Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.21471 of 2022 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Santosh Kumar Nayak Aged about 48 years Son of Late Judhisthira Nayak now working as Sweeper-cum-Attendant under Regional Institute of Planning, Applied Economics and Statistics, Odisha, Bhubaneswar. … -VERSUS- Petitioner. 1. State of Odisha Represented through the Development Commissioner-cum- Additional Chief Secretary and Secretary to Government Planning & Convergence Department Government of Odisha Lok Seva Bhawan, Bhubaneswar At/P.O.: Bhubaneswar District: Khordha. 2. Director Regional Institute of Planning, Applied Economics & Statistics Odisha, Bhubaneswar At/P.O.: Bhubaneswar District: Khordha. … Counsel appeared for the parties: Opposite parties. W.P.(C) No.21471 of 2022 Page 1 of 38 For the Petitioner : Mr. Manoranjan Mishra, Advocate For the Opposite parties : Mr. Sailaza Nandan Das, Additional Standing Counsel P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 24.06.2024 :: Date of Judgment : 03.07.2024 J UDGMENT MURAHARI SRI RAMAN, J.— THE CHALLENGE: Beseeching intervention of this Court in exercise of power under Article 226/227 of the Constitution of India in the Order dated 10.03.2022 passed by the Development Commissioner-cum-Additional Chief Secretary, Government of Odisha, Planning and Convergence Department, refusing to absorb the petitioner in the post of peon lying vacant in the category of Group-D, the instant writ application has been filed. THE FACTS PLEADED IN THE WRIT PETITION: 2. The facts, as pleaded in the writ petition, are narrated in a nutshell herein below. W.P.(C) No.21471 of 2022 Page 2 of 38 2.1. The petitioner, Sweeper-cum-Attendant, having “Temporary Status” has been continuing on daily wages since 1992 under the control of the opposite party No.2- Director of Regional Institute of Planning, Applied Economics & Statistics (“RIPAES”, for brevity). 2.2. The Government of Odisha in Finance Department issued a Resolution on 15.05.1997 contemplating regularisation of Nominal Muster Roll/Daily Labour Report/Work-Charged and Job-Contract employees working in different Offices of the Government who have been engaged prior to 12.04.1993 and completed 10 years of service. 2.3. Although the petitioner has been engaged prior to 12.04.1993 and completed 10 years of service, his service has not been regularised. Several approaches made to the authority concerned with representations yielded no result. 2.4. It is submitted that non-consideration of the case of the petitioner for absorption in regular vacant post in the category of Class-IV/Group-D, notwithstanding the fact of “Temporary Status” being conferred with effect from 30.04.2015, in pursuance of Order dated 12.09.2016 of the Odisha Administration Tribunal, Bhubaneswar, passed in O.A. No 1958 of 2016 would not only be W.P.(C) No.21471 of 2022 Page 3 of 38 discriminatory but also indicative of exploitation coupled with unfair labour practices. 2.5. It is further submitted that non-regularisation of the service of the petitioner does tantamount to ignoring principles for regularisation of service expounded in Secretary, State of Karnataka and Others Vrs. Umadevi and Others, (2006) 4 SCC 1 and State of Karnataka Vrs. M.L. Kesari, 2010 (II) OLR (SC) 982 = (2010) 9 SCC 247 = AIR 2010 SC 2587. 2.6. Highlighting grievance, the petitioner had approached this Court in W.P.(C) No.40164 of 2021, which came to be disposed of on 24.12.2021 with the following observation and direction:
Legal Reasoning
