Sabitri Pradhan vs State of Orissa and Others

I.M. Quddusi, J.—The petitioner who has been allegedly discriminated from amongst similarly situated persons has sought relief of regularization of her service by way of this Writ Petition.

The petitioner was initially appointed as a Junior Typist in Cuttack Development Authority on casual basis for a period of 44 days on a consolidated salary of Rs. 2,679/- per month, vide appointment Order No. 3798 dtd. 27.3.1998 as an unreserved woman candidate. Thereafter she continued to work as Junior Typist by periodical appointments of 44 days each. In the meantime the State Government in Housing and Urban Development Department, vide Order No. 14445/HUD/TP-OM-272000 dtd. 4.5.2000, ordered that no post be filled up and no appointment/ engagement of staff (Regular/ H.R./D.L.R./N.M.R./Casual Labour/Work Charge) be made in any cadre of the Planning Authority without prior approval of the State Government. Further vide Order No. 39794/F dtd. 26th September, 2000 the State Government in Finance Department issued a circular stating that the "State Government in Finance Department O.M. No. 31271 dtd. 16.7.1999 decided to abolish 50% of the base level vacancies existing as on 1.7.1999 and to reduce man power by 10% in course of three years in Finance Department O.M. No. 34383 dtd. 7.8.1999 in accordance with the MoU signed with Government of India which has also been approved by the State Cabinet", which was applicable to the Cuttack Development Authority.

In spite of the above mentioned ban on appointments/recruitment of personnel, the Cuttack Development Authority decided to regularize the services or the Ad hoc/Casual workers. They have regularized the services of 17 employees, who were similarly situated like the petitioner. Subsequently also vide Order No. 14445/HUD/T.P.-OM-2/2000 dtd. 4.5.2000, the Addl. Secretary to Government of Orissa Housing and Urban Development Department wrote to the Vice-Chairmen of all Development Authorities, the Secretaries of all Regional Improvement Trust and all Special Planning Authorities that the Government was pleased to decide that no post would be filled up and no appointment/engagement of staff (Regular./H.R./D.L.R./ N.M.R./Casual Labour/Work Charge) be made in any cadre of the Planning Authorities without prior approval of the State Government. A true copy of the said Order dtd. 4.5.2000 has been filed as Annexure-B/3 by the Vice-Chairman, Cuttack Development Authority (Sanjay Rastogi) in his affidavit dtd. 23.2.2004. The order of regularization of the employees were issued being Nos. 17587 and 17593 dtd. 3.10.2000. But the case of the petitioner was not considered for regularization/ appointment at the time. The petitioner approached the Vice-Chairman of the Cuttack Development Authority who is the appointing authority.

In his affidavit the Vice-Chairman of the C.D.A. has stated that the Chairman has already approved the proposal of regularization of the service of the petitioner in Office File No. ADM-MS-68/67(P) and consequently, the State Government in H&UD Department has been requested to accord necessary permission to the same. Such permission is very much necessary in view of the restriction imposed by the Government in H&UD Department as the Government has abolished the base level vacancy as on 1.7.1999, vide Resolution No. 38328 dtd. 12.10.1999 and in view of the same there exists no vacancy to regularize/absorb/appoint the petitioner.

The relevant portions of the affidavit of the Vice-Chairman, C.D.A. (Sanjay Rastogi) are reproduced hereunder :-

"6. That the perusal of the record would-rebel that 17 Nos. of daily wagers/ad hoc employees were regularized and appointed on regular basis vide Order No. 17587 and 17593 dtd. 3.10.2000 during incumbency the petitioner, who was working as Junior Clerk-cum-Typist at that time will be considered after the posts are created in the next Authority meeting. The deponent joined on 17.5.2001. The file was placed before the deponent for consideration of the appointment. However, the deponent could not release such appointment order in view of the restriction/ban imposed by the Govt. in H&H.D. letter No. 14445 dtd. 4.5.2000. It is humbly submitted that the deponent being a responsible officer is duty bound to carry out directions of the Government issued from time to time. It is humbly submitted that in view of the restriction imposed by Govt. as well as abolition of base level vacancies, the deponent was constrained to pass such order in the note sheet. Subsequently on receipt of the orders of the Chairman, the deponent instructed the Secretary, CDA to move Government for necessary approval. On the basis of the noting dtd. 21.11.2001 of the Chairman the Secretary, CDA moved Govt. for approval but till date no such approval has been received from the Government.

That in fact the Chairman has approved the proposal for absorption of the petitioner in office File No. ADM-MS-68/97(P). Consequent upon such approval the Government in H&UD Department has been requested to accord necessary permission to appoint the petitioner. Such permission is very much necessary in view of restriction imposed by Govt. in H&UD Department. The Government also abolished the base level vacancy as on 1.7.1999 vide Resolution No. 38328 dtd. 12.10.1999. In view of the same there exist no vacancy to regularize/absorb appoint the petitioner."

