Khirod Biswal vs State Of Orissa And Another ....... Opp. ...
2025 Latest Caselaw 7557 Ori

Orissa High Court

Khirod Biswal vs State Of Orissa And Another ....... Opp. ... on 25 April, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

            `IN THE HIGH COURT OF ORISSA AT CUTTACK

                        W.P.(C) No. 3570 of 2025

        Application under Articles 226 & 227 of Constitution of
        India.
                                    ---------------

        Khirod Biswal                                 ......              Petitioner


                                     - Versus -



        State of Orissa and another                   .......          Opp. Parties



        Advocate(s) appeared in this case:-
        _____________________________________________________________
           For Petitioner(s)      : M/s. S. Mohanty, K.Patra
                                    S.K. Acharya & S.R. Mohanty,
                                    Advocates

           For Opp. Parties          : Mr. S. Behera
                                       [Addl. Government Advocate]

        ___________________________________________________________
        CORAM:
             JUSTICE SASHIKANTA MISHRA

                                JUDGMENT

25.04.2025

SASHIKANTA MISHRA, J. The sole point that arises for

consideration in this writ petition is whether the order of

reengagement, followed by treating the period of absence

from duty as no work no pay, amounts to break in service.

2. Facts of the case lie in a narrow compass. The

petitioner was working as Gram Rozgar Sevak (GRS) having

been engaged with effect from 03.02.2009. He was

disengaged from his duties on 07.05.2021 by the order of

the Collector on the ground of certain illegal activities. He

preferred an appeal against the order of disengagement

before the Director, Special Projects, who remanded the

matter to the Collector for fresh consideration. The Collector

on re-consideration of the matter was of the view that the

petitioner has to furnish an undertaking in shape of affidavit

that he will not indulge in any illegal activities while

discharging his duty as GRS. As such, by order dated

23.12.2021, the Collector while rescinding the order of

disengagement, directed reengagement of the petitioner as

GRS on execution of agreement with further direction that

the period of absence from duty shall be treated as no work

no pay. While the matter stood thus, the Odisha

Accountant-cum-DEO (Method of Recruitment & Conditions

of Service), Rules -2024 came into force providing therein a

one-time absorption of eligible Gram Rozgar Sevaks in the

regular post of Accountant-cum-Data Entry Operator. The

petitioner, even though eligible, was not considered by the

selection committee, which published the list of eligible

candidates on 21.06.2024. The petitioner challenged the

lists before this Court in W.P.(C) No.29888 of 2024, which

was disposed of by order dated 02.12.2024 granting liberty

to him to submit representation to the Collector. Pursuant

to such order, the Collector passed a speaking order on

04.01.2025 rejecting the representation of the petitioner on

the ground that he had not completed five years of

continuous service as on 27.02.2024 having been

disengaged on 07.05.2021 and re-engaged on 31.12.2021.

Challenging such order, the petitioner has approached this

Court seeking the following relief:-

"The petitioner, therefore, prays that your lordship would graciously be pleased to admit this petition, call for the records and after hearing the parties be pleased to quash the rejection order dated 04.01.2025 under Annexure-5

And further be pleased to direct the authority to appoint the petitioner as ADEO (Accountant-cum-DEO) on the basis of the Gazette notification dtd 27.02.2024 vis-à-vis as per select list dtd 21.06.2024.

And pass any other and/or further order as deemed fit and proper under the circumstances of the case.

And for this act of kindness the petitioner as in duty bound shall for ever pray."

3. Stand of the State authorities as reflected in the

counter filed by the CDO-cum-EO, Zilla Parishad is that as

per the proviso to Rule 10(1) of 2024 Rules, one time

relaxation of the rules is provided for absorption of the

Gram Rozgar Sevaks, who have completed five years of

continuous service on the date of commencement of the

Rule on a regular basis. However, the petitioner was

disengaged with effect from 07.05.2021 and re-engaged on

31.12.2021 with no financial benefits and by executing a

fresh agreement. There is thus, a break in service for the

period from 25.01.2021 and 31.12.2021, during which

period he was neither paid any remuneration nor was the

gap period regularized.

4. Heard Mr. Srinibas Mohanty, learned counsel for

the petitioner and Mr.S. Behera, learned Addl. Government

Advocate for the State.

5. Mr. Mohanty would argue that once the order of

disengagement is rescinded and the petitioner was re-

engaged, it automatically implies continuity in service,

though without any pay. The petitioner must therefore, be

deemed to have been continuing in service from the date of

disengagement till re-engagement notionally. Non-payment

of remuneration is immaterial in this context. Mr. Mohanty

therefore, argues that the interpretation of the period in

question by the Collector is entirely erroneous and contrary

to his own order of rescinding the order of disengagement.

