Tapan Kumar Mohanty vs State Of Odisha
2023 Latest Caselaw 13424 Ori

              IN THE HIGH COURT OF ORISSA, CUTTACK


                            W.P.(C) No.13553 of 2020


            Tapan Kumar Mohanty                       .......      Petitioner

                                               -Versus-

            State of Odisha                          .......       Opp. Party



                  For Petitioner                          : Mr. B. Routray,
                                                            Sr. Advocate

                  For Opp. Party                          : Mr. S.N. Pattanaik,AGA



                                    ----------------------------

P R E S E N T:

MR. JUSTICE SANJAY KUMAR MISHRA

--------------------------------------------------------------------------------- Date of Hearing: 09.08.2023 Date of Judgment: 31.10.2023

---------------------------------------------------------------------------------

S.K. Mishra, J. The Writ Petition has been preferred with a prayer

to quash the Office Order dated 16.03.2020 (Annexure-8),

vide which the representation of the Petitioner to upgrade his

post to Assistant Executive Engineer has been rejected. A

further payer has been made to treat the Petitioner as

Assistant Executive Engineer and extend all service and

financial benefits to him, as has been extended in case of Assistant Executive Engineers in Water Resources

Department in terms of Notification dated 14.05.2019, within

a reasonable time to be stipulated by this Court.

2. The factual matrix of this case in nutshell is that,

the Petitioner is a Degree Engineer in Electrical Trade.

Initially the State Government did not conduct any

recruitment process for selection as well as appointment of

Assistant Engineers. However, the Degree Engineers were

empanelled on the basis of their passing out of Degree

Engineering. Out of the said panel list, the Degree Engineers

were appointed as Stipendiary Engineer on a consolidated

remuneration fixed by the State Government prevalent at the

relevant point of time. The Petitioner, though was empanelled,

was never given appointment as a Stipendiary Engineer like

others. Rather, he was appointed as a Degree Engineer on

daily wage basis vide order dated 04.05.1993, but was paid

consolidated remuneration of Rs.2,000/- per month which

was subsequently enhanced to Rs.7,000/- per month as per

the policy decision of the State Government. After rendering

substantial period of service and being aggrieved by such

inaction of the State instrumentalities in not bringing the

Petitioner to the fold of regular establishment, the Petitioner

was constrained to approach the Administrative Tribunal by

filing O.A. No.3480(C) of 2013 which was disposed of on

17.03.2016 with a direction to the Opposite Parties to take a

policy decision for regularization of the service of the

Petitioner within a period of four months. Challenging the

said order passed by the Tribunal, the State preferred W.P.(C)

No.3314 of 2017 and the matter got disposed of on

12.07.2017, wherein this Court declined to interfere with the

impugned order passed in O.A. No.3480(C) of 2013 and the

said Writ Petition was dismissed. Being left with no other

option, the State/Opposite Party issued Office Order dated

23.12.2017, wherein it was reflected that in pursuance of the

order passed in O.A. No.3480(C) of 2013 and confirming order

passed in W.P.(C) No.3314 of 2017, the Petitioner, a DLR

Graduate (Electrical) Engineer engaged after 12.04.1993 on

contract basis against regular sanctioned post of Assistant

Engineer, is appointed as Assistant Engineer. Pursuant to

the said Office Order dated 23.12.2017; the Petitioner

submitted his joining letter on 01.01.2018. It is further case

of the Petitioner that his case is identical to the case of those

Assistant Engineers, who were applicants in batch of Original

Applications i.e. O.A. No.1036 (C) of 2016 and O.A. No.1089

(C) of 2016, which were disposed of vide a common order

passed by the Tribunal, where in it was clearly held that after

restructuring of the cadre of Degree Engineers, the base level

post of Assistant Engineer was re-designated as Assistant

Executive Engineer. But to the reasons best know, though the

Petitioner was brought over to the fold of regular

establishment, he was not granted the said relief of re-

designation. It is further case of the Petitioner that a High

Power Committee Meeting was held under the Chairmanship

of the then Chief Secretary, Odisha on 24.11.2015 to consider

the case of the similarly circumstanced graduate engineers,

who were continuing as Assistant Engineer on daily wage

basis. In the said meeting it was decided that since those

Assistant Engineers were not recruited through a regular

process but were continuing for long period, they may be

offered a chance of regularization in service on relaxation of

their upper age limit. In conformity to the need of hour and

keeping in view the workload in various Engineering

Departments, the State Government in the Department of

Water Resources issued Gazette Notification on 21.03.2013,

where in it was clearly reflected that the entry level post of the

cadre of Odisha Engineering Service shall be at the level of

Assistant Executive Engineer in Junior Class-1 Branch in the

Scale of Pay PB-3, Rs.15,600-39,100/- with Grade Pay of

Rs.5,400/-. In terms of the said Notification, the Water

Resources Department issued an Office Order dated

14.05.2019 regularizing the services of nine numbers of

Assistant Executive Engineers against regular sanctioned post

with extension of all service and financial benefits with effect

from 21.03.2013. The said Engineers were all the applicants

before the Tribunal in O.A. No.1036 (C) of 2016 and O.A.

