Orissa High Court
Ganesh Chandra Patra vs State Of Odisha & Others .... Opposite ... on 6 September, 2024
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Sep-2024 18:50:15
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.989 of 2020
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Ganesh Chandra Patra .... Petitioner(s)
-versus-
State of Odisha & Others .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Prasanta Ku. Mishra, Adv.
For Opposite Party (s) : Mr. Pravakar Behera, Adv. for RTO
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-11.07.2024
DATE OF JUDGMENT: -06.09.2024
Dr. S.K. Panigrahi, J.
1. The petitioner has filed this petition challenging the order No.9131/T dated 20.12.2019 by which the Government of Odisha Commerce and Transport Department in the guise of F.D. O.M. dated 31.08.2019 has conveyed the sanction for abolition of 4 vacant posts of Group-D of the office of R.T.O., Chandikhole ignoring the fact that the Petitioner is continuing against one such vacant post of Group-D on D.L.R. basis since 1997. The petitioner also challenges the para-4(b) of O.M. dated 31.08.2019 of Finance Department, Odisha as the same has been issued Page 1 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Sep-2024 18:50:15 without applying mind in order to operate those post through outsourcing agencies despite the fact that his claim for regularization of his service against Group-D vacant post under regular establishment is pending.
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case are as follows:
(i) On 16.01.1997, the Petitioner was initially engaged in Class-IV vacant post (Group-D) on D.L.R./Ad hoc basis in the office of the R.T.O., Chandikhole and thereafter with some artificial breaks, he is continuing as such till date.
(ii) With due approval of Transport Commissioner, Odisha, Cuttack, vide order No. 122 dated 15.01.1997, the Petitioner was appointed as Peon for a period of 44 days against suspension vacancy of Sri Satyabadi Samal in scale of pay of Rs. 750-12-870-EB-14-940/- with usual D.A. and other allowances as admissible from time to time with the stipulation that the appointment is purely temporary and can be terminated at any tire without prior notice or assigning any reason thereto. Pursuant to the aforesaid order of appointment the applicant had joined in the post on 16.01.1997 and continued. While continuing as such he was retrenched finding no way out and he had submitted series of representation for his re- engagement as retrenched candidate.
(iii) The O.P.No.4, vide its letter No.1792 dated 23.05.2001 had requested the O.P.No.3 for approval of appointment of the Petitioner being the retrenched employee of his establishment as Process Server or orderly Page 2 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Sep-2024 18:50:15 Peon on adhoc basis against the vacant post of Process Server since the office is facing problems in day to day official work due to want of Process Server.
(iv) Thereafter, the O.P.No.4 vide its order No.553 dated 16.01.2002 had engaged the petitioner being a retrenched candidate as Process Server against existing vacancy on adhoc basis for a per period of 44 days and thereafter, he has been allowed to continue against class-IV vacant post with one day artificial break in a regular manner. Now, pursuant to order vide memo No. 4292 dated 13.12.2019 of O.P. No.4, he is counting as such against vacant post of Group-D and his period of appointment would be over on 28.01.2020.
(v) While continuing as such, petitioner had approached several times for their absorption against regular vacant post of Group-D. When the matter stood thus, the O.P. No.4 vides his letter No. 5447 dated 29.09.2015 had requested the O.P.No.3 to approve for regularization of service of the petitioner in the existing vacant post of Process server (Group-D) as he has been discharging his duty satisfactorily as process server since 1997.
(vi) The Petitioner submits that for regular absorption of the petitioner, the O.P.No.3 vide his letter No. 8378/TC, dated 10.07.2017 has asked the O.P.No.4 information on 4 points about the Petitioner and pursuant to aforesaid letter dated 11.07.2017 of O.P.No.3, the O.P. No. 4 vide his letter No. 2357 dated 11.07.2017 had furnished information to the O.P.No.3 mentioning inter-alia that petitioner is engaged as Process Page 3 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Sep-2024 18:50:15 Server temporarily on 44 days basis since 1997 against the sanctioned post carrying scale of pay of P.B Rs. 4750-14680/- with G.P. of Rs. 1500/- with usual D.A. as admissible.
(vii) The O.P.No.3 vide his letter No.12098/TC dated 22.10.2018 has asked the O.P.No.4 to supply information on position of peon, Sweeper-cum- Choukidar and Data Entry Operator. Pursuant to letter of O.P.No.3, the O.P.No.4 vide its letter No. 4575 dated 05.11.2018 had supplied the information again stating therein that the petitioner is continuing as Peon cum Process server on ad hoc basis.
