Orissa High Court

Sameer Kumar Sahu And Another vs State Of Odisha And Others on 20 April, 2023

    IN THE HIGH COURT OF ORISSA AT CUTTACK
             WPC(OAC) No. 2915 of 2016,
             WPC(OAC) No. 1069 of 2017,
             WPC(OAC) No. 1070 of 2017,
             WPC(OAC) No. 1071 of 2017,
             WPC(OAC) No. 1072 of 2017,
             WPC(OAC) No. 1644 of 2017 &
              WPC(OAC) No. 1837 of 2017

Applications under Articles 226 & 227 of Constitution of
India.
                    ---------------
WPC(OAC) No. 2915 of 2016
Sameer Kumar Sahu and another         ......      Petitioners

                     - Versus -

State of Odisha and others            .......   Opp. Parties

WPC(OAC) No. 1069 of 2017

Manoranjan Swain & Others             ......      Petitioners
                     - Versus -
State of Odisha and others            .......   Opp. Parties

WPC(OAC) No. 1070 of 2017

Saphalya Ranjan Behera & Others       ......      Petitioners
                     - Versus -
State of Odisha and others            .......   Opp. Parties

WPC(OAC) No. 1071 of 2017
Niranjan Rout & Others                ......      Petitioners
                     - Versus -
State of Odisha and others            .......   Opp. Parties

WPC(OAC) No. 1072 of 2017
Shiba Shankar Daruwan & Others        ......      Petitioners
                     - Versus -

                                                    Page 1 of 11
       State of Odisha and others          .......   Opp. Parties

      WPC(OAC) No. 1644 of 2017
      Pramod Kumar Lenka & another        ......      Petitioners
                           - Versus -

      State of Odisha and others          .......   Opp. Parties

      WPC(OAC) No. 1837 of 2017
      Trinath Behera & Others             ......      Petitioners
                           - Versus -

      State of Odisha and others          .......   Opp. Parties

      Advocate(s) appeared in this case:-
      _______________________________________________________
        For Petitioners    :    Mr. B. Routray, Sr. Advocate
                                with Mr. J. Biswal, R.P. Dalai,
                                K. Mohanty, S.K. Samal,
                                S.P. Nath & S.D. Routray,
                                Advocates.

         For Opp. Parties :     Mr. S.N. Pattnaik,
                                Addl. Government Advocate
      _________________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA

                             JUDGMENT

20th April, 2023

SASHIKANTA MISHRA, J.

Common questions of fact and law are involved

in this batch of writ applications for which they were

heard together and are being disposed of by this common

judgment.

2. The petitioners were engaged as Primary

Workers in Block and District levels in the district of

Jharsuguda through a service provider pursuant to work

order issued by the District Planning and Monitoring Unit,

Jharsuguda. They claim to have been selected by the

service provider in a duly conducted selection process and

engaged as Investigator and Primary Workers in the

district of Jharsuguda as per appointment letters issued

to them by the service provider on different dates. The

petitioners were engaged to collect data for preparation of

business register of the district in terms of decision of the

Government of India as per letter dated 15.01.2015. By

letter dated 11.08.2015, the Government in Department of

Planning and Coordination called upon the Director,

Economics and Statistics, Orissa (opposite party No.2) to

furnish data regarding the persons who were so engaged

on outsourcing basis for being placed before the

Development Commissioner -cum- Additional Chief

Secretary. The opposite party No.2 furnished the required

information. While the matter stood thus, the Odisha Staff

Selection Commission (opposite party No.5) issued an

advertisement on 19.10.2015 inviting online applications

for the post of Primary Investigator under the Directorate

of Economics and Statistics. It was indicated in the said

advertisement that the appointment shall be contractual

in nature. In the meantime, the Government of Odisha

framed a Rule, called "Orissa Subordinate Statistical

Surveyors (Method of Recruitment and Conditions of

Service) Rules, 1994 prescribing direct recruitment to the

post of Statistical Field Surveyor by way of competitive

examination. Since the petitioners have been continuing

since long, they approached the erstwhile Odisha

Administrative Tribunal by filing Original Applications

with prayer to quash the impugned advertisement dated

19.10.2015 and to direct the authority to allow them to

continue against their respective posts on contractual

basis as also to take steps for regularization of their

services against the respective posts in terms of the 2015

Rules. The said original applications have since been

transferred to this Court and registered as the present

writ applications.

3. The case of the opposite parties is, due to delay

in conduct of direct recruitment process, it was decided to

engage manpower temporarily through outsourcing basis

to manage the important work of 13th Finance

Commission. On such basis, a tender was issued, wherein

the opposite party no.4- firm was selected by the tender

committee. The petitioners and other persons were

engaged by the service provider up to 31.03.2015 against

regular posts of Primary Investigator. The claim that they

were selected in a due selection process, has been

specifically denied. It is further stated that as per G.A.