“5. As agreed to by learned counsel for the parties, this Court, without expressing any opinion on the merits of the case, disposes of the writ petition directing opposite party No.1 to consider the representation filed by the petitioner vide Annexure-5, taking into consideration Annexures-7 and 8, and pass appropriate order in accordance with law within a period of three months from the date of production of certified copy this order.” 2.7. As the petitioner has completed 10 years of service and posts in Group-D has been lying vacant as recommended by the Director, RIPAES, it is requested by the petitioner that the case of the petitioner could have been considered as one time measure by the opposite W.P.(C) No.21471 of 2022 Page 4 of 38 party No.1 instead of rejecting the representation vide Order dated 10.03.2022 (Annexure-9). COUNTER AFFIDAVIT FILED BY THE OPPOSITE PARTIES: 3. The petitioner had filed O.A. No.1958 of 2016 before the Odisha Administrative Tribunal, Bhubaneswar under Section 19 of the Administrative Tribunals Act, 1985, seeking a direction to the opposite party No.2 to confer him “Temporary Status” as per Finance Department Resolution No.31715 dated 04.09.2012. The said Tribunal by Order dated 12.09.2016 directed the opposite parties to consider the case of the petitioner, treating the contents of the Original Application and its annexures as his representation keeping the Finance Department Resolution No.31715 dated 04.09.2012 in view. 3.1. Pursuant to the aforesaid Order, on scrutiny it was found that the petitioner was “working as a part-time Sweeper-cum-Attendant in the Office of RIPAES for sweeping the office rooms for very little time in the working days only on daily wage basis; and importantly he was disengaged from February, 2015 and was not
Legal Reasoning
continuing as daily wage sweeper any fuither and Sri Nayak was not found eligible for the benefit of conferring Temporary Status as per Para-S of Finance Department Resolution No.31715/F., dated 04.09.2012. The W.P.(C) No.21471 of 2022 Page 5 of 38 representation so furnished by the petitioner was rejected vide P&C Department Order No. 13343/P, dated 11.11.2016. 3.2. Thereafter, the petitioner submitted another grievance petition dated 06.02.2017 and prayed for conferment of “temporary Status” in his favour in view of the Finance Department Resolution No.31715/F, dated 04.09.2012. On this occasion, the Department decided for conferment of temporary status to the petitioner as per Order of the Tribunal dated 12.09.2016 and Finance Department observation dated 23.09.2015 and the Director, RIPAE&S, Bhubaneswar was directed vide P&C Department Letter No.2234, dated 22.03.2017 to grant the “Temporary Status” on a humanitarian ground with effect from 30.04.2015 in favour of Sri Santosh Kumar Nayak on the condition that the service of the petitioner would be guided as per terms and conditions envisaged in Finance Department Resolution. Accordingly, the Director, RIPAES issued Office Order in Favour of the petitioner vide Order Memo No.243, dated 01.03.2017, and Temporary Status was cunferred upon him on 30.04.2015 as per Finance Department Resolution No.31715/F, dated 04.09.2012. 3.3. Pursuant to Order dated 24.12.2021 of this Court passed in W.P.(C) No.40164 of 2021 filed by the petitioner directing the opposite party No.l to consider W.P.(C) No.21471 of 2022 Page 6 of 38 the representation, the same was considered duly and was rejected since the petitioner was working as Sweeper-cum-Attendant holding “Temporary Status” in RIPAES. There being no such sanctioned post of Sweeper-cum-Attendant and no separate regular post of Attendant in RIPAES, Bhubaneswar, the representation of the petitioner has been found to be devoid of merit vis- (cid:224)-vis Finance Department Resolution dated 04.09.2012. HEARING OF THE WRIT APPEAL: 4. As conceded by the counsel appearing for the both sides that pleadings are completed in the matter, the matter was taken up for hearing on 24.06.2024 on consent of Sri Manoranjan Mishra, learned Advocate for the petitioner and Sri Sailaza Nandan Das, learned Additional Standing Counsel. 4.1. Heard both the counsel and hearing being concluded on 24.06.2024, the matter was kept reserved for preparation of Judgment and delivery thereof. ARGUMENTS ADVANCED BY THE COUNSEL FOR THE PARTIES: 5. Sri Manoranjan Mishra, learned Advocate submitted that since the petitioner, being engaged prior to 12.04.1993 and conferred with Temporary Status in terms of Resolution dated 04.09.2012, there was no scope left for the opposite party No.1-Development W.P.