Orissa High Court
Pramod Ranjan Dash And Others vs State Of Odisha & Others ... Opposite ... on 25 April, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) Nos.10985/2013,11195/2013 and 17295/2013
(Applications under Articles 226 and 227 of the Constitution of
India)
A.F.R. In W.P.(C) No.10985/2013
Pramod Ranjan Dash and others
... Petitioners
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr.J. Pattanaik,
Sr. Advocate,
Mr. S.S.Das, Sr. Advocate
Ms. S. Pattnaik, Advocate
-versus-
For Opposite Parties
: Mr. S.N.Patnaik, A.G.A
In W.P.(C) No.11195/2013
Sukadev Prusty and Ors.
... Petitioners
-versus-
Union of India & others ... Opposite Parties
W.P.(C) No.10985 of 2013 and batch Page 1 of 22
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. J. Pattnaik,
Sr. Advocate,
Ms. S.Pattnaaik, Advocate
-versus-
For Opposite Parties
: Mr. S.N.Patnaik, A.G.A,
Mr. P.K Parhi, DSGI along with
Mr. S. Patro, CGC for
(O.P No.-1& 4)
Mr. A. Saa, CGC for
(O.P No. 1 & 4)
In W.P.(C) No.17295/2013
Harekrushna Mishra & Anr.
... Petitioners
-versus-
Union of India & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. J. Pattnaik,
Sr. Advocate,
Mr. B. Mohanty, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
Mr. Bhaktilata Bal along with
Mr. Bimbisar Dash, CGC
(for O.P No.-1)
---------------------------------------------------------------------------
W.P.(C) No.10985 of 2013 and batch Page 2 of 22
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
25.04.2025.
Sashikanta Mishra,J. All these Writ Petitions involve common
facts and law and being heard together, are disposed of
by this common judgment.
2. The petitioners in all these Writ Petitions have
challenged the orders of disengagement w.e.f.
29.4.2013 of their services from different posts held by
them in the State Institute of Educational Technology
(SIET).
Facts.
3. The Government, with a view to promote
primary and secondary level education through audio
visual educational programmes initiated the
Educational Television Programme in the year 1980,
commonly known as ETV. Said programme was under
direct control of State Council for Educational
Research and Training (SCERT). The Central
Government, in its department of Human Resource
Development suggested grant of autonomy to the said
ETV in the year 1990. Consequently, the State
Government renamed the organization as SIET and
conferred it with autonomous status w.e.f. 1.1.1990.
Prior to coming into being of SIET, the Central
Government had sanctioned creation of 120 posts
pursuant to which the State Government created 118
posts under the INSAT Scheme at different times in
between 1983 to 1984. The petitioners were recruited
by a duly constituted selection committee through
open advertisement against the said substantive posts.
By resolution dtd.10.1.90, the State Government
converted SIET into an autonomous organization w.e.f.
1.1.1990 being registered under the Registration of
Societies Act, 1860. It was provided that the erstwhile
Education and Youth Services Department shall be the
administrative department of the Institute.
4. Be it noted that by a Notification dtd.15.5.1992,
the Government of India suggested that the regulations
of the State Government governing the conditions of
service applicable to the employees of the SIET
immediately before the conversion will continue to be
applicable unless specifically modified by the Managing
Committee. As such, the Governing Body of SIET, in
its 3rd meeting dtd.9.7.1992, resolved to adopt the
aforesaid recommendation and that till finalization of
the Rules to govern the SIET, the Rules of the
Government of Odisha as followed prior to grant of
autonomy would continue to govern the service
conditions of the employees. On 21.4.1995, the
Executive Committee of SIET, inter alia, resolved to
continue following the State Rules. Several other
decisions relating to post-to-post parity etc. were also
taken including extension of benefits of GPF as well as
pension to the employees.
5. While the matter stood thus, some employees
approached this Court in W.P.(C) No.4971/2008 for a
direction to the authorities to frame separate rules
and for grant of service benefits such as GPF and
pension. However, the State Government having
declared SIET to be defunct/closed w.e.f. 29.4.2013,
said Writ Petition became infructuous. Upon such
abrupt closure of SIET, the petitioners were informed
that they have been disengaged w.e.f. 29.4.2013. The
orders of disengagement are impugned in these Writ
Petitions. According to the Petitioners, such action of
the authorities is highly discriminatory since several
other employees of SIET were relocated in various
departments of the Government by treating them as
deputationists.
Stand of the State.
6. While admitting that the Government of India had
sanctioned 120 posts between 1983-84 to 1984-85 and
the creation of 118 posts in between 1983-84 to 1987-
1988, it was stated that only 63 employees were duly
recruited by the State Government by 31.12.1989.
