Niranjan Mishra Vs Shree Jagannath Sanskrit Vishvavidyalaya

_______________________________________________________ For Petitioner : M/s. Sanjib Kumar Rath, Mr. G.K. Nanda, Mr.B.N. Biswal & R.H. Barik, Advocates For Opp. Parties : Mr. Gopal Kumar Agarwal, Additional Government Advocate & Mr. S.N. Nayak, Advocate

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CORAM:

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JUSTICE SASHIKANTA MISHRA

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JUDGMENT

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8^th January, 2025

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SASHIKANTA MISHRA, J.

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The petitioner has approached this Court seeking the

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following relief:

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“ It is, therefore, prayed that this Hon’ble Court may graciously be pleased to admit the writ

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petition and issue Rule “NISI” to the Opp. Parties to show cause as to;

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(i) Why the recommendation made by O.P. No.3 to abolish the 2nd post of driver vide the impugned communication dated 30.03.2016 in the facts and circumstances of the case will not be declared as illegal and as such liable to be set aside; and (1)

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(ii) Why the O.P. No.1 & 2 will not be directed to move the O.P. No.3 for creation of the post of Driver and for appointment of the petitioner on regular basis forthwith; and

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(iii) Why the O.P. No.3 will not be directed to create the post of driver for such appointment of the petitioner on regular basis within a stipulated time;

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And if the Opp. Parties do not show cause then the Rule be made absolute by issuing appropriate writ/writs and any other order as deem fit be passed;

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

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The facts of the case, briefly stated are that the

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petitioner was initially engaged as Driver on daily wage basis on 07.10.1997 in the Shree Jagannath Sanskrit Vishwavidayalaya, Puri (in short, the University). Such engagement was against the vacancy created by the death of the regular incumbent, Bhaskar Panda. It was the third post of Driver. By letters dated 09.12.2009 & 28.05.2010, the University moved the Government for de-reservation of second post of Driver and on the same day, the University

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also moved for de-reservation of the post of Driver and for regularization of the services of the petitioner. The petitioner was allowed to draw consolidated pay by order dated 21.01.2011 by the University. The Government refused to accept the request of the University. Said order of the Government dated 17.04.2012 has been challenged by the petitioner before this Court in W.P.(C) No.13688 of 2013 and is sub-judice. By order dated 17.01.2014 of the University, the petitioner was allowed to draw pay and grade pay with effect from 01.12.2013 admissible to the post of Driver. By letter dated 08.12.2016, the University requested the Government for creation of some nonteaching posts including the post of Driver. However, the Government in its letter dated 12.09.2018 intimated regarding abolition of the vacant post of Driver. On 11.03.2019, the Registrar of the University intimated the fact of retirement of the Driver and sought for permission to appoint Driver on regular basis. The petitioner also submitted a representation on 14.03.2019 praying for regularization of his services, which was disposed by the Government by order dated 01.05.2019, copy of which is

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enclosed as Annexure-12. The Government in Department of Higher Education rejected the case of the petitioner by holding that his appointment was irregular and that by the date of passing of the judgment by the Supreme Court in the case of Umadevi v. State of Karnataka¹ , i.e. on 10.04.2006, he had not completed ten years of continuous service. Pursuant to such order, the University issued an office order dated 18.03.2023 attaching the petitioner to the Central Library of University until further orders.

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The University has filed the counter affidavit more or less admitting the case of the petitioner. It is stated that initially the Government created two posts of Driver for the University one for the General Category and the other for Scheduled Tribe category. Both the posts were filled up. The third post of Driver was created by the Government in 1989, which was filled up in the year 1991, but in view of sudden death of the incumbent in the year 1992, the post was abolished in the year 2004 following the fiscal measures initiated by the Government. Further, the second post of the Driver, which was reserved for

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1 (2006) 4 SCC 1

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Scheduled Tribe, also fell vacant in the year 2007 due to voluntary retirement of the incumbent. As such, keeping in view the requirement of the University the petitioner was engaged on daily wage basis to drive the office vehicle as and when necessary with effect from 07.10.1997 and

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has been continuing as such till date. After voluntary retirement of the driver occupying the second post in the year 2007, the University moved the State Government seeking de-reservation of the post and for permission to fill up the vacant post keeping in view the representation submitted by the petitioner. However, the Government informed that the base level post is not permissible to be de-reserved. The petitioner has been drawing fixed salary as fixed by the syndicate on 30.08.2022. In the meantime, the Government by order dated 30.03.2016, has abolished another post of Driver, leaving only one post. The petitioner has requested for regularization of his services but the same has been turned down by the Government.

