The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.9326 of 2022 Patitapaban Dutta Dash & others …. Petitioners Mr. B.S. Tripathy 1, Advocate State of Odisha & others -versus- …. Opposite Parties Mr. N.K. Praharaj, AGA W.P.(C) No.22301 of 2023 Sanjib Ranjan Naik & others State of Odisha & others -versus- …. Mr. B.S. Tripathy 1, Advocate Petitioners …. Opposite Parties Mr. N.K. Praharaj, AGA W.P.(C) No.21596 of 2022 Ajaya Kumar Behera & others …. Mr. B.S. Tripathy 1, Advocate Petitioners State of Odisha & others -versus- …. Opposite Parties Mr. N.K. Praharaj, AGA W.P.(C) No.22786 of 2022 Ananda Kumar Nanda & others
Legal Reasoning
…. Mr. B.S. Tripathy 1, Advocate Petitioners State of Odisha & others -versus- …. Opposite Parties Mr. N.K. Praharaj, AGA W.P.(C) No.9501 of 2023 Subijit Dash & others State of Odisha & others -versus- …. Mr. B.S. Tripathy 1, Advocate Petitioners …. Opposite Parties Mr. N.K. Praharaj, AGA // 2 // W.P.(C) No.9502 of 2023 Arabinda Panda & others State of Odisha & others -versus- …. Mr. B.S. Tripathy 1, Advocate Petitioners …. Opposite Parties Mr. N.K. Praharaj, AGA W.P.(C) No.17083 of 2023 Smruti Ranjan Rajguru & others …. Petitioners Mr. B.S. Tripathy 1, Advocate State of Odisha & others -versus- …. Opposite Parties Mr. N.K. Praharaj, AGA W.P.(C) No.22298 of 2023 Bidyadhar Biswal & others State of Odisha & others -versus- …. Mr. B.S. Tripathy 1, Advocate Petitioners …. Opposite Parties Mr. N.K. Praharaj, AGA W.P.(C) No.22299 of 2023 Nandalal Barik & others State of Odisha & others -versus- …. Mr. B.S. Tripathy 1, Advocate Petitioners …. Opposite Parties Mr. N.K. Praharaj, AGA W.P.(C) No.22300 of 2023 Prashanta Kumar Dandasena & others State of Odisha & others -versus- …. Petitioners Mr. B.S. Tripathy 1, Advocate …. Opposite Parties Mr. N.K. Praharaj, AGA // 3 // W.P.(C) No.22303 of 2023 Anjali Maharana & others State of Odisha & others -versus- …. Mr. B.S. Tripathy 1, Advocate Petitioners …. Opposite Parties Mr. N.K. Praharaj, AGA W.P.(C) No.22305 of 2023 Jitendra Meher & others State of Odisha & others -versus- …. Mr. B.S. Tripathy 1, Advocate Petitioners …. Opposite Parties Mr. N.K. Praharaj, AGA W.P.(C) No.22308 of 2023 Mahaprasad Panda & others State of Odisha & others -versus- …. Mr. B.S. Tripathy 1, Advocate Petitioners …. Opposite Parties Mr. N.K. Praharaj, AGA CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 25.07.2023 03. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard Mr. B.S. Tripathy 1, learned counsel appearing for the petitioner as well as Mr. N.K. Praharaj, learned Addl. Government Advocate for the State-Opposite Parties. Perused the pleadings of the respective parties as well as the documents annexed thereto. 3. The present batch of writ applications have been filed with a prayer to quash the impugned letter No.10431 dt.02.04.2022 issued by Opposite Party No.1 under Annexure-18 by declaring the same is to be // 4 // illegal and contrary to the direction of this Court dt.03.02.2020 in W.P.(C) No.3678 of 2020 and direction dt.09.09.2021 of this Court in W.P.(C) No.19951 of 2020 read with letter No.6299 dt.21.02.2016 of the Revenue Department, Govt. of Odisha under Annexure-10. A further prayer has been made to direct the Opposite Parties to comply with the judgment dt.09.09.2021 passed in W.P.(C) No.19951 of 2020 by regularizing the services of the Petitioners as DEOs with grant of all consequential service and monetary benefits. 4. It is submitted by Mr. Tripathy, learned counsel appearing for the Petitioners that about 600 odd base level posts as was existing on 01.04.2004 under the Director, Consolidation of Holdings, Orissa were abolished pursuant to a decision taken on 15.09.2006 under the Chairmanship of the Hon’ble Finance Minister, Govt. of Odisha. After abolition of the aforesaid 600 odd Consolidated Grade-1 posts, a further decision was taken for sanction and creation equal number of 600 posts of DEO-cum-Assistant to be engaged in 171 Tahasils in the State of Odisha. The aforesaid decision of the of the Govt. of Odisha in Revenue & DM Department was communicated vide letter dt.24.11.2006 for engagement of 600 odd Date Entry Operators-cum- Assistants at different Districts Level by the Collector of Districts to render assistance for preparation and distribution of Land Pass Books initially for a period of six months on a consolidated remuneration of Rs.4000/- per month. 