The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.10985/2013,11195/2013 and 17295/2013 (Applications under Articles 226 and 227 of the Constitution of India) A.F.R. In W.P.(C) No.10985/2013 Pramod Ranjan Dash and others … Petitioners -versus- State of Odisha & others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioners : Mr.J. Pattanaik, Sr. Advocate, Mr. S.S.Das, Sr. Advocate Ms. S. Pattnaik, Advocate -versus- For Opposite Parties : Mr. S.N.Patnaik, A.G.A In W.P.(C) No.11195/2013 Sukadev Prusty and Ors. … Petitioners -versus- Union of India & others … Opposite Parties W.P.(C) No.10985 of 2013 and batch Page 1 of 22 Advocates appeared in the case through hybrid mode: For Petitioners : Mr. J. Pattnaik, Sr. Advocate, Ms. S.Pattnaaik, Advocate -versus- For Opposite Parties : Mr. S.N.Patnaik, A.G.A, Mr. P.K Parhi, DSGI along with Mr. S. Patro, CGC for (O.P No.-1& 4) Mr. A. Saa, CGC for (O.P No. 1 & 4) In W.P.(C) No.17295/2013 Harekrushna Mishra & Anr. … Petitioners -versus- Union of India & others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioners : Mr. J. Pattnaik, Sr. Advocate, Mr. B. Mohanty, Advocate -versus- For Opposite Parties : Mr. S.N. Patnaik, A.G.A Mr. Bhaktilata Bal along with Mr. Bimbisar Dash, CGC (for O.P No.-1) --------------------------------------------------------------------------- W.P.(C) No.10985 of 2013 and batch Page 2 of 22 CORAM: JUSTICE SASHIKANTA MISHRA 25.04.2025. JUDGMENT Sashikanta Mishra,J. All these Writ Petitions involve common facts and law and being heard together, are disposed of by this common judgment. 2. The petitioners in all these Writ Petitions have challenged the orders of disengagement w.e.f. 29.4.2013 of their services from different posts held by them in the State Institute of Educational Technology (SIET). Facts. 3. The Government, with a view to promote primary and secondary level education through audio visual educational programmes initiated the Educational Television Programme in the year 1980, commonly known as ETV. Said programme was under direct control of State Council for Educational Research and Training (SCERT). The Central Government, in its department of Human Resource W.P.(C) No.10985 of 2013 and batch Page 3 of 22 Development suggested grant of autonomy to the said ETV in the year 1990. Consequently, the State Government renamed the organization as SIET and conferred it with autonomous status w.e.f. 1.1.1990. Prior to coming into being of SIET, the Central Government had sanctioned creation of 120 posts pursuant to which the State Government created 118 posts under the INSAT Scheme at different times in between 1983 to 1984. The petitioners were recruited by a duly constituted selection committee through open advertisement against the said substantive posts. By resolution dtd.10.1.90, the State Government converted SIET into an autonomous organization w.e.f. 1.1.1990 being registered under the Registration of Societies Act, 1860. It was provided that the erstwhile Education and Youth Services Department shall be the administrative department of the Institute. 4. Be it noted that by a Notification dtd.15.5.1992, the Government of India suggested that the regulations of the State Government governing the conditions of W.P.(C) No.10985 of 2013 and batch Page 4 of 22 service applicable to the employees of the SIET immediately before the conversion will continue to be applicable unless specifically modified by the Managing Committee. As such, the Governing Body of SIET, in its 3rd meeting dtd.9.7.1992, resolved to adopt the aforesaid recommendation and that till finalization of the Rules to govern the SIET, the Rules of the Government of Odisha as followed prior to grant of autonomy would continue to govern the service conditions of the employees. On 21.4.1995, the Executive Committee of SIET, inter alia, resolved to continue following the State Rules. Several other decisions relating to post-to-post parity etc. were also taken including extension of benefits of GPF as well as pension to the employees. 5. While the matter stood thus, some employees approached this Court in W.P.(C) No.4971/2008 for a direction to the authorities to frame separate rules and for grant of service benefits such as GPF and pension. However, the State Government having W.P.(C) No.10985 of 2013 and batch Page 5 of 22 declared SIET to be defunct/closed w.e.f. 29.4.2013, said Writ Petition became infructuous. Upon such abrupt closure of SIET, the petitioners were informed that they have been disengaged w.e.f. 29.4.2013. The orders of disengagement are impugned in these Writ Petitions. According to the Petitioners, such action of the authorities is highly discriminatory since several other employees of SIET were relocated in various departments of the Government by treating them as deputationists. Stand of the State. 6. While admitting that the Government of India had sanctioned 120 posts between 1983-84 to 1984-85 and the creation of 118 posts in between 1983-84 to 1987- 1988, it was stated that only 63 employees were duly recruited by the State Government by 31.12.1989. These employees were treated as Government employees being recruited vide Government Order No.6923/EYS dated 14.2.1986 by the erstwhile Education and Youth Services Department. The employees who were engaged after 1.1.90 were treated W.P.(C) No.10985 of 2013 and batch Page 6 of 22 as autonomous employees as their engagement was temporary and subject to continuance of the scheme. Therefore, there is no question of any discrimination. 7. As regards the 63 employees, they having been appointed against sanctioned posts were repatriated and accommodated in different posts under Departments as their continuance was not dependent on the central scheme. Rather, they were appointed against posts created and sanctioned prior to grant of autonomous status of SIET w.e.f. 1.1.90. Further, deputation of these 63 employees was sanctioned from 01.1.90 to 31.12.1999 vide Government letter dtd.19.7.2002 and subsequently, the Government sanctioned their deputation individually for the period from 1.1.2000 to 31.3.2012 in the year 2020. Therefore, the Petitioners cannot claim any parity with these 63 employees. Appearance. 8.
