Orissa High Court
Biswaranjan Panigrahi vs Govt. In Panchayati Raj & on 6 February, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 13017 of 2018,
W.P.(C) No.15082 of 2020,
W.P.(C) No.21256 of 2021
&
W.P.(C) No. 29309 of 2022
Applications under Articles 226 & 227 of Constitution of India.
---------------
AFR W.P.(C) No. 13017 of 2018
Biswaranjan Panigrahi ...... Petitioner
- Versus -
Govt. in Panchayati Raj &
Drinking Water Department & anr. ....... Opp. Parties
W.P.(C) No.15082 of 2020
Laxman Sarbhang & ors. ...... Petitioners
- Versus -
State of Odisha & anr. ....... Opp. Parties
W.P.(C) No.21256 of 2021
Laxman Sarbhang & ors. ...... Petitioners
- Versus -
State of Odisha & anr. ....... Opp. Parties
W.P.(C) No. 29309 of 2022
Suratha Suna & ors. ...... Petitioners
- Versus -
State of Odisha & anr. ....... Opp. Parties
Advocate(s) appeared in these cases:-
________________________________________________________
For Petitioner(s) : M/s. Biswabihari Mohanty, J.N. Panda,
M. Harichandan, B. Tripathy &
B. Samantaray, Advocates.
[in W.P.(C) No. 13017 of 2018 ]
Page 1 of 27
M/s. Jyotirmay Gupta, P.P. Rao &
S. Sahoo, Advocates,
[in W.P.(C) No. 15082 of 2020 &
W.P.(C) No.21256 of 2021]
M/s. S.K. Samal, S.P. Nath, S.D. Routray,
S. Sekhar & J. Biswal, Advocates.
[in W.P.(C) No. 29309 of 2022 ]
For Opp. Parties: Mr. S.N. Pattnaik,
Addl. Government Advocate
M/s. B.P. Tripathy, R. Achary, T. Barik,
N. Barik, B. Hidyatullah, A. Pati & S.R.
Ojha, [O.P. No.2 in W.P.(C) No. 13017 of 2018]
M/s. Jyotirmay Gupta, P.P. Rao &
S. Sahoo, Advocates
[for intervener in W.P.(C) No. 13017 of 2018]
Mr. Prasanjeet Mohapatra, Advocate
[O.P. No.3 in W.P.(C) No. 15082 of 2020].
Amicus Curiae : Mr. P.K. Rath, Sr. Advocate
Ms. Pami Rath, Sr. Advocate
_________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
th
6 February, 2025
SASHIKANTA MISHRA, J. All these writ applications involve a
common question of fact and law and as such, they were
heard together and are being disposed of by this common
judgment.
FACTS
2. An advertisement was published by the Collector-
cum-DPC, DRDA Subarnapur on 30.06.2018 inviting
applications from intending candidates for their appointment
as Gram Rozgar Sevaks (GRS) in different Gram Panchayats
of Subarnapur District. 19 posts were notified, of which 5
were reserved for SC and 14 for ST candidates. Said
advertisement, inter alia, mentioned that the „post‟ of GRS
under Mahatma Gandhi National Rural Employment
Guarantee Scheme (MGNREGS) is contractual and the
engagement would be initially for a period of one year, which
can be extended on the basis of satisfactory performance and
recommendation by the concerned Block Development
Officer. It also mentioned that the provisions of Odisha
Reservation of Vacancies in Posts and Services (for Scheduled
Castes and Scheduled Tribes) Act, 1975 (in short "ORV Act")
and Rules formulated thereunder shall be strictly followed.
3. Prior to publication of the advertisement, the
Government in the Department of Panchayati Raj and
Drinking Water formulated comprehensive guidelines for
selection and engagement of GRS under MGNREGS as per
Notification dated 06.04.2018. Among other things, it was
provided that the provisions of ORV Act shall be strictly
followed in the selection of GRS and that GRS will form a
district cadre. Pursuant to the advertisement and upon
submission of applications by the intending candidates,
selection was made and on 03.12.2018, a final list was
prepared. After verification of documents produced by the
selected candidates, a revised final merit was published.
4. While the matter stood thus, one Biswaranjan
Panigrahi, a person belonging to the general category, has
filed W.P.(C) No.13017 of 2018 challenging the guidelines as
well as advertisement mainly on the ground that the
principles of reservation could not have been applied to all
the 19 posts notified to be filled up. The following relief has
been claimed in the said writ application:
"Under the above circumstances it is humbly prayed
that this Hon'ble Court may graciously be pleased to
issue a writ in appropriate nature to quash the
Advertisement dated 30.6.2018 so far as the decision to
reserve all 19 posts in favour of reserved category and
direct the respondents to issue advertisement afresh
maintaining the ceiling limit of 50% as per the settled
position of law pertaining reservation or treating all the
posts as unreserved being single posts in different gram
Panchayats of Subarnapur district and consider the
candidatures of all eligible candidates irrespective of
category for such selection and this Hon'ble Court may
further be pleased to quash the guidelines dated
06.04.2018 issued by Panchayatraj Department so far
as the decision to apply the provisions of ORV Act and
Rules to the selection of GRS and making the post of
GRS is District Cadre concerned.
