The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. Nos.1077, 1078 and 1080 of 2023 In W.A. No. 1077 of 2023 1. Niranjan Rout, aged about 40 years, S/o. Kahalu Rout, Resident of At/Po- Gaintala (Dayanapali), Dist- Bolangir; was working as Statistical Field Surveyor (SFS) in Puintala Block in the district of Bolangir. 2. Shreeyakanta Naik, aged about 40 years, S/o. Arjun Naik, Resident of At- Janakapur, Po- Fatkara, Dist- Bolangir; was working as Statistical Field Surveyor (SFS) in Bolangir Block in the district of Bolangir. 3. Tulsiram Naik, aged about 34 years, S/o. Madha Naik, Resident of At- Sagunbhadi, Po- Salandi, Dist- Bolangir; was working as Statistical Field Surveyor (SFS) in Belpada Block in the district of Bolangir. 4. Sabita Nanda, aged about 39 years, D/o. Abadhut Nanda, Resident of At/Po- Kusanga, Dist- Bolangir; was working as Statistical Field Surveyor (SFS) in Loisinga Block in the district of Bolangir. 5. Lingaraj Nag, aged about 39 years, S/o. Duryodhan Nag, Resident of At- Badipada, Po- Saintala, Dist- Bolangir; was working as Primary Worker in DPMU, Bolangir. 6. Jogendra Meher, aged about 38 years, S/o. Mahesh Meher, Resident of At/Po- Bhalumunda, Dist- Bolangir; was working as Statistical Field Surveyor (SFS) in Bongomunda Block in the district of Bolangir. .…Appellants -Versus- 1. State of Odisha, represented through, Commissioner-cum- Secretary, Planning and Coordination Department, At- Secretariat Building, PO/PS- Bhubaneswar, Dist- Khurda. Page 1 of 15 2. Director, Economics and Statistics, Odisha, Bhubaneswar, Dist- Khurda. 3. Deputy Director, District Planning and Monitoring Unit, Bolangir, At/PO/Dist- Bolangir. 4. Managing Partner of Jayadurga Security and Services, At- Plot No.LIV-403, OSHB Colony, Phase-IV, Dumduma, Bhubaneswar, Dist- Khurda. 5. Odisha Sub-ordinate Staff Selection Commission, Block No.3 & 5, Unit-1, Bhubaneswar, Dist- Khurda. 6. Rohit Barik, aged about 32 years, S/o. Harekruchna Barik, Resident of At- Gaintala, PO- Ambapali, Dist- Bolangir; was working as Statistical Field Surveyor (SFS) in Saintala Block in the district of Bolangir. 7. Sasmita Deep, aged about 31 years, D/o. Akhil Deep, Resident of At/Po- Lakhana, Dist- Bolangir; was working as Statistical Field Surveyor (SFS) in Muribahal Block in the district of Bolangir. 8. Nilambar Putel, aged about 32 years, S/o. Rabicharan Putel, Resident of At- Muribahal, PO- Turekela, Dist- Bolangir; was working as Statistical Field Surveyor (SFS) in Turekela Block in the district of Bolangir. 9. Tejraj Mallik, aged about 38 years, S/o. Pitabasa Mallik, Resident of At- Pathala, PO- Mahimunda, Dist- Bolangir; was working as Statistical Field Surveyor (SFS) in Puintala Block in the district of Bolangir. 10. Shankar Biswal, aged about 31 years, S/o. Chandrasekhar Biswal, Resident of At/PO- Mahalei, Dist- Bolangir; was working as Primary Worker in DPMU, Bolangir. 11. Jiban Mallik, aged about 30 years, S/o. Bimbadhar Mallik, Resident of At/PO- Tusura, Dist- Bolangir; was working as Primary Worker in DPMU, Bolangir. ....Respondents Page 2 of 15 In W.A. No.1078 of 2023 1. Sameer Kumar Sahu, aged about 34 years, S/o. Chaturbhuja Sahu, Resident of At- Kulupali, PO- Raghunathpali, Dist- Jharsuguda; was working as District Planning and Monitoring Unit in the district of Jharsuguda. 2. Gobinda Chandra Pradhan, aged about 34 years, S/o. Ram Prasad Pradhan, Resident of At- Dandaguda, PO- Raghunathpali, Dist- Jharsuguda; was working as District Planning and Monitoring Unit in the district of Jharsuguda. -Versus- .…Appellants 1. State of Odisha, represented through, Commissioner-cum- Secretary, Planning and Coordination Department, At- Secretariat Building, PO/PS- Bhubaneswar, Dist- Khurda. 2. Director, Economics and Statistics, Odisha, Bhubaneswar, Dist- Khurda. 3. Deputy Director, District Planning and Monitoring Unit, Jharsuguda, At/PO/Dist- Jharsuguda. 4. Managing Director of L & K Services, At- Plot No.1033, Rajarani Colony, Tankapani Road, Ravi Talkies Square, Bhubaneswar, Dist- Khurda. 5. Secretary, Odisha Staff Selection Commission, Barak-1, Unit-V, Bhubaneswar, Dist- Khurda. 6. Puspalata Pradhan, aged about 36 years, C/o. Late Mahendra Pradhan, Resident of At- Badheimunda, PO- Kalimandir Road, PS/Dist- Jharsuguda; was working in Block Statistical Office, Jharsuguda Sadar in the district of Jharsuguda. 