The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.2296 of 2021 Basanta Kumar Dash and others ..... Petitioners Represented By Adv. – Mr. Abhiram Swain State of Odisha and others ..... Opposite Parties -versus- Represented By Adv. – Mr. Debasis Nayak, A.G.A. CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No.
Decision
ORDER 15.05.2024 11. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel appearing for the Petitioners as well as learned Additional Government Advocate appearing for the State-Opposite Parties. Perused the pleadings of the respective parties as well as the documents annexed thereto. 3. The present writ petition has been filed by the Petitioners with the following prayers:- “Under the above facts, circumstances and contentions, it is humbly prayed this Hon’ble Court may graciously be pleased to admit this writ petition, call for the records and after hearing the counsel for the petitioner would be pleased to issue Page 1 of 7. notice to the opposite parties as to why the prayer made in the writ application shall not be absolute in case of non-filing of the show cause or showing insufficient cause; And further would be pleased to issue a writ of mandamus or any other suitable writ(s) by directing the opposite parties to fix the scale of pay of the petitioners under 5th & 6th Pay Commission under Orissa Revised Scale of Pay Rule, 1988 and 2008 with consequential benefits after quashing the order dated 20.03.2020 vide Annexure-20; And further would be pleased to direct the opposite parties to release the revised arrear therein with effect from the date of introduction of 5th & 6th pay and where the counterparts in Settlement & Consolidation Department are getting and their scale of pay has already been fixed; And further would be pleased to pass any other order/orders, direction/directions as may deem fit and proper as per the circumstances of the case.” 4. It is submitted by learned counsel for the Petitioners that the Petitioners are discharging their duties as a Class-IV employees in Job Contract Establishment under the Board of Revenue, Odisha, Cuttack. In the present writ petition, the Petitioners have assailed the illegal and discriminatory conduct of Opposite Party No.2 in refusing/rejecting the prayer of the Petitioners for fixation of scale of pay as per the recommendation of 5th and 6th Pay Commission under Odisha Revised Scale of Pay Rule, 1998 and 2008 with consequential Page 2 of 7. benefits as has been extended in favour of the counterparts of the present Petitioners. He also contended that similarly situated employees engaged in the Settlement and Consolidation offices have been extended such benefits. In such view of the matter, learned counsel for the Petitioners submitted that the Petitioners have been discriminated against and they have been deprived of benefits which have been extended in favour of the similarly situated employees working under the Government. Thus, such conduct of the Opposite Parties is in violation of Articles 14 and 16 of the Constitution of India. 5. In course of his argument, learned counsel for the Petitioners contended that the Opposite Parties have extended similar benefits in favour of one Manas Ranjan Parija, pursuant to the order of this Court in W.P.(C) No.31048 of 2022, vide order dated 10th April, 2024. Similarly, benefits as claimed by the Petitioners have already been extended in favour of one Abhaya Kumar Sahoo, pursuant to order passed by this Court in W.P.(C) No.31045 of 2022, vide order dated 18.03.2024. He further contended that order dated 22.11.2013 passed by the Tribunal in O.A. No.1841(C)/2010 was assailed by the State-Opposite Parties before this Court by filing W.P.(C) No.28014 of 2019. A Division Bench of this Court has dismissed the said writ petition vide order dated 22.07.2022. He further contended that the order passed by the Division Bench of this Court dated 22.07.2022 has been affirmed by the Hon’ble Supreme Court by dismissing the Page 3 of 7. State’s appeal filed before the Hon’ble Supreme Court. It was also submitted that both the Law Department and the Finance Department, Government of Odisha have advised the concerned administrative department to implement the aforesaid order dated 22.11.2022 passed by this Court in W.P.(C) No.31045 of 2022 and in obedience to the order passed by this Court in respect of similarly situated other employees, the Opposite Parties have already implemented the order. On such ground, learned counsel for the Petitioners submitted that the Petitioners are also entitled to similar financial benefits after regularizing their service against the available vacant Class-IV posts. 6. Learned Additional Government Advocate appearing for the State-Opposite Parties, on the other hand, referring to the counter affidavit filed by Opposite Party No.3, contended before this Court that the Petitioners were initially appointed in the Job Contract Establishment in the year 1997. He further contended that in view of the ban order imposed by the Finance Department vide letter dated 12.04.1993, the appointments of the Petitioners are all illegal. Therefore, their services cannot be regularized. He further submitted that the appointment of the Petitioners have been done without the prior approval of the Finance Department. Therefore, no right flows in favour of the Petitioners on the basis of such illegal appointment. As such, the Petitioners are estopped from making a prayer for regularization of their service and for the consequential financial benefits. He further contended that the Page 4 of 7. Petitioners having been engaged after the cut-off date, i.e. 12.04.1993, have no right to claim regularization of their service. He further contended that the grounds taken by the Petitioners that similarly situated persons, who are working in the job contract establishment, have been regularized pursuant to the order passed by the Tribunal as well as by this Court, is not a valid ground since the cases which the Petitioners are referring to in support of their contention have already been regularized pursuant to the order passed by either the Tribunal or this Court. Therefore, the Petitioners cannot claim any parity on such basis. It was also contended that since the Petitioners have been irregularly appointed, they cannot be regularized in service and without regularizing the service of the Petitioners, no financial benefits under the O.R.S.P. Rules can be granted to the present Petitioners. On such ground, learned Additional Government Advocate submitted that the present writ petition is devoid of merit and, accordingly, the same should be dismissed at the threshold. 7. On perusal of the record of the present writ petition, it appears that on 04.08.2023, this Court had directed the learned Additional Government Advocate to obtain instruction with regard to the vacancy position. Accordingly, an additional affidavit has been filed on 05.04.2024. On perusal of the said affidavit, it appears that there are vacancies in Class-IV posts. The details of which have been elaborately mentioned in the affidavit dated 05.04.2024. Page 5 of 7. 8. Having heard the learned counsels appearing for the parties and on a careful examination of the respective pleadings as well as the documents annexed thereto, this Court is of the view that the Petitioners, in order to succeed in the present writ petition, have to satisfy the Court that they stand in an identical footing with the Petitioners who have been extended with such benefits pursuant to the order passed by either the O.A.T. or this Court in earlier round of litigation. On perusal of the record, it appears that the Petitioners were appointed in the year 1997 and they have been continuing in service as of now. Therefore, they have rendered more than two decades of continuous service in the meantime in the Job Contract Establishment. Further, on perusal of the affidavit filed pursuant to the order passed by this Court on 04.08.2023, it appears that there are vacancies against the regular Class-IV posts and the Petitioners have been working against the Job Contract posts. On a careful scrutiny of the order passed by the Tribunal as well as this Court in the earlier proceedings, this Court has found that there is not much difference between the Petitioners in the present case and the Petitioner in the earlier writ petition, which was confirmed by the Hon’ble Supreme Court. 9. Taking into consideration the fact that the Petitioners have been working for more than two decades and there exists vacancies in Class-IV posts in the office where the Petitioners are working at the moment, this Court directs the Opposite Parties to regularize the service of the Petitioners. Further, it is Page 6 of 7. directed that upon such regularization, the Petitioners be paid the dues including the pay revision as per the 5th and 6th Pay Commission recommdation and on the basis of the Odisha Revised Scale of Pay Rules, within a period of three months from the date of communication of a copy of this order. 10. With the aforesaid observation and direction, the writ petition is disposed of. Debasis ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: OHC, CUTTACK. Date: 21-May-2024 13:02:01 Page 7 of 7.