Manoranjan Swain And Others vs State Of Odisha And Others
2023 Latest Caselaw 1760 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                          W.P.(C) No.22008 of 2021

     (This is an application under Article 226 and 227 of the Constitution
     of India)


        Manoranjan Swain and others                ....           Petitioners

                                      -versus-

        State of Odisha and others                 ....      Opposite Parties

            For Petitioners       :              M/s. J. Sahoo, Sr. Advocate,
                                                  Kajal Sahoo and S.K. Rout

            For Opp. Parties      :                      Mr. R.N. Mishra,
                                             learned Addl. Govt. Advocate


                                      CORAM:
                    JUSTICE A.K. MOHAPATRA
                                 JUDGMENT

Date of hearing : 08.02.2023 | Date of Judgment : 24.02.2023

A.K. Mohapatra, J.

1. Six Writ Petitioners have filed the above noted writ petition jointly

thereby invoking the extraordinary writ jurisdiction of this Court, under

Article 226 of the Constitution of India challenge the order dated

22.07.2021 issued by the Opposite Party No.1 and further prayed for

quashing of the said order. The petitioners have also prayed for a direction

to the Opposite Parties to regularize the services of the petitioners as // 2 //

Assistant Drivers by issuing a formal order of regularization in their favour

in the scale of pay of Rs.5200-20,200/- w.e.f. 04.04.2011, i.e. the date of

which completed six years of service with all consequential service and

monetary benefits as per G.A. Department Resolution dated 17.09.2013 and

16.01.2014 and in the same manner as has been done in the case of similarly

situated contractual employees in various State Government Departments.

Pursuant to the judgment of the Hon'ble Apex Court in the case of State of

Karnataka vrs. Umadevi : reported in (2006) 4 SCC 1, State of Karnataka

vrs. M.L. Keshari : reported in (2010) 9 SCC 247.

2. The factual backdrop of the petitioners case as culled out from the

writ petition, in a narrow compass, is that pursuant to advertisement

published in Newspaper vide Annexure-2 for the recruitment to the post of

Assistant Driver in the office of the Police Commissionerate Office, Twin

City, Bhubaneswar, the petitioners applied for the job. By following due

selection process, the petitioners were called upon to appear in the test and

they were duly selected by the Recruitment Board, which was later

approved by the D.G. and I.G. of Police, Odisha, Cuttack. As per result

invited by DGP(Headquarters) vide Annexure-3, the petitioners were

appointed as Assistant Driver on contractual basis with a consolidated

remuneration @ of Rs.5,200/- per month for a period of one year.

3. It is pertinent to mention here that the posts of Assistant Driver were

created in the Police Commissionerate of Twin City and the same has been // 3 //

duly concurred by the Finance Department where their communication

dated 20.01.2009. After their selection, the petitioners were issued with

engagement orders on 04.04.2011 under Annexure-4 and pursuant to such

engagement orders, the petitioners have joined in duty. After their initial

appointment dated 04.04.2011 on contractual basis, the Opposite Parties

continued to keep the petitioners engaging continuously till date by

extension of their services.

4. On 22.05.2017 and 30.07.2017, the petitioners upon completion of

six years of continuous service on contractual basis submitted

representations before the Opposite Party No.2 and Opposite Party No.5

praying for regularization of their services in the Commissionerate Police of

Twin City. In the writ petition, it has also pleaded that the I.G. of Police

who has requested the Additional Chief Secretary, Home Department,

Government of Odisha vide letter dated 13.07.2018 under Annexure-10

intimating that the cases of the petitioners be considered for regularization

of their services. Since no decision was taken to regularize the services of

the petitioners, the petitioners approached this Court by filing W.P.(C)

27735 of 2020, 27741 of 2020 praying for regularization of their services.

This Court vide order dated 03.11.2020 disposed of the writ petitions with a

direction to the Opposite Parties to consider the case of the petitioners for

regularization of their services keeping in view the law laid down by the

Hon'ble Supreme Court in the case of Secretary, State of Karnataka and // 4 //

others vrs. Umadevi (3) and others, reported in (2006) 4 SCC 1 and in

State of Karnataka and others vrs. M.L. Kesari and others : reported in

(2010) 9 SCC 247 is also resolution of the G.A. Department dated

17.09.2013 and 16.01.2014 within a period of four months.

