The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.35850 of 2021 An application under Articles 226 & 227 of the Constitution of India Saroj Kumar Malik & Ors. . Petitioners State of Orissa and others . Opp. Parties -versus- For Petitioners : Mr.Manoj Kumar Mishra, Senior, Advocate For Opp. Parties : Mr.M.R.Mohanty,AGA Mr.S.S.Mohanty,Advocate for Opp.Party Nos.2 & 3 CORAM: THE HON’BLE MR. JUSTICE A.K.MOHAPATRA _________________________________________________ Date of hearing : 23.04.2025 | Date of Judgment : 16.05.2025 ______________________________________________________ A.K. Mohapatra, J. : 1. The present writ petition is being taken up with two other contempt petitions, bearing CONTC No.1902 of 2022 and CONTC No.1104 of 2023, that arise from the present writ petition. The writ petition has been filed by the Petitioners, who were engaged as Asst. Executive Engineers (Civil) and Junior Engineers (Civil) in the Odisha State Agricultural Market Board, with a prayer for quashing of the enquiry report dated 18.05.2021 under Annexure-13 and the letter/order dated 09.11.2021 under Annesure-14, along with a further prayer to direct the Opposite Parties to allow the Petitioners to continue in their service. FACTUAL MATRIX OF THE CASE 2. The factual backdrop of the present writ application and the context in which it has been filed is as follows; initially, on 05.05.2015, an advertisement (attached as Annexure-1 to the present Writ Application and referred to herein as “the advertisement”) was published by the Odisha State Agricultural Marketing Board (herein referred to as “OSAM Board”) in the Odia newspaper Samaj on 06.05.2015 and pursuant to the aforesaid advertisement, applications were invited from eligible candidates for their engagement to the post of Asst. Executive Engineers(Civil) (herein referred to as ‘AEE’) and Junior Engineers (Civil) (herein referred to as ‘JE’), on contractual basis for a period of one year at first, which was extendable contingent upon their performance and requirements of the OSAM Board. As for the vacancies, although the advertisement provided for 5 (five) vacancies each in the posts of JE and AEE, clause 7 – specifically clause 7(b) of the advertisement – provided that the number of Engineers to be Page 2 of 34 appointed is tentative and may vary depending on the requirement. Pursuant to the advertisement, the Petitioner Nos. 1 to 7 applied for the post of Junior Engineers (Civil) and the Petitioner Nos. 8 to 14 applied for the post of Asst. Executive Engineers (Civil). Consequently, they were issued with call letters (Annexure-2 series to the writ petition) to appear before the Selection Committee. Thereafter, the personal interviews of Petitioner Nos. 1 to 7 were held on 18.04.2016 for and on 19.04.2016 for Petitioner Nos. 8 to 14. Following such interview, a select list (under Annexure-3 series to the writ petition) was issued wherein the names of the present Petitioners find place. 3. Thereafter, upon completion of the appointment procedure, the Petitioners were issued with engagement letters dated 21.06.2021 and were directed to report at the OSAM Board by 01.07.2016. After reporting for work, the Member Secretary-Opposite Party No.2 issued orders dated 13.07.2016, and later on 26.05.2017 distributing works and the Operational areas amongst all the Engineers of the OSAM Board including the present Petitioners. Thereafter, the Petitioners continued at their places of posting and, vide order dated 30.06.2017 (under Annexure-7), the Member Secretary-Opposite Party No.2 issued office order allowing the Petitioners to continue in service. 4. While things stood thus, there were allegations of irregularities in the appointment of the Petitioners. Following such allegations the Page 3 of 34 Commissioner-cum-Secretary, Cooperation Department-Opposite Party No.1 directed the General Manager-Opposite Party No.3 to conduct an enquiry on the said allegations. On 03.10.2018, the Opposite Party No.3 submitted the enquiry report (under Annexure-11 to the present writ application) wherein it has been stated that the appointments of the present petitioners have been made with proper approval of the authorities. Thereafter, the Commissioner-cum-Secretary, Cooperation Department-Opposite Party No.1 constituted a single member committee
Legal Reasoning
comprising of Sri Hari Ballav Mishra, Addl. Secretary to Government, Health & Family Welfare Department, to conduct another enquiry into the matter. A second enquiry report, dated 30.04.2019 (under Annexure- 12 series to the writ petition), was submitted by the single member committee with the finding that the appointments were made with approval of the Board and the chairman of the Board. Consequently, a third enquiry was conducted the Chairman Sri Bharat Chandra Behera OAS (SS), Special Secretary to the Government, Cooperation Department along with two other members; Shri Ganesh Chandra Patra, Addl. Secretary of G.A. &P.G. Department and one Shri Sarat Kumar Mishra, Joint Secretary, SC & ST Development Department. The third enquiry report submitted on 18.05.2021 (under Annexure-13 to the writ petition) found that the appointments of the petitioners were made illegally and, as such, the report suggested disengagement of the Page 4 of 34 Petitioners. Following the report, the Special Secretary to the Government, vide letter dated 09.11.2021 (under Annexure-14 to the present writ petition), stated that the government has approved the suggestion of the Committee dated 18.05.2021 and accordingly, directed the Member Secretary/Opposite Party No.2 to take follow-up actions as per the report dated 18.05.2021 of the enquiry committee. Aggrieved by the aforesaid development, the Petitioners approached this court ventilating their grievances in the shape of writ petitions bearing W.P.(C). No.20552 of 2021 and W.P.