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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.12498 of 2022 An application under Articles 226 and 227 of the Constitution of India. Pramod Kumar Patra & others . Petitioners State of Odisha & others -versus- Mr. R.K. Bisoi, Advocate . Opp. Parties Mr. R.N. Mishra, AGA W.P.(C) No.12959 of 2022 Santosh Kumar Sahoo State of Odisha & others -versus- Petitioner Mr. L. Rath, Advocate Opp. Parties Mr. R.N. Mishra, AGA W.P.(C) No.12961 of 2022 Banamali Behera State of Odisha & others -versus- Petitioner Mr. L. Rath, Advocate Opp. Parties Mr. R.N. Mishra, AGA CORAM: JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of hearing : 22.02.2023 | Date of Judgment: 31.03.2023 ______________________________________________________ A.K. Mohapatra, J. : 01. Since all the above noted writ applications involved a common question of law as well as similar set of facts, the same // 2 // were taken up together for hearing and after hearing the learned counsels for the parties, the above noted writ applications are
Decision
being disposed of by the following common order. However, for the sake of convenience and brevity the facts stated in Pramod Kumar Patra & others in W.P.(C) No.12498 of 2022 is being taken up for analysis. 02. Heard learned counsel for the petitioner as well as learned Addl. Government Advocate for the State. Perused the pleadings of the respective parties and the documents placed before this Court for consideration. 03. The present writ application has been filed by the petitioner with a prayer to quash order dated 04.05.2022 under Annexure-16 and to direct the Opposite Party No.1 to bring over the petitioners to work charge establishment from the date when similarly situated persons namely Prakash Nanda & others have been brought over to work charge establishment along with all service and financial benefits within a stipulated period of time. 04. Mr. R.K. Bisoi, learned counsel appearing for the petitioner, at the outset submitted that the petitioner No.1 was appointed on 01.11.1996 and other petitioners who were appointed on different dates in the year, 1996. Therefore, there was no dispute that the petitioners were appointed after the cutoff date i.e. 12.04.1993. The Opposite Party No.1 took a decision that out of the 613 NMR employees who were appointed/ engaged after the cutoff date i.e. 12.04.1993, 502 NMRs were disengaged and 111 NMR employees were allowed to continue, as such with the consent of Finance Department vide order dt.16.08.2003 under Annexure-2. // 3 // 05. He further contended that on 8.10.2003, the Opposite Party no.1 took a decision for continuance of 111 NMR Employees in different divisions which includes the present petitioner. On 14.01.2014, the Opposite Party No.2 submitted a list of 111 NMR employees before the Government which includes the name of the present petitioner. While this was the position, the Government on 16.12.2008 created 18 nos. Work charge post for maintenance of Rajiv Bhawan by way of abolition 18 Nos. of regular post. Accordingly, 18 Nos. of NMR employees were brought over to Work Charge Establishment out of the list of 111 NMRs stated hereinabove for maintenance of Rajiv Bhawan vide order dated 07.02.2009 issued by Opposite Party No.3. Learned counsel for the petitioner contended that out of the said 18 Nos. of employees some are junior to the present petitioners. 06. Learned counsel for the petitioner further contended that on 28.05.2009 the Opposite Party No.2 submitted a detailed proposal before the Government to bring over to the work charge establishment 111 NMRs including the present petitioners. Thereafter, on 03.11.2009 the Opposite party No.2 again requested the Government to bring over the aforesaid 111 NMR Employees excluding 18 Nos. of NMR employees who are already brought over to the work charge establishment as indicated hereinabove. Thereafter, no steps were taken to bring over the petitioner to work charge establishment. Finally, vide letter dated 26.09.2011 the Opposite Party No.2 requested the Sub-ordinate Officers to furnish information with regard to 81 // 4 // NMR employees who were left out of the list of 111 NMRs to bring them over to work charge establishment. 07. Again on 27.06.2013, the Opposite Party No.1 took a decision and brought over 26 NMR employees out of 111 to work charge establishment in the Subarnarekha Irrigation Project. In the said list of 26 NMRs, it is submitted, some are also junior to the present petitioners. However, the cases of the present petitioners were not considered to bring them over to the work charge establishment. On 31.08.2013, once again the Opposite Party No.2 requested the Government to bring over left out 56 NMRs out of the list of 111 NMRs to work charge establishment. 08. While the above was the Scenario in respect of 111 NMRs who were allowed by the Government with due concurrence of the Finance Department, out of which some were brought over to the work charge establishment again, one Prakash Nanda and 10 others out of the aforesaid list of 111 NMR Employees approached the Odisha Administrative Tribunal by filing O.A. No.952 of 2016. The learned Odisha Administrative Tribunal while disposing of the said O.A. directed to bring over the above noted 11 employees, who were applicants in the above noted O.A., to the work charge establishment after obtaining necessary concurrence from the Finance Department. The Tribunal had also directed the Finance Department to give concurrence to the proposal submitted by Opposite Party No.1 09. The order dated 20.06.2017 passed in O.A. No.952 of 2016 in the matter of Prakash Nanda and others vs State of Odisha was challenged before this Court by filing W.P.