Orissa High Court
Rashmi Rekha Dash vs State Of Odisha & Another ..... Opp. ... on 23 November, 2021
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P(C) NO. 16906 of 2020
And
W.P.(C) No. 18877 of 2021
In the matter of applications under Articles 226 and
227 of the Constitution of India.
---------------
AFR In W.P.(C) No. 16906 of 2020 Rashmi Rekha Dash ..... Petitioner
-Versus-
State of Odisha & another ..... Opp. Parties
For Petitioner : M/s. B.S. Tripathy-1,
A. Tripathy and A. Sahoo,
Advocates
For Opp. Parties : Mr. A.K. Mishra,
Addl. Government Advocate.
In W.P.(C) No. 18877 of 2021
Santosh Kumar Muduli &
another ..... Petitioners
-Versus-
State of Odisha & others ..... Opp. Parties
For Petitioners : M/s. B.P. Satapathy & S.Roy,
Advocates
For Opp. Parties : Mr. A.K. Mishra,
Addl. Government Advocate.
// 2 //
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of Hearing: 08.11.2021 Date of Judgment: 23.11.2021 DR. B.R. SARANGI, J. The petitioner in W.P.(C) No.16906 of 2020 seeks the following relief:-
"i) direct the opp. Party no.2 to issue a formal order regularizing her services as Data Entry Operator in the establishment of Local Fund Audit Organisation under opp.
Party no.2 with effect from 17.09.2013 in the scale of pay PB-1- 5200-20200/- + GP Rs.1900/- with usual allowances admissible from time to time as per GA Department Resolution dt.17.09.2013 (Annexure-12 on her completing six years of satisfactory service as Data Entry Operators as 01.03.2013 and in the same manner as has been allowed to similarly situated outsourced contractual Data Entry Operators in various State Government Departments and other various Govt. establishments with all consequential service and monetary benefits vide Annexure-14 series, 18, 21, 22 an d23 with all consequential service and monetary benefits;
ii) pass such other order (s) as would be deemed fit and proper in the interest of justice and fair play"
Similarly, the petitioners in W.P.(C) No. 18877 of 2021 seek the following relief:-
"(i) Why the action of the Opposite Parties in going to fill up the post of Data Entry Operator prior to considering the claim of the petitioners for their absorption/regularization as against the said post in the facts and circumstances of the case will not be declared as illegal; and
(ii) Why the Opposite Parties will not be directed to regularize the services of the petitioners as Data Entry Operators prior to taking any decision basing on the recommendation dated 03.06.2021 of the O.P. No.3 under Annexure-11."
2. In both the writ petitions, the petitioners, who are working as Data Entry Operators, essentially seek for direction to issue formal order of regularization // 3 // in the scale of pay of PB-1-5200-20200/- + GP Rs.1900/- with usual allowances admissible from time to time as per G.A. Department Resolution dated 17.09.2013, on completion of six years of satisfactory service, as has been allowed to similarly situated outsourced contractual Data Entry Operators in various State Government Departments and other various Government establishments, with all consequential service and monetary benefits. Thereby, both the writ petitions are similar to each other and consequentially they were heard together and are disposed of by this common judgment.
3. For just and proper adjudication of the case, the factual matrix of W.P.(C) No. 16906 of 2020 is taken into consideration.
3.1 Due to increase of workload in the undivided Local Fund Audit Organization during the financial year 2006-07 covering audit in favour about 5000 institutions, including 314 Panchayat Samities, 101 Urban Local Bodies, 9 Universities, 453 Aided colleges, // 4 // 2199 Aided High Schools, 398 Endowments and other institutions, including B.Sc., CHSE (208 Schools and +2 Colleges) and 6234 Gram Panchayats, a proposal was moved by the Government in Finance Department for computerization of all the Audit Offices for their efficiency by abolition of all the existing base level ministerial posts and vacancies with consequential creation of 60 Data Entry Operators. Finally, the proposal was approved by the then Finance Minister on 01.06.2006 with creation of 30 Data Entry Operators at a consolidated amount of Rs.4000/- per month on contractual basis. Accordingly, the Finance Department requested one outsourcing agency, M/s Mind Mart, vide letter dated 15.02.2007, to provide suitable 20 numbers of Data Entry Operators to be engaged in different offices of Local Fund Audit organization. The minimum educational qualification for Data Entry Operators, as prescribed by the opposite party no.1, was Graduate in any discipline with PGDCA and having a typing speed of 40 words per minute in // 5 // English and well conversant with Computer and essential knowledge in MS Office, Internet and Lan functioning and should not be below 18 years and above 40 years of age. Pursuant thereto, the service provider M/s. Mind Mart conducted selection by way of Walk-in-Interview for preparation of a panel of Data Entry Operators through a selection process. Upon completing the selection process, a panel was prepared and communicated to the Finance Department for issuance of the engagement order in favour of the 20 numbers of Data Entry Operators in different offices of Local Fund Audit Organisation under the Finance Department. The petitioner was selected and the service provider issued order of deployment in favour of her as Data Entry Operator under Local Fund Audit Organisation and allowed her to join in the office of the District Audit Officer, LFA, Cuttack. Subsequently, the petitioner was transferred and re-deployed at various Audit Offices and ultimately posted in the Directorate of Local Fund Audit, Bhubaneswar. Thereafter, the // 6 // service book in the name of each of the Data Entry Operators was opened. The Local Fund Audit Organization was restructured and one independent Head of the Department under the Finance Department, namely directorate of Local Fund Audit headed by the Director, Local Fund Audit was created vide Finance Department Resolution dated 11.07.2012, for which contractual Data Entry Operator posts were also created, vide Finance Department Resolution dated 11.07.2012. Initially, for continuance of 30 number of Data Entry Operators created during the Financial Year 2006-07 and further 4 number of Data Entry Operators were created, vide letter dated 11.07.2012, and 13 number of base level posts of Junior Grade Typist were abolished vide letter dated 05.12.2014. The tenure of contract of the Service Provider, namely, M/s Mind Mart was expired with effect from January, 2013. Thereafter, opposite party No.2 had assigned the engagement of Data Entry Operators including the petitioner to another agency, // 7 // namely M/s. Bharat Security Services, which was selected through open bidding process. While providing work order vide letter dated 28.01.2013 direction was given to the said agency to supply requisite manpower to 11 organisations with effect from 01.02.2013 with the specific conditions as prescribed under Clause-8 of the work order dated 28.01.2013, which reads as follows:-
"8. You have to sponsor at least double or triple nos. of candidates as per the requirement of the Director, LFA. After assessing the suitability of the sponsored candidate, suitable persons will be selected for engagement."
