Deepak Suna And Another vs State Of Odisha And Others
2023 Latest Caselaw 10865 Ori

           ORISSA HIGH COURT: CUTTACK

                  W.P.(C) No. 11670 of 2016
                              ----

Deepak Suna and another           .....           Petitioners


                          -Versus-

State of Odisha and others        .....           Opposite Parties


   For Petitioners            :   Mr. S.D. Routray, Advocate

   For Opp. Parties           :   Mr. G.N. Rout (ASC)
                                     (O.P. Nos. 1, 2 and 5)

                                  Mr. P.K. Panda, Advocate
                                     (O.P. Nos. 3 & 4)

          CORAM: JUSTICE SANJAY KUMAR MISHRA

Date of Hearing: 25.07.2023 : Date of Judgment:05.09.2023

S.K. Mishra, J.

The Petitioner s, who are working as Sweeper/Labour

on contract ba sis in the Regulated Market Committee,

Bargarh (RMC), Bargarh, have preferred the present Writ

Petition for quashing of the Order dated 09.09.2015

passed by the Collector-Cum-Chairman, RMC, Bargarh

(Opposite Party No.5), as at Annexure-14, whereby, their

representatio n for regularization of servi ces against the

vacant po sts of Sweeper/La bour was rejected. Also a prayer has been made seeki ng for a direction to the

Opposite Party Nos. 2 to 5 to regularize their services and

extend all such benefits, a s is d ue and admissible to the

said posts.

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

the Sta te Government under the Orissa Agricultur e

Produce Market Act, 1956, shortly, Act, 1956, established

Market Committee i n every area in respect of agricultur e

produce. For superintendenc e over such Market

Committee, by Notification in Official Gazette, a Board

called the Orissa Sta te Agri cultural Mark et Board,

shortly, OSAM Board, was establ ished under Section 18-A

of the Act, 19 56. The OSAM Board vide Office Order

No.4106 dated 03.08.2 007, as at Annex ure-1, intimated

the Chairman/ Secretary, RMC, Bargarh that the Board

has been pleased to a ccord approval for creatio n of po sts

in different categories in favo ur of the RMC, Bargarh.

Pur sua nt to the said Ord er, the RMC, Bargar h, vide its

Office Order No.754 dated 26.08 .2007, as at Annexure-2,

requested to accord necessary approval for enga gement of

45 num ber s of contra ctual workers against va cant posts

from amongst the existing NMRs. On 31.08.2007

proceeding of the Appointment a nd Promo tion Sub-

Committee of RMC, Bargarh was held in the Of fice of the

Sub-Collector-Cum-Chairma n, RMC, Bargarh, wherein it

was decided to engage the present NMRs in the va cant

posts on co ntractual ba sis after obtaining due approval

from the OSAM Board. Thereafter, the OSAM Board, vide

Order dated 2 0.09.2007, as at Annexure-5, intimated the

RMC, Bargarh about the approval of the proceeding of the

Sub-Committee of RMC, Bargarh by the Hon'ble Minister,

Co-operation-Cum-Chairperson, OSAM Boar d and advised

to obser ve due formalities.

