Rudrakanta Panda vs State Of Odisha & Others .... Opp. ... on 19 January, 2022

[Cites 7, Cited by 5]

Orissa High Court

Rudrakanta Panda vs State Of Odisha & Others .... Opp. ... on 19 January, 2022

1. The present writ petition has been registered on transfer of O.A. No.2430 (C) of 2015 to this court upon abolition of Odisha Administrative Tribunal, Cuttack Bench, Cuttack. The Petitioner, who is working as a Data Entry Operator (in short ' the D.E.O.') // 3 // in the office of Opposite Party No.1 as an applicant has filed the Original Application seeking for a direction to the Respondent (Opposite Parties) in the present writ petition to treat the applicant-Petitioner as contractual employee and subsequently take steps to regularize the service as has been done in the case of similarly placed employees working in the Department of Higher Education Department, Animal Husbandry and Fisheries etc.

2. The factual backdrop of the case, in a nutshell, is that the Petitioner, who is a Bachelor in Arts and Diploma in PGDCA, was initially appointed as Data Entry Operator through a manpower outsourcing agency called 'M/s. Mind Mart'. While continuing as such, a requisition was made by the Opposite Party No.1 to the said out sourcing agency for deployment of Data Entry Operator. Pursuant to the said requisition letter, the proprietor of 'M/s. Mind Mart' vide letter dated 08.12.2007 inform the Opposite Party No.1 enclosing Bio-Data of many candidates including that of the Petitioner for necessary action.

3. The Petitioner was engaged by the Opposite Party No.1 as Data Entry Operator. The Petitioner joined in duty by submitting his joining report on 08.10.2007. In course of his engagement, the Petitioner was assigned with different works by issuing office orders by the Opposite Party No.1. Pursuant to office order, the Petitioner joined in the State PPP Cell of the Planning and Coordination Department as Contractual Data Entry Operator. Further vide letter dated 06.06.2012 an office order was issued directing the Petitioner to work as D.E.O. under the Joint Director and Deputy Director. The Petitioner was working as // 4 // D.E.O. under the Deputy Director under the Planning and Coordination Department. While working as such, the pay of the Petitioner had been enhanced to Rs.5,200/- plus Grade Pay Rs.1,900/- per month w.e.f. 12.08.2014 with the concurrence of the Finance Department vide Circular dated 06.12.2014.

4. Although the Petitioner was working under the Opposite Party No.1 on being engaged through service provider agency, he was getting his salary from the Non-Plan Budget of the State Government from Opposite Party No.1 office. It has been further stated in the writ petition that the Finance Department had granted sanction for engagement of the Petitioner and vide letter No.33679 dated 06.12.2014 the Finance Department Government of Odisha had instructed all the Departments for disbursement of remuneration to all contractual employees. Further, the General Administrative Department vide letter No.22286 dated 13.09.2006 had directed all concerned to grant regular leave in favour of the D.E.O.s those who have been engaged through service provider agency.

5. It has been further contended that vide letter dated 26.05.2014, all departments of the Government of Odisha were asked to furnish the gradation list and other service particulars of all contractual employees for regularization of their services. However, since the Petitioner was not treated as contractual employee, his name was not sponsored. In this regard, it is further contended that although the names of similarly situated employees of other departments under the Government of Odisha have been recommended for regularization of their services, // 5 // however, the name of the petitioner was not sponsored by the Opp. Parties for regularization of his service.

6. The General Administrative Department, Government of Odisha, in exercise of power under Article 309 of the Constitution of India had issued a Notification dated 12.11.2013 notifying the Rules which is call as "the Odisha Group C and D posts (Contractual Appointments) Rules, 2013" and the Petitioner comes under the category-2 i.e. contractual engagement through the manpower provider agencies with the concurrence of the Finance Department. It is also contended on behalf of the Petitioner that the Petitioner has completed more than six years of continuous service by the time the aforesaid rule came into force. Therefore, the Petitioner is eligible to be regularized as D.E.O.