7. Sanjaya Sa, aged about 31 years, C/o. Satyananda Sa, Resident of At- Chatipali, PO- Charpali, PS- Rengali, Dist- Jharsuguda; was working in Block Statistical Office, Jharsuguda Sadar in the district of Jharsuguda. Page 3 of 15 8. Arun Kumar Pandey, aged about years, C/o. Prafulla Pandey, Resident of At- Sahajbahal, PO- Kirmira, PS- Kolabira, Dist- Jharsuguda; was working in Block Statistical Office in the district of Jharsuguda. ....Respondents In W.A. No.1080 of 2023 1. Trinath Behera, aged about 36 years, S/o. Seshadev Behera, Resident of At- Balagaon, PS- Kalampur, Dist- Kalahandi. 2. Dillip Kumar Bag, aged about 34 years, S/o. Bhukchan Bag, Resident of At- Thelkomunda, PO- Arebeda, Via- Charbahal, PS- Jaipatna, Dist- Kalahandi. 3. Swam @ Shyam Sundar Nag, aged about 38 years, S/o. Alekha Nag, Resident of At/PO- Talamala, PS- Junagarh, Dist- Kalahandi.
Legal Reasoning
4. Srikanta Kumar Swain, aged about 40 years, S/o. Nagmani Swain, Resident of At- Uchhala, PS- Jaipatna, Via- Koksora, Dist- Kalahandi. 5. Chhatish Chandra Jhankar, aged about 30 years, S/o. Dhanu Jhankar, Resident of At- Bhatigaon, PO- Mawal, PS- Jaipatna, Dist- Kalahandi. 6. Kamala Kanta Meher, aged about 31 years, S/o. Babrubahan Meher, Resident of At- Nakatiguda, PO- Balduamal, Via- Malchala, Dist- Kalahandi. All were working as Statistical Field Surveyor under different blocks in the District of Kalahandi At/PO- Bhawanipatna, Dist- Kalahandi. -Versus- .…Appellants 1. State of Odisha, represented through, Commissioner-cum- Secretary, Planning and Coordination Department, At- Secretariat Building, PO/PS- Bhubaneswar, Dist- Khurda. Page 4 of 15 2. Director, Economics and Statistics, Odisha, Bhubaneswar, Dist- Khurda. 3. Deputy Director, District Planning and Monitoring Unit, Kalahandi, At/PO- Bhawanipatna, Dist- Kalahandi. 4. Odisha Sub-ordinate Staff Selection Commission, Block No.3 & 5, Unit-1, Bhubaneswar, Dist- Khurda. 5. Bidyadhar Kaibartta, aged about 40 years, S/o. Sitaram Kaibartta, Resident of At- Habaspur, PS- Junagarh, Dist- Kalahandi. 6. Prasanta Kumar Senapati, aged about 34 years, S/o. Dibakar Senapati, Resident of At- Nagupata, PS- Kesinga, Dist- Kalahandi. 7. Kshirasindu Bag, aged about 36 years, S/o. Khageswar Bag, Resident of At/Po- Behera, PS- Koksara, Dist- Kalahandi. 8. Tankadhar Dharua, aged about 32 years, S/o. Makranda Dhara, Resident of At/Po- Mangalpur, Gotamunda, PS- Koksara, Dist- Kalahandi. 9. Raju Majhi, aged about 32 years, S/o. Late Falguni Majhi, Resident of At- Kandakhal, PO- Palana, PS- Kegaon, Dist- Kalahandi. 10. Bikasharanjan Gopal, aged about 29 years, S/o. Niranjan Gopal, Resident of At/Po- Bhawanipatna, Purunapada, Dist- Kalahandi. 11. Swagatika Maharana, aged about 32 years, D/o. Ramchandra Maharana, Resident of At- Sarlanji, PO- Medinipur, PS- Bhawanipatna, Dist- Kalahandi. 12. Babularanjan Naik, aged about 41 years, S/o. Late Ghanashyam Naik, Resident of At- Gosalapada, PO- Bhawanipatna, Dist- Kalahandi. Page 5 of 15 13. Banita Nag, aged about 40 years, W/o. Jasobanta Mahananda, Resident of At- Kendupali, PO- Nandol, PS- Junagarh, Dist- Kalahandi. 14. Rashmi Pujhari, aged about 31 years, S/o. Pundarikshya Pujhari, Resident of At- T.V. Centre Pada, PS- Town, Bhawanipatna, Dist- Kalahandi. 15. Aswini Kumar Sahu, aged about 34 years, S/o. Brushnab Sahu, Resident of At/PO- Talamala, PS- Junagarh, Dist- Kalahandi. 16. Ajit Kumar Bag, aged about 39 years, S/o. Dhaneswar Bag, Resident of At- Taljaring, PO- Nandol, Dist- Kalahandi. 17. Narsingh Prasad Goud, aged about 32 years, S/o. Adambar Goud, Resident of At/PO- Deban Saheb Pada, Bhawanipatna, PS- Town, Dist- Kalahandi. 18. Jhasketan Patel, aged about 31 years, S/o. Maheswar Patel, Resident of At/PO- Patharia, PS- Kesinga, Dist- Kalahandi. 19. Kshmanidhi Patel, aged about 39 years, S/o. Rukdhar Patel, Resident of At/PO- Patharia, PS- Kesinga, Dist- Kalahandi. 20. Susanta Arukh, aged about 30 years, S/o. Jogendra Arukh, Resident of At/PO- Jenakhalpada, Bhawanipatna, PS- Town, Dist- Kalahandi. ....Respondents Advocates appeared in these cases: For the Appellants: Mr. Trilochan Nanda, Advocate For Respondents: Mr. M. K. Khuntia, Additional Government Advocate CORAM: THE CHIEF JUSTICE MISS JUSTICE SAVITRI RATHO Page 6 of 15 Order No.
Decision
