The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.11230 of 2020 Surendra Panda & Others …. Petitioners Mr. M. Pati, Advocate -versus- Principal Secretary To Govt., High Education & Others …. Opposite Parties Mr. H.M. Dhal, AGA Dr. P. Chuli, Adv. for O.P.3 & 4 COROM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No 09. 1. This matter is taken up through Hybrid Mode. ORDER 20.02.2024 2. Heard learned counsel appearing for the Parties. 3. Petitioners have filed the present Writ Petition inter alia challenging the order dtd.16.12.2019 so passed by the Government-Opposite Party No.1 under Annexure-11. Vide the said order, request made by Berhampur University to approve the appointment of the Petitioners on regular basis in Group-D vacancy has been rejected. 4. It is the case of the Petitioners that Petitioners are all engaged on daily wages basis prior to 12.04.1993. While so continuing Berhampur University-Opposite Party No.4 issued a Notification on 01.01.2016 under Annexure-6 inviting applications from eligible employees working on DLR basis to fill up the vacancies both in Group-C & Group-D posts. Pursuant to the notification so issued under Annexure-6, Petitioners when made their application to get the benefit of appointment on regular basis against the sanctioned available vacant posts, the University vide office order dtd.27.04.2015 under // 2 // Annexure-7 extended the benefit but with the condition that the said benefit will be subject to approval of the Government and only after approval of the same, payment of regular salary will be considered. 4.1. It is contended that after passing of the office order dtd.27.04.2015 under Annexure-7, the University moved the Government, Opposite Party No.1 vide letter dtd.22.12.2016 under Annexure-8 seeking approval of order dtd.27.04.2015. On receipt of the same, Opposite Party No.1 vide letter dtd.30.11.2019 under Annexure-9 requested the University to provide certain information/documents, which are reproduced hereunder: “1. Copy of the gradation list of daily wage workers engaged in Berhampur University prior to 12.04.1993. 2. Copy of the office order in which the daily wage workers engaged prior to 12.04.1993 have been conferred with the ‘Temporary Status’. 3. If the Petitioners were conferred with the ‘Temporary Status’ prior to their regularization against vacant Group-‘D’ posts. 4. Numbers of sanctioned Group-D post and the Group-D post lying vacant on the date of regularization of the petitioners. Whether ORV Act and Rules have been followed in 5. regularization of the petitioners”. 4.2. It is contended that the University on receipt of the letter under Annexure-9, provided the required information/documents vide letter dtd. 03.12.2019. The clarification so indicated in Annexure-10 is reproduced hereunder:- “1. Copy of the gradation list of Daily wage workers engaged in Berhampur University prior to 12.04.1993 is enclosed. The scheme 2. implemented then. for conferment status was not Page 2 of 6 // 3 // 3. 181 no’s of Group-D sanctioned post and 18 no’s of Group-D post lying vacant on the date of regularization of the petitioners i.e. by 27.04.2015. ORV Act and 4. regularization of the petitioners page24/N)”. rules have been (Orders followed in in note sheet 4.3. It is contended that even though while providing the clarification, the University clearly indicated that all the Petitioners were engaged prior to 12.04.1993 on daily wages basis and by the time the order dtd.27.04.2015 under Annexure-7 was issued there were 18 nos. of vacant Group-D posts as against 181 nos. of sanctioned Group-D Post. It is also indicated that while being engaged on daily wages basis, provisions of ORV Act and Rules have been duly followed. But without considering the same in its proper perspective, Opposite Party No.1 passed the impugned order under Annexure-11 by not approving the request made by the University vide letter dtd.22.12.2016 under Annexure-8. 4.4. Learned counsel for the Petitioners contended that since there is no dispute that the Petitioners are all engaged prior to 12.04.1993 and as on the date passing of the order dtd.27.04.2015 there was 18 nos. of vacant Group-D post against which Petitioners were all regularized, Government-Opposite Party No.1 should not have rejected the request made by the University for approval of the order of regularization so passed on 27.04.2015 under Annexure-7. It is accordingly contended that the impugned order under Annexure-11 is not sustainable in the eye of law and it requires interference of this Court. 5. Dr. P. Chuli, learned counsel appearing for the Opposite Party Nos.3 and 4 does not dispute the Page 3 of 6 // 4 // submissions made by the learned counsel for the Petitioners with regard to engagement of the Petitioners prior to 12.04.1993 and the order of regularization passed by the University on 27.04.2015 under Annexure-7 and so also the request made by the Government under Annexure-9 and its compliance vide Annexure-10. However, it is contended that the Petitioners vide order dtd.27.04.2015 were appointed on temporary basis against Group-D post and the said order was subject to approval of the Government-Opposite Party No.1. Therefore, seeking approval of the appointment, the University moved the Government under Annexure-8 and also provided the clarification under Annexure-10. But since Government refused to accord the approval while passing the impugned order, Petitioners have not yet got the benefit of order dtd. 27.04.2015.