These employees were treated as Government
employees being recruited vide Government Order
No.6923/EYS dated 14.2.1986 by the erstwhile
Education and Youth Services Department. The
employees who were engaged after 1.1.90 were treated
as autonomous employees as their engagement was
temporary and subject to continuance of the scheme.
Therefore, there is no question of any discrimination.
7. As regards the 63 employees, they having been
appointed against sanctioned posts were repatriated
and accommodated in different posts under
Departments as their continuance was not dependent
on the central scheme. Rather, they were appointed
against posts created and sanctioned prior to grant of
autonomous status of SIET w.e.f. 1.1.90. Further,
deputation of these 63 employees was sanctioned from
01.1.90 to 31.12.1999 vide Government letter
dtd.19.7.2002 and subsequently, the Government
sanctioned their deputation individually for the period
from 1.1.2000 to 31.3.2012 in the year 2020.
Therefore, the Petitioners cannot claim any parity with
these 63 employees.
Appearance.
8. Heard Mr. Jagannath Pattnaik, learned Senior
counsel with Ms. S. Pattnaik and Mr.S.S.Das, learned
counsel appearing for all the Petitioners and Mr. S.N.
Patnaik, learned Addl. Government Advocate for the
State.
Submissions
9. Mr. Pattnaik, learned Senior counsel, leading the
arguments on behalf of all the Petitioners, would argue
that the Petitioners having been appointed against
posts sanctioned and created prior to 01.1.90 cannot
be treated differently only because they were
appointed after 1.1.1990 though the status of the
institute changed, the source of appointment of the
Petitioners did not undergo any change inasmuch as
they were appointed against posts already in
existence prior to 1.1.1990. Furthermore, the
petitioners were appointed after successfully
undergoing a selection process. Only because the
Director of SCERT issued appointment orders in favour
of 63 employees cannot make them any more
Government employees than the petitioners. Mr.
Pattnaik further argues that the Petitioners were
recruited against the posts created on 30.4.1984,
14.2.1986 and 23.2.1988 by the erstwhile Education
and Youth Services Department specifically for the
SIET under the INSAT scheme. Since it had no
independent structure, SIET functioned under the
control of SCERT with its Director being the functional
authority of SIET. The post of Director was created on
24.8.1991 after the institute was granted functional
autonomy. Nevertheless, Education and Youth Services
Department continued to be the Administrative
Department of the Institute. Mr. S.S.Das, while
adopting the argument of learned Senior counsel
Mr. Pattnaik adds that some of the Petitioners were
appointed prior to 01.1.1990 namely, Petitioner Nos.2
and 8 in W.P. (C) No.11195/2013, in spite of which
they were treated as staff of the autonomous
organization. Referring to the letter dtd.19.7.2002, Mr.
Das would argue that the so-called deputationists were
absorbed in SIET permanently from 1.1.2000 and it
was specifically provided that under no circumstances
the period of deputation will be extended after
31.12.1999. As such, in the absence of any further
order, said 63 employees must also be deemed to have
been finally absorbed in SIET w.e.f. 01.1.2000, thus
becoming similarly placed as the Petitioners. The
Government cannot create a class within a class by
treating 63 employees as deputationists and the
remaining 24 employees as belonging to the
autonomous organization. The orders of appointment,
scale of pay and other service conditions of these two
sets of employees are same. Mr. Das also questions
the correctness of the decision of the Government to
close down the Institute for want of financial
assistance by submitting that as per information
received under the R.T.I. Act, the State Government
had received Rs.44 crores towards implementation of
ICT @ School Scheme from the Ministry of Human
Resource Development, Government of India.
10. Per contra, Mr. S.N.Patnaik, learned Addl.
Government Advocate, would argue that there is a
clear-cut demarcation as regards status of SIET before
01.1.1990 and after it, inasmuch as it used to function
under the SCERT, but after 1.1.1990, it became
autonomous. The status of the Institute having
undergone wholesale transformation, the claim of the
Petitioners, all of whom were appointed after 1.1.1990
cannot be considered with reference to the previous
period. Though 118 posts were created, State
Government had directly recruited only 63 employees
as on 31.12.1989. According to Mr. Pattnaik therefore,
only these person can be treated as Government
employees. On the other hand, those who were
engaged after 01.1.1990 are to be treated as
autonomous employees as their engagement was
temporary and specifically subject to continuance of
the scheme. There is, therefore, no discrimination in
the treatment of the Petitioners by the Government.
