Orissa High Court
WP(C)/4310/2016 on 17 July, 2018
Author: S. Panda
Bench: S. Panda
W.P.(C) No. 4310 of 2016
W.P.(C) Nos. 4310 & 5425 of 2016
09. 17.07.2018 Heard learned counsel for the petitioner and
Addl. Government Advocate.
Since common questions are involved in both
the writ petitions and parties are same they are heard
together and disposed of by this common order.
Both the writ petitions filed challenging the
order dated 12.11.2015 passed by the Orissa Administrative
Tribunal, Principal Bench, Bhubaneswar in O.A. No. 261 of
2009.
The applicant has filed W.P.(C) No. 4310 of 2016
with a prayer to modify the impugned order of the Tribunal
to the extent that to regularize his service as Boxing coach
from 8.7.1991 under Director of Sports as Government of
Odisha employee with all consequential service benefits. The
State Authorities have filed W.P.(C) No. 5425 of 2016.
The applicant contended in the original
application that he being a participant of National Boxing
ks
Championship having being selected sponsored to undergo
Diploma Course Training in Coaching (Boxing) during the
year 1990-91 pursuant to advertisement dated 24.4.1990
issued by the Directorate of Sports & Youth Services, Orissa,
Bhubaneswar. On successful completion of the said training,
he had obtained the Diploma certificate issued by the Sports
Authority of India, Netaji Subhas National Institute of
Sports, Patiala. The Directorate of Sports & Youth Services,
Orissa, Bhubaneswar issued engagement letter in July,
1991 for a period of 89 days on daily wage basis @40/- per
day with effect from the date of his joining and posted as
2
boxing coach at Bhubaneswar. The Additional District
Sports Officer, Bhubaneswar will submit his absentee
statement and performance report to the Secretary, Orissa
Council of Sports, Cuttack with a copy to Directorate of
Sports & Youth Services, Orissa, Bhubaneswar. The
payment shall be made by the Orissa Council of Sports,
Cuttack. Accordingly he has joined the said post and
continued till 31st July, 1996 and thereafter relieved from
the Khurda sports office. While continuing as such he was
granted regular scale of pay applicable to the post of coach
since 31st January, 1996. As his service was not regularized
by the Directorate, he has approached the Tribunal in O.A.
No. 2482 of 2000, which was disposed of on 29.8.2007
directing the Director of Sports to consider his
representation and intimate the result thereof. However his
representation was rejected by the Director.
The rejection order reveals that the Boxing
coach post was lying vacant under Directorate of Sports &
Youth Services, Orissa, Bhubaneswar from the date of
promotion of Sri A.K.Pattanaik Boxing coach as District
Sports Officer (Jr.). The said post has already been converted
to discipline of swimming on recruitment of a swimming
coach and his claim for regularization shall be considered if
any boxing coach is created under the Directorate of Sports
& Youth Services, Orissa, Bhubaneswar, on his submission
of candidature of the said post subject to his eligibility and
suitability. It was admitted that the applicant working on
monthly remuneration basis. He was never engaged as a
coach under the Directorate of Sports & Youth Services,
3
Orissa, Bhubaneswar. As malafide intention in the rejection
order, it was stated that he was never engaged under the
Directorate of Sports & Youth Services, Orissa,
Bhubaneswar and question of his regularization does not
arise, he has approached the Tribunal in the aforesaid
original application seeking the above relief in 2009.
A counter affidavit filed in the said original
application taking a stand that as per the policy of the
Government in Sports & Youth Services Department, the
applicant was sponsored for undergoing Diploma in
Coaching (Boxing) and he was granted Rs.2000/- towards
his stipend. The applicant being a Diploma holder in
Coaching (Boxing) was engaged on daily wages basis by the
Directorate of Sports & Youth Services, Orissa,
Bhubaneswar but the wages/remuneration was being paid
regularly to the applicant by the Orissa Council of Sports.