3. Pur sua nt to the Resolution of the Appoi ntment and

Promotion Sub- Committee of RMC, Bargarh and approval

of OSAM Board, Bhuba neswar, the Sub-Collector-Cum-

Chairman, RM C, Bargarh vide Ord er No.956 dated

09.10.2 007, as at Annex ure-6, appointed the Petitioners

against the vacant posts on contra ctual basis with

consolidated salary. Since then, the P etitioners ar e

discharging their services on contractual basis. When no

step was ta ken for regularization of the ser vices of the

Petitioners, they made representatio n dated 05.08.2008

to the Chairma n, RMC, Bargarh through the Secretary,

RMC, Bargarh, as at Annexure-7. The Secretary, vide hi s

letter dated 10.08.2008, submitted the said

representatio n to the General Manager, OSAM Board,

Bhuba neswar. On receipt of the said represe ntation, the

General Manager, OSAM Board, vide his letter dated

13.08.2 008, sought for certain clarification and

justification fr om the Secretary, RMC, Bargarh, for

regularization o f servi ces of the contractual workers. I n

respo nse to the said letter, the Secretary, RMC, Bargarh,

furnished necessary clarification assigning reasons for

regularization o f servi ces of the Petitioners vide letter

dated 22.09.2008, as at Annexure-10. It is the further

case of the Petitioner s that after proper

verification/ clarification given by the Secretary, RMC,

Bargarh, the General Manager, OSAM Board approved the

proposal of regularization of all 45 numbers of

contractual workers incl udi ng the P etitioners vide letter

dated 27.0 9.200 8, as at Annex ure-11 and communicated

to the Secretar y, RMC, Bargarh regarding approval for

regularization o f 45 nos. of contractual workers by the

Chairper son, OSAM Board indicating ther ein that after

regularization of the said staff, the expenditure sho uld b e

within the prescribed limit fixed by OSAM Board and the

RMC, Bargarh was ad vised to obser ve d ue formalities in

the said resp ect. Accordingly, the Petitioners' ser vices

were reg ularized. In spite of such r egularization, the

Petitioners were not treated as regular em ployees and

denied regular scale of pay.

4. The Petitioners, finding no other alternative re medy,

preferred W.P.(C) No.7906 of 2010. This Court, by its

Order dated 06.07.20 10, disposed of the said Writ

Petition by directing the Petitioners to file fresh

representatio n before Oppo site Party No.5. Accordingly,

the Petitioners made repr esentation to the A.D.M.-Cum-

Chairman, RMC, Bargarh. T he Opposite Party No.5

rejected the said repr esentatio n in a mechani cal manner

on 20.08.201 0. The Secr etary of the Regulated Market

Committee vid e Memo No.2 049 dated 21.09.2010,

communicated the same to the Petitioners.

5. Again, the Petitioners pr eferred W.P.(C) No.15280 of

2010 before this Court, which was disposed of vide Order

dated 2 7.07.2015 with a direction to file a fresh

representatio n before the Authority within ten days from

the date of passing of the said Order a nd the Authority

concer ned was directed to co nsider and pass or der within

six weeks. Pursua nt to said direction, the Petitioners

made representation to the Opposite Party No.5 within

the stipulated time. However, the Oppo site Party No.5,

vide Ord er dated 09.09.20 15, r ejected the representation

of the P etitioners solely on the ground that irregularly

recruited engagees cannot be regularized in blatant

violation of settled recruitme nt norms a nd transgression

of provisions of ORV Act.

6. Being aggrieved by the said Or der dated 09.09 .2015

passed by the Opposite Party No.5, the P etiti oners have

approac hed this Court with the prayers as detailed above.

7. Being noti ced, the Opposite P arties, including the

State, tho ugh appear ed, b ut did not file any Counter

Affidavit. L earned Co unsel for the Petitioners submitted

that the Opposite Party Nos. 3 and 4 filed a detailed

Counter Affidavit in the previo us Writ Petitio n preferred

by the present Petitioners i.e. W.P.(C) No.1528 0 of 2011,

which has been annexe d to the Writ P etition as

Annexur e-12. The said submission was no t disputed by

Mr. Panda, lear ned Co unsel for the Opposite Party Nos. 3

and 4.

8. Heard Mr. Routray, learned Counsel for the

Petitioners, Mr. G.N. Rout, learned Ad ditional Standing

Counsel for Opposite Party Nos. 1, 2 and 5 and Mr.

Panda, lear ned counsel for Opposite Party Nos. 3 and 4.

9. Learned Co unsel for the Petitioners submitted that

the case of the Petitioners is identical to the case of the

Petitioners in W.P.(C) No.5668 of 2016, which was

disposed of vid e a detailed judgment dated 21.07.20 23

passed by this Court. He fur ther submitted tha t the

Petitioners ar e two out of forty-five contractual

employees, whose cases were duly approved by the

Chairper son for regularization of their ser vices.

Accordingly, Mr. Routray pra yed for disposal of the

present ca se in terms of the said judgment dated

21.07.2 023 passed in W.P.(C) No .5668 of 2016.

10. Mr. Panda submitted that tho ugh no Co unter

Affidavit has been filed by his clients, as per Sections 6

and 7 of the Odisha Reservation of Vacancies in Po sts

and Services (for Sched uled Castes and Scheduled Tribes)

Act, 1975, the r eserved post under the said Act cannot be

de-reserved for general ca ndi dates a nd as such, the

services of the Petitioners cannot be reg ularized in the

concer ned posts.

