Prabhat Kumar Parija & Ors. vs Union Of India & Ors.

Pramod Kumar Das, Member (A)

In compliance of the order dated 16.02.2023 in W.P.(C) No. 20450/2022 of the Hon’ble High Court of Orissa, this OA is restored to filed and listed for hearing.

Heard parties afresh and perused the records.

Ld. Counsel for the applicant submits that applicants were working as casual labourers in DDK, Bhubaneswar ranging from 1989-92 and, as per the scheme and law, they are entitled for regularization. Earlier, they had filed O.A. Nos. 440/92, 562/92, 362/92, which were disposed of by a common order dated 16.11.1993. Thereafter, another O.A. No. 08/94 was filed by some of the casual labourers working in the DD, which was disposed of in terms of the order passed on 16.11.1993, an excerpt from it reads as under:

“On the whole, in the Doordarshan Kendra at Cuttack or Bhubaneswar suppose there are seven casual workers namely A, B, C, D, E, F and G. A, B, C have completed 120 days during the year 1992 and D, E, F & G have worked for a total period of 200 days or any number of days between 121 and 200 during a period covered from 1989 to 1992, they shall be junior to A, B and C and accordingly a seniority list be prepared Kendriyawise and as and when vacancy arises in future such incumbents be appointed according to their seniority as reflected in the seniority list. We propose to still clarify the position as we do not like any controversy to emerge in future. Even if D, E, F & G have not completed 120 days in a calendar year between 1989 to 1992 still they shall not be deprived of being included in the seniority list and receiving their appointments when their turn comes according to their seniority. The examples given above, are only illustrative but the principle will apply to all the casual workers from their date & year of joining. The Central Administrative Tribunal, Principal Bench in the above judgments has also stated that for the purpose of regularization, the upper age limit has to be relaxed and this aspect may be sympathetically considered by the competent authority while regularizing a particular incumbent against a regular post.”

The aforesaid order was challenged before the Hon’ble High Court of Orissa in WP (C) 12614/2008, which was dismissed on 09.07.2009, as against which Civil Appeal No. 6421 and 6423 of 2003 was filed before the Hon’ble Supreme Court which was also dismissed on 21.01.2009. Thereafter, non-compliance of the order was subject matter of challenge before the Hon’ble High Court of Odisha in CONTC No. 49/2010, which was disposed of on 07.12.2015, and before the Hon’ble Apex Court in Special Leave to Appeal (C) No. 30548/2016, which was disposed of on 07.11.2016. Ld. Counsel for the applicants submitted that without adhearing to the directions of the Hon’ble Court, respondents in a pick and choose manner regularized others and issued gradation list causing gross injustice to the applicants. Although, applicant Nos. 1 and 3 had worked for 30 days and 142 days respectively as Copyist from 1989-1991 yet the respondents have regularized Smr. Kiran Bala Mishra, who had worked only for 40 days. Similarly, respondents regularized the services of Sri Rashmikanta Nayak (Respd. No.4) and Paresh Chandra Mohapatra (Respd. No.5) w.e.f. 04.12.2008 and Sri Debabrata Samal (Respd. No.6) w.e.f. 16.08.2005, who had worked only for 88 days, 91 days and 105 days respectively. Being aggrieved, applicants have filed the instant OA praying as under:

“(i) Admit the original application, call for the records and issue necessary direction to the Respondents No.1 and 2 to recast the list vide Annexure-2 in accordance with the seniority of the applicants vis-à-vis the Respondents and to regularize the applicants retrospectively from the date their juniors have been regularized with all consequential benefits. ;

(ii) Respondents No. 1 and 2 are directed to act in accordance to the direction passed by the Hon’ble Court.

(iii) And pass such other order/orders as may be deemed fit and proper in the facts and circumstance of the present case.”

In oppugnation to the contentions of the applicants, respondents by filing counter, submitted that none of the applicants were working in Production Assistant category. The seniority list of Casual Artist engaged prior to 31.12.1991 was prepared taking into consideration the initial date of booking as Casual Artists, strictly in accordance with the directives of this Bench dated 16.11.1993, which was also filed before the Hon’ble High Court of Orissa in C.P.No. 49/2010. As per scheme of 1992 and 1994, the cases for regularization of the applicants were not considered since they were overaged. It is submitted that since the Contc. No. 49/2010 filed by the applicants was dismissed by the Hon’ble High Court of Odisha taking into consideration the seniority list prepared and produced before the Hon’ble High Court, applicants have no locus standi to challenge the same at this distant point of time, which will unsettle a settled proposition. Accordingly, they have prayed for dismissal of this O.A.

