Application under Articles 226 & 227 of Constitution of India. --------------- Khirod Biswal … v. – State of Orissa and another
Case Details
‘IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 3570 of 2025 Application under Articles 226 & 227 of Constitution of India. --------------- Khirod Biswal …… Petitioner - Versus – State of Orissa and another ...…. Opp. Parties Advocate(s) appeared in this case:- _____________________________________________________________ For Petitioner(s) : M/s. S. Mohanty, K.Patra S.K. Acharya & S.R. Mohanty, Advocates For Opp. Parties : Mr. S. Behera [Addl. Government Advocate] ___________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 25.04.2025 SASHIKANTA MISHRA, J. The sole point that arises for consideration in this writ petition is whether the order of Page 1 of 9 reengagement, followed by treating the period of absence from duty as no work no pay, amounts to break in service. 2. Facts of the case lie in a narrow compass. The petitioner was working as Gram Rozgar Sevak (GRS) having been engaged with effect from 03.02.2009. He was disengaged from his duties on 07.05.2021 by the order of the Collector on the ground of certain illegal activities. He preferred an appeal against the order of disengagement before the Director, Special Projects, who remanded the matter to the Collector for fresh consideration. The Collector on re-consideration of the matter was of the view that the petitioner has to furnish an undertaking in shape of affidavit that he will not indulge in any illegal activities while discharging his duty as GRS. As such, by order dated 23.12.2021, the Collector while rescinding the order of disengagement, directed reengagement of the petitioner as GRS on execution of agreement with further direction that the period of absence from duty shall be treated as no work no pay. While the matter stood thus, the Odisha Accountant-cum-DEO (Method of Recruitment & Conditions Page 2 of 9 of Service), Rules -2024 came into force providing therein a one-time absorption of eligible Gram Rozgar Sevaks in the regular post of Accountant-cum-Data Entry Operator. The petitioner, even though eligible, was not considered by the selection committee, which published the list of eligible
Legal Reasoning
candidates on 21.06.2024. The petitioner challenged the lists before this Court in W.P.(C) No.29888 of 2024, which was disposed of by order dated 02.12.2024 granting liberty to him to submit representation to the Collector. Pursuant to such order, the Collector passed a speaking order on 04.01.2025 rejecting the representation of the petitioner on the ground that he had not completed five years of continuous service as on 27.02.2024 having been disengaged on 07.05.2021 and re-engaged on 31.12.2021. Challenging such order, the petitioner has approached this Court seeking the following relief:- “The petitioner, therefore, prays that your lordship would graciously be pleased to admit this petition, call for the records and after hearing the parties be pleased to quash the rejection order dated 04.01.2025 under Annexure-5 Page 3 of 9 And further be pleased to direct the authority to appoint the petitioner as ADEO (Accountant-cum-DEO) on the basis of the Gazette notification dtd 27.02.2024 vis-(cid:224)-vis as per select list dtd 21.06.2024. and And pass any other and/or further order as deemed the fit circumstances of the case. for the petitioner as in duty bound shall for ever pray.” this act of kindness proper under And 3. Stand of the State authorities as reflected in the counter filed by the CDO-cum-EO, Zilla Parishad is that as per the proviso to Rule 10(1) of 2024 Rules, one time relaxation of the rules is provided for absorption of the Gram Rozgar Sevaks, who have completed five years of continuous service on the date of commencement of the Rule on a regular basis. However, the petitioner was disengaged with effect from 07.05.2021 and re-engaged on 31.12.2021 with no financial benefits and by executing a fresh agreement. There is thus, a break in service for the period from 25.01.2021 and 31.12.2021, during which period he was neither paid any remuneration nor was the gap period regularized. Page 4 of 9 4.
