Orissa High Court
Bhaskar Chandra Roul vs State Of Odisha And Others .... Opposite ... on 17 February, 2023
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.21873 of 2021
(This is an application under Article 226 and 227 of the Constitution
of India)
Bhaskar Chandra Roul .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
For Petitioner : Mr. Satyajit Behera, Advocate
For Opp. Parties : Mr. N.K. Praharaj,
Learned Additional Government
Advocate
CORAM:
JUSTICE A.K. MOHAPATRA
JUDGMENT
Date of hearing : 01.02.2023 | Date of Judgment : 17.02.2023 A.K. Mohapatra, J.
1. Heard learned counsel for the petitioner and learned counsel for the State. Perused the pleadings filed by the respective parties as well as the documents placed before this Court.
2. The present writ petition has been filed by petitioner with a prayer for a direction to the Opposite Parties to antedate the regularization of the // 2 // service of the petitioner as Peon w.e.f. 29.09.2011 in view of the G.A. Department Resolution dated 17.09.2013 in the light of the direction given by the Tribunal in O.A. No.2133(C) of 2015 decided on 16.10.2017. The petitioner further prays to quash the letter dated 17.06.2021 issued by the Opposite Party No.2 under Annexure-22 thereby rejecting the claim of the petitioner claiming for regularization w.e.f. 29.09.2005.
3. Undisputed facts leading to filing of the present writ petition are that the petitioner was initially appointed vide office order dated 29.09.2011 under Annexure-8 pursuant to a direction of the Tribunal in O.A. No.1889(C) of 2004 on temporary basis against the contractual post of Peon in the District Treasury, Keonjhar till the end of February, 2006 on consolidated payment of Rs.2500/- per month. Thereafter, while the petitioner was continuing on contractual basis, again the petitioner approached the Tribunal by filing O.A. No.2133(C) of 2015 claiming for regularization of his service in the light of the G.A. Department Resolution dated 17.09.2013. On perusal of the order dated 16.10.2017 passed in O.A. No.2133(C) of 2015 under Annexure-17, it appears that the Tribunal directed the Treasury Officer, District Treasury to regularize the service of the applicant / petitioner. In Para-13 of the counter affidavit, it has been mentioned "In this connection, it is to point out that the Treasury Officer, District Treasury, Keonjhar being the appointing authority in case of Class- IV employees has already been instructed to take step for regularization of // 3 // contractual service of the applicant / petitioner in the light of the instruction issued by the Office Letter No.16003 dated 04.12.2014". It was also stated in the counter affidavit that the Treasury Officer, Keonjhar was directed to regularize service of the applicant / petitioner in terms of G.A. Department Resolution dated 17.09.2013. Further, the Tribunal has also directed to implement the order within two months from the date of the order. It was also not disputed by the parties that the order passed by the Tribunal in O.A. No.2133(C) of 2015 has attained finality as the State has not assailed the same before this Court. Thereafter, the Treasury Officer, District Treasury, Keonjhar pursuant to the order of the Tribunal, regularized the service of the petitioner in the post of Peon which was lying vacant in the District Treasury, Keonjhar on regular basis on payment of Rs.16,600/- per month with usual D.A. and other allowances vide order 15.03.2018 under Annexure-18.
4. It is submitted by learned counsel for the petitioner that the Tribunal has directed the Treasury Officer, Keonjhar to regularize the service of the petitioner as per G.A. Department Resolution dated 17.09.2013. in such context, learned counsel for the petitioner referred to the G.A. Department Resolution dated 17.09.2013 under Annexure-10 Clause(2) of the said resolution, which has been relied upon by leaned counsel for the petitioner is quoted herein below:-
// 4 // xx xx xx xx "2. Conditions of Service on regular Appointment-
(1) Regular Appointments: On the date of satisfactory completion of six years of contractual service or from the date of publication of this Resolution whichever is letter, they shall be deemed to have been regularly appointed. A formal order of regular appointment shall be issued by the appointing authority.
(2) Pay and other benefits: On regular appointment they shall be entitled to draw the time scale of pay plus Grade Pay with DA and other allowances as admissible in the corresponding pay band.
(3) Other conditions of service: (a) The other conditions of service shall be such as has been provided in the relevant recruitment rules.
(b) The conditions of service e in regard to matters not covered by this Resolution shall be the same as are or as may from time to time be prescribed by the State Government."
xx xx xx xx
5. Thus, learned counsel for the petitioner argued that in view of the above noted clause-(2) of the G.A. Department Resolution dated 17.09.2013, service of the petitioner should have been regularized w.e.f.
29.09.2011 by taking into consideration his initial date of appointment on // 5 // contractual basis w.e.f. 29.05.2005 as evident from Annexures-8 and 9. Since the petitioner was not regularized w.e.f. 29.09.2011, the petitioner had approached the authorities by filing petition dated 28.08.2019. The petition filed by the petitioner has been considered by the Opposite Party No.1 and vide order dated 17.06.2021, the Directorate of Treasuries and Inspection, Odisha, Bhubaneswar-Opposite Party No.2 rejected the prayer of the petitioner. Accordingly, the petitioner approached this Court challenging the order dated 17.06.2021 under Annexure-22.
