Misc. Case No. 9411 of 2012 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P. (C) No. 14996 of 2024 Satyashri Mohapatra …. Petitioner Mr. R.N. Parija, Advocate -Versus- State of Odisha & others …. Opposite Parties Mr. H.K. Panigrahi, ASC CORAM: MR. JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:28.10.2024 1. Instant writ petition is at the behest of the petitioner challenging the rejection order dated 7th May, 2024 under Annexure-1 passed by opposite party No.1 and for a direction to the opposite parties to regularize him in the post of pre-restructure cadre of Assistant Engineer (Mechanical) in the Department of Water Resources w.e.f. 8th February, 2013 as allowed in favour of others similarly situated vide Annexure-16 and upon such regularization to extend the benefits as per DOWR Notification dated 21st March, 2013 i.e. Annexure-7 with the upgradation to the rank of Assistant Executive Engineer (Mech.) in OES cadre and further to grant all such seniority and service benefits including promotion in his favour within a stipulated period. 2. As per the pleading on record, the petitioner is presently posted as Work Charged Assistant Executive Engineer (Mechanical) against a regular sanctioned post and he is aggrieved by the decision of W.P.(C) No. 14996 of 2024 Page 1 of 16 opposite party No.1, who has declined to regularize him in the post of pre-restructure cadre of Assistant Engineer followed by the impugned order under Annexure-1. According to the petitioner, he was allowed to work as NMR/DLR Graduate Engineer under the Water Resources Department in the year 1994 as per the approval of the Government by following due process of law, whereafter, continued to discharge the duty and used to draw a consolidated remuneration at par with the scale of pay of the Assistant Engineer and subsequently, the consolidated pay was revised and such engagement and appointment was by virtue of Annexure-2. It is pleaded that eight others were similarly appointed as NMR/DLR Graduate Engineers, however, the same was prior to the cutoff date i.e. 12th April, 1993. As per the petitioner, the Government of Odisha in Water Resources Department appointed ten more NMR/DLR Graduate Engineers in the year 2004 by an order under Annexure-3, which included him on a contractual basis against regular vacant sanctioned posts of Assistant Engineers and in the meantime, some of the Junior Engineers filed O.A.No.504 of 2004 challenging their appointments, which was disposed of on 27th February, 2004 with an observation that the direction contained therein would not be a bar for them to continue as DLR Engineers for discharging the technical duties without any official designation or responsibility of the Sub-Divisional Officers. It is further pleaded that the petitioner and nine others affected by the above order approached this Court in W.P.(C) No. 1748 of 2007 and it was disposed of on 14th March, 2022 and till such time, their services were continued by an interim order subject to the final outcome. It is further pleaded that a decision was taken to bring NMR/DLR W.P.(C) No. 14996 of 2024 Page 2 of 16 Graduate Engineers like the petitioner but appointed prior to 12th April, 1993 over to the Work Charged Establishment as Assistant Engineer and on receiving concurrence of the Finance Department, one of them was appointed and being aggrieved of, Misc. Case No. 9411 of 2012 was filed in W.P.(C) No. 1748 of 2007, wherein, it was directed that pending disposal of the matter, there shall be no bar for the authority to consider the case of the petitioner and others to be brought over to the Work Charged Establishment by an order dated 17th July, 2012 (Annexure-4) and after such an order, nine NMR/DLR Engineers excluding the petitioner was brought over to the establishment by a Notification dated 8th
Legal Reasoning
February, 2013 as at Annexure-5. The contention of the petitioner is that though, others similarly situated were brought over to the Work Charged Establishment, he was singled out and since it was a discriminatory, filed O.A. 2415(C) of 2015 seeking a direction of the opposite parties to regularize his services as Assistant Engineer (Mechanical)/Assistant Executive Engineer (Mechanical) or in the alternative, to extend the relief as has been allowed in favour of the said nine Contractual Assistant Engineers and the same was
Decision
disposed of by a judgment dated 3rd March, 2017(Annexure-6) and the learned Tribunal was pleased to allow the alternative prayer but in the meanwhile, by a Resolution dated 21st March, 2013 of the Department of Water Resources, the posts were restructured in the cadre of OES and Diploma Engineer Services vide Annexure-7 and pursuant to a decision under Annexure-6, the petitioner was brought over to the Work Charged Establishment similarly w.e.f. 8th February, 2013 like his counterparts by a Notification dated 9th October, 2017 i.e. Annexure-8 and upon such upgradation of the W.P.