Dheerendra Kumar Dash vs State Of Odisha And Others
2023 Latest Caselaw 10868 Ori

           ORISSA HIGH COURT: CUTTACK

                   W.P.(C) No. 7224 of 2016
                              ----

Dheerendra Kumar Dash                 .....        Petitioners
and others

                           -Versus-

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


   For Petitioners             :   Mr. P.K. Rath, Senior Advocate

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

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

           CORAM: JUSTICE SANJAY KUMAR MISHRA

Date of Hearing: 14.08.2023 : Date of Judgment:05.09.2023

S.K. Mishra, J.

The P etitioners, who are working as Yardmen o n

contract basis in the Reg ulated Mark et Committee,

Bargarh, shortly, RMC Bargarh since 2007, have

preferred the p rese nt Writ Petition for quas hing of the

Order dated 09.09.201 5 passed by the Collector-Cum-

Chairman, RMC, Bargarh (Opposite Party No.5), as at

Annexur e-1, whereby, their representation for

regularization of services against the vaca nt posts of Yardman wa s rejected. Also a prayer has been mad e

seeking for a directio n to the Opposite Party Nos. 4 and 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 intimated the

Chairman/Secretary, RMC, Bargarh that the Board has

been pleased to accord a pprova l for creation of posts in

different categ ories in favour of the RMC, Bargarh.

Pur sua nt to the said Order, the Secretary, RMC, Bargarh,

vide its Office Order No.7 54 dated 26.08.2007, as at

Annexur e-3, req uested to accor d necessary approval for

engagement of 45 numbers of contractual workers against

vacant posts from amongst the existing NMRs. On

31.08.2 007 proceeding of the Appointment a nd Promotion

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

the Sub-Collector-Cum-Chairman, RMC, Bargarh,

wherei n it was decid ed to engage the pr esent NMRs in the

vacant posts on contra ctual basis after obtaining d ue

approval from the OSAM Board. Thereafter, the OSAM

Board, vide Order dated 20.0 9.200 7, as at Annexur e-6,

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

Board and advised to observe d ue 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.953 dated

09.10.2 007, as at Annex ure-7, 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 co ntractual 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-8. The Secretary, vide his

letter dated 10.08.2008, submitted the said

representatio n to the General Manager, OSAM Board,

Bhuba neswar. On receipt of the said representatio n, the

General Manag er, OSAM Board, vide his letter dated

13.08.2 008, sought for certain clarification and

justification from the Secretary, RMC, Bargarh, for

regularization o f services of the contra ctual workers. I n

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

furnished necessary clarification assigning reasons for

regularization o f services of the Petitioners vide letter

dated 22.0 9.2008, as at Annexure-11. It is the further

case of the Petitioner s that after proper

verification/ clarification given by the Secr etary, RMC,

Bargarh, the General Manager, OSAM Board, vide Order

dated 27.09.20 08, as at Annexure-12, communicated to

the Secre tary, RMC, Bargarh regarding approval for

regularization o f 45 nos. of contractual workers by the

Chairper son, OSAM, Board ind icating therei n that after

regularization of the said staff, the expenditure sho uld be

within the prescribed limit fixed by OSAM Board and the

RMC, Bargarh was advised to obser ve d ue formalities in

the said r esp ect. Accordingly, the P etitioners' services

were regularized. In spite of such regularization, the

Petitioners were not treated as regular em ployees and

denied regular scale of pay.

4. The Petitioners, finding no other alternative remedy,

preferred W.P.(C) No.7907 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 Petitioners made representation to the A.D.M.-Cum-

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

rejected the said repr esentatio n in a mechanical manner

on 21.09.201 0. The Secretary of the Regulated Market

Committee vid e Memo No.2049 dated 2 1.09.2010,

communicated the same to the Petitioners.

5. Again, the Petitioners pr eferred W.P.(C) No.15278 of

2011 before this Cour t, which was disposed of vide Order

dated 27.07.2015 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 order within

six weeks. Pursua nt to said direction, the Petitioners

made representation to the O pposite Party No.5 within

the stipulated time. However, the Op posite Pa rty No.5,

vide Ord er dated 0 9.09.2015, rejected the representatio n

of the P etitioners solely on the ground that irregularly

recruited engagees cannot be regularized in blata nt

violation of settled recruitme nt norms and transgressio n

of provisions of ORV Act.

