Orissa High Court
Sri Prasanta Kumar Swain & Another vs State Of Orissa & Others Opp. Parties on 7 May, 2018
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT: CUTTACK
W.P.(C) No.9798 of 2004
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Sri Prasanta Kumar Swain & another ... Petitioners
-versus-
State of Orissa & others Opp. Parties
For Petitioners :- Mr.B.Routray, Sr. Advocate.
B.N.Satpathy, B.B.Routray,
B.Routray, P.K.Dash, &
D.K.Mohapatra.
For Opp.Parties : M/s. S.K.Mishra, M.R.Dash,
S.K.Samantaray, Om.Pr. Sahu,
S.Mohapatra
(O.P.No.4)
M/s.J.K.Mishra.
(O.P.No.2)
Mr.K.K.Mishra, Addl. Government
Advocate.
Date of Hearing: 30.04.2018
Date of Judgment: 07.05.2018
P R E S E N T:
THE HONOURABLE MR. JUSTICE BISWANATH RATH
Biswanath Rath,J. This is a writ petition filed by two petitioners working as Amin and
Peon respectively in the Office of the District Fisheries-cum-Chief Executive
Officer, Brakish Water Fish Development Agency and Fish Farmers
Development Agency (hereinafter for short "BFDA" & "FFDA") at the time of
disengagement of both of them vide Annexure-10.
2. Short background involved in the case is that both the petitioners in
their respective posts as Amin and peon were engaged by the opposite
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party nos.3 and 4 with effect from 11.7.1996. Bylaw of the B.F.D.A., the
Managing Committee under the Chairmanship of the Collector is the
competent authority to take any decision including appointment, promotion
and other related matters. Following the decision of the Managing
Committee, petitioner no.1 was appointed as Amin on 44 days basis vide
Office Order dated 15.2.1996. Subsequently, the said temporary
appointment was extended from time to time and finally vide order dated
11.7.1996 the appointment of the petitioner no.1,Amin was regularized in
the scale of pay of Rs.825-1200/-. Likewise, petitioner no.2 though was
initially appointed as Peon on 44 days basis, subsequently his service was
also regularized by the opposite party no.3 again pursuant to a decision of
the Managing Committee. The pleadings further disclose that vide
resolution dated 29.10.1996, the Managing Committee approved the
appointment of the petitioners in the post of Amin and Peon respectively
with effect from 11.7.1996 on regular basis. In order to establish that the
petitioners were holder of sanctioned posts, filed document vide Annexure-7
indicating the sanctioned strength of employees of Jagatsinghpur B.F.D.A.
and Kendrapara B.F.D.A. treating the petitioners as regular employees.
Both of them were allowed the benefits like their counterparts such as
increments, E.L. etc. as appearing vide Annexure-8 series. It is pleaded
that while the petitioners were continuing as regular employees in the
establishment of opposite party nos.3 and 4, in order to open E.P.F,
account and as their shares were not being collected, petitioner no.1 filed
O,.J.C.No.6222 of 2001 and this Court vide order dated 7.10.2002
directed the opposite parties involving therein the opposite party no.3, more
particularly the Chief Executive Officer of BFDA and FFDA, Jagatsinghpur
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to take effective steps for opening C.P.F./E.P.F. account and also to pay
surrender leave amount and the medical bills of the petitioner no.1 where
after the Director of Fisheries vide communication dated 5th July, 2003
intimated the District Fisheries Officer-cum-Chief Executive Officer to
contact the C.P.F. & E.P.F. Office in order to find out a way to implement
the direction of this Court. It is alleged, while the matter stood thus, the
Director by communication dated 31.8.2004 directed the Collector-cum-
Chairman, BFDA & FFDA-opposite partyno.3 to disengage the present
petitioners from their service after adopting proper procedure since the
posts, they were holding, were beyond the sanctioned strength. Petitioners
by virtue of amendment brought the further pleading to the fold of the writ
petition to the extent that on account of merger of BFDA & FFDA in non-
plan sectoral vacancy with effect from 1.3.2004 there has been direction
again to all the District Fisheries Officers for taking action to regularize the
staff appointed by the Collector under BFDA in non-plan sectoral vacancy
with effect from 1.3.2004 after receipt of the Government permission for
their pay protection. Petitioners further pleaded that while keeping the case
of the petitioners out of consideration, the opposite party nos.3 and 4 have,
in the meantime, adjusted 14 numbers of such similarly situated staff
appointed by the Collector-cum-Chairman as against the vacant post in the
Directorate of Fisheries as well as in the vacancy caused in the K.B.K.
areas in consultation with the Finance Department and General
Administration Department, as clearly borne in Annexure-12. Petitioners
therefore also alleged that they have been discriminated thereby while
adjusting the similarly situated persons. Petitioners also further brought to
the notice of this Court that applying provisions under Right to Information
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Act, they come to know that one post of Amin and six posts of Peon were
still lying vacant where the petitioners could be adjusted. It is under the
aforesaid premises and on reiteration of the facts narrated hereinabove,
further taking this Court to each of the documents appended to the writ
petition, as indicated hereinabove, Sri B.Routray, learned senior counsel
appearing for the petitioners contended that the petitioners involving
absorption, regularization, grant of regular scale of pay, grant of other
benefits, opening of C.P.F. involving the petitioners, absorption of 14
numbers of similarly situated persons and lastly for the vacancies lying in
the year 2008, as obtained by the petitioners applying provision under Right
to Information Act herein at Annexure-13 and while keeping the petitioners
away considering the case of similarly situated employees, the petitioners
justified their claim for continuance of their service as regular employees of
the establishment of opposite party nos.3 and 4 or in the establishment
taking over several such employment in the meantime.
