Paresh Kumar Khamari vs State Of Odisha And Others
2023 Latest Caselaw 10867 Ori

           ORISSA HIGH COURT: CUTTACK

                  W.P.(C) No. 10534 of 2016
                              ----

Paresh Kumar Khamari                .....           Petitioners
and others

                          -Versus-

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


   For Petitioners              :    Mr. B. Sahoo, 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 Odia Typist, Weigh

Bridge Operator, Electrician-Cum-Pum p Driver and Paddy

Cleaner Operator on contra ct basis in the Regulated

Market Committee (RMC), Bargarh, have preferred the

present Writ Petition for quashi ng of the Order dated

09.09.2 015 passed by the Collector-Cum-Chairman, RMC,

Bargarh (Opposite Party No.5), as at Annex ure-13, whereby, their representa tion for regularization of

services against the vacant posts of Odia Typist, Weigh Bridge

Operator, Electrician-Cum-Pump Driver and Paddy Cleaner

Operator was rejected. Also a prayer has bee n mad e

seeking for a direction to the Opposite Party Nos. 2 to 5

to regularize their services and exte nd all such benefits,

as is due and ad missible to the said posts.

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

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 superintendence over such Mark et

Committee, by Notification in Official Gazette, a Board

called the Orissa State Agricultural Market 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 Annexure-1, intimated

the Chairman/ Secretary, RM C, Bargarh that the Board

has been pleased to a ccord ap proval for creatio n of posts

in different categories in favour of the RMC, Bargarh.

Pur sua nt to the said Ord er, the RMC, Barga rh vide its

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

requested to accord necessary approval of OSAM Boar d,

to fill up 45 numb ers of vaca nt posts o n co ntractual

basis from amongst the existing NMRs. On 31.08.2007

proceeding of the Appointment and Promotion Sub-

Committee of RMC, Bargarh was held in the Office of the

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

was decided to engage the pr esent 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 20.09.2007, a s at Annexure-5, intimated the

RMC, Bargarh a bout the ap proval of the proceeding of the

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

Co-operation-Cum-Chairperson, OSAM Board a nd advised

to obser ve due formalities.

3. Pur sua nt to the Resolution of the Appointment and

Promotion Sub-Committee of RMC, Bargarh and approval

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

Chairman, RMC, Bargarh vide Ord er No.950 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 servi ces on contractual basis. When no

step was taken for regularization of the services of the

Petitioners, they made representatio n dated 05.08.2008

to the Chairman, RMC, Bargarh through the Secretary,

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

letter dated 10.08.2008, submitted the said

representatio n to the General Manager, OSAM Board. On

receip t of the said representati on, the General Manager,

OSAM Board, vide his letter da ted 13.08.20 08, soug ht for

certai n clarification and justification from the Secretary,

RMC, Bargarh, for regularization of services of the

contractual workers. I n response to the said l etter, the

Secretary, RMC, Bargarh, furnished necessary

clarification assigning rea sons for regulari zation of

services of the Petitioners vide letter da ted 2 2.09.2008,

as at Annexur e-10. It is the further case of the

Petitioners tha t after proper verification/cl arification

given by the Se cretary, RMC, Bargarh, the General

Manager, OSAM Board, vide letter dated 27.09.2008,

approved the proposal of regula rization of 45 numbers of

contractual workers incl udi ng the Petitioners and

communicated the Secretary, RMC, Bargarh reg arding the

approval of the said proposal for regularization of 45 nos.

of contractual workers by the Chairperson, OSAM, Board

indicati ng therein that after r egularization of the said

staff, the exp enditure should be within the prescribed

limit fixed by OSAM Board. The RMC, Ba rgarh was

advised to observe d ue formalities in the said respect.

Accordingly, the Petitioners' ser vices were reg ularized. In

spite of such regularization, the Petitioners were not

treated as reg ular employees and denied their regular

scale of pay.

4. The Petitioners, finding no other alternative remedy,

preferred W.P.(C) No.7904 of 2010. This Court, by its

Order dated 06.07.20 10, disposed of the said Writ

Petition by directing the P etitioners to file fresh

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

the Petitioner s made representation before the Collector-

Cum-Chairman, RMC, Bargarh. The Oppo site Party No.5

did not consider the said repres entatio n of the

Petitioners.

