Orissa High Court
Dheerendra Kumar Dash vs State Of Odisha And Others ..... ... on 5 September, 2023
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 7224 of 2016
----
Dheerendra Kumar Dash ..... Petitioners
and others
-Versus-
State of Odisha and others ..... Opposite Parties
For Petitioners : Mr. P.K. Rath, Senior Advocate
For Opp. Parties : Mr. G.N. Rout (ASC)
(O.P. Nos. 1, 2 & 5)
Mr. P.K. Panda, Advocate
(O.P. Nos. 3 & 4)
CORAM: JUSTICE SANJAY KUMAR MISHRA
Date of Hearing: 14.08.2023 : Date of Judgment:05.09.2023
S.K. Mishra, J.
The P etitioners, who are working as Yardmen o n contract basis in the Reg ulated Mark et Committee, Bargarh, shortly, RMC Bargarh since 2007, have preferred the p rese nt Writ Petition for quas hing of the Order dated 09.09.201 5 passed by the Collector-Cum- Chairman, RMC, Bargarh (Opposite Party No.5), as at Annexur e-1, whereby, their representation for regularization of services against the vaca nt posts of Yardman wa s rejected. Also a prayer has been mad e seeking for a directio n to the Opposite Party Nos. 4 and 5 to regularize their services and exte nd all such benefits, as is due and ad missible to the said posts.
2. The factual matrix of the case, in a nutshell, is tha t the Sta te Government under the Orissa Agricultur e Produce Market Act, 1956, shortly, Act, 1956, established Market Committee i n every area in respect of agricultur e produce. For superintendence over such Mark et Committee, by Notification in Official Gazette, a Board called the Orissa State Agricultural Market Board, shortly, OSAM Board, was establ ished under Section 18- A of the Act, 19 56. The OSAM Board vide Office Order No.4106 dated 03.08.2 007 intimated the Chairman/Secretary, RMC, Bargarh that the Board has been pleased to accord a pprova l for creation of posts in different categ ories in favour of the RMC, Bargarh. Pur sua nt to the said Order, the Secretary, RMC, Bargarh, vide its Office Order No.7 54 dated 26.08.2007, as at Annexur e-3, req uested to accor d necessary approval for engagement of 45 numbers of contractual workers against Page 2 of 11 vacant posts from amongst the existing NMRs. On 31.08.2 007 proceeding of the Appointment a nd Promotion Sub-Committee of RMC, Bargarh was held in the Office of the Sub-Collector-Cum-Chairman, RMC, Bargarh, wherei n it was decid ed to engage the pr esent NMRs in the vacant posts on contra ctual basis after obtaining d ue approval from the OSAM Board. Thereafter, the OSAM Board, vide Order dated 20.0 9.200 7, as at Annexur e-6, intimated the RMC, Bargarh about the approval of the proceeding of the Sub-Committee of RMC, Bargarh by the Hon'ble Minister, Co-operation-Cum-Chairperson, OSAM Board and advised to observe d ue formalities.
3. Pur sua nt to the Resolution of the Appointment and Promotion Sub- Committee of RMC, Bargarh and approval of OSAM Board, Bhuba neswar, the Sub-Collector-Cum- Chairman, RMC, Bargarh vide Ord er No.953 dated 09.10.2 007, as at Annex ure-7, appointed the Petitioners against the vacant posts on contra ctual basis with consolidated salary. Since then, the P etitioners ar e discharging their servi ces on co ntractual basis. When no step was taken for regularization of the services of the Page 3 of 11 Petitioners, they made representatio n dated 05.08.2008 to the Chairman, RMC, Bargarh through the Secretary, RMC, Bargarh, as at Annexure-8. The Secretary, vide his letter dated 10.08.2008, submitted the said representatio n to the General Manager, OSAM Board, Bhuba neswar. On receipt of the said representatio n, the General Manag er, OSAM Board, vide his letter dated 13.08.2 008, sought for certain clarification and justification from the Secretary, RMC, Bargarh, for regularization o f services of the contra ctual workers. I n respo nse to the said letter, the Secretary, RMC, Bargarh, furnished necessary clarification assigning reasons for regularization o f services of the Petitioners vide letter dated 22.0 9.2008, as at Annexure-11. It is the further case of the Petitioner s that after proper verification/ clarification given by the Secr etary, RMC, Bargarh, the General Manager, OSAM Board, vide Order dated 27.09.20 08, as at Annexure-12, communicated to the Secre tary, RMC, Bargarh regarding approval for regularization o f 45 nos. of contractual workers by the Chairper son, OSAM, Board ind icating therei n that after regularization of the said staff, the expenditure sho uld be Page 4 of 11 within the prescribed limit fixed by OSAM Board and the RMC, Bargarh was advised to obser ve d ue formalities in the said r esp ect. Accordingly, the P etitioners' services were regularized. In spite of such regularization, the Petitioners were not treated as regular em ployees and denied regular scale of pay.
