Orissa High Court
Kartik Chandra Panda vs State Of Orissa And Others on 1 August, 2017
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) NO. 18004 OF 2012
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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AFR
Kartik Chandra Panda ........ Petitioner
-Versus-
State of Orissa and others ......... Opp. Parties
For petitioner : M/s. P.K. Satapathy, B.P. Das,
S. Pattnaik and D. Pattnaik,
Advocates.
For opp. parties : Mr. L. Samantray,
Add. Govt. Advocate.
(O.Ps. No.1 to 3)
Mr. A.K. Mohapatra and
S.J. Mohanty, Advocates.
(O.P. No.4)
Mr. S. Udgata and
A. Mishra, Advocates.
(O.P.No.5)
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PRESENT
THE HON'BLE DR. JUSTICE B.R. SARANGI
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Date of argument: 27.07.2017 : Date of Judgment: 01.08.2017
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DR. B.R. SARANGI, J. The petitioner, who is a qualified person
having B. Sc., I.T.I. with valid electrician license to perform the
duty and work of electrician, has filed this application assailing
the office order dated 07.09.2012 in Annexure-1, whereby the
authority has disengaged him from the duty after 07.09.2012,
the date of expiry of his contractual engagement.
2. The factual matrix of the case is that College of
Engineering and Technology (CET), Bhubaneswar is a technical
institution under the BPUT. It issued advertisement on
06.08.2008for walk-in-interview for selection to different posts including the post of electrician on contractual basis fixing the date of interview on 14.08.2008. Pursuant to such advertisement, the petitioner appeared at the interview for selection to the post of electrician on contractual basis on consolidated remuneration of Rs.3200/- per month. The selection committee selected the petitioner and recommended his name for appointment and accordingly he was appointed on 01.09.2008 on contractual basis for a period of six months and the opposite parties from time to time extended the said contract period by passing several extension orders. Lastly, on 30.06.2012, the contractual period of the petitioner was 3 extended for a period of three months from 08.06.2012 to 07.09.2012 with revised salary of Rs.5200/- per month. Thereafter, on 07.09.2012, the opposite parties issued a tender call notice inviting tenders from the experienced service providers to provide electrician, mason-cum-plumber and carpenter for a period of one year with effect from the date of award of contract. In the said tender call notice, opposite party no.5 required four nos. of electrician on contract basis. As a result, the petitioner, being only selected person by following due procedure of selection, faced termination on completion of contract period, though similarly situated employees filed writ petition before this Court bearing W.P.(C) Nos.812 of 2011 and 21768 of 2012 and pursuant to the status quo order passed by this Court are still continuing in service. Hence this application.
3. Mr. P.K. Satapathy, learned counsel for the petitioner strenuously urged that the petitioner, having been selected by following due procedure of selection and allowed to continue on contractual basis with a consolidated salary, should not have replaced by another set of contractual employee pursuant to the tender call notice issued on 07.09.2012 and, as such, the action of the authority not only amounts to exploitation of labour but 4 also arbitrary and unreasonable. To substantiate his contention, he has relied upon the judgment of this Court in Dillip Kumar Baral v. Biju Pattnaik University and Technology (BPUT), represented through the Registrar, Rourkela and another, 2013 (II) OLR 210.
4. Mr. L. Samantray, learned Addl. Govt. Advocate contended that it is a matter between petitioner and opposite party no.5, therefore the State has no role to play.
5. Mr. A.K. Mohapatra, learned counsel for opposite party no.4-BPUT states that opposite party no.5 is one of the institutions imparting technical education having been affiliated to the university. Therefore, with regard to appointment under opposite party no.5, opposite party no.4 has no control. Thereby, in the present context, this opposite party has no role to play.
