Rashmi Rekha Das And Others vs State Of Odisha And Another
2023 Latest Caselaw 1486 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  W.P.(C) No.09 of 2023

                 Rashmi Rekha Das and others           ....           Petitioners
                                                      Mr. A. Tripathy, Advocate
                                           -versus-
                 State of Odisha and another           ....      Opposite Parties
                                                      Mr. T.K. Pattanaik, A.S.C.
                                         CORAM:

                            JUSTICE A.K. MOHAPATRA

                                             ORDER

Order No. Date of hearing : 20.01.2023 Date of Order: 17.02.2023

05. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

2. Heard Mr. A. Tripathy, learned counsel appearing for the petitioners and Mr. T.K. Pattanaik, learned Additional Standing Counsel for the State.

3. The present writ petition has been filed by the petitioners with a prayer to quash the impugned decision of Opposite Party No.1 communicated vice order under Annexure-12 and for a further direction to the Opposite Parties to allow the petitioners to continue in their services on contractual/outsourcing post with consequential service and monetary benefits.

4. Mr. Tripathy, learned counsel appearing for the petitioners at the outset submitted that the present writ petition is the second journey of the petitioner to this Court. In the earlier writ petition, the petitioners were heard by a Coordinate Bench of this Court and vide a detailed judgment dated 23.11.2021 passed in W.P.(C) No.16906 // 2 //

of 2020 and a batch of other cases, this Court allowed the writ petition preferred by the present petitioners and others with the following observations and directions:-

"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, 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 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 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."

5. After disposal of the W.P.(C) No.16906 of 2020 filed by Rashmi Rekha Dash and a batch of other cases including the petitioners, the final judgment dated 23.11.2021 passed therein has been assailed by filing an intra court appeal, which was registered as W.A. No.127 of 2022 at the instance of the State of Odisha. The said writ appeal came up before the Hon'ble Division Bench of this court // 3 //

dated 16.02.2022, the Hon'ble Division Bench of this Court vide order dated 16.02.2022 passed the following interim order:-

"As an interim measure, the operative portion of the judgment dated 23.11.2011 passed by the learned Single Judge in W.P.(C) No. 16906 of 2020 shall be kept in abeyance till the next date."

The matter was again listed before the Hon'ble Division Bench on 15.09.2022 while considering the I.A. No.353 of 2022, the Hon'ble Division Bench was pleased to pass the following order:

"1. The impugned order dated 23rd November, 2021 passed in W.P.(C) No.16906 of 2020 by the learned Single Judge shall remain stayed during pendency of the appeal.

2. The I.A. is disposed of."

6. It is submitted by learned counsel for the petitioners that after the earlier interim order passed by the Hon'ble Division Bench was modified by order dated 15.09.2022 and thereby operation of the judgment passed by the Coordinate Bench was stayed absolutely. The Opposite Parties, it is alleged that taking advantage of the interim order of stay of the final judgment dated 23.11.2021, on 28.12.2022 took a decision directing the Opposite Party No.2 not to engage or allow the DEOs to continue on contractual/outsourcing basis any further on the ground that though sixteen number of DEOs continuing in different offices of LFA, however, the interim order dated 30.07.2020 has already merged in the final judgment dated 23.11.2021 rendered in W.P.(C) No.16906 of 2020. Therefore, they have come to a conclusion that since the interim order has merged // 4 //

with the final judgment, the petitioners, who were protected under the said interim order, can no more be protected by the interim order that was passed in the above noted writ petition. The Order No.33373/F dated 28.12.2022 issued by the Finance Department, Government of Odisha to the Director, Local Fund Audit, Odisha, Bhubaneswar has been filed along with writ petition as Annexure-12 and in the present writ petition, the petitioner has prayed for quashing the said communication under Annexure-12 dated 28.12.2022.

7. The present writ petition was listed before this Bench on 03.01.2023. Learned counsel for the State sought for time to obtain instruction in the matter although the matter was listed on 13.01.2023 and 17.01.2023, no effective interim order could be passed. Accordingly, the matter has been listed today for passing necessary interim order protecting the interest of the petitioners.

