The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.20311 of 2020 Smt. Api Dangua & Ors. …. Petitioners -versus- The Registrar, Orissa University & Ors. …. Opposite Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 03.03.2023 Order No 06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. Sanjib Mohanty, learned counsel for the Petitioners, Mr. T. Pattnaik on behalf of Mr. Avijit Pal, learned counsel appearing on behalf of Opp. Party Nos. 1 & 2 and Mr. S.N. Pattnaik, learned Addl. Govt. Advocate appearing for Opp. Party No. 3. 3. The present writ petition is filed with a prayer to direct the Opp. Parties for regularization of the services of the Petitioners from the date of their initial appointment and to give their all consequential service and financial benefits within a stipulated period. 4. It is contended that the prayer as made in the writ petition was considered by this Court and this Court vide order dtd.26.02.2021
Decision
when disposed of the matter with a direction on the Opp. Parties to consider the case of the Petitioners and regularize their services keeping in view the Judgment of the Hon’ble Apex Court in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi (3) & // 2 // Ors. and State of Karnataka & Ors. Vs. M.L. Keshari & Ors., the Opp. Party Nos. 1 & 2 challenging the said order approached this Court in W.A. No. 470 of 2021. It is contended that the appellate Court vide its order dtd.07.09.2021 was pleased to remand the matter for fresh disposal. Accordingly, the matter has been placed once again before this Court. 5. Learned counsel for the Petitioners contended that since the Petitioners are all continuing prior to 12.04.1993 as NMR/DLR, the Authorities of Opp. Party Nos. 1 & 2 on different occasion moved the Govt. seeking their concurrence to regularize the services of the Petitioners as against the available Class IV vacancies. 6. Mr. Mohanty brought to the notice of this Court the communication made in that regard by the University on 29.03.2012 under Annexure-4. The contention of the said letter is reproduced hereunder:- “In inviting a reference to your letter on the subject cited above, I am to furnish herewith the information required for consideration of the proposal vide letter No. 6535, dated. 14.03.2011. (1) The up-to-date list of NMR/DLR/CL engaged prior to 12.04.1993 and continuing under OUAT till date enclosed. (2) The engagement of DLR/NMR/CL are essential for implementation of different assignments for ICAR/ Govt. of India/other funding agencies in Research, Extension and Teaching Units of OUAT. (3) For execution of different field trials and extension activities, the engagement of NMR/DLR/CL is essential in each units like Research, Teaching and Extension NMR/OLR/CL are usually engaged on daily wages basis and are paid from the contingency of different projects, for such engagement of Page 2 of 7 // 3 // NMR/DLFUICL, the approval of the Board of Management are usually not taken. (4) On receipt of the approval for appointment of Class-IV posts, the NMRDLR/CL engaged prior to 12.04.1993 will be appointed on regular class-IV post under OUAT as per recruitment rule of the OUAT, considering their seniority. It is further to mention here that, presently 347 (three hundred forty seven) nos. of Class-IV posts are lying vacant under different Colleges/ Deptt./ Schemes under OUAT due to retirement/ promotion/ death of Class-IV employees. It is therefore, requested to accord kind approval of the Government for filling up of 347 nos. of Class-IV posts lying vacant under OUAT from among the DLR/NMR/ CL workers engaged prior to 12.04.1993 as all of them have worked under OUAT for more than 10 years continuously.” 7. It is contended that as reflected from Annexure-4, the Petitioners are not only continuing as NMRs/DLRs prior to 12.04.1993, but also there are available vacancies in Class-IV, as against whom all the Petitioners can be absorbed. But in absence of prior approval of the Govt., the Petitioners when were not absorbed as against those vacant posts as reflected in Annexure-4, the Petitioners approached this Court in the present writ petition with the prayer as indicated hereinabove. Accordingly, it is contended that in view of the admission made by the Opp. Party Nos. 1 & 2 in Annexure-4 as well as subsequent communications at Annexure-5, the Opp. Party Nos. 1 & 2 be directed to absorb the Petitioners as against those vacant Class IV posts. 8. Mr. S.N. Pattnaik, learned AGA on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that since OUAT is an autonomous institution, no prior concurrence of the Govt. is required with regard to absorption of Page 3 of 7 // 4 // the NMRs/DLRs. It is the OUAT who is competent to take its own decision. The stand taken by the Opp. Party No. 3 in Para 3 & 7 of the counter are reproduced hereunder:- “3 That in reply to the averments made in Para-1 and 7 to 9 of the writ petition, it is humbly submitted that, the University has different research project/ schemes to carry out the research in the field of Agriculture and allied subjects functioning in different departments and research stations and KVKS, functioning under OUAT. To carry out research in Agricultural and allied research subjects, for the field works, concerned Research officers engage the casual labourers/NMRS and DLRs as per their requirement at their level. These workers are seasonal agricultural workers, work in fields as per requirement of the researchers on daily wage basis. They are not engaged against any Govt. Sanctioned