Legal Reasoning
6. Mr. H.M. Dhal, learned Addl. Government Advocate for the State on the other hand made his submissions basing on the stand taken in the counter affidavit. As like learned counsel appearing for the University, learned Addl. Government Advocate also does not dispute the fact that the Petitioners were all engaged prior to 12.04.1993. But only on the ground that Petitioners were engaged without following due recruitment process and accordingly they are not eligible to get the benefit of regularization, Opposite Party No.1 refused to accord the approval while passing the impugned order under Annexure-11. It is further contended that since the Petitioners are continuing on DLR basis prior to 12.04.1993, in view of the Resolution issued by Finance Department on 04.09.2012 under Annexure- F/1 to the counter, they are eligible to get the benefit of temporary status. Page 4 of 6 // 5 // 6.1. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that the Petitioners are all engaged on daily wages basis prior to 12.04.1993. Taking into account the vacancy of 18 nos. of Group-D sanctioned posts, the University issued the Notification on 01.01.2016 under Annexure-6 inviting applications from eligible daily wages employees to get the benefit of regularization. On consideration of such applications submitted by eligible daily wages employees, Petitioners were appointed on temporary basis as against the vacant Group-D post vide office order dtd.27.04.2015 under Annexure-7, but with the condition that they will get the regular salary only after the order is approved by the Government. 6.2. The University thereafter vide letter dtd.22.12.2016 under Annexure-8 requested the Government to approve the appointment of the Petitioners so made vide office order dtd.27.04.2015 under Annexure-7. On receipt of the same, Government-Opposite Party No.1 when sought for some clarification vide letter dtd.30.11.2019 under Annexure-9, the same was duly clarified by the University vide its letter dtd. 03.12.2019 under Annexure-10. From the said clarification, it is found that the University admits about the engagement of the Petitioners on daily wages basis prior to 12.04.1993. The University also admits that Petitioners were so engaged on daily wages by following the provisions of ORV Act and Rules. 6.3. It is also clarified that by the time office order dtd.27.04.2015 under Annexure-7 was passed, there are 18 nos. of sanctioned Group-D posts lying vacant as against 181 nos. of sanctioned Group-D posts in the Page 5 of 6 // 6 // University. In view of the aforesaid analysis, it is the considered view of this Court that since Petitioners are all engaged prior to 12.04.1993 and they were issued with the order of regularization taking into account the vacancy available as against sanctioned vacant Group-D posts at the relevant point of time, Opposite Party No.1 should not have refused to accord the approval on the ground indicated in Annexure-11. 7. Therefore, this Court is inclined to quash office order dtd.16.12.2012 so passed Opposite Party No.1 under Annexure-11. While quashing the same, this Court directs Opposite Party No.1 to accord necessary approval to the request made by the University vide its letter dtd.22.12.2016 under Annexure-8 within a period of six (6) weeks from the date of receipt of this order. On receipt of the approval from the Government, Opposite Party Nos.3 and 4 shall take effective steps to release the regular salary as due and admissible in favour of the Petitioners within a further period of four (4) weeks. 8. With the aforesaid observations and directions, the
Decision
Writ Petition stands disposed of. Subrat (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 26-Feb-2024 11:23:34 Page 6 of 6