The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C ) No.31930 of 2023 Krushna Chandra Panigrahi …. Petitioner Mr. U.C. Mohanty, Adv. -versus- A. Principal, Govt. B. Polytechnic, Berhampur … Opp. Parties State Counsel CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 22.01.2024 7. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Considering the nature of dispute involved and on the request made by the learned counsel appearing for the Petitioner, he is permitted to implead Director, Technical Education and Training, Orissa, Cuttack as Opp. Party No.2 and Commissioner cum Secretary, SD & TE, Govt. of Orissa, Bhubaneswar as Opp. Party No.3 in Court.
Legal Reasoning
3. Heard learned counsel appearing for the parties. 4. The Petitioner has filed the present Writ Petition inter alia with the following prayer. < In the above facts and circumstances the Petitioners humbly pray that may graciously be pleased to allow this writ application and direct the Opp. Party to issue appointment letter lifting new condition in Annexure-3 with all consequential benefits as well as regularization of service as he had already work from 1995 onwards within a stipulated period. And pass any other order(s) deem fit and proper to meet the ends of justice. 5. It is contended that the Petitioner was appointed as Office Attendant in the office of Opp. Party No.1 against a vacant // 2 // sanctioned post on contractual basis vide order dt.15.02.1996. While so continuing, without any break, Petitioner was illegally terminated from his services in terms of office order dt.13.03.2013. Petitioner challenging the same approached the Tribunal in O.A. No.4304(C ) of 2014. The Tribunal vide order dt.20.03.2017 under Annexure-1, while disposing the matter, directed the Opp. Parties therein to re-engage the Petitioner in his services within a period of two months and consider his case for regularization, taking into account the continuance of the Petitioner with effect from 21.11.1995. 5.1. It is contended that while complying the order, petitioner though was allowed with reengagement vide office order dt.29.06.2018 under Annexure-3, but a condition since was imposed that he will continue on daily wage basis with break in service in holidays, petitioner seeking modification of that condition, and on protest submitted his joining before Opp. Party No.1 on 04.07.2018 under Annexure-4. It is contended that the objection made to the condition imposed in office order dt.29.06.2018 when was not done away with nor Petitioner was allowed to continue in his post in which he was initially appointed vide order dt.15.02.1996, the present Writ Petition was filed with the prayer as indicated hereinabove.
Legal Reasoning
5.2. It is contended that since the Tribunal vide its order under Annexure-1 directed Opp. Parties to re-engage the Petitioner in his services, Petitioner should have been re-engaged in the post of Office Attendant which was a sanctioned vacant post with regular scale of pay. It is contended that on the face of order issued in his favour on 15.02.1996, while complying the order, so passed by the Tribunal under Annexure-1, Petitioner should not have been re-engaged on daily wage basis and the objection raised by the Petitioner vide Annexure-4 is a justified one. It is accordingly contended that in view of the order passed by the // 3 // Tribunal, Opp. Parties be directed to re-engage the Petitioner in the post in which he was appointed on 15.02.1996, as reflected in order dt.20.03.2017 under Annexure-1. 6. Learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the Opp. Parties. It is contended that Petitioner was engaged on contract basis vide Order dt.25.11.1995 under Annexure-H to the counter. Petitioner thereafter was allowed to continue on contract basis vide order issued on 22.09.1998 under Annexure-I and on 09.05.2005 under Annexure-J. But vide order dt.06.11.2006 under Annexure-K, Petitioner was allowed to continue on daily wage basis i.e. @ Rs.52.50p. per day. Such daily wages was also enhanced as reflected in the note sheet annexed vide Annexure-L. 6.1. It is contended that Petitioner and similarly situated daily wage employees when were so continuing, basing on the instruction issued by the Govt., Opp. Party No.3, vide letter dt.13.03.2013 under Annexure-M, Opp. Party No.1 intimated that all such daily wage employees including the Petitioner will not be engaged beyond 31.03.2013 and they may give option for their engagement through outsourcing. None of the DLR employees including the present Petitioner when did not give their option, they were requested vide letter dt.26.06.2013 under Annexure-N to give their option for engagement through outsourcing. 6.2. As the Petitioner never gave his option, he was disengaged and the work is now managed by engaging people through outsourcing. It is accordingly contended that petitioner is not eligible to get the benefit, as prayed for. 6.3. It is also contended that pursuant to the order passed by the Tribunal on 20.03.2017 under Annexure-1, the order was // 4 // complied by re-engaging the Petitioner vide order dt.29.06.2018 under Annexure-3. But Petitioner since did not join in terms of the said order and submitted an application on 04.07.2018 seeking modification of the condition of re-engagement and in the meantime that post has been filled up through out-sourcing, Petitioner cannot be re-engaged at present. 7. Considering the stand taken in the counter affidavit, this Court passed an order dt.11.10.2023 and further order on 01.11.2023 to the following effect.
