The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.13553 of 2020 Tapan Kumar Mohanty ....... Petitioner -Versus- State of Odisha ....... Opp. Party For Petitioner : Mr. B. Routray, Sr. Advocate For Opp. Party : Mr. S.N. Pattanaik,AGA ---------------------------- P R E S E N T: MR. JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------- Date of Hearing: 09.08.2023 Date of Judgment: 31.10.2023 --------------------------------------------------------------------------------- S.K. Mishra, J. The Writ Petition has been preferred with a prayer to quash the Office Order dated 16.03.2020 (Annexure-8), vide which the representation of the Petitioner to upgrade his post to Assistant Executive Engineer has been rejected. A further payer has been made to treat the Petitioner as Assistant Executive Engineer and extend all service and financial benefits to him, as has been extended in case of Assistant Executive Engineers in Water Resources Department in terms of Notification dated 14.05.2019, within a reasonable time to be stipulated by this Court. 2. The factual matrix of this case in nutshell is that, the Petitioner is a Degree Engineer in Electrical Trade. Initially the State Government did not conduct any recruitment process for selection as well as appointment of Assistant Engineers. However, the Degree Engineers were empanelled on the basis of their passing out of Degree Engineering. Out of the said panel list, the Degree Engineers were appointed as Stipendiary Engineer on a consolidated remuneration fixed by the State Government prevalent at the relevant point of time. The Petitioner, though was empanelled, was never given appointment as a Stipendiary Engineer like others. Rather, he was appointed as a Degree Engineer on daily wage basis vide order dated 04.05.1993, but was paid consolidated remuneration of Rs.2,000/- per month which was subsequently enhanced to Rs.7,000/- per month as per the policy decision of the State Government. After rendering substantial period of service and being aggrieved by such inaction of the State instrumentalities in not bringing the W.P.(C) No.13553 of 2020 Page 2 of 21 Petitioner to the fold of regular establishment, the Petitioner was constrained to approach the Administrative Tribunal by filing O.A. No.3480(C) of 2013 which was disposed of on 17.03.2016 with a direction to the Opposite Parties to take a policy decision for regularization of the service of the Petitioner within a period of four months. Challenging the said order passed by the Tribunal, the State preferred W.P.(C) No.3314 of 2017 and the matter got disposed of on 12.07.2017, wherein this Court declined to interfere with the impugned order passed in O.A. No.3480(C) of 2013 and the said Writ Petition was dismissed. Being left with no other option, the State/Opposite Party issued Office Order dated 23.12.2017, wherein it was reflected that in pursuance of the
Legal Reasoning
order passed in O.A. No.3480(C) of 2013 and confirming order passed in W.P.(C) No.3314 of 2017, the Petitioner, a DLR Graduate (Electrical) Engineer engaged after 12.04.1993 on contract basis against regular sanctioned post of Assistant Engineer, is appointed as Assistant Engineer. Pursuant to the said Office Order dated 23.12.2017; the Petitioner submitted his joining letter on 01.01.2018. It is further case of the Petitioner that his case is identical to the case of those W.P.(C) No.13553 of 2020 Page 3 of 21 Assistant Engineers, who were applicants in batch of Original Applications i.e. O.A. No.1036 (C) of 2016 and O.A. No.1089 (C) of 2016, which were disposed of vide a common order passed by the Tribunal, where in it was clearly held that after restructuring of the cadre of Degree Engineers, the base level post of Assistant Engineer was re-designated as Assistant Executive Engineer. But to the reasons best know, though the Petitioner was brought over to the fold of regular establishment, he was not granted the said relief of re- designation. It is further case of the Petitioner that a High Power Committee Meeting was held under the Chairmanship of the then Chief Secretary, Odisha on 24.11.2015 to consider the case of the similarly circumstanced graduate engineers, who were continuing as Assistant Engineer on daily wage basis. In the said meeting it was decided that since those Assistant Engineers were not recruited through a regular process but were continuing for long period, they may be offered a chance of regularization in service on relaxation of their upper age limit. In conformity to the need of hour and keeping in view the workload in various Engineering Departments, the State Government in the Department of W.P.