Laxmi Prasad Densena vs State Of Odisha And Ors
2022 Latest Caselaw 4712 Ori

      IN THE HIGH COURT OF ORISSA AT CUTTACK
                WPC (OAC) No.345 of 2014

  Laxmi Prasad Densena                    ....           Petitioner
                              -versus-
  State of Odisha and Ors.                ....         Opp. Parties

  Advocates appeared in the case:
  For Petitioner            : Mr. Alekh Chandra Mohanty, Adv.
                              -versus-

  For Opp. Parties            :             Mr. Saswat Das, AGA


              CORAM:
              DR. JUSTICE S.K. PANIGRAHI

                 DATE OF HEARING:-25.08.2022
                DATE OF JUDGMENT:-14.09.2022

     Dr. S.K. Panigrahi, J.

I. Facts of the cases:

1. In this Writ Petition, the Petitioner has prayed for a

direction to the Opposite Parties to regularize his service

since his name has already been figured in the promotional

list.

2. The Petitioner has been working as a Seasonal Mazdoor,

with effect from June, 1988 under the Opposite Party No.5/

Executive Engineer, Main Dam Division, Burla, Sambalpur.

In the meantime, the Petitioner has put in service in spell

basis i.e. 150 days in each spell in a year till 2009. The

1 of 12 petitioner has been continuing in his engagement with

effect from 2010 till date without any break. The persons

who had put in 120 days of service in a year and were

performing similar duty like the Petitioner under Central

Water Commission, Government of India, in Hirakud Dam

Project, their services have been regularized. But the

Petitioner has been discriminated under the threat of

retrenchment/termination. Hence, the present Writ Petition.

3. That the Petitioner joined as a seasonal Mazdoor in Hirakud

Dam under flood control station, Burla, in June, 1995. Some

of the other persons also had joined in the service since 1988

and 1989. Further, some of the persons got appointment as

seasonal Mazdoor for a period of 150 days and more in the

year, by order dated 10.06.1996 of the Executive Engineer,

Main Dam Division, Burla. In that order of appointment 91

persons got their seasonal appointment in different flood

control sites of Hirakud Main Dam Division. The petitioner

continued to get seasonal appointment every year till 2009.

Since his service was not regularised, the Petitioner filed

W.P.(C) No.14902 of 2010. This Court vide order dated

16.07.2013 directed continuance of service of the petitioner

and status quo order was passed. In the meantime, names of

the Petitioner and all other Petitioners in the said Writ

2 of 12 Petition find place in the list of employees and they have

contributed to the Employees Provident Fund Account.

II. Submissions advanced on behalf of the petitioner:

4. Learned counsel for the Petitioner submits that to look after

the flood control of Hirakund Main Dam Division,

maintenance is being done in two different sets of

Employment Avenues one through State Government

authority and other through the Central Water Commission

of the Central Government. The under Secretary,

Government of India, in Central Water Commission had

issued a scheme for grant of temporary status and for

regularization of seasonal Khalasi in the work charged

establishment of Central Water Commission of workers of

those who had put in 120 days continuous service in a year

and the concerned Central Water Commission directed in

the circular dated 20th June, 1997 to bring the scheme to the

notice of all appointing authorities under Central Water

Commission and ensure immediate action for the

implementation of the scheme by all concerned.

5. It is further submitted that the Superintending Engineer

Hirakud Dam Circle, Burla, by letter dated 24.07.2009, in

conformity with the letter No.8992(WE)bdated 20.07.2009 of

the Engineer-in Chief, Water Resources, Orissa,

Bhubaneswar, notified that the N.M.R. employees who were

engaged prior to 12.04.1993 Hirakud Dam Circle, Burla are

brought over to Work charged establishment with effect

from 01.03.2009 in the post and scale of pay plus Grade pay

as mentioned against each with usual D.A. and other

allowances as sanctioned by Government from time to time

and posted as such in the places as shown against their

names subject to the terms and conditions notified.

6. He further submitted that the State Government has

implemented a scheme to regularize the services of the

N.M.R .employees to the worked charged establishment in

the posts and scales of pay and Grade pays with usual D.A.

and other allowances. Evidently, the said policy is towards

the permanency of N.M.R. employees. Hence, since the

Petitioner being a seasonal Mazdoor for the years 1988, 1989

and 1995 genuinely expects to be permanently absorbed in

the Main Dam Division of Burla.

