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Judgment
S. N. Prasad, J.
This writ petition is for issuance of appropriate writ upon the opposite parties to regularize the services of the petitioner from the date the petitioner
has been working as Safaiwala without break i.e. 1.4.1991 with consequential benefits.
The brief fact of the case of the petitioner is that he was engaged as casual Safaiwala under opposite party no.4 since 1985 and has been working
as such continuously after the retirement of permanent incumbent w.e.f. 31.3.1991. For the said post, the petitioner was asked to appear in the
interview which was held on 17.11.1993, for which, he had appeared and subsequently he came to know that his name was kept in the panel but
neither the result has been published nor his services has been regularized in the post of Safaiwala. The petitioner as such has approached this Court
for issuance of appropriate direction upon the opposite parties to take him under the regular establishment on the ground of long length of continuous
service.
Learned counsel for the petitioner has relied upon the judgments rendered by Hon’ble the Supreme Court in the cases of Secretary, State of
Karnataka and Ors. v. Umadevi(3) and Ors., reported in (2006) 4 SCC 1, State of Karnataka and Ors. v. M.L. Kesari and Ors., reported in (2010) 9
SCC 247, Amarkant Rai v. State of Bihar and Ors., reported in (2015) 8 SCC 265 and Nihal Singh and others v. State of Punjab and others, reported
in (2013) 14 SCC 65.
The opposite parties have appeared and contested the case by filing detailed counter affidavit wherein inter alia it has been stated that the petitioner
was engaged as casual Safaiwala on day-to-day basis depending upon the workload for the day and as such, no appointment letter was issued. He
was asked to appear in the interview for the unreserved post of Safaiwala at Bhubaneswar and was empanelled under the Scheduled Caste Category
by the Recruitment Board, but the said recruitment exercise was not processed due to the ban imposed by the Ministry of Civil Aviation, Government
of India on outside recruitment and as such, the petitioner could not have been taken under the regular establishment.
It has been contended therein that the analogy taken by the petitioner that one Mrs. Nishimoni Majhi was appointed as Safaiwala ignoring the case of
the petitioner, but said fact is incorrect in view of the fact that Mrs. Nishimoni Majhi was appointed on compassionate ground due to death of her
husband in harness in 19.05.1994. Hence, the petitioner cannot compare with the appointment of Mrs. Nishimoni Majhi. It has been stated in the
additional affidavit that now the work from the petitioner has been taken by asking him to render his service under subsidiary unit of the AIR India
Limited, i.e., in AIR India Transport Services Limited for 3 years w.e.f. 18.10.2016 by virtue of his casual engagement with AIR India Limited at
Bhubaneswar in pursuant to the interim order passed by this Court and the petitioner’s son Sri Alok Naik was also appointed in the same post as
the petitioner on the same day. Learned counsel appearing for the opposite parties submits that since the post, on which the petitioner was working, is
not a sanctioned post and the opposite parties are not in requirement of the work, the petitioner cannot claim for regularization in service by taking aid
of the judgment rendered by constitution Bench of Hon’ble the Supreme Court in the case of Umadevi (3) (supra) since as per the ratio laid down
therein at paragraph-53, it is to be regularized on the basis of the requirement subject to condition that the employee should have worked regularly for
10 years against the sanctioned post, but the ratio of the said judgment will not be applicable in the case of the petitioner in view of the fact that the
petitioner has not rendered 10 years of continuous service even before passing the interim order which was passed on 16.08.2002. He further submits
that since there was ban imposed by the Ministry of Civil Aviation, Government of India for making appointment through direct recruitment, the
petitioner could not be appointed.
Heard the learned counsel for the parties and on appreciation of their rival submission, it is evident that the petitioner is claiming regularization by
issuing of a writ of mandamus by the High Court in exercise of power conferred under Article 226 of the Constitution of India. The said prayer has
been made on the basis of the certain judgments relied upon by the petitioner as referred hereinabove and as such, this Court has thought it proper to
discuss the ratio laid down in these judgments before going into the grievance of the petitioner.