vacant post. Further the payments of remuneration/wages to these casual Labourers/NMR and DLR are made from the contingency head of the concerned research projects. The Board of Management, OUAT in the Resolution No.3849 dated 01.03.2014 (Annexure-6) out of discussion it is resolved that to examine the Resolution No 31715/F dt: 04.09.2012 of Finance Department, Govt. of Odisha regarding Grant of temporary status in the absorption of casual / daily wage labourer engaged in OUAT prior to 12.04.1993 and the resolution of the Govt., may be implemented under OUAT in confirming with the content. Xerox copy of Resolution No.31715/F. dated 04.09.2012 is filed herewith as Annexure- A/3. As per above decision of Board of Management, the petitioner and others, who were working as Casual Laborer prior to 12.04.1993 have been granted temporary status with certain terms and conditions. This Department have not accorded any approval on this score. Page 4 of 7 // 5 // It is further humbly submitted that in compliance of orders of Hon'ble High Court dated 11.01.2016 passed in WP (C) No 28296 of 2013, the Registrar, OUAT intimated vide A&FE Dept Letter No.4692 dated 04.03.2016 that the scheme of conferring Temporary status is not applicable to OUAT, since OUAT is an Autonomous body, having its own Board of Management. So, OUAT is neither enjoying the status of Govt. Department nor Govt. Establishment. Hence, the claim of the petitioners to be absorbed in the regular establishment and to avail the salary and other service benefits is not coming under the provisions of Finance Department resolution dated 15.05.1997 (Annexure-1). Therefore, the grievance of the petitioners cannot be considered at the Government level. Xerox copy of Letter No.4692 dated 04.03.2016 is filed herewith as Annexure-B/3. In view of the above, the claim of the petitioners for regularisation of service is devoid of merit. 7. That in reply to the averments made in Para- 6 of the writ petition, it is humbly submitted that the detail list of casual labour engaged up to 12.04.1993 were intimated to Joint Secretary to Govt., Agriculture Department vide Letter No.8707 Dt: 02.04.2012 (Annexure-5) for approval of Govt., for filling of 347 Nos. of Class-IV posts vacant in OUAT from among the DLR/NMR/CL workers. On the proposal of OUAT, certain clarification were sought from the Registrar, OUAT vide Letter No. 16065 dated 30.07.2012.” 9. Mr. T. Pattnaik, learned counsel on behalf of Mr. A. Pal, learned counsel appearing for Opp. Party Nos. 1 & 2 on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that even though a stand has been taken by the Opp. Party No. 3 that the Govt. has no role with regard to absorption of the NMR/DLR by the OUAT being an autonomous institution, but vide letter dtd.22.06.2020 under Annexure-G/1, Page 5 of 7 // 6 // some clarification has been issued by the Govt. with regard to the action to be taken by the OUAT. The stand taken by the Govt. in the letter under Annexure-G/1 is reproduced hereunder:- “In inviting a reference to the subject cited above, I am directed to say that as per the observation of Finance Department that “the scheme for Grant of ‘Temporary status’ prescribed in Finance Department Resolution No. 31715/F, dated 04.09.2012 is only applicable for the Casual/Daily wage labourer who are engaged in different Government establishments prior to 12.04.1993. Hence F.D.O.M. No. 31715 dated 04.09.2012 will not be applicable to the daily and casual labourers working in OUAT, which should be strictly adhered to for conferment of “Temporary Status” and absorption in regular establishment as casual labourers of OUAT.” 10. It is accordingly contended that because of some communications issued by the Govt., the Authorities of OUAT are not in a position to consider the case of the Petitioners and unable to absorb the Petitioners. 11. Having heard learned counsel for the Parties and after going through the materials available on record as well as the submissions made by the learned counsels appearing for the Parties, it is not disputed that all the Petitioners are engaged as NMR/DLR prior to 12.04.1993. It is also the admission made by the OUAT that all the Petitioners are continuing as NMR/DLR prior to 12.04.1993 in the communications issued under Annexure-4 & 5 and it is also not disputed that there are 347 nos. of Class-IV posts lying vacant under OUAT to be filled up from amongst the DLRs/NMRs engaged prior to 12.04.1993. Page 6 of 7 // 7 // 12. In view of such admission made by the Authorities of OUAT in Annexure-4 & 5 and the stand taken by the Govt. that the Govt. has no role to play with regard to the action to be taken by the University being an autonomous institution, this Court while disposing the writ petition, directs the Authorities of Opp. Party Nos. 1 & 2 to take a decision on the claim of the Petitioners for their regularization basing on the decisions of the Hon’ble Apex Court in the case of Secretary, State of Karnataka vs. Uma Devi (3), (2006) 4 SCC-1, State of Karnatak vs. M.L. Keshari, (2010) 9 SCC 247, Nihal Singh & Others vs. State of Punjab & Others, 2013 (14) SCC 65 and Amarkant Rai vs. State of Bihar & Others, 2015 (8) SCC 265. 13. It is also directed that Opp. Party Nos. 1 & 2 while considering the claim shall follow their own stand as taken in Annexure-4 and the entire exercise shall be completed within a period of 2 (two) months from the date of receipt of this order. 14. The writ petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Sneha Page 7 of 7