ORDER 05.08.2024 01. This matter is taken up through Hybrid mode. 2. A learned Single Judge of this Court by a common judgment and order dated 20.04.2023 has dismissed seven writ petitions i.e., WPC (OAC) No.2915 of 2016 and WPC (OAC) Nos.1069, 1070, 1071, 1072, 1644 and 1837 of 2017 which involved common questions of facts and law. 3. These three intra-court appeals arise out of WPC (OAC) No.1071 of 2017, WPC(OAC) No.2915 of 2016 and WPC (OAC) No.1837 of 2017 respectively putting to challenge the aforesaid judgment and order dated 20.04.2023. Since all these appeals arise out of the same impugned judgment and order of this Court and since they involve common questions of law and facts, with the consent of the parties, they have been heard together and are being disposed of by the present common order. 4. The facts which are not in dispute are that these appellants were engaged by Jaydurga Security and Services (respondent No.4 in W.A. No.1077 of 2023, hereinafter referred to as the ‘service provider’) for providing services on outsourcing basis as Primary Workers at Block and District level in the Districts of Bolangir (W.A. No.1077 of 2023), Jharsuguda (WA No. 1078 of 2023) and Kalahandi (W.A. No.1080 of 2023) in the year 2014. The appellants claim that they were duly selected by the said service provider through a duly conducted process of selection pursuant to which the appointment letters were issued to them by the service Page 7 of 15 provider. They also claim that the Government of Odisha in the Department of Planning and Coordination had required the Director, Economics and Statistics, Odisha to furnish data regarding the persons who were engaged on outsourcing basis for being placed before the Development Commissioner-cum-Additional Chief Secretary, Government of Odisha. 5. Soon thereafter, the Odisha Sub-Ordinate Staff Selection Commission (OSSSC) came out with an advertisement on 19.10.2015 inviting online applications for filling up the posts of Primary Investigators under the Directorate of Economics and Statistics. It was indicated in the said advertisement that the appointments shall be contractual in nature. The appellants put to challenge the said advertisement by filing original applications before the Odisha Administrative Tribunal (“the Tribunal”, in short). They sought for quashing of the advertisement and issuance of a direction to the authorities to allow them to continue against their respective posts on contractual basis and also to take steps for regularization of their services against the respective posts. The said original applications stood transferred to this Court upon abolition of the Tribunal and reregistered as writ petitions which have been dismissed by the learned Single Judge by the impugned judgment and order. 6. It was the case of the State in the writ proceedings that because of delay in conduct of direct recruitment, it was decided by the Government to engage manpower temporarily through outsourcing basis to manage important work of 13th Finance Commission. Accordingly, a tender was issued whereupon the service provider Page 8 of 15 was selected as successful bidder by the tender committee. The appellants were engaged by the service provider for providing services upto 31.03.2015, against regular posts of Primary Investigator. The State denied the claim of the appellants that they were selected through a due selection process, and also denied existence of employer and employee relationship between the appellants and the State Government. Since they were paid remuneration by the service provider, their claim for regular appointment could not be considered. The State also took a plea that in G.A. Department Resolution dated 12.11.2013, a special provision had been made for persons engaged on outsourcing basis for their contractual/regular appointment through a competitive examination. 7. Learned Single Judge, after having noticed the statutory provisions under the Odisha Group-C and Group-D Posts (Contractual Appointment) Rules, 2013 (“2013 Rules”, in short) notified vide GA Department Notification dated 12.11.2013 reached a conclusion that there was no illegality in the impugned advertisement which was in accordance with the said Rules. Learned Single Judge, referring to Rule 4 of the 2013 Rules also reached a conclusion that the appellants could be treated as contractual employees as defined under Category II of Rule 4 of 2013 Rules which provides necessary leverage in terms of Rule 8 thereof. After having negatived the challenge to the legality of the advertisement, learned Single Judge has recorded in the impugned judgment that the relief sought for by the appellants in the nature of issuance of direction to the authorities to regularize their services Page 9 of 15 against the respective posts could not be granted in the absence of any employer and employee relationship between the appellants and the State. With these observations, learned Single Judge dismissed the writ petitions by the judgment which is impugned in the present intra-court appeals. 