Rashmi Rekha Dash vs State Of Odisha & Another
2021 Latest Caselaw 11996 Ori

                ORISSA HIGH COURT: CUTTACK

                   W.P(C) NO. 16906 of 2020
                              And
                   W.P.(C) No. 18877 of 2021

      In the matter of applications under Articles 226 and
      227 of the Constitution of India.
                            ---------------

AFR In W.P.(C) No. 16906 of 2020

Rashmi Rekha Dash ..... Petitioner

-Versus-

      State of Odisha & another          .....      Opp. Parties

         For Petitioner     :       M/s. B.S. Tripathy-1,
                                    A. Tripathy and A. Sahoo,
                                    Advocates

         For Opp. Parties :         Mr. A.K. Mishra,
                                    Addl. Government Advocate.

      In W.P.(C) No. 18877 of 2021

      Santosh Kumar Muduli &
      another                         .....              Petitioners

                                    -Versus-

      State of Odisha & others         .....            Opp. Parties

         For Petitioners        :   M/s. B.P. Satapathy & S.Roy,
                                    Advocates

         For Opp. Parties       :   Mr. A.K. Mishra,
                                    Addl. Government Advocate.
                                                // 2 //




          P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of Hearing: 08.11.2021 Date of Judgment: 23.11.2021

DR. B.R. SARANGI, J. The petitioner in W.P.(C) No.16906 of

2020 seeks the following relief:-

"i) direct the opp. Party no.2 to issue a formal order regularizing her services as Data Entry Operator in the establishment of Local Fund Audit Organisation under opp. Party no.2 with effect from 17.09.2013 in the scale of pay PB-1- 5200-20200/- + GP Rs.1900/- with usual allowances admissible from time to time as per GA Department Resolution dt.17.09.2013 (Annexure-12 on her completing six years of satisfactory service as Data Entry Operators as 01.03.2013 and in the same manner as has been allowed to similarly situated outsourced contractual Data Entry Operators in various State Government Departments and other various Govt. establishments with all consequential service and monetary benefits vide Annexure-14 series, 18, 21, 22 an d23 with all consequential service and monetary benefits;

ii) pass such other order (s) as would be deemed fit and proper in the interest of justice and fair play"

Similarly, the petitioners in W.P.(C) No. 18877 of 2021

seek the following relief:-

"(i) Why the action of the Opposite Parties in going to fill up the post of Data Entry Operator prior to considering the claim of the petitioners for their absorption/regularization as against the said post in the facts and circumstances of the case will not be declared as illegal; and

(ii) Why the Opposite Parties will not be directed to regularize the services of the petitioners as Data Entry Operators prior to taking any decision basing on the recommendation dated 03.06.2021 of the O.P. No.3 under Annexure-11."

2. In both the writ petitions, the petitioners,

who are working as Data Entry Operators, essentially

seek for direction to issue formal order of regularization // 3 //

in the scale of pay of PB-1-5200-20200/- + GP

Rs.1900/- with usual allowances admissible from time

to time as per G.A. Department Resolution dated

17.09.2013, on completion of six years of satisfactory

service, as has been allowed to similarly situated

outsourced contractual Data Entry Operators in

various State Government Departments and other

various Government establishments, with all

consequential service and monetary benefits. Thereby,

both the writ petitions are similar to each other and

consequentially they were heard together and are

disposed of by this common judgment.

3. For just and proper adjudication of the case,

the factual matrix of W.P.(C) No. 16906 of 2020 is

taken into consideration.