(C) No.21471 of 2022 Page 7 of 38 Commissioner-cum-Additional Chief Secretary than to proceed in accordance with the recommendation of the Director, RIPAES, dated 21.06.2021 (Annexure-8) read with information furnished by said Director on 24.12.2020 (Annexure-7) pursuant to Letter dated 24.12.2020 of the Planning & Convergence Department, Government of Odisha (Annexure-6). 5.1. In continuation of such submission, he further argued to submit that since six posts in Group-D are lying vacant under the opposite party No.2, the opposite party No.1 ought to have considered the length of service rendered by the petitioner and allowed him to be regularized in service. 5.2. Placing reliance on Secretary, State of Karnataka and Others Vrs. Umadevi and Others, (2006) 4 SCC 1 and State of Karnataka Vrs. M.L. Kesari, 2010 (II) OLR (SC)
Decision
Scheme for Conferment of ’Temporary Status’: In to provide appropriate emoluments and order „Temporary Status' would be terminal benefit, labourers conferred on engaged in Government establishments prior to 12.04.1993. Such conferment of „Temporary Status‟ the casual/daily wage W.P.(C) No.21471 of 2022 Page 29 of 38 would be Without reference to creation/availability of regular Group „D‟ posts. (a) Eligibility: (i) To be eligible for conferment of „Temporary Status‟ such persons must have been engaged prior to 12.04.1993 i.e. before the imposition of ban on such engagement. (ii) They must have rendered continuous service since their initial engagement. Engagement of at least 240 days in a year shall be construed as a complete year of engagement for this purpose. (iii) Date of i.e. prior initial engagement to 12.04.1993 and continuity of service shall have to be certified by the concerned Head of Office and countersigned by the concerned Heads of Department. (b) Service Conditions: (i) On conferment of „Temporary Status‟ one would be eligible for consolidated remuneration equal to entry point basic pay + grade pay in Pay Band-1-S (basic pay Rs.4440/- + grade pay Rs.1300/-) only per month. They will not be eligible to any other allowances like DA, HRA etc. i.e. Rs.5740/- (ii) Their consolidated enhanced by 5% annually satisfactory performance. remuneration will be to subject (iii) Unless dispensed services with/terminated in accordance with the para- their are W.P.(C) No.21471 of 2022 Page 30 of 38 (vii), the casual/daily wage 5(b)(vi) and labourers with „Temporary Status‟ will continue as such till attaining the age of 60 years. On attaining the age of 60 years, they would cease to be employed and on such cessation, a casual/daily wage labourer with „Temporary Status‟ shall get Rs.1.50 lakh as one time „cessation of engagement‟ benefit, in case the employee concerned could not be absorbed against any regular post in accordance with the scheme of absorption as enumerated in para-6. (iv) They will be eligible to avail 15 days „Casual Leave‟ per year. (v) Female employees would be entitled-to regular leave-admissible to Maternity employees. (vi) Despite conferment of „Temporary Status‟, the services of a casual/daily wage labourer can be dispensed with by giving a notice of one month in writing. The person concerned can also quit the service by giving a written notice of one month. (vii) Their services can be terminated in case of in criminal case/misconduct/ involvement delinquency/incapacitation etc. (viii) The period of service rendered by a person as casual/daily wage labourer and the period of service rendered with „Temporary Status‟ will not be counted towards retirement and other in case of subsequent service benefits W.P.(C) No.21471 of 2022 Page 31 of 38 absorption against a regular vacant post, as per para-6 of the Scheme. 