CASE TITLE : BISWANATH DAS V. STATE OF ODISHA, REPRESENTED THROUGH ITS PRINCIPAL SECRETARY, EXCISE DEPARTMENT & ORS.
CASE NO : W.P.(C) NO. 16479 of 2022
DATE OF JUDGMENT : October 23, 2024

A duly qualified person appointed against vacant contractual post and continuing as such for decades cannot be denied regularization merely because his initial appointment was irregular.

The core question which arose for consideration in this case was whether a duly qualified employee, who was recruited against a vacant contractual post and continued in such position for more than two decades, can be denied regularization only on the ground that his initial appointment was irregular.

The petitioner claimed regularization in the post of driver in the Office of Superintendent of Excise, Kendrapara. He contended that he was validly appointed to such post on 16th October, 2001 against the sanctioned vacant post and is continuing as such in temporary contractual basis.

He earlier approached the Administrative Tribunal, pursuant to the direction of which his case for regularization was taken up by the Government. However, by the impugned order dated 20th June, 2022 his claim was rejected mainly on the ground that the Finance Department did not approve the proposal for regularization.

During the course of argument, it was submitted for the State that the petitioner was not appointed as per the due process of selection, but it did not dispute that he was given appointment in a sanctioned vacant post wherein he still continues on temporary contractual basis. It was also not disputed that the petitioner has the qualification to be appointed to the post of driver and he had such qualification on the date of appointment.

The Single Bench referred to the observations made by the Hon’ble Supreme Court in the case of Amarkant Rai v. State of Bihar & Ors., (2015) 8 SCC 265 wherein the petitioner, who was working as a night guard on contractual temporary basis for over two decades, was given benefits of regularization as he had the requisite qualification to hold such post. Merely because he was initially appointed against an unsanctioned post, did not become a hindrance for him to get financial benefits of regularization.

In the instant case, the Court was of the view that when the post was sanctioned and lying vacant on the date of appointment of the petitioner and he was allowed to continue for last 23 years uninterruptedly, the question of his initial appointment being irregular, can be ignored since he was having the requisite qualification to hold the post.

CASE TITLE : E. CHINA BABU V. ODISHA LEGISLATIVE ASSEMBLY, REPRESENTED THROUGH ITS SECRETARY & ORS. AND BATCH OF CASES
CASE NO : W.P.(C) NO. 24337 of 2022 & Batch
DATE OF JUDGMENT : October 28, 2024

In the absence of merit list and any specific rule regarding fixation of seniority, the date of entry into service may be taken as criterion for ascertaining inter se seniority.

his batch of writ petitions revolved around the question as to what should be the criterion for fixation of inter se seniority amongst the employees in the absence of merit list or any specific rule prescribing modality for ascertaining the same.

All the petitioners as well as the private opposite parties are the employees of the Odisha Legislative Assembly Secretariat and were initially appointed as Junior Assistants or in similar posts, who have now been re-designated as Assistant Section Officers.

It was submitted by the Secretariat that in the matter of finalization of inter se seniority of the employees, the opinion of the Advocate General was sought for and based on his opinion, the gradation list has been finalized taking into account the select list prepared on 17th August, 1998 for two batches of employees, i.e. 1997 and 1998. It was further submitted that the said select list was treated as merit list for fixation of inter se seniority.

After perusal of the select list vis-à-vis Rule 10(3) of the Orissa Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1983, the Court was reluctant to accept the select list as merit list, more particularly because the said list was kept in the order of unreserved candidates, then SEBC candidates, then ST candidates and then SC candidates and hence, it held as follows:

“Therefore, the interpretation advanced by the employer as well as the private Opposite Parties that this is the merit list, but named as select list, is found unacceptable for the simple reason that candidates cannot be expected to be placed in merit serially according to the categories like UR, SEBC, ST and SC.”

Therefore, the moot question cropped up as to what should be the appropriate criteria to determine inter se seniority among the employees in absence of any merit list. To answer this question, the Bench referred to the decision of the Hon’ble Apex Court in the case of K. Meghachandra Singh & Ors. v. Ningam Siro & Ors., (2020) 5 SCC 689 and held that date of joining of the respective employees can be safely taken into account to fix seniority, as they borne into the service from that date.

Accordingly, having regard for the aforesaid precedent of the Highest Court, the High Court came to the following denouement:

“The principles, as settled in the afore-cited case, that the date of entry in the service is the safest criterion for fixing seniority inter se in absence of specific rule in the particular service regarding seniority. When the date of entry of respective candidates into the service is remaining an undisputed fact, the safest procedure would be to rely upon such undisputed fact to fix the inter se seniority between the parties.”