11. In response to such submissio n made by Mr. Panda,

Mr. Routray, learned Co unsel for the Petitio ners

submitted that in view of the specific provisions

enshrined under Section 3(d) of the ORV Act, the said Act

is not applicable to the Petitio ner s, who were appointed

as contractual employees against regular vacancie s and

are co ntinuing as such for years together, for which a

prayer ha s been made for reg ularization of their services.

Mr. Routray further submitted that the Counter Affidavit

filed by the present Opposite Party Nos. 3 a nd 4, who

were Opposite Party Nos. 4 and 5 in the ea rlier Writ

Petition i.e. W.P .(C) No.15280 of 20 11, also sub stantiates

the said sta nd of the pr esent Petitioners that w hile

appointing them on contractual basis due compliance wa s

made for proper implementa tion of the ORV Act. He drew

attention of this Cour t to P aragraph-11 of the said

Counter Affida vit filed by the pr esent Opposite Party Nos.

3 and 4 in W.P. (C) No.15280 of 2011, as a t Annexur e-12,

and submitted that it has been admitted by the present

Opposite Parties in the said Counter Affida vit that while

appointing the Petitioners, it was so do ne as per the

prevailing norms and prior approval of the Authority

concer ned. Compliance was made to observe proper

implementation of ORV Rules.

Paragraphs No s. 1 and 11 of the said Counter

Affidavit, being germane to the oral argument advanced

by Mr. Panda, learned Co unsel for Opposite Party Nos. 3

and 4, are extracted below:

"1. Tha t I a m the Secre ta ry of the Re gula ted Ma rket Committee a nd I ha ve bee n arra ye d a s opposite pa rty No.4 in the present writ pe titio n. I ha ve been duly a uthorize d to swea r this a ffida vit on beha lf of opposite party No.5, Cha irma n of the Re gula ted Ma rke t Committe e, Ba rga rh (here in a fte r referred a s "R.M.C ." in short).

11. Tha t the deponent humbly submits tha t the a ppointments of the petitioners were done a s pe r the preva iling norms a nd prior a pprova l of the Boa rd wa s duly obta ine d & in course of the ir e ngage me nt ne ce ssa ry c omplia nce was ma de to obse rve prope r imple mentation

of O.R.V. Rule s. Be side s othe r e mployme nt Rul e s a nd proce dures were prope rly followe d. The de pone nt humbly submits a s it tra nspire s from the re c ords a va ila ble in the offic e of the de pone nt that the re c ruitment proc e dure followe d for e ngageme nt of the pe titione r wa s reg ula r one a nd was ma de as pe r la w a nd in vie w of re lax ation ma de unde r A nnexure -B/4, the se pe titione rs c la im re quires to be c onside re d in prope r pe rspec tive by this Hon'ble Court a nd the de pone nt humbly submits in c a se the ir appointme nt is re g ula rize d, a dequa te funds ca n be ma de a va ila ble by pr ope r budg e ta ry a lloca tions for disburse me nt of sa la ry c ompone nts in fa vour of the pe titione rs, which will be well within the prescribed limit f ixe d by the Boa rd."

(Emphasis supplied)

12. From the plea dings made by the learned Couns el for

the Parties a nd on perusal of the judgm ent ci ted a bove,

this Co urt finds that the present case is sq uar ely covered

by judgment dated 21. 07.20 23 passed in W.P.(C) No.5668

of 2016 (Rabiratan Sahu and others vs. State of Odisha

and others).

13. Accordingly, the impugned Order dated 09.09. 2015,

as at Annex ure-14, pas sed by the Opposite Par ty No.5 is

her eby set asid e and quashed.

14. The Opposite P arties, more particularly, Opposite

Party Nos. 2 to 5 are directed to regularize the services of

the P etitioners with effect from 27.09. 2008 i.e. the da te

on which the G eneral Manager, Orissa State Agricultural

Marketing Boa rd, Bhubaneswar communicated the

Secretary, R.M.C., Bargarh (Annex ure-11) to regularize

the services of the Petitioner s, and to grant them all

conseq uential service and fina ncial b enefits, as due and

admissible, by making d ue cal culatio n ther eof within a

period of four months from the date of communication of

the certified copy of this judgment.

15. The Writ Petition stands allowed and dispo sed of.

No order as to cost.

(S.K. MISHRA) JUDGE

Orissa High Court, Cuttack Dated, 5th September, 2023/PCD

Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Sep-2023 18:11:15