(An application under Articles 226 & 227 of the Constitution of India.) Prasant Kumar v. Industrial Infrastructure Development Corporation and others
Case Details
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 25-Dec-2024 18:47:32 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.21376 of 2022 (An application under Articles 226 & 227 of the Constitution of India.) Prasant Kumar Panigrahy …… Petitioner Versus Industrial Infrastructure Development Corporation and others …... Opposite Parties Advocate(s) appeared in this case :- For Petitioner : Mr.A. Mohanty,Sr.Advocate Mr.S. Mohanty, Advocate For Opposite Parties : Mr.P.K.Mohanty, Sr.Advocate Mr.P.Mohanty, Advocate CORAM : JUSTICE B.P. ROUTRAY JUDGMENT 17th December, 2024 B.P. Routray,J. 1.
Legal Reasoning
Heard Mr.A.Mohanty, learned Senior Counsel along with Mr.S.Mohanty, learned counsel for the Petitioner and Mr.P.K.Mohanty, learned Senior Counsel along with Mr.P.Mohanty, leaned counsel for the Opposite Parties. 2. The Petitioner was initially appointed in the year 2007 (Anexure-2) as Junior Engineer (Civil) on contractual basis under the Opposite Parties. W.P.(C) No.21376 of 2022 Page 1 of 9 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 25-Dec-2024 18:47:32 Thereafter his case was placed for regularization, but rejected time and again. The Petitioner along with other similarly situated employees of Opposite Parties (IDCO) filed W.P.(C) No.934 of 2016 before this Court with a prayer for their regularization in service by quashing the orders of such rejection of the authority. This Court disposed of said W.P.(C) No.934 of 2016 vide order dated 16th September 2019 with a direction to consider the case of the Petitioner for regularization and to grant all consequential benefits thereof. Accordingly, vide order dated 26th June 2020 (Annexure-11), the service of the Petitioner along with other similarly situated employees has been regularized as Junior Engineer (Civil) by way of absorption. 3. Then, the Petitioner raised his grievance for antedating his date of regularization in service upon completion of six years as contractual service from the date of his initial appointment and he filed W.P.(C) No.9701 of 2022. This Court disposed of the said writ petition on 29th April 2022 with a direction to consider the representation of the Petitioner in accordance with law and to pass a speaking and reasoned order. Pursuant to the said direction of this Court, the Opposite Parties- authorities issued order dated 12th July 2022 rejecting the prayer of the Petitioner. Relevant portions of said order are reproduced below:- W.P.(C) No.21376 of 2022 Page 2 of 9 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 25-Dec-2024 18:47:32 “The Petitioner has claimed for his promotion from Junior Engineer (Civil) to Asst. Manager (Civil) as per the provisions of Rule-9 of the Odisha Diploma Engineers Service (Method of Recruitment & Conditions of Service) Rules, 2012 notified by the Govt. in Water Resource Department notification No.34608-FE-II-AE(C) dtd.20.12.2012 subsequently amended vide Water Resource Department notification No.19084-FE dtd.29.08.2015. Wherein it is envisaged that “Provided that, the period of service rendered as contractual junior engineer shall be counted to determine the period of service for the purpose of promotion”. Gone through the provisions of Odisha Industrial Infrastructure Development Corporation (Method of Recruitment and Conditions of Service) Regulations’2019, IDCO is a public sector undertakings and having its own regulations i.e. “Odisha Industrial Infrastructure Development Corporation (Methods of Recruitment and Conditions of Service) Regulations, 2019”. As per the provisions of the said regulation, eligibility criteria for promotion from Junior Engineer (Civil) to Asst. Manager (Civil) is minimum 5 years service as of Junior Engineer (Civil). Since the services of Sri Prasanta Kumar Panigrahi has been regularized on 13.03.2020, he has not fulfilled the eligibility criteria for getting promotion to the rank of Asst. Manager (Civil).
Decision
In view of the above facts the claim of the petitioner can not be considered. Accordingly the representation of petitioner is disposed off.” 4. This is the subject matter of challenge in present writ petition along with the prayer for regularization upon completion of six years of service on contractual basis. W.P.(C) No.21376 of 2022 Page 3 of 9 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 25-Dec-2024 18:47:32 5. The IDCO has filed its counter sating that such prayer of the Petitioner to antedate his date of regularization prior to coming into force of the Odisha Industrial Infrastructure Development Corporation (Method of Recruitment and Conditions of Service) Regulations 2019 (in short “2019 Regulations”) is not permissible from a date when such regulation was not in force. 6. Mr.P.K.Mohanty, learned Senior Counsel for IDCO submits that the service of the Petitioner was regularized pursuant to the direction of this Court passed in W.P.(C) No.934 of 2016 and in terms of the provisions contained in 2019 Regulations. Therefore, when his service was placed for consideration according to the provisions of 2019 Regulations, he was then regularised with effect from the date of consideration i.e. 26th June 2020. Since the Petitioners did not raise any objection to the earlier order of this Court dated 16th September 2019 passed in W.P.(C) No.934 of 2016, present prayer of the Petitioner amounting to stretch said direction of this Court, is not permissible. 7. On the other hand, Mr.A.Mohanty, learned Senior Counsel appearing for the Petitioner contends that when the Petitioner earlier approached this Court in W.P.(C) No.934 of 2016, since the then learned counsel appearing for Opposite Parties (IDCO) submitted that the W.P.(C) No.21376 of 2022 Page 4 of 9 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 25-Dec-2024 18:47:32 regulations have already framed and the process of regularization has been started, this Court taking note of their submissions has disposed of the writ petition for consideration of regularization in terms of the 2019 Regulations. Therefore, there is no limitation or hindrance on the part of the Opposite Parties to give benefits of regularization prior to coming into force of 2019 Regulations, particularly when six years principle is governing the filed. 