3.2 Basing upon this condition, name of the petitioner was sponsored by the new agency and after assessing her suitability based on past service experience and performance, opposite party no.2 vide letter dated 13.01.2013 allowed her to continue in job as DEO in the establishment under opposite party no.2. Even though there was change of agency, but all the DEOs, including the petitioner, were continuing uninterruptedly in the Local Fund Audit Organisation.
// 8 // Though the petitioner was engaged through outsourcing agency, but she was discharging her duty under the Local Fund Audit Organisation. Thereby, the nature of the duties discharged by the petitioner is governmental and the petitioner has acquired the status of a government servant by discharging the government functions only for the opposite parties 1 and 2 in the interest of Local Fund Audit work in the State. More particularly, the mode of engagement of Data Entry Operators through outsourcing agency has been as per the orders of the Government. The Government took a decision in the minutes of meeting held on 28.04.2012 to the following effect:-
"i) Data Entry Operators engaged on contractual basis in Tahasils should continue and should not be disengaged till a decision regarding regularization is finalized.
ii) Govt. is contemplating to frame policy on regularization of contractual Data Entry Operators in various Departments;
iii) The Policy so framed shall be applicable to outsourced Data Entry Operators."
3.3 During continuance of the petitioner as contractual outsourced Data Entry Operator, the Government of Odisha promulgated a policy for // 9 // regularization of services of the existing contractual Group-C and Group-D employees working under the State Government vide G.A. Department Resolution No. 26108 dated 17.09.2013. As per the said policy, for regular appointment a gradation list of such contractual employees shall be prepared by the appointing authority on the basis of their date of appointment and regular appointment of those categories of contractual employees shall be made on the date of completion of six years of service or from the date of publication of the resolution, whichever is later, in the order in which their names appear in the gradation list prepared under Para-1. The period of six years shall be counted from the date of contractual appointment prior to publication of the resolution. As per para-2 thereof, on the date of satisfactory completion of six years of contractual service or from the date of publication of the resolution, whichever is later, they shall be deemed to have been regularly appointed and a formal order of regular appointment // 10 // shall be issued by the appointing authority. Consequent upon regular appointment under the contractual post, if any, they shall get re-converted to regular sanctioned post. In case the person concerned has crossed the upper age limit, the appointing authority shall allow relaxation. But subsequently the Government of Orissa in G.A. Department issued another resolution on 16.01.2014 expressly clarifying the resolution of the GA Department dated 17.09.2013 that proposal of regularization of contractual appointment/ engagements as per the resolution dated 17.09.2013 shall be considered and approved by the High Power Committee to be constituted under the Chairmanship of the concerned department. 3.4 Basing upon the resolution dated 17.09.2013 various other departments of the Government have already implemented the said resolution for Data Entry Operators in their respective posts with effect from 17.09.2013 in PB-1 Rs.5200- 20,200/- with GP Rs.1900 and/or Rs.2400/-. In the // 11 // meantime, the G.A Department has also formulated Odisha Group-"C" and Group-"D" Posts (Contractual Appointment) Rules, 2013. Such Rules have got no application to the cases covered under the resolution of the Government dated 17.09.2013. The Data Entry Operators, including the petitioner, upon completion of six years of continuous contractual service on outsourcing basis submitted a detailed representation before opposite party no.2 for regularization of their services. The Joint Director of opposite party no.2 in his letter dated 07.06.2014 forwarded the said representation of the Data Entry Operators to opposite party no.1 with a request for consideration of their cases for regularization as Data Entry Operators, but to of no response. Consequentially, the Data Entry Operators working under the opposite party no.2, including the present petitioner, submitted a detailed representation on 07.09.2015 to opposite party No.1 in the grievance cell with a prayer for being paid their remuneration directly by opposite party no.2 instead of // 12 // service provider. Opposite party no.1, considering the grievance of the Data Entry Operators, including the petitioner, referred the matter to opposite party no.2, vide letter dated 30.09.2015 of the Under Secretary to Government, Finance Department, with a request to examine the grievance of the Data Entry Operators as per Rules and to submit its views to the Department for further necessary action. Some of the outsourced employees, who are similarly situated with the petitioner, have been regularized as per the orders of the government, as is evident from the information obtained under RTI Act vide letter dated 29.01.2016 of the Under Secretary to Government of Odisha, Department of Higher Education, in which the said department has confirmed that two Data Entry Operators engaged through the service providers were made as direct contractual in 2008 and were regularized in 2014. It has been also confirmed in the said letter that the employees those who are engaged as