From the above discussions and on perusal of the documents annexed to the pleadings of the parties, the undisputed facts are that 17 number of daily wagers/ad hoc employees were regularized and appointed on regular basis by the then Vice-Chairman, Cuttack Development Authority, vide Order Nos. 17587 & 17593 dtd 3.10.2000 when the State Government had already imposed a ban for fresh appointment/engagement ignoring the direction of the Government.

The case of the petitioner was similar to those seven persons. If the Resolution of the Government dtd. 12.10.1999 regarding abolition of base level vacancies as on 1.7.1999 as well as ban imposed on appointment/engagement for filling up any vacancies in the Development Authority, dtd 4.5.2000 was ignored in case of those seventeen persons, this Court fails to understand why in the case of the petitioner the Resolution and ban are being taken up so seriously. If the Development Authority could ignore the Resolution and ban in the case of 17 persons, there was no reason as to why in the case of the Writ Petitioner, they could not ignore the same to give similar treatment to the petitioner. Those persons, who have been given regular appointment/regularization orders did not form a distinct class as the petitioner was similarly situated like them. Besides, the recommendation for regularization of service of the petitioner sent by the Vice-Chairman, Cuttack Development Authority to the State Government, Housing and Urban Secretary to Government, Housing and Urban Development Department was also not proper. A letter of the Under Secretary to Government, Housing and Urban Development Department has been produced. The said letter is numbered as TPF 34/2004-1553/H&U.D. dtd. 17.1.2005 addressed to Mr. D. R. Mohapatra, Addl. Govt. Advocate in connection with this case. The said letter reads thus :

"I am directed to invite a reference to this Department Letter No. 25194 dtd. 9.12.2004 (copy enclosed) on the above subject and to say that we have already requested C.D.A. vide letter Nos. 24858 dtd. 6.12.2004 (copy enclosed) to indicate the action taken to abolish 75% of the base level post as on committee constituted by P.E. Department for filling up the vacant post.

In view of the above, the reply of C.D.A. Cuttack is awaited so some more time is required to furnish the Information.

You are, therefore, requested to take necessary steps at your end to apprise the fact to the Hon''ble High Court in the matter and file, the Hon''ble court may also be moved to allow three months time in the matter."

On a perusal of the above quoted letter, it is clear that the State Government wanted that Cuttack Development Authority to abolish 75% of the base level posts as on 1.4.2004. In his affidavit, the Vice-Chairman, Cuttack Development Authority has referred to Order No. 39794/F dtd. 26.9.2000 and O. M. N6. 31271 dtd. 16.7.1999 of the Finance Department by which it was decided on abolish 50% of the base level vacancies that existed as on 1.7.1999 but the same were ignored by the Cuttack Development Authority. It only regularized services of 17 persons who were working on casual/daily wage basis and were similar to the petitioner.

While considering to grant approval to the appointment of the petitioner on regular basis with effect from the date when those 17 persons were regularized, Government could have asked Cuttack Development Authority to intimate them whether the decision of the Government referred to above was followed by it or not. But they were constrained to accord sanction for regularization of service of the petitioner on the basis of the recommendation of the Vice-Chairman, Cuttack Development Authority.

In the cases of Raj Pal v. State of Haryana reported in 1996 (1) SCJ 183, appointment of person similarly situated was taken into service. In that case the appellant was the only person left out of consideration. The Apex Court held that the petitioner was entitled to the same relief with consequential benefits. In that case the Apex Court has ordered as hereunder :

*** *** *** In view of the order passed by this Court in SLP(C) No. 3099-3100/85 and batch, the persons similarly situated were admitted taken into service and their services have been regularized. Under these circumstances since the appellant, who is the only person left out in the field also stands in the same position, we think on this special circumstances, he is also entitled to the same relief.

The appeal is accordingly allowed. But the appellant would not be entitled to the back-wages; he would, however get all other consequential benefits. The respondents are directed to take the appellant into service within a period of four weeks from the date of the receipt of this order.

Appeal allowed."

Considering, the aforesaid facts and circumstances of the case, we feel that the petitioner has been discriminated while regularizing the services of persons similarly situated thus the action of the opposite parties is viotative of Articles 14 & 15 of the Constitution. Therefore, the Writ Petition is allowed in part. Writ in the nature of Mandamus be issued commanding the State Government, Housing and Urban Development Department to take a decision on the recommendation of the Vice-Chairman, Cuttack Development Authority for according permission for regularization of the service of the petitioner keeping in view the decision taken in respect of 17 other similarly situated persons as well as in the light of observation made above. However, in case the decision is not communicated to the Vice-Chairman, Cuttack Development Authority within a period of one month from the date of communication of this order, it will be deemed that sanction has been accorded and in that case the Vice-Chairmen, Cuttack Development Authority shall pass necessary orders for regularization of the service of the petitioner.

No. Cost.

N. Prusty, J

I agree.