Decision
ORDER 11.10.2023 : This matter <1. Arrangement(virtual/Physical mode). 2. Heard learned counsel for the parties. taken up is through Hybrid 3. Let an extra copy of the Writ Petition be served on learned State Counsel in course of the day. He is directed to obtain instruction as to whether the Petitioner at this point of time can be allowed to join in terms of the order issued under Annexure-3. Such instruction be provided to this Court on the next date. 4. As requested, list this matter on 19.10.2023.= <ORDER 01.11.2023 : This matter 1. Arrangement(virtual/Physical mode). taken is up through Hybrid 2. Heard learned counsel appearing for the parties. Instruction provided by Mr. S.K. Samal, learned A.G.A be 3. kept in record. 4. Since it is contended that the work against which the Petitioner is eligible to get further engagement has been filled up through outsourcing, this Court directs learned A.G.A to obtain instruction as to whether Petitioner can be adjusted in some other place or any other vacancy which is available at present. Such instruction be provided before this Court on the next date. 5. As requested, list this matter on 22nd of November, 2023.= 7.1. Pursuant to the order passed by this Court , learned Addl. Govt. Advocate produced the instruction so issued by Opp. Party // 5 // No.1 vide letter dt.19.12.2023. Placing reliance on the instruction, learned Addl. Govt. Advocate contended that since the post in which the Petitioner was continuing has been filled up through outsourcing and there is no need for engaging the Petitioner at present, Petitioner cannot be re-engaged. 8. To the stand taken in the counter and in the instruction so provided by the learned Addl. Govt. Advocate, learned counsel for the Petitioner contended that Petitioner was engaged as against a vacant sanctioned post and the same is also admitted by the Tribunal while passing the order under Annexure-1. Not only that, seeking compliance of the Order under Annexure-1, Petitioner though filed CP NO.114(C )/2018, but taking into account the submission of the learned State Counsel that petitioner has been re-engaged vide order dt.23.06.2018, the Contempt Petition was dropped by this Court vide order dt.07.10.2022 under Annexure-5. But on the face of the conditional joining of the Petitioner under Annexure-11 in terms of order issued on 23.06.2018 under Annexure-3, Petitioner was not allowed to join . However, the order dt.23.06.2018 is not in compliance to the direction issued by the Tribunal under Annexure-I, as petitioner was not re-engaged as against the post of Office Assistant/Treasury Sarkar. The order passed by the Tribunal was never under challenge by the State also. It is accordingly contended that Petitioner is entitled to be appointed in terms of the order passed by the Tribunal under Annexure-1 and order dt.23.06.2018 so passed under Annexure-3 is not in compliance to the order of the Tribunal. 9. Having heard learned counsel for the parties and after going through the materials available on record, more particularly in the order passed by the Tribunal under Anexure- 1, it is found that Petitioner was appointed as against the post of Office Attendant which was a vacant sanctioned post at the // 6 // relevant point of time. Petitioner while so continuing, when was disengaged in terms of notice issued on 13.03.2013 under Annexure-M, the same was challenged before the Tribunal. The Tribunal in its order under Annexure-1 while disposing the matter directed the Opp. Parties therein to re-engage the Petitioner in the post of Office Attendant/Treasury Sarkar within a period of two (2) months and to consider his case for regularization. 9.1. As found, on the face of order passed by the Tribunal under Annexure-1, Petitioner was engaged on daily wage basis vide order dt.29.06.2018 under Annexure-3. Since Petitioner was appointed against the vacant sanctioned post of Office Attendant and the Tribunal accordingly directed for his re- engagement, while complying the order, Petitioner should not have been re-engaged on daily wage basis vide order under Annexure-3. Therefore, it is the view of this court that such a condition should not have been imposed in the order of re- engagement issued on 29.06.2018 under Annexure-3. Instead of being moved under Annexure-4, no further action was taken to modify the condition so imposed in order dt.29.06.2018 under Annexure-3. Since the order of the Tribunal is very specific and with a direction to re-engage the petitioner in the post of Office Attendant /Treasury Sarkar, which was a regular vacant sanctioned post, as per the consider view of this Court, Petitioner should not have been re-engaged on daily wage basis vide order dt.29.06.2018 under Annexure-3. Order passed by the Tribunal under Annexure-1 was never under challenge by the Opp. Parties, and accordingly it was due to be implemented in letter and spirit. 9.2. Therefore, this Court is inclined to interfere with office order dt.29.06.2018 under Annexure-3. While interfering with the same, this Court directs Opp. Party Nos.1 & 2 to pass // 7 // appropriate order reengaging the petitioner in the post of Office Attendant/Treasury Sarkar from which he was disengaged, in terms of the order passed by the Tribunal under Annexure-1 within a period of two weeks from the date of receipt of this order. 9.3. Petitioner is permitted to provide a copy of this order before Opp. Party No.2 for compliance. On such re-engagement of the Petitioner in the post of Office Attendant/Treasury Sarkar, consequential action be taken to regularize the services of Petitioner within a further period of two months. The Writ Petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 25-Jan-2024 16:24:17