Victimising a person for an Uncommunicated Order of Termination or Disengagement is not Lawful: Orissa High Court

ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 6213 OF 2014 In the matter of an application under Articles 226 and 227 of the Constitution of India. AFR Rajib Lochan Mahanta … Petitioner Versus Vice Chancellor Utkal University and others ….. Opp. Parties For Petitioner M s. Digambar Mishra and S. Satpathy Advocates and M. Ojha Advocates O.Ps. No. 1 & 2] For Opp. Parties : M s. T. Pattanayak S. Pattanaik Mr. Y.S.P. Babu Addl. Govt. Advocate O.P. No.3] P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing: 25.03.2021 :: Date of Judgment: 31.03.2021 DR. B.R. SARANGI J. Rajib Lochan Mahanta who was working as a Group D employee in Utkal University Khurda has filed this writ petition seeking direction to the opposite The factual matrix of the case in hand is parties to remove the discrimination and regularize him in the Group D post available in the establishment of opposite party University and place him in the gradation list meant for Class IV posts for consequential services and financial benefits as due and admissible to him at par with similarly situated persons whose services have already been regularized. that in Dhrubananda Mishra and others vs. Vice Chancellor Utkal University 77 CLT 70 nine petitioners had approached this Court seeking two directions from this Court the first was relating to regularization of service and the second was to pay them equal to that of their counterparts in regular service. The Division Bench of this Court held that regularization has been accepted as a part and parcel of condition of service and specifically for those who had completed five years of continuous service. Since all the nine petitioners in the said writ petition had completed more than five years of continuous service so a case of regularization was made out and the Division Bench of this Court directed the opposite parties to take early steps for regularization of those petitioners along with other eligible employees by framing an appropriate scheme and thereafter to regularize as per the seniority of the incumbents. It was also directed that apart from the basic pay those petitioners at all be entitled to dearness and additional dearness allowance only being paid to the regular hands. That entitlement would be given effect from the date of passing of the judgment i.e. 13.01.1993. It is apparent that on regularization the incumbents would get the pay and other allowances as are available to regularly employed employees. The aforesaid judgment was challenged before the apex Court in SLPNo. 92493 and the same was dismissed on 13.02.1996. Consequentially the order passed by the Division Bench was confirmed. After confirmation of the judgment of this Court the opposite partyUniversity on 23.05.1996 prepared a seniority list of daily wages working in its establishment wherein the petitioner’s name found place at serial no. 171 and one Niranjan Patra at serial no. 170. The opposite party University also prepared the list indicating deduction of EPF from the wages of non regular employees according to the seniority wherein the petitioner’s name found place at serial no. 83 Niranjan Patra was placed at serial no. 82 Sarbeswar Gochhayat at seial no. 85 Mohan Kumar Muduli at serial no. 86. In terms of the judgment passed by the Division Bench of this Court in Dhrubananda Mishra the University regularized the employees in two spells in 1st spell 87 and in 2nd spell 77 totaling to 164 employees who were in the seniority list under Annexre 2 were regularized. In the 2nd spell Niranjan Patra who was at serial no. 170 just above the petitioner was regularized on 06.02.2014. As per received under the Right to Information Act 2005 all total 174 posts were available in Class IV cadre in the opposite Therefore the petitioner along with party University establishment. Thereby 10 more vacancies were left out against which the petitioner who is standing at serial no. 171 could have been regularized but for the reasons best known to the authority his services have not been regularized though one Niranjan Patra standing just above the petitioner at serial no. 170 was regularized. fourteen others filed W.P.(C) No. 73906 before this Court. The Division Bench of this Court vide order dated 26.02.2009 disposed of the said writ petition directing the State Government to take a decision on the proposal given by the University within a period of fifteen days from the date of receipt of a copy of that order. Prafulla Kumar Barik and three others filed another writ petition bearing W.P.