outsourcing/contractual as per the provisions and // 13 // guidelines prescribed by G.A. Department as well as Finance Department are made regular. Therefore, the appointment of the petitioner as Data Entry Operator, which was made through outsourcing, is also as per the provisions and guidelines prescribed by G.A. Department as well as Finance Department be regularized. Similarly, the Data Entry Operators working in another wing of the Finance Department, namely, CT&GST Organization, who were initially engaged through outsourcing in 2005-07 and were brought as direct contractual in February, 2008, had approached the Odisha Administrative Tribunal, Cuttack Bench Cuttack in O.A. No. 2172 (C) of 2015 (Jatin Kumar Das and others v. State) and batch for their regularization as per the G.A. Department resolution dated 17.09.2013. The said batch of Original Applications were allowed by the order of State Administrative Tribunal by judgment dated 17.05.2017. The State carried the same to this Court in W.P.(C) No. 6661 of 2018, which was dismissed vide // 14 // judgment dated 10.05.2018. Being aggrieved, the State challenged the same in the apex Court in SLP (C) No. 18642 of 2018, which was also dismissed vide order dated 06.08.2018. Thereafter, all Data Entry Operators working in CT&GST Organization were regularized. The service of said Jatin Kumar Das was regularized vide order dated 15.09.2018. The petitioner, being stood in the same footing, is entitled to get the similar benefit as has been granted to the Data Entry Operators of the CT&GST Organization. The annual agreement with the service provider M/s Bharat Security Services was extended with effect from 01.02.2020 to 31.07.2020. As an austerity measure due to COVID-19 the Finance Department issued an office memorandum dated 07.07.2020 communicating inter-alia the following decision of the Government:-
" i) Persons who are engaged on outsourcing basis, are to be paid their entitlement as per the terms and conditions of the engagement till contract period ends. If the contract period ends within the lock down period, then the entitlements to be paid till the end of the contract period."
// 15 // 3.5 As the petitioner has required eligibility criteria and on being duly selected through a selection process appointed against sanctioned posts and continue to work for more than 10 years satisfactorily with unblemished performance and without intervention of the orders of the Courts or Tribunals, is entitled to be regularized based on the judgment of the apex Court in the cases of Secretary State of Karnataka v. Umadevi (3), (2006) 4 SCC 1, State of Kantaka vs. M.L. Keshari, (2010) 9 SCC 247 and Sheo Narain Nagar Vs. State of UP, AIR 2014 SC 233 and all other subsequent judgments dealing with such regularization. As the engagement of the petitioner was not at all an illegal appointment and can be said to be irregular appointment, thereby she is entitled to be regularized in service as an one time dispensation. The petitioner has completed more than 13 years of service on outsourced contractual basis and as per the G.A. Department Resolution dated 17.09.2013 her service is deemed to have been // 16 // regularized with effect from 17.09.2013, on completion of six years of service. Therefore, the petitioner is entitled to a direction to opposite party no.2 to issue a formal order regularizing her services as Data Entry Operator in the establishment of Local Fund Audit Organization in the scale of pay of PB-1- Rs.5200- 20200/- + GP Rs.1900/- with usual allowance admissible from time to time, as such benefit has been extended to the similarly situated outsourced contractual Data Entry Operators in various Government departments. Hence this writ petition.
4. Mr. B.S Tripathy-1, learned counsel for the petitioner in W.P.(C) No.16906 of 2020 admitting the fact that the petitioner was engaged by outsourcing agency, emphatically urged that she has been rendering service to the Local Fund Audit Organization for more than 13 years continuously and that though essentially she is discharging the nature of duties assigned to government service, but she is being paid by outsourcing agency. Such an action is nothing but a // 17 // camouflaged approach made by the State authorities to the service rendered by the petitioner just to deprive her of the benefits of contractual employment, as per resolution dated 17.09.2013 passed by the Government in G.A. Department and subsequent Rules framed in 2013. It is also contended that even though the petitioner is engaged on outsourcing basis, she is discharging her duties and responsibility of the State and, therefore, she is entitled to get regularization in terms of the Government resolution dated 17.09.2013 and rules framed in 2013, as have been referred to above. It is further contended that the petitioner's appointment may be considered to be irregular one, but cannot be said to be illegal, as she has come through the process of selection as per Clause-8 of the work order dated 28.01.2013. Consequentially, she is entitled to get the benefit of contractual appointment in terms of G.A. Department resolution dated 17.09.2013 and subsequent Rules framed in 2013. It is further contended that even though the petitioner is employed // 18 // through outsourcing agency, there exists master- servant relationship between the petitioner and the opposite parties, thereby, she is entitled to get regularization. More so, if the services of similarly situated persons have already been regularized, the petitioner cannot be discriminated and therefore, her claim for regularization on contractual basis has to be considered by the Government in proper perspective.