(C). No.20555 of 2021. This Court, vide order dated 09.11.2021, disposed of the writ petitions with a direction to the Opposite Party No.2 to consider the representation of the Petitioners (reproduced under Annexure-9 series to the present writ petition) and pass appropriate orders. In pursuance of the direction of the Hon’ble High Court, the Opposite Party No.2 considered the representations of the Petitioner and rejected the same vide order dated 10.12.2021. It is in this aforesaid background, that the Petitioners have filed the present Writ Petition. 5. It is pertinent to mention here that while adjudicating the present matter, on an earlier date, i.e. 16.11.2021, this Court passed an interim order with the direction that the status quo with regard to the posts held by the Petitioners shall be maintained till 14.12.2021. Thereafter, on 14.12.2021, while hearing the matter this Court ordered Page 5 of 34 that the interim order passed on 16.11.2021 shall continue till the next date. 6. Heard Mr.Manoj Mishra, learned Senior Counsel appearing for the Petitioners, Mr.R.N.Mishra, learned Counsel appearing for the Opposite Party No.3 and the learned Additional Government Advocate. CONTENTIONS OF THE PETITIONERS 7. Learned Senior Counsel appearing for the Petitioners, at the outset, contends that the Petitioners have been engaged in the posts of JE and AEE in the OSAM Board after following due procedure as has been prescribed in the statutory regulations of the Board, as well as in compliance with the reservation policy of the government. Additionally, Learned Senior Counsel appearing for the Petitioners submitted that clause 4 of the engagement letters/orders that were issued to the petitioners specifically states that the petitioners shall be governed by the provisions of the “Odisha Government Servants Conduct Rules, 1957”. Therefore, it is evident that the petitioners were appointed against existing regular and sanctioned vacancies in the OSAM Board. 8. Thereafter, the Learned Senior Counsel appearing for the Petitioners has advanced the argument that even though the petitioners have been engaged on contractual basis, their engagement has been made against sanctioned vacant posts. In fact, the authorities have also been Page 6 of 34 entrusting duties to the petitioners regularly which they have been performing satisfactorily till date. Therefore, the Learned Senior Counsel appearing for the Petitioners submitted that the petitioners are fully eligible to have their services regularised. 9. Additionally, with regard to the number of appointments made against the number of posts advertised, the Learned Senior Counsel appearing for the Petitioners contended that even though the advertisement specified ten vacancies (five vacancies each for the post of Assistant Executive Engineer and Junior Engineer), the clause 7(b) of the advertisement provided that the number of Engineers to be appointed is tentative and may vary depending on the requirement. Therefore, it was contended that there has been no illegality or irregularity in the appointment of the present petitioners and they have been appointed in full adherence of the advertisement and the governing rules. 10. Learned Senior Counsel appearing for the Petitioners, further contended that on a perusal of the letters distributing works and operational area amongst the Engineers of the OSAM Board (under Annexure-6, 7 and 8 series to the present writ petition), it is clear that the type of work being performed by the petitioners is, in fact, perennial in nature. Moreover, referring to the report dated 14.12.2021 (under Annexure-19) furnished by the Executive Engineer I/c OSAM Board on the workload of the Engineering Cell, the Learned Senior Counsel Page 7 of 34 appearing for the Petitioners contended that the Executive Engineer I/c OSAM Board has revealed in the said report that the Engineering Cell can implement the entire program of the government. Therefore, he submitted that it is apparent from the aforesaid report that the Petitioners have been diligently performing their duties as has been entrusted to them and that there is work available for the petitioners to perform. It was further contended that there is shortage of Engineering personnel in the Board and the there is substantial work load and basing upon these considerations, the Petitioners have been appointed by following the due procedure laid down in the Regulations. As such, the Learned Senior Counsel appearing for the Petitioners submitted that the aforementioned fact implies that there is a clear requirement of the Petitioners in the Engineering Cell of the OSAM Board, and, the impugned proceeding and order is malafide & unfair, and suffers from illegality and arbitrariness. 11. At this stage the Learned Senior Counsel appearing for the Petitioners has raised the issue with regard to the non-payment of the salaries of the petitioners from June 2018 onwards. Learned Senior Counsel appearing for the Petitioners submitted that the Petitioners have not been paid their due salary from June of 2018 onwards even though the Petitioners have continued to perform the duties as assigned to them, in their respective posts. It was further contended that the Petitioners’ Page 8 of 34 salaries have been withheld without any reason being assigned for the same and without any intimation to the petitioners regarding the same. Learned Senior Counsel appearing for the Petitioners further contended that the petitioners ought to have been intimated and given an opportunity to be heard before withholding their salaries since the petitioners’ right to livelihood as enshrined under Article 21 of the Constitution of India is being jeopardized as a result of the stoppage of their salaries and, in turn, the Petitioners are facing unbearable financial hardship as a result thereof. 12. Learned Senior Counsel appearing for the Petitioners submitted that earlier, aggrieved by the non-payment of their pending salaries, the Petitioners approached this court by filing a writ petition bearing W.P.(C) No.20555 of 2021, wherein a Coordinate Bench of this Court
Decision