5. Again, the Petitioners wer e c onstrained to prefer

W.P.(C) No.152 81 of 2011 b efore this Co urt, which was

disposed of vide Order dated 27.07.2015 with a directio n

to file a fresh representa tion before the Authority within

ten day s from the date of passing of the said Order and

the Authority concerned was directed to co nsider a nd

pass order within six weeks. Pursua nt to said direction,

the P etitioners made r epresentation to the Opposite Party

No.5 within the stipulated time. However, the Opposite

Party No.5, vide Order dated 09.09.2015, as a t Annexur e-

13, rejected the representa tion of the Petitioners solely

on the ground that irreg ularly recruited engagees cannot

be reg ularized in blatant violation of settled recruitment

norms and transgression of provisions of ORV Act.

6. Being aggrieved by the said Order dated 09.09 .2015

passed by the Opposite Party No.5, as at Annex ure-13,

the Petitioners have approached this Co urt with the

prayers as detailed above.

7. Being noticed, the Opposite P arties, including the

State, tho ugh a ppear ed but cho se not to file any Counter

Affidavit till the date of final hearing. On bei ng ask ed,

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

and 4, submitted that a copy of the Counter Affidavit

filed by the Board earlier in W.P.(C) No.15281 of 2011

preferred by the present Petitio ner s has b een annexed to

the Writ Petitio n as Annexur e-14 detailing therein the

sta nd of the Boa rd (Opposite Party Nos. 3 and 4).

8. Heard Mr. Sahoo, learned Counsel for the

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

Counsel for Opposite Party Nos. 1, 2 a nd 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 vide a detailed judg ment dated 21.0 7.202 3 by

this Co urt a nd, as such, the present ca se may be

disposed of in terms of the said judgme nt.

10. Admittedly, when the matter got listed on

09.01.2 023, bei ng admitted by the lear ned Counsel for

the Parties, i ncl uding the learned Co unsel for the

contesting Oppo site Par ty Nos. 3 and 4 that the prese nt

Writ Petition is identical to W.P.(C) No.5668 of 201 6,

liberty was granted to the learned Co unsel for the

Petitioners to move for listing of the present Writ Petition

immediately after prono uncement of the judgment pa ssed

in W.P.(C) No.5668 of 2016. Li berty being so given, on

being mentioned, the matter wa s taken up on 25.07.20 23

and after hearing the learned Counsel for the Par ties,

pronouncement of order/judgment was reserved.

11. Paragraphs Nos. 1 a nd 11 of the Co unter Affidavit

filed by the present Opposite Party Nos. 4 and 5 in

W.P.(C) No.1528 1 of 2011 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 o pposite 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 Regula ted Ma rket Co mmitte e, Ba rga rh (here in a fte r referred a s "R.M.C ." in short).

           11. Tha t the de ponent humbly su bmits
           tha t     the   appointments       of    the
           pe titione rs  were   done    as   pe r  the

pre va iling norms a nd prior a pprova l of the Boa rd wa s duly obta ine d & in c ourse of the ir eng age me nt nec e ssa ry c omplia nce wa s ma de to obse rve prope r imple mentation of O.R.V . Rule s. Be sides othe r e mployment Rule s a nd proc e dure s we re prope rly followe d. The de pone nt humbly submit s a s it tra nspire s from

the rec ords a va ilable in the office of the de pone nt that the rec ruitme nt proc e dure followe d for e ng ageme nt of the pe titione r wa s reg ula r one a nd wa s ma de as pe r la w a nd in vie w of re lax ation ma de unde r A nnex ure -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 and the de pone nt humbly submits in c a se the ir a ppointme nt is re g ula rize d, a dequa te funds ca n be ma de a va ila ble by prope r budg e ta ry a lloca tions for disburse me nt of sa la ry c ompone nts in favour of the pe titione rs, whi c h will be we ll within the pre sc ribe d limit fix e d by the B oa rd."

(Empha sis supp li ed)

12. In view of the facts d etailed ab ove, this Co urt finds

that the present case is sq uarel y covered by the judgment

dated 21.0 7.2023 passed in W.P.(C) No.5668 of 2016

(Rabiratan Sahu a nd others vs. State of Odisha and

others).

13. Accordingly, the impugned Order dated 09.0 9.2015,

as at Annex ure-13, passed by the Opposite Party No.5 is

set a side.

14. The Opposite Parties, more particularly, Opposite

Party Nos. 2 to 5 are directed to regularize the ser vices

of the Petitioners with effect from 27.09.2 008 i.e. the

date on which the General Manager, Orissa State

Agricultural Marketing Board, Bhubaneswar

communicated the Secretary, R.M.C., Bargarh (Annexur e-

11) to reg ularize the services of the Petitio ners, and to

grant them all conseque ntial service and financial

benefits, as d ue and admis sible, by mak ing due

calculation 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