Orissa High Court
Manoranjan Swain And Others vs State Of Odisha And Others .... Opposite ... on 24 February, 2023
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.22008 of 2021
(This is an application under Article 226 and 227 of the Constitution
of India)
Manoranjan Swain and others .... Petitioners
-versus-
State of Odisha and others .... Opposite Parties
For Petitioners : M/s. J. Sahoo, Sr. Advocate,
Kajal Sahoo and S.K. Rout
For Opp. Parties : Mr. R.N. Mishra,
learned Addl. Govt. Advocate
CORAM:
JUSTICE A.K. MOHAPATRA
JUDGMENT
Date of hearing : 08.02.2023 | Date of Judgment : 24.02.2023 A.K. Mohapatra, J.
1. Six Writ Petitioners have filed the above noted writ petition jointly thereby invoking the extraordinary writ jurisdiction of this Court, under Article 226 of the Constitution of India challenge the order dated 22.07.2021 issued by the Opposite Party No.1 and further prayed for quashing of the said order. The petitioners have also prayed for a direction to the Opposite Parties to regularize the services of the petitioners as // 2 // Assistant Drivers by issuing a formal order of regularization in their favour in the scale of pay of Rs.5200-20,200/- w.e.f. 04.04.2011, i.e. the date of which completed six years of service with all consequential service and monetary benefits as per G.A. Department Resolution dated 17.09.2013 and 16.01.2014 and in the same manner as has been done in the case of similarly situated contractual employees in various State Government Departments. Pursuant to the judgment of the Hon'ble Apex Court in the case of State of Karnataka vrs. Umadevi : reported in (2006) 4 SCC 1, State of Karnataka vrs. M.L. Keshari : reported in (2010) 9 SCC 247.
2. The factual backdrop of the petitioners case as culled out from the writ petition, in a narrow compass, is that pursuant to advertisement published in Newspaper vide Annexure-2 for the recruitment to the post of Assistant Driver in the office of the Police Commissionerate Office, Twin City, Bhubaneswar, the petitioners applied for the job. By following due selection process, the petitioners were called upon to appear in the test and they were duly selected by the Recruitment Board, which was later approved by the D.G. and I.G. of Police, Odisha, Cuttack. As per result invited by DGP(Headquarters) vide Annexure-3, the petitioners were appointed as Assistant Driver on contractual basis with a consolidated remuneration @ of Rs.5,200/- per month for a period of one year.
3. It is pertinent to mention here that the posts of Assistant Driver were created in the Police Commissionerate of Twin City and the same has been // 3 // duly concurred by the Finance Department where their communication dated 20.01.2009. After their selection, the petitioners were issued with engagement orders on 04.04.2011 under Annexure-4 and pursuant to such engagement orders, the petitioners have joined in duty. After their initial appointment dated 04.04.2011 on contractual basis, the Opposite Parties continued to keep the petitioners engaging continuously till date by extension of their services.
4. On 22.05.2017 and 30.07.2017, the petitioners upon completion of six years of continuous service on contractual basis submitted representations before the Opposite Party No.2 and Opposite Party No.5 praying for regularization of their services in the Commissionerate Police of Twin City. In the writ petition, it has also pleaded that the I.G. of Police who has requested the Additional Chief Secretary, Home Department, Government of Odisha vide letter dated 13.07.2018 under Annexure-10 intimating that the cases of the petitioners be considered for regularization of their services. Since no decision was taken to regularize the services of the petitioners, the petitioners approached this Court by filing W.P.(C) 27735 of 2020, 27741 of 2020 praying for regularization of their services. This Court vide order dated 03.11.2020 disposed of the writ petitions with a direction to the Opposite Parties to consider the case of the petitioners for regularization of their services keeping in view the law laid down by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and // 4 // others vrs. Umadevi (3) and others, reported in (2006) 4 SCC 1 and in State of Karnataka and others vrs. M.L. Kesari and others : reported in (2010) 9 SCC 247 is also resolution of the G.A. Department dated 17.09.2013 and 16.01.2014 within a period of four months.
