ORISSA HIGH COURT: CUTTACK O.J.C. No.10093 of 2001 & W.P.(C) No.5643 of 2002 An application under Articles 226 and 227 of the Constitution of India. ---------In O.J.C. No.10093 of 2001 Binan Kumar Mohanty & others ……… -versus- Petitioners Water & Land Management Institute (WALMI) & others ……… Opposite Parties For Petitioners For Opposite Party Nos.1& 2 For Opposite Party No.3 : M/s. J.K. Rath (Sr.Adv.), S.N. Rath, P.K. Rout, S. MIshra, C.K.Rajguru & D.N. Rath. : M/s. S.K. Nayak, B.K. Sahoo, M.S. Sahoo, Miss M. Bhanja & Miss D. Nayak. : Mr. S. Kanungo, Addl. Govt. Advocate In W.P.(C). No.5643 of 2002 Nikhil Kumar Panda & others ……….. Petitioners -versusState of Orissa & others ……….. Opposite Parties For Petitioner : M/s. J.K. Rath (Sr.Adv.), S.N. Rath, P.K. Rout, C.K. Rajguru & S. MIshra Mr. S. Kanungo, Addl. Govt. Advocate. For Opp. Party No.1 : For Opp.Party nos.2 & 3 : M/s. S.K. Nayak, B.K. Sahoo, M.S. Sahoo, Miss M. Bhanja & Miss D. Nayak. _____________________ PRESENT: THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing : 08.09.2014 :: Date of Judgment: 26.09.2014 2 Dr. B.R.Sarangi, J.The petitioners in these two writ applications seek regularization of their services on completion of five years as per the mandate of this Court, Annexure-1 dated 12.11.1996 confirmed by the apex Court in Civil Appeal Nos.2795-2799/97 on 21.04.1997.They have sought direction to the opposite parties to regularize their services with effect from the date of completion of five years of service as per the principle laid down by this Court in O.J.C. No.9495 of 1995 and a batch of cases decided on 12.11.1996 vide Annexure-1, and extend all the benefits of a regular employee as are being provided to other employees of Water and Land Management Institute (hereinafter referred to (WALMI) and also to release the financial benefits in their favour as they are continuing in services without any break till date.
2. The pleaded facts in O.J.C. No.10093 of 2001 are that petitioner nos.1, 2, 3 and 4 were appointed as Junior Assistants-cum-Typists under opposite party no.1 in the year 1994 whereas petitioner no.5 joined as a Junior Assistant in the year 1992. Petitioner no.6 was appointed as the Junior Laboratory Assistant in the year 1994 and petitioner no.7 was appointed as a Watchman in 1994. In W.P.(C) No.5643 of 2002, petitioner no.1 is working as Junior Engineer and posted at Sakhigopal FOT under WALMI. Similarly, petitioner nos. 2 and 3 are working as Junior Engineer at Udala FOT under the Chief Engineer and Director, WALMI, whereas petitioner no.4 is working as an Operator for Projector and Training Equipment, WALMI at Pratapnagari. Since their appointments, they have been continuing against regular (sanctioned) posts under WALMI. While the petitioners were continuing in their respective posts, on 23.12.1995 the opposite parties 3 issued order of their disengagement. Therefore, petitioner Nos.1 and 2 had approached this Court by filing O.J.C. No.9520 of 1995, Petitioner Nos.3 and 4 were the parties to O.J.C. NO.9521 of 1995, petitioner No.5 had filed O.J.C. No.9635 of 1995, petitioner No.6 had filed O.J.C. No.1383 of 1996 and petitioner No.7 had filed O.J.C. No.8065 of 1997. All the said writ petitions were with similar prayer. All the matters being heard analogously, a common judgment was passed on 12.11.1996 allowing all the writ applications and quashing the order of disengagement of the petitioners issued by the opposite parties vide Annexure-1, and directing the services of the persons who worked for more than five years, to be regularized. Accordingly, opposite party no.1 regularized the services of the petitioners as also others who had completed five years of service or going to complete five years. At the same time though the opposite parties assailed the said judgment passed on 12.11.1996 by this Court before the apex Court in Civil Appeal (Civil) No.2795-2799/97, the same was dismissed vide order of the apex Court dated 21.04.1997. As a consequence thereof, the observation made by this Court in paragraphs-9 and 10 of the aforesaid judgment was upheld by the apex Court. Thereafter, though the petitioners were engaged in service against regular posts, their appointments were made on 89 days basis with a gap of one or two months and again appointed on 89 days basis. Challenging such action of the opposite parties, petitioner nos.1 to 5 had to again file another writ application before this Court being O.J.C. No.1847 of 1998, seeking direction to the opposite parties to allow them to work until regular selection was made. By order dated 10.09.1998, this Court disposed 4 of the said writ petition directing the opposite parties to issue engagement/appointment orders on 89 days basis with one day break as was being done. Accordingly, the petitioners were allowed to continue in their services. In the process the petitioners completed more than five years against the regular sanctioned posts in the organization.