(C) No.13553 of 2020 Page 4 of 21 Water Resources issued Gazette Notification on 21.03.2013, where in it was clearly reflected that the entry level post of the cadre of Odisha Engineering Service shall be at the level of Assistant Executive Engineer in Junior Class-1 Branch in the Scale of Pay PB-3, Rs.15,600-39,100/- with Grade Pay of Rs.5,400/-. In terms of the said Notification, the Water Resources Department issued an Office Order dated 14.05.2019 regularizing the services of nine numbers of Assistant Executive Engineers against regular sanctioned post with extension of all service and financial benefits with effect from 21.03.2013. The said Engineers were all the applicants before the Tribunal in O.A. No.1036 (C) of 2016 and O.A. No.1089(C) of 2016 as detailed above. Vide the common Judgment passed in the said O.As, the Tribunal allowed the prayer of the applicants and directed the OPSC not to make any advertisement to fill up the post of Assistant Engineers, re-designated as Assistant Executive Engineer, and treat the said applicants as Work Charged Assistant Executive Engineer against the said post which were upgraded and to give them all financial benefits from the date the post was upgraded. W.P.(C) No.13553 of 2020 Page 5 of 21 3. In terms of the said order passed by the Tribunal, the State Government made a notification on 14.05.2019 regularizing the service of nine numbers of Assistant Engineers against a regular sanctioned post with all service and financial benefits with effect from 21.03.2013 i.e. the date on which they were treated to be Work Charged employees. Knowing about the said notification dated 14.05.2019, immediately thereafter the Petitioner made a representation to the Opposite Party on 21.06.2019 highlighting therein that grave injustice has been meted out to him in not adjusting him in the post of Assistant Engineer and thereby denying with the Pay Band-3 i.e. Rs.15,600- 39,100/- with Grade Pay of Rs.5,400/- with usual D.A. and other allowances admissible as per ORSP Rules revised from time to time. Due to inaction on the part of the Opposite Party to mitigate the grievances of the Petitioner, being left with no other alternative, he was constrained to move before this
Decision
Court in W.P.(C) No.18743 of 2019, which was disposed of on 29.10.2019 directing the Opposite Party to look into the grievance of the Petitioner and to take appropriate decision on the said representation within a period of two months from W.P.(C) No.13553 of 2020 Page 6 of 21 the date of communication of the said order. Being so directed, the Opposite Party rejected the claim of the Petitioner, vide order dated 16.03.2020 on the plea that the Finance Department, after careful examination, opined that the Assistant Executive Engineers, to whom a reference has been made by the Petitioner, were engaged prior to cut-off date of 12.04.1993 and all of them were initially appointed as NMRs and subsequently have been brought over to Work Charge Establishment and were upgraded to the post of Assistant Executive Engineer. Hence, their cases were not exactly in the same footing to that of the Petitioner as his initial engagement was on 10.05.1993 i.e. after the cut-off date 12.04.1993. It is further case of the Petitioner that, there is no dispute about his continuance as against the post of Assistant Engineer as DLR since 1993 and subsequently in the year 2005 his services were made contractual. It is also not disputed that the Petitioner possesses the requisite qualification and his service was treated on contract basis against the regular vacant post of Assistant Engineer. In the year 2017, taking into consideration the period of service rendered by him, the Opposite Party brought over the W.P.(C) No.13553 of 2020 Page 7 of 21 Petitioner as a regular Assistant Engineer against the same post of Assistant Engineer, which is a sanctioned post and the said post of Assistant Engineer was upgraded to the post of Assistant Executive Engineer. Hence, there is no rhyme or reason as to why the Petitioner shall not be upgraded to the post of the Assistant Executive Engineer with pay and allowances as admissible to such upgraded post. It has further been stated that Opposite Party has issued a letter dated 14.02.2020 wherein eight numbers of post of Assistant Engineer (Civil) in Wok Charge establishment have been upgraded to the rank of Assistant Executive Engineer. Similarly, another Graduate Engineer-Electrical, namely, Shyam Sundar Rath had approached the Tribunal by filing O.A. No.985 of 2015 which was disposed of on 15.04.2015 directing the State Government to take a decision independently in accordance with law. Pursuant to the said order, the Opposite Party, vide order dated 02.03.2016, regularized his service by bringing him into Work Charge Establishment. It has further been stated that even though Petitioner was engaged after 12.04.1993 (as he joined on 04.05.1993), his service was regularized and he was brought W.P.(C) No.13553 of 2020 Page 8 of 21 over to the fold of regular establishment vide office letter dated 23.12.2017 under the seal and signature of the Opposite Party, thereby allowing the Petitioner to work as Assistant Engineer, and he was allowed to draw the Scale of Pay attach to such post. Hence, taking the same plea that the Petitioner was engaged after the cut-off date 12.04.1993 and rejecting his claim to allow him to function as Assistant Executive Engineer and denying him the scale of pay attached to the said post, particularly when the post in question has already been upgraded, is nothing but discriminatory and such act of the Opposite Party clearly invites the intervention of this Court. 