To substantiate his contention, learned counsel for the petitioner has relied upon Secretary, State of Karnataka v. Umadevi(3), (2006) 4 SCC 1; State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247; Sheo Narain Nagar v. State of UP, AIR 2014 SC 233; Hussainbhai, Calicut v. Alath Factory Thozhilali, (1978) 4 SCC 257; Nihal Singh v. State of Punjab, (2013) 14 SCC 65; G. Srinivasa Chary v. State of Telangana (W.P. No.47675 of 2018 & I.A. No.1 of 2019 disposed of on 07.08.2020); Sushil Kumar Nayak v. State of Orissa, 2014 (Suppl.1) OLR // 19 // 917 & Sanatana Sahoo v. State of Odisha, 2017(II) ILR-CUT-1059.
5. Mr. B.P. Satapathy, learned counsel appearing for the petitioners in W.P.(C) No.18877 of 2021, while adopting the argument advanced by Mr. B.S. Tripathy-1, learned counsel for the petitioner in W.P.(C) No.16906 of 2020 contended that since there exists master-servant relationship between the petitioners and opposite parties, the petitioners are entitled to get the benefit of regularisation on contractual basis.
To substantiate his contention, he has relied upon the judgment of the apex Court in Dharangadhara Chemical Works Ltd. v. State of Saurashtra, AIR 1957 SC 264; State of Uttar Pradesh v. Audh Narain Singh, AIR 1965 SC 360; V.P. Gopala Rao v. Public Prosecutor, AIR 1970 SC 66; and Andhra Pradesh & State of Gujarat v. Raman Lal Keshav Lal Soni, AIR 1984 SC 161.
// 20 //
6. Per contra, Mr. A.K. Mishra, learned Additional Government Advocate argued with vehemence that since the petitioners are arbitrarily engaged by the outsourcing agency and they are being paid by outsourcing agency, there is no existence of master-servant relationship between the petitioners vis-à-vis the State. It is further contended that though the petitioners are being engaged by outsourcing agency and are performing their duties and responsibility under the State authority, they cannot claim regularization of their services or absorption on contractual basis. More so, their appointment having not been made against any sanctioned posts, they are not entitled to get any regularization. It is further contended that sympathy and sentiments cannot be grounds for passing of order of regularization in absence of any legal right.
To substantiate his contentions, he has relied upon Nishan Singh v. State of Punjab, 2013 SCC OnLine P & H 20720; Rajiv Kumar v. State of // 21 // Punjab, 2018 SCC OnLine P & H 6948; Union of India v. Ilmo Devi, 2016 SCC OnLine SC 1933; Union of India v. Ilmo Devi, 2021 OnLine SC 899; and Odisha Power Transmission Corp. Ltd v. Sushil Kumar Nayak, Civil Appeal No.8415 of 2017 (arising out of SLP (C) No.11569 of 2014 disposed of on 05.07.2017)
7. This Court heard Mr. B.S. Mishra-1, learned counsel for the petitioner in W.P.(C) No.16906 of 2020; Mr. B.P. Satapathy, learned counsel appearing for the petitioners in W.P.(C) No.18877 of 2021 and Mr. A.K. Mishra, learned Additional Government Advocate for the State opposite parties by hybrid mode. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petitions are being disposed of finally at the stage of admission.
8. From the factual matrix and the rival contentions as narrated above, it is unraveled that the petitioners, having been undisputedly engaged by outsourcing agency, are discharging their duties and // 22 // responsibility in different offices under the Govt. of Odisha as Data Entry Operators. Six posts were created by the Government, against which the petitioner in W.P.(C) No. 16906 of 2020 is continuing with a meager sum of money being engaged through outsourcing agency. But, essentially, the nature of work has been discharging by the petitioners for the Government and of the Government and payments have been made to them through outsourcing agencies by the Government. Even if they are discharging their duty as Data Entry Operators for the Government, of the Government and by the Government, the benefit of regularization on contractual basis also accrued to them in terms of nature of duty discharged by them, even though they have been engaged in a camouflaged manner through service providers. More so, recruitment rules have already been framed by the Government bringing them into the fold of regular contractual posts. But, in the name of financial crunch or by adopting some plea or the other, the Government // 23 // even though is a model employer, is not making their appointment as regular contractual by following due procedure or rules governing the field for recruitment to the regular posts. Many a times, it is observed that the Government is engaging the people through outsourcing agencies and by paying a paltry sum of money is extracting the work similarly to regular employees of the Government. Thereby as a model employer, the Government is exploiting the employees, those who have been engaged by outsourcing agencies, by depriving them of getting their legitimate dues in terms of regular employment or in terms of contractual employment as per rules applicable to them. The Government in the name of technological development depriving the manpower utilization for its betterment. No doubt, technology has got its own place for growth of the State, but that does not mean it will not create any employment causing a massive inconvenience to the youth of the country. Consequentially, there is brain drain of multi-laundering the persons to the // 24 // country and outside the country. Therefore, the Government should be careful that the eligible persons are not denied employment in the name of technological development. It is easy to utilize the outsourcing agencies for supply of manpower, but that itself amounts exploiting the young generations upon whom the future of the state as well as the country rests. Once youth is exploited, frustration grows up and ultimately it will have tremendous adverse effect on the growth of the state, resulting in creating disastrous conditions, which should be taken care of by the Government as a model employer. But instead of doing so, as it appears, steps are being taken from time to time to cause harassment to the youths by generating unemployment, which will have grave repercussions on the State and at that time the State cannot control the situation.