5. So far, the Cuttack District is concerned, 48 posts of Data Entry Operators-cum-Assistants were approved to be created. The same was advertised in the Odia Daily News Paper “Samaja” and “Dharitri” and the District Employment Exchange was also requested to supply names of eligible candidates having the required qualification i.e. DCA/PGDCA qualification for being appointed as // 5 // Data Entry Operators-cum-Assistants in various Tahasils of Cuttack Districts. Accordingly, the names of 150 candidates including the Petitioners in the batch of connected writ application were shortlisted and they were asked to appear in the Written Test as well as in Computer Test which was held on 31.01.2008. By referring to the aforesaid factual background, the learned counsel for the Petitioners contended that the Petitioners were duly selected by following a valid selection process. Accordingly, the petitioners were selected and they were engaged as Data Entry Operators-cum-Assistants in various Tahasils under Cuttack District. Initially, the Petitioners were engaged in the year 2008 on different dates and they have been continuing as such till date. 6. While working as such pursuant to the decision of the Government the remuneration of the Petitioners was being enhanced from time to time. In the meantime the Govt. of Odisha prepared a policy for regularistion of the services of contractual employees in Group-C and Group-D cadre by issuing a resolution No.26108 dt.17.09.2013 to the GA & PG Department, Govt. of Odisha. Such policy decision reveals that the Group-C and Group-D employees who have been engaged on contractual basis by following a valid selection process, their services are to be regularised on completion of contractual service of 6 years. The said resolution also reveals that on completion of 6 years, they shall be deemed to have been regularised against such regular vacant posts in which they were working on contractual basis. 7. Since, the services of the Petitioners who have not been regularised pursuant to the resolution dt.17.09.2013 of the GA & PG Dept., Govt. of Odisha along with other similarly situated persons, they had earlier approached this Court with a prayer for // 6 // regularisation of their services by filing W.P.(C) No.19951 of 2020 seeking a direction to the Opposite parties to issue formal letter of regularisation on completion of 6 years contractual service in the scale of pay which is attached to the posts against which they were appointed on contractual basis with all admissible dues and allowances pursuant to GA Dept. Resolution dt.17.09.2013. 8. A Coordinate Bench of this Court vide a detailed judgment dt.09.09.2021 allowed the writ application and in para-28 of the judgment the Opposite Parties were directed to regularise the services of the Petitioners by issuing a formal letters of regularisation in terms of the G.A. Department resolution dt.17.09.2013 as the Petitioners have completed of 6 years service and to grant them all consequential service and financial benefits in accordance with the law within a period of two months from the date of communication of that judgment. 9. The State-Opposite Parties being aggrieved that the judgment dt.09.09.2021 passed in W.P.(C) No.19951 of 2020 in the case of the present petitioners preferred a writ appeal bearing W.A. No.777 of 2021. The Hon’ble Division Bench vide order dated 18.11.2021 admitted the said writ appeal. However, at the time of admission no interim order was passed basing upon the undertaking of the learned counsel of the Petitioners that they shall not file any contempt petition. Finally, the above noted writ appeal was heard by the Hon’ble Division and the same has been dismissed in the meantime by upholding the judgment delivered by the Coordinated Bench which has been referred to hereinabove. 10. Learned counsel for the petitioners, at this juncture contended that since the learned Single Judge had earlier disposed of the writ application by directing the State-Opposite Parties to regularise the // 7 // services of the Petitioners on completion of 6 years of contractual service in view of the GA Dept. Resolution referred to hereinabove, such judgment of the learned Single Judge have already been affirmed by the Hon’ble Division Bench in the above noted writ appeal, the Opposite Parties are bound to implement the judgment delivered by the learned Single Judge in the case of the petitioners as well as similarly situated many other persons. Therefore, the present writ application has been filed seeking a direction to the Opposite Parties to immediately act upon the judgment of the learned Single Judge dt.09.09.2021 which has been directed to be complied with within a period of twelve weeks by the Hon’ble Division Bench in W.A. No.777 of 2021 vide order dated 12.04.2020. 