disposed on the writ petition by order dated 09.11.2021 with a direction to the Opposite Party No.2 to consider the representations vide Annexure-9 series and pass appropriate orders in accordance with law within a period of four weeks. Consequently, the Opposite Party No.2 has considered and then rejected the representations of the Petitioners. Additionally, referring to the Affidavit filed by the Opposite Party Nos.2 and 3, Learned Senior Counsel appearing for the Petitioners contended that even though the remuneration due to the Petitioners for the period of 2021-22 has been paid by the Opposite Parties, the same is a paltry Page 9 of 34 amount and does not reflect the full quantum of salary due to the Petitioners. 13. Learned Senior Counsel appearing for the Petitioners at this juncture has drawn the attention of this court to the interim order dated 16.11.2021, passed in the preset writ petition, wherein it was directed to maintain status quo with regard to the posts held by the Petitioners. Learned Senior Counsel appearing for the Petitioners contended that the said interim order is still continuing by virtue of the order passed by this court on 14.12.2021. Further, it was submitted that the Opposite Party Nos.2 & 3 along with the Regulated Market Committees (RMCs) had issued orders assigning work to the petitioners (under Annexure-6, 7 and 8 series to the present writ petition), which the petitioners have continued to perform to the satisfaction of the authorities, Therefore, it can very well be surmised that the Petitioners were indeed continuing in service at the time the interim status quo order dated 16.11.2021 was passed by this Court. 14. To further substantiate his position, the Learned Senior Counsel appearing for the Petitioners referred to the Counter Affidavit of the Opposite Parties No.2 and 3, specifically paragraph 15 of the said counter, and contended that the impugned Enquiry report dated 18.05.2021 and the Executive letter dated 09.11.2021 issued by the Cooperation Department has not been given effect to by the OSAM Page 10 of 34 Board as of yet. Therefore, since the petitioners were continuing in service on the date of the passing of the interim order dated 16.11.2021 and since the OSAM Board has not given effect to the impugned order, as is evident from the counter, Learned Senior Counsel appearing for the Petitioners contended that it can be positively inferred that the petitioners are continuing in their service and are entitled to get the benefits arising out of such continuance in service. 15. Learned Senior Counsel appearing for the Petitioners further contended that following the third enquiry report dated 18.05.2021 and the letter dated 09.11.2021, wherein the Special Secretary to the Government has stated that the Government has approved the suggestion of the third enquiry committee in the aforesaid report and directed the Opposite Party No.2 to take follow-up action, no order of disengagement of the Petitioners had been passed before the abovementioned interim order of this court came into being. It was only on 20.01.2022 that the Opposite Party No.2, via a letter dated 20.01.2022 (under Annexure-20 series to the present writ petition) directed all the Collectors to engage Civil Engineers from other agencies stating that the Engineering Cell of the OSAM Board is being downsized under the 5T mandate. Learned Senior Counsel appearing for the Petitioners further submitted that this action of the Opposite Parties is illegal since it is overreaching the interim status quo order dated 16.11.2021 passed by this court. In fact, it Page 11 of 34 was also contended that pursuant to the aforesaid letter dated 20.01.2022, the RMC authorities are not allowing the petitioners to perform their duties anymore, which, as per the Learned Senior Counsel appearing for the Petitioners, is a clear violation of the interim order dated 16.11.2021 passed by this Court. 16. Additionally, Learned Senior Counsel appearing for the Petitioners submitted that the Opposite Party No.2, vide letter dated 08.02.2022 (under Annexure-21 to the writ petition), has informed the Principal Secretary that the letter dated 09.11.2021 (under Annexure-14) has been complied with. Referring to the aforesaid letter, it was contended that the aforesaid action of the Opposite Party No.2, is a clear disobeyance and violation of the interim order dated 16.11.2021 passed by this court. 17. Furthermore, so far as the enquiry reports dated 03.10.2018 (under Annexure-11 to the present writ petition), dated 30.04.2019 (under Annexure-12), and dated 18.05.2021 (under Annexure-13 to the present writ petition) are concerned, Learned Senior Counsel appearing for the Petitioners submitted that in the 1st enquiry report dated 03.10.2018, the Opposite Party No.3 has revealed that the appointments of the present petitioners have been made upon due approval of the authorities. Similarly, the 2nd enquiry report dated 30.04.2019 also reveals that the petitioners have been appointed after approval of the Page 12 of 34 Hon’ble Minister, Chairman of the OSAM Board. However, that despite the two earlier reports affirming the validity and legality of the recruitment and subsequent appointment of the petitioners, the authorities directed for a third enquiry to be conducted. The Learned Senior Counsel appearing for the Petitioners at this point contended that the 3rd enquiry has been conducted without any detailed enquiry, any detailed discussions, or any proper notice to the petitioners. Moreover, it is apparent on the face of the record that the 3rd report does not entail any detailed discussions with regard to the matter of appointment of the Petitioners. In fact, the 3rd enquiry report also does not state anything with regard to the earlier two enquiries being inconclusive. To lend further credibility to his argument that the impugned enquiry report is not sustainable in law, the Learned Senior Counsel for the Petitioners relied on the judgment of the Hon’ble Supreme Court in Mohinder Singh Gill v. Chief Election Commr., reported in (1978) 1 SCC 405, specifically paragraph 8 therein, where the Hon’ble Supreme Court, placing reliance on Commr. of Police v. Gordhandas Bhanji reported in 1951 SCC 1088, has observed that the validity of the grounds of an order by a statutory functionary must be adjudged on the basis of the reasons mentioned therein and it cannot be supplemented by new grounds in an affidavit or otherwise. Moreover, it was also submitted that the fact that a third enquiry was conducted after two enquiries had already been made Page 13 of 34 on the same subject/allegation clearly indicates the malafide intentions of the Opposite Parties in not allowing the petitioners to continue in their service. As such, Learned Senior Counsel appearing for the Petitioners argued that the findings of the impugned 3rd enquiry report under Annexure-13, and the follow-up order/letter under Annexure-14, which have the effect of disengaging the petitioners (and as such confer locus standi on the petitioners to challenge the same), are perverse in nature, violate the principles of natural justice, and are also opposed to the very principles enshrined under Article 14 and 21 of the Constitution of India. 