Orissa High Court
Sushanta Sekhar Banchhor vs State Of Orissa And Others Vide W.P.(C) ... on 8 March, 2011
L.MOHAPATRA, J & S.K.MISHRA, J.
W.P.(C ) NO.9647 OF 2010 (Decided on 08.03.2011)
SUSHANTA SEKHAR BANCHHOR ... .....Petitioner.
.Vrs.
STATE OF ORISSA & ANR. .........Opp. Parties.
For Petitioner - M/s. Shashi Bhusan Jena, S.Behera
S.S.Mohapatra, S.Soren.
For Opp.Parties - Addl. Government Advocate
L.MOHAPATRA, J.The petitioner in this Writ Petition prays for quashing of the order dated 09.4.2010 under Annexure-8 passed by the Commissioner-cum-Secretary to Government of Orissa, Panchayati Raj Department and also prays for a further direction to opposite parties to allow the petitioner to continue in the post of Additional Computer Programmer on contractual basis.
2. The case of the petitioner is that in order to implement the National Rural Employment Guarantee Act, 2005 (hereinafter referred to as "NREGA") the Government of Odisha undertook number of project works for providing employment guaranteed to the unemployed citizens through a three tire Panchayat Raj system/agency. All the Collectors of 19 districts by letter dated 25.8.2006 were directed to engage the required staff at Grama Panchayat /Block Level for smooth execution of NREGA work. The staff constitute Multi Purpose Assistant (Grama Rozgar Sevak), Grama Panchayat Technical Assistant and Additional Computer Programmer. For appointment to such post the eligibility criteria had been prescribed and the manner of selection had also been prescribed. The petitioner was an applicant for appointment to the post of Additional Computer Programmer in the district of Sambalpur. After being selected he was offered appointment in Annexure-4 on a consolidated pay of Rs.4,000/- per month and he was advised to report before the concerned Block Development Officer on or before 26.12.2006. The petitioner accordingly joined the post and continued as such till the decision in Annexure-8 was taken. In Annexure-8 a decision was taken to engage Additional Computer Programmers on outsourcing basis through a firm and accordingly apprehending termination the petitioner approached this Court in this Writ Petition and at the stage of admission an interim order was passed on 25.5.2010 permitting the petitioner to continue in the post.
3. Learned counsel appearing for the petitioner referred to a decision of this Court in the case of Nilachal Das Vs. State of Orissa and others vide W.P.(C) No.18821 of 2009 disposed of on 15.12.2009 annexed to the Writ Petition as Annexure-6. In the said case the petitioner therein Nilachal Das was working as an Additional Computer Programmer. The Project Director, District Rural Development Agency, Kandhamal directed the Block Development Officers to disengage all Additional Computer Programmers appointed on contractual basis and such decision was challenged in the aforesaid Writ Petition. In paragraph-9 of the judgment it is observed that when the 2 salary paid to the petitioner therein was a consolidated pay of Rs.4,000/- per month and the person to be engaged through outsourcing is also to be paid a consolidated pay of Rs.4,000/-, there is no reason why the system of middleman is sought to be introduced for the purpose of engaging Additional Computer Programmers. Another observation made by the Court is that in this modern era, generally steps are taken to avoid middleman-ship so as to give maximum benefit to the person who discharges the work and also to avoid exploitation. The State Government being an ideal employer is expected to look after the welfare of the citizens who discharge their duties under the State or the instrumentalities of the State. Relying on the observation of the Court, it was contended by learned counsel for the petitioner that the decision taken in Annexure-8 is contrary to the above observation.
4. Learned Addl. Government Advocate drew attention of the Court to the agreement executed by the petitioner in relation to the contractual appointment and submitted that with completion of the project, employment of a contractual employee comes to an end. He further submitted that from the very beginning a conscious decision had been taken to appoint the Additional Computer Programmers by outsourcing but inadvertently appointments were made by the district authorities through advertisement directly and therefore, the said mistake has been rectified in Annexure-8.