3.1 Due to increase of workload in the undivided

Local Fund Audit Organization during the financial

year 2006-07 covering audit in favour about 5000

institutions, including 314 Panchayat Samities, 101

Urban Local Bodies, 9 Universities, 453 Aided colleges, // 4 //

2199 Aided High Schools, 398 Endowments and other

institutions, including B.Sc., CHSE (208 Schools and

+2 Colleges) and 6234 Gram Panchayats, a proposal

was moved by the Government in Finance Department

for computerization of all the Audit Offices for their

efficiency by abolition of all the existing base level

ministerial posts and vacancies with consequential

creation of 60 Data Entry Operators. Finally, the

proposal was approved by the then Finance Minister on

01.06.2006 with creation of 30 Data Entry Operators at

a consolidated amount of Rs.4000/- per month on

contractual basis. Accordingly, the Finance

Department requested one outsourcing agency, M/s

Mind Mart, vide letter dated 15.02.2007, to provide

suitable 20 numbers of Data Entry Operators to be

engaged in different offices of Local Fund Audit

organization. The minimum educational qualification

for Data Entry Operators, as prescribed by the opposite

party no.1, was Graduate in any discipline with PGDCA

and having a typing speed of 40 words per minute in // 5 //

English and well conversant with Computer and

essential knowledge in MS Office, Internet and Lan

functioning and should not be below 18 years and

above 40 years of age. Pursuant thereto, the service

provider M/s. Mind Mart conducted selection by way of

Walk-in-Interview for preparation of a panel of Data

Entry Operators through a selection process. Upon

completing the selection process, a panel was prepared

and communicated to the Finance Department for

issuance of the engagement order in favour of the 20

numbers of Data Entry Operators in different offices of

Local Fund Audit Organisation under the Finance

Department. The petitioner was selected and the

service provider issued order of deployment in favour of

her as Data Entry Operator under Local Fund Audit

Organisation and allowed her to join in the office of the

District Audit Officer, LFA, Cuttack. Subsequently, the

petitioner was transferred and re-deployed at various

Audit Offices and ultimately posted in the Directorate

of Local Fund Audit, Bhubaneswar. Thereafter, the // 6 //

service book in the name of each of the Data Entry

Operators was opened. The Local Fund Audit

Organization was restructured and one independent

Head of the Department under the Finance

Department, namely directorate of Local Fund Audit

headed by the Director, Local Fund Audit was created

vide Finance Department Resolution dated 11.07.2012,

for which contractual Data Entry Operator posts were

also created, vide Finance Department Resolution

dated 11.07.2012. Initially, for continuance of 30

number of Data Entry Operators created during the

Financial Year 2006-07 and further 4 number of Data

Entry Operators were created, vide letter dated

11.07.2012, and 13 number of base level posts of

Junior Grade Typist were abolished vide letter dated

05.12.2014. The tenure of contract of the Service

Provider, namely, M/s Mind Mart was expired with

effect from January, 2013. Thereafter, opposite party

No.2 had assigned the engagement of Data Entry

Operators including the petitioner to another agency, // 7 //

namely M/s. Bharat Security Services, which was

selected through open bidding process. While providing

work order vide letter dated 28.01.2013 direction was

given to the said agency to supply requisite manpower

to 11 organisations with effect from 01.02.2013 with

the specific conditions as prescribed under Clause-8 of

the work order dated 28.01.2013, which reads as

follows:-

"8. You have to sponsor at least double or triple nos. of candidates as per the requirement of the Director, LFA. After assessing the suitability of the sponsored candidate, suitable persons will be selected for engagement."

3.2 Basing upon this condition, name of the

petitioner was sponsored by the new agency and after

assessing her suitability based on past service

experience and performance, opposite party no.2 vide

letter dated 13.01.2013 allowed her to continue in job

as DEO in the establishment under opposite party

no.2. Even though there was change of agency, but all

the DEOs, including the petitioner, were continuing

uninterruptedly in the Local Fund Audit Organisation.

// 8 //

Though the petitioner was engaged through

outsourcing agency, but she was discharging her duty

under the Local Fund Audit Organisation. Thereby, the

nature of the duties discharged by the petitioner is

governmental and the petitioner has acquired the

status of a government servant by discharging the

government functions only for the opposite parties 1

and 2 in the interest of Local Fund Audit work in the

State. More particularly, the mode of engagement of

Data Entry Operators through outsourcing agency has

been as per the orders of the Government. The

Government took a decision in the minutes of meeting

held on 28.04.2012 to the following effect:-

"i) Data Entry Operators engaged on contractual basis in Tahasils should continue and should not be disengaged till a decision regarding regularization is finalized.

ii) Govt. is contemplating to frame policy on regularization of contractual Data Entry Operators in various Departments;

iii) The Policy so framed shall be applicable to outsourced Data Entry Operators."

3.3 During continuance of the petitioner as

contractual outsourced Data Entry Operator, the

Government of Odisha promulgated a policy for // 9 //

regularization of services of the existing contractual

Group-C and Group-D employees working under the

State Government vide G.A. Department Resolution No.

26108 dated 17.09.2013. As per the said policy, for

regular appointment a gradation list of such

contractual employees shall be prepared by the

appointing authority on the basis of their date of

appointment and regular appointment of those

categories of contractual employees shall be made on

the date of completion of six years of service or from

the date of publication of the resolution, whichever is

later, in the order in which their names appear in the

gradation list prepared under Para-1. The period of six

years shall be counted from the date of contractual

appointment prior to publication of the resolution. As

per para-2 thereof, on the date of satisfactory

completion of six years of contractual service or from

the date of publication of the resolution, whichever is

later, they shall be deemed to have been regularly

appointed and a formal order of regular appointment // 10 //

shall be issued by the appointing authority.

Consequent upon regular appointment under the

contractual post, if any, they shall get re-converted to

regular sanctioned post. In case the person concerned

has crossed the upper age limit, the appointing

authority shall allow relaxation. But subsequently the

Government of Orissa in G.A. Department issued

another resolution on 16.01.2014 expressly clarifying

the resolution of the GA Department dated 17.09.2013

that proposal of regularization of contractual

appointment/ engagements as per the resolution dated

17.09.2013 shall be considered and approved by the

High Power Committee to be constituted under the

Chairmanship of the concerned department.