No.1089(C) of 2016 as detailed above. Vide the common

Judgment passed in the said O.As, the Tribunal allowed the

prayer of the applicants and directed the OPSC not to make

any advertisement to fill up the post of Assistant Engineers,

re-designated as Assistant Executive Engineer, and treat the

said applicants as Work Charged Assistant Executive

Engineer against the said post which were upgraded and to

give them all financial benefits from the date the post was

upgraded.

3. In terms of the said order passed by the Tribunal,

the State Government made a notification on 14.05.2019

regularizing the service of nine numbers of Assistant

Engineers against a regular sanctioned post with all service

and financial benefits with effect from 21.03.2013 i.e. the

date on which they were treated to be Work Charged

employees. Knowing about the said notification dated

14.05.2019, immediately thereafter the Petitioner made a

representation to the Opposite Party on 21.06.2019

highlighting therein that grave injustice has been meted out

to him in not adjusting him in the post of Assistant Engineer

and thereby denying with the Pay Band-3 i.e. Rs.15,600-

39,100/- with Grade Pay of Rs.5,400/- with usual D.A. and

other allowances admissible as per ORSP Rules revised from

time to time. Due to inaction on the part of the Opposite Party

to mitigate the grievances of the Petitioner, being left with no

other alternative, he was constrained to move before this

Court in W.P.(C) No.18743 of 2019, which was disposed of on

29.10.2019 directing the Opposite Party to look into the

grievance of the Petitioner and to take appropriate decision

on the said representation within a period of two months from

the date of communication of the said order. Being so

directed, the Opposite Party rejected the claim of the

Petitioner, vide order dated 16.03.2020 on the plea that the

Finance Department, after careful examination, opined that

the Assistant Executive Engineers, to whom a reference has

been made by the Petitioner, were engaged prior to cut-off

date of 12.04.1993 and all of them were initially appointed as

NMRs and subsequently have been brought over to Work

Charge Establishment and were upgraded to the post of

Assistant Executive Engineer. Hence, their cases were not

exactly in the same footing to that of the Petitioner as his

initial engagement was on 10.05.1993 i.e. after the cut-off

date 12.04.1993. It is further case of the Petitioner that, there

is no dispute about his continuance as against the post of

Assistant Engineer as DLR since 1993 and subsequently in

the year 2005 his services were made contractual. It is also

not disputed that the Petitioner possesses the requisite

qualification and his service was treated on contract basis

against the regular vacant post of Assistant Engineer. In the

year 2017, taking into consideration the period of service

rendered by him, the Opposite Party brought over the

Petitioner as a regular Assistant Engineer against the same

post of Assistant Engineer, which is a sanctioned post and the

said post of Assistant Engineer was upgraded to the post of

Assistant Executive Engineer. Hence, there is no rhyme or

reason as to why the Petitioner shall not be upgraded to the

post of the Assistant Executive Engineer with pay and

allowances as admissible to such upgraded post. It has

further been stated that Opposite Party has issued a letter

dated 14.02.2020 wherein eight numbers of post of Assistant

Engineer (Civil) in Wok Charge establishment have been

upgraded to the rank of Assistant Executive Engineer.

Similarly, another Graduate Engineer-Electrical, namely,

Shyam Sundar Rath had approached the Tribunal by filing

O.A. No.985 of 2015 which was disposed of on 15.04.2015

directing the State Government to take a decision

independently in accordance with law. Pursuant to the said

order, the Opposite Party, vide order dated 02.03.2016,

regularized his service by bringing him into Work Charge

Establishment. It has further been stated that even though

Petitioner was engaged after 12.04.1993 (as he joined on

04.05.1993), his service was regularized and he was brought

over to the fold of regular establishment vide office letter

dated 23.12.2017 under the seal and signature of the

Opposite Party, thereby allowing the Petitioner to work as

Assistant Engineer, and he was allowed to draw the Scale of

Pay attach to such post. Hence, taking the same plea that the

Petitioner was engaged after the cut-off date 12.04.1993 and

rejecting his claim to allow him to function as Assistant

Executive Engineer and denying him the scale of pay attached

to the said post, particularly when the post in question has

already been upgraded, is nothing but discriminatory and

such act of the Opposite Party clearly invites the intervention

of this Court.