5. Since the order dated 03.11.2020 passed by this Court was not complied with by the Opposite Parties, the petitioners again approached this Court by filing CONTC No.1788 of 2021, 1789 of 2021, this Court vide order dated 19.03.2021 granted further one month time for compliance of the order passed by this Court. Thereafter, the authorities again sat over the matter and no decision was taken as directed by this Court vide order dated 03.11.2020 and 19.03.2021. Accordingly the petitioners again filed CONTC No.3223 of 2021, 3228 of 2021. During the pendency of such contempt petitions, the Additional Chief Secretary to Government, Department of Home vide order dated 22.07.2021 disposed of the representations filed by the petitioners thereby rejecting the prayer of the petitioners for regularization of their services on the sole ground that the Principle of reservation has been violated in the recruitment process. Further a ground was also taken by the Opposite Parties that the law laid down in the case of Umadevi vrs. State of Karnaka(supra) is not applicable to the cases of the petitioners since they had not completed ten years of continuous service. Challenging the aforesaid impugned order dated 22.07.2021 under // 5 // Annexure-14, the petitioners have again approached this Court by filing the present writ petitions.
6. A counter affidavit has been filed by the D.P.C. Headquarters Twin City Commissionerate Police representing Opposite Party Nos.1 to 6. In the said counter affidavit, it has been stated that on completion of six years of service, regularization of service is not automatic inasmuch as G.A. Department Resolution dated 17.09.2013 under Annexure-5 has to be read resolution dated 16.10.2014 and such resolution provides that the proposal for regularization has to be approved by the High Power Committee (in short 'HPC') to be constituted under the Chairmanship of the Principal Secretary of the concerned Department. It is the duty of the HPC to ensure that before appointment, the eligibility criterias as provided in paragraph-1 of the resolution dated 16.01.2014 employees engaged on contractual basis are to be brought over to the regular establishment. Conversely, it has also been stated that employees, who did not fulfill the eligibility criteria as provided in paragraph-1 are not entitled for regularization of their services.
7. Further in support of the impugned order, it has been pleaded in the counter affidavit that the Opposite Party No.1 has duly considered the case of the petitioners for regularization and upon such consideration, the Opposite Party No.1 informed decision not to regularize the services of the petitioners and accordingly, rejected the representation of the petitioners vide order dated 22.07.2021 under Annexure-14. Moreover, the Opposite // 6 // Parties have also taken a stand in the reasons given in support of the impugned decision are based on sound reasoning and as such, the same cannot be turned illegal and no fault can be found against the Opposite Party No.1. In such view of the matter, the Opposite Party Nos.1 to 6 have prayed for disposal of the writ petition.
8. In reply to the counter affidavit, the petitioners by referring Opposite Party Nos.1 to 6, the petitioners have also filed rejoinder affidavit. In the rejoinder affidavit, the petitioners by referring to the judgment of this Court in the case of Rajashree Rout and others vrs. State of Orissa and others in W.P.(C) No.32170 of 2011 decided on 20.12.2019 submitted that law preservation is not applicable to the facts of the present case. Furthermore, the Opposite Parties while considering the case of the petitioner have not taken into consideration the judgment of this court in Rajashree Rout case (supra). In such view of the matter, the impugned rejection order dated 22.07.2021 is unsustainable in law.
9. Learned counsel for the petitioners also relied upon the judgment of this Court in the case of Patitapaban Dutta Dash and others vrs. State of Odisha and others decided on 09.09.2021 in support their contentions that the services of the petitioners are liable to be regularized as they have rendered more than six years of continuous services. Moreover, it has also been stated that only a formal order of regularization is required to be passed so far the present petitioners are concerned.
