Orissa High Court
Paresh Kumar Khamari vs State Of Odisha And Others ..... ... on 5 September, 2023
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 10534 of 2016
----
Paresh Kumar Khamari ..... Petitioners
and others
-Versus-
State of Odisha and others ..... Opposite Parties
For Petitioners : Mr. B. Sahoo, Advocate
For Opp. Parties : Mr. G.N. Rout (ASC)
(O.P. Nos. 1, 2 and 5)
Mr. P.K. Panda, Advocate
(O.P. Nos. 3 & 4)
CORAM: JUSTICE SANJAY KUMAR MISHRA
Date of Hearing: 25.07.2023: Date of Judgment: 05.09.2023
S.K. Mishra, J.
The Petitioner s, who are working as Odia Typist, Weigh Bridge Operator, Electrician-Cum-Pum p Driver and Paddy Cleaner Operator on contra ct basis in the Regulated Market Committee (RMC), Bargarh, have preferred the present Writ Petition for quashi ng of the Order dated 09.09.2 015 passed by the Collector-Cum-Chairman, RMC, Bargarh (Opposite Party No.5), as at Annex ure-13, whereby, their representa tion for regularization of services against the vacant posts of Odia Typist, Weigh Bridge Operator, Electrician-Cum-Pump Driver and Paddy Cleaner Operator was rejected. Also a prayer has bee n mad e seeking for a direction to the Opposite Party Nos. 2 to 5 to regularize their services and exte nd all such benefits, as is due and ad missible to the said posts.
2. The factual matrix of the case, in a nutshell, is tha t the Sta te Government under the Orissa Agricultur e Produce Market Act, 1956, shortly, Act, 1956, established Market Committee i n every area in respect of agricultur e produce. For superintendence over such Mark et Committee, by Notification in Official Gazette, a Board called the Orissa State Agricultural Market Board, shortly, OSAM Board, was establ ished under Section 18- A of the Act, 19 56. The OSAM Board vide Office Order No.4106 dated 03.08.2 007, as at Annexure-1, intimated the Chairman/ Secretary, RM C, Bargarh that the Board has been pleased to a ccord ap proval for creatio n of posts in different categories in favour of the RMC, Bargarh. Pur sua nt to the said Ord er, the RMC, Barga rh vide its Page 2 of 10 Office Order No.754 dated 26.08 .2007, a s at Annexure-2, requested to accord necessary approval of OSAM Boar d, to fill up 45 numb ers of vaca nt posts o n co ntractual basis from amongst the existing NMRs. On 31.08.2007 proceeding of the Appointment and Promotion Sub- Committee of RMC, Bargarh was held in the Office of the Sub-Collector-Cum-Chairma n, RMC, Bargarh, wherein it was decided to engage the pr esent NMRs in the va cant posts on co ntractual ba sis after obtaining due approval from the OSAM Board. Thereafter, the OSAM Board, vide Order dated 20.09.2007, a s at Annexure-5, intimated the RMC, Bargarh a bout the ap proval of the proceeding of the Sub-Committee of RMC, Bargarh by the Ho n'ble Minister, Co-operation-Cum-Chairperson, OSAM Board a nd advised to obser ve due formalities.
3. Pur sua nt to the Resolution of the Appointment and Promotion Sub-Committee of RMC, Bargarh and approval of OSAM Board, Bhuba neswar, the Sub-Collector-Cum- Chairman, RMC, Bargarh vide Ord er No.950 dated 09.10.2 007, as at Annex ure-6, appointed the Petitioners against the vacant posts on contra ctual basis with Page 3 of 10 consolidated salary. Since then, the P etitioners ar e discharging their servi ces on contractual basis. When no step was taken for regularization of the services of the Petitioners, they made representatio n dated 05.08.2008 to the Chairman, RMC, Bargarh through the Secretary, RMC, Bargarh, as at Annexure-7. The Secretary, vide his letter dated 10.08.2008, submitted the said representatio n to the General Manager, OSAM Board. On receip t of the said representati on, the General Manager, OSAM Board, vide his letter da ted 13.08.20 08, soug ht for certai n clarification and justification from the Secretary, RMC, Bargarh, for regularization of services of the contractual workers. I n response to the said l etter, the Secretary, RMC, Bargarh, furnished necessary clarification assigning rea sons for regulari zation of services of the Petitioners vide letter da ted 2 2.09.2008, as at Annexur e-10. It is the further case of the Petitioners tha t after proper verification/cl arification given by the Se cretary, RMC, Bargarh, the General Manager, OSAM Board, vide letter dated 27.09.2008, approved the proposal of regula rization of 45 numbers of contractual workers incl udi ng the Petitioners and Page 4 of 10 communicated the Secretary, RMC, Bargarh reg arding the approval of the said proposal for regularization of 45 nos. of contractual workers by the Chairperson, OSAM, Board indicati ng therein that after r egularization of the said staff, the exp enditure should be within the prescribed limit fixed by OSAM Board. The RMC, Ba rgarh was advised to observe d ue formalities in the said respect. Accordingly, the Petitioners' ser vices were reg ularized. In spite of such regularization, the Petitioners were not treated as reg ular employees and denied their regular scale of pay.
4. The Petitioners, finding no other alternative remedy, preferred W.P.(C) No.7904 of 2010. This Court, by its Order dated 06.07.20 10, disposed of the said Writ Petition by directing the P etitioners to file fresh representatio n before Oppo site Party No.5. Accordingly, the Petitioner s made representation before the Collector- Cum-Chairman, RMC, Bargarh. The Oppo site Party No.5 did not consider the said repres entatio n of the Petitioners.