5. Annexure-1 is the letter written to the Collectors of 19 Districts where projects under NREGA have been undertaken. The subject matter of the letter relates engagement of staff at Grama Panchayat/Block Level for smooth execution of NREGA works. The said letter also authorizes the district authorities to engage Additional Computer Programmers on a consolidated pay of Rs.4,000/- per month. The said letter was written by the Commissioner-cum-Secretary to Government of Orissa, Panchayat Raj Department on 25.8.2006 and appointments were made accordingly. Subsequently by letter dated 04.12.2009 the Collectors of the aforesaid districts were informed in Annexure-5 that they should engage Additional Computer Programmers at the Block Level on outsourcing basis and if any such engagement has been made to the contrary, the same should be immediately terminated and fresh engagement will be made on outsourcing basis only. The said letter reads as follows:-
" Government of Orissa
Panchayati Raj Department
No.1-WE-55/08-38377/PR dated 04.12.09
To
All Collectors / All PD, DRDAs,
Sub :- Engagement of Additional Computer Programmer at Block Level for NREGS work.
Sir, I am directed to say that instructions were earlier issued vide this Department letter No.17146 dated 25.08.06 (addressed to Collectors of Phase-I 3 NREGS Districts), letter No.27127 dated 18.08.07 (addressed to Collectors of Phase-II NREGS Districts) and letter No.11547 dated 10.03.08 (addressed to Collectors of Phase-III NREGS Districts) to engage Additional Computer Programmer at the Block Level for NREGS work on outsourcing basis only.
Any such engagement if made to the contrary should be terminated immediately and fresh engagement may be made on outsourcing basis only.
You are therefore, requested to follow this instruction failing which money spent shall be recovered from persons responsible for the same.
Yours faithfully, Sd/-
Commissioner-cum-Secretary "
Therefore, there is some force in the contention of learned Addl. Government Advocate that the State intended to appoint Additional Computer Programmers at Block Level on outsourcing basis from the beginning but there being no mention of appointment through outsourcing basis, in Annexure-1 the District Collectors proceeded for such appointment by way of advertisement. Coming to know about the same, immediately letters were written in phases to all the districts to terminate such appointments and engage afresh by way of outsourcing. The decision in Annexure-5 is only repeated in Annexure-8. In the case of Nilachal Das (supra) the Court examined similar question and held that disengagement of an employee on account of change of policy or abolition of post held by him, is not an action, which is proposed to be taken as a personal penalty, but it is an action concerning policy of the State. Change of policy may have consequence of termination of the services of an employee and such termination does not amount to dismissal or removal within the meaning of Article 311 of the Constitution. The method as to how the post is to be filled up is a policy decision of the Government. Referring to a decision of the Hon'ble Supreme Court in the case of K.Rajendran and others Vs. State of Tamil Nadu and others reported in AIR 1982 Sc 1107, the Court further observed that in modern administration it is necessary to recognize the existence of powers with the legislature or the executive to create or abolish the posts. The volume of administrative work, the measures of economy and the need to streamline the administration, to make it more efficient, may induce the State Government to make alteration in the staffing pattern. It is the executive that lays down the conditions of service subject to the law laid down by the appropriate legislature. The Court comes into picture only to ensure observance of fundamental rights, statutory provisions, rules and other instructions, if any, governing the conditions of service. The Court in the said case, therefore, did not interfere with the decision to disengage Nilachal Das, who was working on contractual basis but because of the observations made permitted the petitioner therein i.e. Nilachal Das to submit a representation.
6. Therefore, the aforesaid decision goes against the argument advanced on behalf of the petitioner and supports the case of opposite parties. Apart from the above law is well settled that in case of contractual employment the services of contractual employee comes to an end on completion of the period of contract. No order of termination is also required in such type of employments. Only when the termination is attached with a 4 stigma the Court may insist upon observance of principles of natural justice. In the present case, the decision to disengage the petitioner and engage persons by way of outsourcing is not a stigma and it is a pure policy decision of the State Government which cannot be interfered with in the Writ Petition. Accordingly, for the reasons stated above, we do not find any merit in the Writ Petition and dismiss the same.
Writ petition dismissed.