18. To lend further credence to his contentions, the Learned Senior Counsel appearing for the Petitioners has next placed reliance on the OSAM Board meetings dated 11.11.2019 and 18.11.2019 (copies thereof have been reproduced under Annexure-16 series to the present writ petition). Referring to the aforesaid documents, the Learned Senior Counsel appearing for the Petitioners submitted that the OSAM Board held a meeting on 11.11.2019 wherein it was opined that a legal opinion is necessary for disbanding the Engineering Cell of the Board, as recommended under the 5T directives of the State Government. Following the resolution passed in the aforesaid meeting, the Opposite Party No.2 sent letter No.189 dated 27.01.2020 (under Annexure-17 series to the present writ petition) to the Commissioner-cum-Secretary, Cooperation Department seeking the opinion of the Law Department on Page 14 of 34 the aforesaid topic. Pursuant to the aforesaid letter, the Cooperation Department, vide letter dated 30.09.2021 (under Annexure-18 to the present writ petition) has intimated the Opposite Party No.2 that it has been clarified by the Law Department that disbanding the Engineering Cell will contravene the provisions of the O.A.P.M Act, 1956, the Rules, 1958 and the Regulations, 1991. 19. Finally, to further substantiate the legality of the appointment of the petitioners and the legitimacy of their claims in the present writ petition, Learned Senior Counsel appearing for the Petitioners submits before this court that the OSAM Board is a statutory entity which has been constituted under the ‘Odisha Agricultural Produce Market Act, 1956 as amended in the year 1984’. This implies that the functioning of the OSAM Board is governed by the provisions of the ‘Odisha State Agricultural Marketing Board Regulations, 1991’ (herein referred to as the ‘Regulations, 1991’). Further, referring to Regulation-4F of the Regulations, 1991, the Learned Senior Counsel for the Petitioners contended that the OSAM Board consists of an “Engineering Cell” and all the works of the R.M.Cs shall be executed under the supervision of the Engineering Cell. Moreover, the functions of the Engineers have also been specifically mentioned in the aforesaid regulations and it is the OSAM Board which is the competent authority to take all decisions in respect of the service conditions of the employees enshrined under Page 15 of 34 Regulations 5 to 7 of the Regulations, 1991. Furthermore, regarding the age criteria for appointment of the petitioners, the Learned Senior Counsel appearing for the Petitioners submitted that the OSAM Board has the authority to fix the age criteria under Regulation 7-B and the present petitioners all qualify the age requirement in the present case. 20. Consequently, the Learned Senior Counsel appearing for the Petitioners contended that as per the provisions of the Regulation, 1991, the State Government has no role in the functioning of the OSAM Board. As such, it was submitted that the impugned enquiry report dated 18.05.2021 under Annexure-13 and the subsequent letter/order dated 09.11.2021 under Annexure-14, are sans jurisdiction, and accordingly, are liable to be quashed. Therefore, the Learned Senior Counsel appearing for the Petitioners submitted that the impugned enquiry report and the subsequent order be quashed and the opposite parties be directed to allow the petitioners to continue in service. CONTENTIONS OF THE OPPOSITE PARTIES 21. Learned Counsel appearing for the Opposite Parties, at the outset, has opposed the stance of the Petitioners and contended that the present writ petition is not maintainable. To validate his contention further, the Learned Counsel for the Opposite Parties submitted that prior to the filing of the present writ petition, the Petitioners had filed an Page 16 of 34 earlier petition bearing W.P.(C) No.20555/2021, wherein the conduct of the Opposite Parties in not absorbing the present Petitioners (AEEs and JEs) to regular posts was challenged. A coordinate Bench of this Court disposed of the aforesaid writ petition vide order dated 09.11.2021 with a direction to the Opposite Parties to consider the Petitioners’ representations in a time bound manner. Following the aforesaid order by this court, the Opposite Party No.2 gave an opportunity of hearing to the Petitioners and vide a detailed order dated 10.12.2021 (under Annexure-D/3 to the Additional Affidavit of the Opposite Party No.2 & 3), rejected their representation. At this point, the Learned Counsels appearing for the Opposite Parties submitted that the aforesaid order of rejection is a direct result of the order passed by this court in W.P.(C) No.20555 of 2021 and is currently the subject-matter of challenge in another writ petition filed at the instance of the present petitioners. He further contended that the aforesaid fact has not been brought to the notice of this Court in the present writ petition and there has been a deliberate suppression of material facts by the Petitioners. Learned Counsel for the Opposite Parties further submitted that for the aforesaid reason no relief sought for by the present Petitioners can be granted without the correctness of the rejection order dated 10.12.2021 being first adjudicated. Additionally, he also submitted that the aforesaid rejection order dated 10.12.2021 has not been challenged by the Page 17 of 34 Petitioners in the present writ petition. Therefore, the Learned Counsel for the Opposite Parties contended that it cannot be said that the petitioners are aggrieved by the aforesaid rejection order dated 10.12.2021. 