Opposing the averments of the respondents, Ld. Counsel for the applicants by filing rejoinder produced the statements filed by the respondents showing the details of applicants and private respondents at Annexure-7 to substantiate that respondents prepared the seniority list not in accordance with the directive of the Bench. In order to justify that the placement of the names of the Casual Artists was carried out at the sweet wish and will, it has been stated that applicant No.1 Sri Prabhat Kr. Parija although has worked for 306 days between 1989-92 yet his name is shown at Sl. No.2 whereas the name of Sri Pravanjan Mohanty who had worked for 208 days has been shown at Sl. No.1. The direction of this Bench was to prepare the list keeping the name of the Casual Artists, who had completed 120 days of service in a calendar year between 1991-92 at the top and persons who had worked for 120-200 days during the period 1989-92 below them and regularize their services as and when vacancy arises. Further, the Tribunal had specifically directed to relax the age so that they should not be deprived of regularization due to over-age, however, the respondents, prepared the seniority list as per their sweet will and, in the process, deprived the applicants of their legitimate expectation of regularization while regularizing others, who had lesser days of working as Casual Artists. Ld. Counsel for the applicants relying on the order dated 25.02.2022 of the Single Bench of this Tribunal in OA No. 744/2017 (Bibhuduta Dixit Vs UOI & Ors) submits that the services of Sri Bibhudutta Dixit, who was similarly placed to that of the applicants, has been regularized and, hence, he claims for equal treatment for the applicants. It is fairly submitted by him that most of the applicants in the meanwhile have reached the age of superannuation in the meanwhile.

We find that this case has a checkered history inasmuch as after the order of this Bench dated 16.11.1993 (quoted above), it is not the case of the applicants that they are still engaged and working on casual basis. Further, no material has also been produced by the applicants that their engagements through a regular process of selection and were working against sanctioned posts. In catena of decisions, the Hon’ble Apex Court have held that the appointment of the incumbents must be in accordance with the rules. Merely because one person having completed lesser number of days was regularized cannot be a ground for issuing direction to regularize the applicants because law is well settled in a plethora of judicial pronouncement that there is no negative equality under Article 14 of Constitution of India. It is seen that this OA was filed on 04.01.2017 and, as per the age declared by the applicants, most of them must have reached the normal age of superannuation or on the verge of reaching the age of 60 years by now. They are seeking direction for their absorption retrospectively. Insofar as the order passed by this Bench in Bibhudutta Dixit (supra), we find that this Bench had allowed his case taking into consideration the specific stand of the respondents in letter dated 23.03.2012 that services of six persons, including Sri Dixit, could have been regularized but have not been given appointment due to want of vacancy at DDK, Bhubaneswar and are still waiting for their regularizartion. Hence, the case of Sri Dixit cannot be equated with the case of the applicants herein. It is noteworthy that without fulfilling the ingredients such as continuance on casual basis and availability of vacancy, the theory of power of retrospective regularization of the services will sabotage the scheme of rules and also the concept of seniority and also violates Articles 14 and 16 of the Constitution. We are reminded by the decision of the Hon’ble Apex Court in the case of Amarendra Kumar Mohapatra and others Vs. State of Orissa, AIR 2014 SC 1716, an excerpt from it reads as under:

"34. A Constitution Bench of this Court in Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. (2006) 4 SCC 1 : (AIR 2006 SC 1806 : 2006 AIR SCW 1991) ruled that regularization of illegal or irregularly appointed persons could never be an alternative mode of recruitment to public service. Such recruitments were, in the opinion of this Court, in complete negation of the guarantees contained in Articles 14 and 16 of the Constitution. Having said so, this Court did not upset the regularizations that had already taken place, regardless of whether such regularizations related to illegal or irregular appointments. The ratio of the decision in that sense was prospective in its application, leaving untouched that which had already happened before the pronouncement of that decision. This is evident from the following passage appearing in the decision:

"We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

It is noteworthy that in similar matter, i.e. in OA 655/2022 (Ajaya Kumar Mahali Vs UOI & Ors.), this Bench of the Tribunal vide order dated 10.12.2024, taking note of the case of Bibhudutta Dixit and other orders of the Tribunal, Hon’ble High Court of Orissa and Hon’ble Apex Court, dismissed the OA. It is not the case of the applicant that the order passed in OA 655/2022 has been overruled or set aside by any higher forum. The applicant in the instant case did not produce any such evidence to take a view other than the view taken in the said OA so as to deviate from the very well settled principle of doctrine of precedence. It is also noted that the Hon’ble Apex Court in very many cases in past have held that the Tribunal should desist from passing order which is not implementable and, in the instant case, regularization and retrospective regularization can only be made if there is sanctioned post, which is not the case of the applicants. The Tribunal also cannot direct for creation of the posts being a policy decision of the Government. In this regard, the relevant portion of the decision of the Hon’ble Apex Court in Indian Drugs & Pharmaceuticals Ltd. v. Workmen, (2007) 1 SCC 408 , is extracted below:

" 37. Creation and abolition of posts and regularization are purely executive functions vide P.U. Joshi v. Accountant General [ (2002) 2 SCC 632 : 2003 SCC ( L & S) 191]. Hence, the Court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, as the judiciary, too, must know its limits."

In view of the facts and law narrated above, we find no force in any of the grounds based on which applicants seek the relief and, therefore, this OA is held to be without any merit. In the result, the OA stands dismissed by leaving the parties to bear their own costs.