Santosh Kumar Nayak vs State Of Odisha And Ors

Chittaranjan Dash, J

By means of the intra-Court Appeal, the Appellant calls in question the judgment and order dated 06.09.2024 passed by the learned Single Judge in W.P.(C) No.12673 of 2020, whereby the writ petition preferred by the Appellant came to be dismissed primarily on the ground that no vacancy was available in the promotional post of Foreman.

The case of the Appellant, in brief, is that he was initially engaged as Fitter Mechanic on NMR basis under the administrative control of the Executive Engineer, Public Health Division, Sambalpur in the year 1987. It is stated that the Appellant possesses matriculation qualification along with ITI certificate in Fitter Trade. The further case of the Appellant is that although similarly situated employees possessing ITI qualification and the employees not having qualification were also promoted and were regularised as Fitter Mistry, the Appellant was regularised as Chowkidar with effect from 20.06.1994. It is the stand of the Appellant that the Government had issued a circular dated 09.08.1990 directing regularisation of ITI certificate holders as Fitter Mistry and that the Superintending Engineer, Public Health Circle, Sambalpur had also issued consequential instructions on 02.01.1991 in that regard. According to the Appellant, despite such circulars and despite possessing technical qualification in Fitter Trade, he was regularised against the post of Chowkidar. The Appellant had earlier approached the Odisha Administrative Tribunal in O.A. No.818 of 1996 and thereafter this Court in W.P.(C) No.26358 of 2019. Subsequently, the representation of the Appellant came to be rejected by the authorities on the ground that no vacancy was available for considering his claim. Challenging the said action, the Appellant preferred W.P.(C) No.12673 of 2020, which was dismissed by the learned Single Judge by the impugned judgment dated 06.09.2024.

Learned counsel appearing for the Appellant contended that the Appellant, though possessing matriculation qualification with ITI certificate in Fitter Trade and having been engaged as Fitter Mechanic on NMR basis, was illegally regularised as Chowkidar with effect from 20.06.1994, despite the Government circular dated 09.08.1990 and the consequential communication dated 02.01.1991 requiring ITI certificate holders to be regularised as Fitter Mistry. It was submitted that the Appellant had throughout discharged technical duties and that similarly situated employees had been regularised and subsequently promoted in the technical cadre, whereas the Appellant alone had been deprived of such benefit. It was further contended that the learned Single Judge failed to appreciate that the root issue was the erroneous regularization of the Appellant in the post of Chowkidar and not merely the absence of vacancy in the promotional post of Foreman.

Learned AGA, on the other hand, contended that the Appellant had accepted his regularisation as Chowkidar as well as the subsequent promotion granted to him and, therefore, could not reopen the issue after lapse of several years. It was further submitted that promotion could not be granted in absence of sanctioned vacancy and that no illegality had been committed by the authorities warranting interference with the impugned judgment.

Having heard learned counsel for the Parties and upon perusal of the materials available on record, this Court finds that the learned Single Judge proceeded to examine the matter principally from the standpoint of availability of vacancy in the promotional post of Foreman, whereas the grievance raised by the Appellant pertains to the legality of his initial regularisation as Chowkidar despite possessing technical qualification in Fitter Trade and having discharged technical duties under the establishment.

It is not in dispute that the Appellant possessed matriculation qualification along with ITI certificate in Fitter Trade and had initially been engaged as Fitter Mechanic on NMR basis under the Public Health establishment. It further appears from the materials on record that the Government had issued communication dated 09.08.1990 directing that NMR employees possessing ITI qualification be regularised as Fitter Mistry and the Superintending Engineer, Public Health Circle, Sambalpur had also issued consequential instruction dated 02.01.1991 in that regard. Despite the same, the Appellant came to be regularised as Chowkidar with effect from 20.06.1994.

In the considered opinion of this Court, once the record itself reveals that the Appellant possessed the requisite technical qualification and had been engaged against technical work, the authorities were required to consider his regularisation against a post commensurate with his qualification, skill and nature of duties discharged by him. More particularly, when similarly situated employees possessing identical qualification were regularised in the technical cadre, the action of the authorities in regularising the Appellant as Chowkidar, without disclosing any distinguishing circumstance, cannot withstand scrutiny on the touchstone of Articles 14 and 16 of the Constitution of India.

The contention advanced on behalf of the State that the Appellant, having accepted his regularisation as Chowkidar and subsequent promotion, is now estopped from questioning the same, also does not commend acceptance. The grievance of the Appellant regarding his placement in the non-technical cadre appears to have been consistently raised before the authorities and judicial forums from time to time.

In this regard, this Court finds apposite reference to the decision of the Hon'ble Supreme Court in Somesh Thapliyal vs. Vice Chancellor, H.N.B. Garhwal University, LL 2021 SC 414. The relevant paragraphs of the said decision are as follows:

"42. The submissions of the learned counsel for the respondents that the appellants have accepted the terms and conditions contained in the letter of appointment deserves rejection for the reason that it is not open for a person appointed in public employment to ordinary choose the terms and conditions of which he is required to serve. It goes without saying that employer is always in a dominating position and it is open to the employer to dictate the terms of employment. The employee who is at the receiving end can hardly complain of arbitrariness in the terms and conditions of employment. This Court can take judicial notice of the fact that if an employee takes initiation in questioning the terms and conditions of employment, that would cost his/her job itself.

The bargaining power is vested with the employer itself and the employee is left with no option but to accept the conditions dictated by the authority. If that being the reason, it is open for the employee to challenge the conditions if it is not being in conformity with the statutory requirement under the law and he is not estopped from questioning at a stage where he finds himself aggrieved."

