The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.35192 of 2022 Sri Bibhuti Bhusan Sethi State of Odisha and another -versus- …. Petitioner Mr. S.K. Das, Advocate …. Opp. Parties Mr. N.K. Praharaj, AGA CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 02.01.2023 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).
Legal Reasoning
2. Heard learned counsel appearing for the Petitioner as well as learned Additional Government Advocate appearing for the State-Opposite Parties. Perused the writ petition as well as the documents annexed therewith. 3. The present writ petition has been filed by the Petitioner with the following prayers:- “Under the above circumstances it is therefore humbly prayed that the Hon’ble Court be graciously pleased to quash the order dated 08.12.2022 of the Opposite Party No.1 under Annexure-10 and direct to regularize and the Opposite Party No.1 permanently absorb the petitioner as against the post of Driver w.e.f. 24.08.2004 and to grant all financial benefits consequential including revision of pay to the petitioner without any discrimination as a similarly situated persons under Annexure-8 has been extended the benefit by another department of State the Odisha Secretariat within a stipulated period as deem fit service and in // 2 // and proper. And/or issue any other appropriate writ/writs, order/orders, direction/directions as deem fit and proper in the fitness of the case.” 4. It is submitted by Mr. S.K. Das, learned counsel appearing for the Petitioner that the Petitioner was initially engaged as a Peon in the year 1994 by Opposite Party No.2 as a NMR employee. Thereafter, he was allowed to drive a jeep of the department against a regular vacancy of a driver post. The Petitioner while working as such, he was regularized as against the post of Watchman under the Opposite Party No.2 in the scale of pay of Rs.2550-55-2660-60-3200/- vide order dated 25.01.1999. However, he was continuing and discharging the duties of a Driver. Learned counsel for the Petitioner further referring to documents annexed to the writ petition, submitted that it is the undisputed fact that the Petitioner was discharging his duties as a Driver and he was deputed on various duties by the authorities. It is further contended that there are vacancies in the regular posts of Drivers and the Petitioner has been discharging such duty for last 18 years continuously. 5. Referring to a letter dated 10.02.2010 under Annexure-8 issued by the Under Secretary to Government of Odisha, Revenue & Disaster Management Department, learned counsel for the Petitioner submitted that similarly placed with the present Petitioner, namely, Braja Kishore Bidhar, who was appointed as a J.C. Chainman of the office of the Deputy Director Consolidation, Puri Range was also working as a Driver in State Control Room, Revenue & D.M. Department on deployment // 3 // basis. Accordingly, a decision has been taken by the R&D Department, Government of Odisha to absorb Braja Kishore Bidhar as a Junior Driver in the scale of pay of Rs.5200-20200/- + Grade Pay Rs.1900/- with usual D.A. as admissible. It is also contended by Mr. Das that the case of Braja Kishore Bidhar is identical to the case of the present Petitioner and both are working in Group-D post and in course of such employment, they are being used as Driver for last so many years to the satisfaction of the authorities. It is further contended that the conduct of the Opposite Parties amounts to gross discrimination as the service of the Braja Kishore Bidhar was regularized by being absorbing him in the post of Junior Driver with a scale of pay, whereas the Petitioner’s case has been rejected, although he is discharging his duties as a Driver getting salary attached to the post of Peon. 6. Learned Additional Government Advocate appearing for the State-Opposite Parties, on the other hand, drawing attention of the Court to the rejection order dated 08.12.2022 under Annexure-10 issued by the Additional Chief Secretary to Government of Odisha, Department of Water Resources Department rejecting the prayer of the Petitioner for absorption of the service in the post of Driver, stated that the Driver is a base level Group-C post and it is to be filled up by the appointing authority through direct recruitment and promotion of Group-D post to Group-C post is not permissible as the G.A. Department Resolution No.29.01.1997 does not provide for any provision for promotion of Peon to the post of Driver. In such // 4 // view of the matter, it is submitted by the learned Additional Government Advocate appearing for the State-Opposite Parties that the authorities have rightly rejected the prayer of the Petitioner for absorption of his service as Driver under the Water Resources Department. 7. In reply to the submission made by the learned Additional Government Advocate appearing for the State-Opposite Parties, Mr. Das, learned counsel for the Petitioner submitted that the decision taken by the Revenue & Disaster Management Department vide Office Order dated 10.02.2010 under Annexure-8 in the case of Braja Kishore Bidhar has already been given effect to by the authorities while the resolution of the G.A. Department dated 29.09.1997 was in force. He further contended that the case of the Petitioner is only for absorption of his service against a regular vacant post as he has been discharging his duty as a Driver for a last 18 years which has not been disputed by the Opposite Parties. Further, referring to the order under Annexure- 8, it has also been submitted that the case of Braja Kishore Bidhar, who has been absorbed as Junior Driver in the Revenue & Disaster Management Department while the resolution of the G.A. Department was in force. Therefore, it is submitted by Mr. Das that two departments of the Government are not permitted to adopt two different yardsticks while absorbing the employees, who are similarly placed and such conduct grossly violates Article 14 and 16 of the Constitution of India. 8. Having heard the learned counsel for the respective parties // 5 // and upon careful consideration of the order dated 08.12.2022 under Annexure-10 passed by the Opposite Party No.1, this Court is of the considered view that the Petitioner has been admittedly discharging his duties of a Driver for more than 10 years against a regular post of Driver, although he has been discharging his duties as Driver, the authorities are paying him the salary attached to the post of Peon. This Court is also of the considered view that such conduct of the authorities amounts to exploitation of employee by the employer. Therefore, the impugned order dated 08.12.2022 under Annexure-10 is unsustainable in law and, accordingly, the same is hereby set aside. Further, the matter is remanded back to the Opposite Party No.1 to consider the matter afresh keeping in view the decision dated 10.02.2010 under Annexure-8 which was taken in the matter of Braja Kishore Bidhar by the Revenue & Disaster Management Department. Further, it is directed that if there is no other legal impediment, then the service of the Petitioner be regularized as a Driver, i.e., in the post in which he has been working for more than 10 years continuously. Let the Petitioner approached the Opposite Party No.1 within two weeks from today along with certified copy of this order and on production of certified copy of this order, the Opposite Party No.1 shall do well to consider the matter as directed and shall take a decision within eight weeks thereafter. The decision so taken be communicated to the Petitioner within two weeks thereafter. 9. With the aforesaid observations and directions, the writ // 6 //
Decision
petition stands disposed of. 10. Urgent certified copy of this order be granted on proper application. ( A.K. Mohapatra) Judge Debasis