(C) No. 14996 of 2024 Page 3 of 16 posts of Assistant Engineer, he was posted as Estimator, which is a post of the rank of Assistant Executive Engineer, by a Government decision under Annexure-9 indicating therein that the same is against an existing vacancy of regular sanctioned post of Assistant Executive Engineer (Mechanical) with the pay and allowances to be drawn against such regular post as usual. The further contention is that in view of the judgment as at Annexure-11 of the learned Tribunal, the counterparts of the petitioner were directed to be treated as Work Charged Establishment Assistant Executive Engineer against the post, which was upgraded with the grant of all service and financial benefits to them from the date of upgradation and it was followed by Notification dated 14th May, 2019 (Annexure-12). It is contended that though the petitioner is entitled to similar relief in view of Annexure-12 but the opposite parties rejected his claim by order dated 26th November, 2019 and finding no other way out, W.P.(C) No. 24000 of 2019 was filed by him and it was followed by an order under Annexure-13 with a direction to release all the service and financial benefits in his favour as already granted to others within a period of three weeks from the date of the order dated 7th December, 2022 and was communicated and in spite of such a direction, the same was not complied with. In the meantime, according to the petitioner, since the order under Annexure-13 was not complied with CONTC No. 3358 of 2023 was filed but on 11th May, 2023, the opposite parties complied the direction except in not granting services benefits to him as he is entitled to against the sanctioned regular post of Assistant Executive Engineer and instead of ensuring compliance, Review petition No. 364 of 2023 was filed but the same was finally dismissed, however, on 21st March, 2024, W.P.(C) No. 14996 of 2024 Page 4 of 16 the remainder of the order was complied with vide Annexure-15. The other nine similarly situated persons filed O.A. Nos. 1036 (C) and 1089(C) of 2016 demanded grant of services and financial benefits and to take a policy decision to absorb them against regular vacancies of Assistant Executive Engineers but the directions issued therein was complied with in part on 14th May, 2019 and the rest on 7th November, 2022 and so to say, the services were regularized in pre-restructure OES cadre w.e.f 8th February, 2023 and after such regularization, they were entitled to the benefits of the restructured cadre as per DOWR Notification dated 21st March, 2013. The last of the contentions is that the opposite parties discriminated the petitioner and declined to grant the benefits at par with his counterparts and as a last resort, a detailed representation was submitted by him to opposite party No.1 on 16th July, 2023, which was forwarded to the Finance Department for a decision vide Annexure-17 series and that on 2nd August, 2023, others, whose services were regularized, were promoted to the next rank of Executive Engineer (Civil) corresponding to the pay level-13 of Pay Matrix as specified in the 1st Schedule of ORSP Rules, 2017 by a Notification under Annexure-18, which constrained him to file W.P.(C) No. 33 of 2024 and the same was disposed of vide Annexure-19 to consider the representation but the same was rejected by order of Annexure-1, inasmuch as, such decision is fully unjustified and not sustainable in the eye of law as he is equally entitled to the relief of regularization and consequential benefits including further promotion to the next higher level. With the above pleading on record, the petitioner demands treatment at par with his counterparts, who have been absorbed in the meantime. W.P.(C) No. 14996 of 2024 Page 5 of 16 3. Heard Mr. Parija, learned counsel for the petitioner and Mr. Panigrahi, learned ASC for the State-opposite parties. 4. Opposite party Nos. 1 & 4 filed a counter affidavit stating therein that rightly, the representation of the petitioner was rejected vide Annexure-1 and pleaded that the Work Charged Assistant Executive Engineers (Civil) have been absorbed against the regular posts of OES cadre by a decision of the Government as the one-time relaxation as per Rules 4(a) & 7 of the Odisha Engineering Service (Method of Recruitment and Conditions of Services Rules), 2012 read with the provisions of the erstwhile Odisha Service of Engineers Rules, 1941 and Notification dated 7th November, 2022 of the Department of Water Resources (Annexure C/4). The contention of the opposite parties is that the petitioner cannot demand regularization like eight others, who belong to Civil Wing and when such regularization is a one-time measure. The other facts pleaded by the petitioner with regard to the orders and directions of this Court are not in dispute but the contention of the opposite parties is that the decision not to regularize the petitioner by opposite party No.1 is not erroneous, wherein, it has been concluded that such regularization of the other Work Charged Assistant Executive Engineers (Civil) shall not be a precedence. 5. In reply and response to the above, the petitioner filed a rejoinder dated 18th August, 2024 to contend that he is similarly situated like his counterparts, who have been regularized. The contention is that the direction of learned Tribunal in O.A. 2415 (C) of 2015 was not complied with in letter and spirit when a specific finding was to the effect that the petitioner to be treated at par W.P.