3. Mr. J.K. Rath, learned Senior Counsel appearing for the petitioners strenuously urged that in view of observation made by this Court in paragraphs-9 and 10 of the judgment dated 12.11.1996 confirmed by the apex Court, the petitioners’ services have to be regularized on completion of five years of service entitling them to get the benefits admissible to the similarly situated persons as they have been discharging their duties against regular sanctioned posts.
4. Mr. S. Nayak, learned Senior Counsel appearing for opposite party nos.1 and 2 while admitting the fact of continuance of the petitioners in services, urged that the State Government having pressing hard for trimming establishment and abolishing base level posts of WALMI, the services of the petitioners are No.being regularized and when fresh recruitment shall be made, the petitioners will be given preference on priority basis as per the recruitment rules as per the observations made in paragraphs-9 and 10 of the judgment in Annexure-1.
5. Mr. J.K. Rath, learned Senior Counsel categorically urged that the petitioners have completed more than 20 years of service by now. Therefore, it canNo.be construed that there are no regular posts available in the establishment and on the other hand as there is need of work in the said regular posts for which they have to be absorbed in the said regular posts 5 and entitling them to get the benefits admissible on completion of five years as per the decision of this Court, confirmed by the apex Court.
6. The sole question to be considered in these cases is as to whether the services of the petitioners can be regularized against the sanctioned posts in which they are continuing the last 20 years entitling them to get the benefits admissible after completion of five years of service or No.in consonance with the judgment passed by this Court in Annexure-1, confirmed by the apex Court in Civil Appeal Nos.2795-2799/97 dated 21.04.1997.
7. As it appears, this Court while considering the case of the petitioners analogously passed the judgment vide Annexure-1 dated 12.11.1996 wherein paragraphs-9, 10 and 11 are held as follows: “9. No.turning to the factual aspect of the case, it would appear that the petitioners have been working in different capacities on temporary basis for the period ranging from one and half years to five years. Five of them, namely, Bhikari Charan Lenka, Purnendu Sekhar Mishra, Somarendu Samantray, Nikhil Kumar Panda and Manas Ranjan Swain are in the rank of Junior Engineers, Bhikari Charan Lenka and Somarendu Samantray came to be appointed in January, 1991 and by the time of filing the writ petitions they completed four years eleven months of service. The rest of the three Junior Engineers joined in March, 1994. So far as other petitioners are concerned, Pradeep Kumar Rout and Bijan Kumar Mohanty were initially engaged as Irrigations on N.M.R. basis and subsequently got appointment as Junior Clerk-cum-Typist for a spell of 89 days wwhich was subsequently extended from time to time. Miss Satyabati Naik, Alok Kumar Mohapatra and Bishnupada Khatua are new entrants as Junior Clerk-cum-Typist, their appointment being in July, 1994. Pradeep Kumar Rout, Pramod Kumar Sahu and Ranjan Kumar Rout were engaged in 1992/1994 as Watchman. Admittedly, the management of WALMI has no administrative instructions or regulations governing recruitment to various posts. Appointments to various posts are made either on N.M.R. or adhoc basis without holding any interview/selection. On completion of 5 years service such employees are regularized and absorbed permanently against the posts they were initially appointed. The petitioners are disengaged with effect from 23.12.1995 on a vague ground that their services were no longer required. Learned counsel for the WALMI contended that the impugned orders were issued because none of the petitioners completed five years of service and such of the N.M.Rs. who completed five years of service are to be considered for absorption. On careful consideration of the said submission, we are of the opinion that there is no justification for the opposite parties to issue the impugned orders disengaging the 6 petitioners from service. It is true that none of them had completed five years of service under WALMI but in view of the admitted fact that posts are lying vacant and there is work for the petitioners and the management having never questioned about the suitability and satisfactory performance of the petitioners, the plea of the opposite parties that their services are no more required is untenable. Till regular recruitments take place, the petitioners ought to have been allowed to continue in their services. The opposite parties are No.debarred from making fresh recruitments as per the recruitment Rules, if any. In such cases they will have to give chances to the petitioners (except Engineers-petitioners) to pass through the recruitment process and their cases are required to be considered keeping in view the experience they have gained meanwhile under the WALMI. In the circumstances, the action of the Chief Engineercum-Director in issuing the impugned orders is arbitrary.