(C) No. 65606 and this Court vide order dated 18.03.2011 disposed of the said writ petition with a direction to the opposite party University to move the State Government to obtain clearance to regularize the services of those petitioners and that if such a move was made the Department of Finance would pass necessary orders directing the Utkal University to regularize the services of those petitioners within three months from the date of communication of that order. Similar direction was also made in OJC No. 130099which was disposed of on 27.01.2006. The said order was challenged in SLP No. 19829 of 2006 and the apex Court vide order dated 16.02.2009 dismissed the said SLP. Thereby a large number of persons have been regularized in terms of the various orders passed in different writ petitions as well as contempt petitions. Similarly pursuant to the order passed in CONTC No. 33711 arising out of W.P.(C) No.65606 four persons have been regularized. But the petitioner has been discriminated though Niranjan Patra standing at serial no. 170 just above the petitioner has been regularized. Due to such discriminatory action of the authority the petitioner has approached this Court by filing this application. Mr. D. Mishra learned counsel for the petitioner vehemently contended that once the matter has been settled by the apex Court in SLP in compliance of the order dated 13.01.1993 passed in Dhrubananda Mishra the petitioner who is coming under the other eligible employees category having completed five years of continuous service is entitled to be regularized and as such he is also entitled to get equal pay for equal work. In compliance of direction of the Division Bench of this Court though seniority list was prepared and the name of the petitioner was found place at serial no. 171 but his services were not regularized even though the services of one Niranjan Patra who was just above the petitioner at serial no. 170 have been regularized. Thereby the petitioner along with others again approached this Court by filing W.P.(C) No. 73906 which was disposed of on 26.02.2009 taking averments made in paragraph 7 of the counter affidavit wherein it was specifically stated that pursuant to the order of this Court in OJC No. 3490 the University prepared a list of DLRs according to their date of engagement and regularized 77 persons according to the the meantime the Government on 14.03.2001 imposed ban on the recruitment as a part of austerity measure. Furthermore the University had also moved the State Government to permit it to fill up the vacancies in Group D category. Till then the University had not received any reply from the State Government. Thereby this Court disposed of the said writ petition on 26.02.2009 directing the State Government to take decision on the proposal given by the University within a period of fifteen days from the date of receipt of the copy of that order. Consequentially in compliance of such order some of the persons have already been regularized but the petitioner has only been discriminated. As such his service has not been regularized nor has he been granted the benefit as due and admissible to him in view of judgment of this Court in Dhrubananda Mishra supra). On the other hand he has not been allowed to continue in service and no such communication has been made to the petitioner. To substantiate his contention he has relied upon the judgments in Dhrubananda Mishra v. Vice Chancellor Utkal University 77CLT 70 State of Punjab v. Amar Singh Harika AIR 1966 SC 1313 Dulu Devi v. State of Assam 2016 SCC 622 and State of Karnataka v. M.L. Keshari AIR 2010 SC Mr. T.N. Pattanayak learned counsel appearing for opposite parties no. 1 and 2 University referring to the counter affidavit contended that since the petitioner was engaged on 22.08.1994 which is after the cutoff date i.e. 12.04.1993 his services could not be regularized. It is further contended that the employees who were engaged prior to 12.04.1993 were to be conferred with temporary status. Since the petitioner’s case is not so being engaged on 22.08.1994 i.e. after the cutoff date he was not conferred with the temporary status for not being eligible as per the criteria enumerated in the Finance Department Resolution dated 04.09.2012. It is further contended that pursuant to judgment dated 13.01.1993 passed by this Court in OJC No. 348 of 1990 a list of DLRs containing the names of 175 persons was prepared on 23.05.1996 out of which the services of 77 DLRs were regularized against the substantive vacancies in phased manner up to 2002 prior to imposition of selective ban on recruitment by the Government vide letter dated 14.03.2001. It is further contended that though the name of the petitioner was enlisted at serial no. 171 yet later on it was found that his engagement admittedly was after the cutoff date i.e. 12.04.1993 as per the Finance Department Resolution dated 04.09.2012 and thereby his services have not been regularized. As such no illegality or irregularity has been committed by the authority. Mr. Y.S.P. Babu learned Addl. Government Advocate appearing for opposite party no.3 contended