Orissa High Court
Tilottama Baliarsingh vs State Of Odisha on 15 April, 2025
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.32917 of 2011
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
Tilottama Baliarsingh
Aged about 41 years
Wife of Late Sarangadhar Baliarsingh
C/o. Patitapaban Baliarsingh
At/P.O.: Pallahat (Konark Nagar)
District: Khordha,
Now working as Cashier in-Charge
The United Puri-Nimapara Central
Cooperative Bank Ltd.
Mahila Branch, Grand Road
Puri. ... Petitioner
-VERSUS-
1. State of Odisha
Represented through
Secretary
Cooperation Department
Secretariat Building, Sachivalaya Marg
Bhubaneswar
District: Khordha.
2. Registrar
Cooperative Societies, Odisha
Bhubaneswar
District: Khordha.
W.P.(C) No.32917 of 2011 Page 1 of 52
3. President
The United Puri-Nimapara Central
Cooperative Bank Ltd.
At/P.O./District: Khordha.
4. Secretary
The United Puri-Nimapara Central
Cooperative Bank Ltd.
At/P.O./District: Khordha.
5. Branch Manager
The United Puri-Nimapara Central
Cooperative Bank Ltd.
Mahila Branch
At: Grand Road
P.O./District: Puri. … Opposite parties
Counsel appeared for the parties:
For the Petitioner : Mr. Kali Prasanna Mishra,
Senior Advocate
M/s. L.P. Dwivedi, S. Rath,
Adyasidhi Mishra, AdvocatesFor the Opposite party : Mr. Jayant Kumar Bal,
Nos.1 and 2 Additional Government AdvocateFor the Opposite party : M/s. Baidhar Sahoo,
No.4 A.K. Choudhury and
Gokulananda Sahu, AdvocatesP R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMANDates of Hearing : 07.04.2025 and 11.04.2025
::
Date of Judgment : 15.04.2025
W.P.(C) No.32917 of 2011 Page 2 of 52
J UDGMENT
The grievance of the petitioner:
Questioning propriety of decision taken by the Board of
Management of the United Puri-Nimapara Central
Cooperative Bank Ltd., Puri regularising the petitioner in
the post of peon in the scale of pay Rs.2,550-55-2,660-
60-3,200/-, instead of “Cashier” the instant writ petition
has been preferred invoking provisions of Articles 226
and 227 of the Constitution of India with the following
prayers:
“It is, therefore, prayed that this Hon’ble Court may
graciously be pleased to admit the writ application, issue
show cause notices to the opposite parties,
(i) as to why the Officer Order No. 3422 (3432), dated
29.10.2011 shall not be quashed;
(ii) as to why the petitioner shall not be regularized in
the post of Cashier in view of the recommendation
under Annexure-8.
If the opposite parties fail to show cause or show
insufficient cause, the writ petition be heard and allowed,
the Office Order No.3422 (3432), dated 29.10.2011
(Annexure-10) be quashed.
The opposite parties be directed to regularize the service
of the petitioner in the post of Cashier with immediate
effect.
And
W.P.(C) No.32917 of 2011 Page 3 of 52
Further prays to pass any order/orders as deemed fit
and proper;
And for this act of kindness the petitioner as in duty
bound shall ever pray.”
Facts:
2. Shorn off detail narration of fact, suffice it to state
relevant factual position as discerned from the writ
petition, that while working as Manager in the Palla
Tollapada Branch in the district of Khordha of United
Puri-Nimapara Central Cooperative Bank Ltd.
(hereinafter be referred to as “Bank”), husband of the
petitioner, namely Sri Sarangadhar Baliarsingh, due to
ailment expired on 10.12.1998, considering which the
petitioner was appointed as “temporary peon” under the
Rehabilitation Assistance Scheme by Order No.2499,
dated 17.07.1999 issued by the Secretary of the Bank.
2.1. While discharging her duty as peon having joined on
05.01.2000, by Order No.2679, dated 09.10.2001 of the
Secretary of the Bank, opposite party No.4, she was
directed to function and discharge duty as Cashier in-
Charge of Mahila Branch. Said Order reads as follows:
“The United Puri-Nimapara Central
Cooperative Bank Ltd. : Puri
Order No.2679, dated 09.10.2001
1. Surama Mishra, Peon, Cashier in-Charge of Mahila
Branch is hereby transferred and posted to
W.P.(C) No.32917 of 2011 Page 4 of 52
Srikhetra Branch to work as Cashier in-Charge in
place of Sri P.C. Mishra, Cashier withdrawn.
2. Tillotama Baliarsingh, Peon (ad hoc), Mahila Branch,
is hereby directed to act as Cashier in-Charge of
Mahila Branch until further orders.
3. Sri Purna Chandra Mishra, Junior Supervisor
working as Cashier at Srikhetra Branch is hereby
withdrawn from cash section and directed to
handover the charge with him to Surama Mishra,
Cashier in-Charge.
This Order shall take immediate effect.”
2.2. Representations dated 20.08.2003 and 04.06.2004 have
been made to the Authorities of the Bank for
consideration of her case for regularisation in the post of
Cashier drawing attention to extend parity of treatment
in payment with those of the regular employees in the
organisation and she has been discharging her duty in
the said post since the date of joining on 10.10.2001,
being directed to perform as such by Order dated
09.10.2001.
2.3. The opposite party No.4, Secretary, vide Letter No.229,
dated 08.07.2004 called for performance report of the
petitioner from the opposite party No.5-Branch Manager
for consideration of case of petitioner for regularization
in service. The Branch Manager vide Letter No.257,
dated 27.07.2004 submitted a favourable report
W.P.(C) No.32917 of 2011 Page 5 of 52
narrating performance of the petitioner as Cashier to the
opposite party No.4.
2.4. Challenging the inaction of the authorities, the petitioner
approached this Court by way of an application, being
W.P.(C) No.1447 of 2005, which came to be disposed of
by a Division Bench of this Court vide Order dated
26.07.2011 with the following observation:
“Heard Mr. Mishra, learned counsel appearing for the
petitioner and none appears for the opposite parties.
The petitioner was appointed as temporary peon under
the Rehabilitation Scheme on a consolidated pay of
Rs.2,000/- per month by order dated 17.07.1999. She
joined the post in 1999 and has been continuing till today.
From the annexures attached to the writ petition it
appears that her representation for regularization in
service, the Secretary of the opposite party-Cooperative
Bank had sought for a performance report from the
Branch Manager, Mahila Branch where the petitioner was
working as a peon.
In response to the said query, the Branch Manager of the
Mahila Branch in Annexure-14 has intimated that the
petitioner is very sincere and prompt towards her duties.
It is also stated in the said reply that on several
occasions she has refunded the excess amount of
cash to the customers where it differs from the
deposit slips which indicates her honesty and
attentive nature to her work. Though such reply was
given by the Branch Manager, Mahila Branch in July,
2004, no decision has been taken for regularizing her
services.
W.P.(C) No.32917 of 2011 Page 6 of 52
Considering the conduct of the petitioner as indicated in
Annexure-14, the opposite party should have taken a
decision to regularize her services on the basis of the
report submitted by the Branch Manager, Mahila Branch.
There has been long delay of six years in the meantime in
taking such decision. We, therefore, dispose of the
writ petition directing the opposite party Nos. 3 and
4 to consider the claim of the petitioner for
regularization of her service especially with
reference to the information supplied by the Branch
Manager, Mahila Branch in Annexure-14 with
regard to the conduct of the petitioner and the
relevant Rules regarding regularization. Such
decision be taken within one month from the date of
communication of this order.
Requisites along with two copies of the writ petition be
filed by day after tomorrow for communication of this
order to opposite party Nos. 3 and 4.
Urgent certified copy of this order be granted on proper
application.”
2.5. Consequent upon such observation, the Secretary of the
Bank issued Order No.3432, dated 29.10.2011 to the
following effect:
“In pursuance of decision taken by the Bank Board of
Management vide Resolution No.8 dated 13.10.2010, the
services of Smt. Tilottama Baliarsingh, ad hoc peon and
B. Satyaurama Rao, ad hoc peon on rehabilitation ground
of the Bank are regularized in the post of Peon in the scale
of pay Rs.2550-55-2660-60-3200. They are to submit the
joining report at early date. Their service to the post shall
be treated from their actual date of joining.”
