Orissa High Court
Deepak Suna And Another vs State Of Odisha And Others ..... ... on 5 September, 2023
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 11670 of 2016
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Deepak Suna and another ..... Petitioners
-Versus-
State of Odisha and others ..... Opposite Parties
For Petitioners : Mr. S.D. Routray, Advocate
For Opp. Parties : Mr. G.N. Rout (ASC)
(O.P. Nos. 1, 2 and 5)
Mr. P.K. Panda, Advocate
(O.P. Nos. 3 & 4)
CORAM: JUSTICE SANJAY KUMAR MISHRA
Date of Hearing: 25.07.2023 : Date of Judgment:05.09.2023
S.K. Mishra, J.
The Petitioner s, who are working as Sweeper/Labour on contract ba sis in the Regulated Market Committee, Bargarh (RMC), Bargarh, have preferred the present Writ Petition for quashing of the Order dated 09.09.2015 passed by the Collector-Cum-Chairman, RMC, Bargarh (Opposite Party No.5), as at Annexure-14, whereby, their representatio n for regularization of servi ces against the vacant po sts of Sweeper/La bour was rejected. Also a prayer has been made seeki ng for a direction to the Opposite Party Nos. 2 to 5 to regularize their services and extend all such benefits, a s is d ue and admissible to the said posts.
2. The factual matrix of the case, in a nutshell, is that 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 superintendenc e over such Market Committee, by Notification in Official Gazette, a Board called the Orissa Sta te Agri cultural Mark et 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, as at Annex ure-1, intimated the Chairman/ Secretary, RMC, Bargarh that the Board has been pleased to a ccord approval for creatio n of po sts in different categories in favo ur of the RMC, Bargarh. Pur sua nt to the said Ord er, the RMC, Bargar h, vide its Office Order No.754 dated 26.08 .2007, as at Annexure-2, requested to accord necessary approval for enga gement of 45 num ber s of contra ctual workers against va cant posts Page 2 of 11 from amongst the existing NMRs. On 31.08.2007 proceeding of the Appointment a nd Promo tion Sub- Committee of RMC, Bargarh was held in the Of fice of the Sub-Collector-Cum-Chairma n, RMC, Bargarh, wherein it was decided to engage the present NMRs in the va cant posts on co ntractual ba sis after obtaining due approval from the OSAM Board. Thereafter, the OSAM Board, vide Order dated 2 0.09.2007, as at Annexure-5, 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 Boar d and advised to obser ve due formalities.
3. Pur sua nt to the Resolution of the Appoi ntment and Promotion Sub- Committee of RMC, Bargarh and approval of OSAM Board, Bhuba neswar, the Sub-Collector-Cum- Chairman, RM C, Bargarh vide Ord er No.956 dated 09.10.2 007, as at Annex ure-6, appointed the Petitioners against the vacant posts on contra ctual basis with consolidated salary. Since then, the P etitioners ar e discharging their services on contractual basis. When no step was ta ken for regularization of the ser vices of the Page 3 of 11 Petitioners, they made representatio n dated 05.08.2008 to the Chairma n, RMC, Bargarh through the Secretary, RMC, Bargarh, as at Annexure-7. The Secretary, vide hi s letter dated 10.08.2008, submitted the said representatio n to the General Manager, OSAM Board, Bhuba neswar. On receipt of the said represe ntation, the General Manager, OSAM Board, vide his letter dated 13.08.2 008, sought for certain clarification and justification fr om the Secretary, RMC, Bargarh, for regularization o f servi ces of the contractual workers. I n respo nse to the said letter, the Secretary, RMC, Bargarh, furnished necessary clarification assigning reasons for regularization o f servi ces of the Petitioners vide letter dated 22.09.2008, as at Annexure-10. It is the further case of the Petitioner s that after proper verification/ clarification given by the Secretary, RMC, Bargarh, the General Manager, OSAM Board approved the proposal of regularization of all 45 numbers of contractual workers incl udi ng the P etitioners vide letter dated 27.0 9.200 8, as at Annex ure-11 and communicated to the Secretar y, RMC, Bargarh regarding approval for regularization o f 45 nos. of contractual workers by the Page 4 of 11 Chairper son, OSAM Board indicating ther ein that after regularization of the said staff, the expenditure sho uld b e within the prescribed limit fixed by OSAM Board and the RMC, Bargarh was ad vised to obser ve d ue formalities in the said resp ect. Accordingly, the Petitioners' ser vices were reg ularized. In spite of such r egularization, the Petitioners were not treated as regular em ployees and denied regular scale of pay.
4. The Petitioners, finding no other alternative re medy, preferred W.P.(C) No.7906 of 2010. This Court, by its Order dated 06.07.20 10, disposed of the said Writ Petition by directing the Petitioners to file fresh representatio n before Oppo site Party No.5. Accordingly, the Petitioners made repr esentation to the A.D.M.-Cum- Chairman, RMC, Bargarh. T he Opposite Party No.5 rejected the said repr esentatio n in a mechani cal manner on 20.08.201 0. The Secr etary of the Regulated Market Committee vid e Memo No.2 049 dated 21.09.2010, communicated the same to the Petitioners.
