The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.7974 of 2023 Dwitiya Bhoi …. Petitioner State of Odisha and others …. Opposite Parties Ms. Saswati Mohapatra, Advocate -versus- Mr. P.C. Das, A.S.C. JUSTICE A.K. MOHAPATRA CORAM: Order No.
Decision
ORDER 11.08.2023 07. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the petitioner as well as learned counsel for the State. Perused the pleadings as well as documents annexed respective pleadings. 3. The present writ petition has been filed by the petitioner with the following prayers: “Under the aforesaid facts and circumstances, it is therefore, prayed that this Hon’ble Court may graciously be pleased to: (i) Direct /order the Opp. Parties to absorb the petitioner since year 2013 as per Odisha Group-‘B’, ‘C’ and Group-‘D’ post (Repeal and Special Provisions) Rules, 2022 and thereby quash the Order, dated 10.03.2023 by concurrently holding the same as bad, illegal and not tenable in the eye of law; // 2 // (ii) Pass such other order(s) or issue direction(s) may be deemed fit and proper in the bona fide interest of justice.” 4. It is submitted by learned counsel for the petitioner that the petitioner was initially appointed as a Peon on contractual basis against the existing vacancy post on 15.10.2007 under Annexure-1 to the writ application. In the year 2014 on the basis of the representation of the petitioner, the Opposite Party No.1 clarified the queries of the Government, however, the service of the petitioner was not regularized against the existing vacancy post. While the matter stood thus, on 05.11.2022 the Collector, Nuapada requested the Small Savings Finance Department for regularization the service of the petitioner. Since the service of the petitioner has not been regularized by the Opposite Parties, earlier the petitioner approached this by filing a writ petition bearing W.P.(C) No.17338 of 2022 with a prayer for regularization of his service. It is further contended before this Court that by the time, the petitioner had already completed six years of service and he was eligible to absorb to regular establishment. Vide order dated 28.07.2022, the coordinate Bench of this Court disposed of the writ petition in the light of the case of Patitapaban Dutta Das vrs. State of Odisha and others analyzed the case of the petitioner and while holding that the petitioner has completed 14 years of contractual engagement uninterruptedly simultaneously directing the Opposite Party No.1 to absorb the petitioner to regular establishment keeping in view the resolution of the Government of the year 2013. Since // 3 // no action was taken on the same, the petitioner was compelled to approach this Court by filing a Contempt Petition bearing CONTC No.633 of 2023, which was also disposed of by this Court vide order dated 10.03.2023. 5. Learned counsel for the petitioner, at this juncture, contended that vide order dated 10.03.2023 under Annexure-8, the Finance Department, Government of Odisha took a decision which was communicated to the Collector intimating therein that the continuance of contractual Peon in Small Savings Section of the contractual is regretted. However, Collector, Nuapada vide letter No.155 dated 05.11.2022 forwarded the orders to the Director, Small Savings, Finance Department, Odisha, Bhubaneswar recommending for absorption of the petitioner in regular establishment. Challenging the inaction of the authorities for regularizing the service of the petitioner/absorbing the petitioner against the regular vacancy post and further, non- compliance of the order passed by this Court in the earlier writ application of the petitioner, the petitioner approached this Court by filing the present writ application. 6. Learned Additional Standing Counsel for the State, referring to the counter affidavit filed by the Opposite Party Nos.3 and 4, submitted before this Court that initially a decision was taken by the Finance Department vide Resolution dated 22.11.2014 to regularize the service of the petitioner pursuant to the decision of the High Power Committee, the Finance Department vide letter dated 22.11.2014 communicated the // 4 // decision for regularization of service on contractual Group-‘C’ and Group-‘D’ in the Small Savings and directorate of Finance Department. Subsequently, the decision of the High Power Committed dated 22.11.2014 was revoked in its meeting dated 06.12.2014. Accordingly, the regularization of service of the petitioner was revoked vide order dated 10.01.2015. Thereafter, the High Power Committee once again considered the case of the petitioner and rejected the prayer of the petitioner for regularization of his service on the ground that the proper recruitment process has not been followed while engaging the petitioner, therefore, the petitioner is not entitled to benefit of G.A. Department circular dated 16.01.2014. In view of the aforesaid development, learned Additional Standing Counsel further contended that the Collector, Nuapada-Opposite Party No.3 had no alternative to obey the decision taken by the High Power Committee in this regard. Accordingly, learned Additional Standing Counsel appearing for the Opposite Parties submits that the writ application is devoid of merit and there is no ground to consider the case of the petitioner and the Opposite Parties have not committed any illegality in considering the case of the petitioner. 7. Having heard learned counsels appearing for the respective parties and on a careful consideration of the background facts of the present case as well as materials placed on record, this Court is of the considered view that the petitioner was initially regularized pursuant to the decision of the High Power Committee and subsequently, the High Power Committee // 5 // revoked the same on the ground that the petitioner has not been recruited by following the recruitment procedure. On perusal of the letter of the Collector dated 05.11.2022 under Annexure-9, it appears that the Collector, Nuapada-Opposite Party No.3 has strongly recommended the case of the petitioner by following the principles laid down in the case of Patitapaban Dutta Das vrs. State of Odisha and others (W.P.(C) No.19951 of 2020). Learned counsel for the petitioner also contended that the decision of this Court in the case of Patitapaban Dutta Das vrs. State of Odisha and others (supra) has already been taken by the division Bench of this Court. Therefore, the law laid down in the case of Patitapaban Dutta Das vrs. State of Odisha and others (supra) attains finality. this Court considering the factual background facts, the case of the petitioner covered by the ratio in the case of Patitapaban Dutta Das vrs. State of Odisha and others (supra) and further on perusal of the letter of the Collector, Nuapada under Annexure-9, this Court is also considered view that the petitioner has already completed more than ten years of service and as such, his service is to be regularized by following the law laid down by the Hon’ble Supreme Court in the case of State of Karnataka vrs. Umadevi ; reported in (2006) 4 SCC 1, in the case of State of Karnataka vrs. M.L. Keshari ; reported in (2010) 9 SCC 247 and in the case of Amarkant Rai vrs. State of Bihar ; reported in (2015) 8 SCC 265, which is also not disputed that the petitioner was appointed on regular vacant post on contractual basis. 8. In such view of the matter this Court finds that the // 6 // Opposite Parties have not adopted the correct approach, initially regularizing the service of the petitioner and subsequently, revoking the said regularization on the ground that the proper recruitment procedure was not followed. The proper recruitment process is not followed by the Opposite Parties should have violated initial regularizing the service of the petitioner. Further, it appears that while revoking the order, no opportunity was also provided to the petitioner to put forth the same before the authorities. In such view of the matter, this Court is of the considered view that the impugned order revoking the regularization of service of the petitioner dated 10.01.2015 under Annexure-I/4 to the counter affidavit is hereby quashed. Further, the parties are directed to regularize the service of the petitioner within a period of eight weeks from the date of communication of certified copy of this order. Decision so taken shall be communicated to the petitioner within two weeks thereafter. 9. With the aforesaid observation/direction, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. Signature Not Verified Jagabandhu Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 15-Aug-2023 12:18:27 ( A.K. Mohapatra ) Judge