3.4          Basing        upon         the   resolution        dated

17.09.2013      various         other     departments      of     the

Government      have       already       implemented    the      said

resolution for Data Entry Operators in their respective

posts with effect from 17.09.2013 in PB-1 Rs.5200-

20,200/- with GP Rs.1900 and/or Rs.2400/-. In the // 11 //

meantime, the G.A Department has also formulated

Odisha Group-"C" and Group-"D" Posts (Contractual

Appointment) Rules, 2013. Such Rules have got no

application to the cases covered under the resolution of

the Government dated 17.09.2013. The Data Entry

Operators, including the petitioner, upon completion of

six years of continuous contractual service on

outsourcing basis submitted a detailed representation

before opposite party no.2 for regularization of their

services. The Joint Director of opposite party no.2 in

his letter dated 07.06.2014 forwarded the said

representation of the Data Entry Operators to opposite

party no.1 with a request for consideration of their

cases for regularization as Data Entry Operators, but

to of no response. Consequentially, the Data Entry

Operators working under the opposite party no.2,

including the present petitioner, submitted a detailed

representation on 07.09.2015 to opposite party No.1 in

the grievance cell with a prayer for being paid their

remuneration directly by opposite party no.2 instead of // 12 //

service provider. Opposite party no.1, considering the

grievance of the Data Entry Operators, including the

petitioner, referred the matter to opposite party no.2,

vide letter dated 30.09.2015 of the Under Secretary to

Government, Finance Department, with a request to

examine the grievance of the Data Entry Operators as

per Rules and to submit its views to the Department for

further necessary action. Some of the outsourced

employees, who are similarly situated with the

petitioner, have been regularized as per the orders of

the government, as is evident from the information

obtained under RTI Act vide letter dated 29.01.2016 of

the Under Secretary to Government of Odisha,

Department of Higher Education, in which the said

department has confirmed that two Data Entry

Operators engaged through the service providers were

made as direct contractual in 2008 and were

regularized in 2014. It has been also confirmed in the

said letter that the employees those who are engaged

as outsourcing/contractual as per the provisions and // 13 //

guidelines prescribed by G.A. Department as well as

Finance Department are made regular. Therefore, the

appointment of the petitioner as Data Entry Operator,

which was made through outsourcing, is also as per

the provisions and guidelines prescribed by G.A.

Department as well as Finance Department be

regularized. Similarly, the Data Entry Operators

working in another wing of the Finance Department,

namely, CT&GST Organization, who were initially

engaged through outsourcing in 2005-07 and were

brought as direct contractual in February, 2008, had

approached the Odisha Administrative Tribunal,

Cuttack Bench Cuttack in O.A. No. 2172 (C) of 2015

(Jatin Kumar Das and others v. State) and batch for

their regularization as per the G.A. Department

resolution dated 17.09.2013. The said batch of Original

Applications were allowed by the order of State

Administrative Tribunal by judgment dated

17.05.2017. The State carried the same to this Court

in W.P.(C) No. 6661 of 2018, which was dismissed vide // 14 //

judgment dated 10.05.2018. Being aggrieved, the State

challenged the same in the apex Court in SLP (C) No.

18642 of 2018, which was also dismissed vide order

dated 06.08.2018. Thereafter, all Data Entry Operators

working in CT&GST Organization were regularized. The

service of said Jatin Kumar Das was regularized vide

order dated 15.09.2018. The petitioner, being stood in

the same footing, is entitled to get the similar benefit as

has been granted to the Data Entry Operators of the

CT&GST Organization. The annual agreement with the

service provider M/s Bharat Security Services was

extended with effect from 01.02.2020 to 31.07.2020. As

an austerity measure due to COVID-19 the Finance

Department issued an office memorandum dated

07.07.2020 communicating inter-alia the following

decision of the Government:-

" i) Persons who are engaged on outsourcing basis, are to be paid their entitlement as per the terms and conditions of the engagement till contract period ends. If the contract period ends within the lock down period, then the entitlements to be paid till the end of the contract period."

// 15 //

3.5 As the petitioner has required eligibility

criteria and on being duly selected through a selection

process appointed against sanctioned posts and

continue to work for more than 10 years satisfactorily

with unblemished performance and without

intervention of the orders of the Courts or Tribunals, is

entitled to be regularized based on the judgment of the

apex Court in the cases of Secretary State of

Karnataka v. Umadevi (3), (2006) 4 SCC 1, State of

Kantaka vs. M.L. Keshari, (2010) 9 SCC 247 and

Sheo Narain Nagar Vs. State of UP, AIR 2014 SC

233 and all other subsequent judgments dealing with

such regularization. As the engagement of the

petitioner was not at all an illegal appointment and can

be said to be irregular appointment, thereby she is

entitled to be regularized in service as an one time

dispensation. The petitioner has completed more than

13 years of service on outsourced contractual basis

and as per the G.A. Department Resolution dated

17.09.2013 her service is deemed to have been // 16 //

regularized with effect from 17.09.2013, on completion

of six years of service. Therefore, the petitioner is

entitled to a direction to opposite party no.2 to issue a

formal order regularizing her services as Data Entry

Operator in the establishment of Local Fund Audit

Organization in the scale of pay of PB-1- Rs.5200-

20200/- + GP Rs.1900/- with usual allowance

admissible from time to time, as such benefit has been

extended to the similarly situated outsourced

contractual Data Entry Operators in various

Government departments. Hence this writ petition.

4. Mr. B.S Tripathy-1, learned counsel for the

petitioner in W.P.(C) No.16906 of 2020 admitting the

fact that the petitioner was engaged by outsourcing

agency, emphatically urged that she has been

rendering service to the Local Fund Audit Organization

for more than 13 years continuously and that though

essentially she is discharging the nature of duties

assigned to government service, but she is being paid

by outsourcing agency. Such an action is nothing but a // 17 //

camouflaged approach made by the State authorities to

the service rendered by the petitioner just to deprive

her of the benefits of contractual employment, as per

resolution dated 17.09.2013 passed by the Government

in G.A. Department and subsequent Rules framed in

2013. It is also contended that even though the

petitioner is engaged on outsourcing basis, she is

discharging her duties and responsibility of the State

and, therefore, she is entitled to get regularization in

terms of the Government resolution dated 17.09.2013

and rules framed in 2013, as have been referred to

above. It is further contended that the petitioner's

appointment may be considered to be irregular one,

but cannot be said to be illegal, as she has come

through the process of selection as per Clause-8 of the

work order dated 28.01.2013. Consequentially, she is

entitled to get the benefit of contractual appointment in

terms of G.A. Department resolution dated 17.09.2013

and subsequent Rules framed in 2013. It is further

contended that even though the petitioner is employed // 18 //

through outsourcing agency, there exists master-

servant relationship between the petitioner and the

opposite parties, thereby, she is entitled to get

regularization. More so, if the services of similarly

situated persons have already been regularized, the

petitioner cannot be discriminated and therefore, her

claim for regularization on contractual basis has to be

considered by the Government in proper perspective.