7. A counter affidavit has been filed on behalf of the Respondent-Opposite Party No.1. In the said counter affidavit, it has been stated that the Petitioner's service was placed under Opposite Party No.1 after his name was given by the manpower service provider agency i.e. M/s. Mind Mart on execution of agreement between the Planning and Convergence (P & C Department) and the said manpower service provider agency. As per the terms and conditions laid down in the said agreement, the Petitioner cannot be treated as a contractual employee and cannot claim for his regularization of service under the Government. It is further contended in the said counter affidavit that the Petitioner reported to the concerned Department for work as D.E.O. on being nominated and sponsored by the manpower service provider agency.

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8. Though the Opposite Party No.1 in the said counter affidavit has disputed the enhancement of pay as claimed by the Petitioner in his application and further it has been stated that the Petitioner was getting a total sum of Rs.6,927/- included EPF and ESI and the same was being released as per Finance Department Circular dated 11.09.2007 since the month of March, 2013 in favour of service provider agency. It is further stated that such pay was being revised from time to time including revision of service tax and EPF contribution.

9. In Paragraph-8 of the counter affidavit, it has been stated that the Home Department being the Cadre Controlling Department for D.E.Os., vide its letter No.20209 dated 26.05.2014 had sought four gradation list etc. of D.E.Os engaged on contractual basis from all departments for regularization of their services. However, since the applicant had neither been appointed on contractual basis nor a gradation list had been prepared for him and the fact that the Petitioner has been sponsored by a Manpower Service Providing Agency, the name of the Petitioner could not be considered for regularization of his service pursuant to the aforesaid letter. Therefore, concerned department pursuant to the aforesaid letter of the Home Department did not forward the details of the Petitioner to the Home Department for regularization of his service. It has been further stated in the counter affidavit that Rule-4(b) of the Odisha Group C and Group D posts (Contractual Appointment) Rules, 2013 recognize the services of persons who have been engaged as D.E.Os. on being sponsored by the manpower service provider agencies which includes the present Petitioner also. It has been // 7 // further stated that Rule-8(a) of the aforesaid rules provides for special relaxation and benefits to such category of employee in the event they apply for Group C and Group D posts.

10. In reply to the specific pleadings in the writ petition that similarly situated persons have been regularized by other departments, the Opposite Parties have preferred to remain silent in that regard in their counter affidavit filed them. Further, Opp. Parties have taken a stand that the Petitioner not being a contractual employee under the Opposite Party No.1 and he having been appointed by an outsource manpower service provider agency like M/s. Mind Mart, his claim for regularization of service is not tenable in law. The Opposite Parties have also taken a stand that the engagement of the Petitioner and similarly situated persons being on part time basis, the same does not confer any right on him to claim for regularization of his service. The Opposite Parties have also taken a stand in the counter affidavit that every appointment to public posts or office should be made upon advertisement, so as to enable all eligible person to compete on merit and as such the Petitioner and similarly situated persons cannot avail of the protection under Articles 14 and 16 of the Constitution of India.

WPC(OAC) No.2429 of 2015

11. The present writ petition has been reregistered upon transfer of O.A. No.2429(C) of 2015 to this Court from Odisha Administrative Tribunal after abolition of the Tribunal.

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12. The factual back drop of the present writ petition, in a nutshell, is that this is almost identical to the WPC(OAC) No.2430 of 2015. In the present case, the Petitioner who was working as DEO in the Planning and Coordination Department, Government of Odisha (Opposite Party No.1) with an identical prayer as has been made in the WPC(OAC) No.2430 of 2015. In reply to the pleading in the writ petition, the Opposite Party No.1 has filed an identical counter affidavit as has been filed by them in WPC(OAC) No.2430 of 2015. To avoid unnecessary repetition of facts, such details are not narrated here.

