Orissa High Court
Raj Kishore Panda vs State Of Odisha & Ors.... Opposite ... on 19 November, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). No. 4423 of 2015
(An Application under Articles 226 & 227 of the Constitution
of India)
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Raj Kishore Panda ...... Petitioner
-Versus-
State of Odisha & Ors.... Opposite Parties
Advocate(s) appeared in this case:-
________________________________________________
For Petitioner : Mr. J.K.Mishra,
Advocate
For Opp. Party : Mr. S.Behera,
AGA
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
19th November, 2024 SASHIKANTA MISHRA, J.
The petitioner was appointed as Gram Rojgar Sevak at Achyutpur Gram Panchayat of Khaira Block being validly selected. As required under the guidelines he was Page 1 of 10 asked to execute an agreement with the Sarpanch of the said Panchayat on the date of his joining. Accordingly, on 19.03.2008, he executed the agreement, Clause 1 of which reads as follows:
"That the First Party shall provide engagement to the Second Party on contractual basis as multi purpose Assistants (Gram Rozagar Sevak) in Achyutipur Gram Panchayat for a period commencing on 19th day of March 2008 year and Ending on the 30th Day of September 2008 year as agreed to both the parties. The contract of this agreement shall stand terminated on the last working hour for the date specified for which no formal notice or order by first party required to be issued. The contract will stand rescinded on expiry of the period automatically."
2. However, in the absentee statement prepared from the month of March the pay was drawn from 20.03.2008 to 31.03.2008 that is for a period of 12 days but it was mentioned that he joined on 19.03.2008 at 2.30.P.M. A revised provisional draft gradation list of GRSs for Balasore district was published as per which, the petitioner was placed at Sl. No. 15 and in the said list it was clearly mentioned that he had joined on 19.03.2008 Page 2 of 10 afternoon. Said list was prepared on 07.11.2013. Subsequently, the list was finalised and the final gradation list was published on 27.11.2013 wherein, the petitioner was placed at Sl. No. 34 with his date of joining being mentioned as 20.03.2008. The petitioner challenged the said gradation list before this Court in W.P.(C). No. 123 of 2024. By order dated 22.01.2014, this Court disposed of the writ application directing the Collector to consider the representation of the petitioner after granting opportunity of hearing. Pursuant to such order of this Court, the Collector vide order dated 12.02.2014 has rejected the representation of the petitioner by holding that the length of service of the petitioner is to be calculated from 20th March, 2008. Being aggrieved, the petitioner has approached this Court seeking the following relief:
"It is, therefore, humble prayed that your Lordships would graciously pleased to admit the writ application, issue notice to Rule NISI calling upon the Opp. Party to show cause as to why the impugned Page 3 of 10 decision of Collector-Cu- CEO, DRDA , Balasore shall not be quashed and further as to why the serial No.15 shall not taken place in the final gradation list of Gram Rozgar Sevak of Balasore District basing on the date of joining i.e. 19.03.2008 and why not the petitioner deserving left out candidate shall appointed as VLW and posted to the Block by earlier date.
And if, the Opp. Party fails to file the show cause or files the show insufficient cause the said writ be made absolute, the impugned decision vide annexure-8 quashed and further the Opp. Parties is directed to consider the petitioner in the final gradation list of GRS of Balasore district basing on the date of joining i.e. 19.03.2008 and remuneration of one day be paid to the petitioner with interest and compensation and let the petitioner be appointed as VLW and posted to the Khaira Block by earlier date.
And may pass any other order/s, direction/s as your Lordships may deem fit and proper.
And for this act of kindness the petitioner shall as in duly bound ever pray.
3. Counter affidavit has been filed on behalf of the State Opposite Party Nos. 2 and 3 inter alia stating that the petitioner though submitted his joining report on19.03.2008 afternoon yet, he started working as GRS from 20.03.2008. Therefore, the selection committee has reckoned his date of joining as the date of payment of wages. The petitioner has never objected to such payment.
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4. The petitioner has filed a rejoinder stating that there is no dispute that he joined on 19.03.2008 but was wrongly not paid salary for the said day. It is a mistake committed by the authority for which he cannot be blamed.