(C) No. 14996 of 2024 Page 6 of 16 with similarly situated persons, who have been brought over to the Work Charged Establishment and hence, entitled to the consequential benefits and similarly, there has been discrimination in the grant of scale of pay, which resulted in filing of W.P.(C) No. 24000 of 2019, wherein, it is held that it was not open for the opposite parties to take a contrary stand denying the claim to treat him at par with the counterparts. The further pleading is that there has been further discrimination in regularizing the service of the petitioner, which has been allowed in respect of eight others. The pleading is that despite Annexures-6 & 13, the petitioner has been unequally treated and since at the subsequent stages by Annexures- 8, 14 & 15, the directions are treat him at par was complied with, the opposite parties are hence estopped to raise any such plea or take a stand while considering regularization of his service. 6. Mr. Parija, learned counsel for the petitioner reiterated the facts narrated above and would submit that the petitioner is entitled to regularization as it has been allowed in respect of similarly situated persons, who have been extended the benefit under the restructured cadre of Assistant Executive Engineers w.e.f.21st March, 2013 and their seniority was accordingly fixed w.e.f. 26th February, 2014. Referring to an order dated 22nd July, 2024 of the Apex Court in Special Leave Appeal No. 25609 of 2018, Mr. Parija, learned counsel for the petitioner submits that the petitioner cannot be unequally treated as it has been held therein that in case a policy decision is taken within the permissible frame work, its benefit must be extended to all, who fall within the parameters of such policy and that the authorities cannot be permitted to pick and choose in such circumstances. One more decision of the Apex Court in State W.P.(C) No. 14996 of 2024 Page 7 of 16 of U.P. & others Vrs. Arvind Kumar Srivastav & others 2014(7) Supreme 628 is referred to by Mr. Parija, learned counsel to contend that the principles enumerated therein have not been duly applied by the opposite parties, while considering the plea for regularization, inasmuch as, the ratio decided is that an obligation is cast upon the authorities to extend the benefits to all similarly situated persons and such a situation may occur, when the subject matter of a decision touches upon the policy makers like scheme of regularization etc. The further contention is that the petitioner was appointed vide Annexure-2 in the year 1994 and obviously, after the cutoff date but he cannot be segregated from others joined prior thereto, since such appointment has been approved by the Government. It is contended by Mr. Parija, learned counsel that the petitioner since discriminated, challenged the action/inaction of the opposite parties, whereafter, he was brought over to the Work Charged Establishment granted with pay and allowances at par and in consonance with the post held by him like the counterparts but denied the regularization. Such unequal treatment meted out to the petitioner and rejection of the representation by a decision under Annexure-1 is an act of arbitrariness under the guise of a policy decision of one-time measure, which is clearly against the principles and settled legal position discussed herein before. 7. Mr. Panigrahi, learned ASC for the opposite parties, on the other hand, submits that the petitioner for being brought over to the Work Charged Establishment cannot demand regularization as a matter of right. Such regularization of eight others vide Annexure- 16 is a one-time relaxation by a decision of the Government according to the relevant rules and it shall not be a precedence. W.P.(C) No. 14996 of 2024 Page 8 of 16 The stand and the contention of the opposite parties is that there is no illegality committed by opposite party No.1 in rejecting the request for regularization received from the petitioner and according to Mr. Panigrahi learned ASC, the same is in accordance with law, hence, therefore, the petitioner is not eligible for such a regularization in service. 8. The moot question is, whether, the petitioner is to be treated at par like eight others, whose services have been regularized in the meantime? Whether, the decision of opposite party No.1 vide Annexure-1 with the rejection of the petitioner’s representation is justified? Considering the regularization of the counterparts, whether, the petitioner is to be treated at par with them or differentially, as it is claimed by the opposite parties? In fact, Mr. Parija, learned counsel for the petitioner relies on another decision of the Apex Court in Raman Kumar & others Vrs. Union of India & others in Civil Appeal No(s). /2023 @ SLP(C) No. 7898/2020 to contend that the petitioner’s service should be regularized like his counterparts and ignoring him is unfair as it has been held in the decision (supra) that any act of regularizing the services of some employees and not others would amount to discrimination and violative of Article 14 of the Constitution of India. 9. Mr. Parija, learned counsel contends that the policy decision of the Government cannot treat the petitioner and his counterparts differently and any such decision to exclude the former regularizing the services of the latter is a clear act of discrimination and violates Article 14 of the Constitution of India. A ban was imposed against appointments as the contention of the opposite parties was that the W.P.