Purna Chandra Kothia vs State Of Odisha & Ors. ..... Opposite ...
2024 Latest Caselaw 8527 Ori

Orissa High Court

Purna Chandra Kothia vs State Of Odisha & Ors. ..... Opposite ... on 7 May, 2024

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                WPC(OAC) No.2179 of 2017
Purna Chandra Kothia          .....      Petitioner
                                                 Mr. B. Dash, Advocate

                              -versus-
State Of Odisha & Ors.                   .....        Opposite Parties
                                                 Mr. M.K. Balabantaray, AGA

                   CORAM:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY

                              ORDER

07.05.2024

1. This matter is taken up through hybrid mode.

2. Heard Mr. B. Dash, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the Opp. Parties. None appeared for the Opp. Party No. 6 when the matter was called.

3. Petitioner has filed the present writ petition inter alia challenging order dtd.01.08.2017 so passed by Opp. Party No. 3 under Annexure-9. Vide the said order benefit of order dtd.20.06.2017 so issued under Annexure-4 by the self same Opp. Party No. 3 was cancelled until further orders.

4. It is the case of the Petitioner that Petitioner was engaged as a NMR Driver (LMV) w.e.f.01.11.1993. It is contended that taking into account his long continuance as a NMR w.e.f.01.11.1993, in the proceeding of the meeting held on 17.05.2017 under Annexure-2, a decision was taken to regularize him as against the post of Light Vehicle Driver in the Wages Establishment. Basing on the

proceeding of the meeting held on 17.05.2017 under Annexure-2, Petitioner was regularized as against the vacant post of Light Vehicle Driver under regular Wages Establishment vide Office order dtd.20.06.2017 under Annexure-4. It is contended that while continuing on such regular basis in terms of order issued under Annexure-4, the impugned order was passed on 01.08.2017 under Annexure-9.

4.1. Learned counsel for the Petitioner contended that since Petitioner taking into account his long continuance as NMR w.e.f.01.11.1993 was regularized as against the vacant sanctioned post of Light Vehicle Driver vide office order dtd.20.06.2017 under Annexure-4, there was no occasion to cancel the same and that too without assigning any reason whatsoever. It is also contended that by virtue of the interim order passed by the Tribunal initially on 09.08.2017 and further interim order passed by this Court, Petitioner is continuing in the promotional post of Light Vehicle Driver, but without regular salary as due and admissible. It is accordingly contended that the impugned order dtd.01.08.2017 so passed by Opp. Party No. 3 under Annexure-9 is not sustainable in the eye of law and requires interference of this Court.

5. Mr. M.K. Balabantaray, learned Addl. Govt. Advocate on the other hand while supporting the impugned order made his submission basing on the stand taken in the counter affidavit. The stand taken by Opp. Party Nos. 2 to 4 in Para 5 & 6 of the counter is reproduced hereunder:-

"5. That in reply to the averments made in para-6.2 of the writ petition, it is humbly submitted that the Regularization of NMR, DLR and Job Contract Workers is governed by the instructions contained in Resolution No. WFI-24/9722764/F

dated 15.05.1997 of Finance Department, Government of Odisha and Letter No. 27430 dated 22.11.2016 of Housing & Urban Development Department, Government of Odisha under Annexure-1 of the writ petition. Copy of the Finance Department Resolution No. WF1-24/97 22764/F dated 15.05.1997 is annexed herewith as Annexure-A/3

As per point no 1 resolution is follows:- of Finance Department

"Separate gradation /seniority list shall be prepared by the appointing authority for each category of workers determining the length of engagement of a particular person. The worker should have worked under the administrative control of the department concerned directly for a minimum period of 10 years. The engagement of 240 days in a year shall be construed as a complete year of engagement for this purpose.

As per point no-2 of Finance Department resolution as follows:-

The workers shall have been engaged prior to 12.04.1993 i.e. prior to promulgation of ban on engagement of NMR/DLR/Job contract workers etc. vide Finance Department Circular No. 17815/F dated 12.04.1993.

The petitioner was initially engaged as a NMR under P.H. Division, Berhampur after 12.04.1993, hence in the meanwhile, as per provision under above stated Rule he was not eligible to get the promotion to the next higher post.

6. That in reply to the averments made in para-6.3 of the writ petition, it is humbly submitted that the Departmental Promotion Committee on 17.05.2017 erroneously decided to fill up the post of Light Motor Vehicle Driver from out of the NMR/HR category workers engaged after 12.04.1993 overlooking the guidelines contained in Finance Department Resolution No. WFI-24/97 22764/F dated 15.05.1997 wherein it is clearly mentioned that workers engaged after 12.04.1993 have no scope of regularization and erroneously recommended the name of the petitioner, NMR for regularization against vacant post of Light Vehicle Driver under wages establishment in existing vacancy of P.H. Division, Berhampur.

Till the date of holding of Departmental Promotion Committee on 17.05.2017, the petitioner completed more than

10 years of engagement as NMR qualifying point No.-1 but he engaged on 01.11.1993 i.e. after 12.04.1993 promulgation of ban on engagement of NMR/DLR/Job Contract Workers etc. disqualifying point No-2 of Resolution No. WFI-24/97 22764/F dated 15.05.1997 of Finance Department, Government of Odisha. Hence the claims of the petitioner has not sustainable in the eyes of law.

