State Administrative Tribunal's order directing regularization of services from the date of appointment, upholding the Tribunal's decision that the employee was effectively a regular employee.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF ORISSA: CUTTACK
W.P.(C) NO. 15844 OF 2020
In the matter of an application under Articles 226 and 227 of Constitution of India.
State of Odisha and others ……. Petitioners
-Versus-
Purnananda Mohanty ……. Opp. Party
For Petitioners : Mr.Manoj Ku. Khuntia, Addl. Government Advocate
For Opp. Party : M/s. Biswabihari Mohanty, M.Harichandan & B.Tripathy
Heard & Disposed of on 09.09.2020
P R E S E N T:
THE HONOURABLE KUMARI JUSTICE S. PANDA
A N D
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
O R D E R
BY THE COURT Heard Mr.Manoj Kumar Khuntia, learned
Additional Government Advocate appearing for the petitioners-State and Mr.Biswabihari Mohanty, learned counsel for the opposite party, who entered appearance through Caveat, by Video Conferencing Mode.
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such order, the opposite party submitted a representation before the Secretary, Labour and Employment Department, Odisha, Bhubaneswar and accordingly the State Government, vide its letter No.4068 dated 04.05.2009, directed the petitioner No.2-Director of Employment to grant annual increments to the opposite party and allowed him to revise his scale of pay pending regularization. While the matter stood thus, the Government of Odisha in the Department of Labour and Employment, vide its letter No.3481 dated 28.04.2010, directed regularization of services of the opposite party referring to General Administration Department Notification No.9197 dated 30.03.1991. But, the Finance Department vide its letter dated 20.08.2010, refused to give concurrence to the proposal for regularization submitted pursuant to letter dated 28.04.2010. Thus, the opposite party was not regularized. Subsequently, the Government in Labour and Employment Department, vide its order No.6973 dated 20.08.2013, directed the Director of Employment (petitioner No.2) to withdraw all increments and revision in scale of pay sanctioned in favour of the opposite party and some other similarly situated employees and to recover the excess amount received by them. Assailing the same, the opposite party along with others preferred OA No.458(C) of 2011 and
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OA No.459(C) of 2011 before the State Administrative Tribunal, Cuttack Bench, Cuttack. Both the Original Applications were disposed of vide a common order dated 08.03.2013 holding as follows:-
“12. The applicants entered Govt. Service after facing a regular process of selection. They had the requisite qualification to be appointed as J. Clerks. Hence, their appointment was only irregular and not illegal and they were no way responsible for such irregularity. Hence, their case needs to be considered by the Govt. In exercise of their power of relaxation under Rule14 of the District Offices Rules.
13(sic). The Govt. in their order dtd. 28.4.2010 at Annx.9 themselves found the case of the applicants for regularization to be genuine and directed their regularization by invoking the relaxation clause. But the Finance Department reversed the decision on the erroneous ground that the applicants were engaged on 44 days basis with a gap of some days. Such an observation of the Finance Department was wholly uncalled for. The applicants were never appointed on 44 days basis. Hence, the subsequent order dtd.20.08.2010 at Annx.10, withdrawing Annx.9 on the non-existent ground that the applicants were appointed for 44 days with gaps, is liable to be quashed.
14(sic). In the result, both the original applications are allowed, and the order dtd.20.08.2010 at Annx.10 is quashed. The
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respondents are directed to consider the claim of the applicants for regularization by invoking the relaxation provision under Rule-14 of the O.M.S. Rules, 1985 in terms of letter dtd.28.04.2010 at Annx.9 and take a decision within a period of three months from the date of receipt of a copy of this order.”
In compliance of the said direction, the petitioner No.1 regularized the services of the opposite party and similarly situated persons prospectively, vide notification No.EMP2/2014 3833/ETET dated 30.06.2014. The opposite party had also approached learned Tribunal in OA No.2623(C) of 2010 separately assailing the said withdrawal order of increments and other financial benefits, which was disposed of on 21.02.2012 setting aside the said order of withdrawal of increments and other financial benefits.