The 63 employees, who were appointed prior to
1.1.1990 were treated as deputationists with their
deputation being sanctioned by the Government from
1.1.1990 to 31.12.1999 and 1.1.2000 to 31.3.2012. As
per the decision taken on 15.4.2009 under the
chairmanship of Development Commissioner-cum-
Addl. Chief Secretary, the deputed staff were called
upon to give option if they want to continue in the
autonomous body of SIET or to revert back to the State
Government. An in house committee was formed to
look into the details of reversion of the deputed staffs,
who exercised their option. Since adequate posts were
not available under the S & M.E. Department, other
line Departments were requested and accordingly, the
63 employees were adjusted in different posts under
different departments. Mr. Pattnaik further argues that
the continuance of the 63 employees after 01.1.1990
was never dependent on the central scheme rather
they were appointed against posts created and
sanctioned prior to 01.1.1990. Since the Central
Government did not provide funds to the State
Government for providing the same directly into SIET,
the Government decided to close down the institution.
Accordingly, the petitioners were disengaged along with
other autonomous staffs.
11. Analysis and findings.
This Court has given its anxious consideration
to the contentions raised. The facts, as pleaded, are
not disputed inasmuch the petitioners (except
Petitioner Nos.2 and 8 in W.P.(C) No.11195/2013) were
appointed after 1.1.1990 SIET became an autonomous
organization w.e.f. 1.1.1990 being entirely funded by
the Central Government. It would be profitable to first
consider the nature of appointment of the 63
employees appointed prior to 01.1.1990. The State in
its counter has referred to the Government Order
No.6923/EYS dtd.14.2.1986 of the Education Youth
Services Department, whereby posts were created
against which the 63 employees were appointed at
different times. Some of the appointment orders have
been enclosed to the counter as Annexure-C/1.
Perusal of the appointment orders reveal that the
specific Government order regarding creation of posts
have been referred to therein. In contrast, the order of
appointment issued in respect of the Petitioners, copies
of which are enclosed as Annexure-D/1, reveals that
the same makes no reference to any Government order
regarding creation of the post and on the other hand,
mentions that the appointment is temporary subject
to continuance of the Scheme. As already indicated,
the State has harped upon this difference to segregate
the 63 employees appointed prior to 1.1.1990 with the
Petitioners, appointed after 1.1.1990.
12. Notwithstanding the fact that the appointment
orders issued in favour of the Petitioners contains no
reference to the corresponding Government order
regarding creation of posts, there is no gainsaying the
fact that such appointment could not have been made
against a non-existing post. The specific contention
raised by the Petitioners that, they too were appointed
against posts created by the State Government prior to
1.1.1990 has not been specifically disputed or denied
by the State Government. Further, SIET, though
become an autonomous organization, yet the unfilled
posts out of 118 posts created earlier were not
abolished nor any such posts were specifically created
for SIET to be filled up after 1.1.1990. It can therefore
be reasonably accepted that even the persons who
were appointed after 1.1.1990 were so appointed
against the posts already in existence being created by
the Government prior to 1.1.1990. According to the
State, the 63 employees who were in place as on
1.1.1990 were treated as deputations. What is the
meaning of deputationists? Odisha Service Code deals
with deputation under Chapter VIII covering Rules 212
to 231.
In the case of State of Punjab vs. Indersingh;
1997 (8) SCC 372, the Supreme Court explained the
concept of 'deputation' in the following words;
"Deputation has a different connotation in
service law and the dictionary meaning of the
word "deputation is of no help. In simple words
"deputation' means service outside the cadre or
outside the parent department, Deputation is
deputing or transferring an employee to a post
outside his cadre that is to say, to another
department on a temporary basis. After the
expiry period of deputation the employee has to
come back to his parent department to occupy
the same position unless in the meanwhile he
has earned promotion in his parent department
as per Recruitment Rules. Whether the transfer
is outside the normal field of deployment or not
is decided by the authority who controls the
service or post from which the employee is
transferred. There can be no deputation without
the consent of the person so deputed and he
would, therefore, know his rights and privileges
in the deputation post. The necessity for sending
on deputation arises in public interest to meet
the exigencies of public service, e.g, an
unexpected and natural calamity of floods might
necessitate employees from other departments to
be deputed to the Irrigation department for a
particular period. In the State of Mysore vs. MH
Bellary the Supreme Court explained that the
service of an officer on deputation in the
department to which he is deputed is equivalent
to service in the parent department."
13. Thus, ordinarily understood, 'deputation' means
a person appointed originally in a particular
department is assigned to work in another
institution/organization etc. After end of such
assignment (deputation), the employee is repatriated to
his 'parent department'.
14. Coming to the case at hand, admittedly the 63
employees appointed prior to 01.1.1990 by SCERT
were against substantive posts. By way of a legal
fiction they were treated to be on deputation to SIET
after the latter became an autonomous organization.