To substantiate his contention, learned

counsel for the petitioner has relied upon Secretary,

State of Karnataka v. Umadevi(3), (2006) 4 SCC 1;

State of Karnataka v. M.L. Kesari, (2010) 9 SCC

247; Sheo Narain Nagar v. State of UP, AIR 2014 SC

233; Hussainbhai, Calicut v. Alath Factory

Thozhilali, (1978) 4 SCC 257; Nihal Singh v. State

of Punjab, (2013) 14 SCC 65; G. Srinivasa Chary v.

State of Telangana (W.P. No.47675 of 2018 & I.A.

No.1 of 2019 disposed of on 07.08.2020); Sushil

Kumar Nayak v. State of Orissa, 2014 (Suppl.1) OLR // 19 //

917 & Sanatana Sahoo v. State of Odisha, 2017(II)

ILR-CUT-1059.

5. Mr. B.P. Satapathy, learned counsel

appearing for the petitioners in W.P.(C) No.18877 of

2021, while adopting the argument advanced by Mr.

B.S. Tripathy-1, learned counsel for the petitioner in

W.P.(C) No.16906 of 2020 contended that since there

exists master-servant relationship between the

petitioners and opposite parties, the petitioners are

entitled to get the benefit of regularisation on

contractual basis.

To substantiate his contention, he has relied

upon the judgment of the apex Court in

Dharangadhara Chemical Works Ltd. v. State of

Saurashtra, AIR 1957 SC 264; State of Uttar

Pradesh v. Audh Narain Singh, AIR 1965 SC 360;

V.P. Gopala Rao v. Public Prosecutor, AIR 1970 SC

66; and Andhra Pradesh & State of Gujarat v.

Raman Lal Keshav Lal Soni, AIR 1984 SC 161.

// 20 //

6. Per contra, Mr. A.K. Mishra, learned

Additional Government Advocate argued with

vehemence that since the petitioners are arbitrarily

engaged by the outsourcing agency and they are being

paid by outsourcing agency, there is no existence of

master-servant relationship between the petitioners

vis-à-vis the State. It is further contended that though

the petitioners are being engaged by outsourcing

agency and are performing their duties and

responsibility under the State authority, they cannot

claim regularization of their services or absorption on

contractual basis. More so, their appointment having

not been made against any sanctioned posts, they are

not entitled to get any regularization. It is further

contended that sympathy and sentiments cannot be

grounds for passing of order of regularization in

absence of any legal right.

To substantiate his contentions, he has

relied upon Nishan Singh v. State of Punjab, 2013

SCC OnLine P & H 20720; Rajiv Kumar v. State of // 21 //

Punjab, 2018 SCC OnLine P & H 6948; Union of India

v. Ilmo Devi, 2016 SCC OnLine SC 1933; Union of

India v. Ilmo Devi, 2021 OnLine SC 899; and Odisha

Power Transmission Corp. Ltd v. Sushil Kumar

Nayak, Civil Appeal No.8415 of 2017 (arising out of

SLP (C) No.11569 of 2014 disposed of on 05.07.2017)

7. This Court heard Mr. B.S. Mishra-1, learned

counsel for the petitioner in W.P.(C) No.16906 of 2020;

Mr. B.P. Satapathy, learned counsel appearing for the

petitioners in W.P.(C) No.18877 of 2021 and Mr. A.K.

Mishra, learned Additional Government Advocate for

the State opposite parties by hybrid mode. Pleadings

have been exchanged between the parties and with the

consent of learned counsel for the parties, the writ

petitions are being disposed of finally at the stage of

admission.

8. From the factual matrix and the rival

contentions as narrated above, it is unraveled that the

petitioners, having been undisputedly engaged by

outsourcing agency, are discharging their duties and // 22 //

responsibility in different offices under the Govt. of

Odisha as Data Entry Operators. Six posts were

created by the Government, against which the

petitioner in W.P.(C) No. 16906 of 2020 is continuing

with a meager sum of money being engaged through

outsourcing agency. But, essentially, the nature of

work has been discharging by the petitioners for the

Government and of the Government and payments

have been made to them through outsourcing agencies

by the Government. Even if they are discharging their

duty as Data Entry Operators for the Government, of

the Government and by the Government, the benefit of

regularization on contractual basis also accrued to

them in terms of nature of duty discharged by them,

even though they have been engaged in a camouflaged

manner through service providers. More so,

recruitment rules have already been framed by the

Government bringing them into the fold of regular

contractual posts. But, in the name of financial crunch

or by adopting some plea or the other, the Government // 23 //

even though is a model employer, is not making their

appointment as regular contractual by following due

procedure or rules governing the field for recruitment

to the regular posts. Many a times, it is observed that

the Government is engaging the people through

outsourcing agencies and by paying a paltry sum of

money is extracting the work similarly to regular

employees of the Government. Thereby as a model

employer, the Government is exploiting the employees,

those who have been engaged by outsourcing agencies,

by depriving them of getting their legitimate dues in

terms of regular employment or in terms of contractual

employment as per rules applicable to them. The

Government in the name of technological development

depriving the manpower utilization for its betterment.

