Orissa High Court
Jayanta Kumar Mohanty vs State Of Odisha And Others .... Opposite ... on 4 January, 2024
Author: A.K.Mohapatra
Bench: A.K.Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.37918 of 2023
Jayanta Kumar Mohanty .... Petitioner
Mr. S.P. Jena, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. N. Pratap, A.S.C.
CORAM:
JUSTICE A.K.MOHAPATRA
ORDER
Order No. 04.01.2024
02. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical Mode).
2. Heard learned counsel for the Petitioner as well as
learned Additional Standing Counsel appearing for the State-
Opposite Parties. Perused the writ petition as well as the
documents annexed thereto.
3. The Petitioner has filed the present writ petition with the
following prayer:-
"Under the aforesaid facts and circumstances
of the case, it is_therefore, prayed that this Hon'ble
Court may graciously be pleased to issue a writ of
mandamus by quashing the order no.3088 dated.
19.4.2022 under Annexure-5 so far as the petitioner is
concerned.
And further be pleased to direct the opp.parties
to regularize the petitioner under regular
establishment with effect from the date of initial
appointment i.e. with effect from 10.1.1989
// 2 //
And further be pleased to direct the opp.parties
to direct the opp.parties to count his past service for
the purpose of pension and pensionary benefits.
Or pass such other order/orders as this Hon'ble
Court may deem fit and proper in the facts and
circumstances of the case."
4. It is submitted by the learned counsel for the Petitioner
that the Petitioner was initially appointed as daily wage worker
(NMR/DLR) under the RWS&S on 10.01.1989. Thereafter
while working as such, the Petitioner was brought over to the
work charged establishment w.e.f. 01.03.2009. While the matter
stood thus, the Petitioner earlier approached this Court by filing
W.P.(C) No.25460 of 2019 with a prayer for regularization of
his service as by then he has already discharged service in the
work charged establishment for the period exceeding 5 years. A
coordinate Bench of this Court vide order dated 20.12.2019
disposed of the said writ petition by directing the Opposite
Parties to consider the representation by taking decision thereof
within a period of one and half months. Since no decision was
taken, the Petitioner was compelled to file contempt petitions
bearing CONTC No.4029 of 2020, CONTC No.1064 of 2020
and Suo Motu CONTC No.2439 of 2022, which were disposed
of on 21.10.2020, 10.06.2020 and 22.12.2022 respectively.
Finally, on 4.1.2021, the Additional Secretary to Government,
P.R. & D.W. Department issued letter to E.I.C., RWS&WS
indicating therein that the Finance Department has approved
634 Group-'D' posts and 135 Group-'C' posts in the year 2018
for RWSS Wing under P.R. & D.W. Department. Pursuant to
the aforesaid decision of the P.R. & D.W. Department vide
// 3 //
letter dated 4.1.2021, a list of 452 Group-'D' posts keeping in
view their seniority of the new gradation list as well as ORV
Act was prepared. However, the name of the present Petitioner
was not included in the said list of 452 candidates whose name
were short listed in the Group-'D' post. Thereafter no list has
been prepared for remaining 182 Group-'C' posts as well as 135
Group-'D' posts.
5. Learned counsel for the Petitioner, at this juncture,
submitted that although services of similarly situated persons
have been regularized in the meantime w.e.f. 20.12.2022,
however, the case of the Petitioner has not been considered by
the authorities keeping in view the relevant circulars of the
Government as well as the decision of the P.R. & D.W.
Department vide letter dated 4.1.2021. Alleging discrimination
and arbitrary conduct of the Opposite Parties in not considering
the case of the Petitioner for regularizing of his service, the
Petitioner has approached this Court by filing the present writ
petition.
6. Learned Additional Standing Counsel appearing for the
State-Opposite Parties, on the other hand, contended that
recognizing the services of the Petitioner as a daily wage
worker who was initially appointed on DLR/NMR basis, the
Government had already taken a decision and the Petitioner has
accordingly brought over to the work charged establishment on
01.03.2009. However, the service of the employees, who are
working in the work charged establishment, are dependent on
// 4 //
availability of the vacancy as well as seniority of the persons,
who are already there in the list on work charged establishment
employees. He also contended that the case of the Petitioner
shall be considered subject to Petitioner fulfilling other criteria
as has been prescribed by the Government from time to time by
virtue of different circulars. In such view of the matter, learned
Additional Standing Counsel submits that the present writ
petition is pre-mature and the same should not be entertained at
this stage.
7. In reply to the submissions made by the learned
Additional Government, learned counsel for the Petitioner
referring to judgment of this Court in Banamali Mohanty v.
State of Odisha and others (W.P.(C) No.1459 of 2020 decided
on 28.1.2020) and in Ananta Prasad Das v. State of Odisha
and others (W.P.(C) No.9545 of 2020 decided on 11.5.2020),
submitted before this Court that in the case of employees who
are identical placed with the Petitioner and pertaining to the
very same RWS&S organization, a coordinate Bench of this
Court after hearing the learned counsels for both the sides by
virtue of the aforesaid orders disposed of the application by
directing the Chief Engineer, RWS&W, Odisha to regularize
the service of the Petitioner in their respective posts since the
date persons junior to him have been regularized and further a
direction was given to maintain the seniority of the Petitioner.
The coordinate Bench further directed that while considering
the case of the Petitioner in that writ petition, the Opposite
// 5 //
Parties shall calculate all entitlement of the Petitioner as a
regular employee and same to be released in favour of the
Petitioner along with interest and the entire exercise was
directed to be completed within a period of 1½ months.
Keeping in view the aforesaid decisions of the coordinate Bench
of this Court, the learned counsel for the Petitioner submitted
that the case of the Petitioner be considered by taking into
consideration the aforesaid decision by this Court.
8. Having heard the learned counsels appearing for the
respective parties and on a careful consideration of their
submissions as well as the materials on record, this Court deems
it proper to dispose of the writ petition at the stage of admission
by setting aside the impugned order dated 19.04.2022 passed by
the Opposite Party No.2 under Annexure-5 and further remand
the matter back to the Opposite Party No.2 to consider the case
of the Petitioner afresh keeping in view the order passed by the
coordinate Bench as referred hereinabove and in the event it is
found that the Petitioner stands in similar footing with the
Petitioner in the above noted writ petitions, then Opposite Party
No.2 shall do well to extend similar benefits in favour of the
Petitioner within a period of two months from the date of
communication of a certified copy of this order by the
Petitioner. The decision so taken be also communicated by the
Opposite Party No.2 to the Petitioner within a period of two
weeks from the date of taking such decision. Further, it is made
clear that in the event the Opposite Parties come to a conclusion
// 6 //
that the Petitioner in the present writ petition is entitled to the
relief as has been granted by this Court in the writ petition
referred hereinabove, then financial entitlement shall be given
to the Petitioner within a period of six weeks from the date of
taking such decision. However, the same shall be without
interest. In the event the Opposite Parties fail to give such
amount within the aforesaid time, then said amount shall carry
interest @ 8% per annum till the final payment is made.
9. With the aforesaid observation and direction the writ
petition is disposed of.
(A.K. Mohapatra)
Judge
Anil
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 08-Jan-2024 10:39:39