(C) No. 14996 of 2024 Page 9 of 16 petitioner’s entry into service in 1994 after the cutoff date was illegal. However, since the petitioner’s appointment did receive the concurrence of the Government, he was brought over to the Work Charged Establishment later after he challenged the inaction of the opposite parties. The present dispute has chequered career so to say and the petitioner has been successful all through except on regularization of service, the same having been rejected by a decision of opposite party No.1 vide Annexure-1. The ultimate question is, whether, the petitioner can be as absorbed in the post of pre-restructure cadre of Assistant Engineer (Mechanical) in the Department of Water Resources w.e.f. 8th February, 2013 and in view of Notification (Annexure-7) in the rank of Assistant Executive Engineer (Mechanical) in OES cadre, a benefit at par with the counterparts allowed vide Annexure-16? In the case of the State of M.P. & others Vrs. Shyam Sundar Yadav & another in Special Leave to Appeal No. 25609 of 2018, the Apex Court while dealing with a matter involving employees engaged on daily wage basis observed that such employees do not have a legally vested right to seek regularization of services, however, if the competent authority takes a policy decision, it shall have to benefit all, who fall within the parameters of such policy and there cannot be any segregation to pick and choose from a lot. In Raman Kumar (supra), some of the employees and their services in the Income Tax Department were regularized leaving others with a plea that vacancies are not available and dealing with the matter, the Apex Court held that such a decision not to regularize the services of left out with such a plea is patently discriminatory and in violation of Article 14 of the Constitution of India. In Arvind Kumar Srivastava (supra), the Apex W.P.(C) No. 14996 of 2024 Page 10 of 16 Court had the occasion to deal with a similar question and formulated the following legal principles, extract of which is reproduced herein below: “23) The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under: (1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the services jurisprudence evolved by this Court from time-to-time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. (2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/ or the acquiescence, would be a valid ground to dismiss their claim. (3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularization and the like (ss K.C. Sharma & Ors. V. Union of India(supra). On the other hand, if the judgment of W.P.(C) No. 14996 of 2024 Page 11 of 16 the Court was in personal holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.” 10. In one of such cases in Ravi Verma & others Vrs. Union of India & others decided on 13th March, 2018 in Civil Appeal Nos. 2795-2796 of 2018, the Apex Court held and observed that the act of regularizing the services of some of the employees and not all similarly situated amounts to discrimination and it violates the fundamental right guaranteed under Article 14 of the Constitution of India. 11. As to the present case, the petitioner is in service since 1994. As earlier discussed, though the appointment of the petitioner is after the cutoff date, it received approval of the Government so revealed from Annexure-2. The petitioner was an NMR/DLR Graduate Engineer and he and nine others were engaged under the Engineer in-Chief, Water Resources Department on a consolidated salary of Rs. 7,000/- a month on contractual basis and admittedly, against regular vacant sanctioned posts of Assistant Engineer, so made to appear from Annexure-3. According to the Court, the opposite parties cannot now take a stand and segregate the case of the petitioner with a plea that he has been appointed after the cutoff date. In fact, with the service of the petitioner being approved and confirmed by the Government and he having been brought over to the Work Charged Establishment, therefore, such plea is no more available to the opposite parties, a conclusion which has been reached at earlier especially while dealing with and disposal of W.P.(C) No. 24000 of W.P.(C) No. 14996 of 2024 Page 12 of 16 2019 on 7th December, 2022. From Anneuxre-3, it is clearly made to suggest that the petitioner was at par with the counterparts and joined against a sanctioned post with similar terms and service conditions. In so far as, re-structuring of the cadre of the OES and Diploma Engineering Service (DES) is concerned, the same has taken place in 2013 as per Annexure-7. Pursuant to the order in I.A. No. 2415(C) of 2015, the petitioner was brought over to the establishment w.e.f. 8th February, 2013 as a Work Charged Assistant Engineer in the scale of pay of Rs. 9,300/-to Rs. 34,800/-and Grade Pay of Rs. 4,600/- subject to the decision in W.P.