Orissa High Court
Ramachandra Pradhan vs ) Principal Secretary To Govt on 3 April, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.20770 of 2024
Ramachandra Pradhan ..... Petitioner
Represented By Adv. -
Umesh Chandra
Mohanty
-versus-
1) Principal Secretary To Govt , ..... Opposite Parties
Works Department
2) Principal Secretary, Rural Represented By Adv. -
Development Department Mr.Akshaya Pati,ASC
3) Engineer-in-chief, Rural Works
4) Engineer-in-chief (civil) , Works
Department
WP(C) No.21300 of 2024
Buddheswar Mahapatra ..... Petitioner
Represented By Adv. -
Umesh Chandra
Mohanty
-versus-
Principal Secretary To Govt , ..... Opposite Parties
Works Department
2) Principal Secretary, Rural
Development Department
3) Engineer-in-chief, Rural Works
4) Engineer-in-chief (civil) , Works
Department
Represented By Adv. -
Mr.Akshaya Pati,ASC
WP(C) No.21308 of 2024
Trilochan Nayak ..... Petitioner
Represented By Adv. -
Umesh Chandra
Mohanty
-versus-
Principal Secretary To Govt , ..... Opposite Parties
Page 1 of 12.
Works Department
2) Principal Secretary, Rural
Development Department
3) Engineer-in-chief, Rural Works
4) Engineer-in-chief (civil) , Works
Department
Represented By Adv. -
Mr.Akshaya Pati, ASC
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
Order No. 03.04.2025
01 1. This matter is taken up through Hybrid Arrangement
(Virtual /Physical Mode).
2. Heard learned counsel for the Petitioners as well as the
learned Additional Standing Counsel for the State. Perused
the Writ Petition as well as the documents annexed thereto.
3. All the three Writ Petitions involve a common question of
law, therefore, the same are being taken up for admission
hearing together.
4. The factual background of each of the Writ Petition has
been summarised as follows:
The Petitioner was initially appointed as an Assistant
Engineer (Estimator), R.W. Division-II against the existing
vacancy on temporary basis vide Notification dated
21.10.2016. Such appointment was on the basis of
unconditional undertaking given by the Petitioner that he shall
not claim any additional financial benefit and that no right shall
vest with him to claim regular appointment as Assistant
Executive Engineer in future. While working as such, the
Petitioner was transferred and permitted to function as
Assistant Executive Engineer in RW Sub-Division, Jajpur on
28.12.2018. Since 29.01.2019, the Petitioner was permitted to
function as Assistant Executive Engineer-in-charge for
supervision of works executed under OMBADC scheme in
NERW Circle, Keonjhar. Thereafter, with effect from
14.05.2019, the Petitioner and other similarly situated persons
have been extended with all services and financial benefits.
While the matter stood thus, the Petitioner was treated as
Assistant Engineer (Civil) with effect from 07.11.2022. On
26.07.2022, the Petitioner got his LPC and pay particulars as
Assistant Executive Engineer (Civil). Finally, vide order dated
13.07.2023 the Petitioner was transferred to R.W.Sub-
Division, Champua under R.W. Division-II, Keonjhar and
accordingly the Petitioner joined in duty on 26.07.2023.
Like the Petitioner in the first Writ Petition, the present
Petitioner was also appointed as Assistant Engineer and
posted against the post of Assistant Engineer (Estimator) at
R.W. Division-II against the existing and substantive vacancy
vide order dated 21.10.2016. While working as such the
Petitioner and other similarly situated persons have been
extended with all services and financial benefits with effect
from 14.05.2019. Thereafter, with effect from 07.11.2022 the
Petitioner was treated as Assistant Executive Engineer (Civil).
While working as such, the Petitioner, along with other
similarly situated persons, were promoted to the rank of
Executive Engineer (Civil) in the Pay Level-13 of Pay Matrix as
per the First Schedule of ORSP Rules, 2017 with effect from
02.08.2023. On 26.04.2024, the Petitioner submitted a
detailed representation before the Opposite Party no.2 with a
prayer to count his past service rendered in the grade of
Assistant Engineer as qualifying service for the purpose of
granting seniority and consequential service benefits, however
no decision has been taken on such representation of the
Petitioner as of now.