4. It has also been stated that so far as the Stipendiary Engineers are concerned, the matter has been set at rest by the apex Court, wherein it was directed to regularize the services of the Stipendiary Engineers taking into consideration the period of service they have rendered. But unfortunately, to the reason best known to the Opposite Party, the Petitioner was allowed to continue as DLR, even though he has satisfied all the criteria for regular appointment against the sanctioned vacant post. Had the W.P.(C) No.13553 of 2020 Page 9 of 21 Petitioner been included in the panel of Stipendiary Engineers, certainly he could have been appointed by now in the rank of Assistant Executive Engineer and the occasion of filing of writ petitions would not have arisen. The Petitioner has become a victim of no fault of his own. His service has been utilized right from 1993 till date. It is irrational on the part of the Opposite Party that instead of upgrading the service of the Petitioner, step motherly attitude has been shown to him. Such action on the part of the Opposite Party is not only arbitrary and discriminatory but also violation of Article 14 of the Constitution of India. It is further case of the Petitioner that, a Stipendiary Engineer cannot stand on a better footing than the Petitioner. The only difference between the Petitioner and the Stipendiary Engineers is that the Stipendiary Engineers were engaged on stipend basis, whereas the Petitioner was engaged on daily wage basis. Though the Petitioner has time and again moved the authorities concerned for redressal of his grievances, but the Opposite Party has slept over the matter, as a result of which the precious 27 years of the Petitioner (as on the date of filing of the writ petition) have been spoiled. Therefore, the action of W.P.(C) No.13553 of 2020 Page 10 of 21 the Opposite Party in not regularizing the service of the Petitioner in the post of Assistant Executive Engineer and thereby denying extension of other service as well as consequential benefits to him, as has been done in the case detailed above, is arbitrary, discriminatory so also violative of Articles 14 & 16 of the Constitution of India. It is further case of the Petitioner that, he has been treated to be as Assistant Engineer with effect from 23.12.2017, whereas the State Government, after restructuring of the Odisha Engineering Service, upgraded the said post of Assistant Engineer to Assistant Executive Engineer, which is the base level post. Hence, there is no logic behind the action of the Opposite Party in not treating the Petitioner as Assistant Executive Engineer, particularly when the post in question has already been upgraded by the Opposite Party and twenty number of Assistant Executive Engineers posts are lying vacant. The State, being the model employer, should not resort to such practice thereby compelling the Petitioner to knock the door of this Court time and again. 5. Opposing to the prayer made in the Writ Petition, a Counter Affidavit has been filed by the Opposite Party W.P.(C) No.13553 of 2020 Page 11 of 21 admitting therein most of the facts detailed in the Writ Petition. Paragraphs-7 to 10 of the said Counter Affidavit being germane to deal with the prayer made in the Writ Petition, are extracted below: “7. That with regard to the averments made in paragraph-7 to 9 of the writ petition, it is humbly submitted that in view of the Hon’ble Tribunal in O.A. No.3480(C)/2013 and order of Hon’ble High Court in W.P.(C) No.3314/2017, the O.P. No.1 after taking the advice of Law Department endorsed the file to Finance Department as well as Energy Department for their concurrence in order to implement the orders of Hon’ble Court. After concurrence of F.D. & Energy Department, the petitioner was appointed as Ex- cadre Asst. Engineer (Electrical) against the regular sanctioned post of Asst. Engineer (Electrical) vide Rural Development Department office order dated 23/12/2017. 8. That with regard to the averment made in paragraphs-10 to 12 of the writ petition, it is humbly submitted that after restructuring of Engineering Cade, post of Asst. Engineers have been up-graded to the posts of Asst. Executive Engineer vide the resolution No.9660 Dtd.21/03/2013 of Water Resources Department. That the Hon’ble Tribunal, while disposing O.A. No.1036 (C)/2016 and O.A. No.1089 (C)/2016 on 16.05.2015 directed that the applicants be treated as work charged Asst. Executive Engineers against the posts, which were W.P.(C) No.13553 of 2020 Page 12 of 21 up-graded and they may be given all service and financial benefits from the date their posts were upgraded in order to comply the aforesaid orders of Hon’ble O.A.T. The Deptt. of Water Resources vide their notification No.11157/WR Dtd.15/05/2019 have up-graded 9 (Nine) posts of Asst. Engineers to the post of work charged Asst. Executive Engineers extending all service and financial benefits w.e.f. 21/03/2013. 