6. Scheme for absorption of casual/daily wage labourers to 12.04.1993) and conferred with „Temporary Status‟, against regular Group „D‟ vacancies: (engaged prior (i) (ii) of list Status‟ „Temporary category wise gradation A separate casual/daily wage list/seniority labourers (engaged prior to 12.04.1993) and conferred with in shall be accordance with paragraph-5 prepared by the appointing authority after length of taking engagement establishment. The gradation list/seniority list shall be finalised only after observing the procedural formalities like publication of the provisional gradation list/seniority list, invitation of objections and consideration the objections filed, if any. into consideration the the in If the existing vacancies in Group ’D’ posts of the respective offices where the casual/daily wage labourers (engaged prior to 12.04.1993) and conferred with ’Temporary Status’ have been working are required to be filled up in the interest of public service then, the same shall be filled up as per the extant recruitment rules following provisions of ORV Act and instructions issued by Government from time to time, from among the eligible casual/daily wage labourers conferred with „Temporary Status‟ strictly on the basis of the gradation list/seniority list. W.P.(C) No.21471 of 2022 Page 32 of 38 till the „D‟ posts (iii) There shall be no open recruitment against the vacant Group list of casual/daily wage labourers conferred with „Temporary Status‟ is exhausted or unless eligible persons from the list of casual/daily wage labourers conferred with „Temporary In this regard Status‟ are not available. relaxation of the relevant provisions by the competent authority would be necessary, in case of Group „D‟ posts for which regular recruitment rules has been framed. However open recruitment may be made to fill up the vacant reserved posts, if any, as per the provisions of ORV Act. for first appointment (iv) The candidates must be within the age limit prescribed the corresponding regular post after deduction of the number of years of engagement as casual/daily wage labourer. The appointing authority may allow age relaxation equivalent to the period for which they have worked continuously as casual/daily wage labourer. to (v) They must have the minimum educational qualification prescribed for the post against which they are required to be absorbed. (vi) They must be medically fit for the post being considered for absorption. The medical fitness certificate of the candidate shall be ensured in accordance with Rule 49, 50 and 51 of Odisha Service Code and executive instructions issued by Government in this regard. W.P.(C) No.21471 of 2022 Page 33 of 38 (vii) For determination of the Date of Birth of the candidates, the criterion as laid down in Rule 65 and 66 of the Odisha General Financial Rules, Volume-I and other instructions issued by Government in this regard shall be followed. (viii) The absorption shall be subject to verification of character and antecedents of the candidate. (ix) On absorption in the regular establishment, they shall be eligible to draw the minimum of the Pay Band with grade pay attached to the corresponding post and other admissible under rules from time to time. (x) The date of absorption shall be reckoned as the first appointment to the service for the purpose of retirement and other service benefits. (xi) Such absorption can be made only against existing Group „D‟ vacant posts. Under no circumstance posts will be created for such absorption. (xii) Prior concurrence of Finance Department would be necessary for filling up of base level vacancies in the Group „D‟ Cadres in terms of Finance Department OM No. 10954/F dated. 14.03.2001. While the order of the appointing authority shall absorption, record in which concurrence of Finance Department has been obtained for such absorption. the UOR No and date issuing 7. This Resolution shall come into force w.e.f. its date of issue. This has been concurred in by G.A. dated Department vide UOR No.468/GAD W.P.(C) No.21471 of 2022 Page 34 of 38 11.07.2012 and Law Department vide UOR NO.1623/L dated 30.07.2012. ORDER: Ordered that the Resolution be published in the extraordinary issue of Odisha Gazette for general information of public. Ordered also that copies of the Resolution be forwarded to all Departments of Government/ all Heads of Departments/all Collectors/Registrar, Orissa High Court/Registrar, Odisha Administrative Tribunal. By Order Of Governor Sd/- (J.K. Mohapatra) Principal Secretary to Government” 9.2. Much stress has been laid on the aforesaid Resolution dated 04.09.2012 to contend that the Principal of Statistical Training Institute, Bhubaneswar (now RIPAES) has certified vide Letter No.1069/STI,/6/89, dated 15.09.1994 (Annexure-1) having certified that the petitioner has been working as Sweeper in the Institute since 1990, in view of law as expounded in Secretary, State of Karnataka and Others Vrs. Umadevi and Others, (2006) 4 SCC 1 and State of Karnataka Vrs. M.L. Kesari, 2010 (II) OLR (SC) 982 = (2010) 9 SCC 247 = AIR 2010 SC 2587, he should have been considered for regularisation in a peon post in the category of Group-D. Scrutiny of such certification as available at Annexure-1 with reference to Clause 5(a)(iii) of the Resolution dated W.P.