JUSTICE K.R. MOHAPATRA JUSTICE v. NARASINGH
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 03-Jan-2025 13:40:27 IN THE HIGH COURT OF ORISSA AT CUTTACK OJC No.1997 of 2002 (An application under Articles 226 and 227 of the Constitution of India) ***** Upendra Prasad Bissoyi .... Petitioner -versus- 1. State of Orissa 2. Engineer-in-Chief, Water Resources, Orissa, BBSR 3. Chief Engineer & Basin Manager 4. Superintending Engineer, Southern Irrigation Circle 5. Executive Engineer, Berhampur Irrigation Division, Bhanjanagar 6. Executive Engineer, Berhampur Irrigation Division, Berhampur …. Opp. Parties Advocate for the Parties For Petitioner : Mr. Samir Kumar Mishra, Sr. Advocate being assisted by Mr. Jagajiban Pradhan, Advocate For Opposite Parties : Mr. Ajodhya Ranjan Dash, Additional Government Advocate CORAM: JUSTICE K.R. MOHAPATRA JUSTICE V. NARASINGH -------------------------------------------------------------------------------
Decision
Heard and disposed of on 24.12.2024 ------------------------------------------------------------------------------- JUDGMENT By the Bench: 1. This matter is taken up through hybrid mode. OJC No.1997 of 2002 Page 1 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 03-Jan-2025 13:40:27 // 2 // 2. The present writ petition has been filed seeking the following reliefs: “….admit this writ application call for the lower court records in connection with Original Application No.1909/2000 disposed of by the O.A.T. Bhubaneswar Bench, Bhubaneswar and after hearing both the parties to quash the order of the learned Tribunal dt.20.12.2000 Annexure-4 and further be pleased to quash Annexure-3 to this writ application and further be pleased to hold that the regularization made to the petitioner vide Annexure-2 is valid and justified in the eye of law. xxx xxx xxx” 3. Briefly stated, the facts relevant for proper adjudication of the writ petition are that the Petitioner being a NMR personnel was provisionally appointed on ad hoc basis against the existing vacancy of regular Mate (wages) post along with others vide order dated 30th December, 1999 (Annexure-2) passed by Superintending Engineer, Southern Irrigation Circle, Berhampur- Opposite Party No.4. Petitioner joined as such on 1st January, 2000. Appointment order of the Petitioner along with others was canceled vide order dated 27th January, 2000 (Annexure-3) issued by Opposite Party No.4. Being aggrieved, the Petitioner moved learned Tribunal in OA No.1909 of 2000. The said Original Application was dismissed vide order under Annexure-4 with certain observations, which is impugned herein. 4. As reveals from the record, the Petitioner was initially engaged in the NMR establishment in the year 1991 under Opposite Party No.4 and continued as such till he was appointed under regular establishment vide order under Annexure-2. Similarly situated NMRs had moved this Court as well as Hon’ble Supreme Court for their regularization. On consideration of their grievance, it was directed that OJC No.1997 of 2002 Page 2 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 03-Jan-2025 13:40:27 // 3 // the Government should frame a Scheme to absorb the employees who are continuing for more than ten years. Pursuant to the direction of the Hon’ble Supreme Court as well as learned Tribunal at different times, the Government in Finance Department passed resolution No.22764/F dated 15th May, 1997 formulated a Scheme for absorbing NMR/DLR/Job Contract Workers under regular establishment. Pursuant to the said Scheme framed by the Government of Odisha, Petitioner was provisionally appointed under the regular establishment. However, his appointment was canceled vide order under Annexure-3. Hence, he filed OA No.1909 of 2000. The said OA was disposed along with a batch of Original Applications, vide order under Annexure-4. While upholding the order of cancellation of Petitioner’s appointment in the regular establishment, learned Tribunal observed as under:- “12. We would, however, like to observe, before parting with the case, that the applicants have put in long years of service on NMR basis and have enormously contributed to the irrigation development projects; there case should be considered in all seriousness following the principles and guidelines laid down in Finance Department Resolution dated 15th May, 1997. If in the meantime, all the work- charged employees in the Southern Irrigation Circle have been absorbed in regular establishment posts, the case of the NMR employees’ shall be taken up in a phased manner, subject to availability of vacant regular establishment posts. the NMR While making orders of regularization of employees, the order of their seniority in their respective categories shall also be strictly adhered to without giving any scope for any grievances/complaints. 