W.P.(C) No.32917 of 2011 Page 7 of 52
2.6. As the Order of this Court to consider regularisation in
service of the petitioner in view of information supplied
by the opposite party No.5-Branch Manager has not
been given due weightage, this writ petition has been
filed questioning the tenability of Order dated
29.10.2011 of the Secretary of the Bank regularising the
petitioner in the post of peon.
Hearing:
3. Pleadings being completed and exchanged between the
counsel for respective parties, on their consent this
matter was taken up for hearing on 07.04.2025 and
concluded on 11.04.2025 upon further hearing.
3.1. Heard Sri Kali Prasanna Mishra, learned Senior
Advocate along with Sri Adyasidhi Mishra, learned
Advocate for the petitioner; Sri Jayant Kumar Bal,
learned Additional Government Advocate representing
the opposite party Nos.1 and 2, who supported the
arguments advanced by Sri Gokulananda Sahu, learned
Advocate appearing for the opposite party No.4.
3.2. Despite service of notice on the opposite party Nos.3 and
5 vide Office Note dated 06.02.2013, none appeared nor
represented these opposite parties.
3.3. On conclusion of hearing, the matter stood reserved for
preparation and pronouncement of Judgment/Order.
W.P.(C) No.32917 of 2011 Page 8 of 52
Rival contentions and submissions:
4. Suave submission was advanced by Sri Adyasidhi
Mishra, learned Advocate by stating candid facts as
emanated from the petition as also the facts enumerated
in the Order dated 26.07.2011 passed in W.P.(C)
No.1447 of 2005 that the Order dated 29.10.2011, being
bereft of reason, irrational application of mind and
contrary to the terms of direction of this Court, is liable
to be interfered with.
4.1. Contending that there is no indication as to whether the
Board of Management has taken into consideration the
information supplied by the Branch Manager with regard
to performance of the petitioner as Cashier in-Charge of
the Bank since 2001 and no reason is ascribed in the
Order dated 29.10.2011 of Secretary as to why the said
Board in their decision varied with the performance
report of the Branch Manager which was submitted at
the request of the Secretary for consideration of
regulation of the petitioner in her service.
4.2. Referring to Rule 5 dealing with “Category of posts” read
with Rule 9(a) dealing with “Assistant Supervisor/
Junior Assistant/Cashier/Care Taker” of the Central
Cooperative Banks’ Staff Service Rules, 1984 (for brevity,
“Rules, 1984”), it is argued by Sri Kali Prasanna Mishra,
learned Senior Advocate being assisted by SriW.P.(C) No.32917 of 2011 Page 9 of 52
Adhyasidhi Mishra, learned Advocate that having joined
in service in the year 2000 as peon (temporary), the
petitioner has been discharging duty till date as Cashier
in-Charge of the Mahila Branch of the Bank, being
directed by the opposite party No.4 by Order dated
09.10.2001, the case of the petitioner should have been
considered for regularisation in the post of Cashier, as
she had the eligibility being a matriculate having six
years of experience with good career and clean service
record.
4.3. Developing his argument further, Sri Kali Prasanna
Mishra, learned Senior Advocate would submit that it is
no more res integra that similarly situated persons
carrying equal responsibility in the work are required to
the treated equally and accordingly, the petitioner is
entitled to the pay attached to the higher post.
Therefore, it is urged that being made to work as Cashier
in-Charge since 2001 and by now for around 24-25
years the petitioner has been discharging the
responsibility of said post as is discharged by regular
employees, she is entitled to be selected not only for the
said post, but also scale of pay attached to the higher
post.
4.4. Placing heavy reliance on the ratio of the Judgment
rendered by the Hon’ble Supreme Court of India in State
of Punjab Vrs. Dharam Pal, (2017) 9 SCC 395, Sri
W.P.(C) No.32917 of 2011 Page 10 of 52
Adyasidhi Mishra, learned Advocate contended that
since the petitioner has been manning the post of
Cashier efficiently having acquired the eligibility for
selection in terms of Rule 9 of the Rules, 1984, she is
entitled for the pay scale attached to the post of Cashier.
4.5. Therefore, he prayed for allowing the writ petition.
5. Per contra, Sri Gokulananda Sahu, learned Advocate
appearing on behalf of the opposite party No.4
vehemently opposing the contentions of the petitioner
argued that in terms of what contained in “Human
Resource Policy for the Central Cooperative Banks of
Odisha incorporating the Staff Service Rules, 2011”
(Annexure-A/4) issued by the Registrar, Cooperative
Societies, Odisha, Bhubaneswar (for brevity, “Rules,
2011”) promotion being not matter of right, the
petitioner is not entitled to claim for regularisation in
promotional post of “Cashier” (Class-III) inasmuch as
she was appointed as peon under temporary category
(Class-IV) in the year 1999 under the Rehabilitation
Assistance Scheme.
5.1. Drawing attention to the “Eligibility Parameters” for
“direct recruitment” envisaged in the Rules, 2011 qua
Support Staff (Group-C) and Banking Assistants (Group-
B), it is submitted by Sri Gokulananda Sahu, learned
counsel that while the former post in Group-C requiredW.P.(C) No.32917 of 2011 Page 11 of 52
“Class-X pass with Odia as one of the subjects up to
Class-VII or its equivalent examination”, the latter post
in Group-B does prescribe:
“Graduate in any discipline;
Graduates in Commerce/Economics/Statistics/
Mathematics/Agriculture/Law/Cost Accountancy/
Chartered Accountancy will be preferred;
Qualification in basic Computer Application will be
preferred.”
5.2. It is provided under said Rules, 2011 that “all
recruitment in Group-B may be made in a cadre
designated as Banking Assistant with flexibility of
deployment as Data Entry Operators, Clerks, Cashiers
or Clerk-cum-Cashier, Typists, Stenographers, Field
Supervisors etc. as the situation demands. Duties of
Banking Assistants will include work in the Office as
well as field duties”. Under the Heading “Special
Provision” said Rules, 2011 specified that “in such
appointments widow/son/unmarried daughter of
deceased employee cannot claim such appointments as
a matter of right”.
5.3. Since the petitioner does not have the requisite
prescribed qualification, it is submitted that
regularisation in the promotional post would be contrary
to what is prescribed in the Rules, 2011. He stated,
therefore, that the case of the petitioner was considered
W.P.(C) No.32917 of 2011 Page 12 of 52
duly by the Board of Management and in their
Resolution dated 13.10.2010 decided to regularise her
service in the post of peon, as her initial appointment
was as “peon” in temporary category on compassionate
ground.
Discussions and analysis:
6. From the pleadings it transpires that:
i. The petitioner having joined in the post of peon
(temporary employee) on 05.01.2000 (as there was
no vacant post at the relevant point of time to
accommodate her in consideration of application
under the Rehabilitation Scheme due to death of
her husband in harness), upon being directed to
function as Cashier in-Charge, she has been
discharging her duty in the capacity of Cashier
since 10.10.2001 in the Mahila Branch of the
Bank.
ii. On being asked to submit performance report by
the opposite party No.4-Secretary of the Bank, the
opposite party No.5-Branch Manager of the Bank
had supplied information with respect to
performance as “Cashier” and recommended for
consideration of service of the petitioner for
regularisation.
W.P.(C) No.32917 of 2011 Page 13 of 52
iii. Since no action was taken, a writ petition being
W.P.(C) No.1447 of 2005 was filed, wherein this
Court made the observation vide Order dated
26.07.2011 to consider the service of the petitioner
for regularisation “especially with reference to the
information supplied by the Branch Manager,
Mahila Branch” having regard to “the conduct of
the petitioner and the relevant rules regarding
regularisation”.
iv. Sequel to the Board of Management Resolution
No.8, dated 13.10.2010, the opposite party No.4-
Secretary of the Bank issued Order dated
29.10.2011 (Annexure-10) regularising the service
of the petitioner in the post of peon, though she
was working as Cashier in-Charge since 2001 in
the Bank by virtue of Order No.2679, dated
09.10.2001.