11. Learned Addl. Government Advocate, on the other hand submitted that the State-Opposite Parties have preferred an appeal before the Hon’ble Supreme Court against the judgment delivered by the Hon’ble Division Bench in W.A. No.777 of 2021. He further contended that although a SLP has been filed before the Hon’ble Supreme Court on 10.07.2023. However, the same has not been taken up for admission as of now by the Hon’ble Apex Court and as such no interim order has been passed staying operation as the impugned order. However, they are expecting the same to happen very soon. 12. Learned counsel for the Petitioner in reply to the aforesaid contention of the learned Addl. Government Advocate submitted that the State-Opposite Parties are not taking any steps for the early listing of the aforesaid SLP. He further contended that by filing the aforesaid SLP, the State-Opposite Parties have been trying to buy time as it is evident from the information contained in the website of the Hon’ble Supreme Court that the case has been filed with a defect and till date such defect has not been removed. // 8 // 13. In addition, this Court is of the considered view that the Petitioners have succeeded before the learned Single Judge Bench and the judgment of the learned Single Judge has been affirmed by the Division Bench of this Court in writ appeal. Therefore, they are lawfully entitled to enjoy the fruit of the judgment delivered by the learned Single Judge which has been affirmed by the Hon’ble Division Bench. No doubt, the State-Opposite Parties have a right to approach before the Hon’ble Apex Court by challenging the judgment passed by this Court, however, at the same time, they are also under a legal obligation to implement the judgment passed by this Court within the time stipulated by this Court. As it appears, till date the judgment delivered by this Court has not been implemented and the State-Opposite Parties have not been able to list the SLP filed before the Hon’ble Apex Court and no interim order has been obtained as of now. 14. This Court further observed that mere filing of the SLP before the Hon’ble Apex Court does not amount to stay of operation of the judgment delivered by this Court. Moreover, if the State-Opposite Parties are really serious about the issue, then they would have taken steps for an early listing of the matter before the Hon’ble Apex Court as the time granted by the Division Bench to implement the judgment has already been expired in the meantime. 15. Moreover, it was also alleged by learned counsel for the Petitioners that taking advantage of the pendency of the filing of the SLP (with defect both), the State-Opposite Parties have issued a fresh advertisement for recruitment to the post which are being held by the present Petitioners only with the intention to throw them out. This Court cannot subscribe and approve the later development and permit the Petitioner to violate the judgment delivered by this Court by the // 9 // State-Opposite Parties. This Court at this juncture would like to refer that the duty of the Court is not only to do justice, but to see that the justice is being done to the parties before it. By applying the aforesaid well established principle of law, this Court deems it proper to protect the Petitioners till a final decision is taken by the Hon’ble Apex Court on the SLP filed by the State-Opposite Parties. 16. Another important aspect of the matter which is noteworthy is that the State-Opposite Parties being aggrieved by the judgment of this Court approached the Hon’ble Supreme Court by filing an SLP. While the said SLP has not been listed even once, the Opposite Parties are trying to alter the ground position by issuing a fresh advertisement. Such conduct definitely reflects upon the fairness of the conduct of the Opposite Parties. Fairness, in my view, is a fundamental principle of good administration as has been held in the landmark judgment in Pearlberg vs. Varty reported in (1972) 2 All ER 6 and approved and followed by the Hon’ble Supreme Court of India in many judgments. Such a principle has been evolved to ensure that the wide power vested in State is not abused, more so, in the context of present case by abusing the process of law. In such view of the matter, it becomes more relevant to protect the interest of the Petitioners, who have succeeded before this Court. 17. In view of the aforesaid analysis of facts as well as legal position, this Court deems it proper and in the larger interest of justice that the Opposite Parties be directed to issue the order of regularisation as has been directed by the learned Single Judge which has been confirmed by the Hon’ble Division Bench as expeditiously as possible preferably within a period of four weeks from today. Further, it is made clear that such regularisation of services of the Petitioners shall be subject to the direction to be issued by the // 10 // Hon’ble Supreme Court SLP (Diary No.27113 of 2023) filed on 10.07.2023 (in the matter of State of Odisha vs. Patitapaban Dutta Dash). Accordingly, the requisition under Annexure-18 for recruitment to the post of Revenue Assistant shall be kept in abeyance and the same shall abide by the final decision to be taken by the Hon’ble Supreme Court in the above noted SLP Diary No.27113 of 2023. 18. With the aforesaid observations/ directions, the batch of writ applications stand disposed of. Issue urgent certified copy of this order as per Rules. Anil ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 28-Jul-2023 18:51:32