Department Resolution dated 12.11.2012, recruitment to

Group-'C' and Group-'D' posts shall be made on

contractual basis for a period of six years. There is no

employer and employee relationship between the

petitioner and the Government. They are paid

remuneration by the service provider. Hence, their claim

for regular appointment cannot be considered. It is also

stated that as per G.A. Department Resolution dated

12.11.2013, a special provision has been made for

outsourced persons to come though the competitive

examination.

4. Heard Mr. B.P. Routray, learned Senior Counsel

along with Mr. J. Biswal, learned counsel for the

petitioners and Mr. S.N. Pattnaik, learned Addl.

Government Advocate for the State.

5. Mr. Routray would argue that by means of the

impugned advertisement the authorities proposed to

substitute one set of contractual employees by another set

of contractual employees, which is impermissible in view

of the law laid down by the Apex Court as well as by this

Court in several decisions. Mr. Routray further submits

that the petitioners are working as Investigators and

Primary Workers which are sanctioned posts. On the

other hand, the 2015 Rules provides for appointment of

Senior Statistical Field Inspector, Statistical Field

Inspector and Statistical Field Surveyor. Since the

advertised posts are not coming within the ambit of 2015

Rules, the said Rule would not be applicable at all to the

advertised posts i.e., a Primary Investigator. Alternatively,

Mr. Routray contends that even otherwise, the opposite

party No.5 has not followed the provisions under Rule 8(b)

of the 2013 Rules, whereby weightage for each completed

year of service along with relaxation of age is to be given to

the outsourced employees.

6. Per contra, Mr. S.N. Pattnaik, has argued that

the reference to 2013 Rules in the advertisement cannot

be treated as a case of one set of contractual employee

being substituted by another, inasmuch as the 2013

Rules only provides that the persons engaged shall be

treated as a contractual employees for the first six years of

their engagement followed by automatic regularization of

their services. These employees come through a

recruitment process unlike the petitioners, who are

engaged on outsourcing basis by service provider and not

by the Government. Nevertheless the Rules provide for

relaxation to such employees in terms of relaxation of age

and weightage in marks awarded for each year of

continuous service. However, these employees have to

come through the recruitment process and cannot be

simply regularized as there is no employer-employee

relationship between them and the State. According to Mr.

Pattnaik, reference made to 2015 Rules is also

misconceived.

7. Admittedly, the petitioners have been engaged

through service provider. As such, there is no employer

employee relationship between them and the State. The

impugned advertisement clearly provides that

"Appointment is contractual initially to be guided by the

Odisha Group-C and Group- D posts (contractual

appointment) Rules, 2013 notified vide G.A. Department

Notification No. GAD-SC-Rules-0009-2013-32010/Gen

dated 12.11.2013. Be it noted here that the erstwhile

Odisha Administrative Tribunal while admitting the

Original Applications had passed an interim order to the

effect that any appointment made pursuant to

advertisement shall be subject to result of the O.A.

8. Rule-4 of the 2013 Rules lists two categories of

existing contractual employees, as follows:

"(a) Category I : Contractual appoints/engagements made against contractual posts created with the concurrence of Finance Department without following the recruitment procedure including the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 and the rules made thereunder and Rules regulating recruitment for the regular posts.

(b) Category II : Contractual Engagements made through manpower service provider agencies with concurrence of Finance Department."

9. Rule-8 reads as follows;

"8. Special Provision for different categories of existing Contractual Employees:-

(a) The contractual employees belonging to Category-I and the persons provided by the manpower service provider agencies under Category-II, who shall be less than 45 years of age and shall have completed at least one year of continuous service, in case they apply for Recruitment under sub-rule (I) of rule 5 for any Group C and Group D posts, shall be allowed relaxation of upper age limit for entry into Government service; provided they satisfy all other eligibility criteria for the post as laid down in the relevant recruitment rules.

(b) They shall be allowed one per cent marks on the total marks of the examination for each completed year of continuous service subject a maximum of fifteen per cent, which shall be added to the marks secured by them for deciding the merit position."

10. Rule-10(1) reads as follows:

"10. Conditions of Service on Regular appointment-

(1) Regular Appointments: On the date of satisfactory completion of six years of contractual service under sub-rule (1) of rule 8, they shall be deemed to have been regularly appointed. A formal order of regular appointment shall be issued by the appointing authority."

11. A reading of the above provisions makes it

clear that firstly, any appointment made after coming into

operation of the 2013 Rules shall be initially on

contractual basis for a period of six years, but contingent

upon satisfactory service, the employees shall be deemed

to have been regularly appointed on expiry of such period.

It would therefore, not be correct to contend that the

appointment so made is a contractual appointment as is

generally understood. Secondly, the petitioners cannot be

said to have been appointed by the State. Therefore, they

can be treated as contractual employees only as defined

under category-II of Rule-4. Thirdly, even for persons like