6. Mr. S. Udgata, learned counsel for opposite party no.5 strenuously urged that since the petitioner was engaged purely on contractual basis on a consolidated remuneration, after expiry of the period, he has to go automatically. In case of contractual employment, the service of the contractual 5 employees comes to an end on completion of the period contract and, as such, no order of disengagement/termination is required to be passed in such type of employment. More so, the termination, on completion of contract period, does not attach any stigma. Therefore, the decision of the authority to disengage the petitioner and engage other persons, by way of outsourcing, cannot be said to be illegal and, as such, the action of the authority, being wholly and fully justified, does not warrant any interference by this Court. To substantiate his contention, he has relied upon the judgment dated 08.03.2011 of this Court in W.P.(C) No.9647 of 2010 (Sushanta Sekhar Banchhor v. State of Orissa).
7. Having heard learned counsel for the parties and after perusing the records, since pleadings between the parties have been exchanged, with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.
8. As per the factual matrix discussed above, it is admitted that the petitioner, having requisite qualification for the post of electrician, was selected by following due procedure of selection pursuant to advertisement issued and was engaged 6 as such on contractual basis for a specific period with consolidated remuneration, which was extended from time to time by the authority. But, in order to facilitate engagement of electricians on outsourcing basis, on completion of contract period, the petitioner had to face disengagement.
9. In Sushanta Sekhar Banchhor mentioned supra, this Court held that in case of contractual employment the services of contractual employee comes to an end on completion of the period of contract and for that no order of termination is required. Only when the termination is attached with a stigma, the Court may insist upon observance of principles of natural justice. The decision to disengage the petitioner and engage persons by way of outsourcing is not a stigma and it is a pure policy decision which cannot be interfered with in a writ petition. The said judgment was delivered by this Court on 08.03.2011, but while considering the case of the petitioner in the said case, the judgment of the apex court in State of Haryana and others v. Piara Singh and others, AIR 1992 SC 2130 was not taken note of by this Court. In paragraphs-10 and 25 of the said judgment, the apex Court held as follows:-
"10. xx xx The main concern on the Court in such matters is to ensure the Rule of law and to see that the 7 executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the Court presumes that there is need and warrant for a regular post and accordingly directs regularization."
xx xx xx
"25. xx xx The normal rule, of course, is regular
recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employees by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.
Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority."
The apex Court categorically held that an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee. He must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
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10. In Dillip Kumar Baral (supra), in respect of the very same college, i.e., opposite party no.5 in the present writ petition and also the very same university-opposite party no.4, with regard to appointment of lecturers in Architecture, following the principles laid down by the apex Court in Piara Singh (supra), this Court set aside the advertisement dated 18.12.2012 published in daily 'Samaj' on 19.12.2012 to give employment to an another set of contractual lecturer.
11. In the instant case, the very same institution has taken steps to remove the petitioner, who is a contractual employee, by engaging another employee through outsourcing pursuant to tender call notice issued in Annexure-7 dated 07.09.2012, which cannot sustain in the eye of law. More so, when similarly situated employees have been allowed to continue pursuant to status quo order passed of this Court in W.P.(C) Nos.812 of 2011 and 21768 of 2012, disengagement of the petitioner in the name of completion of contract period and engagement of another contractual employee in his place by way of outsourcing pursuant to the impugned tender call notice amounts to arbitrary and unreasonable exercise of power by the authority.
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12. Therefore, the order dated 07.09.2012 in Annexure-1 disengaging the petitioner, on expiry of his earlier engagement, is hereby quashed and any action taken pursuant to tender call notice dated 07.09.2012 cannot sustain in the eye of law. Accordingly, the same is also hereby quashed. Consequentially, it is open to the opposite parties to issue fresh advertisement for filling up of the post of electrician on regular basis and in the event the opposite parties decided to fill up the post of electrician on regular basis, the case of the petitioner shall also be considered in accordance with law.
13. The writ petition is allowed to the extent indicated above. No order to cost.
Sd/-
(DR. B.R. SARANGI ) JUDGE The High Court of Orissa, Cuttack Dated the 1st August, 2017/Ashok True Copy Sr. Steno