3. Sri K.K.Mishra, learned Additional Government Advocate in his
opposition to the move of the petitioners, reiterating the stand of the
opposite party nos.2 to 4 in their counter affidavit, further taking this Court
to the documents relied on and referred to by the petitioners contended
that for the disclosure therein, it is wrong to claim that the petitioners are
regularized employees. It is, on the other hand, for no approval of their
engagement and further their engagement through backdoor entry, the
petitioners have no right to continue in the posts they were holding.
Further, for the plea of disclosures in Annexure-10, the posts hold by the
petitioners being found to be surplus and for their engagement without
obtaining the permission from the Government or from the Director,
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directions were given by the Director, Fisheries, Orissa itself for
disengagement of the petitioners. Further, for the presentation of a written
instruction in obedience to the direction of this Court vide order no.46
dated 9.3.2018, Sri K.K.Mishra, learned Additional Government Advocate
further contended that the department has expressed its inability to
regularize the petitioners on the premises that both the petitioners were
appointed by the Chairman, BFDA, Jagatsinghpur and such appointment
were beyond the sanctioned strength of the said BFDA. Sri K.K.Mishra,
however submitted that vide letter dated 16.3.2018 the Director,
Fisheries requested the Joint Secretary to Government in Fisheries &
ARD Department to consider the fate of the petitioners in the light of order
dated 3.9.2018 and the further instruction is still awaited. It is in the above
premises, Sri K.K.Mishra, learned Additional Government Advocate
submitted that the writ petition deserves to be dismissed.
4. Considering the rival contentions of the parties, pleadings
available on record and on examination of the materials available on
record, this Court finds both the petitioners were engaged on temporary
basis as Amin and Peon respectively for a period of 44 days vide
Annexures-1 and 2. Engagement of both the petitioners were being
extended for further period of 44 days, but allowing them to continue in the
scale of pay Rs.825-15-900-EB-20-1200/- per month with usual D.A. as
admissible from time to time and scale of pay Rs.750-12-870-EB-14-940/-
per month with usual D.A. as admissible from time to time respectively.
Documents vide Annexures-4 and 5, the communications dated 11.7.1996
further disclose that both the petitioners, by these communications, were
appointed as Amin and Peon respectively to work under Brakish Water
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Fisheries Development Agency, Jagatsinghpur from the date of their
joining in the scale of pay Rs.825-15-900-EB-20-1200/- and Rs.750-12-
870-EB-14-940/- respectively with usual D.A. and other allowances as
admissible by the Government from time to time. Though both the
appointment orders temporary in nature and their services can be
terminated at any time without assigning in reason thereof, this Court
makes it clear that the condition for termination as indicated in the
correspondences at Annexures-4 and 5 is contrary to the settled position
of law holding no temporary service even can be taken away without
afford of opportunity, thus such consideration, if, any become illegal. Be
that as it may, from the documents annexed at Annexure-6, Agenda
No.10, this Court finds the 3rd Managing Committee meeting of the
BFDA held on 29.10.1996 resolved as follows:
"Agenda, Item No.10. Acceptance of services of Staff appointed
directly by BFDA, Jagatsinghpur.
The committee was informed that as per the approval of the 2nd
Managing Committee Meeting Sri P.K.Raul, Class IV employee
and Sri P.K.Swain, Amin were appointed temporarily on 44 days
basis. They had requested for a higher wage. Considering the need
of their service, District Fishery Officer-Cum-C.E.O., BFDA & FFDA,
Jagatsinghpur discussed the matter with the Chairman, BFDA who
on 5.7.96 regularised the services of both the staff. As such, both
staff were appointed by the Agency on 10.7.96 and they joined in
the service on 11.7.96 F.N.
The details of post, date of joining and scale of pay was
furnished as mentioned below.
Sl.No. Name of the incumbent date of Scale of pay.
joining.
1. Sri P.K.Raul, Class-IV 11.7.96 750-12-870-EB-14-940/- p.m.
2. Sri P.K.Swain, Amin. 11.7.96 825-15-900-EB-20-1200/-p.m.
Managing Committee discussed on the issue and considering
the need of services of both the staff the committee approved the
both the staff w.e.f. 11.7.96 in the scale of pay as was furnished
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above and instructed District Fishery Officer to draw the salary
accordingly."