No doubt, technology has got its own place for growth

of the State, but that does not mean it will not create

any employment causing a massive inconvenience to

the youth of the country. Consequentially, there is

brain drain of multi-laundering the persons to the // 24 //

country and outside the country. Therefore, the

Government should be careful that the eligible persons

are not denied employment in the name of

technological development. It is easy to utilize the

outsourcing agencies for supply of manpower, but that

itself amounts exploiting the young generations upon

whom the future of the state as well as the country

rests. Once youth is exploited, frustration grows up

and ultimately it will have tremendous adverse effect

on the growth of the state, resulting in creating

disastrous conditions, which should be taken care of

by the Government as a model employer. But instead of

doing so, as it appears, steps are being taken from time

to time to cause harassment to the youths by

generating unemployment, which will have grave

repercussions on the State and at that time the State

cannot control the situation.

9. In Rajiv Kumar (supra), the Single Bench

of High Court of Punjab and Haryana, at pragraphs-6

and 7 of the judgment held as follows:-

// 25 //

"6. Admittedly, Petitioners are working as contractual employees under an outsourced manpower agency till the year 2016-17 and it is for the first time for the year 2017-18, that petitioners were offered contractual employment under the respondent-Corporation vide appointment letter/s Annexure P-3. To understand the matter in right perspective, it is necessary to go into the background of the case.

7. It is seen that respondent-Corporation is totally dependent upon the policies and decisions taken by the Department of Local Government, Punjab who is entrusted with the work of regulating Corporations like respondent no.3, as all the funds for working of the Corporations are released by said Department. On 21.05.1999, respondent no.1-Department took a conscious decision to the effect that all private employees of all Corporations would be engaged through a manpower agency/contractor, who would be responsible for engaging the employees and paying them their salaries etc and the Corporations shall be paying the manpower contractors a lump- sum amount. It is further evident that the said practice 4 of 7 CWP No.13348 of 2018(O&M) #5# continued for the year 2016-17 as well, and respondent-Corporation had also invited tenders through open bids and the contract for the year 2017 stood awarded to various contractors i.e. Markanda Khurad Co-op L/C Society Limited, M/s Kamal Electrical and The Capital Co-op L/C Society Ltd. In the meantime, respondent no.1-Local Government, Punjab had promulgated the Punjab Ad hoc, Contractual, Daily Wage, Temporary, Work Charged and Outsourced Employees Welfare Act, 2016 (in short the Act of 2016) vide Notification dated 24.12.2016, under which a criteria was laid down for Group A, B, C and D employees working on contractual/temporary/daily wages etc under the State Government and its entities. The said Notification/Act, 2016 was adopted by the Corporation vide resolution dated 26.12.2016 and accordingly, the petitioners were directly engaged as contractual employees for one year i.e. 2017 by the Corporation. However, said appointment was subject to approval by the respondent no.2-Director Local Government, Punjab of the resolution dated // 26 //

26.12.2016, as the Corporation is bound by approval from the Local Government Department."

10. In Ilmo Devi (supra) the apex Court at

paragraph-13 of the judgment observed as follows:-

"It is further submitted that the directions issued by the High Court to sanction the posts can be said to be a policy decision, and, therefore, the High Court is not justified in issuing the Mandamus and/or direction to create and sanction the posts. It is submitted that the High Court has not properly appreciated the facts that even the O.M. dated 11.12.2006 and subsequent regularization policy dated 30.06.2014 were absolutely in consonance with the decision of this Court in the case of Umadevi (supra). It is submitted that in the case of Umadevi (supra) it has been specifically observed that the High Court, in exercise of jurisdiction under Article 226 of the Constitution of India, should not ordinarily issue direction for absorption, regularization or permanent continuance unless the recruitment was itself done regularly and in terms of constitutional scheme."

11. In Odisha Power Transmission (supra), the

apex Court has considered the proposal given by the

appellant, which was passed basing on the observation

made by the apex Court in Ashok Kumar and

Another vs. State of Bihar and others, 2017 (4) SCC

357 and accordingly disposed of the appeal in terms of

the proposal.

// 27 //

12. The sum and substance of the submissions

made by Mr. A.K. Mishra, learned Additional

Government Advocate for the State is that the

petitioners, having been appointed through

outsourcing agencies, there does not exist any master-

servant relationship, for which, they are not entitled for

contractual appointment and subsequent

regularization, as they have not been selected by

following due process of selection, particularly when

the policy decision is for regularization of service of the

contractual employees, who were appointed after

fulfilling the eligibility criteria as per the proper

procedure. Thereby, the claim as has been made by the

petitioners in these writ petitions is to be denied.

13. As it appears, while passing the judgment by

the Punjab and Haryana High Court in Rajiv Kumar

(supra) which was relied upon by the State Counsel,

the important guidelines issued by the apex Court in

other judgments in the said context have not been

taken into consideration. Thereby the said judgment is // 28 //

per incurium and cannot be relied upon for the purpose

of adjudication of these cases.

14. In Dharangadhara (supra), the

Constitution Bench of the apex Court while considering

the case under Section 2 (s) of the Industrial Disputes

Act, 1947 observed that, test with regard to master and

servant relationship has been laid down and it is held

that the essential condition of a person being a

workman within the terms of the definition in Section 2

(s) is that he should be employed to do the work in the

industry, that there should be, in other words, an

employment of his by the employer and that there

should be the relationship between the employer and

employee or master and servant. Unless a person is

thus employed there can be no question of his being a

workman within the definition of the terms as

contained in the Act. Prima facie test for the

determination of the relationship between master and

servant is the existence of the right in the master to

supervise and control the work done by the servant not // 29 //

only in the matter of directing what work the servant is

to do but also the manner in which he shall do his

work. The nature or extent of control which is requisite

to establish the relationship of the employer and

employee must necessarily vary from business to

business and is by its very nature incapable of precise

definition. The correct method of approach, therefore,

would be to consider whether having regard to the

nature of the work there was due control and

supervision by the employer. A person can be a

workman even though he is paid not per day but by the

job. The fact that Rules regarding hours of work, etc.