9. That in response to the assertions made in paragraphs-13 & 14 of the writ petition, it is humbly submitted that the petitioner submitted a representation on Dtd.21/06/2016 to O.P. No.1 for up-gradation of his service from the post Asst. Engineer (Electrical) to the post of Asst. Executive Engineer (Electrical) citing the same principle as has been followed by the Deptt. of Water Resources, while issuing the resolution No.9660 Dtd.21/03/2013. At the same time, Hon’ble High Curt also passed an order on 29/10/2019 in W.P.(C) No.18473/2019, filed by the petitioner, directing the O.P. No.1 to look into the grievance of the petitioner and to take decision on his representation within two months from the date of communication of the order and at the same time, the Hon’ble Court observed that, while taking the decision the authority may look the development at Annexure-8. 10. That as regards the assertions made in paragraphs-15 & 16 of the writ petition, it is humbly submitted that the case of the petitioner was referred to Law Department for their views to upgrade his service to W.P.(C) No.13553 of 2020 Page 13 of 21 the rank of Asst. Executive Engineer like that of 9 (Nine) Asst. Engineers of Water Resources Department, whose posts were upgraded t0 the rank of Asst. Executive Engineer (work charged) vide their notification No.11157/WR, Dtd.14/05/2019 extending all services and financial benefits w.e.f. 21/03/2013. Law Department returned the file with the opinion that there was no bar to upgrade to ex-cadre post of Asst. Executive Engineer to strike the parity among the similar situated employees of the Department, in terms of mandate of equality enshrined in the Constitution. Therefore, the Government may take a policy decision for up- gradation for such post. As the Energy Department is the cadre controlling Department in respect of Electrical Engineers and the file was endorsed to Energy Department for their concurrence to upgrade the post of Ex-cadre Asst. Engineer to the post of Ex-cadre Asst. Executive Engineer (Electrical) and the proposal of R.D. Department was approved by the Energy Department with an observation that the petitioner may continue against ex-cadre Asst. Executive Engineer (Electrical) out of the sanctioned strength of Asst. Executive Engineer (Electrical). In view of the position, it was necessary to obtain concurrence of Finance Deptt. for up gradation of the post of Ex-cadre Asst. Engineer (Electrical) to the post of Asst. Executive Engineer (Electrical). However, the Finance Deptt. advised to dispose of the grievance of W.P.(C) No.13553 of 2020 Page 14 of 21 the petitioner within following justification in order to comply the order passed in W.P.(C) No.18743/2019. (i) The work charged Asst. Executive Engineer of Department of Water Resources were engaged prior to cut-off date of 12/04/1993 as NMR and were brought over to the Work Charged Establishment with govt. approval. So, their case is not exactly in the same footing to that of the instant case to compare. (ii) The very engagement is as DLR the applicant was on DLR basis and was receiving consolidated remuneration on 10/05/1993 i.e. after the cut-off date 12/04/1993. (iii) After the career progression benefit to the employee, he will be eligible to avail higher pay. (iv) So, there is hardly any merit in upgrading the posts of the applicant to the post of Assistant Executive Engineer. Therefore, as per the view of the Finance Department, a speaking order was issued by O.P.No.1 vide O.O. No.28360100012014/RD on 16/03/2020 rejecting the prayer of the petitioner.” (Emphasis Supplied) 6. Mr. Routray, learned Senior Advocate for the Petitioner submitted that the action of the Opposite Party to W.P.(C) No.13553 of 2020 Page 15 of 21 reject the representation of the Petitioner as at Annexure-8 is illegal, arbitrary and discriminatory and deserves to be set aside directing the Opposite Party to extend the same benefits, as was being extended to his counterparts vide notification dated 14.05.2019 as at Annexure-5. Relying on recent judgment of this Court dated 7th December, 2022 passed in W.P.(C) No.24000 of 2019 (Satyashri Mohapatra vs. State of Odisha and others), which has been appended to I.A. No.11225 of 2023 as at Annexure-10, and drawing attention of this Court to the fact of the said case, Mr. Routray submitted that in the said case also the Petitioner namely, Satyashri Mohapatra, was appointed as an NMR/DLR on 28.10.1994 i.e. well after ban order dated 12.04.1993 wherein this Court, taking into consideration the similar stand taken by the State/Opposite Party, not only set aside the impugned rejection order but also directed to release all the service and financial benefits in favour of the said Petitioner as has already been granted to his counterparts , within a stipulated period. Mr Routary further submitted that the document, which was annexed as Annexure-8 to W.P.(C) No.24000 of 2019, has been annexed to the present writ W.P.(C) No.13553 of 2020 Page 16 of 21 petition as Annexure-5 and that the case of the Petitioner is squarely covered by the said Judgment. 