Like the other two Petitioners, the present Petitioner was
also initially appointed on temporary basis against the existing
and substantive vacancy in the post of Assistant Engineer
(Estimator) at R.W. Division-II, Bhubaneswar vide order dated
21.10.2016 subject to the terms and conditions mentioned in
the said letter. While working as such, similarly situated
persons have been extended with service and financial
benefits with effect from 14.05.2019. Thereafter, with effect
from 07.11.2022 the Petitioner was treated as Assistant
Executive Engineer (Civil). While working as Assistant
Executive Engineer (Civil)), the Petitioner along with other
similarly situated persons were promoted to the rank of
Executive Engineer (Civil) in the Pay Level-13 of Pay Matrix as
per the First Schedule of ORSP Rules, 2017 with effect from
02.08.2023. While the matter stood thus, the Petitioner
submitted a detailed representation before the Opposite Party
no.2 on 26.04.2024 with a prayer to count his past service
rendered in the grade of Assistant Executive Engineer with
effect from 21.10.2016 to 27.10.2022 as qualifying service for
the purpose of grant of seniority and consequential service
benefits in the grade of Assistant Executive Engineer (Civil).
However, no final decision has been taken on such
representation as of now.
5. On a careful analysis of the background of the aforesaid
three Writ Petitions filed by three different persons, it would be
very clear that the factual background of the three Writ
Petitions is almost identical. All the three Petitioners were
initially appointed on temporary basis vide order dated
21.10.2016 subject to the identical terms and conditions
mentioned in their initial appointment letters dated 21.10.2016.
Moreover, all the three Writ Petitions involve an identical
prayer for a direction to the Opposite Party no.2 to count their
past services rendered in the grade of Assistant Engineer as
qualifying service for the purpose of grant of seniority and
consequential service benefits in the grade of Assistant
Executive Engineer (Civil) and in subsequent higher grade of
Orissa Engineering Services. Thus, all the three Writ Petitions
involve a common question of law and are based on identical
factual background.
6. Mr.U.C.Mohanty, learned counsel for the Petitioners in all
the three Writ Petitions, at the outset, contended that the
Petitioners initially acquired diploma qualification in Civil
Engineering. Thereafter, they acquired B.Tech degree. In the
year 1997, the Petitioner was selected for appointment to the
post of Junior Engineer (Civil) by following due procedure of
selection as per the Rules and accordingly the Petitioners
joined in the Works Department, Government of Odisha. He
further contended that as per the policy decision of the State
Government the degree holders-Junior Engineers were
appointed against 5% quota on ad hoc basis with effect from
17.12.1996 and the unemployed Graduate Engineers/Stipend
Engineers were appointed as ad hoc Assistant Engineers
during October, 1998. Ultimately, in terms of the "Odisha
Service of Engineers Validation of Appointment Act, 2003" the
services of Stipendiary Engineers were regularised with effect
from 15.02.2003, whereas the Degree Holder-Junior
Engineers, who were appointed as ad hoc Assistant
Engineers with effect from 17.12.1996, were grossly
discriminated. Such discrimination was questioned by the
Degree Holders-Junior Engineer. Eventually, the matter
reached before the Hon'ble Supreme Court of India. By virtue
of the judgment of the Hon'ble Supreme Court in Amarendra
Kumar Mohapatra v. State of Odisha and others reported in
(2014) 4 SCC 589, all the ad hoc Assistant Engineers were
regularised with effect from 15.02.2003 including the ad hoc
Assistant Engineers, who were appointed against the 5%
quota and in the gradation list they were placed above the ad
hoc Stipendiary Engineers.
7. Mr.Mohanty, learned counsel for the Petitioners further
argued that the present Petitioners, being in-service Degree
Holder-Junior Engineers, would have been appointed during
December, 1996 as ad hoc Assistant Engineers. As such, they
raised their grievance before the competent authority and
claimed extension of benefit as Assistant Engineer, being
Graduate Engineers. Finally, the authority, while considering
the grievance of the Petitioners, issued Notification dated
21.10.2016 and extended the benefits of appointment as
Assistant Executive Engineer (Civil) and posted them against
their respective Division under Rural Works Department with
effect from 21.10.2016.
