Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.10565 of 2016 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Girish Chandra Nayak …. Petitioner(s) -versus- State of Odisha and others …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: : For Petitioner(s) Mr. Subhransu Bhusan Mohanty, Adv. For Opposite Party (s) : Mr. Pradipta Ku. Mohanty, Sr. Adv. Along with Mr. P.K. Pasayat, Adv. (for O.P.3) CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-02.08.2024 DATE OF JUDGMENT: -24.09.2024 Dr. S.K. Panigrahi, J. 1. The Petitioner, through this Writ Petition, seeks to challenge the order dated 27.05.2015 passed by the Commissioner, Cuttack Municipal Corporation, Cuttack (Opp. Party No. 3). I. FACTUAL MATRIX OF THE CASE: 2. The brief facts of the case as narrated by the Petitioner are as follows: Page 1 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 (i) The petitioner was engaged as an NMR (Nominal Muster Roll) employee with the Cuttack Municipal Corporation in 1996, and was entrusted with the responsibilities of a Ward Supervisor. (ii) Despite submitting multiple representations and making verbal requests to the Corporation Authorities, no action was taken by the then Executive Officer to appoint the petitioner to a regular position as a mechanic within the Cuttack Municipal Corporation. (iii) Aggrieved by the inaction of the Cuttack Municipal Corporation and having no other recourse, the petitioner filed a Writ Petition being O.J.C. No. 4051 of 2000, before this Court, seeking a direction to the opposite parties to re-induct and regularize his service in the post of Supervisor or any other suitable post commensurate with his
Decision
qualifications. This Court, by its order dated 17.10.2008, disposed of the writ petition/ directing the opposite parties to consider the petitioner’s case for appointment when a vacancy arises in the post of Supervisor in the Automobile Section of the Cuttack Municipal Corporation. (iv) The petitioner subsequently submitted representations dated 08.10.2010 and 30.07.2014, requesting appointment to any existing vacancies for the posts of Mechanic or Driver, or any other similar post, considering his 16 years of experience in Automobile Management and his previous service with the Corporation. (v) Following his verbal disengagement from the Cuttack Municipal Corporation, the petitioner has been employed as an Automobile Mechanic, Driver, and Supervisor in various private sector roles to sustain his family. To date, no steps have been taken by Opposite Page 2 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 Parties No. 3 & 4 to provide him with any appointment or engagement in the Corporation, in compliance with the order of this Court. (vi) Through an application under the Right to Information (RTI) Act, the petitioner was informed on 19.12.2013 that three Mechanic posts and ten Driver posts remain vacant in the Cuttack Municipal Corporation. (vii) The petitioner, therefore, seeks an order directing the Opposite Parties to recommend his name for inclusion in the approved list for consideration for appointment or promotion. Hence, the present Writ Petition. II. 3. SUBMISSIONS ON BEHALF OF THE PETITIONER: Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: (viii) The Housing and Urban Development Dept. has sought for lists of vacancy of posts vide their letter No.12326 dated 17.6.2014 from the C.M.C. But, up to the utter surprise, C.M.C has not given any list of vacancies to the Dept. which shows the clear mala fide intention of the C.M.C Authority (ix) Despite the order of this Court as cited above, the Commissioner, Cuttack Municipal Corporation did not took any action to accommodate the petitioner in any of the vacancies, rather artificially prevented the petitioner to discharge the duty as assigned to him earlier. As the petitioner was working in Non- L.F.S Cadre post in the irregular post/ Establishment, no personal file was opened and he was working in Muster Roll basis. Page 3 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 (x) The petitioner through RTI Act, sought for a detail list of employees posted in Cuttack Municipal Corporation after passing the order of the Hon’ble Court dated 17.3.2009, from 27.3.2009 to 28.3.2016, a list of 282 employees are posted in Cuttack Municipal Corporation Office since 27.3.2009 to 28.3.2016 vide their letter dtd.19.12.2015.Out of the above total employees, the case of the petitioner has not been considered. (xi) The petitioner was working as an A.M.C. under Cuttack Municipal Corporation before his disengagement. As is revealed from the information report supplied by the Office that there are 5 numbers of employees are permanently posted as A.M.C. in the Cuttack Municipal Corporation. (xii) The information received under RTI Act and the Government letter under reference above have disclosed that there are vacancies as existed in pre-disposal stage and the said vacancies have been increased latter on as reported/sought for by the Government but the Cuttack Municipal Corporation Authorities being unkind to the petitioner and it has rejected his representation. (xiii) The modified order of this Court dated 17.3.2009 passed in Misc. Case No.804/2008 in OJC No. 4051/2000 was cogent and forceful which would have justified the petitioner’s grievance at the time of disposal of his representation by the Cuttack Municipal Corporation Authority. The order passed earlier as it evident has been flouted by the Corporation Authority which is contemptuous but the Authority in order to save his skin has taken an unfair view in consideration of the representation to make it impulse. The impugned order has not adhered to any justifiable Page 4 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 grounds and passed the impugned order in a mechanical manner which is liable to be interfered with by this Hon’ble Court at present (xiv) It is pertinent to mentioned here that, while disposing of the representation, the opposite party No. 4 indicated that the post of Driver or Mechanic comes under Non- LFS Cadre, prior approval of the Government in Housing and Urban Development Dept. is required as per the provision of the law. At present there is no such proposal for appointment on the vacant post due to austerity measure. However, as and when steps will be taken, the petitioner is at liberty to take part/ participate in the said selection for appointment in the vacancy post as stated above as per his eligibility. Hence, the representation of the petitioner has been rejected. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES: 4. (i). Per contra, learned counsel for the Opposite Party No.3 earnestly made the following submissions in support of his contentions: The petitioner has filed this Writ Petition by deliberately and willfully suppressing material facts involved in the matter only with a view to mislead this Court against the opposite parties, for which the same is not maintainable and/or sustainable and this Writ Petition is liable to be dismissed in limine. (ii). The petitioner was not engaged against any sanctioned/vacant post under the establishment of the Opposite Party No.3, rather it is to state here that, the petitioner was engaged as temporary Supervisor to Page 5 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 supervise the work of Spray Man in Ward No.6 as per the order dated 31.12.1998 of the then Health Officer of the opposite party No.3. (iii). As per the provisions of Section 73(2) of the Orissa Municipal Act, 1950 (“OM Act”), which came into force by virtue of the Orissa Municipal Amendment Act, 1997, in the case of emergency nature of works, such temporary engagements can be done for a period not exceeding 44 days at a stretch and further to state here that as per the provisions of Sections 73-A, 73-B, 73-C and 73 of the Act, any appointment made by an Urban Local Body without the previous sanction of the State Government as required by Sub-section (1) of Section 73 of the Orissa Municipal Act shall be treated as voidable and as such, permanent appointments are strictly prohibited. (iv). Catering to the need of civic amenities to the public in general, Cuttack Municipal Corporation was taking up renovation of drains, bush cutting work, controlling mosquito menace by spraying larvicide in the drain, fixation and maintenance of electric light posts etc., and for proper execution of the above works, workers/coolies/casual labourers were engaged on daily wage basis for short periods intermittently every year and since the petitioner was engaged on purely temporary basis as aforesaid for the above work, after completion of such special drives, the said temporary employees including the petitioner were already disengaged/relieved. (v). In terms of letter dated 15.12.2000 of the Opposite Party No.2; issued to all the ULBs, the D.L.Rs/N.M.Rs who were engaged after 19.05.1997, were directed to be disengaged forthwith, if not yet done and thus in Page 6 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 pursuance of the direction of the Govt., since, in the instant case, the petitioner was engaged on 31.12.1998, which is much after the cut-off date i.e., 12.04.1993, all such persons including the petitioner have been disengaged. (vi). The petitioner has already been disengaged since the year 2000 and thereafter he has not been engaged/re-engaged for so many years and more so, in the meanwhile, by lapse of so many years, the petitioner’s case could not be considered as per the provisions of law and the direction/instruction of the Govt. in H&UD Dept. and therefore, it is virtually beyond the scope of the CMC to consider the case of the petitioner for re-engagement.. IV. COURT’S REASONING AND ANALYSIS: 5. Having heard learned Advocates appearing for both the sides and having gone through the material on record, it appears that before dealing with the central issue raised in this Writ Petition, following few facts are worth to be taken note of:› a. From the record, it is clear that the petitioner had been contractually appointed on purely temporary basis and terminable at any time. Therein, it was explicitly mentioned that the order of engagement does not construe a basis for claiming any regular or permanent appointment in future. b. The letter of appointment further indicates that the petitioner(s) had been appointed for a specific term; extendable on term-to- term basis. Page 7 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 c. It is indicated that the petitioner was paid a consolidated remuneration of against his appointment. It is pertinent to note that the petitioner was not paid wages or salary but a fixed honorarium/consolidated pay every month for the period of work. d. At the time of extension of the concerned period of appointment, it was reiterated that the petitioner’s services were contractual only and that extension of contract does not construe a basis for claiming any regular or permanent appointment in future. 6. If the aforesaid factors are weighed in the scales, it is clear that the factors which make the contract one for service outweigh the factors which would point in the opposite direction. First and foremost, the intention of the parties is to be gathered from the terms of the contract. The terms of the contract make it clear that the contract is one for temporary service, and that with effect from the date on which the contract ends, the service of the petitioner shall be terminable provided it is not regularized first. Secondly, the remuneration is described as honorarium, and consistent with the position that the petitioner is a contractual employee working in the Institute in his own right. Thirdly, his services cannot be terminated in the usual manner as the other regular employees of the organisation but are terminable anytime. The fact that the petitioner has done his job with utmost honesty and would not necessarily lead to the conclusion that, de hors all other factors, the contract is one of contractual service. Page 8 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 7. 8. 