7. It is also submitted that the Superintending Engineer,

Hirakud Dam Circle, Burla by order dated 16.12.1995, in

conformity with the Government of Orissa, Department of

Water Resources Letter No.17909, dated 16.06.1994 and

instructions of the Engineer-in-Chief, Irrigation, Orissa to

that effect communicated vide his letter No.12286 dated

22.09.1994 wherein the named N.M.R. persons who were

4 of 12 working under Hirakud Dam Circle, Burla are absorbed by

way of appointment in the existing vacancies (leaving equal

number of posts as vacant to accommodate the N.M.R.

persons whose cases are pending in O.A.T.) in the post as

noted against their names under vacancy of regular (Wages)

establishment in the scale of pay of Rs.750-12-870-EB-14-

940/- with usual D.A. as admissible to the State Government

Employees from time to time.

8. It is further submitted that by notification dated 17.11.2008

of the Office of the Superintending Engineer, Hirakud Dam,

Circle Mazdoors/ Khalasis were brought to the Work

charged establishment in the scale of pay Rs.2550-55-2660-60

3200/- with usual D.P. and D.A. as admissible to the State

Government employees from time to time and posted as

noted against each.

9. There is promotional avenue available for the Petitioner,

who can also be permanently absorbed in the permanent

post. Hence threat of termination is illegal and arbitrary.

10. He further submitted that the Superintending Engineer,

Hirakud Dam Circle, Burla, keeping with letter No.WC-Gen

11/2006/2753 dated 25.02.2010 of the Engineer-in-Chief,

Water Resources, Orissa, Bhubaneswar had written letter to

the Engineer in-Chief, wherein he had recommended to

absorb the casual work charged staff to regular work

charged establishment as the persons are rendering their

services for many years and the strength of work charged

staff has been drastically reduced due to retirement and

death of the employees and more number of employees

served throughout the year for smooth management of

flood operation of Hirakud Dam. The Executive Engineer,

Main Dam Division had written letter dated 24.04.2010 to

the Superintending Engineer, Hirakud Dam Circle, Burla,

wherein he has stated that the seasonal staffs are engaged

on the basis of their acquaintance with the G/D sites

experience in the job of rain fall and gauge discharge

observation and transmission of data and the same persons

have been engaged without any change since 1995 and have

been appointed since 1967 as verified from the F.C.R.(Fixed

Chart Register) and the terms and conditions of the

appointment as aforesaid are mentioned in the Office

Orders. In the aforesaid letter, it was suggested for their

engagement throughout the year as the strength of the

worked charged staff have been drastically reduced due to

the retirement and death of the employees. Further, the

Assistant Executive Engineer by his letter dated 13.04.2010

has written to the Executive Engineer, Main Dam Division

Burla, wherein it has been stated that the seasonal workers

have been discharging their duty sincerely for many years

6 of 12 and it is recommended to convert them to regular work

charged post and it is felt and are necessary to engage them

beyond flood season throughout the year in different

important works of Hirakud Dam Project, as there is acute

shortage of workers in various positions.

11. He further submitted that this Court by order dated

03.01.2014 passed in W.P.(C) No.24056 of 2013 had directed

not to terminate the 52 numbers of Writ Petitioners

including the Petitioner as an interim arrangement and

accordingly, the Writ Petition has been disposed of to file

the same in the State Administrative Tribunal. Accordingly,

the Petitioner had file the present petition before the

Tribunal which has been transferred to this Court in the

present Writ Petition.

III. Submissions of the Opposite Parties

12. It is submitted by the learned Additional Government

Advocate for the State that the Petitioner along with others

are engaged as Seasonal Mazdoor -Cum-Gauge Reader and

Wireless Messenger-Cum Phone Attendant for the flood

season. In the appointment letter/order it has been

stipulated that the service condition will be guided as per

Work Charged Employee condition of Service Instruction,

1974. The post where the Petitioner was appointed is

temporary and tenable up to a short period only or

completion of the seasonal work or attaining the age of

superannuation whichever is earlier. The services of the

incumbent(s) can be terminated at any time before the time

period by ten days notice evenly either side (i.e. employee

and employer) without any monetary obligation on both

sides. The appointment will not confer upon him any right

or claim of seniority or claim for regular appointment or any

other service benefits. Keeping in view of the terms and

conditions, the claim of regularisation of his service is not

tenable in the eye of law and the Writ petition is liable to be

dismissed being devoid of any merit for consideration.