5. Since the order dated 03.11.2020 passed by this Court was not

complied with by the Opposite Parties, the petitioners again approached this

Court by filing CONTC No.1788 of 2021, 1789 of 2021, this Court vide

order dated 19.03.2021 granted further one month time for compliance of

the order passed by this Court. Thereafter, the authorities again sat over the

matter and no decision was taken as directed by this Court vide order dated

03.11.2020 and 19.03.2021. Accordingly the petitioners again filed CONTC

No.3223 of 2021, 3228 of 2021. During the pendency of such contempt

petitions, the Additional Chief Secretary to Government, Department of

Home vide order dated 22.07.2021 disposed of the representations filed by

the petitioners thereby rejecting the prayer of the petitioners for

regularization of their services on the sole ground that the Principle of

reservation has been violated in the recruitment process. Further a ground

was also taken by the Opposite Parties that the law laid down in the case of

Umadevi vrs. State of Karnaka(supra) is not applicable to the cases of the

petitioners since they had not completed ten years of continuous service.

Challenging the aforesaid impugned order dated 22.07.2021 under // 5 //

Annexure-14, the petitioners have again approached this Court by filing the

present writ petitions.

6. A counter affidavit has been filed by the D.P.C. Headquarters Twin

City Commissionerate Police representing Opposite Party Nos.1 to 6. In the

said counter affidavit, it has been stated that on completion of six years of

service, regularization of service is not automatic inasmuch as G.A.

Department Resolution dated 17.09.2013 under Annexure-5 has to be read

resolution dated 16.10.2014 and such resolution provides that the proposal

for regularization has to be approved by the High Power Committee (in

short 'HPC') to be constituted under the Chairmanship of the Principal

Secretary of the concerned Department. It is the duty of the HPC to ensure

that before appointment, the eligibility criterias as provided in paragraph-1

of the resolution dated 16.01.2014 employees engaged on contractual basis

are to be brought over to the regular establishment. Conversely, it has also

been stated that employees, who did not fulfill the eligibility criteria as

provided in paragraph-1 are not entitled for regularization of their services.

7. Further in support of the impugned order, it has been pleaded in the

counter affidavit that the Opposite Party No.1 has duly considered the case

of the petitioners for regularization and upon such consideration, the

Opposite Party No.1 informed decision not to regularize the services of the

petitioners and accordingly, rejected the representation of the petitioners

vide order dated 22.07.2021 under Annexure-14. Moreover, the Opposite // 6 //

Parties have also taken a stand in the reasons given in support of the

impugned decision are based on sound reasoning and as such, the same

cannot be turned illegal and no fault can be found against the Opposite

Party No.1. In such view of the matter, the Opposite Party Nos.1 to 6 have

prayed for disposal of the writ petition.

8. In reply to the counter affidavit, the petitioners by referring Opposite

Party Nos.1 to 6, the petitioners have also filed rejoinder affidavit. In the

rejoinder affidavit, the petitioners by referring to the judgment of this Court

in the case of Rajashree Rout and others vrs. State of Orissa and others in

W.P.(C) No.32170 of 2011 decided on 20.12.2019 submitted that law

preservation is not applicable to the facts of the present case. Furthermore,

the Opposite Parties while considering the case of the petitioner have not

taken into consideration the judgment of this court in Rajashree Rout case

(supra). In such view of the matter, the impugned rejection order dated

22.07.2021 is unsustainable in law.

9. Learned counsel for the petitioners also relied upon the judgment of

this Court in the case of Patitapaban Dutta Dash and others vrs. State of

Odisha and others decided on 09.09.2021 in support their contentions that

the services of the petitioners are liable to be regularized as they have

rendered more than six years of continuous services. Moreover, it has also

been stated that only a formal order of regularization is required to be

passed so far the present petitioners are concerned.