(C) No.6155 of 2018. This Court after hearing the parties, dismiss the // 5 // writ application and confirmed the order dated 20.06.2017 passed by the Tribunal. The State Government preferred an appeal before the Hon’ble Supreme Court against the order dated 27.08.2018 passed by this Court, which was registered as SLP (Civil) Diary No.4326 of 2020. The Hon’ble Apex Court was pleased to dismiss the SLP filed by the State Government. As such, it was contended by the learned counsel for the petitioner that the order dated 20.06.2017 passed by the Tribunal in O.A. No.952 of 2016 has attained finality. 10. After disposal of the SLP by the Hon’ble Supreme Court confirming the order passed by the Tribunal as well as a Division Bench of this Court, vide order dated 30.09.2021, the Opposite party No.3 passed orders bringing over the service of Prakash Nanda & 10 others to the work charge establishment. It was contended by learned counsel for the petitioner that all those persons were not only named in the list of 111 NMRs, but some of them were also junior to the petitioners. 11. Finally, the petitioners who are similarly placed with Prakash Nanda & others approach the Tribunal by filing O.A. No.3598 of 2017 with a prayer for a direction to the Opposite Parties to bring them over to the work charge establishment. On the ground that many juniors to the petitioners whose name find place in the said list of 111 NMR employees and are junior to the petitioner have been brought over to the work charge establishment. Thereafter, after abolition of the Tribunal, the O.A. was transferred to this Court and renumbered as WPC(OAC) 3598 of 2017. Vide order dated 06.12.2021, this Court disposed of the said application with a direction to the petitioner to file a // 6 // fresh representation stating therein the fact and the Opposite party No.1 was directed to examine the same in the light of the order passed by this Court as well as Apex Court in the case of Prakash Nanda & 10 others in O.A. No.952 of 2016. 12. Pursuant to the aforesaid direction of this Court, the petitioners submitted a representation on 13.12.2021 before the Opposite Party No.1. Finally, the Opposite Party No.1 vide order dated 04.05.2022 under Annexure-16 rejected the representation of the petitioner on the principal ground that the present petitioners do not stand in a similar footing with the above named Prakash Nanda & 10 others. Moreover, it was also observed in the impugned rejection order that the facts of the present case do not satisfy the test let down by the Hon’ble Supreme Court in the case of State of Karnataka vs. Umadevi reported in 2006 vol4 SCC 1. Further, a ground was also taken that since the appointments were made without following the appropriate procedure, therefore such appointment cannot be regularised and the petitioners could not have been brought over to the work charge establishment and accordingly, the claim of the petitioner for regularisation in the work charge establishment was rejected by the Opposite Party No.1. Aggrieved by the rejection of his representation, the petitioners have approached this Court by filing the present writ application. 13. The Opposite Party Nos.1 to 4 have filed a counter affidavit. Mr. R.N. Mishra, learned Addl. Government Advocate referring to the counter affidavit submitted that the petitioner Nos.1 & 2 are working under Prachi Irrigation Division whereas other four petitioners are working under Khordha Irrigation // 7 // Division w.e.f. from the date mentioned in the writ application. He further contended that all the petitioners have been admittedly engaged after the cutoff date i.e. 12.04.1993. Since the petitioners have been engaged after 12.04.1993, their claim to bring them over to work charge establishment does not deserve any consideration. 14. In reply to the assertion of the petitioner that some employees who were junior to the petitioner having been brought over to the work charge establishment, learned Addl. Government Advocate submitted that they were absorbed under the work charge establishment with due consideration by the Government in DOWR with due approval by the Finance Department in lieu of abolition of equal number of posts in the regular establishment. He further contended that a proposal for bringing over NMR/DLR employees who have been engaged after the cutoff date and are continuing by virtue of DOWR letter dtd.05.09.2003 and 10.10.2003 including the petitioners have been sent to Finance Department for consideration. Since there exists no policy/guideline to bring NMR workers to work charge establishment, the said proposal was rejected by the Finance Department. 15. Furthermore, in reply to the fact that 26 nos. of employees were brought over to work charge establishment under Subarnarekha Irrigation Project, the learned Addl. Government Advocate submitted that they were brought over to work charge establishment as per Odisha Resettlement and Rehabilitation of Project Affected Person Policy, 1994. Therefore, the case of such 26 employees cannot be equated with the present petitioners. // 8 // 16. Similarly, it was also contended by the learned Addl. Government Advocate that the case of Dushmant Panda vs. State of Odisha in W.P.