8. Learned counsel for the Petitioner further contended that
the Petitioner while working as Assistant Executive Engineers
were transferred to different places as desired by their
authorities and they were extended with financial benefits
available to the post of Assistant Executive Engineer (Civil)
and accordingly their pay also were revised from time to time.
The present Petitioners along with similarly situated other
persons were also given promotion on regular basis as per the
Rules, 2021 and they were also extended with the benefit of
scale of pay of Pay Level-12 of the pay matrix of the ORSP
Rules, 2017.
9. Learned counsel for the Petitioners further contended
that pursuant to the decision of the State Government, the
Graduate Engineers, who were initially appointed on
NMR/DLR basis, were given consolidated salary of Rs.7000/-
per month under the Works Department. Finally, pursuant to
the order passed by the leaned State Administrative Tribunal
dated 16.05.2018 in O.A.No.1036(C) of 2016 and
O.A.No.1089 of 2016, their services were regularised and they
have been extended with all services and financial benefits
vide Notification dated 14.05.2019. Thereafter, they were
given promotion vide Office order dated 02.12.2023 to the rank
of Executive Engineer (Civil) in the Pay Level-13 of pay matrix
as per the First Schedule of ORSP Rules, 2017.
10. In course of his argument, learned counsel for the
Petitioners drawing the attention of this Court to the grievance
of the Petitioners as contained in their representations before
the authorities, submitted that the Petitioners after their regular
promotion to the post of Assistant Executive Engineer (Civil)
approached the authority to count their past service with effect
from 21.10.2016 for grant of seniority and for further promotion
to the next higher post. Although such representations have
been filed by the Petitioners long since, however, the Opposite
Parties are sitting over the matter and they have not taken any
final decision on such representations as of now. Being
aggrieved by such inaction on the part of the Opposite Parties,
the Petitioners were compelled to approach this Court by filing
the present Writ Petition for redressal of their grievance.
11. On perusal of the records pertaining to the above noted
three Writ Petitions, this Court observes that initially notices
were issued by the coordinate Bench to the Opposite Parties
with a direction to the State counsel to obtain instruction and to
file their reply affidavit. Although no Counter Affidavit has been
filed by the State-Opposite Parties as of now. Today, when the
matter was listed for further hearing, both counsels for the
Petitioners as well as the learned Additional Standing Counsel
agreed that since the dispute involved in the present Writ
Petitions is pending before Opposite Party No.2 for taking a
final decision in the matter, the present Writ Petitions can very
well be disposed of by directing the Opposite Party Nos. 2 & 3
to take a final decision in the matter in accordance with law
and in terms of the ratio laid down by the Hon'ble Supreme
Court in various judgments involving similar issues, within a
stipulated period of time.
12. In course of his argument, learned counsel for the
Petitioners referred to the proposition of law laid down by the
Hon'ble Supreme Court in various judgments involving similar
issue. Mr.Mohanty, learned counsel for the Petitioners first
referred to the judgment in the case of The Direct Recruit
Class-II Engineering Officer's Associations & Others v.
State of Maharashtra & Others reported in AIR 1990 SC
1607. Referring to Pargraph-44 of the judgment, learned
counsel for the Petitioners submitted that the Hon'ble Supreme
Court in the said judgment has categorically held that although
the initial appointment was not made by following the
procedure laid down in the Rules, but the appointee continued
in the post uninterruptedly till the regularisation of his service
in accordance with the Rules. Therefore, the period of
officiating service will be counted towards seniority as
qualifying service.
13. Emphasis was also laid on the judgment of the Hon'ble
Supreme Court in Baleswar Dass v. State of U.P., reported
in AIR 1981 SC 41. Learned counsel for the Petitioners also
contended that a similar view has also been taken by the
Hon'ble Supreme Court in Baleswar Dass's case (supra).