// 7 //
10. Learned counsel for the petitioners in course of his argument contended that the petitioners were selected by following the regular selection procedure pursuant to the advertisement. Initially, they were although appointed on contractual basis, however, such appointment were not made against sanctioned posts and regular vacancy. Moreover, the petitioners have completed more than six years of continuous services. As such, it was argued before this Court that the petitioners fulfilled all the eligibility criteria for regularization of their services, however, the Opposite Parties without appreciating the factual background of the present case and without taking into consideration the law governing have illegally rejected the representations of the petitioners and thereby refused to regularize the services of the petitioners against regular sanctioned posts. Alternatively, it was also argued that the petitioners have completed ten years of continuous service, therefore, by following the principle of law laid down by Hon'ble Supreme Court in Umadevi case (supra) as well as M.L. Keshari case (supra). The case of the petitioners should have been regularized with all consequential service and financial benefits.
11. Learned counsel for the petitioners further contended that in view of the law laid down by the Hon'ble Supreme Court as well as this Court and by taking into consideration the G.A. Department Resolution dated 17.09.2013 and 16.01.2014, the legal fixation deemed regularization should have been applied to the facts of the present case and accordingly, the // 8 // petitioners should have been deemed to have been regularized on completion of six years of contractual service w.e.f. 04.04.2011 and accordingly, they should have been issued with formal regularization order. Learned counsel for the petitioners also argued that several other departments of Government of Odisha have regularized the service of similarly situated persons by applied the aforesaid G.A. Department Resolution. Moreover, although the petitioners were appointed on contractual basis initially, they were allowed to continue for more than ten years of such contractual posts with a meager salary/remuneration, which also amounts to exploitation of work force. As such, it was also argued that the conduct of the Opposite Parties are violative of Articles 14, 16 and 34(1)(d) of the Constitution of India. Further referring to the judgment of the Hon'ble Supreme Court in D.S. Nakara : reported in AIR 1983 SC 130, which was argued by learned counsel for the petitioners that the ratio laid down in the said judgment applied to the facts of the present case with regard to applicability of the ORV Act, 1975, learned senior counsel appearing for the petitioners contended that in view of such Section 3(d)(b) of the aforesaid act, the law of reservation is not applicable to the appointments made on contractual basis. As such, it was argued that the finding given by the Additional Chief Secretary to Government in the impugned under Annexure-14 this contrary to the provisions contained in Section 3(d)(b) of the ORV Act, 1975.
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12. Mr. Sahoo, learned senior counsel appearing for the petitioners further contended that the Government of Odisha vide its resolution dated 14.08.2009 had communicated a decision that the law of reservation shall also be applicable to contractual engagement against in regular posts under the State Government. However, the said resolution dated 14.08.2009 has been revoked/superseded by another resolution dated 08.02.2010. Thus, it was contended by Mr. Sahoo, learned senior counsel that the alleged non- adherence that the principle of reservation in the process of recruitment to the post of Assistant Driver is not vitiated for the reason that the principles of reservation have not been followed while recruiting Assistant Drivers.
13. In reply to the submissions made by leaned senior counsel appearing on behalf of the petitioners, Mr. R.N. Mishra, learned Additional Government Advocate, on the other hand, contended that the decision taken by the Additional Chief Secretary under Annexure-14 by rejecting the representations of the petitioners and thereby refusing to regularize the services of the petitioners is absolutely legal and perfect. He further contended that in view of the G.A. Department resolution referred to hereinabove adherence to the law of reservation as provided under the ORV Act, 1975 is a mandatory eligibility criteria, which is required to be verified by the High Power Committee constituted for the purpose. Since the mandatory criterias as provided in the G.A. Department resolution is having not been followed for selection and recruitment of Assistant Driver the // 10 // service of the petitioners should not have been regularized by the Opposite Parties dehors the law as well as resolution of the G.A. Department. Drawing attention of this Court to Annexure-6 i.e. resolution dated 16.01.2014, learned Additional Government Advocate contended that in para-1 of the said resolution mandatory eligibility conditions for regularization on contractual appointees have been clearly prescribed. Accordingly, learned Additional Government Advocate while supporting the impugned rejection order under Annexure-14 submitted that the writ petitioner is devoid of merit and the same is liable to be dismissed.