22. Moreover, the Learned Counsel for the Opposite Parties has also submitted that the impugned enquiry report dated 18.05.2021 and the subsequent executive order dated 09.11.2021 are Executive Orders and instructions that are in the nature of inter-departmental communication between the State Government and the OSAM Board. Therefore, the Petitioners do not have any locus to challenge the impugned report and the subsequent executive order. In fact, the Learned Counsel for the Opposite Parties contended that the aforesaid enquiry report and executive order have not yet been given effect to. Hence, no cause of action arises for the petitioners to file the present writ petition and as such, the prayer made in the present writ petition is not maintainable 23. Furthermore, with regard to the duration of service of the petitioners, the Learned Counsel for the Opposite Parties contended that initially the Petitioners were appointed on contractual basis for a period of one year and the appointees were also required to sign an agreement. Thereafter, vide office order No.2363 dated 30.06.2017 (reproduced in paragraph 9 of the Counter Affidavit filed by the Opposite Party Nos.2 & Page 18 of 34 3), which was issued with the due approval of the Member Secretary, OSAM Board, the contractual engagement of the of the Petitioners was extended for another period of one year, i.e. up to June of 2018, with the same service conditions as the last agreement. This implies that the period of engagement of the petitioners was never extended beyond June of 2018 and their engagement was terminated automatically on 23.06.2018. Therefore, the Learned Counsel for the Opposite Parties contended that the petitioners can no more be considered to be in service, and as such, the question of their continuity in service beyond June, 2018 does not arise in the first place. 24. As far as the present status of the work in the Engineering Cell of the OSAM Board is concerned, the Learned Counsel for the Opposite Parties has submitted that currently the concerned work of the OSAM Board is being handled by 6(six) persons who have been engaged since 2011, i.e. well before the present petitioners were appointed on contractual basis. He further contended that in addition to the aforesaid persons, an additional 3(three) Engineering personnel, including the Executive Engineer have been brought from other departments of the government, on deputation basis. 25. Lastly, so far as the present requirement of the petitioners in the Engineering Cell of the OSAM Board is concerned, Learned Counsel for the Opposite Parties submitted that a decision has been taken at the Page 19 of 34 topmost level of Government to downsize the Engineering Cell and eventually close down such activities. Therefore, the Learned Counsel categorically stated that no other persons shall be recruited or engaged in such positions against which the present Petitioners were performing their contractual duties from June, 2016 to June, 2018. It was further contended that the Board has no such plans to keep any Engineering Department/Cell active beyond the existing skeletal one since it is the objective of the Government of Odisha to downsize and eventually disband the unit. To support his contentions, the Learned Counsel for the Opposite Parties referred to the true copies of the relevant directives issued under the 5T initiative of the Government of Odisha under Annexure-C/3 to the Additional Affidavit filed on behalf of the Opposite Party Nos.2 & 3. Therefore, Learned Counsels appearing for the Opposite Parties contended that at present there is no further requirement to engage the present petitioners. 26. So far as the issue with regard to non-payment of salaries to the present petitioners is concerned, the Learned Counsel for the Opposite Parties, referring to the Additional Affidavit filed on behalf of the Opposite Parties No.2 & 3 on 02.08.2023, submitted that the Petitioners had continued to work beyond the renewal of their Contracts since 30.6.2019 with concerned Regulated Market Committees (RMCs). Therefore, with regard to payment of salaries to the petitioners, a Page 20 of 34 detailed tabular statement has been filed (as Annexure-B(colly)/3 to the additional affidavit filed by the Opposite Party Nos.2 & 3) which The statement, Learned Counsels appearing for the Opposite Parties contended, enumerates the period for which the petitioners have worked and have been paid their salaries and the period for which their remuneration is yet to be paid, along with the certificates issued by concerned RMCs. Learned Counsel appearing for the Opposite Parties further submitted that the Opposite Parties undertake to pay the remuneration that is pending, for the period during which the petitioners have worked and not received their salaries, as per the aforesaid tabular statement, within a period of next four months. 27. With regard to the nature of appointment of the petitioners, the Learned Counsel appearing for the Opposite Parties submitted that although the engagement of the petitioners has been made pursuant to the advertisement dated 05.05.2015, they have been appointed beyond the total number of advertised vacancies. It was contended that the advertisement mentions only five posts each for AEE (civil) and JE (civil), however, 14 (fourteen) petitioners in total have been appointed. Moreover, no corrigendum for increase of the concerned posts has ever been issued by the appointing authorities. It was further submitted that the said advertisement clearly sets out that the recruitment is to be made against contractual posts, for a specific period of time and for a specific Page 21 of 34 purpose. Furthermore, the Learned Counsel for the Opposite Parties, referring to the engagement orders issued to the appointed petitioners (a part of which has been reflected in paragraph 7 of the counter affidavit by the Opposite Party Nos.2 & 3), submitted that the engagement is temporary in nature. Additionally, referring to the 3rd enquiry report dated 18.05.2021, it was also submitted that while appointing the petitioners neither the provisions of the ORV Act have been followed, nor has any post under SEBC and UR (women) category been advertised, even though appointment against the said posts have been made. Therefore, Learned Counsel for the Opposite Parties contended the appointment of the present petitioners was in no way made against regular sanctioned posts. Accordingly, it does not lie within the mouth of the petitioners to claim absorption into regular posts. 