// 7 //

10. Learned counsel for the petitioners in course of his argument

contended that the petitioners were selected by following the regular

selection procedure pursuant to the advertisement. Initially, they were

although appointed on contractual basis, however, such appointment were

not made against sanctioned posts and regular vacancy. Moreover, the

petitioners have completed more than six years of continuous services. As

such, it was argued before this Court that the petitioners fulfilled all the

eligibility criteria for regularization of their services, however, the Opposite

Parties without appreciating the factual background of the present case and

without taking into consideration the law governing have illegally rejected

the representations of the petitioners and thereby refused to regularize the

services of the petitioners against regular sanctioned posts. Alternatively, it

was also argued that the petitioners have completed ten years of continuous

service, therefore, by following the principle of law laid down by Hon'ble

Supreme Court in Umadevi case (supra) as well as M.L. Keshari case

(supra). The case of the petitioners should have been regularized with all

consequential service and financial benefits.

11. Learned counsel for the petitioners further contended that in view of

the law laid down by the Hon'ble Supreme Court as well as this Court and

by taking into consideration the G.A. Department Resolution dated

17.09.2013 and 16.01.2014, the legal fixation deemed regularization should

have been applied to the facts of the present case and accordingly, the // 8 //

petitioners should have been deemed to have been regularized on

completion of six years of contractual service w.e.f. 04.04.2011 and

accordingly, they should have been issued with formal regularization order.

Learned counsel for the petitioners also argued that several other

departments of Government of Odisha have regularized the service of

similarly situated persons by applied the aforesaid G.A. Department

Resolution. Moreover, although the petitioners were appointed on

contractual basis initially, they were allowed to continue for more than ten

years of such contractual posts with a meager salary/remuneration, which

also amounts to exploitation of work force. As such, it was also argued that

the conduct of the Opposite Parties are violative of Articles 14, 16 and

34(1)(d) of the Constitution of India. Further referring to the judgment of

the Hon'ble Supreme Court in D.S. Nakara : reported in AIR 1983 SC 130,

which was argued by learned counsel for the petitioners that the ratio laid

down in the said judgment applied to the facts of the present case with

regard to applicability of the ORV Act, 1975, learned senior counsel

appearing for the petitioners contended that in view of such Section 3(d)(b)

of the aforesaid act, the law of reservation is not applicable to the

appointments made on contractual basis. As such, it was argued that the

finding given by the Additional Chief Secretary to Government in the

impugned under Annexure-14 this contrary to the provisions contained in

Section 3(d)(b) of the ORV Act, 1975.

// 9 //

12. Mr. Sahoo, learned senior counsel appearing for the petitioners

further contended that the Government of Odisha vide its resolution dated

14.08.2009 had communicated a decision that the law of reservation shall

also be applicable to contractual engagement against in regular posts under

the State Government. However, the said resolution dated 14.08.2009 has

been revoked/superseded by another resolution dated 08.02.2010. Thus, it

was contended by Mr. Sahoo, learned senior counsel that the alleged non-

adherence that the principle of reservation in the process of recruitment to

the post of Assistant Driver is not vitiated for the reason that the principles

of reservation have not been followed while recruiting Assistant Drivers.

13. In reply to the submissions made by leaned senior counsel appearing

on behalf of the petitioners, Mr. R.N. Mishra, learned Additional

Government Advocate, on the other hand, contended that the decision taken

by the Additional Chief Secretary under Annexure-14 by rejecting the

representations of the petitioners and thereby refusing to regularize the

services of the petitioners is absolutely legal and perfect. He further

contended that in view of the G.A. Department resolution referred to

hereinabove adherence to the law of reservation as provided under the ORV

Act, 1975 is a mandatory eligibility criteria, which is required to be verified

by the High Power Committee constituted for the purpose. Since the

mandatory criterias as provided in the G.A. Department resolution is having

not been followed for selection and recruitment of Assistant Driver the // 10 //

service of the petitioners should not have been regularized by the Opposite

Parties dehors the law as well as resolution of the G.A. Department.