14. Having heard learned counsels for the respective parties and on a conspectus of the respective pleadings as well as the materials placed before this Court for consideration, this Court observed that the impugned order dated 22.05.2021 under Annexure-14 has been passed by the Additional Chief Secretary, Home Department, Government of Odisha rejecting the representations of the petitioners as was directed by this Court in the earlier writ petition filed by the petitioners. A close scrutiny of the impugned rejection order reveals that referring to G.A. Department Resolution dated 16.01.2019, Additional Chief Secretary, Home Department, Government of Odisha was of the view that for regularization of services of the petitioners three conditions are required to mandatorily fulfilled. Further in the context of the petitioners' case, it has been specifically observed that the principle of reservation has not been followed in the recruitment process and that the // 11 // ratio decided in Umadevi case (supra) is not applicable to the case t hand as the period of engagement in Umadevi case tenure. Accordingly, the prayer for regularization has been rejected by the Additional Chief Secretary, Home Department, Government of Odisha under Annexure-14 with regard to applicability of the principles of reservation to the facts of the present case, this Court examined the provisions of ORV Act upon careful scrutiny of Section 3(d) of ORV Act, 1975, this Court observed that Section 3 (d) provide as follows:-
"3. Applicability :- This Act shall apply to all appointments to the Posts and Services under the State except-:
xxx xxx xxx
(d) those filled up on the basis of any contract;
xxx xxx xxx"
15. The aforesaid provisions clearly reflects that the provisions of ORV Act, 1975 which provides for reservation for S.C. and S.T. persons is not applicable to any appointment on contractual basis, further the resolution of the S.C. and S.T. Development Department dated 14.08.2009 was issued to ensure reservation for S.C. and S.T. candidates in contractual engagement in lieu of Class-III and IV. A close scrutiny of the said resolution itself reveals that there is no statutory requirement to follow ORV Act for contractual engagement. However vide the said resolution dated 14.08.2009, a decision // 12 // was taken by the State Government that even for contractual engagement in Group 'C' and Group 'D' posts, posts shall be reserved for S.C. and S.T. category candidates in which the same manner and to the same extent as is being done for regular posts.
16. On 08.02.2010, S.C. and S.T. Development Department, Government of Odisha issued another resolution in the context of ensuring reservation for S.C. and S.T. candidates for contractual engagement in Class-III and IV posts. The said resolution dated 08.02.2010 is very clear and categorical terms provides resolution dated 14.08.2009 issued by the very same department has been revoked. Even assuming that the resolution dated 14.08.2009 or any other provision in other resolution by any department of State Government providing for reservation for S.C. and S.T candidates for contractual appointments is valid, then the same would be dehors under Section 3(d) of the ORV Act, 1975 and as such, the same would be alter vires of the statutes. Therefore, unless the provision in ORV Act is amended, no reservation in service on contractual appointment/engagement could be made contrary to the provisions in ORV Act, 1975. The view as reflected hereinabove also gets support from a judgment of this Court by a coordinate Bench in the case of Rajashree Rout and others vrs. State of Orissa and others in W.P.(C) No.32170 of 2011decided on 20.12.2019.