This Court, prima facie, finds nothing wrong in the
decision of the Government to treat the said employees
as deputationists, but then, in the absence of any
change occurring in the source of the posts against
which both the 63 employees as well as petitioners
namely, the different Government orders regarding
creation of posts between 1983 to 1988, there cannot
really be any distinction between these two sets of
employees as is being sought to be projected by the
State. As already stated, if the nature of SIET
underwent a change from 01.1.1990 thereby severing
its connection with its previous identity, then as a
natural corollary, separate posts should have been
created for its employees. On the contrary, persons
were appointed against substantive posts created when
the same organization was in existence, albeit in a
different form. The State has not been able to
satisfactorily explain as to against which posts, the
Petitioners were appointed, if not, against the posts
already in existence prior to 01.1.1990. This, in the
considered view of this Court, is the crux of the issue
and lends considerable weight to the contentions
advanced on behalf of the Petitioners that they have
been treated differently than the 63 employees.
15. This also has resulted in creation of a class
within a class which is impermissible in law. As long
as the source of appointment remains the same, i.e.
the substantive posts created by the Government, it
would be iniquitous to treat different employees
differently, as it would result in discrimination. The
discrimination is also all the more evident from the fact
that there is wholesale identity otherwise between
these two set of employees as regards their scale of
pay, service conditions etc. The only difference is that
the appointment of the Petitioners was made co-
terminus with the scheme. This Court is not concerned
with the correctness or otherwise of the decision of the
Government in closing down SIET as it falls within the
domain of its policy. But then, it is settled law that the
question of discrimination arises when by law or
executive action a classification is made within a class
whereby two or more classes born out of such
classification are treated unequal without any
justifiable reason. Specification of a cut-off date,
dividing the employees into two classes will be violative
of Articles 14 and 16 (1) of the Constitution if the
division is of a homogeneous class and without any
discernable reason or if no reason is disclosed.
Reference may be had in this regard to the
oft-quoted judgment of the Supreme Court in the case
of D.S. Nakara vs. Union of India; 1983 (1) SCC 305.
16. In the instant case, change in the nature of
organization is cited as the reason. Ordinarily, this
could be treated as a plausible reason justifying the
treatment of two sets of employees differently. But
then, as already noted, if, despite change in the nature
of the organization, appointments are continued to be
made against posts created for the same organization
in its previous avatar, the thread of continuity, though
slender, can be hardly denied. As such, this Court is of
the considered view that notwithstanding the language
employed in the appointment orders issued in favour of
the Petitioners, there is essentially no distinction
between them and the 63 employees appointed earlier.
What the State appears to have done is to treat the 63
employees differently while shutting its eyes in respect
of the petitioners. The fact that the abrupt closure of
the institute resulting in disengagement of the
petitioners would result in loss of their livelihood does
not appear to have been considered in the least before
issuing the orders of disengagement. While 63
employees have been adjusted against vacancies in
different departments, the petitioners have been shown
the door. From what has been narrated above, this
Court is convinced that these petitioners have been
unfairly dealt with. To recapitulate, the action of the
State would have been justified had proper steps been
taken for creation of posts specifically for SIET at the
relevant time that is, on and from 1.1.1990 when it
became autonomous. If the Government, in its wisdom
decided to continue with the same arrangement as
regards the posts, it cannot obviously turn around
later and wash its hands off the subsequent
appointees. It would be akin to the State questioning
its own action.
Summation
17. From a conspectus of the analysis of facts and
law and the contentions advanced, this Court holds
that the Petitioners having been appointed against
substantive posts created by the Government prior to
1.1.1990 and continuing in service for more than two
decades, cannot be disengaged by treating them
differently than the employees appointed prior to
1.1.1990. The attempt of the State to distinguish the
Petitioners from the 63 employees, if permitted, would
entail creation of a class within a class, which cannot
be countenanced in law. The petitioners and the 63
employees stand on the same footing except for the
condition of their appointment being co-terminus with
the scheme. If the 63 employees were adjusted against
different posts by applying the legal fiction of
deputation, there is no reason why the petitioners
should also not be appointed in similar fashion.
Conclusion.
18. In the result, the Writ Petitions succeed and are
therefore, allowed. The impugned orders of
disengagement are hereby set aside. The Opp. Parties
authorities are directed to adjust the Petitioners
against available vacancies in any
Department/Directorate of the State Government
granting them continuity of service and other service
benefits. Necessary orders in this regard should be
passed within three months from the date of
communication of this judgment or production of
certified copy thereof.
19. With these observations, the Writ Petitions are
disposed of.
..................................
Sashikanta Mishra,
Judge
Ashok Kumar Behera
Designation: A.D.R.-cum-Addl. Principal Secretary
Location: High Court of Orissa, Cuttack
Date: 29-Apr-2025 11:57:33