4. It has also been stated that so far as the

Stipendiary Engineers are concerned, the matter has been set

at rest by the apex Court, wherein it was directed to

regularize the services of the Stipendiary Engineers taking

into consideration the period of service they have rendered.

But unfortunately, to the reason best known to the Opposite

Party, the Petitioner was allowed to continue as DLR, even

though he has satisfied all the criteria for regular

appointment against the sanctioned vacant post. Had the

Petitioner been included in the panel of Stipendiary

Engineers, certainly he could have been appointed by now in

the rank of Assistant Executive Engineer and the occasion of

filing of writ petitions would not have arisen. The Petitioner

has become a victim of no fault of his own. His service has

been utilized right from 1993 till date. It is irrational on the

part of the Opposite Party that instead of upgrading the

service of the Petitioner, step motherly attitude has been

shown to him. Such action on the part of the Opposite Party

is not only arbitrary and discriminatory but also violation of

Article 14 of the Constitution of India. It is further case of the

Petitioner that, a Stipendiary Engineer cannot stand on a

better footing than the Petitioner. The only difference between

the Petitioner and the Stipendiary Engineers is that the

Stipendiary Engineers were engaged on stipend basis,

whereas the Petitioner was engaged on daily wage basis.

Though the Petitioner has time and again moved the

authorities concerned for redressal of his grievances, but the

Opposite Party has slept over the matter, as a result of which

the precious 27 years of the Petitioner (as on the date of filing

of the writ petition) have been spoiled. Therefore, the action of

the Opposite Party in not regularizing the service of the

Petitioner in the post of Assistant Executive Engineer and

thereby denying extension of other service as well as

consequential benefits to him, as has been done in the case

detailed above, is arbitrary, discriminatory so also violative of

Articles 14 & 16 of the Constitution of India. It is further case

of the Petitioner that, he has been treated to be as Assistant

Engineer with effect from 23.12.2017, whereas the State

Government, after restructuring of the Odisha Engineering

Service, upgraded the said post of Assistant Engineer to

Assistant Executive Engineer, which is the base level post.

Hence, there is no logic behind the action of the Opposite

Party in not treating the Petitioner as Assistant Executive

Engineer, particularly when the post in question has already

been upgraded by the Opposite Party and twenty number of

Assistant Executive Engineers posts are lying vacant. The

State, being the model employer, should not resort to such

practice thereby compelling the Petitioner to knock the door of

this Court time and again.

5. Opposing to the prayer made in the Writ Petition, a

Counter Affidavit has been filed by the Opposite Party

admitting therein most of the facts detailed in the Writ

Petition. Paragraphs-7 to 10 of the said Counter Affidavit

being germane to deal with the prayer made in the Writ

Petition, are extracted below:

"7. That with regard to the averments made in paragraph-7 to 9 of the writ petition, it is humbly submitted that in view of the Hon'ble Tribunal in O.A. No.3480(C)/2013 and order of Hon'ble High Court in W.P.(C) No.3314/2017, the O.P. No.1 after taking the advice of Law Department endorsed the file to Finance Department as well as Energy Department for their concurrence in order to implement the orders of Hon'ble Court. After concurrence of F.D. & Energy Department, the petitioner was appointed as Ex-

       cadre       Asst.    Engineer     (Electrical)    against       the
       regular       sanctioned         post    of    Asst.    Engineer

(Electrical) vide Rural Development Department office order dated 23/12/2017.

8. That with regard to the averment made in paragraphs-10 to 12 of the writ petition, it is humbly submitted that after restructuring of Engineering Cade, post of Asst. Engineers have been up-graded to the posts of Asst. Executive Engineer vide the resolution No.9660 Dtd.21/03/2013 of Water Resources Department. That the Hon'ble Tribunal, while disposing O.A. No.1036 (C)/2016 and O.A. No.1089 (C)/2016 on 16.05.2015 directed that the applicants be treated as work charged Asst. Executive Engineers against the posts, which were

up-graded and they may be given all service and financial benefits from the date their posts were upgraded in order to comply the aforesaid orders of Hon'ble O.A.T. The Deptt. of Water Resources vide their notification No.11157/WR Dtd.15/05/2019 have up-graded 9 (Nine) posts of Asst. Engineers to the post of work charged Asst. Executive Engineers extending all service and financial benefits w.e.f. 21/03/2013.