applicable to other workmen may not be conveniently

applied to them and the nature as well as the manner

and method of their work would be such as cannot be

regulated by any directions given by the Industrial

Tribunal, is no deterrent against holding the persons to

be workmen within the meaning of the definition, if

they fulfill its requirement. The Industrial Tribunal

would have to very well consider what relief, if any, // 30 //

may possibly be granted to them having regard to all

the circumstances of the case and may not be able to

regulate the work to be done by the workmen and the

remuneration to be paid to them by the employer in the

manner it is used to do in the case of other industries

where the conditions of employment and the work to be

done by the employees is of a different character.

15. In Audh Narain Singh (supra), the apex

Court held that a Government Treasurer is entitled to

appoint Tahvildars in the cash Department in the State

of Uttar Pradesh to assist him in the discharge of his

duties, but the appointment is made with the approval

of the District Collector. Even after the posts of

Tahvildar were abolished the Government of Uttar

Pradesh did not adopt a consistent attitude and from

time to time issued orders which indicate that a

considerable degree of control was maintained by the

District Officers upon the Tahvildars in the matter of

appointment, removal from service, suspension and

transfers and in the matter of payment of // 31 //

remuneration, dearness allowance and making

available certain medical benefits. Tahvildars were

treated on a par with other civil servants of the State. It

is from these circumstances that the relationship

between the Government of Uttar Pradesh and

Tahvildars has to be ascertained. Whether in a given

case the relationship of master and servant exists is a

question of fact, which must be determined on a

consideration of all material and relevant

circumstances having a bearing on that question. In

general selection by the employer, coupled with

payment by him of remuneration or wages, the right to

control the method of work, and a power to suspend or

remove from employment are indicative of the relation

of master and servant. But co-existence of all these

indicia is not predicated in every case to make the

relation one of master and servant. In special classes of

employment, a contract of service may exist, even in

the absence of one or more of these indicia. But

ordinarily the right of an employer to control the // 32 //

method of doing the work, and the power of

superintendence and control may be treated as

strongly indicative of the relation of master and

servant, for that relation imports the power not only to

direct the doing of some work, but also the power to

direct the manner in which the work is to be done. If

the employer has the power, prima facie, the relation is

that of master and servant. The work of the

Government Treasurers has to be conducted according

to the Rules and Regulations framed by the

Government, and directions issued from time to time.

The Government Treasurer holds a post in a public

employment and he is assisted by Tahvildars in the

performance of his duties. The Tahvildar acts not on

behalf of the Treasurer in performing his duties, but on

behalf of the State.

16. Relying upon the judgment of the apex court

in the case of Audh Narain Singh, the apex Court in

the case of V.P. Gopala Rao (supra) while considering

the matter of relationship between the master and // 33 //

servant with reference to the meaning attached to

Section 2(1) of the Factory Act, 1948, held that a

"worker" within meaning of S.2 (1) is a person

employed by the management and there must be a

contract of service and a relationship of master and

servant between them. It is a question of fact in each

case whether the relationship of master and servant

exists between the management and the workman. The

critical test of the relationship of master and servant is

the master's right of superintendence and control of

the method of doing the work.

17. In Hussainbhai (supra), the apex Court

settled the law on true test of determining the master

and servant relationship, which reads as follows:-

"5. The true test may, with brevity, be indicated once again. Where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that // 34 //

the real employer is the Management, not the immediate contractor. Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like, may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43 and 43-A of the Constitution. The court must be astute to avoid mischief and achieve the purpose of the law and not be misled by the maya of legal appearances.

6. If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefits and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make- believe trappings of detachment from the Management cannot snap the real-life bond. The story may vary but the inference defies ingenuity. The liability cannot be shaken off."

18. In Nihal Singh (supra), the apex Court

directed absorption of Special Police Officers appointed

by the State, whose services were placed at the

disposal of various Banks in the State and whose

wages were paid by Banks. It was held that the mere

fact that wages were paid by the Bank did not render

the appellants 'employees' of those Banks since the

appointment was made by the State and disciplinary

control vested with the State. It held that the creation

of a cadre or sanctioning of posts for a cadre is a

matter exclusively within the authority of the State, but

if the State did not choose to create a cadre but chose // 35 //

to make appointments of persons creating contractual

relationship, its action is arbitrary. It also refused to

accept the defence that there were no sanctioned posts

and so there was justification for the State to utilize

services of large number of people like the appellants

for decades. It held that "sanctioned posts do not fall

from heaven" and that the State has to create them by

a conscious choice on the basis of some rational

assessment of need.

19. In G. Srinivasa Chary (supra), the

Telengana High Court, while considering the claim of

employees engaged on outsourcing basis in Greater

Hyderabad Municipal Corporation, answered two

issues namely (i) Whether outsourced employees are

entitled to regularization in their service ? and (ii)

Whether those outsourcing employees are entitled to

equal wage based on the principle of equal pay for

equal work as per the law laid down by the apex Court

in the case of Jagjit Singh vs. State of Punjab, (2017) // 36 //

1 SCC 148. In the said case, i.e., G. Srinivasa Chary

(supra), at pargraph-79, it has been held as follows:-

"79. In the result,

(a) The Writ Petition is allowed;

(b) the respondents' action in engaging the petitioners on "outsourcing basis" as Sanitary Supervisors (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants through intermediaries/agencies/contractors is contrary to law, violative of Article 14, 16 and 21 of the Constitution of India and also the law declared by the Supreme Court in Uma Devi (1 supra) mandating periodic regular recruitment to sanctioned posts;

(c) that the "outsourcing" system adopted by the GHMC is only a sham and a ruse to avoid extending to the petitioners their genuine service entitlements; and that the presence of such intermediary/contractor has to be ignored, and the petitioners are held to have been directly engaged by the GHMC and they are also held entitled to be considered for regularisation of their services;

(d) consequently, the respondents, while continuously engaging the services of the petitioners directly henceforth, are directed to consider the case of the petitioners for regularisation of their services, by ignoring the existence of the intermediaries/agencies/contractors in the posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants within two (2) months from the date of receipt of a copy of the order.

