HIGH COURT OF ORISSA: CUTTACK. W.P.(C) No.11558 OF 2010 and W.P.(C) No.8038 OF 2014 In the matter of applications under Articles 226 and 227 of the Constitution of India. ------- In both the writ petitions Umesh Chandra Panda …… Petitioner - Versus- State of Orissa and others …… Opposite Parties For Petitioner : M/s Sanjib Mohanty, S.C.Mohanty, C.Sethy, B.Ganthia M/s Saswata Patnaik, L.Mishra, S.K.Singh and S.Das For Opp.Parties : Additional Government Advocate for State. --------- PRESENT: THE HONOURABLE KUMARI JUSTICE SANJU PANDA & THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD --------------------------------------------------------------------------------------------------- Date of hearing and judgment : 7.04.2017 --------------------------------------------------------------------------------------------------- S. N. Prasad, J. Since the issue involved in these two petitions is the same, hence both the cases have been taken up together and the same are being disposed of as follows. 2. W.P.(C) No.11558 of 2010 has been filed under Articles 226 and 227 of the Constitution of India by the petitioner assailing the order dated 28.6.2010 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A.No.2595(C) of 2009 whereby and where under the claim of the petitioner for continuance with the post in which he is discharging duty, has been held to be illegal. 3. Brief facts of the case of the petitioner is that in pursuance to the notice published in the notice board for filling up of the post of Watchman-cum-Sweeper before the District Consumer Redressal Forum, Bhadrak he has been appointed on 2 29.8.1996, his appointment has been made on the basis of the direction of the government dated 16.2.1998 as contained in Order No.3606 issued by the Director, Consumer Affairs-cum-Joint Secretary to Government and since then he is continuing in service. The fact of continuance of the petitioner in service has been questioned and the petitioner had approached the Tribunal time and again, ultimately his case was considered by the Commissioner-cum-Secretary to Government, Food Supplies & Consumer Welfare Department, Bhubaneswar in pursuance to the order passed in O.A.No.2180(C) of 2001 and the Commissioner-cum-Secretary has passed order dated 19.10.2009 as contained in order No.22606 whereby and where under finding has been given that his appointment is without following due procedure, i.e. without any advertisement and as such his contention has not been accepted regarding legality and propriety of appointment, but however, the Commissioner-cum-Secretary has given his opinion that he can at best treated as an adhoc appointee on consolidated pay basis and his pay will be regulated accordingly and in pursuance to such communication the petitioner is continuing in service though as an adhoc appointee, hence he has already completed regular and continuous service of about 21 years as on date and on the date of the judgment rendered by Constitutional Bench in the case of Secretary, State of Karnataka and others vrs. Umadevi(3) and others reported in (2006) 4 SCC 1, about 10 years and as such his case ought to have been considered on the basis of para-53 of the said judgment of the Constitutional Bench, but the Tribunal without appreciating the factual aspects has rejected the claim of the petitioner by holding therein that his case is not coming under the parameter of the ratio laid down by the Constitutional Bench judgment rendered in the case of Secretary, State of Karnataka and others vrs. Umadevi(3) and others(supra). 4. Learned counsel representing the opposite party-State has defended the order by submitting that appointment of the petitioner has been made without following due procedure of law i.e. without any advertisement as well as his name was also not called upon from the Employment Exchange and as such it cannot be said to be in violation of the provision laid down under Article 16 of the Constitution 3 of India, the Tribunal without taking into consideration this aspect of the matter has held that the appointment dehors the rule, hence the order of the Tribunal need not be interfered. 5. Heard learned counsel for the parties, perused the materials available on record as well as the order passed by the Tribunal which is impugned in this writ petitions. 