5. Again, the Petitioners pr eferred W.P.(C) No.15280 of 2010 before this Court, which was disposed of vide Order Page 5 of 11 dated 2 7.07.2015 with a direction to file a fresh representatio n before the Authority within ten days from the date of passing of the said Order a nd the Authority concer ned was directed to co nsider and pass or der within six weeks. Pursua nt to said direction, the Petitioners made representation to the Opposite Party No.5 within the stipulated time. However, the Oppo site Party No.5, vide Ord er dated 09.09.20 15, r ejected the representation of the P etitioners solely on the ground that irregularly recruited engagees cannot be regularized in blatant violation of settled recruitme nt norms a nd transgression of provisions of ORV Act.
6. Being aggrieved by the said Or der 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 noti ced, the Opposite P arties, including the State, tho ugh appear ed, b ut did not file any Counter Affidavit. L earned Co unsel for the Petitioners submitted that the Opposite Party Nos. 3 and 4 filed a detailed Counter Affidavit in the previo us Writ Petitio n preferred by the present Petitioners i.e. W.P.(C) No.1528 0 of 2011, Page 6 of 11 which has been annexe d to the Writ P etition as Annexur e-12. The said submission was no t disputed by Mr. Panda, lear ned Co unsel for the Opposite Party Nos. 3 and 4.
8. Heard Mr. Routray, learned Counsel for the Petitioners, Mr. G.N. Rout, learned Ad ditional Standing Counsel for Opposite Party Nos. 1, 2 and 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 vid e a detailed judgment dated 21.07.20 23 passed by this Court. He fur ther submitted tha t the Petitioners ar e two out of forty-five contractual employees, whose cases were duly approved by the Chairper son for regularization of their ser vices. Accordingly, Mr. Routray pra yed for disposal of the present ca se in terms of the said judgment dated 21.07.2 023 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 Page 7 of 11 and 7 of the Odisha Reservation of Vacancies in Po sts and Services (for Sched uled Castes and Scheduled Tribes) Act, 1975, the r eserved post under the said Act cannot be de-reserved for general ca ndi dates a nd as such, the services of the Petitioners cannot be reg ularized in the concer ned posts.
11. In response to such submissio n made by Mr. Panda, Mr. Routray, learned Co unsel for the Petitio ners submitted that in view of the specific provisions enshrined under Section 3(d) of the ORV Act, the said Act is not applicable to the Petitio ner s, who were appointed as contractual employees against regular vacancie s and are co ntinuing as such for years together, for which a prayer ha s been made for reg ularization of their services. Mr. Routray further submitted that the Counter Affidavit filed by the present Opposite Party Nos. 3 a nd 4, who were Opposite Party Nos. 4 and 5 in the ea rlier Writ Petition i.e. W.P .(C) No.15280 of 20 11, also sub stantiates the said sta nd of the pr esent Petitioners that w hile appointing them on contractual basis due compliance wa s made for proper implementa tion of the ORV Act. He drew Page 8 of 11 attention of this Cour t to P aragraph-11 of the said Counter Affida vit filed by the pr esent Opposite Party Nos. 3 and 4 in W.P. (C) No.15280 of 2011, as a t Annexur e-12, and submitted that it has been admitted by the present Opposite Parties in the said Counter Affida vit that while appointing the Petitioners, it was so do ne as per the prevailing norms and prior approval of the Authority concer ned. Compliance was made to observe proper implementation of ORV Rules.
Paragraphs No s. 1 and 11 of the said Counter 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 opposite 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 Re gula ted Ma rke t Committe 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 petitioners were done a s pe r the preva iling norms a nd prior a pprova l of the Boa rd wa s duly obta ine d & in course of the ir e ngage me nt ne ce ssa ry c omplia nce was ma de to obse rve prope r imple mentation Page 9 of 11 of O.R.V. Rule s. Be side s othe r e mployme nt Rul e s a nd proce dures were prope rly followe d. The de pone nt humbly submits a s it tra nspire s from the re c ords a va ila ble in the offic e of the de pone nt that the re c ruitment proc e dure followe d for e ngageme nt of the pe titione r wa s reg ula r one a nd was ma de as pe r la w a nd in vie w of re lax ation ma de unde r A nnexure -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 a nd the de pone nt humbly submits in c a se the ir appointme nt is re g ula rize d, a dequa te funds ca n be ma de a va ila ble by pr ope r budg e ta ry a lloca tions for disburse me nt of sa la ry c ompone nts in fa vour of the pe titione rs, which will be well within the prescribed limit f ixe d by the Boa rd."
(Emphasis supplied)
12. From the plea dings made by the learned Couns el for the Parties a nd on perusal of the judgm ent ci ted a bove, this Co urt finds that the present case is sq uar ely covered by judgment dated 21. 07.20 23 passed in W.P.(C) No.5668 of 2016 (Rabiratan Sahu and others vs. State of Odisha and others).
13. Accordingly, the impugned Order dated 09.09. 2015, as at Annex ure-14, pas sed by the Opposite Par ty No.5 is her eby set asid e and quashed.
Page 10 of 11
14. The Opposite P arties, more particularly, Opposite Party Nos. 2 to 5 are directed to regularize the services of the P etitioners with effect from 27.09. 2008 i.e. the da te on which the G eneral Manager, Orissa State Agricultural Marketing Boa rd, Bhubaneswar communicated the Secretary, R.M.C., Bargarh (Annex ure-11) to regularize the services of the Petitioner s, and to grant them all conseq uential service and fina ncial b enefits, as due and admissible, by making d ue cal culatio n 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 Orissa High Court, Cuttack Dated, 5th September, 2023/PCD Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Sep-2023 18:11:15 Page 11 of 11