4. The Petitioners, finding no other alternative remedy, preferred W.P.(C) No.7907 of 2010. This Court, by its Order dated 06.07.20 10, disposed of the said Writ Petition by directing the P etitioners to file fresh representatio n before Oppo site Party No.5. Accordingly, the Petitioners made representation to the A.D.M.-Cum- Chairman, RMC, Bargarh. T he Opposite Party No.5 rejected the said repr esentatio n in a mechanical manner on 21.09.201 0. The Secretary of the Regulated Market Committee vid e Memo No.2049 dated 2 1.09.2010, communicated the same to the Petitioners.
5. Again, the Petitioners pr eferred W.P.(C) No.15278 of 2011 before this Cour t, which was disposed of vide Order dated 27.07.2015 with a direction to file a fresh representatio n before the Authority within ten days from Page 5 of 11 the date of passing of the said Order a nd the Authority concer ned was directed to co nsider and pass order within six weeks. Pursua nt to said direction, the Petitioners made representation to the O pposite Party No.5 within the stipulated time. However, the Op posite Pa rty No.5, vide Ord er dated 0 9.09.2015, rejected the representatio n of the P etitioners solely on the ground that irregularly recruited engagees cannot be regularized in blata nt violation of settled recruitme nt norms and transgressio n of provisions of ORV Act.
6. Being aggrieved by the said Order dated 09.09 .2015 passed by the Opposite Party No.5, the P etiti oners have approac hed this Court with the prayers as detailed above.
7. Being noticed, the Opposite P arties, including the State, tho ugh appeared but did not file any Counter Affidavit. L earned Co unsel for the Petitioners submitted that Opposite Party Nos. 3 and 4 filed a detail ed Co unter Affidavit in the previo us Writ Petition preferr ed by the present Petitioners i.e. W.P.(C) No. 15278 of 2011, whic h has been a nnex ed to the Writ Petition as Annexure-2. The Page 6 of 11 said submission was not disp uted by Mr. Panda, learned Counsel for the Opposite Party Nos. 3 and 4.
8. Heard Mr. Rath, learned Senior Counsel for the Petitioners, Mr. G.N. Rout, learned Ad ditional Standing Counsel for Opposite Party Nos. 1, 2 a nd 5 and Mr. Panda, lear ned counsel for Opposite Party Nos. 3 and 4.
9. Learned Co unsel for the Petitioners submitted that the case of the Petitioners is identical to the case of the Petitioners in W.P.(C) No.5668 of 2016, which was disposed of vide a detailed judg ment dated 21.0 7.202 3 by this Co urt. He further submitted that the Petitioners ar e four, out of forty-five contractual employees, whose case s were duly ap proved by the Chairperso n for reg ularization of their services. Accordingly, Mr. Rath, Senio r Counsel for the Petitioners prayed for disposal of the pres ent case in terms of the said judgment dated 21.07.20 23 passed in W.P.(C) No.5668 of 2016.
10. Mr. Panda submitted that tho ugh no Co unter Affidavit has been filed by his clients, as per Sections 6 and 7 of the O disha Reservation of Vaca ncies in Po sts Page 7 of 11 and Services (fo r Scheduled Castes and Sched uled Tribes) Act, 1975, the r eserved po st under the said Act cannot be de-reserved for general ca ndi dates a nd as such, the services of the Petitioners ca nnot b e reg ularized i n the concer ned posts.