(C) No.1748 of 2007 as revealed from Annexure-8. The petitioner was allowed to draw pay and allowances against the regular post of Assistant Executive Engineer(Mechanical) and conditions of his service to be regulated as per the Odisha Work Charged (Appointment and Conditions of Service) Instructions, 1974 by a decision of the Government and was duly communicated vide Annexure-9 which reveals that the same was consequent upon the fact that he was brought over to the Work Charged Establishment and upgradation of the post with the rank of Assistant Executive Engineer under re- structuring of the cadre of OES and being absorbed against an existing vacancy of regular sanctioned post of Assistant Executive Engineer(Mechanical). From Annexure-10, it is apparent that a post of Estimator is in the rank of Assistant Executive Engineer (Mechanical). From Annexure-12, it is further revealed that in view of the common judgment of the learned Tribunal in O.A. Nos. 1036 & 1089 of 2016, all service and financial benefits were granted in favour of nine other similarly situated persons. Taking cognizance of the fact that W.P.(C) No. 1748 of 2007 was disposed of on 14th March, 2022 W.P.(C) No. 14996 of 2024 Page 13 of 16 and the fact that O.A Nos. 1036(C) & 1089(C) of 2016 were disposed of with a direction towards regularization of services, a decision which was not challenged by the Government, it is thus to be concluded that the same having attained finality has been set to rest. The petitioner’s plea for regularization under Annexure-17 series did not yield any result despite the fact that it was on the premise of equal treatment like the counterparts, who were subsequently promoted vide Annexure-18 to the post of Executive Engineer (Civil). 12. The Court, against the aforesaid backdrop, is to examine, whether, the services of the petitioner could have been regularized by the opposite parties instead of being rejected vide Annexure-1. Admittedly, the regularization of others vide Annexure-16 is a one- time measure as per Rules 4(a) & 7 of the Rules, 2012. It is revealed from Annexure-1, the reason as to why the petitioner’s case is differently treated and it is on the ground that he belongs to Mechanical Wing which cannot be equated with the eight other Work Charged Assistant Executive Engineer (Civil). Apart from the fact that such regularization of the later is a onetime relaxation as per the rules and that such grant of service and financial benefits to him w.e.f. 8th February, 2013 at par with the eight other Work Charged Assistant Executive Engineers (Civil) would cause injustice to the existing senior regular Assistant Executive Engineers of Mechanical Wing of OES cadre, who have been upgraded and received such service benefits prospectively on and from 26th February, 2014. In the humble view of the Court, the above plea to deny the petitioner’s regularization is unfair and unjustified when all along he stood at par with his counterparts. It can therefore be said that the petitioner cannot be differently with the stand taken by the opposite parties. W.P.(C) No. 14996 of 2024 Page 14 of 16 Except the fact that the petitioner was appointed after the cutoff date, there is no dissimilarity and hence, there lies no justification to him unequally and that too, with the plea that he has no right as such to demand regularization. 13. It is well settled law with reference to the case laws discussed earlier that one cannot claim regularization as a matter of right but any decision taken in that regard is certainly not to differentiate when all stand on the same footing. Any policy decision shall have to be in confirmity with the above legal position, otherwise, it would result in unfair treatment and clearly discriminatory. In the case at hand, the Government took a policy decision for others as a one- time measure but in view of the law enunciated, the same is not to exclude the petitioner, who is in no less footing than his counterparts. Perhaps, the petitioner’s case has been treated differently since his entry into service was at a time when there was a ban on appointment but as concluded already, the same cannot be a ground especially after it received approval and concurrence of the Government. The petitioner is in service for quite a long time and still waiting to be absorbed, whereas, the services of others at par with him have been regularized and considering the matter in its entirety, the Court reaches at a conclusion that it is fit case, where he should be treated equally. The Court approves of the view that a policy decision should not segregate equals but to apply evenly to all. With a plea that there shall be no precedence and attempting to draw and demarcate a line of distinction only to segregate him without any rational basis, in the considered view of the Court, is to treat the petitioner indifferently, when he deserves equal treatment like his counterparts and such is the conclusion based on the W.P.(C) No. 14996 of 2024 Page 15 of 16 principles of law and authorities referred to and discussed herein above. 14. Hence, it is ordered. 15. In the result, the writ petition stands allowed. As a necessary corollary, opposite party No.1 is directed to take necessary steps towards regularization of services of the petitioner, an exercise which is to be concluded as early as possible preferably within a period of eight weeks from the date of receipt of a certified copy of this judgment. 16. In the circumstances, however, there is no order as to costs. kabita (R.K.Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Reason: Authentication Location: OHC, CTC Date: 30-Oct-2024 18:14:04 W.P.(C) No. 14996 of 2024 Page 16 of 16