6. The fact which is not in dispute in this case is that the petitioner has been appointed as Watchman-cum-Sweeper in the District Consumer Redressal Forum, Bhadrak by order of the President, Consumer Disputes Redressal Forum, Bhadrak dated 29.8.1996(Annexure-2). The appointment has been made in pursuance to the decision taken by the Secretary, Food Supplies & Consumer Welfare Department vide order dated 16.2.1998 as contained in order No.3606 and in pursuance thereof the President, District Consumer Forum, Bhadrak requested to take steps to fill up the Class-IV post on regular basis following the procedure laid down in the department letter no.26465 dated 3.9.1996, the President, District Consumer Forum, Bhadrak issued notice inviting applications for the post of Peon and Night Watchman-cum-Sweeper and other posts published in the Notice Board of the District Consumer Forum, Bhadrak, C.S.O., Bhadrak, Collector, Bhdrak and some other offices and in pursuance to such advertisement, six candidates for the post of Peon and six candidates for the post of Night Watchman-cum-Sweeper had appeared before the selection committee comprising of the President, District Forum, Bhadrak, C.S.O., Bhadrak, Lady Member of District Forum and one Assistant Teacher. The petitioner along with others had participated before it and on the basis of their performance, merit list was prepared duly signed by the members of the Committee and thereafter order of appointment has been issued in favour of the petitioner. 7. The State authorities has questioned the appointment of the petitioner on the ground that the procedure laid down under Article 16 of the Constitution of India has not been followed, i.e. the appointment has been made without issuance of any advertisement, hence appointment of the petitioner has been held to be illegal. 4 Petitioner had approached the Tribunal against the decision of the authority, Tribunal has passed order directing the Commissioner-cum-Secretary to take decision, in terms thereof, the Commissioner- cum-Secretary, although has come to conclusion that the appointment has been made without any advertisement but allowed the petitioner to continue in service on adhoc appointee on consolidated payment basis as would be evident from the order dated 19.10.2009 and in pursuance thereof the petitioner is continuing in service till date. The Tribunal has passed order rejecting the claim on consideration of his regularization in service by holding therein that since the appointment is illegal and as such the judgment pronounced by the Constitutional Bench of the Hon’ble Apex Court in the case of Secretary, State of Karnataka and others vrs. Umadevi(3) and others(supra) is not applicable and as such he cannot be continued in service which is impugned in this writ petition. 8. We have examined the argument advanced on behalf of the petitioner that the ratio laid down by the Constitutional Bench of the Apex Court in the case of Secretary, State of Karnataka and others vrs. Umadevi(3) and others(supra) is applicable in the facts and circumstances of the instant case, since according to the petitioner, he is continuing since the date of his initial appointment i.e.19.8.1996 till date and as such he has already completed 21 years of regular service without getting any support of interim order passed by any court of law. Learned counsel for the petitioner submits that the ratio laid down by the Hon’ble Apex Court in the case of Secretary, State of Karnataka and others vrs. Umadevi(3) and others(supra) is squarely covered his case reason being that as on the date of pronouncement of the judgment he has completed 10 years of service and even if the appointment is illegal, his case is fit to be considered in the light of the exception carved out by the Hon’ble Apex Court at para-53 of the judgment rendered in the case of Secretary, State of Karnataka and others vrs. Umadevi(3) and others(supra). 9. We, in order to examine the argument of the learned counsel representing the petitioner as well as the finding of the Tribunal whereby and where 5 under the tribunal has been pleased to come to conclusion that the case of the petitioner is not coming under the parameter of the judgment rendered by the Hon’ble Apex Court in the case of Secretary, State of Karnataka and others vrs. Umadevi(3) and others(supra), have thought it proper to examine the judgment rendered in the case of Secretary, State of Karnataka and others vrs. Umadevi(3) and others(supra) as well as the judgment rendered in the case of State of Karnataka & others –vs- M.L.Kesari & others, reported in (2010) 9 SCC 247. The decision in the case of Secretary, State of Karnataka and others vrs. Umadevi(3) and others(supra) was rendered on 10.4.2006. In that case, a Constitution Bench of the Apex Court held that appointments made without following the due process or the rules relating to appointment did not confer any right on the appointees and courts cannot direct their absorption, regularization or re-engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner , in terms of the constitutional scheme. The Hon’ble Apex Court further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution of India. The Hon’ble Apex Court made one exception to the above position and the same is being quoted below: “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [1967 (1)SCR 128], R.N. Nanjundappa [1972 (1) SCC 409] and B.N. Nagarajan [1979 (4) SCC 507] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. ...." 