Guru Charan Sahoo vs Chairman-cum-Managing Director, Orissa Small Industries Corpn. Ltd. and Another

D.P. Mohapatra, J.—The petitioner Guru Charan Sahoo, is a Nominal Muster Roll (NMR) employee of the Orissa Small Industries Corporation (hereinafter referred to as ''the Corporation''), a State Government undertaking. He has passed LA. Examination from Utkal University and has appeared for the B.A. Examination, but his result is yet to be declared. He has filed this writ application seeking regularisation of his service.

The petitioner''s case, shorn of unnecessary details, may be stated thus :

The petitioner joined service in the Corporation as an NMR Class III employee on November 1, 1983 and has been continuing as such since then. He worked in different sections of the Corporation office and discharged duties assigned to him from time to him. As the office order dated November 19, 1990 (Annexure 1) issued by the Chairman-cum-Managing Director shows, he was transferred from the Export Division of the Corporation and posted in the site office, OSIC, Ib Valley Thermal Power Project, Banharpali. From the office order dated March 9, 1991 (Annexure 2) of the Project Manager, OSIC, ITPS Site, Banharpali, it appears that the petitioner who was then serving as Junior Assistant was assigned duties, inter alia, to receive and issue iron steel materials, maintain records and registers pertaining to such transactions, to receive consumables and make all arrangements for transportation of the materials after weighment and measurement thereof. From the office order of the Managing Director dated December 14, 1989 (Annexure-3) it is clear that the petitioner was posted in Assembly and Movement Section under the Manager, Export Division. The Joint Manager, M.K.G., OSIC Ltd. Site Office, Angul issued the certificate dated April 10, 1987, stating, inter alia, that the petitioner has been working under the Corporation since November 1, 1983 and performance during the period was very. good.

It is the case of the petitioner that services of Basant Kumar Panigrahi and Ramesh Chandra Sahu, who were appointed like the petitioner as N.M.R. Workers in 1984 and Shri Dilip Kumar Mohanty who was appointed as such in 1985, have been regularised as Junior Assistant, but the petitioner, though senior to them, still languishes as N.M.R. employee without getting the service benefits enjoyed by regular employees and he is being paid daily wages. In such compelling circumstances, the petitioner filed the writ application for redress of his grievance citing the Chairman-cum-Managing Director, Orissa Small Industries Corporation Ltd. and the Project Manager, Orissa Small Industries Corporation, Ib Thermal Power Project Site, as opposite parties.

In the counter affidavit filed by opp. party No. l, the claim of the petitioner for regularisation in service is refuted. It is alleged that he was engaged in the Project Work at Angul on daily wage basis at the rate of Rs. 18/- per day from November 1, 1983 to March 31, 1988 without any appointment order issued in his favour. He was removed from the work after closure of that project by the Site Manager in charge of the project. Thereafter on his request the petitioner was re-engaged in the work after a period of seven months in another project, i.e. Operation Black Board on daily wage basis from October 26, 1988. This time also no appointment order was issued to him. According to the opposite parties, the petitioner is not an employee of the Corporation. It is further stated in the counter that the petitioner is not eligible to hold a Class III post under the Orissa Small Industries Corporation Employees Service Rules, 1979 since he does not possess the minimum qualification for the post of Junior Assistant since he is not a graduate. As he does not fulfill the eligibility qualification prescribed in the rules, his service has not been regularised. However, on consideration of his representation, the Corporation called him to the interview for selection of Junior Assistant on June 10, 1991, but he failed to qualify for the post. The petitioner also did not appear in the typing test for the post of Junior Typist. On the above averments, opp. party No. 1 prayed for dismissal of the writ application.

The relevant factual position which emerges from pleadings of the parties, as we read them, is that the petitioner has been serving in a Class III post under the Corporation since November 1, 1983 and has been discharging the duties assigned to him from time to time to the satisfaction of his superiors, he has put in more than nine years of service; in the meantime some of his juniors who similarly joined as Class III employees on N.M.R. basis have been regularised in substantive posts; the case of the petitioner was not considered on the ground that he did not possess the prescribed qualification as he was not a graduate in Arts, Science or Commerce.

The Employees Service Rules of the Corporation were in force by the time the petitioner was engaged as an N.M.R. employee and the concerned functionaries of the Corporation had not insisted on the educational qualification prescribed under the Rules. In other words, though he was not a graduate he was engaged in Class III post. Even thereafter, neither any objection to his appointment was raised on that ground nor he was intimated about any deficiency in his qualification. Further, notwithstanding the deficiency in academic qualification, the petitioner discharged the duties and responsibilities assigned to him to the satisfaction of his superiors. He has in the meantime acquired experience for a considerable period. At this belated stage it is neither fair nor proper for the Corporation to deny him benefit of regular service merely on the ground of lack of educational qualification.

The apex court in the case of Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, similar fact position ruled as followed (at p.322):

"Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the services. Once the appointments of petitioners were made to daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. It can be said that three years experience, ignoring artificial break in service for short period/periods created by the management, in the circumstances would be sufficient for confirmation.

xx xx xx Therefore the petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharged similar duties, and are entitled to the scale of pay and all allowances revised from time for the said posts."

In the case of State of Haryana and others Vs. Piara Singh and others etc. etc., the apex Court considering the rule of the Court in service matters and the principles to be followed in the matter of regularisation of services held as follows (at p.944).

"Ordinarily speaking the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making rule under the proviso to Article 309 of the Constitution or (in the absence of such Rule, by issuing Rules/Instructions in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the court in such matters is to ensure the Rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirement of Articles 14 and 15. It also means that the State 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. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the Directive Principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the Court presumes that there is need and warrant for a regular post and accordingly directs regularisation."

On analysis of the matter the apex Court issued a direction to the Government of Punjab to verify the vacancy position in the categories of daily wagers and casual labourers and frame a scheme of absorption in a fair and just manner providing for regularisation of these persons, having regard to their length of service and other relevant conditions, and ordered further that as many as possible shall be absorbed.

Judging the case at hand in the light of the principles enunciated by the apex Court in the aforementioned cases, we have no hesitation to hold that the petitioner is entitled to regularisation of service in the post of Junior Assistant. To hold otherwise, we feel, will be encouraging exploitation of the employees by the Corporation, a Government undertaking by taking undue advantage of helplessness and poverty of the petitioner. It may be noted here that in the meantime he has become age-barred for getting into service under the State Government.

We, therefore, allow the writ application and direct the opposite parties to regularise the service of the petitioner in a substantive post of Junior Assistant. If no post is available or there is reasonable difficulty for creating such a post, the petitioner''s service will be regularised in the next vacancy, and till then, he will continue as Junior Assistant on NMR basis, but will be paid salary in the scale of pay sanctioned for regular Junior Assistant in the Corporation. The petitioner will be entitled to receive from the opposite parties a sum of Rs. 500/- towards cost.

A.K. Padhi, J.

I agree.