9. The petitioner did not have any vested legal right for regularisation in service. Since the appointment was purely on contractual and ad hoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had no right to continue in the post. The relevant observations contained in the following decisions of the Apex Court with regard to the status of a contractual employment, I would like to incorporate hereunder some of the relevant observations. In the case of Yogesh Mahajan vs. Professor R.C. Deka, Director, All India Institute of Medical Sciences,1 the Apex Court has observed as under:› “6. It is settled law that no contract employee has a right to have his or her contract renewed from time to time. That being so, we are in agreement with the Central Administrative Tribunal and the High Court that the petitioner was unable to show any statutory or other right to have his contract extended beyond 30th June, 2010. At best, the petitioner could claim that the concerned authorities should consider extending his contract. We find that in fact due consideration was given to this and in spite of a favourable recommendation having been made, the All India Institute of Medical Sciences did not find it appropriate or necessary to continue with his services on a contractual basis. We do not find any arbitrariness in the view taken by the concerned authorities and therefore reject this contention of the petitioner. 7. We are also in agreement with the view expressed by the Central Administrative Tribunal and the High Court that the petitioner is not entitled to the benefit of the decision of this 1 (2018) 3 SCC 218 Page 9 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 Court in Uma Devi. There is nothing on record to indicate that the appointment of the petitioner on a contractual basis or on an ad hoc basis was made in accordance with any regular procedure or by following the necessary rules. That being so, no right accrues in favour of the petitioner for regularisation of his services. The decision in Uma Devi does not advance the case of the petitioner.” 10. The Supreme Court in the case of Secretary. State Of Karnataka v. Umadevi2 held that: “In Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar Mishra and Others; a three judge bench of this Court held that ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piece rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from one to two years. This decision indicates that if the engagement was made in a particular work or in connection with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and the High Court cannot direct that they be continued or absorbed elsewhere." .... 38. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot 2 Page 10 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. 11. In Umadevi (supra), the Supreme Court has thoroughly examined the observations of the Court in Piara Singh (supra) and concluded that there cannot be any absolute rule or principle that one ad hoc or temporary appointee can never be replaced by another ad hoc or temporary appointee. In the present case, the Petitioner cannot contend that the Municipal Corporation cannot take outstanding employee or further ad hoc employee as per it need. 12. What is sought for by the Petitioner before this Court is for a direction for his reinstatement. In this context, the question arises whether a mandamus could be issued in favour of such persons. Now, it is trite in law that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the a statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a Page 11 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 mandamus could not be issued in favour of the employees directing the employer to re-appoint or make them permanent, since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent. 13. In the case of Oshiar Prasad and others vs. Employers in Relation to Management of Sudamdih Coal Washery of M/s. Bharat Coking Coal Ltd., Dhanbad, Jharkhand,3 the Apex Court has observed as under: “25. It is a settled principle of law that absorption and regularization in the service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and employer. Once it comes to an end either by efflux of time or as per the terms of the Contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the legality and correctness of its termination.” 14. On the basis of the terms and conditions visible on record coupled with the honorary status having been accepted throughout by the petitioner, in the considered opinion of this Court, it is not open for the petitioner now to approach the Court with a request to regularize him to the concerned post irrespective of the fact as to whether he is continued for quite some time. Mere continuance in service as a contractual employee would not give any leverage to the petitioner to claim as if he is a permanent employee. 3 (2015) 4 SCC 71 Page 12 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 15. On a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re-engagement or making them permanent. That being the position, it appears to this Court that hardly any case is made out by the Petitioner to call for any interference to grant any relief as prayed for. 16. The High Court, while empowered to review and assess matters of employment and governance, is limited in its authority regarding the regularization of contractual employees. No direction can be issued by this Court, in exercise of powers under Article 226 of the Constitution of India, for absorption/regularisation of the employees who were appointed in a temporary unit which was created for a particular project and that too, by creating supernumerary posts. V. CONCLUSION 17. In light of the facts and circumstances of the present case, this Court finds no merit in the current Writ Petition. The Petitioner has not succeeded in establishing grounds for interference with the impugned order. 18. In light of the foregoing, this Writ Petition is dismissed and disposed of in terms of the aforesaid observations. Judge (Dr. S.K. Panigrahi) Orissa High Court, Cuttack, Dated the 24th Sept., 2024/ Page 13 of 13