8. Mr. Tripathy, appearing for the petitioners submitted before this Court that as observed by this Court, the present petitioners approached the Hon'ble Division Bench by filing I.A. No.14 of 2023 inter alia with a prayer to protect the jobs of the petitioner. On perusal of order dated 10.01.2023 passed by the Hon'ble Division Bench of this Court in the above noted I.A. arising out of W.A. No.127 of 2022, this court observes that the I.A. was taken up for hearing and was disposed of as withdrawn with liberty to raise all the please before the learned Single Judge in his application seeking interim protection. Prior to that, the Hon'ble Division Bench opined that they are not persuaded to entertain the I.A. filed by the Respondents in an appeal filed by the State. Aggrieved primarily by the direction for regularizing the services of contractual/DEOs // 5 //

working through outsourcing agency the State has preferred the writ appeal and their Lordships also opined that "in our view the proper remedy for the applicants/respondents would be to pursue his remedy" and before the learned Single Judge in the said writ petition that is how the matter has been listed before this Court for passing necessary interim order to protect the service of the petitioners. Mr. Tripathy in his submission, argued that in the year 2006 due to continuous overwhelming pressure of work load in the undivided local fund audit organization covering audit of about 5000 Institutions, including 314 Panchayat Samities, 101 Urban Local Bodies, 9 universities, 453 added colleges 2199 Aided High Schools, 398 Endowments 6234 Grama Panchayts, a proposal was moved by the Government in Finance Department for computerization of audit office to enhance their efficiency and capacity by abolishing the existing base level ministerial posts with consequential creation of 60 posts of Data Entry Operators. The Finance Department gave approval to the proposal for creation of 30 posts of Data Entry Operators with consolidated remuneration of Rs.4,000/- per month on contractual basis.

9. In the year 2007, an outsourcing agency, namely, M/s. Mind Mart was requested to provide 20 numbers of Data Entry Operators to be engaged in the Local Fund Audit and further to provide their qualification with other eligibility criterias. Accordingly, the above named outsourcing agency conducted a selection by way of walk-in- interview and prepared a panel of DEOs including the petitioners. As such, the petitioners were engaged as Data Entry Operator in the year 2007 and were posted at different LFA organizations under the Finance Department. It is also contended before this Court that these petitioners were continuing in their services uninterruptedly and // 6 //

discharging their duties to the satisfaction of the authorities although they were getting a meager consolidated amount as remuneration. Thereafter the petitioners approached this Court for regularization of their services. A Coordinate Bench of this Court after hearing W.P.(C) No.16906 of 2020 and a batch of other matters vide judgment dated 23.11.2021 allowed the writ petitions. It is apt to mention here that at the time of admission of W.P.(C) No.16906 of 2020, the petitioners were protected by the Coordinate Bench of this Court by an interim order and accordingly they were allowed to continue in their services by the Opposite Parties.

10. It is further contended by learned counsel for the petitioner that although the petitioners succeeded in the writ petition before the learned Single Judge, the State Government being aggrieved by the judgment dated 23.11.2021, preferred a intra Court appeal by filing W.A. No.127 of 2022, which has been discussed in detail in the preceding paragraphs. He further contended that while the matter was pending before the learned Single Judge, the petitioners were protected by an interim order and as such were allowed to continue in their services. However, after the writ petition was allowed, the interim order passed earlier merged in the final order and their right to be regularized in services was crystallized on the basis of the final judgment dated 23.11.2021. However, the Opposite Parties- authorities by taking advantage of the interim order, passed by the Hon'ble Division Bench thereby staying operation of the judgment dated 23.11.2021 have taken a decision which has been communicated to the Director, Local Fund Audit vide order dated 28.12.2022 under Annexure-12. As a result of which the petitioners are now facing the threat of being thrown out of their services by the // 7 //

Opposite Parties.