The first judgment upon which the petitioner has put his reliance is the judgment rendered by constitution Bench of Hon’ble the Supreme Court
in the case of Secretary, State of Karnataka and Ors. (supra) wherein the Hon’ble Supreme Court by dealing with the case of the regularization
of the casual/daily wagers which has been deprecated, however, with an exception that if the appointment is not illegal, rather if it is irregular and if
the establishment of the Government is requirement of the service of the employees, it can be regularized by one time exercise, if the concerned
employee worked regularly for a period of 10 years without any aid and interim order passed by any court of law. It is evident from the ratio laid down
in the said paragraph that the Apex Court has made distinction in between the illegal appointment and irregular appointment and the exercise for
regularization is to be taken in case the appointment is irregular and if it is illegal, the ratio laid down in the said paragraph will not be applicable for
regularization. Hon’ble the Supreme Court, subsequently in the case of State of Karnataka and Ors. (supra), has clarified to take steps for
regularization which can be initiated if the following conditions contained in the paragraph-7 of the said judgment are fulfilled:-
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of
any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service
voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned
posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But
where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without
undergoing the process of open competitive selection, such appointments are considered to be irregular. It has further been clarified that the judgment
rendered in the case of Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those
irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals,
as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision. The term
‘one-time measure’ has to be understood in its proper perspective and, therefore, the Hon’ble Supreme Court in the case of M.L. Kesari
(supra) has been pleased to hold that ‘one-time measure’ would normally mean that each department or each instrumentality should undertake a
one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the
intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the
requisite qualification for the post and if so, regularize their services. It is, thus, evident that the ratio laid down at paragraph-53 of Umadevi(3) is only
to be made applicable, if the appointment is irregular and not illegal. The judgment rendered in the case of Nihal Singh and others (supra), the factual
aspect of the said case is that the appointment of the Nihal Singh and others, the appellants were made by the SSP in exercise of the power conferred
under Section-17 of the Police Act, 1861 with a specific stipulation in the said appointment order that the appellants were entitled to all the privileges
under the Act and amenable to the disciplinary control of the State as in the case of any other regular police officers. The only distinction was that
they are to be paid daily wages of Rs.35 by the bank to whom their services were made available. The Nihal Singh and others, the appellants when
not regularized, have approached to the High Court for their regularization, but it was rejected on the ground that the appointments of Nihal Singh and
others were not made against the sanctioned posts and as such, it was illegal and, accordingly, rejected the claim of the regularization. Then the matter
went before Hon’ble the Supreme Court and Hon’ble the Supreme Court, on the pretext that the financial burden would be upon the Bank,
has directed the State of Punjab to regularize the services of the appellants by creating posts within a period of three months. The judgment rendered
by the Supreme Court in the case of Amarkant Rai (supra) is a case where the regularization was sought for on the ground of long length of service,
but it was denied on the pretext that the date when Amarkant Rai was engaged, the post was not sanctioned. However, Hon’ble the Supreme
Court, by taking aid of paragraph-53 of the judgment rendered by the Supreme Court in the case of Umadevi(3), has held it to be applicable in the
facts of the case, since the post against which Amarkant Rai was working, has been directed to be regularized by virtue of letter dated 30.03.1987
issued by the State of Bihar and as such, Hon’ble the Supreme Court, by virtue of the letter dated 30.03.1987, has passed an order keeping the
fact into consideration the intent of Government was to regularize the service of all irregular employees.
In this backdrop of legal position, the case of the petitioner needs to be examined and accordingly it has been examined.
The factual aspect which is not dispute in this case is that the opposite parties are disputing that the appointment of the petitioner has not been made
against the sanctioned post. However, the petitioner was called upon to participate in the interview for fulfilling the post by way of regular employment
but due to the ban imposed by the Ministry of Civil Aviation, Government of India, the said selection process could not have been finalized, but he was
allowed to continue in service. Subsequently, an interim order has been passed in favour of the petitioner on 16.8.2002 and by virtue of the said order,
he is now continuing in service under the contractual arrangement for a period of three years w.e.f. 18.10.2016.
The petitioner claims that he is working against the sanctioned post and he has completed 10 years of service before passing an interim order and
as such, the ratio laid down at paragraph-53 of the judgment rendered by the Supreme Court in the case of Umadevi(3) is direct aid of the petitioner.