WPC(OAC) No.2431 of 2015

13. The Petitioner as an applicant initially filed O.A.No.2421(C) of 2015 before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack with a prayer similar to that in WPC(OAC) No.2430 of 2015. Upon abolition of Odisha Administrative Tribunal aforesaid Original Application has been transferred to this Court and reregistered as WPC(OAC) No.2431 of 2015. Here in this case also the very same department of the Government of Odisha is involved and the pleadings in the writ petition as well as counter affidavit filed in this case are almost identical to that of WPC(OAC) No.2430 of 2015. To avoid unnecessary repetition of facts, such details are not narrated here.

WPC(OAC) No.2432 of 2015

14. The Petitioner as an applicant had initially filed O.A.No.2432(C) of 2015 before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack with a prayer similar to that in WP C (OAC) No.2430 of 2015. Upon abolition of Odisha // 9 // Administrative Tribunal, the aforesaid Original Application has been transferred to this Court and reregistered as WP C (OAC) No.2432 of 2015. Here in this case also the very same department of the Government of Odisha is involved and the pleadings in the writ petition as well as counter affidavit filed in this case are almost identical to that of WP C (OAC) No.2430 of 2015. To avoid unnecessary repetition of facts, such details are not narrated here.

WPC(OAC) No.2434 of 2015

15. The Petitioner as an applicant had initially filed O.A.No.2432(C) of 2015 before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack with a prayer similar to that in WP C (OAC) No.2430 of 2015. Upon abolition of Odisha Administrative Tribunal, the aforesaid Original Application has been transferred to this Court and reregistered as WP C (OAC) No.2432 of 2015. Here in this case also the very same department of the Government of Odisha is involved and the pleadings in the writ petition as well as counter affidavit filed in this case are almost identical to that of WP C (OAC) No.2430 of 2015. To avoid unnecessary repetition of facts, such details are not narrated here.

16. Since the factual backgrounds of the aforesaid writ petitions are identical, the prayer made therein are also similar, these five writ petitions are being taken up together for hearing.

17. Heard learned counsels for the Petitioners and learned Additional Government Advocate for the State. Perused the // 10 // records and judgments cited by the respective parties in support of their contentions.

18. Learned counsel for the Petitioners submitted that the Petitioners were initially engaged as Data Entry Operator by the Planning and Coordination Department, Government of Odisha. The names of the Petitioners were sponsored by the manpower service provider agency, namely, M/s. Mind Mart. The Petitioner in the WP C (OAC) No.2430 of 2015 was initially appointed on 08.10.2007 and the other Petitioners, similarly, were also engaged by the Planning and Coordination Department, Government of Odisha as D.E.Os almost at the same time when the Petitioner in WP C (OAC) No.2430 of 2015 was appointed. Since the date of their initial appointment, these Petitioners have been discharging their duties regularly and diligently. By the turn of the century, the Government of Odisha started transformation of all the departments and offices and gradually adopted computerization. As a result of which a large number of D.E.Os., who are having required qualification and degree in computer applications were engaged by the Government Department for day-to-day work. The nature of work these D.E.Os were performing, the same are perennial in nature.

19. It is further submitted by learned counsel for the Petitioners that with the recruitment of D.E.O.s, the Government of Odisha stopped the recruitment of Typist and Junior Stenographer and such posts remained vacant or were abolished by the Government of Odisha. As a result of massive computerization in the first decade of the present century, the // 11 // Government of Odisha engaged a large number of data entry operators without preparing and adopting a clear policy for such recruitment. Many qualified persons were hired through manpower service provider agency on contractual basis. Such employees were working for years together to run the Government Department and Offices. It is mentioned here that since the D.E.Os. were engaged on contractual basis through the manpower service provider agency, they were working in Government Department for a very meager salary/remuneration. So to say these D.E.Os. were being exploited by the Government Department in connivance with the manpower service provider agencies.

20. In the absence of a clear policy to regulate the engagement of such D.E.Os. by the Government of Odisha, the Petitioners and similarly situated many other persons were exploited in the hands of respective departments and the manpower service provider agencies. Although the nature of work which they were performing are perennial in nature and the Petitioners were performing their duties continuously and regularly like any other regular employee of the Government Department. However, the Petitioners are being exploited for more than decade now by extracting work from them and in return the petitioners were being paid a paltry consolidated sum.