Thus the applicant is a daily wages worker of Orissa Council
of Sports. He has not been engaged against any sanctioned
post. Besides 13 nos. of Jr.Coach posts have been abolished
from 2000 to 2008 and hence, vacancy of boxing coach does
not arise. The General Provident Fund is only applicable to
the Government employees. Orissa Council of Sports is an
autonomous body working for the promotion of sports and
games. Since the applicant is working under Orissa Council
of Sports, he is not entitled to come under GPF scheme.
Thus the grievance of the applicant to treat him as a regular
Government servant under the Directorate of Sports does
not merit consideration.
Since the applicant has contended that he was
4
appointed by the Directorate of Sports & Youth Services,
Orissa, Bhubaneswar as Boxing coach at Bhubaneswr and
service has been controlled and utilized by the Directorate of
Sports & Youth Services, Orissa, Bhubaneswar and after
promotion of Sri. A.K.Pattanaik, the Tribunal directed State
counsel to take instruction and file relevant documents
showing the boxing coach post was converted to swimming
coach. Accordingly the standing counsel submitted
instructions received from the Government of Odisha in
Sports and Youth Services Department by filing letter dated
24.8.2015 enclosing relevant documents which reveals that
the post of boxing coach was created on 30.7.1979. One Sri
A.K.Pattanaik was continued in the said post from
31.10.1979 till 4.11.1986 and no specific order available
showing conversion of boxing coach to swimming coach. As
such the post of boxing coach was lying vacant and
notification dated 24.4.1990 was issued to fill up the said
post. The applicant being selected on completion of Diploma
course in boxing coach. He was given an order of
appointment by the Directorate of Sports & Youth Services,
Orissa, Bhubaneswar vide Annexure-9. He joined the said
post on 8.7.1991 under the administrative control of
Directorate of Sports & Youth Services, Orissa,
Bhubaneswar and has been continuing since then
uninterruptedly. The Tribunal taking into consideration the
decision of the Apex Court in the case of State of
Karnataka and others Vrs. M.L. Keshari and others
reported in AIR 2010 S.C. 2587 directed to regularize the
services of the applicant within a period of three months
5
from the date of receipt of a copy of the order as he has been
working under the control of Directorate of Sports & Youth
Services, Orissa, Bhubaneswar.
The leaned counsel for the petitioner submits
that since the engagement order was issued by the
Directorate of Sports & Youth Services, Orissa,
Bhubaneswar therefore the Tribunal rejected the contention
of the State Authorities that the Orissa Council of Sports is a
autonomous body and applicant was working under the
under the said authority is a misnomer in view of the
engagement order as well as the relieve order which were
issued by the Directorate of Sports & Youth Services, Orissa,
Bhubaneswar and District Sports Officer, Khurda
respectively. He further submitted that the Government has
created the post of Boxing coach in the year 1979 which was
lying vacant and applicant was engaged in the said existing
vacancy since 1991 and continuing as such till date. In
absence of any decision of the Government regarding
conversion/abolition of such post of boxing coach the
contention of the State was rightly discarded by the Tribunal
and directed for regularization of his service as he is working
under the control of Directorate of Sports & Youth Services,
Orissa, Bhubaneswar.
The learned Addl. Government Advocate
reiterated the stand taken before the Tribunal in their
counter affidavit that Orissa Council of Sports, Cuttack is a
autonomous body and they paid the salary to the applicant
and post of boxing coach was converted to swimming coach.
In the writ petition however the learned Addl. Government
6
Advocate has not produced a single paper in support of
same. The Orissa Council of Sports, Cuttack has not issued
any engagement letter in favour of the applicant however
payment of salary was made by them only. That does not
mean that they are the appointing authority rather the order
of engagement was issued by the Directorate of Sports &
Youth Services, Orissa, Bhubaneswar.
In view of the discussions made hereinabove
since no rebuttal materials are available in respect of the
finding of the Tribunal, we are not inclined to interfere with
the same in exercising the jurisdiction under Article 227 of
the Constitution of India. Accordingly, W.P.(C) No. 5425 of
2016 filed by the State-Authorities is dismissed and W.P.(C)
No. 4310 of 2016 filed by the applicant is allowed.
..................
S. Panda, J ....................... K.R.Mohapatra, J