(e) the petitioners are entitled to minimum of time scale of pay attached to the posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants in which they are now discharging their functions till their claim for regularisation is considered by the GHMC in accordance with para 53 of the decision in Uma Devi (1 supra); and such payments shall be made by the GHMC directly to the petitioners w.e.f the date of filing of this Writ petition ( after deducting the payments already received by them during this period from the contractor/intermediary) and shall be continued till the cases of the petitioners are considered for regularisation by the GHMC. The arrears upto 31.7.2020 shall be paid on or before 15.9.2020."

// 37 //

20. In Sanatan Sahoo (supra), a Division

Bench of this Court observed that while he was so

continuing, even though two posts of Jr. Data Entry

Operators were created under H & UD Department, the

same were filled up on out sourcing basis from the

service provider without due process of selection. Their

services have also been regularized. Thus non-

consideration of the case of an employee, whose

services have been utilized for last 22 years, is nothing

but exploitation of such employee by his employer. The

persons who were sponsored through outsourcing

agency by the Service Provider and not through due

process of selection, have already been regularized,

whereas the petitioner, has been discriminated on the

plea that he has not been appointed by following the

Rules meant for Data Entry Operators. Against the

judgment passed in the case of Sanatan Sahoo

(supra), challenge was made before the apex Court in

SLP (C) No. 11911 of 2018, which was dismissed vide

order dated 18.05.2018.

// 38 //

21. So far as the case of Sushil Kumar Nayak

(supra) is concerned, the judgment passed by this

Court in the said case had been challenged before the

apex Court by Orissa Power Transmission Corporation

Ltd. and on the basis of the proposal given by the

counsel appearing for the appellant, namely Orissa

Power Transmission Corporation Ltd., which was partly

based on the observation made in Ashok Kumar

(supra) the matter was disposed of.

22. The cumulative effect of the judgments,

mentioned supra, clearly states that the master-

servant relationship is to be determined on the basis of

the facts of each case. If the same is applied to the

present context, there is no iota of doubt that the

petitioners have been engaged through outsourcing

agencies to discharge the duties and responsibility as

Data Entry Operators admissible to a government

employee, which is purely governmental in nature.

Merely because monthly remuneration is being paid by

the outsourcing agencies that ipso facto cannot be said // 39 //

that there is no existence of master-servant

relationship between the petitioners and the State.

Thus on lifting the veil, it would appear that the

Government is to be deemed as a master, who has

superior choice, control and direction of the servant

and on whose will the servant represents not merely

in the ultimate result of the work, but in details. In

other words one who exercises personal authority over

another is the master and that other is a servant. If it

will be further simplified, if a person employed by

another to render personal service to the employer is a

servant.

23. In Shaffi vs. Commissioner, E & P Tax,

AIR 1960 SC 1269, the apex Court held that a master

is one who not only prescribes to the workman the end

of the work, but directs or at any moment may direct

the means also or as it has been put, retains the power

of controlling the work. A servant is a person subject to

the command of his master as to the manner in which

he shall do his work.

// 40 //

24. Therefore, piercing the veil, it appears that

the petitioners are discharging the duties and

responsibilities of the government, for the government

and by the government. Though they have been paid

their remuneration through the outsourcing agency,

that ipso facto cannot be said that there is no master-

servant relationship exists between the petitioners and

the State opposite parties for whom they are rendering

the services.

25. So far as the contention raised by learned

Additional Government Advocate, that the petitioners

are not engaged against the sanctioned posts, that

itself is fallacious one, in view of fact that the

petitioners have been rendering service for more than

13 years continuously without any interruption and

without any order passed by this Court. That apart, the

facts which are delineated above, clearly indicate that

38 number of posts of Data Entry Operators had been

created, against which the petitioners are discharging // 41 //

their duty, and that though they have been engaged

through outsourcing agencies but the nature of work

they are discharging is governmental. Therefore,

observation has been made by the apex Court in Nihal

Singh (supra) that sanctioned posts do not fall from

heaven and that the State has to create them by a

conscious choice on the basis of some rational

assessment of need. But the judgments of the apex

Court in Hussainbhai Calicut, G. Srinivasa Chary,

Nihal Singh (supra) have not been considered by the

apex Court in Ilmo Devi (supra) and also in the

judgment of the Punjab & Haryana High Court referred

to by the State Counsel. Thereby, since the said

judgments are distinguishable, in view of the law laid

down by the apex Court in Hussainbhai, Calicut, G.

Srinivasa Chary and Nihal Singh (supra), it can be

irresistibly concluded that the petitioners' services are

to be brought to the contractual establishment in

terms of G.A. Department resolution dated 17.09.2013 // 42 //

and, if not, they are to be brought to the contractual

establishment in terms of contractual Rules, 2013.