It is humbly submitted that as per Govt. of Orissa, Finance Department Resolution dtd.15.05.1997 the workers who had been engaged after 12.04.1993 shall not be regularized. As per circular of Odisha F.D. No.17815/F, dtd.12.04.1993 it is notified not to engage those NMR employees on regular basis. The promotion committee considered his promotion on the basis of Govt. in the Deptt. of H & UD letter No.27430. dtd.22.12.2016 in which it is provided that the employees working under work charged employment prior to 12.04.1993 could be considered for regularization. But inadvertently the name of the petitioner was taken into consideration by oversight. Subsequently the order was cancelled as he did not fulfil the criteria. Hence the cancellation order is proper.

It is humbly submitted that as per gradation list under Annexure-3 of the writ petition, the petitioner is shown to be in Sl. No.5 and his date of joining as N.M.R. is 01.11.1993. The promotion committee by oversight issued the order, but subsequently the mistake had been noticed. Accordingly the authority cancelled the order. Thus no illegality is committed against the petitioner."

5.1. Basing on the stand taken in Para 5 & 6 of the counter affidavit, learned Addl. Govt. Advocate contended that since Petitioner was engaged as a NMR after the cut-off date i.e.12.04.1993, he was wrongly regularized vide order dt.20.06.2017 under Annexure-4. Subsequently, when it was detected that Petitioner's date of engagement being after the cut-off date, the order passed under Annexure-4 was cancelled vide impugned order dtd.01.08.2017 under Annexure-9. It is accordingly contended that no illegality has been committed by Opp. Party No. 3 in passing the impugned order under Annexure-9. However, learned Addl. Govt. Advocate does

not dispute the contention raised by the learned counsel for the Petitioner that by virtue of the interim order Petitioner is continuing in the promotional post as on date.

6. To the submission made by Mr. M.K. Balabantaray, learned Addl. Govt. Advocate, Mr. B. Dash, learned counsel for the Petitioner contended that even though Petitioner is engaged after the cut-off date, but in view of his long continuance w.e.f.01.11.1993, he was rightly regularized as against the vacant sanctioned post of Light Vehicle Driver vide order issued under Annexure-4. Since Petitioner was regularized as against a vacant sanctioned post, there was no occasion to cancel the same with issuance of the impugned order under Annexure-9.

6.1. It is also contended that the ground taken by the Opp. Party Nos. 2 to 4 in Para 5 & 6 of the counter in support of the impugned order are not the grounds while issuing the impugned order under Annexure-6 and the same cannot be accepted in view of the decision in the case of Mohinder Singh Gill & Anr. vs Chief Election Commissioner, reported in 1978 AIR 851. Hon'ble Apex Court in Para 8 of the Judgment in the case of M.S. Gill (Supra) has held as follows:-

"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16 (at p.18):

"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the

officer making the order of what he meant, or of what was in his mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

Orders are not like old wine becoming better as they grow older:

A Caveat".

7. Having heard learned counsel appearing for the Parties and considering the submission made, this Court finds that Petitioner was engaged as a NMR on 01.11.1993. Taking into account the vacancy available as against the post of Light Vehicle Driver in the proceeding of the meeting held on 19.05.2017 under Annexure-2, a decision was taken to regularize him as against the said vacant post. Consequentially, order of regularization was issued in favour of the Petitioner on 20.06.2017 under Annexure-4. But subsequently, as found from the record without assigning any reason the order issued under Annexure-4 was cancelled vide order dtd.01.08.2017 under Annexure-9.

7.1. Since the ground now raised by Opp. Party Nos. 2 to 4 in the counter was not the ground basing on which the impugned order was issued, this Court in view of the decision in the case of M.S. Gill is unable to accept the same. However, since Petitioner was regularized as against the vacant sanctioned post, this Court is of the view that Petitioner since was continuing as a NMR w.e.f.01.11.1993, he was also otherwise eligible to get the benefit of regularization in view of the decision of the Hon'ble Apex Court in the case of State of Karnataka & Ors. Vs. Umadevi & Ors. (AIR 2006 SC 1806), State of Karnataka & Ors. Vs. M.L. Keshari &

Ors. (2010 (9) SCC 247), Nihal Singh & Ors. Vs. State of Punjab & Ors. (2013 (14) SCC 65), Amarkanta Rai Vs. State of Bihar (2015 (8) SCC 265).

7.2. In view of the aforesaid analysis and taking into account the fact that Petitioner by virtue of the interim order is continuing in the promotional post as on date, this Court is inclined to quash order dtd.01.08.2017 so issued by Opp. Party No. 3 under Annexure-9. While quashing the same, this Court upheld the order originally issued in favour of the Petitioner on 20.06.2017 under Annexure-4. It is further observed that if Petitioner is continuing as against the promotional post as contended on the face of the impugned order, in view of the interim order passed by the Tribunal on 09.08.2017 and further order passed by this Court, differential salary as due and admissible be released within a period of three (3) months from the date of receipt of this order.

8. The writ petition is disposed of accordingly.

(BIRAJA PRASANNA SATAPATHY) Judge Sneha

Location: High Court of Orissa, Cuttack