6. Being aggrieved by the said Order 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 noticed, the Opposite P arties, including the

State, tho ugh appeared but did not file any Counter

Affidavit. L earned Co unsel for the Petitioners submitted

that Opposite Party Nos. 3 and 4 filed a detail ed Co unter

Affidavit in the previo us Writ Petition preferr ed by the

present Petitioners i.e. W.P.(C) No. 15278 of 2011, whic h

has been a nnex ed to the Writ Petition as Annexure-2. The

said submission was not disp uted by Mr. Panda, learned

Counsel for the Opposite Party Nos. 3 and 4.

8. Heard Mr. Rath, learned Senior 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. He further submitted that the Petitioners ar e

four, out of forty-five contractual employees, whose case s

were duly ap proved by the Chairperso n for reg ularization

of their services. Accordingly, Mr. Rath, Senio r Counsel

for the Petitioners prayed for disposal of the pres ent case

in terms of the said judgment dated 21.07.20 23 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 O disha Reservation of Vaca ncies in Po sts

and Services (fo r Scheduled Castes and Sched uled Tribes)

Act, 1975, the r eserved po st under the said Act cannot be

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

services of the Petitioners ca nnot b e reg ularized i n the

concer ned posts.

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

Mr. Rath, learned Senior Co unsel for the Petitioners

submitted that in view of the specific provisions

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

is not applica ble to the Petitio ner s, who wer e appointed

as contractual employees against regular va cancies and

are continuing as such for years together, for which a

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

Mr. Rath further submitted that the Counter Affidavit

filed by the present Opposite Pa rty Nos.3 and 4, who were

Opposite Party Nos. 4 a nd 5 in the earlier Writ Petition

i.e. W.P.(C) No.1 5278 of 2 011, also substa ntiates the said

sta nd of the p resent Petitioners that while a ppointi ng

them o n co ntra ctual basis due compliance was made for

proper implementation of the ORV Act a nd at this

juncture suc h a submission ma de by Mr. Panda, contrary

to the stand ta ken in the earl ier Writ Petition, is not

entertai nable. He drew attention of this Court to

Paragraph-11 of the said Co unter Affidavit filed by the

present Op posite Party Nos. 3 a nd 4 in W.P.(C) No.15278

of 2011, as at Annexure-2, and submitted that it has

been admitted by the present Opposite Parties in the said

Counter Affidavit that while app ointing the Petitioners, it

was so done as per the pr evailing norms and prior

approval of the Authority co ncerned. Compl iance wa s

made to observe proper implementatio n of ORV Rules.

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

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 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 deponent humbly submits tha t the a ppointments of the pe titio ners 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 nece ssa ry c omplia nce wa s ma de to obse rve prope r imple me nta tion of O.R.V . Rule s. Be side s othe r e mployme nt Rul e s a nd proc e dures we re prope rly foll owe d. The de pone nt humbly submits a s it tra nspire s from the re c ords a va ila ble 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, which will be well within the prescribed limit f ixe d by the Boa rd."

(Empha sis supp li ed)

12. From the pl eadings made by the learned Counsel for

the Parties a nd on perusal of the judgment cited a bove,

this Court fi nds that the pr esent case is sq uarely covered

by judgment da ted 21. 07.2023 passed in W.P.(C) No.5668

of 2016 (Rabiratan Sahu and o thers vs. State of Odisha

and others).

13. Accordingly, the impugned Order dated 09.0 9.2015,

as at Annex ure -1, passed by the Oppo site Par ty No.5 is

her eby set asid e and quashed.

14. The Opposite Parties, more particularly, Opposite

Party Nos. 4 and 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-

12) 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

Signature Not Verified Orissa High Court, Cuttack Dated, 5 September, 2023/PCD th Digitally Signed Signed by: PADMA CHARAN DASH Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-Sep-2023 18:11:14