21. It is further submitted by the learned counsel for the Petitioners that the State Government, its departments and other Government agencies as model employers should have adopted/adjusted to the massive computerization and // 12 // transformation of the work system in the Government offices and accordingly, the Government should have prepared a clear cut policy well in advance to recruit the D.E.Os. by following the provisions of rules and regulations. It is further submitted that it is only in the year 2013, the Government of Odisha in its General Administrative Department published Notification No.32010/GEN/12/12/2013 formulating the Odisha Group C and Group D post (contractual appointment) Rule, 2013 for regulating recruitment and condition of service of persons appointed on contractual basis for the Group C and Group D posts. The said rules cover persons / employee working as D.E.Os in the Government Department. Rule-4(b) recognizes contractual engagements made through manpower service provider agencies with the concurrence of the Finance Department. Learned counsel for the Petitioners submits that the Petitioners in the above 4 to 5 writ petitions have been engaged on being sponsored through manpower service provider agencies with the concurrence by the Finance Department, therefore, they are covered under the aforesaid Rules, 2013 and as such, they are eligible for regularize in service.

22. It is further submitted by the learned counsel for the Petitioners that all the Petitioners involved in the above noted five writ petitions have been working as D.E.Os for over a decade in the Opposite Party No.1 Department. Similarly placed persons engaged by other Departments of Government of Odisha like Higher Education Department and Animal Husbandry and Fisheries Department etc. have been regularized in the meantime.

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23. In such view of the matter, it is submitted by leaned counsel for the Petitioners that the Government cannot adopt pick and chose method and as such it is not open to different departments under one Government to adopt different recruitment methods for similarly placed employees. As such, it is submitted by learned counsel for the Petitioners that the conduct of the Opposite Party No.1 is in clear violation of the provisions of Articles 14 and 16 of the Constitution of India.

24. Per contra, learned Additional Government Advocate appearing for the Opposite Parties submits that the Petitioners were engaged on being sponsored by M/s. Mind Mart manpower service provider agency on outsource basis. The Petitioners have been engaged pursuant to an agreement entered into by Government, Opposite Party No.1, and the said manpower service providing agency. No valuable right has accrued in favour of the Petitioners to claim for regularization of their services. It is further submitted that regular recruitment procedure for selection of candidates have not been followed while recruiting the Petitioners as D.E.Os. It is further submitted by learned Additional Government Advocate that no doubt the Petitioners are covered under the Rules, 2013, they are eligible to be regularized under Rule 8. Further, it was argued by learned Additional Government Advocate that the Petitioners have been engaged on part time basis and as such the same confers no right upon them to claim for regularization of their services. In the said context the learned Additional Government Advocate relied upon a catena of judgments of this Court as well as Hon'ble Supreme Court of India.

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25. Having heard the learned counsels for the parties and after careful examination of records, this Court finds that the Petitioners are being exploited by the manpower service provider agencies in collusion with the Government Department and other Government Agencies. Although the Petitioners, since the date of their initial appointment, have been working as D.E.Os. and discharging their duties diligently, the concerned Department of the Government in the absence of any clear policy has been engaging them continuously to perform a routine nature of work. It is needless to say here that the nature of work the petitioners have been performing as D.E.Os. are perennial in nature and their services are most likely to be continued in future also.

26. It is true that the Government has freedom and liberty to engage anybody on contractual basis against the temporary or Ad hoc work by entering into an agreement with an outsider agency or any individual, however, the same is permissible under the law for a temporary period may be for a period ranging from two to three years. Whereas in the present case, the above named Petitioners have been working continuously without any interruption for more than a decade. Moreover, after working for such a long time, the Petitioners have become over aged to apply for their engagement to any other employer. Such continuous and long engagement has also given rise to a legitimate expectation by the present Petitioners that subsequently, their services will be regularized by the Government and they will not be thrown out at the fancies and caprices of some Government officers. The Opposite Parties have committed an illegality in not recruiting people by adopting clear policy and by following valid selection // 15 // procedure. Further, while continuing with such illegalities as of now, they are trying to take advantage of the illegalities committed by them and using the same to defeat the Petitioners claim for regularization of their services.