Legal Reasoning
Heard Mr. Srinibas Mohanty, learned counsel for the petitioner and Mr.S. Behera, learned Addl. Government Advocate for the State. 5. Mr. Mohanty would argue that once the order of disengagement is rescinded and the petitioner was re- engaged, it automatically implies continuity in service, though without any pay. The petitioner must therefore, be deemed to have been continuing in service from the date of disengagement till re-engagement notionally. Non-payment of remuneration is immaterial in this context. Mr. Mohanty therefore, argues that the interpretation of the period in question by the Collector is entirely erroneous and contrary to his own order of rescinding the order of disengagement. 6. Mr. S. Behera, learned State Counsel, on the other hand, would argue that GRS does not occupy any civil post. Such engagement is contractual in nature and subject to executing agreement by the person concerned. In the instant case, the petitioner was re-engaged upon executing a fresh agreement. Therefore, it has to be treated as a fresh engagement with a clear break in service. Page 5 of 9 7. The facts of the case are not disputed. Reading of the order passed by the Collector on 23.12.2021 reveals that after considering the facts and circumstances was of the view that the petitioner has to furnish an undertaking in shape of affidavit that, he will not indulge in any illegal activities while discharging his duty GRS. Accordingly, the order of disengagement dated 07.05.2021 was rescinded and he was directed to be re-engaged by executing agreement. The period of absence was to be treated no work no pay. The relevant portion of the order passed by the Collector is reproduced below:- “Keeping in view of the prayer of Sri Khiord Biswal and views of the BDO, Raghunathpur I do hereby dispose of the matter with the following order: Sri Khirod to be reengaged as GRS with the condition that, he has to furnish an Undertaking in shape of affidavit that, he will not indulge in any illegal activities while discharging his duty as GRS. And to perform the assigned to him by the Authority/Govt. sincerely. To execute the agreement as per the provisions of Comprehensive Guideline dated 06.04.2018. the And termination/ period disengagement will remain as such with no financial benefit.” of Page 6 of 9 8. Pursuant to such order, an office order was issued on 31.12.2021 by the Project Director re-engaging the petitioner with specific observation that the disengagement period is treated as no work no pay. It has been argued that the above implies break in service as firstly, the petitioner was not remunerated for the work done during that period and secondly, the re-engagement was upon execution of a fresh agreement. It is not disputed that the Gram Rozgar Sevaks are engaged on contractual basis from year to year by executing agreements. The proviso to Rule 10 (1) of 2024 Rules reads as follows:- the date of “Provided that as a one time measure, by way of relaxing the provisions of this Rule, those GRS who have completed 5(five) Years of continuous service on the commencement of this Rule, shall be absorbed on regular basis against vacant posts of Accountant-cum-Date Entry Operators subject to fulfillment of other conditions of service and relaxation of upper age limit, if required. Subsequent vacant posts created in the cadre of Acct-cum-DEO shall be filled up as per the provisions prescribed in the Rules.” (Emphasis added) If the second line of the argument as referred above is accepted then each years’ engagement would be Page 7 of 9 treated as a fresh engagement and there would be nothing called ‘continuous service’ for a GRS as referred to in the proviso quoted above. That apart, if it was intended to be a fresh engagement altogether, there was no necessity much less occasion to make any reference to his past service, which was specifically treated as no work no pay. All that the above implies is that the petitioner, though was re- engaged, will not be entitled to any pay for the period of his disengagement. 9. The matter can be viewed from another angle. What is the effect of rescission of the order of disengagement? It is akin to setting aside the order of disengagement. Again, had it been the intention to give him fresh engagement, there was no necessity of rescinding the order of disengagement. Once the order of disengagement is rescinded, it means there is no order of disengagement in existence. If that be so and the Collector himself makes the reengagement subject to no work no pay, it can only be a case of notional continuity of the petitioner as GRS. The fact that he executed a fresh agreement is of no Page 8 of 9 consequence vis-(cid:224)-vis the requirement of continuous service as contemplated under the 2024 Rules. 10.
Decision
For the foregoing reasons therefore, the reasoning adopted by the Collector to reject the claim of the petitioner for absorption on the ground of not completing five years continuous service is untenable and therefore, cannot be sustained. 11. From a conspectus of the analysis made above, this Court holds that the impugned order, for the reasons specifically indicated, cannot be sustained and is therefore, quashed. The opposite parties-authorities are directed to consider the case of the petitioner for absorption as Accountant-cum-Data Entry Operator as per the provision of the 2024 Rules by passing appropriate order within one month from today. Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Location: Orissa High Court, Cuttack Date: 29-Apr-2025 11:49:47 Orissa High Court, Cuttack, The 25th April, 2025/ B.C. Tudu, Sr.Steno (Sashikanta Mishra) Judge Page 9 of 9