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Counter affidavit has also been filed by the State stating therein that the petitioner had earlier approached this Court in W.P.(C) No.6351 of 2019 with

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prayer for direction to regularize his services against the vacant post of driver. This Court, by order dated 29.03.2019 disposed of the writ application directing the State Authorities to take a decision on the recommendation made by the University on 15.03.2019. Pursuant to such direction, the case of the petitioner was examined in light of the direction issued by the Supreme Court in the case of Umadevi (supra) . It was found that the petitioner was working against a sanctioned post but had been engaged without undergoing any process of open competitive selection. As such, his appointment is to be considered irregular. Moreover, the petitioner having been first engaged with effect from 09.09.1997, did not complete the required length of service i.e. ten years as on the date of passing of the judgment in Umadevi (supra) i.e. 10.04.2006. As such, his claim for regularization was rightly turned down.

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Heard Mr. S.K. Rath, learned counsel for the petitioner; Mr. G.K. Agarwal, learned Addl. Government Advocate for the State; and Mr. S.N. Nayak, learned counsel appearing for the University.

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Mr. Rath would argue that the petitioner was engaged against a validly sanctioned post with effect from 07.10.1997. He has continued to work as such till date thereby rendering service for more than twenty seven years to the University which itself proves that the work rendered by the petitioner to the University is regular in nature. With regard to the grounds cited by the State while rejecting his claim for regularization, Mr. Rath has referred to the judgment passed by a coordinate Bench of this Court in the case of Biswanath Dhar v. State of Odisha and others² , wherein the petitioner despite not having completed ten years of service as on 10.04.2006, was directed to be regularized taking note of the fact that he had been continuously serving the establishment against a sanctioned post.

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Mr. Agarwal, learned State counsel, on the other hand, forcefully argues that the ratio laid down in Umadevi (supra) makes it clear that any irregular appointment can be regularized, if at all, only if the person concerned has rendered ten years continuous service as

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2 2023 (II) ILR –CUT- 165

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on the cut-off date i.e. 10.04.2006. In the instant case, admittedly the petitioner had not rendered ten years of service. Moreover, his present continuation of service is because of an interim order passed by this Court, which cannot enure to his benefit.

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Mr. Nayak, learned counsel appearing for the University would argue that admittedly the petitioner has been working in the establishment since 1997 without any break. Since only one post of Driver exists as the other posts have been abolished by the Government, the services of the petitioner are necessary to manage the affairs of the establishment. Considering these facts, the claim of the petitioner for regularization was duly forwarded to the Government but the same having been turned down, the University Authorities cannot regularize the services of the petitioner on their own.

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The facts of the case as narrated above are not disputed. The petitioner was engaged against the vacancy created by the sudden death of the third driver Bhaskar Panda. He was engaged with effect from 07.10.1997. It is not disputed that he was in employment as on

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10.04.2006, though by such time he had rendered nine years and five months of service. As has already been stated by learned counsel appearing for the University, there were three posts of Drivers, out of which two have been abolished in the meantime. The petitioner was rendering service as driver till as late as 18.03.2023, when he was attached to the Central Library. In the impugned order under Annexure-12, the claim of the petitioner has been rejected on the ground that he was selected without undergoing any process of open competitive selection and, therefore, he is an irregular appointee. Further, he had not completed ten years of continues service as on 10.04.2006.