that since it is a matter between the petitioner and opposite parties no. 1 and 2 University unless the University placed the matter before the Government for approval it cannot be considered. Therefore for non implementation of the judgment passed by this Court responsibility can be fixed on opposite parties no. 1 and 2 but not on opposite party no.3. This Court heard Mr. Digambar Mishra learned counsel appearing for the petitioner Mr. T.N. Pattanayak learned counsel appearing for opposite parties no.1 and 2 and Mr. Y.S.P. Babu learned Additional Government Advocate appearing for opposite party no.3. Pleadings have been exchanged between the parties and since this matter is of the year 2014 with the consent of learned counsel for the parties the writ petition is being disposed of finally at the stage of admission. In view of the factual matrix as delineated above there is no dispute that the petitioner was continuing in a Group D post in Utkal University and has completed more than five years of continuous service to be for regularization. In Dhrubananda Mishra supra) this Court vide judgment dated 13.01.1993 observed as follows: “2. Regularization has been accepted as a part and parcel of condition of service and specially for those who have completed five years of continuous service. In the present case according to Shri Mohapatra all the nine petitioners before us have completed by now more than five years of continuous service as a case for regularization has been made and we direct the opposite parties to take early steps for regularization of those petitioners along with other eligible employees by framing an appropriate scheme and thereafter to regularize as per the seniority of the incumbents.” As a consequence thereof the services of petitioners therein and other eligible employees from the seniority list were regularized. The petitioner herein is one of those eligible employees whose name found place at Serial No.171 of the list prepared in consonance with the direction given by the Division Bench of this Court. In Dhrubananda Mishrathis Court also directed to pay equal that of regularly employed class IV incumbents which reads as follows: “ … Placed in such a situation we can only direct to make available to all the nine petitioners the pay equal to that of regularly employed class IV incumbents and we do so.” “ .So order that apart from the basic pay the petitioners at all be entitled to dearness and additional dearness allowance only being paid to the regular hands. This entitlement will be given that on regularization the incumbents would get the pay and other allowances as are available to regularly employed employees.” is apparent The aforesaid judgment of this Court was challenged before the apex Court in SLP No.92493 which was dismissed vide order dated 13.02.1996. Consequentially the judgment dated 13.01.1993 passed by this Court in OJC No.348 of 1990 was confirmed. In consonance with the said judgment a list of daily wagers working under the Utkal University was prepared vide Annexure 2 dated 23.06.1996 wherein the petitioner’s name found place at Serial No.171. The University also prepared a list indicating deduction of EPF from the wages of non regular employees from the month of January 2009 wherein the petitioner’s name found place at Serial No.83 Sarbeswar Gochhayat at Serial No.85 Mohan Kumar Muduli at Serial No.86 in terms of the judgment passed by this Court in Dhrubananda Mishra persons were regularized who were in the seniority list under Annexure 2. According to the information received under the RTI Act 2005 there were 174 posts available in Class IV cadre in the opposite party University. As such even though 10 vacancies were available the services of the petitioner could not be regularized whereas services of Niranjan Patra whose name stands just above the petitioner at Serial No.170 have been regularized. Due to inaction of the authority fifteen persons including the petitioner filed W.P.(C) No.7391 of 2006 and the Division Bench of this Court vide order dated 26.02.2009 disposed of the said writ petition on the basis of the averments made in paragraph 7 of the counter affidavit filed by the University. The said paragraph 7 is quoted below: “7. That it is apt to state here that pursuant to order of this Hon’ble Court in OJC No.3490 the university has prepared a list of DLRs their date of engagement and regularized 77 persons according to vacancies. In the mean time the Government have imposed a ban on the recruitment on 14.03.2001 as a part of austerity measure. Furthermore the university has also moved the State Government to permit it till fill up the vacancies in Group D post category. Still yet the university has not received any reply from the State Government.” In terms of paragraph 7 as quoted above this Court disposed of the said writ petition directing the State Government to take a decision on the proposal submitted by the University within a period of 15 days from the date of passing of the order. Thereafter Prafulla Kumar Barik and three others filed W.P.