Furthermore, the Hon'ble Supreme Court has categorically
held that the seniority in the service has been determined
according to the date of order of appointment and that it must
be in a substantive capacity. He also referred to the judgment
of this Court in Chandra Nandi v. State of Odisha and
others- reported in 2014(1) OLR 734 wherein this Court has
categorically held that the service rendered even on daily
wage or work charged basis shall be taken into consideration
and calculated towards qualifying services for grant of pension
and other consequential service benefits. Such judgment was
also eventually upheld by the Hon'ble Supreme Court.
14. In G.P.Doval v. Chief Secretary, Govt. of U.P. reported
in AIR 1984 SC 1527 as well as in S.Sumnyan v. Limi Niri
reported in AIR 2010 SC 2159, the Hon'ble Supreme Court
has held that the regularisation of service shall be counted
from the date of initial joining in the grade. In view of the law
laid down by the Hon'ble Supreme Court in the aforesaid
judgments, learned counsel for the Petitioners contended that
the period of service rendered by the Petitioners in the post of
Assistant Executive Engineer (Civil), with effect from
21.10.2016, be taken into consideration for calculating the
qualifying service for the purpose of grant of seniority and
consequential service and financial benefits as well as for
promotion to the next higher grade.
15 Learned Additional Standing Counsel for the State on the
other hand contended that although he has not received any
instruction in the matter, and no Counter Affidavit has been
filed by the State-Opposite Parties, however, the present Writ
Petition can be disposed of by directing the Opposite Party
Nos. 2 & 3 to consider the grievance of the Petitioners as
contained in their representations, strictly in accordance with
law and within a stipulated period of time. He also contended
that since the issue is pending before the State Government
and no final decision has been taken by the Government, it
would be fair and proper to direct the Opposite Parties to take
a lawful decision on the pending representations of the
Petitioners and he will have no objection in the event the same
is directed by this Court.
16. Having heard learned counsels appearing for the
respective parties, on a careful analysis of the factual
background of the present case, further on an analysis of the
submissions made by the learned counsels appearing for the
respective parties, this Court observes that the only issue
which is required to be considered for redressal of the
grievance of the Petitioners is as to whether the period of
service rendered by the Petitioners in the post of Assistant
Executive Engineer (Civil) with effect from 21.10.2016 to
29.08.2023 in the first Writ Petition and with effect from
27.10.2022 in other two Writ Petitions is required to be taken
into consideration while granting seniority and consequential
service benefits, including the promotion to the next higher
grade, to the Petitioners by the Opposite Parties? The
aforesaid issue is admittedly pending before the Opposite
Party Nos. 2 & 3 for consideration and no final decision has
been taken thereon. Therefore, this Court is of the view that it
is proper to direct the Opposite Parties to first take a decision
on the aforesaid issue before this Court considers the matter
on its own merit.
17. In such view of the matter, further keeping in view the
fact that the issue involved in the present Writ Petitions is
pending before Opposite Party Nos. 2 & 3 in the shape of their
representations, this Court deems it proper to dispose of the
aforesaid three Writ Petitions by directing Opposite Party Nos.
2 & 3 to consider the representations of the Petitioners
keeping in view the ratio laid down by the Hon'ble Supreme
Court in the aforesaid judgments as well as the relevant Rules
by passing a speaking and reasoned order within a period of
three months from the date of communication of certified copy
of this order by the Petitioners. It is open to the Opposite Party
Nos. 2 & 3 to provide an opportunity to the Petitioners, as well
as any other parties who are likely to be affected, before finally
disposing of the representations of the Petitioners in the
manner as has been directed hereinabove. Final decision so
taken be communicated to the Petitioners within 10 days from
the date of taking such decision. While disposing of the
present Writ Petitions, this Court makes it clear that no opinion
has been expressed on the merits of the matter. However, the
Opposite Parties shall do well to consider the case of the
Petitioners keeping in view the legal principles as have been
discussed herein above.
18. With the aforesaid observations, the entire three Writ
Petitions stand disposed of.
( A.K. Mohapatra )
Judge
RKS
Designation: AR-CUM-Senior Secretary