28. To further substantiate his position, the Learned Counsel for the Opposite Parties has placed reliance on the judgements of the Hon’ble Supreme Court in Secretary, State of Karnataka v. Umadevi reported in (2006) 4 SCC 1, specifically paragraphs 10 and 14, and State of Karnataka v. M.L. Kesari reported in (2010) 9 SCC 247, specifically paragraph 11. Referring to the aforesaid decision of the Apex Court, he contended that unlike the factual scenario in the aforesaid judgement the present Petitioners in this case have not continued in service for ten years or more without the intervention of this court. In fact, the petitioners Page 22 of 34 have been in service pursuant to their contractual employment till 30" June, 2019 which would amount to a period of almost four years. Thus, in accordance with settled law, they would not be entitled to permanent absorption. Further, referring to Union of India v. Ilmo Devi reported in 2021 SCC OnLine SC 899, specifically paragraphs 28 and 29, the Learned Counsel for the Opposite Parties contended that the Hon’ble Supreme Court has laid down that part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held. Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. In addition to the aforesaid, the Learned Counsel for the Opposite Parties has also relied on the judgement of the Hon’ble Supreme Court in Union of India v. Vartak Labour Union reported in (2011) 4 SCC 200, specifically paragraphs 17, 21 and 22, and Zila Parishad Thane v. Santosh Tukaram Tiware reported in (2023) 1 SCC 456¸ specifically paragraphs 16 and 17. ANALYSIS OF THE COURT 29. Heard the learned counsels appearing for the Petitioners and the Opposite Parties. Perused the documents submitted before this court and Page 23 of 34 annexed to the writ petition. At the outset, it is well-settled and undisputed that the appointment of the Petitioners is contractual in nature, as has been clearly mentioned in the advertisement dated 05.05.2015. After being appointed, the Petitioners were assigned work, which they have performed to the satisfaction of the Employer. However, later on there were allegations with regard to the irregularity in appointment of the Petitioners and following such allegations an enquiry was conducted. The aforesaid enquiry was the first out of the three enquiries that were eventually conducted. The first two enquiry reports (dated 03.10.2018 & 30.04.2019) were in favour of the Petitioners, inasmuch as, the first two enquiry reports concluded that the appointment of the Petitioners was made in adherence to the relevant rules and the ORV Act. However, the third enquiry report (dated 18.05.2021), which is at the heart of the issue, concluded that there has been irregularity in the appointment of the Petitioners and suggested disengagement of the Petitioners. 30. To put it simply, so far as the appointment of the Petitioners is concerned, it is undisputed that the Petitioners were appointed on a contractual basis. However, the main contention between the parties pertains to the discrepancy between the conclusion arrived at by the two earlier enquiry reports and the impugned third enquiry report. On one hand the first two enquiry reports conclusively state that the appointment Page 24 of 34 of the Petitioners was made after following the proper procedure laid down in law. Whereas, on the other hand, the third enquiry report, has gone contrary to the first two enquiry reports and has arrived at a conclusion that the appointment of the Petitioners was not according to the applicable rules and, as a result, it was recommended in the third enquiry report that the Petitioners be dis-engaged from their service. Aggrieved, the Petitioners approached this court and this Court passed an interim order on 16.11.2021, to maintain the status quo with regard to the posts held by the Petitioners. On the strength of the aforesaid interim order that the petitioners have staked their claim regarding continuance in service till date, albeit without being paid the due remuneration for the said period. Naturally, the aforesaid claim has been contested by the Opposite Parties. It is in this background that the Petitioners have prayed for two distinct reliefs in the present writ petition; Firstly, a prayer to quash the impugned enquiry report dated 18.05.2021 and the subsequent letter/order dated 09.11.2021 under Annexures-13 & 14 respectively. Secondly, a prayer for a direction to the Opposite Parties to let the Petitioners continue in their service. Maintainability 31. Nevertheless, any analysis with regard to the aforesaid grounds shall be rendered futile unless the maintainability of the writ petition is Page 25 of 34 adjudicated at the threshold. The Opposite Parties, at the outset, have challenged the maintainability of the present Writ Petition on two grounds; Firstly, the impugned letter/order dated 09.11.2021, which the petitioners have challenged in the present writ petition, is in the nature of an inter-departmental communication between two branches of the State Government, i.e. the Cooperation Department and the OSAM Board. Therefore, the Petitioners have no locus to challenge the same. Secondly, pursuant to the order dated 09.11.2021 in W.P.