9. In Rajiv Kumar (supra), the Single Bench of High Court of Punjab and Haryana, at pragraphs-6 and 7 of the judgment held as follows:-
// 25 // "6. Admittedly, Petitioners are working as contractual employees under an outsourced manpower agency till the year 2016-17 and it is for the first time for the year 2017-18, that petitioners were offered contractual employment under the respondent-Corporation vide appointment letter/s Annexure P-3. To understand the matter in right perspective, it is necessary to go into the background of the case.
7. It is seen that respondent-Corporation is totally dependent upon the policies and decisions taken by the Department of Local Government, Punjab who is entrusted with the work of regulating Corporations like respondent no.3, as all the funds for working of the Corporations are released by said Department.
On 21.05.1999, respondent no.1-Department took a conscious decision to the effect that all private employees of all Corporations would be engaged through a manpower agency/contractor, who would be responsible for engaging the employees and paying them their salaries etc and the Corporations shall be paying the manpower contractors a lump- sum amount. It is further evident that the said practice 4 of 7 CWP No.13348 of 2018(O&M) #5# continued for the year 2016-17 as well, and respondent-Corporation had also invited tenders through open bids and the contract for the year 2017 stood awarded to various contractors i.e. Markanda Khurad Co-op L/C Society Limited, M/s Kamal Electrical and The Capital Co-op L/C Society Ltd. In the meantime, respondent no.1-Local Government, Punjab had promulgated the Punjab Ad hoc, Contractual, Daily Wage, Temporary, Work Charged and Outsourced Employees Welfare Act, 2016 (in short the Act of 2016) vide Notification dated 24.12.2016, under which a criteria was laid down for Group A, B, C and D employees working on contractual/temporary/daily wages etc under the State Government and its entities. The said Notification/Act, 2016 was adopted by the Corporation vide resolution dated 26.12.2016 and accordingly, the petitioners were directly engaged as contractual employees for one year i.e. 2017 by the Corporation. However, said appointment was subject to approval by the respondent no.2-Director Local Government, Punjab of the resolution dated // 26 // 26.12.2016, as the Corporation is bound by approval from the Local Government Department."
10. In Ilmo Devi (supra) the apex Court at paragraph-13 of the judgment observed as follows:-
"It is further submitted that the directions issued by the High Court to sanction the posts can be said to be a policy decision, and, therefore, the High Court is not justified in issuing the Mandamus and/or direction to create and sanction the posts. It is submitted that the High Court has not properly appreciated the facts that even the O.M. dated 11.12.2006 and subsequent regularization policy dated 30.06.2014 were absolutely in consonance with the decision of this Court in the case of Umadevi (supra). It is submitted that in the case of Umadevi (supra) it has been specifically observed that the High Court, in exercise of jurisdiction under Article 226 of the Constitution of India, should not ordinarily issue direction for absorption, regularization or permanent continuance unless the recruitment was itself done regularly and in terms of constitutional scheme."
11. In Odisha Power Transmission (supra), the apex Court has considered the proposal given by the appellant, which was passed basing on the observation made by the apex Court in Ashok Kumar and Another vs. State of Bihar and others, 2017 (4) SCC 357 and accordingly disposed of the appeal in terms of the proposal.
// 27 //
12. The sum and substance of the submissions made by Mr. A.K. Mishra, learned Additional Government Advocate for the State is that the petitioners, having been appointed through outsourcing agencies, there does not exist any master- servant relationship, for which, they are not entitled for contractual appointment and subsequent regularization, as they have not been selected by following due process of selection, particularly when the policy decision is for regularization of service of the contractual employees, who were appointed after fulfilling the eligibility criteria as per the proper procedure. Thereby, the claim as has been made by the petitioners in these writ petitions is to be denied.
13. As it appears, while passing the judgment by the Punjab and Haryana High Court in Rajiv Kumar (supra) which was relied upon by the State Counsel, the important guidelines issued by the apex Court in other judgments in the said context have not been taken into consideration. Thereby the said judgment is // 28 // per incurium and cannot be relied upon for the purpose of adjudication of these cases.
14. In Dharangadhara (supra), the Constitution Bench of the apex Court while considering the case under Section 2 (s) of the Industrial Disputes Act, 1947 observed that, test with regard to master and servant relationship has been laid down and it is held that the essential condition of a person being a workman within the terms of the definition in Section 2
(s) is that he should be employed to do the work in the industry, that there should be, in other words, an employment of his by the employer and that there should be the relationship between the employer and employee or master and servant. Unless a person is thus employed there can be no question of his being a workman within the definition of the terms as contained in the Act. Prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not // 29 // only in the matter of directing what work the servant is to do but also the manner in which he shall do his work. The nature or extent of control which is requisite to establish the relationship of the employer and employee must necessarily vary from business to business and is by its very nature incapable of precise definition. The correct method of approach, therefore, would be to consider whether having regard to the nature of the work there was due control and supervision by the employer. A person can be a workman even though he is paid not per day but by the job. The fact that Rules regarding hours of work, etc. applicable to other workmen may not be conveniently applied to them and the nature as well as the manner and method of their work would be such as cannot be regulated by any directions given by the Industrial Tribunal, is no deterrent against holding the persons to be workmen within the meaning of the definition, if they fulfill its requirement. The Industrial Tribunal would have to very well consider what relief, if any, // 30 // may possibly be granted to them having regard to all the circumstances of the case and may not be able to regulate the work to be done by the workmen and the remuneration to be paid to them by the employer in the manner it is used to do in the case of other industries where the conditions of employment and the work to be done by the employees is of a different character.