Legal Reasoning
domain of its policy. But then, it is settled law that the question of discrimination arises when by law or executive action a classification is made within a class whereby two or more classes born out of such classification are treated unequal without any justifiable reason. Specification of a cut-off date, dividing the employees into two classes will be violative W.P.(C) No.10985 of 2013 and batch Page 18 of 22 of Articles 14 and 16 (1) of the Constitution if the division is of a homogeneous class and without any discernable reason or if no reason is disclosed. Reference may be had in this regard to the oft-quoted judgment of the Supreme Court in the case of D.S. Nakara vs. Union of India; 1983 (1) SCC 305. 16. In the instant case, change in the nature of organization is cited as the reason. Ordinarily, this could be treated as a plausible reason justifying the treatment of two sets of employees differently. But then, as already noted, if, despite change in the nature of the organization, appointments are continued to be made against posts created for the same organization in its previous avatar, the thread of continuity, though slender, can be hardly denied. As such, this Court is of the considered view that notwithstanding the language employed in the appointment orders issued in favour of the Petitioners, there is essentially no distinction between them and the 63 employees appointed earlier. What the State appears to have done is to treat the 63 W.P.(C) No.10985 of 2013 and batch Page 19 of 22 employees differently while shutting its eyes in respect of the petitioners. The fact that the abrupt closure of the institute resulting in disengagement of the petitioners would result in loss of their livelihood does not appear to have been considered in the least before issuing the orders of disengagement. While 63 employees have been adjusted against vacancies in different departments, the petitioners have been shown the door. From what has been narrated above, this Court is convinced that these petitioners have been unfairly dealt with. To recapitulate, the action of the State would have been justified had proper steps been taken for creation of posts specifically for SIET at the relevant time that is, on and from 1.1.1990 when it became autonomous. If the Government, in its wisdom decided to continue with the same arrangement as regards the posts, it cannot obviously turn around later and wash its hands off the subsequent appointees. It would be akin to the State questioning its own action. Summation W.P.(C) No.10985 of 2013 and batch Page 20 of 22 17. From a conspectus of the analysis of facts and law and the contentions advanced, this Court holds that the Petitioners having been appointed against substantive posts created by the Government prior to 1.1.1990 and continuing in service for more than two decades, cannot be disengaged by treating them differently than the employees appointed prior to 1.1.1990. The attempt of the State to distinguish the Petitioners from the 63 employees, if permitted, would entail creation of a class within a class, which cannot be countenanced in law. The petitioners and the 63 employees stand on the same footing except for the condition of their appointment being co-terminus with the scheme. If the 63 employees were adjusted against different posts by applying the legal fiction of deputation, there is no reason why the petitioners should also not be appointed in similar fashion. Conclusion. 18.