The aforesaid principle squarely applies to the facts of the present case. Mere acceptance of service conditions by an employee, particularly in public employment where the employer occupies a dominant position, cannot operate as an estoppel against raising a challenge to an action which is otherwise contrary to law or discriminatory in nature.

This Court also finds guidance from the recent decision of the Hon'ble Supreme Court in Dharam Singh & Ors. vs. State of Uttar Pradesh & Anr., 2025 INSC 998, wherein, relying upon the earlier decisions in Jaggo vs. Union of India, 2024 SCC OnLine SC 3826, Shripal & another vs. Nagar Nigam, Ghaziabad, 2025 SCC OnLine SC 221 and State of Karnataka vs. Umadevi (3), (2006) 4 SCC 1, the Hon'ble Supreme Court reiterated the constitutional obligation of the State as a model employer. The relevant paragraphs of the said decision are as follows:

"17. Before concluding, we think it necessary to recall that the State (here referring to both the Union and the State governments) is not a mere market participant but a constitutional employer. It cannot balance budgets on the backs of those who perform the most basic and recurring public functions. Where work recurs day after day and year after year, the establishment must reflect that reality in its sanctioned strength and engagement practices. The long-term extraction of regular labour under temporary labels corrodes confidence in public administration and offends the promise of equal protection. Financial stringency certainly has a place in public policy, but it is not a talisman that overrides fairness, reason and the duty to organise work on lawful lines.

Moreover, it must necessarily be noted that "ad-hocism" thrives where administration is opaque. The State Departments must keep and produce accurate establishment registers, muster rolls and outsourcing arrangements, and they must explain, with evidence, why they prefer precarious engagement over sanctioned posts where the work is perennial. If "constraint" is invoked, the record should show what alternatives were considered, why similarly placed workers were treated differently, and how the chosen course aligns with Articles 14, 16 and 21 of the Constitution of India. Sensitivity to the human consequences of prolonged insecurity is not sentimentality. It is a constitutional discipline that should inform every decision affecting those who keep public offices running."

The observations made by the Hon'ble Supreme Court assume considerable significance in the facts of the present case inasmuch as the materials on record clearly demonstrate that the Appellant possessed matriculation qualification along with ITI certificate in Fitter Trade. It further appears that the Government itself had taken a policy decision directing regularisation of technically qualified NMR employees against the post of Fitter Mistry and the consequential communication issued by the Superintending Engineer reiterated the said position. Despite such policy framework, the Appellant alone came to be regularised against the non-technical post of Chowkidar, whereas similarly situated employees possessing identical qualification were accommodated in the technical cadre and subsequently considered for further promotion. No material has been placed before this Court to disclose any rational basis for such differential treatment.

This Court further notices from the proceedings of the Departmental Promotion Committee that consideration for promotion to the post of Foreman was undertaken in respect of employees borne in the technical cadre. Had the Appellant been regularised as Fitter Mistry at the relevant point of time in accordance with the Government policy and his technical qualification, he would necessarily have entered the promotional channel along with his contemporaries. The repeated stand of the authorities that no vacancy was available whenever the Appellant approached for consideration of promotion cannot cure the foundational illegality committed at the stage of regularisation itself.

Significantly, though the State has sought to justify denial of promotional benefit on the ground of non-availability of vacancy, no material has been placed before this Court disclosing the manner of consideration undertaken for promotion, the eligibility criteria applied, the comparative position of similarly situated employees, the dates on which such promotions were granted, or the vacancies available from time to time. Even before the learned Single Judge, no such foundational material appears to have been produced. In absence of any explanation as regards the means and manner by which the Appellant stood excluded from the promotional avenue despite possessing the requisite qualification and experience, an adverse inference necessarily has to be drawn against the authorities.

This Court is, therefore, of the considered opinion that the action of the authorities in regularising the Appellant as Chowkidar was arbitrary, discriminatory and contrary to the policy governing regularisation of technically qualified employees. The prejudice caused to the Appellant did not remain confined merely to nomenclature of post, but extended throughout his service career affecting his seniority, promotional avenue and consequential service benefits. Once this Court arrives at the conclusion that the initial regularisation itself was contrary to the governing policy and resulted in discrimination against the Appellant vis-à-vis similarly situated employees, the consequential denial of promotional progression cannot be sustained on the plea of subsequent non-availability of vacancy.

Therefore, we have strong hesitation in accepting the reasons assigned by the learned Single Judge in declining to grant relief to the Appellant. Accordingly, the Writ Appeal stands allowed. The judgment and order dated 06.09.2024 passed by the learned Single Judge in W.P.(C) No.12673 of 2020 is hereby set aside.

Consequently, the Respondents are directed to treat the Appellant as having been regularised against the post of Fitter Mistry with effect from 20.06.1994 with continuity in the technical cadre for all service purposes. The Respondents shall further determine the date on which the contemporaries of the Appellant were promoted to the post of Foreman and extend identical notional promotional benefit to the Appellant from such date.

In the event any regular vacancy presently exists, the Appellant shall be adjusted against such vacancy forthwith. In the event no such vacancy is presently available, the Respondents shall create a supernumerary post for the limited purpose of extending the promotional and service benefits flowing from this judgment.

The Appellant shall be entitled to notional service and promotional benefits from the date his contemporaries were promoted. However, the financial benefits flowing from such promotion shall be prospective in nature.

The aforesaid exercise shall be completed within a period of eight (8) weeks from the date of communication of this judgment.