(C) No.20555/2021, the Petitioners had filed their representation before the Opposite Parties. The Opposite Party No.2, vide order dated 10.12.2021, rejected the representation of the Petitioners. This order of rejection, as per the Opposite Parties, is in challenge in another writ petition filed by the Petitioners and has also not been assailed in the present writ petition. In such background, it is the Opposite Parties’ stance that the relief sought by the Petitioners in the present Writ Petition cannot be granted without first adjudicating the correctness of the rejection order dated 10.12.2021. 32. So far as the first ground of challenge to the maintainability of the writ petition is concerned, this Court is required to examine the Impugned letter/order dated 09.11.2021 in order to adjudicate the issue of maintainability. On a careful scrutiny of the impugned letter under Annexure-14, it appears that the impugned enquiry report was communicated to the concerned government department and the Page 26 of 34 Cooperation department has issued a letter to the Member Secretary, OSAM Board, Bhubaneswar, stating that the government has been pleased to accept the recommendation of the Joint Enquiry Committee and requesting the Opposite Party No.2-the Member Secretary, OSAM Board, Bhubaneswar to take “necessary follow-up action” in the matter within a reasonable period of time. The “necessary follow-up action” in this instance is with regard to the disengagement of the Petitioners as has been suggested by the impugned third enquiry report dated 18.05.2021. Therefore, it is clear that the Petitioners are squarely affected by both the impugned third enquiry report and the subsequent letter/order dated 09.11.2021. As such, the Petitioners are well within their rights to assail the aforesaid enquiry report and subsequent letter/order before this court in the shape of a writ petition. 33. Now, so far as the second ground is concerned, it can be seen that the earlier writ petition bearing W.P.(C) No.20555/2021 was filed with a prayer seeking direction to the Opposite Parties to absorb the Petitioners regularly in their posts against the existing vacancies in the OSAM Board and release the arrear and current salary owed in favour of the Petitioners. Furthermore, the order dated 09.11.2021 passed in the aforesaid writ petition reveals that a coordinate bench of this Court disposed of the aforesaid writ petition without expressing any opinions on the merits of the matter. Following the aforesaid order, the Petitioners Page 27 of 34 submitted their representations, under Annexure-9 series, before the concerned Opposite Party. A bare perusal of the representations under Annexure-9 series reveals that the grievance of the Petitioners in the said representations is twofold, i.e. extension/renewal of their contractual engagement and release of arrear salaries for the work done by the Petitioners. Upon receipt of the representations on the Petitioners, the Opposite Party No.2, vide order dated 10.12.2021, has rejected their representations by giving them opportunity of hearing. Now, it is submitted by the Opposite parties that the said order of rejection dated 10.12.2021 has been challenged by the Petitioners by filing a separate writ petition and the said rejection order has not been challenged in the present writ petition. On perusal of the representations of the Petitioners under Annexure-9 series, which have been rejected by the order of the Opposite Party No.2 dated 10.12.2021, it is clear that the prayer made/relief claimed therein is different from the prayer made in the present writ petition, inasmuch as, in the present writ petition the Petitioners have arrayed the third enquiry report dated 18.05.2021 and the subsequent letter dated 09.11.2021. Therefore, it is clear that the adjudication of the rejection order dated 10.12.2021 does not stand as a bar to the adjudication of the present writ petition. As such, the present writ petition is maintainable before this Court. Page 28 of 34 34. In final adjudication of the matter, taking a wholesome view of the factual background of the present case, the position which emerges is that initially the petitioners were appointed to contractual posts. Later on, there were allegations regarding their appointment and following such allegations three enquiries, one after the other, have been conducted into the allegations. The first two enquiry reports dated 30.10.2018 and 30.04.2019 both have opined that the appointments in question were made with proper approval of the concerned authorities. However, the third and final enquiry report submitted on 18.05.2021 has suggested the disengagement of the Petitioners and a subsequent letter/order dated 09.11.2021 has also been passed to carry out the suggestion of the aforesaid enquiry report. On perusal of the third enquiry report dated 18.05.2021 under Annexure-13, it appears that the enquiry committee has arrived at the said conclusion based on three grounds. The first ground is with regard to only one of the appointees who was appointed despite being two months below the minimum age limit prescribed in the advertisement. Second ground is with regard to the appointment of more number of personnel against the advertised posts. And, the third ground is with regard to the appointment made under SEBC and UR-W category even though no posts under such category were advertised. Therefore, it can be ascertained that not all the Petitioners are affected by the grounds stated in the said enquiry report. Page 29 of 34 35. Furthermore, the first enquiry report dated 30.10.2018, under Annexure-11, clearly states that the recruitment of the Petitioners was done after following due procedure of the ORV Act and after conducting proper interviews of the candidates. In fact, the report also states that the issue of appointing more number of candidates than have been advertised was also discussed by the OSAM Board and such appointment has been made only after obtaining proper approval of the concerned authorities. Similarly, the second enquiry report dated 30.09.2019, under Annexure-12 series, which was on the same allegations of irregularities in the appointment of the Petitioners, reveals that the appointment of the Petitioners was made only after