(C) No.65606 and this Court vide order dated 18.03.2011 disposed of the said writ petition wherein reference was made to the following the vacancy. the meantime “Counter affidavit has been filed by the opposite party university and in paragraph 7 thereof it has been indicated that pursuant to the order passed by this Court in OJC No.348 of 1990 they have prepared a list of DLRs according to their date of engagement and regularized 77 persons according the state government has issued a ban order vide office memorandum no.10954 F Bt1 9 2001 dated 14.03.2001 and due to ban order the University is not in a position to regularize the DLRs and moved the state government for necessary permission. It is further indicated that the university mostly depends on the state government for funds for payment of salary to its employees for their filed on financial need. This affidavit the services of “Accordingly we direct the opposite party University to move the state government to obtain petitioners. If such a move is made the government in the department of Finance is directed to pass necessary orders directing the Utkal University to regularize the services of the petitioners. Let the entire exercise be completed within three months from the date of communication of this order.” Finally this Court disposed of the said writ petition with the following direction: Similar direction was also given in OJC No.13005 of 1999 disposed of on 27.01.2006. The said order was challenged before the apex Court in SLP No.19829 of 2006 which was also dismissed on 16.02.2009. As a consequence thereof a large number of persons were regularized in terms of various orders passed in different writ petitions and contempt petitions. Similarly pursuant to order passed in CONTC No.3374 of 2011 arising out of W.P.(C) No.65606 the services of four persons were regularized vide Annexure 10 dated 06.02.2014. Thereby the petitioner claims that he should not have been discriminated the matter of regularization as the similarly situated persons have been The sole contention raised by University is that the services of the DLRs who were engaged prior to cutoff date i.e. 12.04.1993 were temporary status pursuant to Finance Department Resolution No.31715 F dated 04.09.2012 wherein it has been specifically mentioned that employees who were engaged prior to 12.04.1993 shall be conferred with temporary status. As the petitioner was engaged on 22.08.1994 i.e. after the cutoff date 12.04.1993 he was not conferred with temporary status. But subsequently by filing rejoinder affidavit on 27.06.2017 the petitioner disputed such fact and specifically stated as follows: “Further the case of the university is that the petitioner was appointed after 12.04.1993 his case was not consideration. This ground also falls to the ground in as much as persons engaged after the petitioner had already been regularized. For kind perusal a true copy of the letter dated 22.07.2014 isused by the Warden and which had already been brought to the knowledge of this Hon’ble Court in a contempt proceeding is annexed hereto as Annexure 13.” He has given an extract of Annexure 13 annexing to the rejoinder affidavit stating inter alia the persons engaged subsequent to the petitioner as DLR NMR by the University even after the cutoff date i.e. 12.04.1993 their services have been regularized. The same is given below: Date of with effect Maker Bhoi Sudhir Nayak Ramesh Panda Saraswati Rao Pratima Nayak 01.02.1996 Daily wage 01.02.1996 Daily wage 08.06.1994 Daily wage 08.06.1994 Daily wage 01.05.1996 Daily wage 07.02.1995 Daily wage As the services of juniors to the petitioners have been regularized the University should not have taken an apathetic attitude to the petitioner taking the plea that the petitioner was engaged after the cutoff date i.e. 12.04.1993 which indicates that the University is bent upon not to regularize the services of the petitioner even though he is otherwise entitled to. Pursuant to direction issued by this Court if the University has already prepared a seniority list of 175 persons and out of them 170 persons have been regularized in two spells i.e. 87+77 and the petitioner’s name found place in Sl. No.171 there is no valid and justifiable reason not to regularize the services of the petitioner and put him to harassment for no fault of him. A specific pleadings have been made by the petitioner in reply affidavit to the additional affidavit filed by opposite parties no.1 and 2 that Makar Bhoi whose date of joining is 01.02.1996 Sudhir Nayak whose date of joining is 01.02.1996 Ramesh Panda whose date of joining is 08.06.1994 Gitanjali Upadhyay whose date of joining is 08.06.1994 Saraswati Rao whose date