Nrusingha Charan Barik … v. ….. 1. State of Orissa 2. Engineer-in-Chief, Water Resources, Odisha, BBSR 3. Director, Hydrometry
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OAC) No. 394 of 2015 Nrusingha Charan Barik ….. Vs. ….. 1. State of Orissa 2. Engineer-in-Chief, Water Resources, Odisha, BBSR 3. Director, Hydrometry, Office of the Engineer-in-Chief, Deptt., BBSR 4. Deputy Director Data Archiving & Publishing, BBSR Petitioner Mr. S. Roy, Advocate on behalf of Mr. B.K. Nayak, Advocate Opp. Parties Mr. Saswat Das, AGA CORAM: JUSTICE SAVITRI RATHO ORDER 28.06.2024 (Through hybrid mode) Order No. 09. 1. This writ application has been filed with the following prayer: “xxx xxx xxx (i) Let the Respondents be directed to bring over the applicant to the work charged establishment from the date similarly situated NMRs were so brought over as per order under Annexure-3 Series within a stipulated time; (ii) Let the Respondents be further directed to extend all service and financial benefits after passing of such order within a stipulated time; (iii) Let the Respondents be directed to bring over the Page 1 of 6 applicant to the regular establishment as like a job contract employee and/or to the Wages Establishment within a stipulated time; (iv) Let, any other relief/reliefs be passed to which the applicant entitled to.”
Legal Reasoning
2. Mr. Roy, learned counsel appearing on behalf of Mr. B.K. Nayak, learned counsel for the petitioner submits that the petitioner does not want to press the prayer no.1 and 3 and prays that the petitioner may be extended all service and financial benefits with effect from 01.03.2009 on which date he was brought over to the work charged establishment on the ground that the persons standing on similar footing have been extended those benefits by the Tribunal in a common order passed in O.A. No. 3261 (C) of 2014 and batch. His further submission is that the State-opposite parties had filed W.P.(C) No. 24361 of 2017 and batch challenging the order dated 25.04.2017 passed in O.A. No. 3261 (C) of 2014 and batch and this Court has dismissed those writ petitions by a reasoned order on 18.05.2018. Although the order of this Court was challenged by the State in the Supreme Court, the same has been dismissed on 13.07.2020 in Special Leave Petition (Civil) Diary No (s).11066 of 2020 and batch as the Supreme Court found no reason to interfere Page 2 of 6 the order of the Hon’ble High Court. He has filed a date chart which is taken on record. 3. Mr. Saswat Das, learned Additional Government Advocate relying on paragraphs 3 and 5 of the counter affidavit filed in this application, opposes the prayer stating that the petitioner had been brought over to the work charged establishment with effect from 01.03.2009 but he joined on 23.11.2009 and as he has not worked for the period from 01.03.2009 till 23.11.2009, he is not entitled to get any service or financial benefits for that period. 4. Paragraph 3 and 5 of the counter affidavit filed in the O.A. No. 394 (C) of 2015 which has been subsequently re-numbered as W.P.(C) (OAC) No. 394 of 2015 is extracted below: “3. That in para 6.2 of the OA the applicant alleges that no action was taken to absorb him under regular establishment in spite of Finance Department Resolution dated 15.5.1997. In this context, it is humbly submitted that many NMR employees completing more than 10 years could not be absorbed under regular establishment as per this resolution in absence of vacant posts under regular establishment and they used to retire as NMR employees. Thus a policy decision was taken at Govt. level (Annexure-1 series) to bring the existing NMR workers over to work charged establishment so that instead of getting daily wages as NMR employee, they will get Pay, DA, HRA etc as Page 3 of 6 work charged employee as per Odisha Work Charged Employees (Appointment and Condition of Service) Instruction, 1974. In this process the applicant has also been brought over to work charged establishment vide office order at Annexure-2 and he has also joined as Work charged employee. That the instruction-2 (j) of the Odisha Work Charged Employees (Appointment and Condition of Service) Instruction, 1974 stipulates that “pay” means an amount drawn monthly by an employee for the post held by him in the work charged establishment. xxx xxx xxx 5. The applicant has cited some documents at Annexure-3 series to show that some persons were brought over to work charged establishment vide order dated 24.05.2001, 10.11.2008 and 16.12.2008 and claimed to extend his salary as work charged employee retrospectively (not specified from which particular date). The circumstance under which those NMRs were converted to work charged establishment was something different (some due to Court order and some due to abolition of regular posts as seen from Annexure-3 series). The applicant was not a beneficiary at that time. In the year 2009, Govt. decided, as a matter of policy, to bring the existing NMRs engaged before 12.04.1993 to work charged establishment, as a result of which the applicant was brought over to work charged establishment vide Annexure-2, being a beneficiary. Thus he is not entitled to get salary as work charged employee prior to his date of joining under work charged establishment i.e. retrospectively. The applicant has not made specific as to from Page 4 of 6 which particular date he claims salary as work charged employee & it clearly shows that through this case he is attempting to get salary somehow prior to his date of joining & it is not at all permissible. Rightly salary as work charged employee has been provided from the date of his joining under work charged establishment which he got as a result of policy decision taken by Govt.” 5. Relying on paragraphs 3 and 5 of the counter affidavit filed he submits that instruction-2 (j) of the Odisha Work Charged Employees (Appointment and Condition of Service) Instruction, 1974 stipulates that “pay” means an amount drawn monthly by an employee for the post held by him in the work charged establishment. He further submits that since the petitioner has joined on 23.11.2009, he is not entitled to the pay for the period during which he has not worked and it also cannot be said that he has held the job from 01.03.2009 so, he is not entitled to the financial benefit for the said period. He however does not dispute that W.P.(C) No. 24361 of 2017 and batch of writ petitions where order of the Tribunal granting similar service and financial benefit to the applicants has been upheld, has been dismissed by this Court and Special Leave Petition (Civil) Diary No (s).11066 of 2020 and batch filed against this order has also been dismissed by the Supreme Page 5 of 6 Court, after which the applicants therein have been paid the financial benefits for the period they had not worked. 6.
Decision
In view of the above position and the decision of the Tribunal which has not been interfered by this Court in W.P.(C) No. 24361 of 2017 and batch, the Supreme Court in Special Leave Petition (Civil) Diary No (s).11066 of 2020 and batch and as the petitioner stands on the same footing as the petitioners who have been extended all service and financial benefits for the period for which they had not worked (i.e. from 01.03.2009 till their actual date of joining), I am of the opinion that the petitioner is also entitled to the same benefit. 7. 8. The writ application is partly allowed. It is directed that the petitioner shall be extended all service and financial benefits for the period from 01.03.2009 till 23.11.2009 within a period of four months from the date of receipt of this order, if there is no other legal impediment. The opposite parties are expected to act upon the production of the certified copy of this order. puspa Signature Not Verified Digitally Signed Signed by: PUSPANJALI MOHAPATRA Reason: Authentication Location: Orissa High Court Date: 01-Jul-2024 19:28:08 (Savitri Ratho) Judge Page 6 of 6