9. That in response to the assertions made in paragraphs-13 & 14 of the writ petition, it is humbly submitted that the petitioner submitted a representation on Dtd.21/06/2016 to O.P. No.1 for up-gradation of his service from the post Asst. Engineer (Electrical) to the post of Asst. Executive Engineer (Electrical) citing the same principle as has been followed by the Deptt. of Water Resources, while issuing the resolution No.9660 Dtd.21/03/2013. At the same time, Hon'ble High Curt also passed an order on 29/10/2019 in W.P.(C) No.18473/2019, filed by the petitioner, directing the O.P. No.1 to look into the grievance of the petitioner and to take decision on his representation within two months from the date of communication of the order and at the same time, the Hon'ble Court observed that, while taking the decision the authority may look the development at Annexure-8.

10. That as regards the assertions made in paragraphs-15 & 16 of the writ petition, it is humbly submitted that the case of the petitioner was referred to Law Department for their views to upgrade his service to

the rank of Asst. Executive Engineer like that of 9 (Nine) Asst. Engineers of Water Resources Department, whose posts were upgraded t0 the rank of Asst. Executive Engineer (work charged) vide their notification No.11157/WR, Dtd.14/05/2019 extending all services and financial benefits w.e.f. 21/03/2013. Law Department returned the file with the opinion that there was no bar to upgrade to ex-cadre post of Asst. Executive Engineer to strike the parity among the similar situated employees of the Department, in terms of mandate of equality enshrined in the Constitution. Therefore, the Government may take a policy decision for up- gradation for such post.

As the Energy Department is the cadre controlling Department in respect of Electrical Engineers and the file was endorsed to Energy Department for their concurrence to upgrade the post of Ex-cadre Asst. Engineer to the post of Ex-cadre Asst. Executive Engineer (Electrical) and the proposal of R.D.

       Department          was    approved         by     the     Energy
       Department          with   an      observation          that    the

petitioner may continue against ex-cadre Asst. Executive Engineer (Electrical) out of the sanctioned strength of Asst. Executive Engineer (Electrical). In view of the position, it was necessary to obtain concurrence of Finance Deptt. for up gradation of the post of Ex-cadre Asst. Engineer (Electrical) to the post of Asst. Executive Engineer (Electrical). However, the Finance Deptt. advised to dispose of the grievance of

the petitioner within following justification in order to comply the order passed in W.P.(C) No.18743/2019.

(i) The work charged Asst. Executive Engineer of Department of Water Resources were engaged prior to cut-off date of 12/04/1993 as NMR and were brought over to the Work Charged Establishment with govt. approval. So, their case is not exactly in the same footing to that of the instant case to compare.

(ii) The very engagement is as DLR the applicant was on DLR basis and was receiving consolidated remuneration on 10/05/1993 i.e. after the cut-off date 12/04/1993.

(iii) After the career progression benefit to the employee, he will be eligible to avail higher pay.

(iv) So, there is hardly any merit in upgrading the posts of the applicant to the post of Assistant Executive Engineer. Therefore, as per the view of the Finance Department, a speaking order was issued by O.P.No.1 vide O.O. No.28360100012014/RD on 16/03/2020 rejecting the prayer of the petitioner."

(Emphasis Supplied)

6. Mr. Routray, learned Senior Advocate for the

Petitioner submitted that the action of the Opposite Party to

reject the representation of the Petitioner as at Annexure-8 is

illegal, arbitrary and discriminatory and deserves to be set

aside directing the Opposite Party to extend the same

benefits, as was being extended to his counterparts vide

notification dated 14.05.2019 as at Annexure-5. Relying on

recent judgment of this Court dated 7th December, 2022

passed in W.P.(C) No.24000 of 2019 (Satyashri Mohapatra

vs. State of Odisha and others), which has been appended

to I.A. No.11225 of 2023 as at Annexure-10, and drawing

attention of this Court to the fact of the said case, Mr.

Routray submitted that in the said case also the Petitioner

namely, Satyashri Mohapatra, was appointed as an

NMR/DLR on 28.10.1994 i.e. well after ban order dated

12.04.1993 wherein this Court, taking into consideration the

similar stand taken by the State/Opposite Party, not only set

aside the impugned rejection order but also directed to release

all the service and financial benefits in favour of the said

Petitioner as has already been granted to his counterparts ,

within a stipulated period. Mr Routary further submitted that

the document, which was annexed as Annexure-8 to W.P.(C)

No.24000 of 2019, has been annexed to the present writ

petition as Annexure-5 and that the case of the Petitioner is

squarely covered by the said Judgment.