(viii) As the matter stood thus, he approached several times to his authority to regularize his service in the vacant post of peon/Process Server on the ground that he has been engaged against regular and sanctioned vacancy of Group-D post on adhoc basis since 1997 and he is continuing as such till date. The office is being managed by engaging him on adhoc basis.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions:
(i) The petitioner has been continuing in Group-D service against the existing vacancy on adhoc basis for a considerable long period in the same vacant post. In view of settled position of law decided in the case of State of Karnataka and others v. Umadevi (3)1 and State of Karnataka and others v. M.L. Keshari,2 the O.Ps should have 1 2004 (4) SCC 1 2 (2010) 9 SCC 247 Page 4 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Sep-2024 18:50:15 regularized the service of the Petitioner against the vacant post of Group-D under regular establishment.
(ii) The O.P.No.2 had issued the Office memorandum vide No.29913/F dated 31.08.2019 in the subject of submission of Annual Establishment Review Report (AER) in HRMS. The aim of the memorandum is to assess by administrative Departments regarding continuance of sanctioned posts required for delivery of public service and termination of some posts which are otherwise found surplus/redundant over the period of time. The Administrative Departments are required to make an in-depth analysis regarding the continuance of sanction posts available with them and recommend for termination on the basis of principles mentioned in sub-Para (a), (b) and (c) of para-4 of the office memorandum. In regard to termination of Group-D vacant posts, the Finance Department without going into the actual stock of the facts arbitrarily in Para-4(b) has laid the principle to the effect that all Group-
D post remaining vacant in any Department/Heads of Department/Head of Office would be identified for termination in the changing context of outsourcing and that all such posts would be indicated for termination in schedule-IA, Schedule-IIA and Schedule- IIIA of AER. As per Para-5 O.M., the Administrative Department are required to furnish Schedule-IIIA (Annexure- 3) regarding termination of redundant/surplus posts in respect of District Offices etc in time to Finance Department. Nowhere in the O.M has it been instructed/ Page 5 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Sep-2024 18:50:15 empowered the Administrative Department to abolish the existing vacant Group-D posts unilaterally.
(iii) As evident from para-4(b) of Finance Department O.M. dated 31.08.2019 the intention of O.P.No.2 is to operate the Group-D vacant posts through outsourcing but while issuing the said O.M. the O.P.No.2 has not taken into consideration the future of D.L.R employees including the petitioner who are continuing against those vacant posts for a considerable long period i.e. more than two decades.
(iv) When the petitioner is expecting for regular absorption of his service against Group-D vacant post, the O.P.No.1 referring to O.M. No. 29913/F dated 31.08.2019 of O.P. No.2 has unilaterally issued the impugned order/letter vide No.9131/T dated 20.12.2019 in the subject of termination of surplus/ redundant posts in the office of the Transport Commissioner, Odisha, Cuttack (O.P.No.3) and its sub-ordinate offices including the office of the O.P.No.4. By the said impugned order/letter dated 20.12.2019, the O.P.No.1 though not empowered has conveyed sanction for abolition of 109 different categories of posts in the office of the O.P.No.3 and sub-ordinate offices with immediate effect. More specifically, in respect of the office of the O.P.No.4, the O.P.No.1 has conveyed sanction for abolition of 3 numbers of Group-D posts (Peon, Choukidar cum-Sweeper and Process Server) and one post of Treasury Sarkar though against one such vacant Group-D posts, the present petitioner is continuing on adhoc basis. In the event, the post against which the petitioner is working is abolished and the office is managed Page 6 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Sep-2024 18:50:15 by outsourcing basis he will face termination/retrenchment from service after serving for such a long time as ad hoc employee.
(v) The O.P.No.4 vide his letter No. 4395 dated 21.12.2019 has requested the O.P.No.3 for engagement of one Process Server and one Choukidar- cum-sweeper in his office as the aforesaid two posts of his office are lying vacant since long and two persons (petitioner and another) have been engaged to work against those posts as necessary for the functioning of the office.
(vi) Pursuant to the impugned order dated 20.12.2019, the O.P.No.4 is contemplating to disengage the petitioner from service but till date no adverse order has been passed by him, as such, he is continuing in the office of the O.P. No.4 against a vacant Group-D post till date. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
4. Per contra, learned counsel for the Opposite Parties earnestly made the following submissions in support of his contentions:
(i). The petitioner was continuing as Process Server/Peon temporarily on ad hoc basis in the office of the RTO, Chandikhole w.e.f. 16.01.1997 on the condition that the appointment is purely temporary and terminated at any point of time without giving any notice and hence, he cannot claim regularization as he was continuing on temporary basis.