5. Heard Mr. J.K.Mishra, learned counsel for the petitioner and Mr. S.Behera, learned Additional Government Advocate for the State.
6. Mr. Mishra referring to the agreement, copy of which is enclosed as Annexure-2 submits that as per the guidelines, the petitioner having been selected was required to execute an agreement, which he did on the date of his joining itself i.e. 19.03.2008 by personally remaining present in the office of the Gram Panchayat. The agreement was also signed on the same day and all official records show that he had joined and worked from 19.03.2008. In fact, the above fact finds support from the revised provisional draft gradation list wherein his Page 5 of 10 position is at Sl. No. 15. The decision of the Collector is based on erroneous premises as date of payment of wages cannot be the starting point of the service of the petitioner on the face of clear evidence that he had started working from 19.03.2008.
7. Mr. Behera, learned State counsel submits that though the agreement was executed on 19.03.2008 yet the petitioner started actually working from 20.03.2008. He also received wages from 20.03.2008 and never objected to the same at any point of time. The services of Gram Rozgar Sevak being contractual, he could not have been paid wages for the day on which he did not render any work.
8. It is evident that the facts of the case are not generally disputed. The petitioner was selected for engagement as GRS. He executed an agreement as required on 19.03.2008. As per clause 1 of the agreement, which has been quoted hereinbefore, the Sarpanch is required to Page 6 of 10 provide engagement on contractual basis for the period commencing from 19th day of March 2008 and ending on 30th September 2008. Copy of the absentee statement also shows that the petitioner joined on 19.03.2008 at 2.30 pm. Reference has been made to letter dated 20.04.2013 of the Government in Panchayati Raj Department addressed to all Collectors which lays down the procedure for selection of GRS for village level worker. It is provided therein that the gradation list of GRS for such appointment is to be prepared by the Collector taking their date of joining in the post of GRS. There is nothing in said procedure/guidelines to indicate that the date on which the GRS first received payment is to be treated as the date of commencement of his engagement. In fact when it is not disputed that the petitioner joined on 19.03.2008, by no stretch of imagination his date of joining can be treated as 20.03.2008 only because the authorities started paying his wages from the said day. Page 7 of 10 Whether the petitioner challenged the non-payment of wages on the date of his joining or not is immaterial in view of the own admission of the authorities that he had joined on 19.03.2008. The Collector has referred to Rule 8(1-a) of Odisha Village Level worker (Recruitment and Conditions of Service) Amendment Rules, 2013 which provides the eligibility conditions of GRS to be considered for appointment as to the effect VLW to the effect that he must have rendered 5 years of continuous of service as GRS. The Collector has interpreted the above rules to hold that the length of service/experience of GRS shall be counted towards selection of VLW. Holding thus, the Collector goes on to hold as follows:
" It is quite natural that on 19.03.2008, petitioner could not have worked as GRS. Petitioner has started working as G.R.S from 20th March,2008. His (petitioner's) length of service/experience as GRS is to be calculated from 20th March, 2008.''
9. From what has been narrated hereinbefore, the above observation of the Collector is fallacious and hence, untenable. As already stated, the guidelines for Page 8 of 10 appointment of GRS to the post of VLW does not lay down any such condition. Even otherwise, only because a person, rightly or wrongly, was not paid wages on the date of his joining does not nullify the fact of his joining on that date.
10. For the foregoing reasons therefore, the reasoning adopted by the Collector to reject the representation submitted by the petitioner cannot be countenanced in law. This Court therefore, holds that the impugned order warrants interference.
11. In the result, the writ application is allowed. The impugned order under Annexure-8 is hereby quashed. The Collector, Balasore is directed to revise the final gradation list by restoring the position of the petitioner therein by treating his date of joining as 19.03.2008. Since it is stated that at bar that in the meantime the persons named in the final gradation list have in the meantime, been appointed as VLW, this Court without Page 9 of 10 expressing any opinion in such respect, directs that the revision of the gradation list to restore the petitioner's position therein shall be made notionally.
Sashikanta Mishra, Judge Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 26-Nov-2024 13:44:10 Page 10 of 10