The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 4181 of 2023 Sri Chema Nayak …. Petitioner Mr. Digambara Mishra, Advocate -versus- State of Odisha and others …. Opposite Parties Mr. P.C. Das, A.S.C. Order No. 02. CORAM: JUSTICE A.K.MOHAPATRA ORDER 21.11.2023 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel appearing for the State- Opposite Parties. Perused the writ petition as well as the documents annexed thereto. 3. The Petitioner has filed the present writ petition with the following prayer:- “Under the aforesaid facts and circumstances, it is, therefore, prayed that this Hon’ble Court may be graciously pleased to issue a ‘Rule-Nisi’ calling upon the Opposite Parties to show-cause as to why a writ in the nature of mandamus or any other appropriate writ or writs shall not be issued: (i) to hold and declare the cut-off date 12.04.1993 as is in the circular dated 12.04.1993 (Annexure-4) and Finance // 2 // are (ii) Department Resolution dated 15.05.1997 (Annexure-3) and Office order dated not (Anneuxre-2) 16.06.2015 impediments for regularization of the services of the Petitioner with effect from the initial date of joining. to quash the order of rejection of regularization dated 04.02.2020 under Annexure-1. to direct to regularize the services of the Petitioner initial with effect engagement along with all consequential service and financial benefits. And if the Opposite Parties fail to show cause or show insufficient cause make the said rule absolute. the Opposite Parties the date of (iii) from (iv) And pass such other order/orders and/or writ/writs as this Hon’ble Court may deem fit and proper.” 4.
Legal Reasoning
It is submitted by the learned counsel for the Petitioner that the Petitioner was initially appointed as daily wage worker (NMR/DLR) under the RWS&S on 01.08.1995. Thereafter while working as such, the Petitioner was not brought over to the work charged establishment. While the matter stood thus, the Petitioner earlier approached this Court by filing W.P.(C) No.21537 of 2019 with a prayer for regularization of his service as by then he has already discharged service in the work charged establishment for the period exceeding 5 years. A coordinate Bench of this Court vide order dated 16.11.2019 disposed of the said writ petition by directing the Opposite Parties to consider the representation by taking decision thereof within a period of two months. Since no decision was taken, the Page 2 of 6 // 3 // Petitioner was compelled to file contempt petitions bearing CONTC No.828 of 2020, CONTC No.3257 of 2020, which were disposed of on 01.06.2020 and 19.7.2020 respectively. Finally, on 4.1.2021, the Additional Secretary to Government, P.R. & D.W. Department issued letter to E.I.C., RWS&WS indicating therein that the Finance Department has approved 634 Group-‘D’ posts and 135 Group-‘C’ posts in the year 2018 for RWSS Wing under P.R. & D.W. Department. Pursuant to the aforesaid decision of the P.R. & D.W. Department vide letter dated 4.1.2021, a list of 452 Group-‘D’ posts keeping in view their seniority of the new gradation list as well as ORV Act was prepared. However, the name of the present Petitioner was not included in the said list of 452 candidates whose name were short listed in the Group-‘D’ post. Thereafter no list has been prepared for remaining 182 Group-‘C’ posts as well as 135 Group-‘D’ posts. 5. Learned counsel for the Petitioner, at this juncture, submitted that although services of similarly situated persons have been regularized in the meantime w.e.f. 20.12.2022, however, the case of the Petitioner has not been considered by the authorities keeping in view the relevant circulars of the Government as well as the decision of the P.R. & D.W. Department vide letter dated 4.1.2021. Alleging discrimination and arbitrary conduct of the Opposite Parties in not considering the case of the Petitioner for regularizing of his service, the Page 3 of 6 // 4 // Petitioner has approached this Court by filing the present writ petition. 6. Learned Additional Standing Counsel appearing for the State-Opposite Parties, on the other hand, contended that recognizing the services of the Petitioner as a daily wage worker who was initially appointed on DLR/NMR basis, the Government had already taken a decision and the Petitioner has not been brought over to the work charged establishment. However, the service of the employees, who are working in the work charged establishment, are dependent on availability of the vacancy as well as seniority of the persons, who are already there in the list on work charged establishment employees. He also contended that the case of the Petitioner shall be considered subject to Petitioner fulfilling other criteria as has been prescribed by the Government from time to time by virtue of different circulars. In such view of the matter, learned Additional Standing Counsel submits that the present writ petition is pre-mature and the same should not be entertained at this stage. 7. In reply to the submissions made by the learned Additional Standing Counsel, learned counsel for the Petitioner referring to judgment of this Court in Banamali Mohanty v. State of Odisha and others (W.P.(C) No.1459 of 2020 decided on 28.1.2020) and in Ananta Prasad Das v. State of Odisha and others (W.P.(C) No.9545 of 2020 decided on 11.5.2020), submitted before this Court that in the case of employees who Page 4 of 6 // 5 // are identical placed with the Petitioner and pertaining to the very same RWS&S organization, a coordinate Bench of this Court after hearing the learned counsels for both the sides by virtue of the aforesaid orders disposed of the application by directing the Chief Engineer, RWS&W, Odisha to regularize the service of the Petitioner in their respective posts since the date persons junior to him have been regularized and further a direction was given to maintain the seniority of the Petitioner. The coordinate Bench further directed that while considering the case of the Petitioner in that writ petition, the Opposite Parties shall calculate all entitlement of the Petitioner as a regular employee and same to be released in favour of the Petitioner along with interest and the entire exercise was directed to be completed within a period of 1½ months. Keeping in view the aforesaid decisions of the coordinate Bench of this Court, the learned counsel for the Petitioner submitted that the case of the Petitioner be considered by taking into consideration the aforesaid decision by this Court. 8. Having heard the learned counsels appearing for the respective parties and on a careful consideration of their submissions as well as the materials on record, this Court deems
Decision
it proper to dispose of the writ petition at the stage of admission by setting aside the impugned order dated 04.02.2020 passed by the Opposite Party No.3 under Annexure-1 and further remand the matter back to the Opposite Party No.3 to consider the case of the Petitioner afresh keeping in view the order passed by the Page 5 of 6 // 6 // coordinate Bench as referred hereinabove and in the event it is found that the Petitioner stands in similar footing with the Petitioner in the above noted writ petitions, then Opposite Party No.3 shall do well to extend similar benefits in favour of the Petitioner within a period of two months from the date of communication of a certified copy of this order by the Petitioner. The decision so taken be also communicated by the Opposite Party No.3 to the Petitioner within a period of two weeks from the date of taking such decision. Further, it is made clear that in the event the Opposite Parties come to a conclusion that the Petitioner in the present writ petition is entitled to the relief as has been granted by this Court in the writ petition referred hereinabove, then financial entitlement shall be given to the Petitioner within a period of six weeks from the date of taking such decision. However, the same shall be without interest. In the event the Opposite Parties fail to give such amount within the aforesaid time, then said amount shall carry interest @ 8% per annum till the final payment is made. 9. With the aforesaid observation and direction the writ petition is disposed of. Debasis Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC, CUTTACK Date: 24-Nov-2023 19:50:00 (A.K. Mohapatra) Judge Page 6 of 6