7. The first plank of argument proceeded on behalf of the
petitioner was that the reply of the opposite party No.4
based on Annexure-A/4, i.e., the Rules, 2011 to justify
the decision to regularise the service of the petitioner in
the post of “peon” is wholly unjustified, illogical and
irrational.
7.1. It is manifest from bare reading of Order dated
29.10.2011 of the Secretary of the Bank that the Board
W.P.(C) No.32917 of 2011 Page 14 of 52
of Management passed Resolution dated 13.10.2010 for
the regularisation of the petitioner in service in the post
of peon in the scale of pay attached to the said post.
7.2. At paragraph 4 of the counter affidavit it is asserted as
follows:
“That the service condition of the petitioner is guided
under Human Resource Policy for the Central Cooperative
Banks of Odisha incorporating the Staff Service Rules,
2011. The Rule 17 of the HR Policy reveals promotion
policy. In the said Rule 17(1) of HR Policy says promotion
shall not be claimed as matter of right. In the instant case,
the petitioner is not entitled to the post of Group-B
category, i.e., Clerical post.”
7.3. Said reply of the opposite party No.4 appears to have
been made as if the petitioner has been claiming
promotion to the post of Cashier. This Court, thus, finds
force in the submission of the learned Senior Counsel,
Sri Kali Prasanna Mishra, that at the time of
consideration of service of the petitioner for
regularisation by the Board of Management, i.e.,
13.10.2010, it is abundantly clear from the above
narration of position, that the Rules, 2011 was not in
vogue. Hence, this Court is of the firm opinion that as
the Board of Management passed Resolution on
13.10.2010, as indicated in Order dated 29.10.2011 of
the Secretary, the Rules, 1984 was in force. Under
erroneous perception, the opposite party No.4 has
W.P.(C) No.32917 of 2011 Page 15 of 52
insisted to consider the case of the petitioner in terms of
the Rules, 2011. In such view of the matter, the
contention of the opposite party No.4 that the petitioner
had no requisite qualification for being considered to be
regularised in the post of “Cashier” in consonance with
the Rules, 2011 falls flat.
8. The Central Cooperative Banks’ Staff Service Rules,
1984, framed in exercise of powers conferred under
Section 33A(b) of the Odisha Cooperative Societies Act,
1962, came into force with effect from 01.10.1984.
Relevant Rules for the present purpose provided that:
“2. Definitions.–
In these rules unless the context otherwise implies:
(a) BANK means the Central Cooperative Bank and its
Branches in the State of Odisha registered under the
provisions of the Odisha Cooperative Societies Act
and Rules.
(b) MANAGING COMMITTEE means the Board of
Management of the Bank constituted under its Bye-
Laws or as defined in the Odisha Cooperative
Societies Act and Rules.
(c) COMPETENT AUTHORITY means any Committee or
person empowered or delegated with any power to
take decision in any matter under these rules in
respect of service conditions of an employee or class
of employee of the Bank.
***
W.P.(C) No.32917 of 2011 Page 16 of 52
4. Classification of employees.–
The employees of the Bank shall be classified as:
1. Permanent;
2. Temporary;
3. Probationer;
4. Officiating.
PERMANENT EMPLOYEE means an employee who is
confirmed.
TEMPORARY EMPLOYEE means an employee who
has been appointed for a limited period for
work which is of an essentially temporary in
nature or in connection with the temporary
increase in work and is not made permanent.
PROBATIONARY EMPLOYEE means an employee who is
provisionally employed to fill up the permanent posts
and has not been made permanent or confirmed in
service.
OFFICIATING EMPLOYEE means an employee who is
appointed to officiate for a limited period against a
permanent or temporary post.
5. Category of posts.–
There shall be the following categories of posts in
the Bank–
***
7. Grade VI i. Assistant Supervisor
ii. Junior Assistant
iii. Cashier
iv. Care Taker
W.P.(C) No.32917 of 2011 Page 17 of 52
v. Typist
vi. Driver
8. Grade VII i. Peon
ii. Watchman
iii. Gardener
iv. Sweeper
v. Electrician
vi. Darwan
vii. Record Keeper
6. Appointments.–
Appointments shall be made by the Authorities as
follows:
i) The Managing Committee shall be the
Appointing Authority of the Secretary of Central
Co-operative Bank’s, subject to the approval of
the Registrar of Cooperative Societies.
ii) The Appointment Committee consisting of
the persons as specified below shall be the
Appointing Authority in respect of the post
under Grade-I to VI services:
1) The President of the Central Co-operative
Bank
2) Divisional Deputy Registrar of Co-
operative Societies of the area.
3) One Director of the Bank.
4) Chief Executive of the Bank.
W.P.(C) No.32917 of 2011 Page 18 of 52
iii) The Secretary shall be the Appointing
Authority in respect of the post against Grade
VII service.
7. Mode of appointment.–
a) Qualifications and training:
***
9)(a) Assistant Supervisor/Junior Assistant/
Cashier/Care Taker:
i) 40% of the vacancies shall be filled up by direct
recruitment through Employment Exchange.
Minimum qualification shall be graduate in
Commerce/Economics/Mathematics.
ii) Recruitment to the rest 60% of the vacancies
shall be made from the cadre personnel.
iv) Graduates with two years experience.
Intermediates with four years experience,
matriculates with six years experience and
under matriculates recruited prior to April,
1980 with fifteen years experience
having good career, clean service records
shall be considered for selection.
The merit will however be judged through
performance roll maintained by the Bank
in respect of the cadre personnel any cadre
personnel involved in misappropriation, fraud
or embezzlement will not be considered for
such selection.
W.P.(C) No.32917 of 2011 Page 19 of 52
***
10) Peon/Watchman/Gardener/Darwan/
Electrician/Record Keeper:
The vacancies shall be filled up by direct
recruitment through Employment Exchange.
The minimum qualification shall be up to the
standard of Class-X.
8. Special Provision:
Appointment of son/daughter/widow of
deceased employee in the service of the Bank:
Notwithstanding anything contrary contained
in these rules the competent authority may appoint
the son or unmarried daughter or widow of a
deceased employee of the Bank while in service, in
any post befitting to the qualification subject to
the position of vacancy.”
8.1. Rule 8 of the Rules, 1984, begins with the non-obstante
clause by stating “notwithstanding anything contrary”.
The interpretation of said expression can be found in the
Judgment dated 16.09.2019 rendered by the Gujarat
High Court in the case of Bank of Baroda Vrs. State of
Gujarat, which is reproduced hereunder:
“20. As regards the non-obstante clause, this Court
deems it fit to consider few decisions:
(i) In State of West Bengal Vrs. Union of India, AIR
1963 SC 1241, it is observed as under:
W.P.(C) No.32917 of 2011 Page 20 of 52
The Court must ascertain the intention of the
legislature by directing its attention not merely to the
clauses to be construed but to the entire statute; it
must compare the clause with the other parts of the
law and the setting in which the clause to be
interpreted occurs.’
(ii) In Union of India Vrs. Maj I.C. Lala, AIR 1973 SC
2204, the Supreme Court held that non-obstante
clause does not mean that the whole of the said
provision of law has to be made applicable or the
whole of the other law has to be made inapplicable.
It is the duty of the Court to avoid the conflict and
construe the provisions to that they are harmonious.
(iii) In Union of India Vrs. G.M. Kokil, AIR 1984 SC 1022,
the Supreme Court, at Paragraph 10, held as
follows:
‘It is well-known that a non-obstante clause is a
legislative device which is usually employed to give
overriding effect to certain provision over some
contrary provision that may be found either in the
same enactment or some other enactment, that is to
say, to avoid the operation and effect of all contrary
provisions.’
(iv) In Chandavarkar Sita Ratna Rao Vrs. Ashalata S.
