Tripati Nayak vs State Of Odisha And Others .... Opp. ...
2023 Latest Caselaw 15512 Ori

Orissa High Court

Tripati Nayak vs State Of Odisha And Others .... Opp. ... on 4 December, 2023

Author: A.K. Mohapatra

Bench: A.K. Mohapatra

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 W.P.(C) No.39247 of 2023


                 Tripati Nayak                            ....            Petitioner
                                                         Mr. B.P. Panda, Advocate

                                              -versus-

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

                                                           Mr. Nikhil Pratap, A.S.C.


                             CORAM:
                            JUSTICE A.K. MOHAPATRA
                                        ORDER

Order No.                              04.12.2023
    01.     1.      This matter is taken up through Hybrid Arrangement
            (Virtual /Physical Mode).

2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel appearing for the State-Opposite Parties. Perused the writ petition as well as the documents annexed thereto.

3. The present writ petition has been filed by the Petitioner with the following prayers:-

"The Petitioner therefore humbly pray that Your Lordships would graciously be pleased to consider the facts stated above and issue Rule Nisi calling upon the Opp. Parties to show cause as to why the office order No.WCD-FE-MISC-0035-2022-20472/WCD, Dt.14.09.2023 issued by the Opp. Party No.1, in directing all the collectors of the state to outsource of watch & ward services in different ICDS projects along with other projects shall not be set aside and the service of the // 2 //

petitioner shall not be regularized in the post of Choukidar-Cum-Night Watcher or any other Class IV post, taking into the account from which the Petitioner was given the appointment, so also to pay his unpaid overtime wages in accordance with law and if the Opposite Parties fail to show cause or show insufficient cause the said rule may be made absolute against the Opp. Parties and direction may kindly issued to the Opp. Parties to set aside/quash the office order No.WCD-FE- MISC-0035-2022-20472/WCD, Dt. 14.09.2023 issued by the Opp. Party No.1 & regularize the service of the Petitioner in the post of Night Watchman or any other Class IV post, so also to pay his unpaid overtime wages in accordance with law.

And/or issue appropriate writ/order/direction as this Hon'ble Court deems fit and proper in the circumstances."

4. It is submitted by the learned counsel for the Petitioner that the Petitioner was initially engaged on 29.1.2018 vide order under Annexure-1 by the Child Development Project Officer, Mathili as a Chowkidar. After such initial engagement the Petitioner has been continuing in service as a Night Watchman as of now. Learned counsel for the Petitioner further contended that being aggrieved by the decision of the Government vide letter dated 14.9.2023 under Annexure-2 wherein it has been decided to engage persons for watch & ward, cleaning & sweeping work by hiring persons through the outsourcing agency. While challenging the aforesaid decision under Annexure-2 to the writ petition, learned counsel for the Petitioner submitted that the Petitioner has been working since last 5 years on a meager salary that is paid to him as a Chowkidar. He further contended that in the event anybody is engaged by the outsourcing agency by removing the present Petitioner, not only the Petitioner but also his entire family is likely to be affected in // 3 //

the guise of such decision.

5. Learned counsel for the Petitioner further referring to the statement attached to the letter under Annexure-2 submitted that although the Petitioner has been working in the Malkangiri district, his position has not been correctly reflected in the statement, so far Mathili ICDS Project is concerned. Being aggrieved by such illegal and high handed conduct of the Opposite Parties, the Petitioner has approached this Court by filing the present writ petition with a specific prayer for a direction to regularize his service against any available vacant post.

6. Learned counsel for the State, on the other hand, submitted that the initial appointment order dated 29.01.2018 reveals that the Petitioner was engaged as Chowkidar on temporary basis. He further contended that such service of the Petitioner can be terminated at any time without prior notice, as it is evident from his appointment letter under Annexure-1 to the writ petition.

7. Learned Additional Standing Counsel further contended that a policy decision has been taken by the Woman and Child Welfare Department to outsource the service for watch & ward, cleaning & sweeping work of the offices under the Department of W&DC. Since the Petitioner was continuing on a temporary basis, no right accrues in his favour to claim regularization of his service or for continuing further in service. In such view of the mater, learned counsel for the State submitted that the present writ petition is devoid of merit and, accordingly, the same should be dismissed.

8. Having heard the learned counsels appearing for the respective parties and on a careful consideration of their // 4 //

submissions and further on a careful scrutiny of the materials on record, this Court observes that there is no dispute with regard to the fact that the Petitioner was engaged on 29.1.2018 by Child Development Project Officer, Mathili to discharge his duties as a Chowkidar on a temporary basis. Further, there is nothing on record to reveal that the Petitioner has failed to discharge his duties properly or any action has ever been taken against him. Further, on perusal of the factual background of the present case, there is no dispute with regard to the post that the Petitioner has been working on temporary basis as Night Watchman. Therefore, in the absence of any vacant post, he cannot claim regularization of his service. Moreover, regularization of service is subject to the law laid down by the Hon'ble Supreme Court as well as this Court and further subject to satisfaction of certain conditions which are essential pre- requisite principles for regularization of his service.

9. On a careful analysis of the policy decision under Annexure-2 to the writ petition, this Court observes that the Government in the W&CD Department has taken a policy decision to engage persons from outsource basis to perform the duties of watch & ward, cleaning & sweeping work of the offices under the said department. Therefore, there is no doubt the same is the temporary and contractual basis. In the aforesaid context, this Court would like to observe here that law with regard to contractual employees is well settled by a judgment of the Hon'ble Supreme Court in in State of Haryana and others v. Piara Singh and others, reported in (1992) 4 SCC 118 as well as of this Court in Dillip Kumar Baral v. Biju Pattnaik University and Technology (BPUT), represented through the Registrar, // 5 //

Rourkela & Anr., reported in 116 (2013) CLT-1029 wherein it has been categorically held that a set of contractual employees cannot be replaced by another set of contractual employees.

10. Keeping in view the policy decision under Annexure-2, this Court is of the considered view that the Opposite Parties are not permitted to introduce a new set of contractual employees through the outsourcing agency by replacing the persons who are working on contractual basis at the moment. Therefore, it would suffice if the writ petition is disposed of by directing the Opposite Parties to ensure that even in the event they engaged any outsourcing agency to perform the services of watch & ward and cleaning & sweeping work in their office, such outsourcing agency be directed to ensure that the persons who are already on contractual basis be allowed to continue on such outsourcing agency before bringing a new set of contractual employees.

11. With the aforesaid observation and direction, the writ petition is disposed of.

( A.K. Mohapatra) Judge

Debasis