Dismissed

Jalendra Ku.Paramani v. State

Orissa HC14 Mar 2023WP(C)/23542/2010

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the date of appointment granted to a contractual Physical Education Teacher. The petitioner sought parity with a co-employee regularized with effect from 2005. The Court held that since the petitioner lacked a vested right to the post via unaided recruitment, the employer could determine the appointment date retrospectively, rejecting the claim

What did the court decide?

Writ petition dismissed holding that no vested right to retrospective regularization exists and authorities can decide the date based on their assessment.

Jalendra Ku.Paramani Vs State — Pension and Retirement Benefits | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No. 23542 of 2010

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An application under Sections 226 and 227 of the Constitution of India)

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---------------
Jalendra Kumar Paramanik ...… Petitioner
-Versus-
State of Odisha and others ...…. Opp. Parties
Advocate(s) appeared in this case :-

For Petitioner : M/s. S.B. Jena, S.K. Das,
R.C. Ray, S. Behera,
S.S. Mohapatra, J.K. Swain,
A. Mishra & S. Soren,
Advocates.
For Opp. Parties : Mr. B.P. Tripathy,
Addl. Government Advocate

CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGEMENT
14 th March, 2023

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SASHIKANTA MISHRA, J.

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The sole grievance of the petitioner as laid in the instant writ petition is, his case for regularization in service was not considered by the opposite partyauthorities at par with his co-employee Jawaharlal

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Mohanta despite order of this Court passed in W.P.(C) No. 20494 of 2009.

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The facts of the case, briefly stated are that by order dated 29.07.1995, the Chief Engineer,

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Subarnarekha Irrigation Project, Laxmiposi in the district of Mayurbhanj permitted engagement of one Jawaharlal Mohanta as Science teacher and the petitioner as PET in

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SIP composite High School, Laxmiposi for taking classes

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for a period of three months or posting of regular teacher, whichever is earlier. As such, the petitioner joined as PET in the School on 29.07.1995 and was paid remuneration

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@ Rs.30/- per class subject to maximum of 20 classes per

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month. His service was continued from time to time and as such he and the said Jawaharlal Mohanta worked continuously. By order dated 28.04.1994, the State Government sanctioned the creation of one post of PET for the composite High School in the scale of pay of Rs.1080-

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1800 per month during the year, 1995-96. Both the petitioner as well as Jawaharlal Mohanta approached the Odisha Administrative Tribunal in O.A. No. 4148(C) of 1996 and O.A. No. 4147 (C) of 1996 respectively. The O.A.

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filed by the Jawaharlal Mohanta was disposed of by order dated 31.01.2002 directing the opposite party authorities to pay minimum of the pay in the scale of pay of Rs.50008000 (revised TG scale) if he is still utilized for teaching in the project school till the school is closed down. By order dated 27.07.2003, the opposite party authorities appointed Jawaharlal Mohanta as TG Science Teacher (CBZ) in the time scale of pay of Rs.5000-150-8000/though, the same was subsequently modified to the minimum scale of pay. The O.A. filed by the present petitioner was disposed of by the Tribunal by its order dated 07.04.2004 whereby the authorities were directed to consider his case for regularization having regard to the fact that a similarly placed person (Jawaharlal Mohanta) had been given the benefits of regularization and if funds are available. The authorities however rejected the prayer for regularization of the petitioner by order dated 27.08.2004 citing the ban imposed by the State Government in filling up regular vacancies due to financial stringency and that he had been appointed as contractual teacher. The petitioner again approached the

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Tribunal in O.A. No.1937(C) of 2004 which was disposed

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of by order dated 08.12.2009 by holding that the petitioner was appointed on contractual basis and not recruited through open competition and therefore, his appointment is de hors the rules for which he has no right to the post claimed by him and anything beyond the stipulated wages. However, on equitable consideration,

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the Tribunal directed the authorities to allow the petitioner to appear in the recruitment test for appointment as PET by relaxing the upper age limit as per the existing rules. The petitioner challenged the said order of the Tribunal before this Court in W.P.(C) No.20494 of 2009. A Division Bench of this Court by order dated 14.01.2010 disposed of the writ petition with direction to the authorities to consider the case of the petitioner at par with the case of Jawaharlal Mohanta (OJC No. 2977 of 2002). Pursuant to such order, the authorities by office order dated 01.10.2010 appointed the petitioner as PET in the scale of pay of Rs.5200-20200/- with grade pay of Rs.2200/and other allowances with effect from 14.01.2022. This order, enclosed as Annexure-16 to the

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writ petition is impugned as according to the petitioner the date of appointment should have been the same as that of Jawaharlal Mohanta, i.e., 29.07.1995 or the benefit of minimum scale of pay with effect from 31.02.2002 and regular scale with effect from 02.08.2005 should have been allowed to him.