6 It is evident from the quoted part above, that there is exception to the general principles against regularization i.e. (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. Hon’ble Apex Court while rendering the judgment in the case of Secretary, State of Karnataka and others vrs. Umadevi(3) and others(supra) has casted duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure and further directed that such one-time measure must be set in motion within six months from the date of its decision rendered on 10.4.2006. The proposition laid down by the Hon’ble Apex Court in the judgment in the case of Secretary, State of Karnataka and others vrs. Umadevi(3) and others(supra), as has been taken note by the Hon’ble Apex Court in the case of State of Karnataka & others –vs- M.L.Kesari & others(supra) wherein their lordships of the Hon’ble Apex Court has been pleased to come to finding that in the situation where one-time measure has not been completed by State instrumentality and while dealing with such situation it has been laid down that if any employer had delayed one time exercise in terms of para-53 of the judgment in Umadevi(3) case and did not consider cases of such employees who are entitled to the benefit of para-53 of the said judgment, the employer concerned should consider their cases, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para-53 of Umadevi(3) case, are so considered. In the backdrop of these propositions as has been referred herein above, facts of the case in hand needs to be reiterated. 7 10. Admitted fact in the case in hand is that the petitioner has been appointed on 29.8.1996 by order of the President, District Consumer Redressal Forum, Bhadrak, being the competent authority, on the basis of the direction passed by the Secretary, Food Supplies & Consumer Welfare, vide its order dated 16.2.1998 as contained in Order No.3606 by which the President, District Consumer Redressal Forum, Bhadrak had been requested to take steps to fill up Class-IV posts on regular basis following the procedure laid down in the Department letter No.26455 dated 3.9.1996 which clearly suggests that the post was vacant. President, District Consumer Redressal Forum, Bhadrak has initiated recruitment process by notifying vacancy position in the Notice Board of different local offices, however, without being published widely in the daily newspaper, in terms thereof, candidates along with the petitioner had appeared in which the petitioner had been declared successful and thereafter he was selected and engaged with issuance of offer of appointment dated 29.8.1996. It is clear from the factual aspect that the post was sanctioned and the petitioner having its eligible qualification requirement to hold the post but only on account of the fact that there was no wide circulation in the daily newspaper, appointment of the petitioner has been questioned, subsequently he has been terminated on the ground of irregularity. 11. We, on appreciation of the judgments rendered by the Hon’ble Apex Court in the cases of Secretary, State of Karnataka and others vrs. Umadevi(3) and others(supra) and State of Karnataka & others –vs- M.L.Kesari & others(supra) and with critical analysis of the factual aspects of the case in hand, are not in dispute that the appointment of the petitioner can be kept under the category of irregularity not under the category of illegality as per the interpretation made by the Hon’ble Apex Court in the two decisions, hence case of the petitioner is to be considered under para-53 of the judgment rendered in the case of Secretary, State of Karnataka and others vrs. Umadevi(3) and others(supra). The other condition which has been laid down i.e. continuance of service of 10 years which the petitioner is not fulfilling since he has been appointed on 29.8.1996 and till date when the judgment of the case of Umadevi(3) has been pronounced by the Hon’ble Apex Court i.e. on 10.4.2006, he was less of 4 months in 8 completion of 10 years of service. In that situation, we have to consider as to whether case of the petitioner is to be considered for his regularization on the basis of the subsequent fact or not ? We are not in dispute about the proposition laid down by the Hon’ble Apex Court in the case of Secretary, State of Karnataka and others vrs. Umadevi(3) and others(supra) and State of Karnataka & others –vs- M.L.Kesari & others(supra) that for consideration of regularization by carving out the exception as rendered at para-53 if the appointment is irregular. We have already held in above that appointment of the petitioner will be treated in the category of irregularity and not illegality, reason being that the petitioner had been appointed against sanctioned post being eligible to hold the post but without following due process. 