Arguments
Heard Mr. Jagannath Pattnaik, learned Senior counsel with Ms. S. Pattnaik and Mr.S.S.Das, learned W.P.(C) No.10985 of 2013 and batch Page 7 of 22 counsel appearing for all the Petitioners and Mr. S.N. Patnaik, learned Addl. Government Advocate for the State. Submissions 9. Mr. Pattnaik, learned Senior counsel, leading the arguments on behalf of all the Petitioners, would argue that the Petitioners having been appointed against posts sanctioned and created prior to 01.1.90 cannot be treated differently only because they were appointed after 1.1.1990 though the status of the institute changed, the source of appointment of the Petitioners did not undergo any change inasmuch as they were appointed against posts already in existence prior to 1.1.1990. Furthermore, the petitioners were appointed after successfully undergoing a selection process. Only because the Director of SCERT issued appointment orders in favour of 63 employees cannot make them any more Government employees than the petitioners. Mr. Pattnaik further argues that the Petitioners were recruited against the posts created on 30.4.1984, W.P.(C) No.10985 of 2013 and batch Page 8 of 22 14.2.1986 and 23.2.1988 by the erstwhile Education and Youth Services Department specifically for the SIET under the INSAT scheme. Since it had no independent structure, SIET functioned under the control of SCERT with its Director being the functional authority of SIET. The post of Director was created on 24.8.1991 after the institute was granted functional autonomy. Nevertheless, Education and Youth Services Department continued to be the Administrative Department of the Institute. Mr. S.S.Das, while adopting the argument of learned Senior counsel Mr. Pattnaik adds that some of the Petitioners were appointed prior to 01.1.1990 namely, Petitioner Nos.2 and 8 in W.P. (C) No.11195/2013, in spite of which they were treated as staff of the autonomous organization. Referring to the letter dtd.19.7.2002, Mr. Das would argue that the so-called deputationists were absorbed in SIET permanently from 1.1.2000 and it was specifically provided that under no circumstances the period of deputation will be extended after 31.12.1999. As such, in the absence of any further W.P.(C) No.10985 of 2013 and batch Page 9 of 22 order, said 63 employees must also be deemed to have been finally absorbed in SIET w.e.f. 01.1.2000, thus becoming similarly placed as the Petitioners. The Government cannot create a class within a class by treating 63 employees as deputationists and the remaining 24 employees as belonging to the autonomous organization. The orders of appointment, scale of pay and other service conditions of these two sets of employees are same. Mr. Das also questions the correctness of the decision of the Government to close down the Institute for want of financial assistance by submitting that as per information received under the R.T.I. Act, the State Government had received Rs.44 crores towards implementation of ICT @ School Scheme from the Ministry of Human Resource Development, Government of India. 10. Per contra, Mr. S.N.Patnaik, learned Addl. Government Advocate, would argue that there is a clear-cut demarcation as regards status of SIET before 01.1.1990 and after it, inasmuch as it used to function W.P.(C) No.10985 of 2013 and batch Page 10 of 22 under the SCERT, but after 1.1.1990, it became autonomous. The status of the Institute having undergone wholesale transformation, the claim of the Petitioners, all of whom were appointed after 1.1.1990 cannot be considered with reference to the previous period. Though 118 posts were created, State Government had directly recruited only 63 employees as on 31.12.1989. According to Mr. Pattnaik therefore, only these person can be treated as Government employees. On the other hand, those who were engaged after 01.1.1990 are to be treated as autonomous employees as their engagement was temporary and specifically subject to continuance of the scheme. There is, therefore, no discrimination in the treatment of the Petitioners by the Government. The 63 employees, who were appointed prior to 1.1.1990 were treated as deputationists with their deputation being sanctioned by the Government from 1.1.1990 to 31.12.1999 and 1.1.2000 to 31.3.2012. As per the decision taken on 15.4.2009 under the chairmanship of Development Commissioner-cum- W.P.(C) No.10985 of 2013 and batch Page 11 of 22 Addl. Chief Secretary, the deputed staff were called upon to give option if they want to continue in the autonomous body of SIET or to revert back to the State Government. An in house committee was formed to look into the details of reversion of the deputed staffs, who exercised their option. Since adequate posts were not available under the S & M.E. Department, other line Departments were requested and accordingly, the 63 employees were adjusted in different posts under different departments. Mr. Pattnaik further argues that the continuance of the 63 employees after 01.1.1990 was never dependent on the central scheme rather they were appointed against posts created and sanctioned prior to 01.1.1990. Since the Central Government did not provide funds to the State Government for providing the same directly into SIET, the Government decided to close down the institution. Accordingly, the petitioners were disengaged along with other autonomous staffs. 11. Analysis and findings. W.P.(C) No.10985 of 2013 and batch Page 12 of 22 This Court has given its anxious consideration to the contentions raised. The facts, as pleaded, are not disputed inasmuch the petitioners (except Petitioner Nos.2 and 8 in W.P.(C) No.11195/2013) were appointed after 1.1.1990 SIET became an autonomous organization w.e.f. 1.1.1990 being entirely funded by the Central Government. It would be profitable to first consider the nature of appointment of the 63 employees appointed prior to 01.1.1990. The State in its counter has referred to the Government Order No.6923/EYS dtd.14.2.1986 of the Education Youth Services Department, whereby posts were created against which the 63 employees were appointed at different times. Some of the appointment orders have been enclosed to the counter as Annexure-C/1. Perusal of the appointment orders reveal that the specific Government order regarding creation of posts have been referred to therein. In contrast, the order of appointment issued in respect of the Petitioners, copies of which are enclosed as Annexure-D/1, reveals that the same makes no reference to any Government order W.P.