10. It appears from the records that for taking administrative decision in the functioning of the WALMI, a committee has come to be formed under the Presidentship of the Commissioner-cumSecretary to the Government in the Department of Water Resources. There are six other members of whom one is the Additional Secretary to the Government in the Department of Finance. The said committee in its meeting held on 24.12.1994 (Annexure-12) deferred the matter regarding regularization of services of adhoc Junior Engineers and other adhoc employees working in various posts. It is No.clear from the records whether subsequent meeting of the committee was held before the petitioners’ services were dispensed with. Be that as it may, we have noted that two of the Junior Engineers, namely, Bhikari Charan Lenka and Somarendu Samantray have completed four years eleven months of service by the time of issuance of the impugned orders and we do No.find any justification to disengage them from service just when they were about to complete five years of service for being absorbed. The approach made by the authority in this regard is No.pragmatic but pedantic. The remaining three Junior Engineers who came to be employed in March, 1994 have completed about two years of service. It was submitted at the Bar that to give employment to unemployed graduate engineers a scheme has been formulated by the Government and as per the said scheme appointment is given according to the seniority. Had the names of these three Junior Engineers been enlisted, they would have got appointment in due course in any Government departments/Corporations. Their disengagement from service at this stage would cause grave injustice inasmuch as they may have to wait in the queue to enter into Government service provided they are within the age limit and meanwhile junior to them got into service because of their earlier empanelment in the scheme. This being the mode of employment of unemployed Engineers adopted by the Government, the authorities of WALMI shall reconsider the cases of the rest three engineers for their absorption on regular basis in the WALMI.
11. In the result, the impugned orders disengaging the petitioners from service are quashed. Petitioners Bhikari Charan Lenka and Somarendu Samantray, the two Junior Engineers, who were about to complete five years of service by the time the impugned orders were passed will be absorbed on regular basis in the WALMI within a period of one month from the date of receipt of this order. The opposite parties will re-engage rest of the petitioners in their respective services and their cases should be dealt with as per the observations made in paragraphs-9 and 10 of this judgment. 7 8. Assailing the said judgment, though the opposite parties approached the apex Court in Civil Appeal No.2795-2799/97, the apex Court passed an order on 21.04.1997 to the following effect: “The Special Leave Petitions are dismissed”.. With the dismissal of the SLP preferred by the opposite parties, the judgment passed by this Court on 12.11.1996 was confirmed.
9. In view of such position, the employees those who had completed five years or were going to complete five years, their services had to be regularized and entitling them to get benefits admissible at par with their counter parts in the regular establishment. Accordingly, services of some of the petitioners those who had completed five years of services by the time SLP was dismissed, were regularized by the opposite parties, whereas the petitioners were allowed to continue initially for a period of 89 days with break. The said action of the opposite parties appointing the petitioners on 89 days basis was again challenged before this Court in O.J.C. No.1847/98. By virtue of the order 10.09.1998 passed by this Court in O.J.C. No.1847/98, the petitioners were issued appointment order with 89 days basis with one day break since they were working against regular sanctioned approved posts and were continuing since 1994 onward. In the meantime, they have completed more than 20 years of service and their services have been regularized on completion of five years of service.
10. Pursuant to order passed by this Court on 28.01.2003 an affidavit was filed by opposite party no.2 indicating the vacancy position by enclosing a statement showing the present strength of post, curtailment and balance posts retained in WALMI as on the date of the affidavit. The said 8 statement indicates that the sanctioned strength of WALMI so far as Junior Assistant-cum-Typist is concerned is 24, the posts proposed to be abolished are 10 and the balance retained are 14. To controvert such contention, the petitioners filed reply to the affidavit stating therein that there are four persons continuing against the regular posts of Junior Assistant-cum-Typist as submitted. Since 14 posts are to continue after abolition of 10 out of 24 regular posts since four persons are continuing against such regular posts, 10 regular posts of Junior Assistant and is existing in the establishment. Against the said 10 regular posts, five petitioners are continuing as Junior Assistant-cum-Typist on ad hoc basis. Even taking the petitioners against such posts, five posts are still available to be filled up so far as Junior Assistant-cum-Typists are concerned. Similarly, petitioner nos.6 and 7 are continuing against sanctioned post of Junior Laboratory Assistant and Watchman respectively.