13. In the premises of the above discussions, Original Applications are found to be devoid of merit and are dismissed with the above observations. There shall be no order as to costs.” OJC No.1997 of 2002 Page 3 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 03-Jan-2025 13:40:27 // 4 // 5. Petitioner was continuing in his post in spite of order under Annexure-3 canceling his appointment in view of order of status quo passed by learned Tribunal as well as interim order dated 12th August, 2002 passed in Misc. Case No.1873 of 2002 by this Court in the present writ petition. However, the writ petition was disposed of vide order dated 19th April, 2019 with the following order:- “Learned counsel for the petitioner states that he has no instruction from his client. As such, he seeks permission to withdraw the writ petition. Permission for withdrawal is granted. The writ petition stands dismissed as withdrawn. Misc. Cases/IAs. Connected to this writ petition, if any, are dismissed accordingly. Interim order passed in this case stands vacated. It is made clear that the petitioner will be at liberty to file an application within thirty days from today for revival of this petition in case of any difficulty.” As the Petitioner was continuing in his post, CMAPL No.471 of 2019 was filed for restoration of the writ petition to file in terms of the leave granted by this Court while disposing of the writ petition. But, there was delay of seventy-three days in filing the CMAPL. Hence, IA No.199 of 2019 was also filed for condonation of delay in filing the CMAPL. 5.1 By order dated 24th December, 2019, both the IA as well as CMAPL was dismissed. Assailing the same, the Petitioner moved Hon’ble Supreme Court in SLP (C) No(s).20297-20298 of 2021. The said SLP(s) were disposed of vide order dated 12th February, 2024 restoring OJC No.1997 of 2002 to its original number with a direction to hear and decide the present writ petition on its own merit. OJC No.1997 of 2002 Page 4 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 03-Jan-2025 13:40:27 // 5 // Accordingly, the matter is placed before this Bench for hearing and final disposal. 6. It is submitted by Mr. Mishra, learned Senior Advocate that pursuant to the order of status quo passed by learned Tribunal and in the present writ petition vide order dated 12th August, 2002 passed in Misc. Case No.1873 of 2002, the Petitioner is still continuing as Mate in the regular establishment under Opposite Party No.4. Similarly situated employees have already been regularized in their respective posts without acting upon the order of cancellation of his appointment under Annexure-3. In support of his submission, Mr. Mishra, learned Senior Advocate relied upon letter No.756 dated 15th January, 2007, office of the Engineer in Chief, Water Resources, Odisha, Bhubaneswar- Opposite Party No.2 calling upon Opposite Party No.4 to its office for discussion with regard to continuance /cancellation of the appointment of the Petitioner and another Sri Gopal Krushna Padhi. Further, pursuant to a query made by the State Government in Water Resources Department, the Superintending Engineer-Opposite Party No.4, vide its letter dated 2774 dated 24th May, 2007 clarified that the appointment of the Petitioner has not been cancelled. Further, it is also clarified vide letter No.29110 dated 28th August, 2008 that the Petitioner is continuing in the regular establishment and his appointment in the post of Mate (wages) was not cancelled in view of the order of status quo passed by this Court dated 12th August, 2002 and pursuant to order dated 4th April, 2006, the Opposite Party No.4 was requested to continue the services of the Petitioner as Mate (wages) on regular basis, release his salary and report compliance. OJC No.1997 of 2002 Page 5 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 03-Jan-2025 13:40:27 // 6 // Accordingly, vide order dated 20th October, 2008 (Annexure-5 series), Opposite Party No.4, vide its memo No.6936, allowed the Petitioner to continue as Mate (wages) in regular establishment with retrospective effect from 27th January, 2000, i.e., date on which the Petitioner reverted to NMR establishment (Annexure-3). Further, vide orders dated 4th December, 2010, 4th February, 2011 and 19th April, 2011 (Annexure-6 series), it was clarified that services of the Petitioner is essential in the establishment. In the meantime, pursuant to the order dated 16th November, 2011 passed by this Court in OJC No.1184 of 2002, services of Sri Gopal Krushan Padhi, who was admittedly appointed along with the Petitioner has already been regularized with effect from his initial date of appointment. Similarly situated employees, namely, Sri Susanta Kumar Panda and others have also been granted the benefit of regularization in service and other consequential benefits pursuant to order dated 19th April, 2004 passed by this Court in W.P.C.(OAC) No.4149 of 2016. Mr. Mishra, learned Senior Advocate, therefore, submits that the impugned order under Annexure-4 is illegal and is liable to be set aside and consequentially the Petitioner is entitled to be regularized with effect from his initial date of joining, i.e., 1st January, 2000 as Mate (wages). 