Accordingly, his case needs to be considered. But on factual analysis of the material available on record, the fact of continuous service of 10 years
prior to passing of an interim order is seriously in dispute and the petitioner has not come forward with any valid document to substantiate his
argument, i.e., he has worked so that he has completed 10 years of service prior to the interim order passed by this Court.
The opposite parties have also disputed that the petitioner is not working against the sanctioned post and as such, the contention raised by the
learned counsel for the petitioner that the case of the petitioner is directly covered under the ratio laid down by Hon’ble the Supreme Court in the
case of Umadevi(3) at paragraph-53 is not applicable for the reason that the exception carved out at paragraph-53 of the said judgment only for
irregular appointment and not for illegal appointment as has been clarified in the judgment rendered by Hon’ble the Supreme Court in the case of
M.L. Kesari as quoted in paragraph-6 above (paragraph-7 of the judgment of M.L. Kesari) and as such, the contention raised by the petitioner that his
case is required to be considered in the light of the judgment rendered in the case of Umadevi(3) is having no substance. Accordingly, the same needs
to be rejected.So far as the applicability of the judgment rendered by the Supreme Court in the case of Nihal Singh and others (supra) is concerned,
the fact in this case is that the paying master was Bank and the SSP, in exercise of power conferred under Section-17 of the Police Act, 1861, has
appointed them. In the light of this factual aspect of Hon’ble the Supreme Court considering the fact that the financial implication is upon the Bank
and the Bank is not bothering about the same and as such, directed the State of Punjab to create the posts so that they be regularized in the said posts.
But here in the instant case, the opposite parties are opposing even regular appointment and they are saying that there is no continuous appointment
and after interim order passed by this Court, he is being to allow continuing his service as also his son.
In view of this factual aspect, the judgment rendered by Hon’ble the Supreme Court in the case of Nihal Singh and others (supra) is not applicable
to the instant case. So far as the judgment rendered by the Supreme Court in the case of Amarkant Rai (supra) is concerned, the same is also not
applicable in view of the fact that the State of Bihar has come out with a specific resolution dated 30.03.1987 to regularize the service of all who have
been inducted and are discharging duty in irregular manner but when it has not been regularized, Hon’ble the Supreme Court taken into
consideration the fact that he has rendered more than 29 years of service and even in spite of the resolution taken by the State of Bihar, Mr. Rai has
not been regularized, Hon’ble the Supreme Court has directed the State of Bihar to regularize his service.But here the factual aspect is that the
opposite parties have never come forward with the plea that the services of the petitioner is required, rather right from the beginning they are opposing
that the petitioner cannot be regularize due to the ban imposed by the Ministry of Civil Aviation, Government of India in making direct recruitment, in
view of the decision taken by it to appoint the person through outsourcing. Hence, when the Government of India, the competent authority, has taken a
decision by imposing the ban on the regular appointment and take services through outsourcing, this Court sitting under Article 226 of the Constitution
of India cannot direct by interfering with the policy decision of the Union of India and in view of such a situation, the judgment rendered by
Hon’ble the Supreme Court in the case of Amarkant Rai (supra) is not applicable in the facts and circumstances of the instant case.
Learned counsel for the petitioner, however, has tried to impress upon the Court that the case of the petitioner has been recommended for
absorption by the Station Manager, Indian Air Lines Limtied, Bhubaneswar before the General Manager (Personal), Indian Air Lines Limited,
Kolkata, but specific stand has been taken in the additional affidavit by the opposite parties that the same could not have been considered as no
vacancy at Bhubaneswar existed for the said post and also due to ban imposed by the Ministry of Civil Aviation, Government of India for making
appointment through direct recruitment.
After going through the stand taken by the opposite parties that there is no vacancy at Bhubaneswar and in absence of any vacancy, no direction
can be passed by this Court to take the petitioner under regular establishment.
In view of the entirety of the facts and circumstances of the case and according to the conscious view of this Court, the petitioner has failed to
make out a case for passing a positive order in his favour. Accordingly, the writ petition fails and the same is dismissed.