11. In response to such submissio n made by Mr. Panda, Mr. Rath, learned Senior Co unsel for the Petitioners submitted that in view of the specific provisions enshrined under Section 3(d) of the ORV Act, the said Act is not applica ble to the Petitio ner s, who wer e appointed as contractual employees against regular va cancies and are continuing as such for years together, for which a prayer ha s been made for reg ularization of their services. Mr. Rath further submitted that the Counter Affidavit filed by the present Opposite Pa rty Nos.3 and 4, who were Opposite Party Nos. 4 a nd 5 in the earlier Writ Petition i.e. W.P.(C) No.1 5278 of 2 011, also substa ntiates the said sta nd of the p resent Petitioners that while a ppointi ng them o n co ntra ctual basis due compliance was made for proper implementation of the ORV Act a nd at this juncture suc h a submission ma de by Mr. Panda, contrary Page 8 of 11 to the stand ta ken in the earl ier Writ Petition, is not entertai nable. He drew attention of this Court to Paragraph-11 of the said Co unter Affidavit filed by the present Op posite Party Nos. 3 a nd 4 in W.P.(C) No.15278 of 2011, as at Annexure-2, and submitted that it has been admitted by the present Opposite Parties in the said Counter Affidavit that while app ointing the Petitioners, it was so done as per the pr evailing norms and prior approval of the Authority co ncerned. Compl iance wa s made to observe proper implementatio n of ORV Rules.
Paragraphs Nos. 1 a nd 11 of the said Co unter Affidavit, being germane to the oral argument advanced by Mr. Panda, learned Co unsel for Opposite Party Nos. 3 and 4, are extracted below:
"1. Tha t I a m the Secre ta ry of the Re gula ted Ma rket Committee a nd I ha ve bee n arra ye d a s o pposite pa rty No.4 in the present writ pe titio n. I ha ve been duly a uthorize d to swea r this a ffida vit on beha lf of opposite party No.5, Cha irma n of the Regula ted Ma rket Co mmitte e, Ba rga rh (here in a fte r referred a s "R.M.C ." in short).
11. Tha t the deponent humbly submits tha t the a ppointments of the pe titio ners were done a s pe r the preva iling norms a nd prior a pprova l of the Boa rd wa s duly Page 9 of 11 obta ine d & in course of the ir e ngage me nt nece ssa ry c omplia nce wa s ma de to obse rve prope r imple me nta tion of O.R.V . Rule s. Be side s othe r e mployme nt Rul e s a nd proc e dures we re prope rly foll owe d. The de pone nt humbly submits a s it tra nspire s from the re c ords a va ila ble in the office of the de pone nt that the rec ruitme nt proc e dure followe d for e ng ageme nt of the pe titione r wa s reg ula r one a nd wa s ma de as pe r la w a nd in vie w of re lax ation ma de unde r A nnex ure -B/4, the se pe titione rs c la im re quires to be c onside re d in prope r pe rspec tive by this Hon'ble Court and the de pone nt humbly submits in c a se the ir a ppointme nt is re g ula rize d, a dequa te funds ca n be ma de a va ila ble by prope r budg e ta ry a lloca tions for disburse me nt of sa la ry c ompone nts in favour of the pe titione rs, which will be well within the prescribed limit f ixe d by the Boa rd."
(Empha sis supp li ed)
12. From the pl eadings made by the learned Counsel for the Parties a nd on perusal of the judgment cited a bove, this Court fi nds that the pr esent case is sq uarely covered by judgment da ted 21. 07.2023 passed in W.P.(C) No.5668 of 2016 (Rabiratan Sahu and o thers vs. State of Odisha and others).
13. Accordingly, the impugned Order dated 09.0 9.2015, as at Annex ure -1, passed by the Oppo site Par ty No.5 is her eby set asid e and quashed.
Page 10 of 11
14. The Opposite Parties, more particularly, Opposite Party Nos. 4 and 5 are directed to regularize the ser vices of the Petitioners with effect from 27.09.2 008 i.e. the date on which the General Manager, Orissa State Agricultural Marketing Board, Bhubaneswar communicated the Secretary, R.M.C., Bargarh (Annexur e-
12) to reg ularize the services of the Petitio ners, and to grant them all conseque ntial service and financial benefits, as d ue and admis sible, by mak ing due calculation ther eof within a period of four months from the date of communication of the certified copy of this judgment.
15. The Writ Petition stands allowed and dispo sed of. No order as to cost.
(S.K. MISHRA) JUDGE Signature Not Verified Orissa High Court, Cuttack Dated, 5 September, 2023/PCD th Digitally Signed Signed by: PADMA CHARAN DASH Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Sep-2023 18:11:14 Page 11 of 11