13. He further submitted that the Seasonal workers are mostly

engaged during the flood season between June and October

every year for the flood control works of the Hirakud

reservoir. Their services are in some years, extended up to

the end of November keeping in view the reservoir water

level and meteorological conditions. No engagement is

provided to them by the dam authorities beyond this period

for any such alleged works like canal maintenance, dam

security, peons, watch and ward etc. Besides above, the

engagement of the Petitioner(s) is/are purely on temporary

basis for a particular period of the year and it is clearly

mentioned in the appointment order that it will not cover

any right or claim of seniority or claim for regular

8 of 12 appointment or any other service benefits. The Petitioner(s)

has claimed regularisation at par with the

employees/workers working under the Central Water

Commission, Government of India. But, the present

petitioner(s) being appointed as Seasonal Worker in the

Hirakud Dam Project is governed by the rules of the

Government of Odisha. It has nothing to do with the rules

of the Government of India. Hence, there is no question of

any exploitation by the employer or any act of arbitrariness

or discrimination as the norms fixed by the Government

has been followed scrupulously. Moreover, the service

conditions or Job prospective of the NMR workers, which

was considered for regularisation are quite different from

that of the present Petitioner(s). The NMR workers were

engaged throughout the year whereas the present

Petitioner(s) was temporarily engaged for a particular

period of the year and discontinued after that. Hence, his

case is not maintainable/considerable as per the existing

provision of law and criteria fixed by the Government.

14. He further submitted that the temporary engagement of the

present Petitioner(s) is/are made for a particular period

basing on the field requirement. Hence, non-absorption of

the seasonal workers as regular work charged employees is

neither illegal, arbitrary nor contrary to the principle of

service jurisprudence.

15. It is also submitted that the Petitioner has withdrawn the

W.P.(C) No. 14902/2010. The case has been disposed of by

this Court vide order dated 16.07.2013.

16. He further submitted that the Central Water Commission,

functioning under the Government of India, have their own

sets of rules and regulations which have got no relevance

with the appointment of the seasonal mazdoors of the

Hirakud Dam Project of Orissa.

17. It is also submitted that the letter dated 24.07.2009 is in

conformity with letter No.8992 (WE) dated 20.07.2009 of the

Engineer-in-Chief for bringing over NMR employees

engaged prior to 12.04.1993 to work charged establishment

from 01.03.2009 is not applicable to the Seasonal Mazdoors

as their job prospective is different from the NMR workers.

The NMR workers were engaged throughout the year

where as the seasonal workers engaged for a particular

period of the year and discontinued after that. By way of

converting the NMR persons to work charged

establishment, no vacancy is created. It is only changing the

service conditions on the existing employees.

18. He further submitted that the appointment of the Seasonal

Mazdoors is made for a particular period of the year i.e. the

10 of 12 monsoon season and they are terminated at the end of the

period as per the requirement of the system and as per

condition in the appointment.

19. The letters of different Officers of Water Resources

Department for considering the seasonal workers to engage

beyond monsoon season are the letters of sympathy to the

Petitioner and others. These letters are only to convey the

grievances of the Petitioner and others to the higher Officers

for consideration, if admissible under existing Government

norms.

20. It is also submitted that this Court vide order dated

03.01.2014 passed in W.P.(C) No. 24056 of 2013 has directed

to maintain status quo for a period of two weeks which has

been obeyed by the Opposite Parties.

21. Lastly, he submitted that in view of the facts stated and

submissions made earlier this Writ Petition is devoid of

merit and is liable to be dismissed.

III Conclusion and Court's order:

22. Admittedly, the Petitioner is engaged as seasonal worker

during the flood season between June and October every

year for the flood control works of the Hirakud reservoir.

The engagement of the Petitioner is purely on temporary

basis for a particular period of the year and it is clearly

mentioned in the appointment order that it will not cover

any right or claim of seniority or claim for regular

appointment or any other service benefits. The Petitioner

has claimed regularisation at par with the

employees/workers working under the Central Water

Commission, Government of India. But, the present

petitioner being appointed as Seasonal Worker in the

Hirakud Dam Project is governed by the rules of the

Government of Odisha. Moreover, the letters of different

Officers of Water Resources Department for considering the

seasonal workers to engage beyond monsoon season are the

letters of sympathy to the Petitioner and others. These

letters are only to convey the grievances of the Petitioner

and others to the higher Officers for consideration, if

admissible under existing Government norms.

23. In view of the above, this Court is not inclined to entertain

the prayer of the Petitioner.

24.Accordingly, this Writ Petition is dismissed. No order as to

costs.

( Dr. S.K. Panigrahi ) Judge

Orissa High Court, Cuttack, Dated the 14th of September., 2022/B. Jhankar

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