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It is true that certain principles of regularization of service were laid down by the Supreme Court in Umadevi (supra). Such directions were followed by the Supreme Court in the case of State of Karnataka v. M.L. Keshari³ . It was highlighted in both the cases that any public appointment has to be in terms of the constitutional scheme but then taking note of the irregular

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3 AIR 2010 SC 2587

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appointments so made and continuance of such

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appointees for long periods without break, the Supreme Court also held that the State being a model employer, should undertake a one-time exercise to regularize the services of persons who had put in ten years of continuance of service as on 10.04.2006 without availing the protection of an interim order of Courts or tribunals. Admittedly, such an exercise has not been done in the instant case by the University Authorities. Moreover, the petitioner’s engagement was never terminated after passing of the judgment in the case of Umadevi (supra). In fact, he was allowed to continue and even draw the driver’s consolidated scale of pay equal to the driver’s basic with grade pay. It cannot, therefore, be held that there is no requirement for the services of the petitioner. The petitioner admittedly had completed nine years and five months of service as on 10.04.2006. The question is, can his claim for regularization be denied only on the technical ground of not rendering the remaining seven months of service required to complete the ten years period by the cut-off date. Considering the fact that, the

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petitioner even before approaching this Court and being favoured with an interim order had already completed more than ten years of service, this Court is of the considered view that the aforementioned technicality should not come on the way of regularizing his services. In the case of Biswanath Dhar (supra) a Coordinate Bench of this Court in a case involving similar facts held as follows;-

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“ In my humble view, the purpose and intent of the decision rendered in the case of Umadevi (supra) by the Hon'ble Supreme Court has been misinterpreted and subsequent decisions of the Hon'ble Supreme Court on this issue have not been taken into account while considering the case of the petitioners for regularization and passing the impugned order under Annexure-12 in rejecting their claim for regularisation on the ground that they have not worked for more than ten years by 10.04.2006 i.e. the date of decision in the case of Umadevi (supra) and the post has not been sanctioned. The order is unreasonable, arbitrary and thus the conclusion can be corrected by a writ of certiorari. The University has employed the petitioners and continued them in service voluntarily and continuously for more than two decades by now and the petitioners possess the prescribed qualifications for the post of Junior Assistant and they have been selected undergoing selection process on the recommendation of Selection Committee which was also approved by Vice-Chancellor of the University and they are now working against sanctioned posts and have acquired vast experience. In such a scenario, non-regularisation of their services against the available sanctioned posts is unfair, unjustified and arbitrary. The employees are not milking cows in the diary farm of the University from which they are to be driven out on stopping producing milk.”

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For the forgoing reasons therefore, this Court is of the view that the State being a model employer cannot adopt a hyper technical approach to defeat the genuine claim of a person. Moreover, the petitioner having rendered twenty seven years of service by now cannot simply be thrown out of employment at this distance of time as it would certainly defeat his right to livelihood guaranteed under Article 21 of the Constitution of India. Therefore, taking an overall view of the matter, this Court holds that the petitioner’s services need to be regularized without any further delay.

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In the result, the writ application is allowed. The impugned order under Annexure-12 is hereby quashed. The Opp. Party No.3 is directed to pass necessary orders to regularize the services of the petitioner in the post of Driver of the University without any further delay. It is however, made clear that such regularization of services shall be done prospectively. The petitioner shall be entitled to count his services notionally for the purpose of other service benefits. Necessary orders in this regard shall be

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passed within two months from the date of production of

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certified copy of this order by the petitioner.

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……..………………….. Sashikanta Mishra, Judge

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High Court of Orissa, Cuttack

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The 8^th Day of January, 2025/ Puspanjali

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Signature Not Verified

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Digitally Signed Signed by: PUSPANJALI GHADAI Designation: Junior Stenographer Reason: Authentication Location: OHC, Cuttack Date: 17-Jan-2025 19:14:42

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Niranjan Mishra v. Shree Jagannath Sanskrit Vishvavidyalaya

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Niranjan Mishra v. Shree Jagannath Sanskrit Vishvavidyalaya

Case brief

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