This Court here observes that both the Collector-cum-Chairman,
BFDA and Director of Fisheries were the participant nos.1 and 2 in the
said Managing Committee meeting. Subsequent materials enclosed
therein also indicate release of annual periodical increments as well as
earned leave in favour of the petitioner no.1 as well as the petitioner no.2 ,
as finds place from the records appearing at page 33 to 39. Annexure-9
is also a document establishing a direction from the Director of Fisheries to
the District Fisheries Officer-cum- CEO, BFDA/FFDA, Jagatsinghpur for
taking steps in the matter of opening of C.P.F. & E.P.F. account as
appropriate. Correspondence at Annexure-11 issued subsequent to the
development through Annexure-10 also discloses that action is being
taken to regularise the staff appointed by the Collector under BFDA in non-
plan sectoral vacancy with effect from 1.3.2004 on the merger of the BFDA
with FFDA with effect from 1.3.2004. The communication further goes to
disclose that in another development this Court finds 14 persons similarly
situated having been regularised vide communication at Annexure-12, on
redeployment basis have been allowed to work under the Director, AH &
VS. It is at this stage, having a glance through the counter affidavit of
opposite party nos.2, 3 and 4 filed on 27.7.2007, this Court finds the
opposite party nos. 2, 3 and 4 in paragraphs- 9, 12 and 13 have the
following response:-
"9. That it is humbly submitted that the temporary engagement of
the petitioner Nos.1 and 2 was approved by the Managing
Committee of the Agency in their second meeting held on
22.4.1996.
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12. That it is humbly submitted that the regularization of service
of the petitioners were approved by the Managing Committee of the
Agency in their 3rd meeting held on 29.10.1996. The Director of
Fisheries was also a signatory in the said meeting. The copy of the
proceeding of the said meeting is enclosed as Annexure-6 of the
writ petition.
13. That it is humbly submitted that in the meantime due to lack of
fund to manage the BFDAs of the State, the Govt. of Orissa to
merge the BFDAs with the similar kind of agency namely, Fish
Farmers Development Agency (FFDA). It has been decided to
absorb the staff of BFDAs in the non-plan vacancies of the
department as well as in FFDAs."
5. In view of the above background, this Court proceeds to consider
the effect of Annexure-10 claiming to be a disengagement order involving
the petitioners and impugned in the writ petition. This Court also takes
note of the direction contained in Annexure-10.
"Action is being taken to regularise the staff appointed by
Collector under BFDA in non-plan sectoral vacancy w.e.f. 1.3.04
after receipt of Govt. permission for their pay protection. So their
salaries may not be drawn from BFDA account till receipt of
Directorte order."
6. Reading of the aforesaid direction and further a bare perusal of
the documents at annexure-10,this Court finds Annexure-10 is simply a
communication of the Director of Fisheries, Orissa dated 31.8.2004 to the
Collector-cum-Chairman, FFDA & BFDA, Jagatsinghpur directing therein
to disengage the Amin and Peon, both the petitioners respectively, after
adopting proper procedure. This communication cannot be termed to be a
disengagement order involving the petitioners as further action in the
matter of disengagement of the petitioners was still awaited. Though the
writ petition is filed on the issuance of Annexure-10 purely based on an
internal communication, may be an outcome of apprehension of the
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petitioners at the relevant point of time, this Court finds in fact there is no
disengagement order involved herein and as a consequence, the writ
petition appears to be premature.
7. It is at this stage, since this writ petition is entertained in the year
2004 with series of interim direction, the petitioners are allowed to
continue with regular status in the meanwhile for over 14 years, the
petitioners are treated as regular employees. Documents, as indicated
hereinabove also disclose that there has been some decision at some
point of time appointing both the petitioners as Amin and Peon
respectively though on temporary basis, as clearly borne from Annexures-
4 and 5. Further, there being regular absorption of 14 numbers of
similarly situated persons since 2008, this Court observes in the event the
petitioners were found surplus, nothing prevented the opposite parties to
consider their case for their continuance along with the other 14 persons,
decision involving whom was taken on 8.11.2007.
8. Taking into account the developments taken place from the
correspondence dated 20.9.2004 vie Annexure-11 and the request of the
Director, to the Joint Secretary vide his letter dated 16.3.2018 requesting
thereby to find out a solution to the case of the petitioners, this Court
though declares the writ petition is premature in absence of any
disengagement order being communicated to the petitioners but, however,
looking to the whole developments involved herein and the regularisation
of other similarly situated employees, for the period of service as regular
employees involving both the petitioners, this Court directs the opposite
party nos.3 and 4 to take a decision in the matter of continuance of the
petitioners keeping in view all the above developments and considering
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that the petitioners are already regularized vide communication at
Annexures-5 and 6 and are allowed regular scale of pay Rs.825-15-900-
EB-20-1200/- and Rs.750-12-870-EB-14-940/- respectively with all other
service benefits being extended all through.
9. The writ petition stands disposed of with the above direction. No
cost.
444444444444
Biswanath Rath,J.
Orissa High Court, Cuttack The 7th day of May, 2018/sks