(C) No.10985 of 2013 and batch Page 13 of 22 regarding creation of the post and on the other hand, mentions that the appointment is temporary subject to continuance of the Scheme. As already indicated, the State has harped upon this difference to segregate the 63 employees appointed prior to 1.1.1990 with the Petitioners, appointed after 1.1.1990. 12. Notwithstanding the fact that the appointment orders issued in favour of the Petitioners contains no reference to the corresponding Government order regarding creation of posts, there is no gainsaying the fact that such appointment could not have been made against a non-existing post. The specific contention raised by the Petitioners that, they too were appointed against posts created by the State Government prior to 1.1.1990 has not been specifically disputed or denied by the State Government. Further, SIET, though become an autonomous organization, yet the unfilled posts out of 118 posts created earlier were not abolished nor any such posts were specifically created for SIET to be filled up after 1.1.1990. It can therefore W.P.(C) No.10985 of 2013 and batch Page 14 of 22 be reasonably accepted that even the persons who were appointed after 1.1.1990 were so appointed against the posts already in existence being created by the Government prior to 1.1.1990. According to the State, the 63 employees who were in place as on 1.1.1990 were treated as deputations. What is the meaning of deputationists? Odisha Service Code deals with deputation under Chapter VIII covering Rules 212 to 231. In the case of State of Punjab vs. Indersingh; 1997 (8) SCC 372, the Supreme Court explained the concept of ‘deputation’ in the following words; “Deputation has a different connotation in service law and the dictionary meaning of the word "deputation is of no help. In simple words "deputation’ means service outside the cadre or outside the parent department, Deputation is deputing or transferring an employee to a post outside his cadre that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The necessity for sending W.P.(C) No.10985 of 2013 and batch Page 15 of 22 on deputation arises in public interest to meet the exigencies of public service, e.g, an unexpected and natural calamity of floods might necessitate employees from other departments to be deputed to the Irrigation department for a particular period. In the State of Mysore vs. MH Bellary the Supreme Court explained that the service of an officer on deputation in the department to which he is deputed is equivalent to service in the parent department.” 13. Thus, ordinarily understood, ‘deputation’ means a person appointed originally in a particular department is assigned to work in another institution/organization etc. After end of such assignment (deputation), the employee is repatriated to his ‘parent department’. 14. Coming to the case at hand, admittedly the 63 employees appointed prior to 01.1.1990 by SCERT were against substantive posts. By way of a legal fiction they were treated to be on deputation to SIET after the latter became an autonomous organization. This Court, prima facie, finds nothing wrong in the decision of the Government to treat the said employees as deputationists, but then, in the absence of any change occurring in the source of the posts against W.P.(C) No.10985 of 2013 and batch Page 16 of 22 which both the 63 employees as well as petitioners namely, the different Government orders regarding creation of posts between 1983 to 1988, there cannot really be any distinction between these two sets of employees as is being sought to be projected by the State. As already stated, if the nature of SIET underwent a change from 01.1.1990 thereby severing its connection with its previous identity, then as a natural corollary, separate posts should have been created for its employees. On the contrary, persons were appointed against substantive posts created when the same organization was in existence, albeit in a different form. The State has not been able to satisfactorily explain as to against which posts, the Petitioners were appointed, if not, against the posts already in existence prior to 01.1.1990. This, in the considered view of this Court, is the crux of the issue and lends considerable weight to the contentions advanced on behalf of the Petitioners that they have been treated differently than the 63 employees. W.P.(C) No.10985 of 2013 and batch Page 17 of 22 15. This also has resulted in creation of a class within a class which is impermissible in law. As long as the source of appointment remains the same, i.e. the substantive posts created by the Government, it would be iniquitous to treat different employees differently, as it would result in discrimination. The discrimination is also all the more evident from the fact that there is wholesale identity otherwise between these two set of employees as regards their scale of pay, service conditions etc. The only difference is that the appointment of the Petitioners was made co- terminus with the scheme. This Court is not concerned with the correctness or otherwise of the decision of the Government in closing down SIET as it falls within the
Decision
In the result, the Writ Petitions succeed and are therefore, allowed. The impugned orders of disengagement are hereby set aside. The Opp. Parties W.P.(C) No.10985 of 2013 and batch Page 21 of 22 authorities are directed to adjust the Petitioners against available vacancies in any Department/Directorate of the State Government granting them continuity of service and other service benefits. Necessary orders in this regard should be passed within three months from the date of communication of this judgment or production of certified copy thereof. 19. With these observations, the Writ Petitions are disposed of. ………..…….……………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.D.R.-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Jul-2025 13:09:00 W.P.(C) No.10985 of 2013 and batch Page 22 of 22