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IN THE HIGH COURT OF ORISSA : CUTTACK
B.R. SARANGI, J.
Rajendra Kumar Nayak - Petitioner
Versus
Orissa Mining Corporation Limited and others - Opp. Parties
OJC NO. 11051 OF 2000
Decided on : 01-08-2017
It is worthwhile to mention here that the Court comes into the picture only to ensure observance of fundamental rights, and to ensure the rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with requirements of Articles 14 and 16 of the Constitution, and that the authority should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. For this very reason, it is held that a person should not be kept in temporary or ad hoc status for a long period. Where a temporary or ad hoc appointment is continued for long, the Court presumes that there is need of a regular post and accordingly directs for regularization. While issuing direction for regularization, the Court must first ascertain the relevant fact, and must be cognizant of the several situations and eventualities that may arise on account of such direction. If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization, provided he is eligible and qualified, according to rules, and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. Even though a casual labourer is continued for a fairly long spell, say two or three years, a presumption may arise that there is regular need for his service. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularization. While doing so, the authorities ought to adopt a positive approach coupled with empathy for the person. But here is a case where even though the petitioner is continuing in the post for last more than 30 years, his service has not yet been regularized, though persons appointed after him have already been regularized. (Paras - 6 to 14).
JUDGMENT :
DR. B.R. SARANGI, J
The Orissa Mining Corporation Limited (OMCL), a Government of Odisha Undertaking, by office order dated 11.04.1987 at Annexure-1, appointed the petitioner as Worksirkar Grade-II at Civil Section, Barbil for a period of 89 days with effect from 13.04.1987 to 10.07.1987 in the scale of Rs.750-1150/-with usual allowance as admissible subject to the terms and conditions mentioned therein. Pursuant thereto, the petitioner joined in the said post on 13.04.1987. The term of his service was extended from time to time and, consequent upon the decision of the Board of Directors in its 297th meeting held on 24.12.1994 which was circulated on 14.07.1995, the petitioner is continuing in service till date without any break. Even though the petitioner was joined as Worksirkar Grade-II, he has been performing the duty of a Junior Assistant from the date of his joining.
2. The General Manager, OMCL, Barbil requested the Managing Director, OMCL on 12.04.1988 to give appointment to the petitioner in the post of Legal Assistant and to post him at Barbil, as he has got requisite qualification and experience at Bar including additional advantage of his service experience as a Junior Assistant in the office of the Advocate General. Time and again letters were issued by the authority, under which the petitioner was rendering service, to absorb him at least in the post of Junior Assistant taking into consideration his efficiency, qualification and nature of duty discharged by him. The Manager (Personal & Administration), by his letter dated 26.02.1992, intimated the Special Officer, OMCL that the OMCL had adopted a principle that persons occupying lower posts, if found qualified for the higher post, could be considered subject to vacancy and suitability, and that the case of the petitioner being one of such cases, since he had acquired sufficient knowledge about the industrial working and industrial disputes, his service would be useful to the Corporation, if he was considered for the post of Legal Assistant or Junior Assistant (Legal). Even though the petitioner made series of representations to absorb him, the authorities turned deaf ear. But by letter dated 01.03.2014, the persons appointed much after the petitioner have been regularized and, consequentially, the petitioner has been discriminated. Therefore, he has approached this Court by filing the present writ application seeking regularization of his service with all consequential and financial benefits as admissible to the post of Junior Assistant in the OMCL.
3. Mr. R.K. Rath, learned Senior Counsel appearing along with Mr. N.C. Mohanty, learned counsel for the petitioner contended that the petitioner, having rendered service since more than 30 years in a post, is entitled to be regularized with all consequential benefits, and the inaction of the authorities in regularizing the service of the petitioner amounts to arbitrary and unreasonable exercise of power, which violates Article 14 of the Constitution of India. It is further contended that the petitioner, even though was appointed as Worksirkar, was subsequently entrusted with the duty of Junior Assistant, which work he has been discharging for a quite long period, and that itself indicates that the vacancy is available. As such, there will be no impediment if services of the petitioner are regularized, especially when the higher authorities from time to time have recommended for his continuance as Legal Assistant or Junior Assistant (Legal). It is also contended that, although several correspondences were made by the higher authorities indicating the efficiency, acquisition of qualification and nature of duty discharged by the petitioner on being assigned, the same have not been considered in proper perspective, as a result of which, for more than 30 years, the petitioner is languishing as a Worksirkar, and such act of the authorities amounts to exploitation of labour. It is also contended that, when juniors to
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