Page 5 of 10
5. Again, the Petitioners wer e c onstrained to prefer W.P.(C) No.152 81 of 2011 b efore this Co urt, which was disposed of vide Order dated 27.07.2015 with a directio n to file a fresh representa tion before the Authority within ten day s from the date of passing of the said Order and the Authority concerned was directed to co nsider a nd pass order within six weeks. Pursua nt to said direction, the P etitioners made r epresentation to the Opposite Party No.5 within the stipulated time. However, the Opposite Party No.5, vide Order dated 09.09.2015, as a t Annexur e- 13, rejected the representa tion of the Petitioners solely on the ground that irreg ularly recruited engagees cannot be reg ularized in blatant violation of settled recruitment norms and transgression of provisions of ORV Act.
6. Being aggrieved by the said Order dated 09.09 .2015 passed by the Opposite Party No.5, as at Annex ure-13, the Petitioners have approached this Co urt with the prayers as detailed above.
7. Being noticed, the Opposite P arties, including the State, tho ugh a ppear ed but cho se not to file any Counter Affidavit till the date of final hearing. On bei ng ask ed, Page 6 of 10 Mr. Panda, lear ned Co unsel for the Oppo site Party Nos. 3 and 4, submitted that a copy of the Counter Affidavit filed by the Board earlier in W.P.(C) No.15281 of 2011 preferred by the present Petitio ner s has b een annexed to the Writ Petitio n as Annexur e-14 detailing therein the sta nd of the Boa rd (Opposite Party Nos. 3 and 4).
8. Heard Mr. Sahoo, learned Counsel for the Petitioners, Mr. G.N. Rout, learned Ad ditional Standing Counsel for Opposite Party Nos. 1, 2 a nd 5 and Mr. Panda, lear ned counsel for Opposite Party Nos. 3 and 4.
9. Learned Co unsel for the Petitioners submitted that the case of the Petitioners is identical to the case of the Petitioners in W.P.(C) No.5668 of 2016, which was disposed of vide a detailed judg ment dated 21.0 7.202 3 by this Co urt a nd, as such, the present ca se may be disposed of in terms of the said judgme nt.
10. Admittedly, when the matter got listed on 09.01.2 023, bei ng admitted by the lear ned Counsel for the Parties, i ncl uding the learned Co unsel for the contesting Oppo site Par ty Nos. 3 and 4 that the prese nt Page 7 of 10 Writ Petition is identical to W.P.(C) No.5668 of 201 6, liberty was granted to the learned Co unsel for the Petitioners to move for listing of the present Writ Petition immediately after prono uncement of the judgment pa ssed in W.P.(C) No.5668 of 2016. Li berty being so given, on being mentioned, the matter wa s taken up on 25.07.20 23 and after hearing the learned Counsel for the Par ties, pronouncement of order/judgment was reserved.
11. Paragraphs Nos. 1 a nd 11 of the Co unter Affidavit filed by the present Opposite Party Nos. 4 and 5 in W.P.(C) No.1528 1 of 2011 are extracted below:
"1. Tha t I a m the Secre ta ry of the Re gula ted Ma rket Committee a nd I ha ve bee n arra ye d a s o pposite pa rty No.4 in the present writ pe titio n. I ha ve been duly a uthorize d to swea r this a ffida vit on beha lf of opposite party No.5, Cha irma n of the Regula ted Ma rket Co mmitte e, Ba rga rh (here in a fte r referred a s "R.M.C ." in short).
11. Tha t the de ponent humbly su bmits tha t the appointments of the pe titione rs were done as pe r the pre va iling norms a nd prior a pprova l of the Boa rd wa s duly obta ine d & in c ourse of the ir eng age me nt nec e ssa ry c omplia nce wa s ma de to obse rve prope r imple mentation of O.R.V . Rule s. Be sides othe r e mployment Rule s a nd proc e dure s we re prope rly followe d. The de pone nt humbly submit s a s it tra nspire s from Page 8 of 10 the rec ords a va ilable in the office of the de pone nt that the rec ruitme nt proc e dure followe d for e ng ageme nt of the pe titione r wa s reg ula r one a nd wa s ma de as pe r la w a nd in vie w of re lax ation ma de unde r A nnex ure -B/4, the se pe titione rs c la im re quires to be c onside re d in prope r pe rspec tive by this Hon'ble Court and the de pone nt humbly submits in c a se the ir a ppointme nt is re g ula rize d, a dequa te funds ca n be ma de a va ila ble by prope r budg e ta ry a lloca tions for disburse me nt of sa la ry c ompone nts in favour of the pe titione rs, whi c h will be we ll within the pre sc ribe d limit fix e d by the B oa rd."
(Empha sis supp li ed)
12. In view of the facts d etailed ab ove, this Co urt finds that the present case is sq uarel y covered by the judgment dated 21.0 7.2023 passed in W.P.(C) No.5668 of 2016 (Rabiratan Sahu a nd others vs. State of Odisha and others).
13. Accordingly, the impugned Order dated 09.0 9.2015, as at Annex ure-13, passed by the Opposite Party No.5 is set a side.
14. The Opposite Parties, more particularly, Opposite Party Nos. 2 to 5 are directed to regularize the ser vices of the Petitioners with effect from 27.09.2 008 i.e. the date on which the General Manager, Orissa State Page 9 of 10 Agricultural Marketing Board, Bhubaneswar communicated the Secretary, R.M.C., Bargarh (Annexur e-
11) to reg ularize the services of the Petitio ners, and to grant them all conseque ntial service and financial benefits, as d ue and admis sible, by mak ing due calculation ther eof within a period of four months from the date of communication of the certified copy of this judgment.
15. The Writ Petition stands allowed and dispo sed of. No order as to cost.
(S.K. MISHRA) JUDGE Orissa High Court, Cuttack Dated, 5th September, 2023/PCD Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Sep-2023 18:11:15 Page 10 of 10