Drawing attention of this Court to Annexure-6 i.e. resolution dated

16.01.2014, learned Additional Government Advocate contended that in

para-1 of the said resolution mandatory eligibility conditions for

regularization on contractual appointees have been clearly prescribed.

Accordingly, learned Additional Government Advocate while supporting

the impugned rejection order under Annexure-14 submitted that the writ

petitioner is devoid of merit and the same is liable to be dismissed.

14. Having heard learned counsels for the respective parties and on a

conspectus of the respective pleadings as well as the materials placed before

this Court for consideration, this Court observed that the impugned order

dated 22.05.2021 under Annexure-14 has been passed by the Additional

Chief Secretary, Home Department, Government of Odisha rejecting the

representations of the petitioners as was directed by this Court in the earlier

writ petition filed by the petitioners. A close scrutiny of the impugned

rejection order reveals that referring to G.A. Department Resolution dated

16.01.2019, Additional Chief Secretary, Home Department, Government of

Odisha was of the view that for regularization of services of the petitioners

three conditions are required to mandatorily fulfilled. Further in the context

of the petitioners' case, it has been specifically observed that the principle

of reservation has not been followed in the recruitment process and that the // 11 //

ratio decided in Umadevi case (supra) is not applicable to the case t hand as

the period of engagement in Umadevi case tenure. Accordingly, the prayer

for regularization has been rejected by the Additional Chief Secretary,

Home Department, Government of Odisha under Annexure-14 with regard

to applicability of the principles of reservation to the facts of the present

case, this Court examined the provisions of ORV Act upon careful scrutiny

of Section 3(d) of ORV Act, 1975, this Court observed that Section 3 (d)

provide as follows:-

"3. Applicability :- This Act shall apply to all appointments to the Posts and

Services under the State except-:

       xxx    xxx     xxx


       (d) those filled up on the basis of any contract;


       xxx    xxx     xxx"

15. The aforesaid provisions clearly reflects that the provisions of ORV

Act, 1975 which provides for reservation for S.C. and S.T. persons is not

applicable to any appointment on contractual basis, further the resolution of

the S.C. and S.T. Development Department dated 14.08.2009 was issued to

ensure reservation for S.C. and S.T. candidates in contractual engagement in

lieu of Class-III and IV. A close scrutiny of the said resolution itself reveals

that there is no statutory requirement to follow ORV Act for contractual

engagement. However vide the said resolution dated 14.08.2009, a decision // 12 //

was taken by the State Government that even for contractual engagement in

Group 'C' and Group 'D' posts, posts shall be reserved for S.C. and S.T.

category candidates in which the same manner and to the same extent as is

being done for regular posts.

16. On 08.02.2010, S.C. and S.T. Development Department,

Government of Odisha issued another resolution in the context of ensuring

reservation for S.C. and S.T. candidates for contractual engagement in

Class-III and IV posts. The said resolution dated 08.02.2010 is very clear

and categorical terms provides resolution dated 14.08.2009 issued by the

very same department has been revoked. Even assuming that the resolution

dated 14.08.2009 or any other provision in other resolution by any

department of State Government providing for reservation for S.C. and S.T

candidates for contractual appointments is valid, then the same would be

dehors under Section 3(d) of the ORV Act, 1975 and as such, the same

would be alter vires of the statutes. Therefore, unless the provision in ORV

Act is amended, no reservation in service on contractual

appointment/engagement could be made contrary to the provisions in ORV

Act, 1975. The view as reflected hereinabove also gets support from a

judgment of this Court by a coordinate Bench in the case of Rajashree

Rout and others vrs. State of Orissa and others in W.P.(C) No.32170 of

2011decided on 20.12.2019.