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“7. Thus in view of the above discussion, when the applicants have participated in the recruitment process and possesses all requisite qualification for the post, their appointment cannot be termed as illegal as rightly observed by the Government in Law Department, as reflected in the letter of the Government in Labour & Employment Department (Annexure-2). Further, when the applicants have been given the benefit of regularisation prospectively, there is no reason to deny them the benefit of the past service, particularly, when they were allowed to continue without terminating their services, as per the stipulation made in the appointment order. Therefore, the impugned order vide annexure-7 is not maintainable and is quashed to the extent of their regularization prospectively and consequently the respondent authorities are directed to reconsider and modify the order vide Annexure-7 regularising the service of the applicants from the initial date of their appointment extending all consequential benefits and such action be taken within a period of three months from the date of receipt of a copy of this order.”
Thus, the present writ petition was filed assailing the said order dated 23.02.2018 under Annexure-3.
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regularization itself. He further submits that learned Tribunal had no jurisdiction to direct for regularization of services of the opposite party. It could have at best directed the State Government to consider the case of the opposite party for regularization. Further, the opposite party and some other similarly situated persons were not appointed through a regular selection process, as provided under the Odisha Ministerial Service Rules, 1985 (for short, ‘OMS Rules’). The State Government, taking into consideration their long continuance in service and resorting to the provision of relaxation under Rule-14 of the OMS Rules, have decided to regularize their services prospectively. If the opposite party is regularized retrospectively from the date of his appointment as claimed, then the persons those were selected through regular selection process as per OMS Rules will be prejudiced and their service career would be adversely affected without giving them opportunity of hearing in that regard. Learned Tribunal has not considered these material aspects of the case, which has resulted in grave miscarriage of justice. Therefore, necessary direction may be made setting aside the direction of learned Tribunal for regularisation of service of the opposite party modifying the order of regularization dated 30.06.2014 issued by petitioner No.1.
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directed for regularisation of the opposite party retrospectively, is not correct. So far as the question of
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seniority is concerned, the opposite party was undoubtedly appointed in the year 1988 against vacant sanctioned post in the regular scale of pay and is continuing as such receiving all benefits of a regular employee save and except being regularized formally. Hence, the writ petition merits no consideration and is liable to be dismissed.
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learned Tribunal in OA No.2623(C) of 2010, which was disposed of on 21.02.2012. The State Government has never challenged the said order. So, it has reached its finality. Further, in the letter dated 28.04.2010, it has been clarified as follows:-
In view of the same, relaxation provision of the OMS Rules i.e. Rule 14 has been invoked for regularization of service of these 18 Junior Clerks by dispensing with the condition of examination. Their past service will count for pension. No financial benefit will be given for the past periods. However, they will get seniority, subject to the condition that no case of promotion already effected will be reviewed. Both G.A. Department and Law Department have been consulted in this regard.
You are therefore requested to regularize the services of the above irregular recruited Jr. Clerks in the above manner under intimation to this Department.”
Thus, while issuing letter dated 28.04.2010, due care has been taken by the Government protecting the seniority of the persons, who had got promotion by then. After the orders passed in O.A. Nos.458(C) and 459(C) of 2011, which has
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never been challenged, learned Additional Government Advocate is estopped to challenge its legality in this writ petition. We also find no infirmity in the said letter dated 28.04.2010. The opposite party was appointed against a sanctioned post with regular scale of pay being selected through a selection process. Service book of the opposite party was opened and he has been receiving all financial benefits as that of a regular employee. Thus, for all purposes, the opposite party is continuing as a regular employee, save and except being regularized by a formal order. Taking into consideration the same, the State Government in the Department of Labour and Employment, issued letter dated 28.04.2010.
……..…………………… ………………………… K.R. Mohapatra,J. Sanju Panda, J.
Orissa High Court, Cuttack. Dated the 9th Sept.,2020/ss
3 issues framed by the court
Whether the State Administrative Tribunal had jurisdiction to direct post-facto regularization of services of irregular employees.
Whether regularization granted prospectively instead of retrospectively violates the rights of the employee.
Whether the Tribunal's order directing regularization from the date of appointment was void.
State of Odisha
Purnananda Mohanty
S. PANDA
K.R. MOHAPATRA
As recorded by the court registry
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