6. Mr. S. Behera, learned State Counsel, on the

other hand, would argue that GRS does not occupy any civil

post. Such engagement is contractual in nature and subject

to executing agreement by the person concerned. In the

instant case, the petitioner was re-engaged upon executing a

fresh agreement. Therefore, it has to be treated as a fresh

engagement with a clear break in service.

7. The facts of the case are not disputed. Reading of

the order passed by the Collector on 23.12.2021 reveals that

after considering the facts and circumstances was of the

view that the petitioner has to furnish an undertaking in

shape of affidavit that, he will not indulge in any illegal

activities while discharging his duty GRS. Accordingly, the

order of disengagement dated 07.05.2021 was rescinded

and he was directed to be re-engaged by executing

agreement. The period of absence was to be treated no work

no pay. The relevant portion of the order passed by the

Collector is reproduced below:-

"Keeping in view of the prayer of Sri Khiord Biswal and views of the BDO, Raghunathpur I do hereby dispose of the matter with the following order:

Sri Khirod to be reengaged as GRS with the condition that, he has to furnish an Undertaking in shape of affidavit that, he will not indulge in any illegal activities while discharging his duty as GRS. And to perform the assigned to him by the Authority/Govt. sincerely. To execute the agreement as per the provisions of Comprehensive Guideline dated 06.04.2018.

And the period of termination/ disengagement will remain as such with no financial benefit."

8. Pursuant to such order, an office order was

issued on 31.12.2021 by the Project Director re-engaging

the petitioner with specific observation that the

disengagement period is treated as no work no pay. It has

been argued that the above implies break in service as

firstly, the petitioner was not remunerated for the work done

during that period and secondly, the re-engagement was

upon execution of a fresh agreement. It is not disputed that

the Gram Rozgar Sevaks are engaged on contractual basis

from year to year by executing agreements. The proviso to

Rule 10 (1) of 2024 Rules reads as follows:-

"Provided that as a one time measure, by way of relaxing the provisions of this Rule, those GRS who have completed 5(five) Years of continuous service on the date of the commencement of this Rule, shall be absorbed on regular basis against vacant posts of Accountant-cum-Date Entry Operators subject to fulfillment of other conditions of service and relaxation of upper age limit, if required. Subsequent vacant posts created in the cadre of Acct-cum-DEO shall be filled up as per the provisions prescribed in the Rules." (Emphasis added)

If the second line of the argument as referred

above is accepted then each years' engagement would be

treated as a fresh engagement and there would be nothing

called 'continuous service' for a GRS as referred to in the

proviso quoted above. That apart, if it was intended to be a

fresh engagement altogether, there was no necessity much

less occasion to make any reference to his past service,

which was specifically treated as no work no pay. All that

the above implies is that the petitioner, though was re-

engaged, will not be entitled to any pay for the period of his

disengagement.

9. The matter can be viewed from another angle.

What is the effect of rescission of the order of

disengagement? It is akin to setting aside the order of

disengagement. Again, had it been the intention to give him

fresh engagement, there was no necessity of rescinding the

order of disengagement. Once the order of disengagement is

rescinded, it means there is no order of disengagement in

existence. If that be so and the Collector himself makes the

reengagement subject to no work no pay, it can only be a

case of notional continuity of the petitioner as GRS. The

fact that he executed a fresh agreement is of no

consequence vis-à-vis the requirement of continuous service

as contemplated under the 2024 Rules.

10. For the foregoing reasons therefore, the reasoning

adopted by the Collector to reject the claim of the petitioner

for absorption on the ground of not completing five years

continuous service is untenable and therefore, cannot be

sustained.

11. From a conspectus of the analysis made above,

this Court holds that the impugned order, for the reasons

specifically indicated, cannot be sustained and is therefore,

quashed. The opposite parties-authorities are directed to

consider the case of the petitioner for absorption as

Accountant-cum-Data Entry Operator as per the provision

of the 2024 Rules by passing appropriate order within one

month from today.

                                                           (Sashikanta Mishra)
                                                                  Judge




         Signed High Court, Cuttack,
Signed by: BHIGAL    CHANDRA TUDU
Reason:The    25th April, 2025/ B.C. Tudu, Sr.Steno
          Authentication
Location: Orissa High Court, Cuttack
Date: 29-Apr-2025 11:49:47