Any other order/ orders, direction/directions as
would be deemed fit and proper be issued in the interest
of justice and equity."
5. On the other hand, the petitioners in the other two
writ applications i.e., W.P.(C) No.15082 of 2020 and W.P.(C)
No. 21256 of 2021 having been selected pursuant to the
above advertisement, filed those writ applications because of
the delay in issue of engagement orders in their favour.
6. Be it noted that the petitioners in W.P.(C) No. 15082
of 2020 had earlier approached this Court in W.P.(C) No.
21777 of 2019, which was disposed of by order dated
21.11.2019 by directing the Collector to take a decision on
the representation filed by them. Pursuant to such order, the
Collector vide order dated 27.12.2019 held that the
engagement of GRS is not possible at present as this Court
has passed an interim order in the writ application filed by
Biswaranjan Panigrahi being W.P.(C) No. 13017 of 2018. As
such, the petitioners have filed W.P.(C) No. 15082 of 2020
seeking the following relief:
"The petitioners therefore humbly (sic) pray that the
Hon'ble Court may be graciously pleased to admit this
case, issue notice to opposite parties for show cause
and after hearing both the sides may be pleased to
issue a writ in nature of mandamus/certiorari with a
direction to the opposite parties particularly to O.P. No.-
2 i.e. Collector, Subarnapur to take immediate steps to
issue appointment letters as per selection list published
vide advertisement No.275 dated 17.01.2019 vide
Annexure- 2 series for the post of Gram Rozgar Sevak
(GRS) in Subarnapur district on the basis of the earlier
order of this Hon'ble court vide Annexure-4 by modifying
the order passed by Collector, Subarnapur vide
Annexure- 5 within a stipulated period with cost.
And to pass such other order or direction as this
Hon'ble Court deems just, fit, equitable and proper in
the facts and circumstances of the present case."
7. While the matter stood thus, the Collector,
Subarnapur issued another advertisement on 24.03.2021
inviting applications for engagement of GRS in different GPs
of the district Subarnapur. 25 posts were notified, of which,
10 were reserved for SC, 11 for ST and 4 for unreserved
candidates. Challenging the aforesaid advertisement, the
petitioners in W.P.(C) No. 15082 of 2020 have again
approached this Court in W.P.(C) No. 21256 of 2021 seeking
the following relief:
"The petitioners therefore humbly(sic) pray that the
Hon'ble Court may be graciously pleased to admit this
case, issue notice to opposite parties for show cause
and after hearing both the sides may be pleased to
issue a writ in nature of mandamus/certiorari with a
direction to the opposite Parties particularly to O.P. No.-
2 to take immediate steps to give appointment as per
selection list published in advertisement No. 275 dated
17.01.2019 vide Annexure- 2 series for the post of Gram
Rozgar Sebhak (GRS) in Subarnapur district by
quashing the present advertisement i.e. Advertisement
dated 24.03.2021, vide Annexure-6 within a stipulated
period with cost.
And to pass such other order or direction as this
Hon'ble Court deems just, fit, equitable and proper in
the facts
and circumstances of the present case.
And for which act of kindness, the petitioners as in
duty bound shall ever pray."
8. The other writ petition, being W.P.(C) No. 29309 of
2022 has been filed by the candidates selected pursuant to
the advertisement dated 30.06.2018 claiming the following
relief:
"It is therefore, most humbly prayed that this Hon'ble
Court be graciously pleased to
i) Admit the writ application.
ii) Call for the record.
iii) Issue a writ in the nature of Mandamus by directing
the opp. parties to issue necessary engagement order for
the post of GRS on the basis of their rank in the select
list which was prepared pursuant to their advertisement
dated 30.06.2018 and further direction may be issued
to extend all financial and service benefits in favour of
the petitioners within a reasonable time to the stipulated
by this Hon'ble Court.
iv) And/or pass such other or der/orders,
direction/directions as this Hon'ble Court may deems fit
and proper for the ends of justice.
And for the said act of kindness, the petitioners as in
duty bound shall ever pray."
9. Thus, out of the four writ applications so filed,
three, being W.P.(C) No. 15082 of 2020, W.P.(C) No. 21256 of
2021 and W.P.(C) No.29309 of 2022 are filed by the
candidates selected pursuant to the advertisement dated
30.06.2018, who are aggrieved by non-issuance of
engagement orders in their favour. On the other hand, the
petitioner in W.P.(C) No.13017 of 2018 is an outsider, who
challenges the advertisement as well as comprehensive
guidelines on the ground that all the posts notified could not
have been reserved for SC and ST Category.
10. In view of the importance of the issue involved, this
Court requested the assistance of two senior Counsel Ms.
Pami Rath and Mr. P.K. Rath as Amicus Curiae.