Guram, (1986) 4 SCC 447, at Paragraph 67, the
Supreme Court held as follows:
’67. A clause beginning with the expression
‘notwithstanding any thing contained in this
Act or in some particular provision in the Act or
in some particular Act or in any law for the
time being in force, or in any contract’ is moreW.P.(C) No.32917 of 2011 Page 21 of 52
often than not appended to a section in the
beginning with a view to give the enacting part
of the section in case of conflict an overriding
effect over the provision of the Act or the
contract mentioned in the non-obstante clause.
It is equivalent to saying that in spite of the
provision of the Act or any other Act mentioned
in the non-obstante clause or any contract or
document mentioned the enactment following it
will have its full operation or that the
provisions embraced in the non-obstante clause
would not be an impediment for an operation of
the enactment. See in this connection the
observations of this Court in The South India
Corporation (P.) Ltd., Vrs. The Secretary, Board
of Revenue, Trivandrum & Anr., AIR 1964 SC
207 at 215 = (1964) 4 SCR 280.’
(v) In Vishin N. Kanchandani Vrs. Vidya Lachmandas
Khanchandani, AIR 2000 SC 2747, at Paragraph 11,
the Supreme Court held that,‘There is no doubt that by non-obstante clause the
Legislature devices means which are usually
applied to give overriding effect to certain provisions
over some contrary provisions that may be found
either in the same enactment or some other statute.
In other words such a clause is used to avoid the
operation and effect of all contrary provisions. The
phrase is equivalent to showing that the Act shall be
no impediment to measure intended. To attract the
applicability of the phrase, the whole of the section,
the scheme of the Act and the objects and reasons
for which such an enactment is made has to be kept
in mind.’
W.P.(C) No.32917 of 2011 Page 22 of 52
(vi) In ICICI Bank Ltd. Vrs. SIDCO Leathers Ltd., (2006)
67 SCL 383 (SC), the Supreme Court, at Paragraphs
34, 36 and 37, held as follows:
’34. Section 529-A of the Companies Act no doubt
contains a non-obstante clause but in
construing the provisions thereof, it is
necessary to determine the purport and object
for which the same was enacted….
36. The non-obstante nature of a provision
although may be of wide amplitude, the
interpretative process thereof must be kept
confined to the legislative policy….
37. A non-obstante clause must be given effect to,
to the extent the Parliament intended and not
beyond the same.’
(vii) The Supreme Court, in the case of Central Bank of
India Vrs. State of Kerala, (2009) 4 SCC 94, at
Paragraphs 103 to 107, considered many cases on
non-obstate clause, which are extracted,‘103. A non obstante clause is generally incorporated
in a statute to give overriding effect to a
particular section or the statute as a whole.
While interpreting non-obstante clause, the
Court is required to find out the extent to which
the legislature intended to do so and the
context in which the non obstante clause is
used. This rule of interpretation has been
applied in several decisions.
104. In State Bank of West Bengal Vrs. Union of
India, (1964) 1 SCR 371, it was observed that:
W.P.(C) No.32917 of 2011 Page 23 of 52
’68. *** the Court must ascertain the intention
of the legislature by directing its attention
not merely to the clauses to be construed
but to the entire statute; it must compare
the clause with the other parts of the law
and the setting in which the clause to be
interpreted occurs.’
105. In Madhav Rao Jivaji Rao Scindia Vrs. Union of
India and another, (1971) 1 SCC 85,
Hidayatullah, C.J. observed that the non
obstante clause is no doubt a very potent
clause intended to exclude every consideration
arising from other provisions of the same
statute or other statute but ‘for that reason
alone we must determine the scope’ of that
provision strictly. When the section containing
the said clause does not refer to any particular
provisions which it intends to override but
refers to the provisions of the statute generally,
it is not permissible to hold that it excludes the
whole Act and stands all alone by itself. A
search has, therefore, to be made with a view
to determining which provision answers the
description and which does not.
106. In R.S. Raghunath Vrs. State of Karnataka and
another, (1992) 1 SCC 335, a three-Judge
Bench referred to the earlier judgments in
Aswini Kumar Ghose Vrs. Arabinda Bose, AIR
1952 SC 369, Dominion of India Vrs. Shrinbai
A. Irani, AIR 1954 SC 596, Union of India Vrs.
G.M. Kokil, 1984 (Supp.) SCC 196,
Chandravarkar Sita Ratna Rao Vrs. Ashalata
S. Guram, (1986) 4 SCC 447 and observed:
W.P.(C) No.32917 of 2011 Page 24 of 52
‘*** The non-obstante clause is appended to a
provision with a view to give the enacting part
of the provision an overriding effect in case of a
conflict. But the non-obstante clause need not
necessarily and always be co- extensive with
the operative part so as to have the effect of
cutting down the clear terms of an enactment
and if the words of the enactment are clear and
are capable of a clear interpretation on a plain
and grammatical construction of the words the
non-obstante clause cannot cut down the
construction and restrict the scope of its
operation. In such cases the non-obstante
clause has to be read as clarifying the whole
position and must be understood to have been
incorporated in the enactment by the
legislature by way of abundant caution and
not by way of limiting the ambit and scope of
the Special Rules.’
107. In A.G. Varadarajulu Vrs. State of Tamil Nadu,
(1998) 4 SCC 231, this Court relied on Aswini
Kumar Ghose’s case. The Court while
interpreting non-obstante clause contained in
Section 21-A of Tamil Nadu Land Reforms
(Fixation of Ceiling on Land) Act, 1961 held:
‘It is well settled that while dealing with a non-
obstante clause under which the legislature
wants to give overriding effect to a section, the
court must try to find out the extent to which
the legislature had intended to give one
provision overriding effect over another
provision. Such intention of the legislature in
this behalf is to be gathered from the enactingW.P.(C) No.32917 of 2011 Page 25 of 52
part of the section. In Aswini Kumar Ghose Vrs.
Arabinda Bose, AIR 1952 SC 369, Patanjali
Sastri, J. observed:
‘The enacting part of a statute must, where it is
clear, be taken to control the non-obstante
clause where both cannot be read
harmoniously;’ …’
21. A non-obstante clause is generally appended to a
section with a view to give the enacting part of the
section, in case of conflict, an overriding effect over
the provision in the same or other Act mentioned in
the non-obstante clause. It is equivalent to saying
that in spite of the provisions or Act mentioned in the
non-obstante clause, the provision following it will
have its full operation or the provisions embraced in
the non-obstante clause will not be an impediment
for the operation of the enactment or the provision in
which the non-obstante clause occurs. [See
‘Principles of Statutory Interpretation’, 9th Edition by
Justice G.P. Singh Chapter V, Synopsis IV at pages
318 & 319].
22. When two or more laws or provisions operate in the
same field and each contains a non-obstante clause
stating that its provision will override those of any
other provisions or law, stimulating and intricate
problems of interpretation arise. In resolving such
problems of interpretation, no settled principles can
be applied except to refer to the object and purpose
of each of the two provisions, containing a non-
obstante clause. Two provisions in same Act each
containing a non-obstante clause, requires a
harmonious interpretation of the two seemingly
conflicting provisions in the same Act. In this difficult
W.P.(C) No.32917 of 2011 Page 26 of 52
exercise, there are involved proper consideration of
giving effect to the object and purpose of two
provisions and the language employed in each. [See
for relevant discussion in para 20 in Shri Swaran
Singh & Anr. Vrs. Shri Kasturi Lal, (1977) 1 SCC
750].
23. Normally the use of the phrase by the Legislature in
a statutory provision like ‘notwithstanding anything
to the contrary contained in this Act’ is equivalent to
saying that the Act shall be no impediment to the
measure [See Law Lexicon words ‘notwithstanding
anything in this Act to the contrary’]. Use of such
expression is another way of saying that the
provision in which the non-obstante clause occurs
usually would prevail over the other provisions in
the Act. Thus, the non-obstante clauses are not
always to be regarded as repealing clauses nor as
clauses which expressly or completely supersede
any other provision of the law, but merely as clauses
which remove all obstructions which might arise out
of the provisions of any other law in the way of the
operation of the principle enacting provision to which
the non-obstante clause is attached. [See
Bipathumma & Ors. Vrs. Mariam Bibi, 1966 (1)
Mysore Law Journal page 162, at page 165.”