15. In Audh Narain Singh (supra), the apex Court held that a Government Treasurer is entitled to appoint Tahvildars in the cash Department in the State of Uttar Pradesh to assist him in the discharge of his duties, but the appointment is made with the approval of the District Collector. Even after the posts of Tahvildar were abolished the Government of Uttar Pradesh did not adopt a consistent attitude and from time to time issued orders which indicate that a considerable degree of control was maintained by the District Officers upon the Tahvildars in the matter of appointment, removal from service, suspension and transfers and in the matter of payment of // 31 // remuneration, dearness allowance and making available certain medical benefits. Tahvildars were treated on a par with other civil servants of the State. It is from these circumstances that the relationship between the Government of Uttar Pradesh and Tahvildars has to be ascertained. Whether in a given case the relationship of master and servant exists is a question of fact, which must be determined on a consideration of all material and relevant circumstances having a bearing on that question. In general selection by the employer, coupled with payment by him of remuneration or wages, the right to control the method of work, and a power to suspend or remove from employment are indicative of the relation of master and servant. But co-existence of all these indicia is not predicated in every case to make the relation one of master and servant. In special classes of employment, a contract of service may exist, even in the absence of one or more of these indicia. But ordinarily the right of an employer to control the // 32 // method of doing the work, and the power of superintendence and control may be treated as strongly indicative of the relation of master and servant, for that relation imports the power not only to direct the doing of some work, but also the power to direct the manner in which the work is to be done. If the employer has the power, prima facie, the relation is that of master and servant. The work of the Government Treasurers has to be conducted according to the Rules and Regulations framed by the Government, and directions issued from time to time. The Government Treasurer holds a post in a public employment and he is assisted by Tahvildars in the performance of his duties. The Tahvildar acts not on behalf of the Treasurer in performing his duties, but on behalf of the State.
16. Relying upon the judgment of the apex court in the case of Audh Narain Singh, the apex Court in the case of V.P. Gopala Rao (supra) while considering the matter of relationship between the master and // 33 // servant with reference to the meaning attached to Section 2(1) of the Factory Act, 1948, held that a "worker" within meaning of S.2 (1) is a person employed by the management and there must be a contract of service and a relationship of master and servant between them. It is a question of fact in each case whether the relationship of master and servant exists between the management and the workman. The critical test of the relationship of master and servant is the master's right of superintendence and control of the method of doing the work.
17. In Hussainbhai (supra), the apex Court settled the law on true test of determining the master and servant relationship, which reads as follows:-
"5. The true test may, with brevity, be indicated once again. Where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that // 34 // the real employer is the Management, not the immediate contractor. Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like, may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43 and 43-A of the Constitution. The court must be astute to avoid mischief and achieve the purpose of the law and not be misled by the maya of legal appearances.
6. If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefits and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make- believe trappings of detachment from the Management cannot snap the real-life bond. The story may vary but the inference defies ingenuity. The liability cannot be shaken off."
18. In Nihal Singh (supra), the apex Court directed absorption of Special Police Officers appointed by the State, whose services were placed at the disposal of various Banks in the State and whose wages were paid by Banks. It was held that the mere fact that wages were paid by the Bank did not render the appellants 'employees' of those Banks since the appointment was made by the State and disciplinary control vested with the State. It held that the creation of a cadre or sanctioning of posts for a cadre is a matter exclusively within the authority of the State, but if the State did not choose to create a cadre but chose // 35 // to make appointments of persons creating contractual relationship, its action is arbitrary. It also refused to accept the defence that there were no sanctioned posts and so there was justification for the State to utilize services of large number of people like the appellants for decades. It held that "sanctioned posts do not fall from heaven" and that the State has to create them by a conscious choice on the basis of some rational assessment of need.
19. In G. Srinivasa Chary (supra), the Telengana High Court, while considering the claim of employees engaged on outsourcing basis in Greater Hyderabad Municipal Corporation, answered two issues namely (i) Whether outsourced employees are entitled to regularization in their service ? and (ii) Whether those outsourcing employees are entitled to equal wage based on the principle of equal pay for equal work as per the law laid down by the apex Court in the case of Jagjit Singh vs. State of Punjab, (2017) // 36 // 1 SCC 148. In the said case, i.e., G. Srinivasa Chary (supra), at pargraph-79, it has been held as follows:-
"79. In the result,
(a) The Writ Petition is allowed;
(b) the respondents' action in engaging the petitioners on "outsourcing basis" as Sanitary Supervisors (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants through intermediaries/agencies/contractors is contrary to law, violative of Article 14, 16 and 21 of the Constitution of India and also the law declared by the Supreme Court in Uma Devi (1 supra) mandating periodic regular recruitment to sanctioned posts;
(c) that the "outsourcing" system adopted by the GHMC is only a sham and a ruse to avoid extending to the petitioners their genuine service entitlements; and that the presence of such intermediary/contractor has to be ignored, and the petitioners are held to have been directly engaged by the GHMC and they are also held entitled to be considered for regularisation of their services;
(d) consequently, the respondents, while continuously engaging the services of the petitioners directly henceforth, are directed to consider the case of the petitioners for regularisation of their services, by ignoring the existence of the intermediaries/agencies/contractors in the posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants within two (2) months from the date of receipt of a copy of the order.