(ii). The petitioner had made several representations before Opposite Party No.4 for his absorption against regular vacancy under regular establishment, Opposite Party No.3 vide Letter No. X-29/2017 1389/TC dated 01.02.2018 requested Opposite Party No.1, after considering all Page 7 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Sep-2024 18:50:15 the relevant facts and law the claims have been rejected by the opposite parties
(iii). The petitioner was continuing on daily wage labourer and they have no right for regularization as their appointments have not been made on regular basis and made only on daily wages basis. Law is well settled in catena of decisions wherein this Court has held that the persons who are appointed on daily wages basis and not working on regular basis they cannot be absorbed on regular basis or made permanent. Merely on the strength of long continuance, if the original appointment was not made by following a due process of selection as envisaged, they are not entitled to get any benefit for regularization. It has also been held that if the appointment itself is infraction of the rules or if it is in violation of the provision of the Constitutions illegalities cannot be regularized and the decisions relied upon by the petitioner is clearly distinguishable and not applicable to the present case.
(iv). The Govt. of Odisha Finance Department vide its Memorandum No. 29913, dated 31.08.2019 in submission of Annual Establishment Review Report in HRMs categorically stated in para-4 regarding
a) Termination of redundant posts
b) Termination of vacant Group-D posts
c) Termination of post remaining vacant for 5 years.
(v). The Govt. of Odisha, Commerce & Transport (T) Department issued a letter vide Letter No. 9131, dated 20.12.2019 to the Accountant General (A&E), Odisha, Bhubaneswar regarding termination of Page 8 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Sep-2024 18:50:15 surplus/redundant post in th Transport Commissioner, Odisha, Cuttack and its subordinate offices specifically conveying the sanction for abolition of 109, different categories of posts in pursuant to Finance Department Office Memorandum No. 29913/F, dated 31.08.2019 with immediate effect.
(vi). The appointment in the State and its instrumentalities should only be in accordance with the rules and procedure relating to regular recruitment. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hall mark and the constitution has provided also for affirmative action to ensure that unequal's are not treated as equals. Thus, any public employment has to be in terms of the constitutional scheme and equality of opportunity in public employment is the basic feature of the constitution.
(vii). This is a policy decision of the State Government and in pursuance to Finance Department Office Memorandum No. 29913/F, dated 31.01.2019 under Annexure-6, the opposite party No.1 convey the sanction for abolition of surplus/redundant post in the office of the Transport Commissioner, Odisha, Cuttack and its sub-ordinate offices with immediate effect. This is a policy decision of the State Government as their services has no longer been required and hence, the same is legal, justified and in accordance with law.
(viii). Moreover, the facts stated by the petitioner is false, as in pursuance to Finance Department Office Memorandum No. 29913/F, dated 31.08.2019 Page 9 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Sep-2024 18:50:15 and Letter No. 9131/T, dated 20.12.2019 of Joint Secretary to Govt. in Commerce and Transport (T) Department, Odisha, Bhubaneswar, the petitioner was engaged temporarily under contractual basis are hereby disengaged from his duties from the office of Opposite Party No.4 w.e.f 21.12.2019 A.N. due to abolition of post. The petitioner has deliberately suppressed the fact of his disengagement in the writ application and hence the writ application is liable to be dismissed on the ground of suppression of material facts.
IV. COURT'S REASONING AND ANALYSIS:
5. Having heard learned advocates appearing for the sides and having gone through the material on record, it appears that before dealing with the central issue raised in the petition, following few facts are worth to be taken note of:-
a. From the record, it is clear that the petitioner had been contractually appointed on purely temporary basis and terminable at any time. Therein, it was explicitly mentioned that the order of engagement does not construe a basis for claiming any regular or permanent appointment in future.
b. The letter of appointment further indicates that the petitioner(s) had been appointed for a specific term; extendable on term-to-term basis. c. It is indicated that the petitioner was paid a consolidated remuneration of against his appointment. It is pertinent to note that the petitioner was not paid wages or salary but a fixed honorarium every month for the period of work.
Page 10 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 06-Sep-2024 18:50:15 d. At the time of extension of the concerned period of appointment, it was reiterated that the petitioner's services were contractual only and that extension of contract does not construe a basis for claiming any regular or permanent appointment in future.
6. If the aforesaid factors are weighed in the scales, it is clear that the factors which make the contract one for service outweigh the factors which would point in the opposite direction. First and foremost, the intention of the parties is to be gathered from the terms of the contract.