8.2. Thus applying such perspective of the non-obstante
clause to Rule 8 of the Rules, 1984, it is abundantly
clear that a widow of deceased employee of the Bank
while in service can be appointed to “any post befitting
to the qualification”, of course subject to the position of
vacancy. It has been asserted in the counter affidavit
W.P.(C) No.32917 of 2011 Page 27 of 52
that “When the petitioner was appointed under the
Rehabilitation Assistance Scheme, there was no vacancy
of the post of peon, i.e., Class-IV post, hence she had
been appointed temporary post of peon”. Despite such
stance, it is not explained either in the counter affidavit
or by way of argument the reason for entrusting the
petitioner to undertake higher responsible post of
“Cashier” in Grade-VI vide Order dated 09.10.2001
(Annexure-3), when the Bank has accepted joining
report dated 05.01.2000 of the petitioner in the post of
“peon” (temporary). Since 2001, the opposite parties
have been extracting from the petitioner the duties
attached to higher responsible post of Cashier by giving
a meagre consolidated pay. Such long spell of
entrustment of duty in higher post and the performance
of the petitioner being reported to be impeccable by the
Branch Manager, it presupposes that she has been
discharging the duty of Cashier against a vacant post.
8.3. This Court directed vide Order dated 26.07.2011 passed
in W.P.(C) No.1447 of 2005 the opposite parties to take a
decision to regularise the service on the basis of the
report submitted by the Branch Manager, Mahila
Branch.
8.4. However, though Order dated 29.10.2011 of the
Secretary-opposite party No.4 regularising the service of
the petitioner in the post of peon is stated to have been
W.P.(C) No.32917 of 2011 Page 28 of 52
passed to give effect to decision taken vide Resolution
dated 13.10.2010 of the Board of Management, it is
apparent that the direction of this Court in Order dated
26.07.2011 could not have been taken care of.
8.5. There is no indication in the said order of the Secretary
nor is it revealed from the counter affidavit that the
Board of Management in the Resolution dated
13.10.2010 considered the report of the Branch
Manager, Mahila Branch. Therefore, this Court is of
considered view that such a report has been ignored.
8.6. To appreciate apposite factual position with respect to
service record of the petitioner vis-à-vis performance of
duty as Cashier since 2001, the report dated 27.07.2004
of the Branch Manager submitted to the opposite party
No.4 at latter’s request for the purpose of consideration
of regularisation of service is extracted herein below:
“With reference to the above captioned subject that
Tillotama Baliarsingh wife of Late Sarangadhar
Baliarsingh, Branch Manager of the United Puri-Nimapara
Central Cooperative Bank Ltd., Puri was appointed as
peon on rehabilitation ground due to untimely death of her
husband. She has passed H.S.C. Examination conducted
by Odisha Board of Secondary Education. She has served
nearly five yours years an consolidated pay.
Regarding her performance it may be certified that she is
very sincere and punctual towards her duties. In this
connection it may be noted down that for several timesW.P.(C) No.32917 of 2011 Page 29 of 52
she refunds the excess amount of cash to the customers
where it differs from the deposit slips and they praise her
honesty and attentive nature to her work. Besides, she
also helps the uneducated lady customers to do the
transaction conveniently at the counter.
As I find she commits no arithmetic error in counting of
cash is maintaining rough cash book and double lock
register in good handwritings without any cuttings,
overwriting and erasing.
Her dealings towards customers is quite encouraging and
find no such complaint against her.
This is for your kind consideration with prayer for
regularisation of her service.”
8.7. It is significant to take note of that had the Bank been
taking up the matter for regularisation of the service of
the petitioner in the post of “peon”, as per Rule 6(iii) read
with Rule 2(c) of the Rules, 1984, the Secretary would
have considered the same instead of Board of
Management. Nonetheless, it is perceived from Order
date 29.10.2011 of the Secretary that by virtue of
Resolution dated 13.10.2010 the Board of Management
considered the case of the petitioner for regularisation.
Therefore, it would obviously lead to understand that the
Board of Management/the Appointing Authority as
required under Rule 6(ii) of the Rules, 1984 had
undertaken the exercise for consideration of the case of
the petitioner for regularisation in service, i.e., “Cashier”
in the Grade-VI category of post. As on the date of such
W.P.(C) No.32917 of 2011 Page 30 of 52
Resolution, the petitioner was discharging her duties as
Cashier (in-Charge) since 2001 (around 10 years by
13.10.2010).
8.8. This Court having directed the opposite parties vide
Order dated 26.07.2011 in W.P.(C) No.1447 of 2005, for
consideration of regularisation in service, it is
unambiguous that the petitioner was matriculate and
had more than six years of experience. As per Rule 7 of
the Rules, 1984, the qualification for selection for the
post of “Cashier” inter alia was “matriculate with six
years’ experience” having good career and clean service
records.
8.9. Glance at the report of the Branch Manager as culled
out hereinabove transpires that the petitioner has good
career and clean service records. This Court being
conscious of such fact, in the earlier round of litigation
directed the opposite parties to consider the case of the
petitioner for regularisation “on the basis of the report
submitted by the Branch Manager, Mahila Branch”.
8.10. Looking the matter at different angle, it would go to
depict that Rule 4 of the Rules, 1984 classifies
“temporary” employee, which means an employee who
has been appointed for a limited period for work which is
of an essentially temporary in nature or in connection
with the temporary increase in work and is not made
W.P.(C) No.32917 of 2011 Page 31 of 52
permanent. In the instant case, as admitted by the
opposite party No.4 in the counter affidavit, since post
was not available to accommodate the petitioner under
the Rehabilitation Assistance Scheme, the petitioner was
instructed to join as peon (temporary) in the year 1999;
but in the year 2001, she was directed to man the post
of Cashier at the Mahila Branch, duty of which till date
she has been discharging unblemished.
8.11. Since for such a substantial length of service career the
petitioner has been serving the Bank as “Cashier” having
thus acquired the eligibility as prescribed under Rule 7
of the Rules, 1984, she could not be said to fall within
the meaning of “temporary employee” as specified under
the classification of employees vide Rule 4 ibid.
8.12. This Court taking into account observation made in
Order dated 26.07.2011 passed by this Court in W.P.(C)
No.1447 of 2005 and conceiving the existence of the
report of the Branch Manager submitted vide Letter Ref.
No.257, dated 27.07.2004 on the request of the
Secretary for consideration of regularisation of service
before the Board of Management, finds that the decision
vide Resolution dated 13.10.2010 with respect to
regularisation of the petitioner in the post of “Cashier”
(Grade VI) in terms of Rule 6 read with Rule 2(c) of the
Rules, 1984, conspicuously ignored to have regard to
said report of Branch Manager.
W.P.(C) No.32917 of 2011 Page 32 of 52
8.13. Under thoroughly misconceived notion, the opposite
party No.4 in his counter affidavit affirmed the fact as if
the case of the petitioner for consideration of
regularisation in service was undertaken as provided
under the Rules, 2011. As has already been mentioned,
said Rules, 2011 does not have application to the
present set of fact-situation. The petitioner was decided
to be appointed in the post of peon (temporary) in the
year 1999 in absence of vacancy, but directed to hold
the post of the Cashier (in-Charge) by Order dated
09.10.2001 which fell vacant on account of transfer of
predecessor in office to other Branch of the Bank. The
Branch Manager has furnished favourable report
enumerating in detail with regard to performance of the
petitioner in discharge of her duty as “Cashier” to the
opposite party No.4 for the purpose of consideration of
regularisation in service. Consequently, the
regularisation in service has been considered by the
Board of Management in the year 2010. Therefore, it is
objected to by learned Senior Advocate that instead of
regularising the service of the petitioner in the post of
“Cashier”, she could not have been regularised in the
post of “peon” as is evident from Order dated 29.10.2011
of the Secretary.
8.14. Hence, this Court has no doubt in mind to hold that the
petitioner’s case should have been considered by the
W.P.(C) No.32917 of 2011 Page 33 of 52
Board of Management or the Appointment Committee, as
the case may be, consisting of persons specified in Rule
6 taking into account the eligibility criteria prescribed
under the Rules, 1984 and “on the basis of the report
submitted by the Branch Manager, Mahila Branch”.