6. The State-Opposite Parties have filed a counter affidavit, wherein they have stated that the service of the petitioner has already been regularized in view of the direction given by the Tribunal in O.A. No.2133(C) of 2015 and accordingly, an order regularizing the service of the petitioner was issued to the petitioner.
7. Further on perusal of the counter affidavit, it appears that the Opposite Parties have taken a ground that the appointment of the petitioner in the year 2005 against the contractual posts of Peon was not in terms of the guidelines. Further, it is contended that the persons, who have been appointed on regular basis against the contractual posts, their services can only be regularize in view of the G.A. Department Resolution dated 17.09.2013 and 16.01.2014 on completion of six years of contractual services.
// 6 //
8. Learned Additional Government Advocate for the State further contended that the regularization order, which was passed pursuant to the direction of the Tribunal has already been accepted by the petitioner along with terms and conditions mentioned. Therefore, it is no more open to the petitioner to challenge the condition contained in the said letter. He further contended that no case was made out by the petitioner though the letter under Annexure-18 dated 15.03.2018 have been accepted by the petitioner without any objection. It is no more open to the petitioner to question the terms and conditions of the letter, particularly date of regularization as has been mentioned therein. In the said context, learned Additional Government Advocate referred to a judgment of the Hon'ble Supreme Court in the case of Food Corporation of India and another vrs. Ram Kesh Yadav and another : reported in (2007) 9 Supreme Court Cases 531. In view of the aforesaid submission, learned Additional Government Advocate contended that the writ petition is devoid of merit and the same be rejected and that the claim of the petitioner is unsustainable in law and the same is not liable to be interfered with the present writ petition.
9. In reply to the submissions made by learned Additional Government Advocate, learned counsel for the petitioner submitted that the direction of the Tribunal has attained finality and the order passed pursuant to the said order be quashed on the basis of the averment made // 7 // in the counter affidavit. He also contended that it is no more open to the Opposite Parties to question the order passed by the Tribunal, which has already attained finality by efflux time and due to non-travesty. Therefore, the Opposite Parties be directed to implement the order passed by the Tribunal in its letter and spirit. Furthermore, the order of the Tribunal is very clear with regard to applicability of the G.A. Department Resolution dated 17.09.2013 under Annexure-10. Therefore, clause (2) of the resolution is applicable to the present case. In such view of the matter, it was prayed that the writ petition is to be allowed considering the prayer of the petitioner, orders passed by the Tribunal and the G.A. Department Resolution. Hence, it is prayed that the petitioner's service be regularized w.e.f. 29.09.2011.
10. Having heard learned counsel for the respective parties, upon a consideration of the rival contentions raised and further upon consideration of the materials placed before this Court by learned counsels appearing for the respective parties, this Court is of the considered view that there is not much difference in the factual position as pleaded by both sides, therefore, only question that remains to be decided in the writ petition is with regard to the date of regularization of the service of the petitioner. This Court on perusal of the order passed by the Tribunal is of the considered view that there is a clear direction by the Tribunal to the Treasury Officer, Keonjhar to regularize the service // 8 // of the petitioner in terms of the G.A. Department Resolution dated 17.09.2013. Moreover, such direction is passed on the averments made in the counter affidavit. The Opposite Parties having not challenged the said order passed by the Tribunal and by accepting the same, the parties have allowed it to attain finality. Now it is no more open to question the same in any manner whatsoever. Moreover, the stand taken in the counter affidavit by the State-Opposite Parties that the appointment was initially irregular, therefore, the petitioner is not entitled to the benefits under G.A. Department Resolution dated 17.09.2013 is no more available to be raised as the issue has already been adjudicated by the Tribunal and the final order has been passed. The State-Opposite Parties have no option than to implement the order passed by the Tribunal in O.A.No.2133(C) of 2016. Accordingly, this Court considering clause(2) of the G.A. Department Resolution dated 17.09.2013 is of the considered view that since the petitioner has already completed six years of continus service w.e.f. 29.09.2011 and as such, the service of the petitioner should have been regularized w.e.f. 29.09.2011.
11. Accordingly, the Treasury Officer, District Treasury, Keonjhar- Opposite Party No.3 is directed to regularize the service of the petitioner w.e.f. 29.09.2011 with all consequential service benefits as is due and admissible to the petitioner within a period of two months from today. In // 9 // view of the aforesaid findings of this Court, the order dated 17.06.2021 is hereby quashed.
12. With the aforesaid observation/direction, the writ petition stands allowed. There shall no order as to cost.
( A.K. Mohapatra ) Judge Orissa High Court, Cuttack The 17th of February, 2023/ Jagabandhu.