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The stand of the opposite parties as reflected in their counter affidavit is that the petitioner was never appointed against a sanctioned post but as a qualified hand on class basis remuneration unconditionally. He was never appointed as a regular PET and as such, cannot claim the benefits at par with a regular teacher. The Tribunal, in its order dated 07.04.2004 passed in O.A No.4148(C) of 1996 had directed the authorities to consider the case of the petitioner for regularization, if funds are available. Since funds were not available the petitioner’s case was rejected. As regards the co-employee, namely, Jawaharlal Mohanta, he being a Science teacher cannot be compared to the petitioner since the subjects taught by him are essential for HSC Examination, which is not so for a PET like the petitioner. In any case, in the

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subsequent order passed in OA No. 1937(C) of 2004, the Tribunal has permitted the petitioner to appear in the recruitment test. Since the petitioner challenged the said decision before this Court in W.P(C) No.20494 of 2009, which was disposed of without going to the merits and simply by directing the authorities to consider the case of the petitioner at par Jawaharlal Mohanta, the case of the petitioner was considered and he was brought to the work charged establishment like him. Thus, according to the opposite parties, the order of this Court has been fully complied with.

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Heard Mr. Satyajit Behera, learned counsel for the petitioner and Mr. B.P. Tripathy, learned Additional Government Advocate for the State

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Mr. Behera would argue that the opposite parties authorities are guilty of gross discrimination inasmuch as the petitioner and Jawaharlal Mohanta stand exactly on the same footing and therefore both are entitled to the same benefits, but while Jawaharlal Mohanta was granted regularization with effect from 02.08.2005, the petitioner has been granted such benefit from 14.01.2010. Mr.

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Behera further submits that the petitioner has discharged his duties for more than thirty years which by itself proves that the post held by him was a regular post.

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Mr. B.P. Tripathy, on the other hand, contends that the whole premise of the claim made by the petitioner is misconceived inasmuch as neither Jawarhalal Mohanta nor the petitioner have been regularized. In any event, the petitioner was appointed in the work charged establishment with effect from 14.01.2010 which is not a regular appointment in the strict sense of the term. It is further argued by Mr. Tripathy that the petitioner cannot claimed any vested right over a regular post, since he has not been appointed on the basis of a valid recruitment process. Moreover, the date of granting the benefit is to be decided by the employer depending on various factors like availability of funds, number of posts, manner of recruitment etc.

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From the above narration, it is apparent that the only grievance of the petitioner is, apparent refusal of the authorities to treat him at par with Jawaharlal Mohanta, despite direction of this Court. The other facts of the case

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not being disputed, it would be profitable to first refer to the judgment passed by the Tribunal in O.A. No.1937(C) of 2004, which was challenged before this Court in the form of W.P.(C) No.20494 of 2009. The Tribunal in its judgment passed on 08.12.2009, inter alia, held as follows:-

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“9. The applicant was appointed on contractual basis for a period of three months or till posting of a regular teacher and has joined in the school on 29.07.1995 as per the order as at Annexure 1. As it appears, the process of regular recruitment has not yet started even though the Chief Engineer and Basin has given a requisition to the Collector & District Magistrate, Mayurbhanj to sponsor the names of candidates for appointment of teachers including the physical Education Teacher as at Annexure-7. The learned counsel for the applicant has produced letter No.2956 dated 16.03.2009 of the Chief Engineer and Basin Manger, Baitarani Subarnarekha and Budhabalanga Basin, Laxmiposi, to the Financial Advisors and Chief Accounts officer in which a request has been made for extension of temporary post under regular establishment for the year, 2009-2010. The post of P.E.T. in the aforesaid High School finds place in that list. The engagement of the applicant on contractual basis was being extended from time to time and he has been allowed to continue till a regular recruitment is made. As the applicant has not been recruited through open competition, and his appointment is ‘dehors’ the rules, he has no right to the post claimed by him or anything beyond the stipulated wages.