8.15. Therefore, the Order dated 29.10.2011 of the Secretary-
opposite party No.4 (Annexure-10) indicating
regularisation of service of the petitioner in post of peon
by virtue of Resolution dated 13.10.2010 of the Board of
Management, being vulnerable, cannot withstand
judicial scrutiny.
9. It does surface on cursory glance at the impugned Order
dated 29.10.2011 (Annexure-10) that it does not disclose
reason for consideration of the case of the petitioner for
regularisation in service of “peon” but not “Cashier”
notwithstanding fact that she was entrusted to function
as Cashier in-Charge by virtue of Order dated
09.10.2001 and continuing to function as such till date
without any blemish by keeping aside the report of the
Branch Manager. This aside, this Court in Order dated
26.07.2011 passed by this Court in W.P.(C) No.1447 of
2005 directed for taking a decision for regularisation of
the petitioner in her service “on the basis of the report
submitted by the Branch Manager, Mahila Branch”. The
impugned Order does not indicate whether such report
regarding performance of the petitioner in discharge of
W.P.(C) No.32917 of 2011 Page 34 of 52
duty as “Cashier” was considered and her conduct and
behavioural approach towards the customers of the
Bank as found mentioned in the report was taken into
account. The counter affidavit filed by the opposite party
No.4 is silent with respect to consideration of said Report
of the Branch Manager by the Board of Management.
9.1. It needs to be emphasised here referring to the ratio laid
down by the Hon’ble Supreme Court in catena of
decisions that reasons are heartbeat of every decision
making process to arrive at rightful conclusion; bereft of
which the decision becomes lifeless.
9.2. At this stage, it is felt expedient to refer to the following
observation of the Hon’ble Supreme Court, in the matter
of Steel Authority of India Limited Vrs. Sales Tax Officer,
(2008) 10 SCR 655 = 2008 INSC 799:
“12. A bare reading of the order shows complete non-
application of mind. As rightly pointed out by
learned counsel for the appellant, this is not the way
a statutory appeal is to be disposed of. Various
important questions of law were raised.
Unfortunately, even they were not dealt by the first
appellate authority.
13. Reason is the heartbeat of every conclusion. It
introduces clarity in an order and without the same
it becomes lifeless. [See Raj Kishore Jha Vrs. State of
Bihar, (2003) 11 SCC 519].
W.P.(C) No.32917 of 2011 Page 35 of 52
14. Even in respect of administrative orders Lord
Denning, M.R. in Breen Vrs. Amalgamated Engg.
Union, (1971) 1 All ER 1148, observed:
‘The giving of reasons is one of the fundamentals of
good administration.’In Alexander Machinery (Dudley) Ltd. Vrs. Crabtree
1974 ICR 120 (NIRC) it was observed:
“Failure to give reasons amounts to denial of
justice.” “Reasons are live links between the
mind of the decision-taker to the controversy in
question and the decision or conclusion arrived
at.” Reasons substitute subjectivity by
objectivity. The emphasis on recording reasons is
that if the decision reveals the “inscrutable face of
the sphinx”, it can, by its silence, render it virtually
impossible for the courts to perform their appellate
function or exercise the power of judicial review in
adjudging the validity of the decision. Right to
reason is an indispensable part of a sound judicial
system; reasons at least sufficient to indicate an
application of mind to the matter before court.
Another rationale is that the affected party can know
why the decision has gone against him. One of the
salutary requirements of natural justice is spelling
out reasons for the order made; in other words, a
speaking-out. The “inscrutable face of the sphinx” is
ordinarily incongruous with a judicial or quasi
judicial performance.”
9.3. Where the fact finding authority has acted without any
evidence or upon a view of the facts which could not
reasonably be entertained or the facts found were such
W.P.(C) No.32917 of 2011 Page 36 of 52
that no person acting judicially and properly instructed
as to the relevant law could have found, the Court is
entitled to interfere. See, Lalchand Bhagat Ambical Ram
Vrs. Commissioner of Income Tax, (1960) 1 SCR 301.
9.4. In Union of India Vrs. Mohan Lal Capoor, AIR 1974 SC 87
it has been held that reasons are the links between the
materials on which certain conclusions are based and
the actual conclusions. They disclose how the mind is
applied to the subject-matter for a decision whether it is
purely administrative or quasi-judicial and reveal a
rational nexus between the facts considered and
conclusions reached. The reasons assure an inbuilt
support to the conclusion and decision reached.
Recording of reasons is also an assurance that the
authority concerned applied its mind to the facts on
record. It is vital for the purpose of showing a person
that he is receiving justice.
9.5. In S.N. Mukherjee Vrs. Union of India, (1990) 4 SCC 594
the Supreme Court of India held that keeping in view the
expanding horizon of principles of natural justice, the
requirement to record reasons can be regarded as one of
the principles of natural justice which governs exercise
of power by administrative authorities. Except in cases
where the requirement has been dispensed with
expressly or by necessary implication, an administrative
authority is required to record reasons for its decision.
W.P.(C) No.32917 of 2011 Page 37 of 52
10. It is alleged by Sri Kali Prasanna Mishra, learned Senior
Advocate that the petitioner has been functioning as
Cashier in the Mahila Branch of the Bank since 2001
with meagre consolidated pay. He insisted that the
principle laid down in State of Punjab Vrs. Dharam Pal,
(2017) 9 SCC 395 in the context of employee being
entrusted with responsibility attached to higher post in
officiating capacity would be applicable to the nature of
work entrusted to the present petitioner in the higher
post of Cashier. In the said reported case, the Hon’ble
Supreme Court of India held as,
“14. Having analysed the Rule position, we may allude to
the authorities that have been commended to us.
First, we shall dwell upon the decision in Pritam
Singh Dhaliwal Vrs. State of Punjab, 2004 SCC
OnLine P&H 1428 = (2004) 4 RSJ 599 that has been
relied upon by the High Court in the impugned order.
In the said case, the Division Bench of the High
Court had placed reliance upon P. Grover Vrs. State
of Haryana, (1983) 4 SCC 291 = AIR 1983 SC 1060
and Selvaraj Vrs. Lt. Governor of Island, Port Blair,
(1998) 4 SCC 291 and earlier decisions of the High
Court and analysing the Rule position opined that
the officer therein had been asked to officiate as
Deputy Director with effect from 14.03.1996 and he
had been continuously posted to equivalent posts
such as Additional Deputy Commissioner (D) and till
his superannuation the officiating charge was never
withdrawn and hence, his entitlement to claim
higher pay scale for the post for which he was asked
W.P.(C) No.32917 of 2011 Page 38 of 52
to officiate and perform his duties till his
superannuation would not be negatived.
***
22. In the instant case, the Rules do not prohibit grant of
pay scale. The decision of the High Court granting
the benefit gets support from the principles laid
down in P. Grover Vrs. State of Haryana, (1983) 4
SCC 291 = AIR 1983 SC 1060 and Secy.-cum-Chief
Engineer Vrs. Hari Om Sharma, (1998) 5 SCC 87. As
far as the authority in A. Francis Vrs. Metropolitan
Transport Corpn. Ltd., (2014) 13 SCC 283 is
concerned, we would like to observe that the said
case has to rest on its own facts. We may clearly
state that by an incorporation in the order or merely
by giving an undertaking in all circumstances would
not debar an employee to claim the benefits of the
officiating position. We are disposed to think that the
controversy is covered by the ratio laid down in
Secy.-cum-Chief Engineer Vrs. Hari Om Sharma,
(1998) 5 SCC 87 and resultantly we hold that the
view expressed by the High Court is absolutely
impeccable.”
10.1. In view of “Classification of Employees” as finds place in
Rule 4 of the Rules, 1984, having worked in the capacity
of Cashier by virtue of Order dated 09.10.2001, the
petitioner could not fall within the meaning of
“temporary employee” contained therein.