26. If consideration is made from other angle, in

the State of Odisha, initially outsourcing agencies upon

their registration under the provisions of Private

Security Agencies (Regulation) Act, 2005 read with

Private Security Agencies Odisha Rules, 2009 were

engaged to provide manpower services of private

security guards and also other employees.

Subsequently, the Government issued Resolutions in

the year 2010-11 providing modalities for engagement

of personnel in Govt. offices/Organizations on

outsourcing basis through a transparent and open

tender process. Those resolutions were issued in order

to reduce operating cost and provide more effective

delivery of public services in numbers of auxiliary

support services. Those regulations/instructions, being

issued by orders of the Governor, shall be deemed to

operate as General Financial Rules and delegation of

financial powers and Rules and those are having the // 43 //

authority under Article 166 of the Constitution of India.

Therefore, providing services of Data Entry Operators

to Local Fund Audit Organizations under the Finance

Department by private manpower service providers,

Finance Department issued tender notice providing

scope of work and general instructions for bidders with

technical requirement for tendering manpower service

providers. As per the tender conditions the bidder

should have EPF registration, ESI registration and

Registration/ License under Contract Labour

(Regulation & Abolition) Act, 1970. The tender

conditions also expressly stipulate that the Department

have tentative requirement of 30 nos. of Data Entry

Operators on urgent basis. The tender conditions

further stipulate that in case the grievances of the

deployed persons are not attended by manpower

service provider the deployed persons can put forth

their grievance before the committee consisting of

representatives of the Department or office concerned

and authorized representative in all the manpower // 44 //

service providers. The terms and conditions further

stipulate the manner in which the work is to be

undertaken by the outsourced employees.

27. Therefore, if all the above aspects borne in

mind, it would apparently be made clear that the

petitioners are discharging the duty and responsibility

akin to the State Government employees, though they

are being paid through the outsourcing agencies.

Needless to say, similarly situated employees like Jatin

Kumar Das and Others, who were working as DEOs,

had approached the Tribunal in O.A. No. 2172 (C) of

2015 and batch, which were allowed vide judgment

dated 17.05.2018. The judgment so passed by the

Tribunal was challenged before this Court in W.P.(C)

No.6661 of 2018, which was dismissed by judgment

dated 10.05.2018. Although the said judgment was

assailed by the State in SLP No.18642 of 2018, but the

same was dismissed on 06.06.2018. Pursuant thereto,

all the DEOs working under the CT & GST Department

have been regularized, the petitioners cannot be // 45 //

discriminated from Jatin Kumar Das & others, so as

to deprive them of the benefit of contractual

appointment in terms of resolution dated 17.09.2013

or Rules, 2013, otherwise it will amount to violative of

Article 14 of the Constitution of India.

28. Applying the judgments of the apex Court in

Umadevi (3), M.L. Keshari and Sheo Narain Nagar

(supra), it cannot be construed that the petitioners are

illegally appointed rather it can at best be construed as

irregular appointment. Even if they are appointed

irregularly, they are also entitled to get the benefits of

contractual appointment, as per the resolution dated

17.09.2013 or Rules, 2013.

29. Pursuant to direction of this Court, the

opposite parties produced the file of the Finance

Department, LFA-1 Branch for the year 2006-07

relating to proposal for purchase of computers for LFA

Organization of Finance Department and extension of

agreement of DEOs. On perusal of the note sheets, it

appears 30 computers with printers for 30 Data Entry // 46 //

Operators were to be procured/ employed and the

same has got approval of the concerned Minister.

Thereafter, the process was started for engagement of

such 30 Data Entry Operators and initially, on

07.02.2008, as per the approval of the Government, 20

computers along with 20 Data Entry Operators were

provided to different district audit offices and

headquarters in Finance Department and balance 10

computers have already been supplied to the big

district audit offices as per the statement. The due

approval of the Minister, to that effect, has been made

on 14.02.2008. This clearly indicates that the

petitioners have been engaged with due approval of the

Government to discharge the duties and responsibility

assigned to them, which is purely governmental in

nature, even though they have been engaged through

outsourcing agency by entering into an agreement.

More so, as per clause-8 of the agreement, the agency

has to sponsor the names for selection for their

engagement. Thereby, the petitioners, having faced the // 47 //

selection process, have been engaged as Data Entry

Operators in Local Fund Audit Organization of the

Government under the Finance Department. Therefore,

if the petitioners are discharging the duties and

responsibility of the Government, even though they are

engaged through outsourcing agencies, that cannot

deprive of them the benefits, as per the resolution

dated 17.09.2013 and Rules, 2013.

30. In view of the facts and circumstances, as

discussed above, this Court is of the considered view

that as the petitioners are discharging the duties and

responsibilities for the Government, of the Government

and by the Government, though they have been paid

through outsourcing agencies, they are entitled to get

the benefit of contractual appointment, as per

resolution dated 17.09.2013 or they may be brought

over to the contractual establishment in view of the

2013 Rules governing the field, since they stand at par

with the employees those who have been absorbed in

CT&GST Department, pursuant to the judgment of the // 48 //

Tribunal in Jatin Kumar Das (supra). Such benefits

should be extended to the petitioners as expeditiously

as possible, preferably within a period of three months

from the date of communication of this judgment.

31. In the result, the writ petitions are allowed.

However, there shall be no order as to costs.

32. The Govt. file produced pursuant to direction

dated 23.09.2021 be returned to the Additional

Government Advocate with due acknowledgement.

..................................... DR. B.R. SARANGI, JUDGE

Orissa High Court, Cuttack The 23rd November, 2021, Arun/Alok