The terms of the contract make it clear that the contract is one for temporary service, and that with effect from the date on which the contract ends, the service of the petitioner shall be terminable provided it is not regularized first. Secondly, the remuneration is described as consolidated pay, and consistent with the position that the petitioner is a contractual employee. Thirdly, his services cannot be terminated in the usual manner as the other regular employees of the organisation but are terminable at anytime. The fact that the petitioner has done his job with utmost honesty and would not necessarily lead to the conclusion that, de hors all other factors, the contract is one of contractual service.
7. The petitioner does not have any vested right to continue in the said post. Since the appointment was purely on contractual and ad hoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had no right to claim regularization.
Page 11 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 06-Sep-2024 18:50:15
8. The relevant observations contained in the following decisions of the Apex Court with regard to the status of a contractual employment, I would like to incorporate hereunder some of the relevant observations.
9. In the case of Yogesh Mahajan vs. Professor R.C. Deka, Director, All India Institute of Medical Sciences,3 the Apex Court has observed as under:-
"6. It is settled law that no contract employee has a right to have his or her contract renewed from time to time. That being so, we are in agreement with the Central Administrative Tribunal and the High Court that the petitioner was unable to show any statutory or other right to have his contract extended beyond 30th June, 2010. At best, the petitioner could claim that the concerned authorities should consider extending his contract. We find that in fact due consideration was given to this and in spite of a favourable recommendation having been made, the All India Institute of Medical Sciences did not find it appropriate or necessary to continue with his services on a contractual basis. We do not find any arbitrariness in the view taken by the concerned authorities and therefore reject this contention of the petitioner.
7. We are also in agreement with the view expressed by the Central Administrative Tribunal and the High Court that the petitioner is not entitled to the benefit of the decision of this Court in Uma Devi. There is nothing on record to indicate that the appointment of the petitioner on a contractual basis or on an ad hoc basis was made in accordance with any regular procedure or by following the necessary rules. That being so, no right accrues in favour of the petitioner for regularisation of his services. The decision in Uma Devi does not advance the case of the petitioner."3
(2018) 3 SCC 218 Page 12 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Sep-2024 18:50:15
10. The Supreme Court in the case of Secretary. State Of Karnataka v. Umadevi4 held that:
"In Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar Mishra and Others; a three judge bench of this Court held that ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piece rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from one to two years. This decision indicates that if the engagement was made in a particular work or in connection with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and the High Court cannot direct that they be continued or absorbed elsewhere."
....
38. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot 4 Page 13 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Sep-2024 18:50:15 constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
11. In Umadevi (supra), the Supreme Court has thoroughly examined the observations of the Court in Piara Singh (supra) and concluded that there cannot be any absolute rule or principle that one ad hoc or temporary appointee can never be replaced by another ad hoc or temporary appointee. Further, the employer, in the present case, has not taken a policy decision to hire out sourced staff suiting the organizational need.
12. What is sought for by the petitioner is for this court to nullify the termination and direct their reinstatement. In this context, the question arises whether a mandamus could be issued in favour of such persons. Now, it is trite in law that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the a statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the employer to re-appoint or make them permanent, since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.
Page 14 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 06-Sep-2024 18:50:15
13. In the case of Oshiar Prasad and others vs. Employers in Relation to Management of Sudamdih Coal Washery of M/s. Bharat Coking Coal Ltd., Dhanbad, Jharkhand,5 the Apex Court has observed as under:
"25. It is a settled principle of law that absorption and regularization in the service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and employer. Once it comes to an end either by efflux of time or as per the terms of the Contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the legality and correctness of its termination."
14. On the basis of the terms and conditions visible on record coupled with the honorary status of the compensation having been accepted by the petitioner throughout, in the considered opinion of this Court, it is not open for the petitioner now to approach the Court with a request to regularise him to the concerned post irrespective of the fact as to whether he has continued for quite some time. Mere continuance in service as a contractual employee would not give any leverage to the petitioner to claim as if he is a permanent employee.
15. On a survey of authorities, the predominant view is seen to be that such appointment does not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re-engagement or making them permanent. That being the position, it appears to this Court that hardly a cogent case is made out by the petitioner to call for any interference to grant any relief as prayed for.
5 (2015) 4 SCC 71 Page 15 of 16 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Sep-2024 18:50:15 V. CONCLUSION:
16. In light of the facts and circumstances of the present case, this Court finds no merit in the current Writ Petition. The Petitioner has not succeeded in establishing grounds for interference with the impugned order.
17. However, the Opposite Parties may consider any alternative arrangements for the Petitioner, if available, ensuring that the Petitioner extensive experience is effectively utilized.
18. In light of the foregoing, the Writ Petition is dismissed and disposed of in terms of the aforesaid observations.
(Dr. S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 6th September, 2024/ Page 16 of 16