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17. In view of the aforesaid legal position and the finding arrived at by this Court the main plank of rejection in order dated 22.07.2021 under Annexure-14 is completely demolished. Bereft of such plank, the impugned order under Annexure-14 has no locus standi on its own except that one line observation that the ratio in Umadevi case (supra) is not applicable to the case of the petitioners, as the period of engagement in Umadevi case was ten years. In the said context, this Court would like to observe that the Opposite Parties in their counter affidavit have not disputed the fact that the petitioners were initially engaged vide order dated 04.04.2021 under Annexure-4 after they were duly selected by following valid selection procedure and that the Government of Odisha, Home Department vide order dated 19.03.2010 has been pleased to create fourteen number of posts of Assistant Driver and the petitioners were selected pursuant to advertisement under Annexure-2 were appointed against the regular posts vide engagement order dated 04.04.2011 under Annexure-4. In view of the aforesaid factual position, this Court has no hesitation in coming to a conclusion that the law laid down by the Hon'ble Supreme Court in the case of Umadevi case (supra) as well as M.L. Keshari case (supra) applied to the facts of the present case. Moreover, the petitioners are also entitled to be regularized in view of the aforesaid G.A. Department resolution under Annexures-5 and 6. Particularly, the resolution dated 16.01.2014 under Annexure-6 is of the conditions mentioned therein have been fulfilled while engaging the petitioners on contractual basis except the Condition No.III // 14 // relating to reservation of posts. So far reservation of posts as provided in resolution dated 16.01.2014 under Annexure-3, the same runs contrary to the statutory provision as contained in Section 3 (d) of the ORV Act, 1975 as well as the judgment of this Court in Rajashree Rout case (supra).
18. Additionally, this Court would like to also examine the approach and conduct of the Opposite Parties in engaging the employees on contractual basis for a meager salary. In the case at hand, the petitioners were duly selected and appointed on contractual basis for a meager salary of Rs.5,200/- per month against the sanctioned posts. Although sanctioned posts were lying vacant, the services of the petitioners were not regularized for years together. The petitioners had no other alternative to continue the opposite parties on contractual cases in turn for a meager salary of Rs.5,200/- per month. It is needless to mention here that the persons, who were engaged as Drivers on regular basis were getting much higher salary, were also getting service and financial benefits. Time and again, this Court has deprecated practice of the Government in engaging the persons on contractual basis on several years against the regular sanctioned posts were the nature of work is perennial. Such conduct of the Government and the officers working under the Government are highly exploitive in nature. This Court, taking into consideration the facts of the present case has no hesitation in coming to conclusion that the conduct of the Opposite Parties vis-à-vis the petitioner amounts to exploitation of labour force, which no // 15 // doubt is prohibited in law. Moreover, the conduct of the Government in engaging employees on contractual basis for a indefinite period i.e. years together against the vacancy of sanctioned posts and paying them a meager salary is also hit by the provisions contained under Section 25(T) of the Industrial Disputes Act, 1947 (in short the 'I.D. Act'). The said provision in the I.D. Act specifically prohibits unfair labour practice by any employer whosoever he may be including the Government agencies. Moreover, such contractual appointments are also infringes Section 23 of the Indian Contract Act. In the said context, this Court would like to refer the judgment in the case of Rudrakanta Panda vrs. Stae of Odisha and others and batch of matters decided in a common judgment dated 10.12.2021 :
reported in 2022 SCC Online Orissa 405, 2022 Lab. I.C. 2208.
19. In view of the aforesaid analysis of law as well as factual back ground of the present case, this Court is of the considered view that the impugned order dated 22.07.2021 under Annexure-14 is unsustainable in law. Accordingly, the same is hereby quashed. Further, the Opposite Parties are directed that the services of the petitioners be regularized on completion of six years of service from the date of their initial appointment.
Accordingly, all consequential service and financial benefits be calculated and disbursed in favour of the petitioners within a period three months from today.
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20. Further, it is directed that in the event the concurrence of the High Power Committee is required, the Opposite Party No.1 place the matter before the High Power Committee for their concurrence of regularization of their services within the aforesaid stipulated time.
21. Accordingly, the writ petitions stands allowed. However, there shall be no order as to cost.
( A.K. Mohapatra ) Judge Orissa High Court, Cuttack The 24th of February, 2023/ Jagabandhu.