8. Mr. Trilochan Nanda, learned counsel appearing on behalf of the appellants has firstly submitted that the learned Single Judge has erred in law in holding that there was no employer and employee relationship between the appellants and the State on the ground that they were engaged through a manpower service provider. He has further argued that through the impugned advertisement dated 19.10.2015, the State intended to make contractual appointments against such posts, against which the appellants were already working. Learned Single Judge failed to appreciate that one set of contractual engagement could not be replaced by another set of contractual employees. For the said reason also the impugned advertisement was unsustainable. He has further argued that the appellants were working as Primary Workers and Statistical Field Surveyors which are governed by Odisha Sub- Ordinate Statistical Surveyors (Method of Recruitment and Conditions of Service) Rules, 2015 (“the 2015 Rules, in short”). He has argued that 2013 Rules do not have any application for engagement against the post of Primary Investigator. He has further argued that in any case the State-respondents were required to adhere to Rule 8 (b) of 2013 Rules which provides for weightage to be given for each completed year of service along with relaxation of age in favour of outsourced employees. For the said reason also the Page 10 of 15 impugned advertisement is unsustainable. These aspects having not been taken into account by the learned Single Judge, the impugned judgment and order requires interference. 9. Mr. M.K. Khuntia, learned Additional Government Advocate representing the State of Odisha has argued that the appellants have no right to question the legality of the advertisement for appointment through a process of selection against the posts advertised. They were engaged by the service provider and they were paid their remuneration also by the service provider. There was no employer and employee relationship between the State and its officials and the appellants. He has argued that the advertisement, which was under challenge, was strictly in accordance with the 2013 Rules, which has been rightly upheld by the learned Single Judge. He has submitted, accordingly, that the impugned judgment and order does not suffer from any legal infirmity requiring this Court’s interference in the present intra- court appeals. 10. We have carefully perused the pleadings and documents on record. It is an admitted fact that based on a tender process, the service provider was selected by the tender committee to provide manpower temporarily through outsourcing basis so as to manage the work of 13th Finance Commission. The service provider had engaged these appellants and provided their services to the authorities under the State Government of Odisha. They were paid their emoluments by the service provider. Page 11 of 15 11. It is clear case of the State-respondents that because of urgent need, instead of undertaking the exercise of recruitment, it was decided to float a tender for providing manpower through a service provider on outsourcing basis. There is nothing on record that any selection procedure was adopted by the service provider in the nature of competitive test for engaging these appellants. In any case, the appellants cannot maintain a claim of their right to any post under the Government of Odisha on a plea that their services were provided by a private party on outsourcing basis. 12. After having considered the rival submissions advanced on behalf of the parties in the backdrop of the facts noted above, we find no legal infirmity in the finding recorded by the learned Single Judge to the effect that there was no employer and employee relationship between the appellants and the State-respondents for the purpose of any claim to be appointed against any post under the State Government. 