of joining is 01.05.1996 and Pratima Nayak whose date of appointment is 07.02.1995 were appointed as daily wager their services have been regularized w.e.f. 31.05.2006. Therefore it is evident that the persons having been appointed after the cutoff date and also after the petitioner have been regularized but the petitioner has been discriminated. In response to the rejoinder affidavit a further affidavit has been filed on behalf of opposite parties no.1 and 2 stating as follows: “However the government in its own prudence has been pleased to turn down such proposal of the university in negative stating therein that since the university has never appointed such NMRs DRLs with the permission of the government there is no question of regularization with the concurrence of the government vide letter no.10999 dated 06.04.2009 of the S.L.O. cum Deputy Secretary to Govt. Govt. of Odisha Department of Higher Education Odisha Bhubaneswar. Copy of the said letter no.10999 dated 06.04.2009 of the S.L.O. cum Deputy Secretary to Govt. Govt. of Odisha and a legible typed copy of the said letter is annexed hereto as Annexure A 4. That further it is pertinent to bring to the kind notice of the Hon’ble Court that in the past vide circular FDOM No.17815 F dated 12.04.1993 of the Finance Dept. Govt. of Odisha as regards the following subject “Ban of recruitment of Work charge employees and NMRs and Ban on engagement of persons on daily wage personal responsibility on person engaging and or disbursing wage for such persons” the Syndicate in its meeting held on dated 24.07.2013 had resolved as follows: “the Vice Chancellor was authorized to disposed off the case” of the petitioner Sri Rajib Lochan Mohanta along with certain other similarly persons. However the Vice Chancellor in his own prudence considered it proper to place the said matter of disengagement of the petitioner along with others as stated above for necessary reconsideration at the level of Syndicate of its earlier decision dated 24.07.2013. Thus the same was placed as item no.4 dated 04.11.2013 before the Syndicate. Yet the Syndicate resolved as follows: “Resolved that the steps to be taken to disengage 4 05.11.2013 and the Vice Chancellor is authorized to make suitable alternatives.” four) DLRs with effect Thus as per the official records as on date the petitioner stands disengaged. Copy of the said circular FDOM No.17815 F dated 12.04.1993 of the Finance Dept. Govt. Odisha the list of Item to the Syndicate to be held on 04.11.2013 for reconsideration of the case of the petitioner and others duly signed by the Registrar on dated 01.11.2013 and the decision of the Syndicate dated 04.11.2013 thereafter are annexed hereto as Annexure A 5 series.” In view of such affidavit an attempt has been made to bring to the notice of this Court that the petitioner was disengaged from service pursuant to decision taken by the Syndicate on 04.11.2013. The said document has been placed at page 105 of the brief by which along with the petitioner one Sarbeswar Gochhayat Mohan Muduli and Smt. Saraswati Barik were also disengaged from service. The ban so imposed on recruitment of work charged employees and NMRs on 14.03.2001 is only fresh engagement but not regularization of services. Therefore the petitioner has been discriminated in all the times even though he made his grievances time and again and consequentially he faced disengagement. Mohan Kumar Muduli who was disengaged along with the petitioner pursuant to decision of the Syndicate on 04.11.2013 and was engaged after the cutoff date i.e. 12.04.1993 approached this Court by filing W.P.(C) No.13254 of 2014 and this Court on 21.11.2019 passed a detailed order which reads as “Heard Mr. S. Mohanty learned counsel for the petitioner learned Additional Government Advocate for the State and Mr. T. Pattanayak learned counsel for opposite party nos. 1 & 2 Utkal University. In the accompanied writ application the petitioner who was engaged as a DLR employee to the Utkal University has filed the instant writ petition for correction of graduation list published on 12.04.2013. The name of the petitioner has not been approved and petitioner further prays for grant of all financial consequential benefits. Bereft of unnecessary details relevant facts delineated in the writ petition is that initially the petitioner was engaged as a DLR employee on 01.01.1989 and was discharging his duties as and when required and whatever work has been assigned by the Utkal University till 14.03.1995 intermittent breaks. Subsequently petitioner was allowed to discharge duties like DLR continuously till 12.04.2013. In the year 2013 the Registrar Utkal University opposite party nos. 1 & 2 prepared a gradation list of DLR employees as per the information available in the establishment where the petitioner’s position in the gradation list is at Serial No. 103 and his date of