Night Watcher-cum-Sweeper, Continuous Service For More Than 10 Years, Orissa High Court Directs To Consider Regularization

Background Facts

The Petitioner was employed as a Night Watcher-cum-Sweeper on November 21, 2003. The Petitioner joined the office of the Sub-Registrar, Machkund, on January 2, 2004. He was later transferred to the office of the Sub-Registrar, Pattangi on October 21, 2005. Subsequently, on September 9, 2011, the petitioner was reposted to the office of the Sub-Registrar, Machkund, where he continued to serve as a Night Watcher-cum-Sweeper on a daily wage basis.

It was contended that the petitioner had been employed continuously in this position without any break in service and without the protection of any interim court order. Therefore, it was argued by the Petitioner that he was entitled to regularization.

On the other hand, it was contended by the Employer that the petitioner was engaged in a non-sanctioned post and was being paid from a contingency fund. Hence he was ineligible for regularization.

As such, the petitioner filed a writ petition with the prayer for regularization of his services. Further, the petitioner was seeking financial and consequential benefits, as well as any other orders deemed fit for adjudication.

Findings of the Court

It was observed by the court that the petitioner had been continuously employed as a Night watcher-cum-Sweeper since January 2, 2004, without any break in service and without being protected by any interim order from a labour court.

It was also observed by the court that, given the continuous nature of employment, his claim for regularization required consideration by the Employer. The court reiterated the Supreme Court Judgment of State of Karnataka v. Uma Devi (2006) 4 SCC-1 wherein the court held that irregular appointments may be regularized if the employee has worked for more than 10 years without the protection of a court order. It was also observed by the court that the difference between irregular and illegal appointments is that illegal appointments are made against a post that is not duly sanctioned. Since the appointee does not meet the minimum qualifications, such appointments cannot be regularized.

The court noted that the petitioner's appointment was not in contention by the employer. However, it was observed that the petitioner was engaged against a non-sanctioned post and was being paid from a contingency fun on a daily wage basis. Despite this, the court held that since the petitioner had been continuously working for over a decade, his case required consideration for regularization.

With the above observations, court directed the employer to consider the petitioner's claim for regularization and disposed of the writ petition.

Case No. : WPC (OAC) No. 1490 of 2014

Counsel for the Petitioner(s) : Mr. S. Mohanty, Advocate

Counsel for the Respondent(s) : Mr. S. Jena