// 13 //

17. In view of the aforesaid legal position and the finding arrived at by

this Court the main plank of rejection in order dated 22.07.2021 under

Annexure-14 is completely demolished. Bereft of such plank, the impugned

order under Annexure-14 has no locus standi on its own except that one line

observation that the ratio in Umadevi case (supra) is not applicable to the

case of the petitioners, as the period of engagement in Umadevi case was

ten years. In the said context, this Court would like to observe that the

Opposite Parties in their counter affidavit have not disputed the fact that the

petitioners were initially engaged vide order dated 04.04.2021 under

Annexure-4 after they were duly selected by following valid selection

procedure and that the Government of Odisha, Home Department vide order

dated 19.03.2010 has been pleased to create fourteen number of posts of

Assistant Driver and the petitioners were selected pursuant to advertisement

under Annexure-2 were appointed against the regular posts vide

engagement order dated 04.04.2011 under Annexure-4. In view of the

aforesaid factual position, this Court has no hesitation in coming to a

conclusion that the law laid down by the Hon'ble Supreme Court in the case

of Umadevi case (supra) as well as M.L. Keshari case (supra) applied to the

facts of the present case. Moreover, the petitioners are also entitled to be

regularized in view of the aforesaid G.A. Department resolution under

Annexures-5 and 6. Particularly, the resolution dated 16.01.2014 under

Annexure-6 is of the conditions mentioned therein have been fulfilled while

engaging the petitioners on contractual basis except the Condition No.III // 14 //

relating to reservation of posts. So far reservation of posts as provided in

resolution dated 16.01.2014 under Annexure-3, the same runs contrary to

the statutory provision as contained in Section 3 (d) of the ORV Act, 1975

as well as the judgment of this Court in Rajashree Rout case (supra).

18. Additionally, this Court would like to also examine the approach and

conduct of the Opposite Parties in engaging the employees on contractual

basis for a meager salary. In the case at hand, the petitioners were duly

selected and appointed on contractual basis for a meager salary of

Rs.5,200/- per month against the sanctioned posts. Although sanctioned

posts were lying vacant, the services of the petitioners were not regularized

for years together. The petitioners had no other alternative to continue the

opposite parties on contractual cases in turn for a meager salary of

Rs.5,200/- per month. It is needless to mention here that the persons, who

were engaged as Drivers on regular basis were getting much higher salary,

were also getting service and financial benefits. Time and again, this Court

has deprecated practice of the Government in engaging the persons on

contractual basis on several years against the regular sanctioned posts were

the nature of work is perennial. Such conduct of the Government and the

officers working under the Government are highly exploitive in nature. This

Court, taking into consideration the facts of the present case has no

hesitation in coming to conclusion that the conduct of the Opposite Parties

vis-à-vis the petitioner amounts to exploitation of labour force, which no // 15 //

doubt is prohibited in law. Moreover, the conduct of the Government in

engaging employees on contractual basis for a indefinite period i.e. years

together against the vacancy of sanctioned posts and paying them a meager

salary is also hit by the provisions contained under Section 25(T) of the

Industrial Disputes Act, 1947 (in short the 'I.D. Act'). The said provision in

the I.D. Act specifically prohibits unfair labour practice by any employer

whosoever he may be including the Government agencies. Moreover, such

contractual appointments are also infringes Section 23 of the Indian

Contract Act. In the said context, this Court would like to refer the

judgment in the case of Rudrakanta Panda vrs. Stae of Odisha and others

and batch of matters decided in a common judgment dated 10.12.2021 :

reported in 2022 SCC Online Orissa 405, 2022 Lab. I.C. 2208.

19. In view of the aforesaid analysis of law as well as factual back

ground of the present case, this Court is of the considered view that the

impugned order dated 22.07.2021 under Annexure-14 is unsustainable in

law. Accordingly, the same is hereby quashed. Further, the Opposite Parties

are directed that the services of the petitioners be regularized on completion

of six years of service from the date of their initial appointment.

Accordingly, all consequential service and financial benefits be calculated

and disbursed in favour of the petitioners within a period three months from

today.

// 16 //

20. Further, it is directed that in the event the concurrence of the High

Power Committee is required, the Opposite Party No.1 place the matter

before the High Power Committee for their concurrence of regularization of

their services within the aforesaid stipulated time.

21. Accordingly, the writ petitions stands allowed. However, there shall

be no order as to cost.

( A.K. Mohapatra ) Judge

Orissa High Court, Cuttack The 24th of February, 2023/ Jagabandhu.