10.2. It is not denied by the opposite party No.4 in the reply
that the petitioner has not worked as Cashier since 2001
and continuing till date. While directing the petitioner to
W.P.(C) No.32917 of 2011 Page 39 of 52
work as Cashier in-Charge of Mahila Branch vide Order
dated 09.10.2001 (Annexure-3) there was no indication
about payment. It is true that the Bank was to take a
decision with regard to regularization in service of the
petitioner. But having regard to the qualification as per
eligibility criteria contained in the Rules, 1984 the
petitioner was entitled to be considered for the post of
Cashier.
10.3. Since the petitioner has been entrusted with higher
responsibility attached to the post of Cashier even
though was appointed as peon as “temporary employee”.
As is evinced from the report of the Branch Manager it is
perceptible that the petitioner has been discharging her
duty sincerely, honestly and efficiently and fit enough to
be considered for regularization in the post of Cashier.
Therefore, she would be entitled to financial benefits
attached to the higher post. The fact remains, the
petitioner has already worked for more than 24 years by
now as Cashier without blemish. An employee cannot be
deprived of his/her right to get higher salary/scale of
pay, if he/she discharges the duties of higher office. In
this case, the petitioner was directed to work as Cashier
on 09.10.2001 by Order of the Bank. As per Rule 5 of
the Rules, 1984, while the post of peon is placed at
Grade-VII, the post of Cashier falls under Grade-VI
category. Thus, the post of Cashier is a higher post.
W.P.(C) No.32917 of 2011 Page 40 of 52
10.4. A person, who performs the duties of higher office, must
get the salary/scale of pay attached to the post. He
cannot waive of his fundamental/legal right to get the
higher salary/scale of pay.
10.5. The petitioner, in the instant case, is entitled to get the
salary/scale of pay attached to the post of Cashier on
the well-recognized principle of “equal pay for equal
work”. The “competent authority” as defined under Rule
2(c) of the Rules, 1984 is, no doubt, required to take
decision with regard to categories of employees specified
under Rule 5, governing their conditions of service.
10.6. Since the petitioner was directed to work as Cashier in
the Mahila Branch by virtue of Order dated 09.10.2001,
and till date she is discharging her duty in the said
capacity honestly and sincerely, it presupposes that the
post is vacant and she is invested with powers to man
the said post for such a long period. In view of this, the
petitioner cannot be denied the salary/scale of pay
entitled for the post of Cashier for working more than
twenty-four years by now.
11. The learned counsel appearing for the opposite party
No.4 made feeble attempt to persuade this Court to
relegate the petitioner to set up dispute under Section
68 of the Odisha Cooperative Societies Act, 1962 before
the Registrar of Cooperative Societies, who is the
W.P.(C) No.32917 of 2011 Page 41 of 52
competent authority to settle the dispute relating to
regularisation of the petitioner in service.
11.1. Sri Adyasidhi Mishra, learned Advocate for the petitioner
would submit that this matter has been pending before
this Court since 2011 and this being second round of
litigation as a sequel to the first being W.P.(C) No.1447 of
2005, disposed of vide Order dated 26.07.2011, the
petitioner may not be directed to avail alternative
remedy.
11.2. Examining the impugned Order dated 29.10.2011 does
not reveal that the case of the petitioner was considered
by taking into account the report of the Branch
Manager. Reading of report of the Branch Manager
establishes the fact that the petitioner has been
discharging the duty of Cashier since 2001 without any
blemish. It is also forthcoming that she is an asset for
the Bank and she is helpful for customers of the Bank.
The Order dated 29.10.2011 is silent as to whether the
Board of Management has considered such report vis-à-
vis eligibility with reference to long spell of discharge of
duty as Cashier.
11.3. Learned Senior Counsel, Sri Kali Prasanna Mishra,
referred to following observation of Division Bench of
this Court rendered in Laxmidhar Roul Vrs. Board of
W.P.(C) No.32917 of 2011 Page 42 of 52
Management, R.C.M.S., 1998 SCC OnLine Ori 223 = 87
(1999) CLT 22:
“Apart from what has been stated above, even if we
accept the contention of the opposite parties that the
Society is not an instrumentality of the State within the
meaning of Article 12 of the Constitution, yet the writ
petition under Article 226 of the Constitution would lie
against it and writ can be issued for enforcement of any
of the fundamental rights or for any other purpose. The
term ‘authority’ used in Article 226 should receive a
liberal meaning unlike the term in Article 12. In exercise of
power conferred by Article 226, the High Court can issue
writs for enforcement of both fundamental rights as well
as non-fundamental rights. Therefore, the words “any
person or authority” used in the said Article are not
confined to only statutory authority or instrumentality of
the State. For such conclusion we derive support from a
decision of the Apex Court reported in (1989) 2 SCC 691 =
AIR 1989 Supreme Court 1607 : Shri Anadi Mukta
Sadguru S.M.V.S.J.M., Trust Vrs. V.R. Rudani; and (1969)
1 SCC 585 = AIR 1969 Supreme Court 1306 : Praga Tools
Corporation Vrs. C.V. Imanual.”
11.4. In Genpact India Private Limited Vrs. Deputy
Commissioner of Income Tax, (2019) 17 SCR 139 it has
been lucidly held that,
“Even otherwise, the learned Judge was not right in law.
True it is that issuance of rule nisi or passing of interim
orders is a relevant consideration for not dismissing a
petition if it appears to the High Court that the matter
could be decided by a writ court. It has been so held even
by this Court in several cases that even if alternative
W.P.(C) No.32917 of 2011 Page 43 of 52
remedy is available, it cannot be held that a writ petition
is not maintainable. In our judgment, however, it cannot
be laid down as a proposition of law that once a petition
is admitted, it could never be dismissed on the ground of
alternative remedy. If such bald contention is upheld,
even this Court cannot order dismissal of a writ petition
which ought not to have been entertained by the High
Court under Article 226 of the Constitution in view of
availability of alternative and equally efficacious remedy
to the aggrieved party, once the High Court has
entertained a writ petition albeit wrongly and granted the
relief to the petitioner.”
11.5. Taking into account the above principle, if the factual
scenario as discussed in the foregoing paragraphs are
considered, it is apparent that in the first round of
litigation the petitioner had to wait for around 6 years
for disposal of writ petition, being W.P.(C) No.1447 of
2005 on 26.07.2011. As the report was not taken care
of, but the Board of Management decided to regularise
the service of the petitioner in the post of peon, the
petitioner is before this Court in the present second
round of litigation and has been waiting for its turn for
disposal of the writ petition. At this juncture when the
petitioner, though was initially appointed in the post of
“peon” as “temporary employee” in the year 1999, and
that she was directed to work as “Cashier” by virtue of
Order dated 09.10.2001 in Mahila Branch where she
has been functioning as such till date, her service is
regularised in the post of “peon” ignoring the report of
W.P.(C) No.32917 of 2011 Page 44 of 52
the Branch Manager. Therefore, this Court is not
inclined to dismiss this petition on the ground of
maintainability as basic facts required for consideration
of the case of the petitioner for regularisation in service
are not in dispute.
Conclusion:
12. On the factual background that the petitioner being
appointed as “peon” specified under Grade-VII vide
“Category of posts” enumerated under Rule 5 by Order
dated 17.07.1999, in terms of Rehabilitation Assistance
Scheme, due to non-availability of vacancy at the
relevant point of time, she was directed to function as
“Cashier”, a Grade-VI post, against vacancy arose due to
transfer of Surama Mishra, Cashier in-Charge of Mahila
Branch of the Bank by Order No.2679, dated
09.10.2001. Since her joining in the said higher post in
Grade-VI on 10.10.2001 she has been performing with
sincerity and honesty as transpired from the report
submitted by the Branch Manager-opposite party No.5
at the request of the Secretary-opposite party No.4 in
connection with the case of the petitioner for
regularisation in service.
12.1. Rule 7 of the Rules, 1984, requires a person to be
selected as “Cashier” to have passed matriculation with
six years’ experience coupled with good career and clean
W.P.(C) No.32917 of 2011 Page 45 of 52
service records. No dispute is set up by the opposite
parties nor does any adverse material find place on
record. The petitioner has passed Class-X from Board of
Secondary Education, Odisha and has more than six
years of experience with good career and clean service
records.