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10. But considering the equity and the fact that the applicant has been continuing in the said

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school since 1995 and he may not be in a position to find a suitable avenue for future employment at their point of time, it will be appropriate for the respondents to allow the applicant to appear in the recruitment test for appointment as P.E.T. by relaxing the upper age limit as per the existing rules. He may, thereafter, be considered for appointment if he is found suitable in all respects and is eligible as per merit.”

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The petitioner, as already stated, carried the

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matter to this Court in the aforementioned writ petition.

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The said writ petition was disposed of on 14.01.2010 by

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passing the following order:-

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“Heard learned counsel for the parties.

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The petitioner has filed this writ petition challenging the order dated 08.12.2009, passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.1937(C) of 2004, rejecting the prayer for regularization of the services of the petitioner as a P.E.T.

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Learned counsel for the petitioner submits that the case of the petitioner has not been treated at par with the case of Sri Jawaharlal Mohanta, who has been regularized in the meantime by virtue of order of this Court, passed in OJC No. 2977 of 2002 dated 2.08.2005.”

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Learned Advocate General stoutly denied the aforesaid submission made by the learned counsel for the petitioner and stated that Sri Jawaharlal Mohanta, petitioner in OJC No. 2977 of 2002, has not been regularized against any regular sanctioned post.

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Considering the submissions made by learned counsel for the parties, we dispose of the writ petition directing the opposite parties to consider the case of the petitioner at par with the case of Sri Jawaharlal Mohanta-vrsState of Orissa and others in OJC No. 4977 of 2022, disposed of on 2.08.2005 and take a decision within three months hence and communicate the same to the petitioner.

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W.P.(C) is accordingly disposed of.”

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Thus, no finding in respect of the judgment of the Tribunal, was rendered by the Division Bench. Basing on the submission that Jawaharlal Mohanta had been regularized pursuant to order passed by this Court, which was stoutly denied by the learned Advocate General, this Court simply directed the authorities to consider the case of the petitioner at par with the case of Jawaharlal Mohanta. The said Jawaharlal Mohanta, as already stated, was appointed as TGT (Science) in the minimum scale of pay, i.e., Rs.5000-8000/-. The petitioner was appointed as PET also in the scale of pay (revised) of Rs.5200-20200/- with grade pay of Rs.2200/- and other allowances. It has been stated in the counter that such appointment was in the work charged establishment. The nature of appointment of Jawaharlal Mohanta is not

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clearly forthcoming from the records, but it is the common ground of the parties that he was appointed in the minimum scale at the relevant time. But whatever may be the nature of such engagement, fact remains that the petitioner was also, prima facie, granted the same benefit as Jawaharlal Mohanta, i.e., appointment as PET on a particular scale of pay as against the class based remuneration granted earlier. It cannot, therefore, be said that he was treated differently.

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An important aspect which was evidently not brought to the notice of the Division Bench in W.P.(C) No. 20494 of 2009 was the fact that neither Jawaharlal Mohanta nor the petitioner were engaged against any sanctioned posts after following due recruitment process at the relevant time. True, there are materials on record to show that some posts including that of PET were created but then there is no law by which the petitioner could have been straightaway appointed against such post without undergoing due process of recruitment. The Tribunal, having noted such fact granted liberty to the petitioner to appear in the recruitment test for

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appointment as PET with further direction to the authorities to relax the upper age limit as per rules. The authorities have nevertheless appointed the petitioner by taking him in the work charged establishment. In the considered view of this Court, the petitioner ought to be satisfied with such benevolence of the State Government.

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As regards the claim of allowing such

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appointment retrospectively, this Court having found that the petitioner does not have any vested right to the post inasmuch as he has not been appointed after undergoing a due process of recruitment, cannot stake any claim for being regularized with effect from a particular date. It would be profitable at this stage to rely upon a judgment rendered by the Apex Court in the case of Managing

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Director, Ajmer Vidhyut Vitran Nigam Ltd. Ajmer and another vs. Chiggan Lal and others , reported in 2022 SCC OnLine SC 1351 when it was observed under paragraph -9 as follows:-

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“9. It is the settled position that the date from which regularization is to be granted is a matter to be decided by the employer keeping in view a number of factors like the nature of the work, number of posts lying vacant, the financial condition of the of the employer, the additional

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financial burden caused, the suitability of the workmen for the job, the manner and reason for which the initial appointments were made etc. The said decision will depend upon the facts of each year and no parity can be claimed based on regularization made in respect of the earlier years.”

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