7. Learned Counsel for the State/Opposite Party, reiterating the stand taken in the Counter Affidavit, submitted that the appointment of the Petitioner being a daily wager and that to after 12.04.1993, despite opinion of the Law Department to the effect that there is no bar to upgrade the post of the Petitioner to ex-cadre post of Asst. Executive Engineer and approval of the said proposal by the Energy Department, as has been detailed in the Counter Affidavit, in view of the advice of the Finance Department, the authority concerned was justified to reject the representation of the Petitioner to treat him at par with his counterparts, as has been claimed in the present Writ Petition. 8. As has been admitted in the Counter Affidavit, pursuant to the order passed by the Tribunal in O.A. No.3480(C) of 2013 and confirming order passed by this Court in W.P(C) No.3314 of 2017, the Opposite Party No.1 after taking the advice of the Law Department, endorsed the file to Finance Department as well as Energy Department for their concurrence in order to implement the said order. After W.P.(C) No.13553 of 2020 Page 17 of 21 concurrence of Finance Department & Energy Department, the Petitioner was appointed as Ex-cadre Asst. Engineer (Electrical) against the regular sanctioned post of Asst. Engineer (Electrical) vide Rural Development Department Office Order dated 23.12.2017. Subsequently, the representation being given by the Petitioner, on being so directed by this Court in the subsequent Writ Petition i.e. W.P.(C) No.18743 of 2019, the matter being referred to the Law Department for their views to upgrade the service of the Petitioner to the rank of Asst. Executive Engineer like that of 9 (Nine) Asst. Engineers of Water Resources Department, whose posts were upgraded to the post of Asst. Executive Engineer (work charged) vide notification dated 14.05.2019 extending all services and financial benefits w.e.f. 21.03.2013. The Law Department returned the file with the opinion that there was no bar to upgrade the post of the Petitioner to ex- cadre post of Asst. Executive Engineer to maintain the parity amongst the similar situated employees of the Department, in terms of mandate of equality enshrined in the Constitution. The Energy Department, being the cadre controlling Department in respect of Electrical Engineers, the file of the W.P.(C) No.13553 of 2020 Page 18 of 21 Petitioner was endorsed for its concurrence for such upgradation of the post of Ex-cadre Asst. Engineer to the post of Ex-cadre Asst. Executive Engineer (Electrical). The proposal of Rural Development Department was also approved by the Energy Department with an observation that the Petitioner may continue against Ex-Cadre Asst. Executive Engineer (Electrical) out of the sanctioned strength of Asst. Executive Engineer (Electrical). Hence, it was necessary to obtain concurrence of the Finance Department for such upgradation. Despite such view of the Law Department and concurrence of the Energy Department, instead of according approval to deal with and dispose of the representation of the Petitioner in a positive manner and as per the judgment passed by the Tribunal in O.As, as detailed above, so also confirming order of this Court, without application of mind, the representation of the Petitioner was rejected solely on the ground that his engagement as DLR was after the cut-off date i.e. 12.04.1993. 9. From the above, so also in view of the judgment of this Court in Satyashri Mohapatra (supra) which was recently delivered relying on the judgments of the apex Court in State of Karnataka and others vs. C. Lalitha, reported in W.P.(C) No.13553 of 2020 Page 19 of 21 2006 1 SCR 971, Purnendu Mukhopadhyay and others vs. V.K. Kapoor and another, reported in (2007) 7 Supreme 679 and State of Uttar Pradesh and others vs. Arvind Kumar Srivastava and others, reported in 2015 1 SCC 347, this Court is of the view that the case of the Petitioner is squarely covered by the said Judgment and the impugned rejection order dated 16.03.2020 as at Annexure-8 deserves to be set aside. Accordingly, the same is hereby set aside. 10. The Opposite Party is directed to upgrade the post of Assistant Engineer, which the Petitioner is holding at present, to the post of Assistant Executive Engineer in terms of the Notification dated 14.05.2019 (Annexure-5) and the petitioner shall extend with all service and financial benefits, as has been extended in favour of the Assistant Executive Engineers in the Water Resources Department, within a period of two months from the date of production/ communication of the certified copy of this judgment. 11. Accordingly, the Writ Petition stands disposed of. No order as to cost. 12. Needless to mention here that if the financial benefits in terms of the direction given by this Court is not W.P.(C) No.13553 of 2020 Page 20 of 21 granted to the Petitioner within the stipulated time frame, the same shall carry 8% interest from the date of Order till the date of actual payment is made by the Opposite Party. …….….…………………… S.K. MISHRA, J. Orissa High Court, Cuttack The 31st October, 2023 /Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 02-Nov-2023 16:50:25 W.P.(C) No.13553 of 2020 Page 21 of 21