8. In view of such rival contentions, it needs to be seen at the first instance the effect of the order of this Court dated 16th September 2019 in the matter of regularizing service of the Petitioner. The relevant portions of said order of this Court reads as follows:- “Mr.C.A.Rao, learned Senior Counsel appearing along with Mr.S.K.Behera, leaned counsel for opposite parties no.1 to 3 admitted the fact that Regulations have already been framed, but however, contended that the process has been started for regularization of the service of the petitioners in consonance with the Regulations approved by the Government and it take some time. Since the petitioners are continuing as contractual Junior Engineers for more than 13 years, their cases have to be considered for regularization in terms of the Regulations, 2019, which have already been approved by the Government. As Mr.C.A.Rao, learned Senior Counsel for opposite parties-Corporation states that process for regularization has already been started and shall be completed soon, in that view of the matter, the relief sought has already been granted to the petitioners. Thereby, the orders dated 21.11.2015 and 16.12.2015 in W.P.(C) No.21376 of 2022 Page 5 of 9 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 25-Dec-2024 18:47:32 Annexures-13 and 14 respectively are hereby quashed and the matter is remitted back to the opposite parties no.1 to 3 Corporation to consider the case of the petitioners for regularization and grant all consequential benefits in terms of the Regulations framed by the authority within a period of six months from the date of communication of this order.” 9. Perusal to the order of regularization under Annexure-11 reveals that it begins with mentioning that, “In pursuance of the decision .. .. .. and in accordance with the order dated 16.9.2019 passed by the Hon’ble High Court of Orissa vide W.P.(C) No.934 of 2016 and approval of Government of Odisha in Industries Department .. .. ..” Therefore, it is clear that direction of this Court dated 16th September 2019 was effected while regularizing the service of the Petitioner in terms of 2019 Regulations. So, now the question falls for determination is whether the regularization of the Petitioner in service in terms of 2019 Regulations would be permissible from such previous date when this Regulations had not seen the light of day. 10. Rule 37 of the 2019 Regulations is important on this aspect, which prescribes the transitory provisions for existing employees. It speaks that, all persons holding different posts under the administrative control of the Corporation at the commencement of these regulations shall be deemed to have been appointed as per provisions of these regulations and their conditions of service shall be governed by the said provisions. W.P.(C) No.21376 of 2022 Page 6 of 9 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 25-Dec-2024 18:47:32 11. It is true that as per the decision of the board meeting of IDCO (Opposite Parties) dated 7th March 2020 (Annexure-J), the case of the Petitioner along with others were recommended for regularization based on the Circular of the Government of Odisha in Works Department in Resolution No.16200-FE-II(P)-60/2008 upon satisfactory completion of 6 years of uninterrupted engagement. The Petitioner was undoubtedly engaged against a sanctioned post for being selected out of the panel prepared by the Government. So it is not the case that the Petitioner was never entitled to regularization prior to coming into force of 2019 Regulations, but it is also found true that in terms of the 2019 Regulations such employees already under administrative control of IDCO should be absorbed as such by operation of the transitory provisions in terms of Rule 37 of the Regulations. It is not that the provisions of 2019 Regulations prohibit regularization of service of any such employee prior to the date of coming into force of the same, and the instances of regularization in IDCO upon completion of six years of service prior to coming into force of 2019 Regulations are not dearth on record. Therefore, the submission of Mr. P.K. Mohanty, learned Senior Counsel for IDCO to debar the Petitioners from the benefits of regularization from such date prior to coming into force of 2019 Regulations is found incorrect and unsubstantiated. Since it was the practice of the Opposite Parties-IDCO to regularize the service of W.P.(C) No.21376 of 2022 Page 7 of 9 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 25-Dec-2024 18:47:32 Junior Engineers appointed out of the panel prepared by the Government upon completion of six years of their service in terms of Works Department Resolution, in the present case also there cannot be any hindrance for regularization of the Petitioner upon completion of his six years contractual service. Rather, it was the mandate of the resolution of the Government practiced by the Opposite Parties (IDCO) since long. 12. Apart from the above, while fixing the date of regularization prospectively with effect from the date of order i.e. 26th June 2020, no valid reason is seen in favour of the Opposite Parties-IDCO to deny regularization of the Petitioner with effect from such a prior date of coming into force of 2019 Regulations. It was the consistent approach of Opposite Parties-IDCO to regularize the service of the Petitioner upon his completion of contractual service for six years, which is clearly evident from different decisions of Board meetings of IDCO. 13. For the reasons stated above, the order of regularization under Annexure-11 is modified to the extent that such period of service rendered by the Petitioner upon completion of six years of his contractual service from the date of initial appointment should be counted towards his regular service. However, the Petitioner would not be entitled for any such financial benefits for antedating his date of regularization as such. W.P.(C) No.21376 of 2022 Page 8 of 9 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 25-Dec-2024 18:47:32 14. Accordingly, the writ petition is disposed with a direction to the Opposite Parties to grant all such service benefits in favour of the Petitioner to count his service in the regular establishment for such other service benefits, except financial benefits,. (B.P.Routray) Judge // C.R. Biswal, A.R.-Cum-Sr.Secy// W.P.(C) No.21376 of 2022 Page 9 of 9