B.R. Sarangi,J. -
(1.) Rajib Lochan Mahanta, who was working as a Group-D employee in Utkal University, Khurda, has filed this writ petition seeking direction to the opposite parties to remove the discrimination and regularize him in the Group-D post available in the establishment of opposite party-University and place him in the gradation list meant for Class-IV posts for consequential services and financial benefits as due and admissible to him at par with similarly situated persons, whose services have already been regularized.
(2.) The factual matrix of the case, in hand, is that in Dhrubananda Mishra and others vs. ViceChancellor, Utkal University,1994 77 CutLT 70, nine petitioners had approached this Court seeking two directions from this Court- the first was relating to regularization of service and the second was to pay them equal to that of their counterparts in regular service. The Division Bench of this Court held that regularization has been accepted as a part and parcel of condition of service and specifically for those, who had completed five years of continuous service. Since all the nine petitioners in the said writ petition had completed more than five years of continuous service, so a case of regularization was made out and the Division Bench of this Court directed the opposite parties to take early steps for regularization of those petitioners, along with other eligible employees, by framing an appropriate scheme and, thereafter, to regularize as per the seniority of the incumbents. It was also directed that apart from the basic pay, those petitioners at all be entitled to dearness and additional dearness allowance only being paid to the regular hands. That entitlement would be given effect from the date of passing of the judgment, i.e., 13.01.1993. It is apparent that on regularization, the incumbents would get the pay and other allowances as are available to regularly employed employees.
2.1. The aforesaid judgment was challenged before the apex Court in SLP (C) No. 9240 of 1993 and the same was dismissed on 13.02.1996. Consequentially, the order passed by the Division Bench was confirmed. After confirmation of the judgment of this Court, the opposite party University on 23.05.1996 prepared a seniority list of daily wages working in its establishment, wherein the petitioner's name found place at serial no. 171 and one Niranjan Patra at serial no. 170. The opposite partyUniversity also prepared the list indicating deduction of EPF from the wages of non-regular employees according to the seniority, wherein, the petitioner's name found place at serial no. 83, Niranjan Patra was placed at serial no. 82, Sarbeswar Gochhayat at seial no. 85, Mohan Kumar Muduli at serial no. 86. In terms of the judgment passed by the Division Bench of this Court in Dhrubananda Mishra (supra), the University regularized the employees in two spells, in 1st spell 87 and in 2nd spell 77 totaling to 164 employees, who were in the seniority list under Annexre-2, were regularized. In the 2nd spell, Niranjan Patra, who was at serial no. 170, just above the petitioner, was regularized on 06.02.2014. As per information received under the Right to Information Act, 2005, all total 174 posts were available in Class-IV cadre in the opposite party-University establishment. Thereby, 10 more vacancies were left out, against which the petitioner, who is standing at serial no. 171, could have been regularized, but, for the reasons best known to the authority, his services have not been regularized, though one Niranjan Patra standing just above the petitioner at serial no. 170 was regularized.
2.2 Therefore, the petitioner, along with fourteen others, filed W.P.(C) No. 7391 of 2006 before this Court. The Division Bench of this Court, vide order dated 26.02.2009, disposed of the said writ petition directing the State Government to take a decision on the proposal given by the University within a period of fifteen days from the date of receipt of a copy of that order. Prafulla Kumar Barik and three others filed another writ petition bearing W.P.(C) No. 6567 of 2006 and this Court, vide order dated 18.03.2011, disposed of the said writ petition with a direction to the opposite party-University to move the State Government to obtain clearance to regularize the services of those petitioners, and that if such a move was made, the Department of Finance would pass necessary orders directing the Utkal University to regularize the services of those petitioners within three months from the date of communication of that order. Similar direction was also made in OJC No. 13005 of 1999 (Parikhit Malik vs. Chancellor Utkal University), which was disposed of on 27.01.2006. The said order was challenged in SLP No. 19829 of 2006 and the apex Court, vide order dated 16.02.2009, dismissed the said SLP. Thereby, a large number of persons have been regularized in terms of the various orders passed in different writ petitions as well as contempt petitions. Similarly, pursuant to the order passed in CONTC No. 3374 of 2011, arising out of W.P.(C) No.6567 of 2006, four persons have been regularized. But the petitioner has been discriminated, though Niranjan Patra, standing at serial no. 170 just above the petitioner, has been regularized. Due to such discriminatory action of the authority, the petitioner has approached this Court by filing this application.
(3.) Mr. D. Mishra, learned counsel for the petitioner vehemently contended that once the matter has been settled by the apex Court in SLP, in compliance of the order dated 13.01.1993 passed in Dhrubananda Mishra (supra), the petitioner, who is coming under the other eligible employees category, having completed five years of continuous service, is entitled to be regularized and as such, he is also entitled to get equal pay for equal work. In compliance of direction of the Division Bench of this Court, though seniority list was prepared and the name of the petitioner was found place at serial no. 171, but his services were not regularized, even though the services of one Niranjan Patra, who was just above the petitioner at serial no. 170, have been regularized. Thereby, the petitioner along with others again approached this Court by filing W.P.(C) No. 7391 of 2006, which was disposed of on 26.02.2009 taking into averments made in paragraph-7 of the counter affidavit, wherein it was specifically stated that pursuant to the order of this Court in OJC No. 348 of 1990, the University prepared a list of DLRs according to their date of engagement and regularized 77 persons according to the vacancies. In the meantime, the Government on 14.03.2001 imposed ban on the recruitment as a part of austerity measure. Furthermore, the University had also moved the State Government to permit it to fill up the vacancies in Group-D category. Till then the University had not received any reply from the State Government. Thereby, this Court disposed of the said writ petition on 26.02.2009 directing the State Government to take decision on the proposal given by the University within a period of fifteen days from the date of receipt of the copy of that order. Consequentially, in compliance of such order, some of the persons have already been regularized, but the petitioner has only been discriminated. As such, his service has not been regularized nor has he been granted the benefit as due and admissible to him, in view of judgment of this Court in Dhrubananda Mishra (supra). On the other hand, he has not been allowed to continue in service and no such communication has been made to the petitioner. To substantiate his contention he has relied upon the judgments in Dhrubananda Mishra v. Vice-Chancellor, Utkal University,1994 77 CutLT 70; State of Punjab v. Amar Singh Harika , 1966 AIR(SC) 1313; Dulu Devi v. State of Assam , 2016 1 SCC 622; and State of Karnataka v. M.L. Keshari , 2010 AIR(SC) 2587.;