(C) No.6426 of 2018 directing to bring over to the petitioners to work charge establishment is not applicable to the facts of the petitioners’ case and that the case of Prakash Nanda & 10 others was in a completely different context and the same cannot be cited as a precedent in the present case. Moreover, referring to the case of Pramod Kumar Patra vs. State of Odisha, it was argued by learned Addl. Government Advocate that order dtd.16.12.2021 has been passed with the observation that without expressing any opinion on merits of the case. Therefore, the ratio in the said case is also not applicable to the facts of the present case and finally, the opposite parties have denied that the ratio laid down by the Hon’ble Supreme Court in Umadevi’s case (supra) is applicable to the facts of the present case. It was argued by the learned Addl. Government Advocate that in the absence of any specific policy/ guideline by the Government for bringing over the temporary workers to work charge establishment, particularly, when they were after the cutoff date, the claim of the petitioners has been rightly rejected by the opposite parties. 17. Having heard the learned counsels for the appearing parties and upon a careful consideration of the background facts of the present case, this Court is of the opinion that the primary issue involved in the present writ application which is also the basis/ foundation of petitioners’ claim is that the petitioners stand in a similar footing with Prakash Nanda & 10 others and also many other similarly situated employees who were engaged after the cutoff date i.e. 12.04.1993 and have been subsequently // 9 // brought over to work charge establishment. On a careful analysis of the judgments delivered by the Odisha Administrative Tribunal, this Court is of the considered view that the present petitioners stand in a similar footing with Prakash Nanda & 10 others as well as other similarly placed employees whose name find place in the list of 111 NMR employees who were not disengaged although the Government took a decision to disengage the service of such petitioners. It was also observed by this Court that from time to time persons have been brought over to work charge establishment from out of the aforesaid list of 111 NMRs. Further upon a close scrutiny of the nature of work performed the nature of engagement and other service conditions, this Court is of the considered view that the present petitioners stand in a similar footing with the above named Prakash Nanda & 10 others. In the case of Prakash Nanda & 10 others who had approached Tribunal for a direction to Opposite Party No.1 to bring them over to work charge establishment, the Tribunal had examined the issue in great detail and accordingly, came to a conclusion that the above named Prakash Nanda & 10 others are to be brought over to the regular establishment. The order passed by the Tribunal was not only affirmed by this Court in W.P.(C) No.6155 of 2018 vide order dtd.27.08.2018, for the same was also affirmed by the Hon’ble Supreme Court in SLP (Civil) Diary No.4326 of 2020 vide order dtd.27.08.2021 by dismissing the SLP preferred by the State Government. 18. On a careful consideration of the orders passed by the Tribunal, this Court as well as the Hon’ble Apex Court, this Court has no hesitation to hold that the petitioners stand in a similar footing with the above named Prakash Nanda & 10 others. A // 10 // similar view has also been taken by a Coordinate Bench of this court in Pramod Kumar Patra & others vs. State of Odisha & others in WPC(OAC) No.3598 of 2017 disposed of on 06.12.2021. Accordingly, this Court holds that the petitioners stand in a similar footing with Prakash Nanda & 10 others referred to hereinabove. As such, the petitioners are entitled to be treated in the same manner by the Opposite Party No.1 as has been done in the case of Prakash Nanda & 10 others. Needless to mention here that all these persons belong to the list of 111 NMRs who were retained by the Government with the concurrence by the Finance Department although they were appointed after the cutoff date while disengaging several other persons. 19. Therefore, treating the present petitioners differently would amount to discrimination and the same would be hit by the underlying principles of Article 14 of the Constitution of India. It is also the settled position of law that in the matter of employment if the persons stand in a similar footing, then they are to be treated equally and the similar benefit has to be given to the persons who are similarly placed. In such view of the matter, this Court has no hesitation in coming to a conclusion that the order passed by the Opposite Party No.1 dtd.04.05.2022 under Annexure-16 is unsustainable in law as the same is highly arbitrary, illegally and discriminatory. Accordingly, the same is hereby quashed. Further, this Court directs the Opposite Party No.1 to bring over the petitioners to the work charge establishment and similar benefits be extended to the petitioners as has been given in the case of Prakash Nanda & 10 others from the date such benefits were paid to the above named employees. The Opposite Party No.1 is // 11 // further directed to complete the aforesaid exercise within a period of two months from the date of production of the certified copy of this order. 20. With the aforesaid observations/ directions these writ petitions are allowed. However, there shall be no order as to cost. Orissa High Court, Cuttack The 31st of March, 2023/ Anil. (A.K. Mohapatra) Judge