joining in the University was reflected as 15.03.1995 as per Annexure 2 to the writ petition. After coming to know about incorrect reflection of date of joining of the petitioner the petitioner brought this matter to the notice of the opposite parties which fell on deaf years. The services of 87 DLR employees were conferred with temporary status and services were regularized in various Group D posts with effect from 18.03.2011 as evident from Annexure 4 when the petitioner was not allowed to discharge his duties and was not paid his salary in the month of February 2014. In spite of the fact that dismissal removal has been issued the petitioner came to know under RTI Act that the syndicate at its meeting held on 04.11.2013 has resolved to discharge the DLRs those who were engaged after 12.04.1993 pursuant to the Finance Department circular no. 17815 F dtd. 12.04.1993 as evident from Annexure 6 series. The petitioner has approached this Court under Article 226 of the Constitution of redressal of his Learned counsel for the petitioner submits that the petitioner in fact was engaged as DLR in the year 1989. Prior to the cutoff date and there was some intermittent breaks on 01.01.1989 to 1995. Since 1995 the petitioner continued in his duties uninterruptedly till 2013. Thereafter the name of the petitioner ought to have been reflected appointment engagement of the petitioner was prior to the cutoff date. list Learned counsel for the petitioner in order to buttress his claim refers the decision of the Hon’ble Apex Court in the cases of Secretary State of karnatak v. Umadevi AIR 2006 SC 1806 State of Karnatak v. M.L. Keshari AIR 2010 SC 2587 Nihal Singh v. State of Punjab AIR 2013 SC 3567 and Amarkant Rai v. State of Bihar and others 8 SCC 265. Learned counsel for the petitioner submits that in view of the aforesaid dictum of the Hon’ble Apex Court the petitioner’s service deserves to be regularized and he is entitled to all consequential service benefits. Controverting the averments made in the writ application counter affidavit has been filed by opposite party no. 1 & 2 wherein it has been stated that since there is a break in service of the petitioner from the very initial date of engagement i.e. 28.11.1988 his date of engagement in the said service has been computed from 15.03.1995 i.e. from when he has rendered continuous service. Therefore his representation dated 12.04.2013 soliciting correction in the gradation list was not considered by the authorities of the University It is further submitted in the counter affidavit that the petitioner was never in continuous service for long 26 years as claimed rather he was absent continuously from more than two years i.e. from July 1992 to 14.03.1995. Long authorized absence from duty amounts to discontinuity in from 08.01.19992 Also counter affidavit filed by opposite party nos. 1 and 2 to consolidated writ application where it has been stated that the petitioner remained absconded 14.03.1995 for which his name could not be reflected in the gradation list with effect from 28.11.1988. Besides as per the circular issued by the Registrar dated 26.11.1999 the daily wager who is absent will be absent continuously for one month or more without prior permission of the controlling officer be discontinued. Hence breakage in service his date of engagement has been taken as 15.03.1995 from where he rendered his duty after return from the absconding period. it appears After hearing learned counsel respective parties and discussing submissions made absolutely no dispute with regard to the fact that the petitioner rendered continuous services from the year 1995 to 2013 and there is also no dispute with regard to the services rendered by the petitioner prior to the cutoff date. i.e. 12.04.1993 as DLR employee though it was replete with immediate breaks. It would be profitable be quote the relevant paragraphs of the decision of the Hon’ble Apex Court in Umadevi M.L. Keshari Nihar Singh and Amarkant Rai citedhereunder : “ In Umadevi mentioned supra paragraph 53 of the said judgmentthe Apex Court held as follows : tribunals. The “ 53. One aspect needs to be clarified. There may be cases where irregular appointments as explained Narayanappa SCR 128): R.N. Nanjundappa(1) SCC 409) : AIR 1972 SC 1767) and B.N. Ngarajan SCC 507) AIR 1979 SC 1676) 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 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 instrumentalities should Government and their take steps to regularize as a one time measure the services of such irregularity appointed who have worked for ten years of more in duty 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 ..” The object behind the aforesaid direction is two fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of the courts or tribunals before the decision in Umadevi supra) was regularization in view of their long service. Second