(C) No.21471 of 2022 Page 35 of 38 04.09.2012 shows that it was required to be certified not only the Head of Office, but also “countersigned by he concerned Heads of Department”. Lacking such countersignature of competent authority, the said document cannot be taken into consideration for ascertaining “Eligibility” criteria specified in said Resolution. Furthermore, it is very much clear from the said document in Annexure-1 that the petitioner “is working as a part-time Sweeper”. 9.3. This apart, mere completion of 10 years continuance as DLR/NMR/Job contract worker would not entail automatic absorption, unless it is in clear terms demonstrated that the initial recruitment/ appointment/engagement was made after undertaking by a duly conducted process of selection and such engagement was against sanctioned vacant post. As is apparent from reading of Clause 5(b) of the aforesaid Resolution dated 04.09.2012, on conferment of “Temporary Status” certain service conditions are envisaged in respect of such employees. Careful reading of each clause of said Resolution leads to understand that mere conferment of “Temporary Status” would not ipso facto entitles regularisation in service and absorption in a post in the category of Group-D. 9.4. In the present case, it has been as a matter fact returned by the Development Commissioner-cum-Additional Chief W.P.(C) No.21471 of 2022 Page 36 of 38 Secretary in his Order dated 10.03.2022 that the „Temporary Status‟ was conferred on the petitioner in order to comply with the direction of the Odisha Administrative Tribunal by Order dated 13.05.2015 in O.A. No.1958 of 2016 and the petitioner being disengaged from service in February, 2015, he was again re-engaged with effect from 02.03.2017 after being conferred with „Temporaty Status‟ in terms of Resolution dated 04.09.2012 on humanitarian consideration. Be that as it may, since he was engaged as Sweeper in a non-sanctioned post and said job is a part-time one (vide Annexure-1), the opposite party No.1 is justified in rejecting the claim of the petitioner by holding thus: is no separate regular post of Attendant “It is a fact that Sri Santosh Kumar Nayak is working as Sweeper-cum-Attendant holding „Temporary status‟ in RIPAE&S; and five Group-D Peon posts are lying vacant in the RIPAE&S. But, there is no such sanctioned post of Sweeper-cum-Attendant in RIPAE&S, Bhubaneswar; and, there in RIPAE&S; and it cannot be said that, the post of Peon and Attendant are in fact one and same and as such the representation of Sri Nayak devoid of merit for consideration and the benefit cannot be conferred upon Sri Nayak by invoking Clause 6 of Finance Department Resolution dated 04.09.2012.” 9.5. Having regard to factual scenario and under the aforesaid conspectus of legal position, the argument advanced by Sri Manoranjan Mishra, learned Advocate stemming on Resolution dated 04.09.2012 vis-a-vis W.P.(C) No.21471 of 2022 Page 37 of 38 criteria for consideration of entitlement to regularize the service of the part-time employees and other than part- time employees as propounded in various case laws discussed supra, is hereby repelled. 10. In fine, this Court does not find any infirmity nor illegality in the Order dated 10.03.2022 passed by the Development Commissioner-cum-Additional Chief Secretary-opposite party No.1. Accordingly, the writ petition stands dismissed, but in the circumstances, there shall be no order as to costs. (MURAHARI SRI RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Jul-2024 19:00:13 High Court of Orissa, Cuttack The 3rd July, 2024//MRS/Suchitra W.P.(C) No.21471 of 2022 Page 38 of 38