discussions made regarding the same and after proper approval of the concerned authorities. However, the third enquiry report, which was again conducted on the same allegations of irregularities in appointment of the Petitioners, has contradicted the previous two enquiry reports and arrived at the conclusion that the petitioners are to be disengaged. The third enquiry report, before arriving at the conclusion of disengagement of the Petitioners, has not addressed the inconsistencies with the first two enquiry reports. In fact, it is clearly borne out from the record that before finalization of the third enquiry report no opportunity of being heard has been provided to the Petitioners before finalizing the impugned report dated 18.05.2021 by passing the impugned letter/order dated 09.11.2021. Page 30 of 34 Since the aforesaid report clearly affects the rights of the parties, it is indispensable that the Opposite Parties should have followed the principle of audi alteram partem. Moreover, even an administrative action which involves civil consequences must be made in consonance with the established rules of natural justice (reference maybe had to paragraph 12 of State of Orissa v. Binapani Dei, reported in 1967 SCC OnLine SC 15). The failure on the part of the Opposite Parties to provide an opportunity of hearing to the Petitioners renders the impugned letter/order dated 09.11.2021 unsustainable in the eyes of law. Moreover it is pertinent to mention here that after the aforesaid impugned letter dated 09.11.2021 was issued, on 16.11.2021 an interim order was passed by this court to maintain the status quo with regard to the posts held by the Petitioners. As has been admitted by the Opposite Parties themselves, the letter dated 09.11.2021 has not been given effect to, especially since the interim order dated 16.11.2021 was operative. 36. Additionally, even though the Opposite Parties claim that the service of the Petitioners have not been renewed past 23.06.2018, a bare perusal of the letters/certificates annexed as Annexure-8 series to the present Writ Petition reveals that the Petitioners were continuing in their service well past the year 2018. That being the case, it can very well be concluded that the Petitioners were indeed continuing in service at the time of the interim status quo order dated 16.11.2021. This implies that Page 31 of 34 the petitioners, in light of the aforesaid interim status quo order, were continuing in their contractual service much after the date of 23.06.2018. Payment of Arrear Salaries 37. Further, with regard to the payment of arrear salaries of the Petitioners is concerned, it is pertinent to mention here that the same has not been explicitly prayed for as a relief by the Petitioners in the present writ petition. However, the payment of arrear salaries to the Petitioners, for the work done by them, is at issue in the two Contempt applications that have been tagged with the present writ petition. In the impugned enquiry report dated 18.05.2021, in second paragraph of the ‘Conclusion’, the enquiry committee has indicated that the Petitioners, upon showing certificates in proof of the actual work done by them, shall be paid the remuneration that is owed to them. Additionally, the Opposite Parties, vide their affidavit, have provided the details of payment that has been made to the Petitioners, which stands at Rs.6,28,397 (Rupees Six Lakhs Twenty Eight Thousand Three Hundred and Ninety Seven). However, the Petitioners, in their contempt application, although have admitted the deposit of the aforesaid amount, they have disputed the quantum of actual arrear salaries owed to them, as has been calculated by the Opposite Parties. Page 32 of 34 38. Therefore, keeping in view the factual background of the present case, taking into consideration the arguments advanced by the learned counsel appearing for the respective parties, on perusal of the documents annexed to the present petition and considering the aforesaid analysis, this court has no hesitation in quashing the impugned enquiry report dated 18.05.2021 and the subsequent letter/order dated 09.11.2021. Accordingly, the same are hereby quashed. In such view of the matter, this Court directs that Opposite Parties conduct an enquiry afresh into the matter taking into view the prior two enquiry reports dated 03.10.2018 & 30.04.2019 (under Annexure-11 and Annexure-12 series to the present writ petition) and after providing an opportunity of hearing the affected parties/petitioners, within a period of four months form the date of communication of certified copy of this order. 39. Considering the disputed stance between the Petitioners and the Opposite Parties with regard to the quantum of remuneration owed to the Petitioners for the actual work done by them, and taking into view the fact that the Opposite Parties have sought for some time to sort out the remaining payments to the Petitioners, this court directs the Petitioners to approach the concerned Opposite Parties with all relevant documents in support of their claimed arrear remuneration within a period of four weeks and, in such eventuality, the Opposite Parties shall take into consideration the documents filed by the Petitioners, calculate and Page 33 of 34 distribute the remaining remuneration owed to the Petitioners within a period of further four months from the date of communication of certified copy of this order. In view of the aforesaid direction, the Contempt proceedings against the Opposite Parties, in the shape of CONTC No.1902 of 2022 and CONTC No.1104 of 2023, are dropped with liberty to the Petitioners to pursue any further remedy in the shape of a contempt proceeding, if they so desire, in the event the directions of this court are not complied with by the Opposite Parties or the cause of action for initiating such proceeding subsists. Accordingly, the Writ Petition is disposed of. Orissa High Court, Cuttack The 16th May, 2025/ RKS (A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: AR-CUM-Senior Secretary Reason: Authentication Location: High Court of Orissa Date: 17-May-2025 12:56:03 Page 34 of 34