departments instrumentalities do not perpetuate rendered are the practice of employing persons on daily wage ad hoc casual for long periods and then periodically regularize them on the ground that they have served for more than ten years thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years without the protection of any interim order of any Court or tribunal in vacant posts processing the requisite qualification are entitled to be considered for regularization. Following the aforesaid principles rendered in the case of Umadevi in M.L. Keshari supra) the apex Court held that case of such employees who have completed ten years of service and do not possess the educational qualification prescribed for the post at the time of their appointment may be regularization in suitable lower posts considering their length of service rendered to be organization. In Nihal Singh mentioned supra the apex Court directed for regularization of service of the appellants creating new posts and on such regularization the appellants would be entitled to al the benefits of service attached to the posts which are similar in nature in the category of police service of the State and also awarded cost to be paid to each of the appellants in the said case. In the case of Amarkant Raitaking into consideration the cases of Umadevi M.L. Keshari and Nihal Singh mentioned supra the apex Court came to a conclusion that the appellant served the University for more than 29 years in the post of Night Guard and he has serviced the college on daily wage basis and therefore directed the authority to regularize the service of the appellant in the said case retrospectively w.e.f. 03.01.2002. Considering the contention raised by learned counsel for the parties and after going through the records without expressing any opinion on the merits of the case this writ petition is disposed of directing the opposite parties University to consider the grievance of the petitioner with regard to regularization of his service as expeditiously as possibly preferably within a period of four months from the date of communication of this order. Needless to say that while considering the grievance of the petitioner the authority shall take into account the case of the similarly situated person who has already been regularized by the authority concerned. It is made clear that the Government will not cause any further delay in granting necessary approval with regard to request made by the University for approval of the post. With the above observation and direction the writ petition stands disposed of.” Issue urgent certified copy as per rules.” Subsequently he filed I.A. No.17102 of 2019 for modification of order dated 21.11.2019 passed in W.P.(C) No.13254 of 2014 and this Court on 28.01.2020 passed the following order: “This is an application for modification of in W.P.(C) order dated 21.11.2019 passed No.132514. Considering the submission made by the learned counsel for the petitioner in 6th line of para 1 of page no.7 of the order dated 21.11.2019 insert the words ‘reinstatement and’ after the word ‘to’. Rest part of the order shall remain unaltered. Office to do the needful. The I.A. is accordingly disposed of. Urgent certified copy of this order be granted on proper application.” Since the said order was not complied with he filed CONTC No.1720 of 2020 which was disposed of on 08.06.2020. In compliance of the said order Mohan Kumar Muduli and Sarbeswar Gochhayat who were appointed after the cutoff date and disengaged along with the petitioner pursuant to the decision of the syndicate dated 04.11.2013 were regularized and allowed to equal pay with equal work. Admittedly both are juniors to the petitioner and were engaged after the cutoff date. reliance has been placed on Syndicate decision held on 04.11.2013 but the same was not communicated to the petitioner nor was any opportunity of hearing given while disengaging the petitioner from service. In Dulu Devithe apex Court held that mere passing of an order of dismissal or termination would not be effective unless is published and communicated to employee concerned. Merely a decision was taken by the Syndicate and an order was passed and kept in file need not be treated as order of disengagement termination from service as the said order was not communicated to the petitioner. In Amar Singh Harika supra) a Constitution Bench of the apex Court held that the order of termination without communication shall not have any This Court while considering the case of Mohan Kumar Muduli in W.P.