Orissa High Court
Bibek Bishnu Mohanty vs Director General Of Employment & .... ... on 23 July, 2021
Author: Biswanath Rath
Bench: Biswanath Rath
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC No.20377 of 2021
Bibek Bishnu Mohanty .... Petitioner
Mr. N.Lenka, Advocate
-versus-
Director General of Employment & .... Opposite Parties
Training & others.
Mr.S.Ghosh, Addl. Standing Counsel
CORAM:
JUSTICE BISWANATH RATH
ORDER
22.07.2021 Order No.
02. 1. This matter is taken up through video conferencing mode.
2. This writ petition involves the following prayer :
"It is therefore prayed that this Hon'ble Court be graciously pleased to admit the writ application, issue rule NISI in the nature of writ of mandamus or any other writ/writs as deem fit and proper calling upon the opposite parties to show cause as to why the appointment of the petitioner ATO on PTGI basis shall not be treated as contractual ATO in Government ITI Nayagarh against the Mechanical Engineering Trade and after completion of 6 years of service as contractual ATO why he shall not be considered for regularization with all service benefits and why the advertisement dated 24.12.2016 issued by opposite party No.5 and all actions pursuant thereto including the notice dated 8.7.2021 so far as ATOs are concerned shall not be quashed;
In the event of the opposite parties fail to show-cause or show insufficient cause said rule be made absolute.
And further be pleased to pass any order/orders direction/directions as deem fit and proper;Page 1 of 4
// 2 // And for this act of kindness the petitioner shall as in duty bound ever pray."
3. Background of the case involving the post of Asst. Training Officer there used to be a permanent post in the name of Assistant Training Officer in a particular establishment. It appears that after some time on the direction of the Government the post of Assistant Training Officer has been abolished. Fact remains, even though such post has been abolished, persons having qualification to be engaged K.K.Sahoo as Assistant Training Officer have been again recruited by Nayagarh Government I.T.I. against Mechanical Engineering Trade under the nomenclature Part Time Guest Instructor but undisputedly by way of advertisement. Filing the writ petition, it is alleged that even though petitioner has been recruited through institutional committee and posted as Part Time Guest Instructor and is working in such capacity in 2016 even involving an advertisement for said purpose. It is also alleged that in spite of discharging similar duties and in spite of requirement of post of Assistant Training Officer, State Government with an intention to have a secondary treatment to such type of employees is not creating post of Assistant Training Officer and managing such post in the guise of recruitment to the post of Part Time Guest Instructor. On the premises that there is requirement of such permanent post as has been managed through the Part Time Guest Instructor like that of the petitioner. Considering long continuance of the petitioner it is claimed that Government should have taken decision in creation of post of Asst. Training Officer in Nayagarh Government I.T.I to accommodate the petitioner, who has already completed six years of service. It is in the circumstances, the petitioner claims there should be a direction to the competent Page 2 of 4 // 3 // authority for creation of post of Asst. Training Officer in respect of I.T.I. involved herein.
4. Mr.Ghosh, learned Addl. Standing Counsel for the contesting opposite party submitted that it is for the State Government to find out as to whether there is scope for creation of such post or not and it is again dependant on several considerations. Mr.Ghosh, learned Addl. Standing Counsel further submitted that as per the decision of the appropriate authorities the posts are managed by Part Time Guest Instructor and the petitioner cannot seek for mandamus for creation of such post. It is however left open for consideration of the authority.
5. From the rival submission of the parties, this Court finds that earlier such posts were managed by Asst. Training Officer. However, presently these posts are managed through Part Time Guest Instructor. Considering the submission advanced on behalf of the petitioner and the pleadings involved in the writ petition this Court finds that the petitioner has at least demonstrated that there is no difference between the work of Asst. Training Officer and the Part Time Guest Instructor. This Court, here therefore finds that there is prima facie satisfaction to the claim of the petitioner for creation of the post of Asst. Training Officer particularly such posts are continuing over six years. Considering the long continuance of the petitioner, question thus remains, in the event there is long requirement of such post and works are managed presently by temporary arrangement for a long period, amounts to exploitation of employees. State should behave as a model employer and should not adopt such ulterior motive to man such post by temporary hands.
Page 3 of 4// 4 //
6. This Court while deprecating such attempt of the State Authorities, in disposal of the writ petition directs the opposite party No.1 to make an enquiry to find out the nature of work being concluded by petitioner and if it is akin to that of Asst. Training Officer and petitioner meets the required qualification and further considering the long requirement of such post, take a decision for creation of post of Asst. Training Officer. In the event the State revives the post of Asst. Training Officer in I.T.I. considering the manner of recruitment of the petitioner and his long continuance, an appropriate decision be taken for absorption of the petitioner against such post. Till a decision is taken the position of the petitioner as on date shall not be disturbed. The entire exercise shall be completed within three months.
7. With the aforesaid observation the writ petition is disposed of.
8. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a print out of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned Advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's notice No.4798, dated 15th April, 2021.
(Biswanath Rath) Judge Page 4 of 4