12. The third contention, as has been laid down by the Hon’ble Apex Court in Umadevi(3) Case, is that for regularization of service by taking one-time measure, the appointee should have rendered 10 years of continuous service as on the date of pronouncement of judgment in Umadevi(3) Case i.e. 10.4.2006 and admittedly as on 10.4.2006 the petitioner has completed 9 years 8 months of continuous service , but we, on appreciation of the factual aspects, have found that the petitioner’s case was considered by the Commissioner-cum-Secretary, Food Supplies & Consumer Welfare in pursuance to the order of the Orissa Administrative Tribunal and the Commissioner-cum-Secretary has passed order on 19.10.2009 while holding appointment of the petitioner as not in accordance with the law by denying regularization, however, allowed him to continue on adhoc basis and in the process he is still in service and thereby he has completed about 21 years of service. 13. We have gone into the factual aspects of the case in hand and considered the fact that even the Commissioner-cum-Secretary has not passed order of termination rather has allowed the petitioner to continue on adhoc basis which suggests that the authorities is in requirement of his work. In such circumstances, if direction would not be passed by this Court for consideration of the case of the petitioner for regularization, it would amount to great injustice to be meted out to the petitioner for no fault of his own. 9 Further he is continuing on adhoc basis in pursuance to the order passed by the Commissioner-cum-Secretary, hence this Court cannot allow an employee to complete his entire length of service on adhoc basis. We, on taking into consideration the peculiar facts and circumstances of the case as well as the order of the Commissioner-cum-Secretary dated 19.10.2009, are of the view that the case of the petitioner needs to be considered by the authority for his regularization. The Tribunal has not considered this aspect of the matter as has been discussed herein above and rejected claim of the petitioner on the ground that the judgment rendered by the Hon’ble Apex Court in the case of Secretary, State of Karnataka and others vrs. Umadevi(3) and others(supra) is not applicable to the case of the petitioner. Considering the subsequent facts of the instant cases as has been discussed, we are not in agreement with the finding that the petitioner was an illegal appointee rather his appointment is irregular for which we have given elaborate reason in the preceding paragraphs on the basis of the judgment rendered in Umadevi(3) case. 14. In a case like the case in hand it would be relevant to refer to the judgment rendered by the Hon’ble Apex Court in the case of Nihal Singh –v- State of Punjab reported in (2013)14 SCC 65 directed absorption of the Special Police Officers in the State of Punjab holding as under: "35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State. 36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always 10 open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is- the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks." In the other judgment rendered by the Hon’ble Apex Court in the Case of Amarkant Rai –vs- State of Bihar and others reported in (2015)8 SCC 265, their Lordships after taking into consideration the judgments rendered in the cases of Secretary, State of Karnataka and others vrs. Umadevi(3) and others(supra), State of Karnataka & others –vs- M.L.Kesari & others(supra) and Nihal Singh –vs- State of Punjab(supra) has come to finding, taking into consideration of past services of the employee of 29 years and the qualification/eligibility, and directed to consider the case for regularization, for ready reference paragraphs 13 and 14 of the said judgment is being quoted herein below: “13. In our view, the exception carved out in para 53 of Umadevi is applicable to the facts of the present case. There is no material placed on record by the respondents that the appellant has been lacking any qualification or bear any blemish record during his employment for over two decades. It is pertinent to note that services of similarly situated persons on daily wages for regularization viz. one Yatindra Kumar Mishra who was appointed on daily wages on the post of Clerk was regularized w.e.f. 1987. The appellant although initially working against unsanctioned post, the appellant was working continuously since 03.1.2002 against sanctioned post. Since there is no material placed on record regarding the details whether any other night guard was appointed against the sanctioned post, in the facts and circumstances of the case, we are inclined to award monetary benefits be paid from 01.01.2010. 14. 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.” According to our considered view, the Tribunal before reaching to the conclusion that the fact of the case in hand is not to be considered for continuance in service, has not critically examined the judgment rendered in the cases of Secretary, State of Karnataka and others –vs- Umadevi(3) and others(supra), State of Karnataka & others –vs- M.L.Kesari & others(supra) and Nihal Singh –vs- State of Punjab(supra) and as such we, taking into consideration the factual aspects as well as legal proposition as discussed above, are of the considered view that the order 11 passed