(C) No. 13254 of 2014 taking into consideration the judgments of the apex Court in Umadevi M.L. Keshari Nihal Singh and Amarkant Rai mentioned supra directed for regularization of service of the petitioner Mohan Kumar Muduli and Sarbeswar Gochhayat as a consequence whereof in view of the order passed in contempt application the services of Mohan Kumar Muduli and Sarbeswar Gochhayat have been regularized. The cumulative effect of factual and legal aspects as discussed above is that the petitioner in the present writ petition has been discriminated at all stages and for the reasons best known to the authorities the services of the petitioner have not been regularized though services of similarly situated persons and the persons engaged after him have been regularized long since. As it appears the petitioner has only been victimized by the uncommunicated order of the syndicate disengaging him from service. Thereby such order of the syndicate dated 04.11.2013 disengaging the petitioner is liable to be quashed and is accordingly quashed. The petitioner shall be deemed to be continuing in service and as such his service shall be regularized forthwith with all consequential benefits as due and admissible to him at par with his counterparts from the date his immediate juniors have been extended with such benefits. Accordingly his seniority shall be fixed and he shall be granted both service and financial benefits as due and admissible to the post against which he shall be regularized from the date his juniors have been extended such benefits. The entire exercise shall be completed within a period of three months from the date of communication of this judgment. The writ petition is thus allowed. However there shall be no order as to costs. JUDGE DR.B.R.SARANGI Orissa High Court Cuttack The 31st March 2021 Alok Ajaya GDS 

Summary: Discriminating against a person at all stages and holding him responsible for an uncommunicated order is not legally permissible. Merely taking a decision and passing it and keeping it in the file without publishing it or communicating it to the petitioner will not be a valid reason for not regularising him in accordance with the orders of the Apex Court. This auspicious judgment was passed by the Orissa High Court in the matter of RAJIB LOCHAN MAHANTA V. VICE-CHANCELLOR, UTKAL UNIVERSITY &amp; ORS. [WRIT PETITION (C) NO. 6213 OF 2014] by Honourable Dr. Justice DR. Justice B.R.Sarangi. This writ petition is filed for seeking direction to remove discrimination against the petitioner and instead regularize him in the Group-D post so as to claim consequential services and financial benefits as due and admissible to him at par with similarly situated persons, whose services have already been regularized as opposed to him. The factual matrix of this case relates to another case, Dhrubananda Mishra and others vs. Vice-Chancellor 77 (1994) CLT 70, where the petitioners sought two directions from the Court; first pertained to regularization of service and the second was to pay them equal to that of their counterparts in regular service. The Division Bench of this Court held that regularization is ordered for those who had completed five years of continuous service. This judgement was confirmed by the Apex Court also in SLP (C) No. 9240 of 1993. Thus, the university formed a list for regularising the class-IV cadre but the petitioner was not regularized, though the one standing just above the petitioner was regularized so he filed a writ petition, W.P.(C) No. 7391 of 2006 which was disposed with a direction to the State Government to take a decision on the proposal given by the University within a period of fifteen days. During this period several other petitions were filed in the court, all of which were disposed with a similar direction, yet the petitioner, who has completed five years’ service and is disallowed further service, has still not been regularised. The court relied on Parikhit Mallik v Vice-Chancellor, Utkal University OJC No.13005 of 1999 and Prafulla Kumar Barik &amp; Ors W.P.(C) No.6567 of 2006 and also acknowledged all the evidence and documents submitted by the Petitioner to substantiate his allegation of discrimination against him for not regularising him. The Court observed that “The ban so imposed on recruitment of work charged employees and NMRs is only applicable to the fresh engagement but not for regularization of services. Therefore, the petitioner has been discriminated in all the times even though he made his grievances time and again and consequentially, he faced disengagement.” Also, the court considered the order passed in Mohan Kumar Muduli W.P.(C) No.13254 of 2014 case and iterated that, “Mohan Kumar Muduli and Sarbeswar Gochhayat, who was appointed after the cutoff date and disengaged along with the petitioner were regularized and allowed to equal pay with equal work. Admittedly, both are juniors to the petitioner and were engaged after the cut-off date and yet the petitioner was not regularised.” Also, the Court agreed that, “the same was not communicated to the petitioner nor any opportunity of hearing was given to him while disengaging the petitioner from service.” Therefore, this termination is not valid.