7. Learned Counsel for the State/Opposite Party,

reiterating the stand taken in the Counter Affidavit, submitted

that the appointment of the Petitioner being a daily wager and

that to after 12.04.1993, despite opinion of the Law

Department to the effect that there is no bar to upgrade the

post of the Petitioner to ex-cadre post of Asst. Executive

Engineer and approval of the said proposal by the Energy

Department, as has been detailed in the Counter Affidavit, in

view of the advice of the Finance Department, the authority

concerned was justified to reject the representation of the

Petitioner to treat him at par with his counterparts, as has

been claimed in the present Writ Petition.

8. As has been admitted in the Counter Affidavit,

pursuant to the order passed by the Tribunal in O.A.

No.3480(C) of 2013 and confirming order passed by this

Court in W.P(C) No.3314 of 2017, the Opposite Party No.1

after taking the advice of the Law Department, endorsed the

file to Finance Department as well as Energy Department for

their concurrence in order to implement the said order. After

concurrence of Finance Department & Energy Department,

the Petitioner was appointed as Ex-cadre Asst. Engineer

(Electrical) against the regular sanctioned post of Asst.

Engineer (Electrical) vide Rural Development Department

Office Order dated 23.12.2017. Subsequently, the

representation being given by the Petitioner, on being so

directed by this Court in the subsequent Writ Petition i.e.

W.P.(C) No.18743 of 2019, the matter being referred to the

Law Department for their views to upgrade the service of the

Petitioner to the rank of Asst. Executive Engineer like that of

9 (Nine) Asst. Engineers of Water Resources Department,

whose posts were upgraded to the post of Asst. Executive

Engineer (work charged) vide notification dated 14.05.2019

extending all services and financial benefits w.e.f. 21.03.2013.

The Law Department returned the file with the opinion that

there was no bar to upgrade the post of the Petitioner to ex-

cadre post of Asst. Executive Engineer to maintain the parity

amongst the similar situated employees of the Department, in

terms of mandate of equality enshrined in the Constitution.

The Energy Department, being the cadre controlling

Department in respect of Electrical Engineers, the file of the

Petitioner was endorsed for its concurrence for such

upgradation of the post of Ex-cadre Asst. Engineer to the post

of Ex-cadre Asst. Executive Engineer (Electrical). The proposal

of Rural Development Department was also approved by the

Energy Department with an observation that the Petitioner

may continue against Ex-Cadre Asst. Executive Engineer

(Electrical) out of the sanctioned strength of Asst. Executive

Engineer (Electrical). Hence, it was necessary to obtain

concurrence of the Finance Department for such upgradation.

Despite such view of the Law Department and concurrence of

the Energy Department, instead of according approval to deal

with and dispose of the representation of the Petitioner in a

positive manner and as per the judgment passed by the

Tribunal in O.As, as detailed above, so also confirming order

of this Court, without application of mind, the representation

of the Petitioner was rejected solely on the ground that his

engagement as DLR was after the cut-off date i.e. 12.04.1993.

9. From the above, so also in view of the judgment of

this Court in Satyashri Mohapatra (supra) which was

recently delivered relying on the judgments of the apex Court

in State of Karnataka and others vs. C. Lalitha, reported in

2006 1 SCR 971, Purnendu Mukhopadhyay and others vs.

V.K. Kapoor and another, reported in (2007) 7 Supreme 679

and State of Uttar Pradesh and others vs. Arvind Kumar

Srivastava and others, reported in 2015 1 SCC 347, this

Court is of the view that the case of the Petitioner is squarely

covered by the said Judgment and the impugned rejection

order dated 16.03.2020 as at Annexure-8 deserves to be set

aside. Accordingly, the same is hereby set aside.

10. The Opposite Party is directed to upgrade the post

of Assistant Engineer, which the Petitioner is holding at

present, to the post of Assistant Executive Engineer in terms

of the Notification dated 14.05.2019 (Annexure-5) and the

petitioner shall extend with all service and financial benefits,

as has been extended in favour of the Assistant Executive

Engineers in the Water Resources Department, within a

period of two months from the date of production/

communication of the certified copy of this judgment.

11. Accordingly, the Writ Petition stands disposed of.

No order as to cost.

12. Needless to mention here that if the financial

benefits in terms of the direction given by this Court is not

granted to the Petitioner within the stipulated time frame, the

same shall carry 8% interest from the date of Order till the

date of actual payment is made by the Opposite Party.

...................................

S.K. MISHRA, J.

Orissa High Court, Cuttack The 31st October, 2023 /Prasant

Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack.

Date: 02-Nov-2023 16:50:25