(e) the petitioners are entitled to minimum of time scale of pay attached to the posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants in which they are now discharging their functions till their claim for regularisation is considered by the GHMC in accordance with para 53 of the decision in Uma Devi (1 supra); and such payments shall be made by the GHMC directly to the petitioners w.e.f the date of filing of this Writ petition ( after deducting the payments already received by them during this period from the contractor/intermediary) and shall be continued till the cases of the petitioners are considered for regularisation by the GHMC. The arrears upto 31.7.2020 shall be paid on or before 15.9.2020."
// 37 //
20. In Sanatan Sahoo (supra), a Division Bench of this Court observed that while he was so continuing, even though two posts of Jr. Data Entry Operators were created under H & UD Department, the same were filled up on out sourcing basis from the service provider without due process of selection. Their services have also been regularized. Thus non- consideration of the case of an employee, whose services have been utilized for last 22 years, is nothing but exploitation of such employee by his employer. The persons who were sponsored through outsourcing agency by the Service Provider and not through due process of selection, have already been regularized, whereas the petitioner, has been discriminated on the plea that he has not been appointed by following the Rules meant for Data Entry Operators. Against the judgment passed in the case of Sanatan Sahoo (supra), challenge was made before the apex Court in SLP (C) No. 11911 of 2018, which was dismissed vide order dated 18.05.2018.
// 38 //
21. So far as the case of Sushil Kumar Nayak (supra) is concerned, the judgment passed by this Court in the said case had been challenged before the apex Court by Orissa Power Transmission Corporation Ltd. and on the basis of the proposal given by the counsel appearing for the appellant, namely Orissa Power Transmission Corporation Ltd., which was partly based on the observation made in Ashok Kumar (supra) the matter was disposed of.
22. The cumulative effect of the judgments, mentioned supra, clearly states that the master- servant relationship is to be determined on the basis of the facts of each case. If the same is applied to the present context, there is no iota of doubt that the petitioners have been engaged through outsourcing agencies to discharge the duties and responsibility as Data Entry Operators admissible to a government employee, which is purely governmental in nature. Merely because monthly remuneration is being paid by the outsourcing agencies that ipso facto cannot be said // 39 // that there is no existence of master-servant relationship between the petitioners and the State. Thus on lifting the veil, it would appear that the Government is to be deemed as a master, who has superior choice, control and direction of the servant and on whose will the servant represents not merely in the ultimate result of the work, but in details. In other words one who exercises personal authority over another is the master and that other is a servant. If it will be further simplified, if a person employed by another to render personal service to the employer is a servant.
23. In Shaffi vs. Commissioner, E & P Tax, AIR 1960 SC 1269, the apex Court held that a master is one who not only prescribes to the workman the end of the work, but directs or at any moment may direct the means also or as it has been put, retains the power of controlling the work. A servant is a person subject to the command of his master as to the manner in which he shall do his work.
// 40 //
24. Therefore, piercing the veil, it appears that the petitioners are discharging the duties and responsibilities of the government, for the government and by the government. Though they have been paid their remuneration through the outsourcing agency, that ipso facto cannot be said that there is no master- servant relationship exists between the petitioners and the State opposite parties for whom they are rendering the services.
25. So far as the contention raised by learned Additional Government Advocate, that the petitioners are not engaged against the sanctioned posts, that itself is fallacious one, in view of fact that the petitioners have been rendering service for more than 13 years continuously without any interruption and without any order passed by this Court. That apart, the facts which are delineated above, clearly indicate that 38 number of posts of Data Entry Operators had been created, against which the petitioners are discharging // 41 // their duty, and that though they have been engaged through outsourcing agencies but the nature of work they are discharging is governmental. Therefore, observation has been made by the apex Court in Nihal Singh (supra) that sanctioned posts do not fall from heaven and that the State has to create them by a conscious choice on the basis of some rational assessment of need. But the judgments of the apex Court in Hussainbhai Calicut, G. Srinivasa Chary, Nihal Singh (supra) have not been considered by the apex Court in Ilmo Devi (supra) and also in the judgment of the Punjab & Haryana High Court referred to by the State Counsel. Thereby, since the said judgments are distinguishable, in view of the law laid down by the apex Court in Hussainbhai, Calicut, G. Srinivasa Chary and Nihal Singh (supra), it can be irresistibly concluded that the petitioners' services are to be brought to the contractual establishment in terms of G.A. Department resolution dated 17.09.2013 // 42 // and, if not, they are to be brought to the contractual establishment in terms of contractual Rules, 2013.