7. Mr. Dash, learned AGA does not dispute the factual position as submitted by Mr. Mishra, learned Senior Advocate for the Petitioner. He, however, submits that the impugned order under Annexure-4 has been passed in consonance with the Finance Department Resolution dated 15th May, 1997, wherein it is clarified that the gradation /seniority list shall be prepared by the appointing authority for each OJC No.1997 of 2002 Page 6 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 03-Jan-2025 13:40:27 // 7 // category of workers determining the length of engagement of a particular employee. It is also clarified therein that the employee should have worked under the administrative control of the Department concerned directly for a minimum period of ten years. Engagement of 240 days in a year shall be construed to be a complete year of engagement for the purpose of regularization in the regular establishment. 7.1 Para-8 of the said resolution provides that while filling up the regular vacant posts preference should be given to the work-charge employees. Where no suitable work-charge employee is available to man the post, preference should be given to the workers continuing under NMR/DLR/Job Contract establishment respectively. 7.2 Since the Petitioner had not completed ten years under the NMR establishment and as he was erroneously brought to the regular establishment as a Mate, the same was kept in abeyance vide order dated 6th January, 2000 until further orders on the ground of preparation of gradation list/seniority list including the work-charge employees. The case of the Petitioner was not considered while preparing gradation list/senior list, since he had not completed ten years of service as stipulated in the resolution dated 15th May, 1997. When the matter stood thus, appointment order No.6761 dated 30th December, 1999 as well as order dated 6th January, 2000, which was communicated vide memo No.205 were canceled vide office order No.479 dated 27th January, 2000 (Annexure-3) in respect of NMRs. The same was clarified vide order No.4119 dated 7th August, 2000 (Annexure-A to the counter affidavit). OJC No.1997 of 2002 Page 7 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 03-Jan-2025 13:40:27 // 8 // 8. Thus, learned Tribunal has committed no error in dismissing the Original Application and directing absorption of the Petitioner in regular establishment in order of seniority in respective category. He, therefore, prays for dismissal of the writ petition. 9. Considering the submissions made by learned counsel for the parties and on perusal of records, this Court finds that the Petitioner was initially engaged as a NMR employee in the year 1991. He was regularized as Mate (Wages) in the regular establishment vide order dated 30th December, 1999 (Annexure-2). The order under Annexure- 2 was kept in abeyance vide order dated 6th January, 2000 and was subsequently cancelled vide order dated 27th January, 2000 (Annexure-3). 9.1 In spite of the above orders, the Petitioner was reverted to the post of NMR Typist by order dated 24th January, 2019. It is also not disputed that that issue involved herein has already been settled in the case of Sri Gopal Krushna Padhi (OJC No.1184 of 2002) was disposed of vide order dated 16th November, 2011. The State Government have also unsuccessfully challenged the said order before the Hon’ble Supreme Court in SLP (C) No.(s)6411-6416 of 2013. 9.2 In the case of Sri Susanta Kumar Panda and others [W.P.C.(OAC) No.4149 of 2016], this Court, taking into consideration the facts and circumstances of the case involved therein, which is akin to the present one, directed for regularization of the employees involved therein. It is not disputed that sanctioned post of Mate (Wages) is also existing, which was manned by the Petitioner. Thus, OJC No.1997 of 2002 Page 8 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 03-Jan-2025 13:40:27 // 9 // the Petitioner being similarly situated cannot be discriminated and deserves equal treatment. 10. Accordingly, it is directed that services of the Petitioner in the post of Mate (wages) in the regular establishment under the Opposite Party No.4 shall be regularized with effect from his initial date of joining in the said post with effect from 1st January, 2000 and consequential service benefits shall be extended to the Petitioner as expeditiously as possible, preferably within a period of six months from the date of production of certified/downloaded authenticated copy of this order from the website of this Court before the competent authority. The impugned order passed by learned Tribunal at Annexure-4 and the order of cancellation of appointment of “Wages Khalasi” at Annexure-3 so far as it relates to the Petitioner is hereby quashed. 11. The writ petition is allowed to the aforesaid extent. There shall be no order as to costs. Issue urgent certified copy of the judgment on proper application. (K.R. Mohapatra) Judge (V.Narasingh) Judge High Court of Orissa, Cuttack Dated the 24th day of December, 2024/s.s.satapathy OJC No.1997 of 2002 Page 9 of 9