Dharmender Kumar and Ors. v. Agricultural & Processed Food Development Authority and Anr.

8. On the other hand, learned counsel appearing on behalf of the respondents argued that the petitioners have invoked the present writ jurisdiction of this Court as they are well aware of the fact mentioned in office memorandum dated 30.04.2010 issued by the Ministry of Personnel, Public Grievances and Pensions therein that 6th pay Commission recommended abolishment of the all Group D Post in the Government and will stand upgraded to Group C, Pay band 1 with grade pay of Rs. 1800/-, along with the incumbents (after suitable training wherever required). The other recommendations including that there were no further recruitments in Group-D, the existing Group D post will be placed in Group –C, Band-1 as mentioned above and the minimum qualifications will be either 10th Pass or ITI equivalent. Moreover, in view of the case of Uma Devi Vs. State of Karnataka, the petitioners are not entitled for any regularization. Thus, the present petition deserves to be dismissed.

9. The fact remains that in counter affidavit filed by the respondent, it is stated that the respondents due to inadvertent and oversite of the above directions framed, 2011 regulations including Group-D, however, no post of Group-D, Post Umadevi’s case was ever advertised by the Respondents. Thus, the post stands abolished and is beyond the scope of revival. It is further stated that since 2006 till date, no post was advertised to seek recruitment of any eligible person on Group-D post. Moreover, in the year 2010, the circular was passed by the Ministry of Personal, Public Grievances, Pensions which abolished the Group D post and the same was upgraded as Group C post MTS. However, due to oversight the circular requiring changes to be done was not included in amendment regulations 2011 issued. The relief given to existing Group D permanent employees was as per circular of the Ministry.

10. In case Ritu Kushwaha (supra), the petitioners therein rendered more than ten years of casual service and this Court has held that they are entitled to be considered for regularization in terms of directions issued by the Supreme Court in Uma Devi (supra) under a scheme, to be framed by the respondents. It is further held that there can be no doubt that but for the fact that the 6th CPC Report led to abolition of Group-D posts, and their merger with the post of MTS in Group C, the case of the petitioners for regularization would have been positively considered. The primary reason given by the respondents therein was that on account of abolition of Group- D posts and their conversion/merger to Group-D posts of MTS which are required to be filled through the SSC upon fulfilment of the eligibility norms, the case of the petitioners for regularization cannot be considered.

11. However, the same plea has been taken by the respondents in the case in hand whereas by considering the rival contention of the parties in Ritu Kushwaha (supra), the Supreme Court finally has held that the respondents therein cannot discriminate and treat the petitioner therein differently. Consequently directing the respondents therein to consider the cases of each of the petitioners for regularization in terms of their policy/ scheme framed for regularization in the light of the judgment of the Supreme Court in Uma Devi (supra).

12. Moreover, in case of Amarendra Kumar Mohapatra Vs. State of Orissa and Ors., (2014) 4 SCC 583 whereby the Hon’ble Supreme Court held as under:-

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.”

44. It is nobody‟s case that the degree holder Junior Engineers were not qualified for appointment as Assistant Engineers as even they possess degrees from recognised institutions. It is also nobody‟s case that they were not appointed against the sanctioned post. There was some debate as to the actual number of vacancies available from time to time but we have no hesitation in holding that the appointments made were at all relevant points of time against sanctioned posts. The information provided by Mr. Nageshwar Rao, learned Additional Solicitor General, appearing for the State of Orissa, in fact, suggests that the number of vacancies was at all points of time more than the number of appointments made on ad hoc basis. It is also clear that each one of the degree holders has worked for more than 10 years ever since his appointment as ad hoc Assistant Engineer. It is in that view difficult to describe these appointments of the Stipendiary Engineers on ad hoc basis to be illegal so as to fall beyond the purview of the scheme envisaged in Umadevi‟s case (supra).

76. The ratio of the decision in the above case was not faulted by the Constitution Bench of this Court in Direct Recruit‟s case (supra). As a matter of fact the Court approved the said decision holding that there was force in the view taken by this Court in that case. This Court observed: (SCC p. 726, para 13)

78. Having said so, there is no reason why a similar direction regarding the writ-petitioners degree holder Junior Engineers who have been held by us to be entitled to regularisation on account of their length of service should also not be given a similar benefit. We must mention to the credit of Dr. Dhawan, appearing for the Stipendiary Engineers who have been regularised under the provisions of the Legislation that such Stipendiary- ad hoc Assistant Engineers cannot, according to the learned counsel, have any objection to the degree holder Junior Engineers currently working as Assistant Engineers on ad hoc basis being regularised in service or being given seniority from the date they were first appointed. It was also conceded that Stipendiary Engineers all of whom were appointed after the appointment of the Junior Engineers would en bloc rank junior to such ad hoc Assistant Engineers from out of degree holder Junior Engineers. But all such regularised Assistant Engineers from Stipendiary Stream and from Junior Engineers category would together rank below the promotee Assistant Engineers.

13. Since the petitioners have completed 15 to 20 years in service and in view of the above discussion and the legal position, the petitioners are entitled to be regularized in the services. Consequently, the respondents are directed to regularize the petitioners as peon/ MTS, within 8 weeks from the receipt of this order, in the same manner in which others similarly contractual employees have been regularized with all consequential benefits granted to them. Consequently, the letter dated 08.06.2017 is here by quashed.

14. Accordingly, the petition is allowed with no order as to cost. CM APPL. No. 33605/2018

15. In view of the order passed in the present writ petition, this application has been rendered infructuous and are accordingly, disposed of such.

JUDGE NOVEMBER 13, 2018 rd