26. If consideration is made from other angle, in the State of Odisha, initially outsourcing agencies upon their registration under the provisions of Private Security Agencies (Regulation) Act, 2005 read with Private Security Agencies Odisha Rules, 2009 were engaged to provide manpower services of private security guards and also other employees. Subsequently, the Government issued Resolutions in the year 2010-11 providing modalities for engagement of personnel in Govt. offices/Organizations on outsourcing basis through a transparent and open tender process. Those resolutions were issued in order to reduce operating cost and provide more effective delivery of public services in numbers of auxiliary support services. Those regulations/instructions, being issued by orders of the Governor, shall be deemed to operate as General Financial Rules and delegation of financial powers and Rules and those are having the // 43 // authority under Article 166 of the Constitution of India. Therefore, providing services of Data Entry Operators to Local Fund Audit Organizations under the Finance Department by private manpower service providers, Finance Department issued tender notice providing scope of work and general instructions for bidders with technical requirement for tendering manpower service providers. As per the tender conditions the bidder should have EPF registration, ESI registration and Registration/ License under Contract Labour (Regulation & Abolition) Act, 1970. The tender conditions also expressly stipulate that the Department have tentative requirement of 30 nos. of Data Entry Operators on urgent basis. The tender conditions further stipulate that in case the grievances of the deployed persons are not attended by manpower service provider the deployed persons can put forth their grievance before the committee consisting of representatives of the Department or office concerned and authorized representative in all the manpower // 44 // service providers. The terms and conditions further stipulate the manner in which the work is to be undertaken by the outsourced employees.
27. Therefore, if all the above aspects borne in mind, it would apparently be made clear that the petitioners are discharging the duty and responsibility akin to the State Government employees, though they are being paid through the outsourcing agencies. Needless to say, similarly situated employees like Jatin Kumar Das and Others, who were working as DEOs, had approached the Tribunal in O.A. No. 2172 (C) of 2015 and batch, which were allowed vide judgment dated 17.05.2018. The judgment so passed by the Tribunal was challenged before this Court in W.P.(C) No.6661 of 2018, which was dismissed by judgment dated 10.05.2018. Although the said judgment was assailed by the State in SLP No.18642 of 2018, but the same was dismissed on 06.06.2018. Pursuant thereto, all the DEOs working under the CT & GST Department have been regularized, the petitioners cannot be // 45 // discriminated from Jatin Kumar Das & others, so as to deprive them of the benefit of contractual appointment in terms of resolution dated 17.09.2013 or Rules, 2013, otherwise it will amount to violative of Article 14 of the Constitution of India.
28. Applying the judgments of the apex Court in Umadevi (3), M.L. Keshari and Sheo Narain Nagar (supra), it cannot be construed that the petitioners are illegally appointed rather it can at best be construed as irregular appointment. Even if they are appointed irregularly, they are also entitled to get the benefits of contractual appointment, as per the resolution dated 17.09.2013 or Rules, 2013.
29. Pursuant to direction of this Court, the opposite parties produced the file of the Finance Department, LFA-1 Branch for the year 2006-07 relating to proposal for purchase of computers for LFA Organization of Finance Department and extension of agreement of DEOs. On perusal of the note sheets, it appears 30 computers with printers for 30 Data Entry // 46 // Operators were to be procured/ employed and the same has got approval of the concerned Minister. Thereafter, the process was started for engagement of such 30 Data Entry Operators and initially, on 07.02.2008, as per the approval of the Government, 20 computers along with 20 Data Entry Operators were provided to different district audit offices and headquarters in Finance Department and balance 10 computers have already been supplied to the big district audit offices as per the statement. The due approval of the Minister, to that effect, has been made on 14.02.2008. This clearly indicates that the petitioners have been engaged with due approval of the Government to discharge the duties and responsibility assigned to them, which is purely governmental in nature, even though they have been engaged through outsourcing agency by entering into an agreement. More so, as per clause-8 of the agreement, the agency has to sponsor the names for selection for their engagement. Thereby, the petitioners, having faced the // 47 // selection process, have been engaged as Data Entry Operators in Local Fund Audit Organization of the Government under the Finance Department. Therefore, if the petitioners are discharging the duties and responsibility of the Government, even though they are engaged through outsourcing agencies, that cannot deprive of them the benefits, as per the resolution dated 17.09.2013 and Rules, 2013.
30. In view of the facts and circumstances, as discussed above, this Court is of the considered view that as the petitioners are discharging the duties and responsibilities for the Government, of the Government and by the Government, though they have been paid through outsourcing agencies, they are entitled to get the benefit of contractual appointment, as per resolution dated 17.09.2013 or they may be brought over to the contractual establishment in view of the 2013 Rules governing the field, since they stand at par with the employees those who have been absorbed in CT&GST Department, pursuant to the judgment of the // 48 // Tribunal in Jatin Kumar Das (supra). Such benefits should be extended to the petitioners as expeditiously as possible, preferably within a period of three months from the date of communication of this judgment.
31. In the result, the writ petitions are allowed. However, there shall be no order as to costs.
32. The Govt. file produced pursuant to direction dated 23.09.2021 be returned to the Additional Government Advocate with due acknowledgement.
..................................... DR. B.R. SARANGI, JUDGE Orissa High Court, Cuttack The 23rd November, 2021, Arun/Alok