11. Mr. Tripathy, learned counsel for the petitioners further contended that it is the duty of this Court to protect the petitioner when the matter is subjudice before this Court. He further contended that although the petitioners were interimly protected and finally their writ petition was allowed, the Opposite Parties by taking undue advantage of the interim order passed by the Hon'ble Division Bench of this Court are now trying to throw the petitioners out of their services. Thus, the same would cause grave prejudice and irreparable loss to the petitioners.

12. Learned counsel for the petitioners further argued that the conduct or act of Court shall cause any prejudice to no person. In the said context, learned counsel for the petitioner relied upon the legal maxim; actus curiae neminem gravabit. Further by elaborating the aforesaid legal maxim, it was also argued that the said maxim applicable to all acts which the Court would have done while adjudicating an issue pending before it. With reference to the facts of the present case, he also submitted that the petitioners before approaching this Court were working on contractual basis and were performing a regular nature of work, however, after the final judgment was passed by the learned Single Judge allowing with petitioner, the same was challenged before the Hon'ble Division Bench and the Division Bench passed an interim order of stay. The Opposite Parties by taking undue advantage of such interim order are trying to throw the petitioners out of their services. Therefore, he submitted that the petitioner by approaching this Court, are seriously prejudiced. In such view of the matter, learned counsel for the petitioners submitted that the petitioners are to be protected in the // 8 //

interest of justice by an interim order till the validity of order dated 28.12.2022 under Annexure-12 is decided by this Court after hearing both the sides.

13. Learned counsel for the State, on the other hand, submitted that the petitioners have no right to claim for regularization of their services. Although the writ petition filed by the petitioners were allowed, however, the same has been assailed before the Hon'ble Division Bench and the Division Bench has been pleased to stay the operation of the final judgment delivered in the writ petition filed by the petitioners. Therefore, there is no legal embargo so far Opposite Parties are concerned and as such, they are free to take any decision in public interest. Learned counsel for the State also contended that it is the discretion of the employer as to whether to engage the employees on contractual basis or not and that the employees have no right to continue in their services after contractual period comes to an end. Learned counsel for the State further contended that once the final judgment has been stayed by the Hon'ble Division Bench in appeal, the effect of the said judgment is completed obliterated until and unless the same is revived after disposal of the appeal. Therefore, the Opposite Parties are well within their authority to take a decision as to whether to continue the petitioners in service or not. In such view of the matter, learned counsel for the State submitted that no interim order should be passed at this juncture.

14. Having heard learned counsel for the petitioner as well as learned counsel for the State and upon careful examination of the background facts of the present case, this Court is of the considered view that the validity of the order dated 28.12.2022 under Annexure- 12 needs to be examined by this Court as the same has been passed // 9 //

while the matter is still subjudice before the Hon'ble Division Bench of this Court. Further, it is to be examined as to whether the Opposite Parties were legally justified in taking a decision as has been done under Annexure-12 when the principal issue is still subjudice before the Hon'ble Division Bench in Writ Appeal and more so, when the learned Single Judge after hearing was pleased to allow the writ application filed by the present petitioners, this Court upon perusal of the order under Annexure-12 observes that the Director, Local Fund Audit has been requested to strictly follow the principle vide Home Department Letter No.2 dated 13.07.2022 on the basis of minutes of meeting dated 14.03.2022. The said letter dated 13.07.2022 and the minutes of meeting dated 14.03.2022 are issued apparently after the final judgment dated 23.11.2021 was passed by the learned Single Judge.

15. In view of the aforesaid facts and circumstances of the case, this Court is of the considered view that the matter requires further examination by this Court.

16. Accordingly, issue notice to the Opposite Parties. Learned counsel for the State accepts notice on behalf of all the Opposite Parties. Counter affidavit, if any, be filed within six weeks.

17. List this matter in the 1st week of April, 2023.

( A.K. Mohapatra ) Judge I.A. No.131 of 2023

06. 18. Heard.

19. As an interim measure, it is directed that the order dated 28.12.2022 under Annexure-12 shall not be given effect to till the // 10 //

next date. Further, the Opposite Parties are directed not to disengage the petitioner from service till the next date.

Urgent certified copy of this order be granted on proper application.

( A.K. Mohapatra ) Judge Jagabandhu