12.2. It is manifest on the face of Order No.3432, dated
29.10.2011 of the Secretary of the Bank that a decision
is taken by the Board of Management vide Resolution
dated 13.10.2010 to regularise the service of petitioner
in the post of peon in the scale of pay Rs.2550-55-2660-
60-3200.
12.3. From the above, it seems by the time the direction of this
Court in Order dated 26.07.2011 came to be passed in
W.P.(C) No.1447 of 2005 the Board of Management had
already passed Resolution dated 13.10.2010. This Court
in the said order clearly requested the opposite parties to
take “a decision to regularise her (the petitioner) services
on the basis of the report submitted by the Branch
Manager, Mahila Branch”.
12.4. Having regard to the report of the Branch Manager
placed at Annexure-8 of the writ petition leads to no
confusion in mind that the petitioner is sincere,
impeccably honest having good moral character. There is
no indication nor does any reason ascribed in the
W.P.(C) No.32917 of 2011 Page 46 of 52
impugned Order dated 29.10.2011 (Annexure-10). The
counter affidavit is also silent about manner of
consideration of the performance of the petitioner in the
post of Cashier as per the report of the Branch Manager.
12.5. At the stage of hearing of this Case before this Court,
nothing tangible was placed nor did the counsel
appearing for the opposite party No.4 argue that the
report of the Branch Manager containing performance of
the petitioner as Cashier was considered. It could not be
objected to by the opposite parties with respect to the
length of service that has been put in by the petitioner in
the higher post with higher responsibility since 2001.
The counsel for the opposite party No.4 except for
stressing upon the provisions contained in the Rules,
2011, as stated in the counter affidavit, to contend that
the case of the petitioner could not be considered due to
lack of eligibility envisaged therein, failed to put forth
any material to corroborate such eligibility vis-à-vis the
Rules, 1984. At the cost of repetition, it is borne in mind
that the Resolution dated 13.10.2010 of the Board of
Management considering regularisation of the petitioner
in service was passed prior to introduction of the Rules,
2011.
12.6. Sri Gokulananda Sahu, learned Advocate for the
opposite party No.4 also fairly conceded that as the
petitioner has been discharging her duties since
W.P.(C) No.32917 of 2011 Page 47 of 52
10.10.2001 till date in the capacity of Cashier (in-
Charge), i.e., in higher Grade-VI, though joined as peon
in Grade-VII, she is entitled to pay specified for such
higher Grade-VI post.
13. The learned counsel for the opposite party No.4 as if the
case of the petitioner fell for consideration of promotion
to the post of “Cashier” from “peon”, addressed this
Court with reference to the requirement under the Rules,
2011, which in the considered opinion of this court is
erroneous perception.
13.1. The case of the petitioner is for regularisation in service
in the post which she has been assigned to perform and
discharge duty as Cashier since 2001. When the
eligibility for the post is prescribed under the Rules,
1984 was matriculation with six years’ experience
coupled with clean service records, her entrustment to
work as Cashier by virtue of Order dated 09.10.2001
was required to be considered in consonance with the
provision envisaged in Rule 8 of the Rules, 1984, which
in unequivocal terms spells out that “Notwithstanding
anything contrary contained in these rules the Competent
Authority may appoint the … widow of a deceased
employee of the Bank while in service, in any post
befitting to the qualification subject to the position of
vacancy”.
W.P.(C) No.32917 of 2011 Page 48 of 52
13.2. The opposite party No.4 has in counter affidavit
[paragraph 6(II)] made it clear that “when the petitioner
was appointed under Rehabilitation Assistance Scheme,
there was no vacancy of the post of peon, i.e., Class-IV
post, hence she had been appointed temporary of peon”.
But later in the year 2001 she was directed to perform
and discharge duty of Cashier of Mahila Branch of the
Bank. Keeping in view the meaning of “temporary
employee” in Rule 4 of the Rules, 1984, it is the Bank
which has adjusted the petitioner against vacant post of
Cashier (Grade-VI). After exploiting the service of the
petitioner in higher post with pay attached to the lower
Grade for more than two decades, it is construed the
action of the opposite parties to be arbitrary and it would
be harsh to direct the petitioner to be regularised in the
post of “peon” and to continue with the job of “Cashier”,
especially when her eligibility as per the Rules, 1984 and
competence in the post of Cashier remained
unquestionable with reference to report of the Branch
Manager.
14. This Court being conscious of the fact that in the first
round of litigation the petitioner spent around six years
in this Court and the grievance of the petitioner could
not be met as the Board of Manager had no occasion to
give effect to the direction contained in Order dated
26.07.2011 of this Court passed in W.P.(C) No.1447 of
W.P.(C) No.32917 of 2011 Page 49 of 52
2005, this Court is inclined to entertain this writ
petition. Since 2011 the petitioner has been in queue
awaiting disposal of the present writ petition. Added to
this, as admitted at the Bar, though by virtue of Order
dated 29.10.2011 (Annexure-10) the service of the
petitioner has been regularised in the post of “peon”
(Grade-VII), she has been continuing to discharge the
duty of Cashier in the Mahila Branch of the Bank. The
basic facts which are required for consideration of the
tenability of the Order dated 29.10.2011 (Annexure-10)
vis-à-vis eligibility of the petitioner for regularisation in
service with particular reference to the Rules, 1984,
being not disputed or denied by the opposite parties, it
would be inept to dismiss the writ petition on the ground
of availability of alternative remedy; nonetheless,
considering the fact that the petitioner, who joined in the
year 2000 as peon (temporary) under the Rehabilitation
Assistance Scheme having lost her husband in harness
and was entrusted with higher responsibility in the
position of Cashier with meagre amount since 2001, this
Court declines to accede to the objection of Sri
Gokulananda Sahu, learned Advocate appearing for the
opposite party No.4 for relegating the petitioner to set up
dispute under Section 68 of the Odisha Cooperative
Societies Act, 1962.
W.P.(C) No.32917 of 2011 Page 50 of 52
15. As no reason is emanating from Order dated 29.10.2011
of the Secretary with respect to material considered for
taking decision by the Board of Management vide
Resolution dated 13.10.2010, which appears to have run
contrary to the report of the Branch Manager, the
impugned Order in Annexure-10 cannot be sustained
and is liable to be quashed. Hence, this Court does so.
16. Under the aforesaid premises, the Order No.3432, dated
29.10.2011 of the Secretary of the United Puri-Nimapara
Central Cooperative Bank Ltd. (Annexure-10)
regularising the petitioner in the post of peon in the
scale of pay Rs.2550-55-2660-60-3200 in pursuance of
decision taken by the Board of Management vide
Resolution No.8, dated 13.10.2010 is quashed, as
prayed for by the petitioner.
16.1. In consequence thereof, it is requested that the
competent authority of the United Puri-Nimapara
Central Cooperative Bank Ltd. shall consider the case of
the petitioner for regularisation in service in the post of
“Cashier” in terms of the observations made in the
foregoing paragraphs and also keeping in view the
direction contained in Order dated 26.07.2011 passed in
W.P.(C) No.1447 of 2005.
W.P.(C) No.32917 of 2011 Page 51 of 52
16.2. Needless to say that the petitioner, in the event of
favourable consideration by the competent authority as
mentioned above, shall be entitled to higher scale of pay.
16.3. It is hoped that the entire exercise of the opposite parties
shall be concluded within a period of three months
hence.
17. In the result, the writ petition stands allowed in the
above terms, but in the circumstances, there shall be no
order as to costs.
18. As a result of disposal of the writ petition, all pending
interlocutory applications, if any, shall stand disposed
of.
(MURAHARI SRI RAMAN)
JUDGE
Signature Not Verified
High Court of Orissa, Cuttack
Digitally Signed
Signed by: SUCHITRA The 15th April, 2025//Aswini/Laxmikant
BEHERA
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 15-Apr-2025 16:44:25 W.P.(C) No.32917 of 2011 Page 52 of 52