Gour Naik vs State Of Odisha And Others
2023 Latest Caselaw 13115 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                                  W.P.(C) No.34329 of 2023


                 Gour Naik                               ....            Petitioner
                                                         Mr. K.C. Sahu, Advocate

                                              -versus-

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

                                                              Mr. Saswat Das, A.G.A.



                              CORAM:
                             JUSTICE A.K. MOHAPATRA
                                         ORDER

Order No.                               19.10.2023
    01.     1.      This matter is taken up through Hybrid Arrangement (Virtual
            /Physical Mode).

2. Heard learned counsel for the Petitioner as well as learned counsel for the State-Opposite Parties.

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

"It is therefore prayed that the Hon'ble Court be graciously pleased to pass following relief(s):-

                          (i)     The Hon'ble Court be pleased to admit &
                                  allow this writ petition;
                          (ii)    That the Hon'ble Court be graciously
                                  pleased to quash the impugned order
                                  dtd.14.09.2023 under Annexure-2 with

further directing the Opp. Parties for regular absorption of the service of the petitioner in any of the vacant Group-D/Class-IV posts available under the administrative control of Opp. Party no.6 by not retrenching the services of the petitioner from the post of // 2 //

Night Watchman-cum-Chowkidar by further allowing the petitioner to continue in his post as usual for the interest of justice.

(iii) The Hon'ble court be pleased to pass any other order(s)/direction(s) as deems fit & proper for the bonafide interest of justice."

4. It is submitted by learned counsel for the Petitioner that being aggrieved the order passed by Opposite Party No.2 on 14.09.2023 under Annexure-2 thereby directing all the Collectors to engage persons on outsourced basis for the services of watch & ward, cleaning & sweeping works, the Petitioner has approached this Court by filing the present writ petition. Learned counsel for the Petitioner submitted that the Petitioner has been discharging his duties as a Contingent Chowkidar since 29 year on contractual basis.

5. Learned counsel for the Petitioner further referring to the judgment of Hon'ble Supreme Court in State of Haryana and others v. Piara Singh and others, reported in (1992) 4 SCC 118 as well as this Court in Dillip Kumar Baral v. Biju Pattnaik University and Technology (BPUT), represented through the Registrar, Rourkela & Anr., reported in 116 (2013) CLT-1029, submitted before this Court that the law is fairly well settled by now that a set of contractual employees cannot be replaced by another set of employees. Therefore, learned counsel for the Petitioner submitted that in the event another outsourcing agency is engaged, the said agency may not engage the Petitioner in service and, as such, there is apprehension that the Petitioner might be retrenched from service after discharging duties for several years continuously.

6. Learned Additional Government Advocate appearing for the State-Opposite Parties, on the other hand, contended that the Petitioner has been working on temporary and daily wage basis, therefore, no right // 3 //

accrues in his favour to continue in service. He further contended that decision under Annexure-2 is a policy decision of the Government to engage outsourcing agency which has been communicated to all the Collectors. In such view of the matter, learned Additional Government Advocate submitted that the Opposite Party No.2 has not committed any illegality in passing the order dated 14.9.2023 under Annexure-2. In such view of the matter, it is submitted that the writ petition is devoid of merit and, as such, the same should be dismissed.

7. Considering the submissions made by the learned counsels appearing for the respective parties and on a careful analysis of the background facts as well as the law, this Court is of the considered view that in view of the aforesaid judgments, the law is fairly well settled that a set of contractual employees cannot be replaced by another set of employees. Further, in the event regular posts are lying vacant, it is open to the Opposite Parties to fill up such regular posts by following the regular procedure. In such cases, the Petitioner cannot claim any right over the posts unless he participates in the recruitment process. However, if the Opposite Parties decide to continue to the contractual employees, they cannot replace the services of the present set of contractual employees by engaging another set of contractual employees.

8. In such view of the matter, this Court thinks it proper to dispose of the writ petition at the stage of admission by directing the Petitioner to approach the Opposite Party No.3 along with a certified copy of this order within three weeks from today. In the event the Petitioner approaches the Opposite Party No.3, the Opposite Party No.3 shall consider the case of the Petitioner in the light of the observation made hereinabove and pass necessary consequential order within a period of two months from the date of communication of a certified copy of this // 4 //

order. Till a final decision is taken, no coercive action shall be taken against the Petitioner. The final decision so taken by the Opposite Party No.3 shall be communicated to the Petitioner within ten days from the date of taking such a decision.

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

( A.K. Mohapatra) Judge Debasis

Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC CUTTACK Date: 26-Oct-2023 10:02:23