13. We now come to the challenge to the advertisement dated 19.10.2015 inviting applications for the post of Primary Investigator under the Directorate of Economics and Statistics. The said advertisement contained, inter alia, a following clause:- “Appointment is contractual initially to be guided by the Odisha Group-C & D (Contractual Appointment) vide G.A. Department Rules, 2013 notified GAD-SC-Rules-0009-2013- Notification 32010/Gen dt.12.11.2013.” No. Page 12 of 15 14. The relevant provisions i.e., Rules-4, 8 and 10 (1) of 2013 Rules have been taken note of by the learned Single Judge which read as under: of Existing Contractual “4. Categorization Employees: For the purpose of these rules all contractual appointments made prior the commencement of these rules shall be classified into two categories; namely:- to : Category (a) Contractual I appointments/engagements made against contractual posts created with the concurrence of Finance following Department without recruitment the the Odisha Reservation of including procedure Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 and the rules made thereunder and Rules regulating recruitment for the regular posts. (b)Category II: Contractual Engagements made through manpower service provider agencies with concurrence of Finance Department. 8. Special Provision for different categories of existing Contractual Employees:-(a) The contractual employees belonging to Category-I and the persons provided by the manpower service provider agencies under Category-II, who shall be less than 45 years of age and shall have completed at least one year of continuous service, in case they apply for Recruitment under sub-rule (I) of rule 5 for any Group C and Group D posts, shall be allowed relaxation of upper age limit for entry into Government service; provided they satisfy all other eligibility criteria for the post as laid down in the relevant recruitment rules. (b) They shall be allowed one per cent extra marks on the total marks of the examination for each completed year of continuous service subject a maximum of Page 13 of 15 fifteen per cent, which shall be added to the marks secured by them for deciding the merit position. 10. Conditions of Service on Regular appointment- (1) Regular Appointments: On the date of satisfactory completion of six years of contractual service under sub-rule (1) of rule 9, they shall be deemed to have been regularly appointed. A formal order of regular appointment shall be issued by the appointing authority. 15. After having examined the aforesaid provisions, learned Single Judge, in our opinion, has rightly held that the appointments in accordance with 2013 Rules are to be made initially on contractual basis for a period of six years, and upon completion of six years of satisfactory service, an employee shall be deemed to have been regularly appointed. The principle that one set of contractual engagement cannot be substituted by another set of contractual engagement has no application in the present set of facts for more reasons than one. Firstly, the appellants cannot be treated to be engaged on contractual basis by the State. Their services were provided by a private service provider which was selected through a process of tender. Secondly, the advertisement in question is in accordance with the statutory Rules framed under the proviso to Article 309 of the Constitution of India which stipulates initial engagement on contractual basis for six years with a deeming fiction that they shall be treated to have been regularly appointed after expiry of the said period of six years, if their services are found to be satisfactory. It has been rightly noted by the learned Single Judge that Rule-8 of 2013 Rules makes special provisions for different categories of existing contractual employees belonging Page 14 of 15 to Category-I and category-II both. The submission that the impugned advertisement does not contemplate relaxation/leverage as prescribed under Rule 8 of the 2013 Rules is patently misplaced for the reason that it has been clearly mentioned in the advertisement itself that the appointment shall be guided by the 2013 Rules. 16. For the aforesaid reasons, we do not find any illegality in the impugned judgment and order of the learned Single Judge. 17. Accordingly, these appeals are dismissed. Chief Justice (Chakradhari Sharan Singh) (Savitri Ratho) Judge S.K. Guin/P.A. Signature Not Verified Digitally Signed Signed by: SUBASH KUMAR GUIN Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Aug-2024 15:29:49 Page 15 of 15