11. The petitioners filed Misc. Case bearing No.571 of 2007 seeking appropriate order annexing thereto a document in which opposite party no.1 submitted before the Accountant General, Orissa on 30.03.2007 to bring out posts from planned scheme to non-planned scheme showing therein that 11 posts of Junior Assistant-cum-Typist, three posts of Junior Laboratory Assistant, 8 posts of Watchman were brought over to planned scheme from non-planned scheme and as the petitioners were continuing in such posts they are brought over to the non-planned scheme which clearly indicates that the posts in which they are continuing are regular and sanctioned posts of opposite party no.1. 9 12. Opposite party no.1 filed objection to the said Misc. Case stating therein that the letter submitted by the Director on 08.11.2006 indicating the names of the petitioners to be continuing on ad hoc basis against sanctioned posts. That ipso facto indicates as per the contention of opposite party no.2 in his letter dated 08.11.2006 that the petitioners were discharging their duties and responsibility against regular posts, the State Government in its subsequent communication dated 30.05.2007 addressed to Accountant General with reference to letters dated 14.03.2007, 07.04.2007 and 11.05.2007 indicated the regular posts in the establishment brought over to non-planned scheme showing the names of the petitioners as the incumbents. Therefore, the claim of the petitioners for regularization of their services is well-founded in view of the correspondence referred to above but the benefits have No.yet been extended on the pretext of financial crunch.
13. In paragraph-7 of the counter affidavit filed by opposite party nos.2 and 3 to the writ petition dated 19.06.2008 is stated as follows: “7. That as regards the claim for regularization of the services of the petitioners, it may kindly be noted that due to restructuring programme of the staff position of WALMI, the Management of WALMI did No.take steps for regularization of the services of the petitioners. Since the said scheme/programme which is pending with Government is delayed, the Governing Council of WALMI in its meeting held on 27.02.08, proposed to recommend the Government for regularization of the services of the petitioner and others. Accordingly, a letter dated 14.05.2008 has been sent to the Government in its Water Sources Department for regularization of services. A copy of the said letter is annexed herewith as Annexure-A to this affidavit. Soon after the approval of the Government, immediate steps would be taken by the Management of WALMI for regularization of the services of the petitioners”.. It is stated that till date the Government has No.acted on the basis of the recommendation made on letter dated 14.05.2008 in Annexure- 10 A to the said affidavit, that ipso facto canNo.disentitle the petitioner to get the legitimate claim as due admissible in conformity with the provisions of law.
14. Opposite party nos.1 and 2 though a society, the State has control over its functions. Once opposite party nos.1 and 2 recommended, it is for the State Government to act upon the same with promptitude. Inaction on the part of the State Government deprives the legitimate claim of the petitioners attracting the provisions of Article-21 of the Constitution of India. Right to life is to live with dignity as envisaged under Article 21 of the Constitution of India. Taking no decision on the recommendation made for quite long time, itself amounts to arbitrary and unreasonable exercise of power by the authority exploiting the petitioners and making them worse sufferers.
15. The judgment of this Court, Annexure-1, confirmed by the apex Court has to be implemented inasmuch as the petitioners having completed five years of services against the sanctioned posts, their services are to be regularized at par with their counterparts i.e. similar situated regular employees of the organization. In the case of Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1, the apex Court held that the Government companies/public sector undertakings being “States”. would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution of India. The power of the State in the sphere of exercise of its constitutional power including those contained in Article 298 of the Constitution of India inheres 11 in it a duty towards public, whose money is being invested. Therefore, while carrying trade or business the State must fulfill its Constitutional obligations.
15. As it appears that in the present case, the petitioners have rendered service for around 20 years, keeping in view the ratio decided in Kapila Hingorani (supra), this Court issues directions to the opposite parties to mitigate the hardship of the employees. Financial stringency is no ground for No.issuing requisite directions when there is violation of fundamental rights of the petitioners. Though opposite party nos.2 and 3 have already made recommendation as per letter dated 14.05.2008 to the Government of Orissa in its Water and Resources Department for regularization of services, the latter’s sitting tight over the matter for a long period on pretext of financial crunch in violation of Article-21 of the Constitution of India, is sheer arbitrariness of the Government which is highly condemnable.
16. Considering the above parameters, prompt action should be taken by opposite party no.3 on the basis of the recommendation made by opposite party nos.1 and 2 as per letter dated 15.05.2008 and the benefits should be extended to the petitioners in consonance with the judgment of this Court in Annexure-1 confirmed by the apex Court as above regularizing their services on completion of five years of service and extending all benefits as due admissible at par with their counter part of the regular employees in the said organization. Such exercise should be completed within a period of four months from the date of communication of this judgment. 12 With the above observation and direction, the O.J.C and W.P.(C) both are disposed of. No order as to costs. ……………………….. Dr.B.R.Sarangi, J.Orissa High Court, Cuttack The 26th September,2014/Alok