27. The learned Additional Government Advocate appearing for the Opposite Parties lays emphasis on the fact that the Petitioners have been engaged pursuant to an agreement by the Opposite Party No.1 and the fact that the petitioners have been engaged on being sponsored by manpower service provider agency i.e. M/s. Mind Mart. The so-called agreement by the Opposite Party No.1 with the manpower service provider agency is being used as a tool to perpetrate illegality and to avoid payment of legitimate dues payable to the petitioner and similarly situated persons. No doubt contractual appointment by Govt. against adhoc, stop gap arrangements, temporary vacancies are permissible under the law, however, continuing with such practice over period of almost one decade amounts exploitation of work force. Keeping in view the conduct of the Opp. Parties, the nature of work and the remuneration paid to such employees, I am of the considered view that the method adopted by the Govt. of Odisha in engaging DEOs is hit by Section 25(T) of the Industrial Disputes Act, 1947, which specifically prohibits unfair labour practice by any employer, whosoever he may be including the Government agencies. Since the contract/agreement relied upon by learned Additional Government Advocate is hit by provision of Section 25(T) of the Industrial Disputes Act, 1947, the same is also not recognized as a valid agreement / work contract under the Indian Contract Act, 1872. Section 23 of the Indian Contract Act // 16 // prohibits any consideration or object of an agreement which is otherwise forbidden by law or of such a nature that, if permitted, the same would defeat any provisions of law or involves or implies injury to the person or property of another or the same is immoral or opposed to public policy. In the present case, considering the nature, the purpose, and the intention of the parties under the said contract this Court does not have any hesitation to hold that the agreement, as has been entered into in the present case, is bad in law and hit by Section 23 of the Indian Contract Act, 1872. The only purpose of such contract, which can be inferred in the facts and circumstances of the present case, is to indulge in unfair labour practice and to exploit the employees. In a welfare state like that of ours, the role of the State as a model employer is to ensure and promote social justice and to ensure that the citizens are not exploited in any manner particularly in the matter of employment. In the present case by using a subterfuge by the name of M/s. Mind Mart, the Opposite Parties have made an attempt to disown their legal obligation and Constitutional duty. Thus, such conduct of the Opposite Party No.1 has resulted in exploitation of work force and unfair labour practice by a model employer like the State. Such conduct on the part of the either Opposite Party No.1 or any other State agency is deprecated by this Court. Further the conduct of Opposite Party No.1 in justifying their action in the present case by taking resort to hyper technicalities is deplorable.

28. On a careful examination of the facts presented before this Court and on a careful scrutiny of the pleadings of the respective parties, this Court is of the considered view that the duties and // 17 // responsibility that has been discharged by the Petitioners as D.E.Os are akin to the duties and responsibility that are being discharged by regular State Government employees. Further the nature of work the petitioners are performing are perennial in nature. The only exception is that the Petitioners are paid their salary/remuneration in the shape of consolidated sum through manpower service provider agency. It is apt to mention here that similarly situated employees had earlier approached before the Odisha Administrative Tribunal in O.A. No.2170 (C) of 2015 and batch of other cases (Jatin Kumar Das vrs. State of Odisha and others). The Odisha Administrative Tribunal after hearing learned counsel for the parties allowed the prayer for regularization of the applicants in those cases, who were working as D.E.Os by judgment dated 17.05.2017. The judgment dated 17.05.2017 was challenged before this Court by filing W.P.(C) No.6661 of 2018 (State of Odisha and others vrs. Jatin Kumar Das and others). A Division Bench of this Court after hearing the learned counsel for both the sides by order dated 10.05.2018 dismissed the writ petition filed by the State Government and confirmed the order dated 17.05.2017 passed by the learned Administrative Tribunal. Further the order dated 10.05.2018 passed in W.P.(C) No.6661 of 2018 was assailed before the Hon'ble Supreme Court of India by the State Government in Special Leave to Appeal (C) No.18642 of 2018. However, the same was dismissed by the Hon'ble Supreme Court of India by order dated 06.08.2018. It is pertinent to mention here that the Odisha Administrative Tribunal while deciding the aforesaid case has categorically held that Odisha Group C and Group D (Contractual Appointment) Rules, 2013 is not applicable to D.E.Os., rather they are covered // 18 // under the resolution dated 17.09.2013, original resolution dated 16.01.2014 issued by the General Administrative Department as per the observation of the Finance Department. Since the appointment in the aforesaid case were made with the concurrence of the Finance Department against posts which were exclusively created by Government in Finance Department by abolition of equal number of regular posts, as such the applicants in the said case having requisite qualification are entitled to regularization as per resolution dated 17.09.2013.

29. This Court in a similar matter bearing W.P.(C) No.16906 of 2020, in the case of Rashmi Rekha Dash and others vrs. State of Odisha and others, while dealing with regularization of service of contractual D.E.Os. engaged by Govt., by an elaborate judgment dated 23.11.2021 has allowed the writ petition by holding that the Petitioner is entitled to get the benefit of contractual payment as per resolution dated 17.09.2013 and thereafter may be brought over to the contractual establishment in view of 2103 rules governing field.

30. Data Entry Operators (DEOs) were engaged by almost all departments of the Govt. of Odisha over the years to perform almost the similar nature of work in Govt. departments/offices. These DEOs were allowed to continue in service for more than a decade. Considering the regular nature of work, the Govt. of Odisha has been creating posts of DEOs by abolishing equal number of old posts of typists, stenographer etc. Some of these DEOs have either been regularized by the concerned departments directly and some have been regularized pursuant to court orders.

// 19 // Since the petitioners are similarly situated employees, they are also entitled to the benefit given to similarly situated other employees.

31. The question now arises as what does the term "similarly situated" means. Such a question has been answered by the Hon'ble Supreme Court of India in the matter of in State of Gujarat v. Shri Ambica Mills ((1974) 4 SCC 656 : AIR 1974 SC 1300) held thus:

"A reasonable classification is one which includes all who are similarly situated and none who are not. The question then is: what does the phrase 'similarly situated' mean? The answer to the question is that we must look beyond the classification to the purpose of the law. As reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law".

32. One of the main plank of argument on behalf of the petitioners is that they have been discriminated against in violation of Article 14 of the Constitution of India. Different Departments of the Govt. cannot adopt different methods in respect of similarly placed employees. While some Departments have regularized the services of contractual DEOs engaged by them, some have declined to do so. Although the nature of work, eligibility, circumstances remains the same. Article 14 of the Constitution of India condemns discrimination not only by a substantive law but also by a law of procedure. In the present context it is apt to quote a paragraph from the judgment of the Hon'ble Supreme Court of India in the matter of Re. Special Courts Bill reported in AIR 1979 SC 478: (1979) 1 SCC;

// 20 // "The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same".

33. In view of the aforesaid facts and circumstances, analysis of the legal position governing the field on contractual appointments and keeping in view the fact that similarly placed DEOs engaged by other departments of the Govt. on contractual basis have been regularized in the meanwhile, this Court is of the considered view that the Petitioners in the above noted writ petitions are also entitled to get the benefits as has been given to similarly situated other employees by different departments of the State Government particularly in the light of the decision in the case of Jatin Kumar Das (supra) and Rashmi Rekha Dash (supra).

34. Accordingly the present writ petitions are allowed with a direction to the Opposite Parties to consider the case of the Petitioners in the light of the law laid down in the case of Jatin Kumar Das (supra) as well as Rashmi Rekha Dash (supra) within a period of three months from today and if the Petitioners are entitled to get the benefits as has been given to the similarly situated employees, their services may be regularized as has been done in the case of similarly situated other employees and they // 21 // may be paid other consequential service benefits within the aforesaid stipulated time.

The writ petitions are allowed. However, there shall be no other as to cost.

(A.K. Mohapatra) Judge Jagabandhu Behera, P.A.

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