11. Heard learned counsel, Mr. B.B. Mohanty for the
petitioner in W.P.(C) No.13017 of 2018; Mr. J. Gupta for the
petitioners in W.P.(C) No.15082 of 2020 and W.P.(C) No.
21256 of 2021; and Mr. S.K. Samal for the petitioners in
W.P.(C) No. 29309 of 2022 and also Mr. S.N. Pattnaik,
learned Addl. Government Advocate for the State in all the
cases.
Submissions against the Advertisement dated 30.06.2018
and comprehensive guidelines dated 06.04.2018
12. Mr. B.B. Mohanty, learned counsel for the petitioner
seeks to assail the guidelines dated 06.04.2018 in so far as
the same provides for application of the provisions of the
ORV Act and making the GRS a district cadre post and
consequently the advertisement dated 30.06.2018 in so far
as it provides for reservation of all the 19 posts notified on
the following grounds:
(i) GRS is not a civil post as per OCS (CCA) Rules, 1962
nor under the Mahatma Gandhi National Rural
Employment Guarantee Act, 2005.
(ii) Admittedly, GRS is a contractual engagement as per
comprehensive guidelines as also the advertisement
renewable from year to year.
(iii) Section 3(d) of the ORV Act specifically bars
applicability of the said Act to contractual posts.
(iv) Section 19 of the ORV Act gives overriding effect to
the Act as against any Rule, order, guidelines etc.
Therefore, any guidelines issued by the Central
Government or the State Government to the contrary
has no force of law.
13. Admittedly, 109 „posts‟ of GRS were available in
Subarnapur district, all of which being single „posts‟ were
filled up without adhering to the principle of reservation at
the relevant time. The impugned advertisement intends to
retrospectively apply the principle of reservation to the said
„posts‟, which is not permissible in law. Moreover, the
comprehensive guidelines dated 06.04.2018 itself provides
for its prospective application only.
Submissions supporting the advertisement and
comprehensive guidelines.
14. Mr. S.N. Pattnaik, learned Addl. Government
Advocate, supported by Mr. J. Gupta, and Mr. S.K. Samal,
learned counsel appearing for the petitioners in other three
writ applications, has made the following submissions.
(i) GRSs are engaged on contractual basis in each Gram
Panchayat for execution of work, which is co-terminus
with MGNREG Scheme. Finance Department concurred
in the creation of 6234 posts of GRS on 22.09.2014 and
after reorganization of Gram Panchayats in 2017, it
again concurred in the creation of 567 new posts, taking
the total number of posts to 6801.
(ii) There are 96 Gram Panchayats in Subarnapur
district prior to reorganization, which increased to 109
after reorganization. The circulars issued by the
Government in 2006 and 2013 relating to GRS have lost
their force in view of the issuance of the comprehensive
guidelines dated 06.04.2018.
(iii) Out of the 109 GRS posts in Subarnapur District,
only 9 SC, 29 UR and 50 SEBC category persons are in
position. There is thus, a deficit of 9 SC and 25 ST
candidates and surplus of 10 belonging to UR and
SEBC taken together. Therefore, there is no question of
filing up the vacancy of UR or SEBC category as only 19
posts of GRS were available. Thus, the claim of the
petitioner regarding exceeding 50% ceiling of reservation
and of making 100% reservation is factually incorrect.
(iii) At the relevant time, there being only one post of
GRS in each Gram Panchayat, there was no application
of reservation but after becoming a district cadre post it
was found that there was no proper representation of
the reserved category candidates, for which the
impugned advertisement was issued only to make good
the shortfall so as to ensure proper representation of all
communities.
(iv) Though initially, the GRS was a single post but now
it has been clubbed up and a district cadre has been
formed. Further, for appointment of the village level
workers as per Orissa Village Level Workers
(Recruitment and Conditions of Service) Rules, 2008,
30% of the vacancies are to be filled up by selection
from amongst GRS.
Submissions by Amicus Curiae
15. Ms. Pami Rath, learned Senior Counsel submits that
Article-16(4) and (4-A) of the Constitution are enabling
provisions conferring power on the State to provide
reservation. No one can claim reservation as a Fundamental
Right by virtue of Article 16(4) of the Constitution of India.
Ms. Rath, has referred to the judgment of the Supreme Court
in the Case Mukesh Kumar v. State of Uttarakhand1, in
this regard. She further submits that exercising its legislative
(2020) 3 SCC 1
power, the State of Odisha enacted ORV Act making it
applicable to all posts under the State excluding certain
categories of posts as laid down in Section 3 thereof. Section-
3(d) excludes the applicability of the Act to contractual posts.
That apart, Section 19 has an overriding effect over all other
Rules, resolutions etc. GRS being a contractual engagement,
the provisions of the ORV Act cannot be made applicable as
the same would run contrary to its provisions. Ms. Rath
further submits that there is no question of retrospectively
applying reservation to a post which itself was not subject to
reservation at the relevant time. Ms. Rath concludes her
argument by submitting that reservation is always in respect
of the post and not the employee and further, reservation
does not mean that the reserved category candidate cannot
compete for the unreserved seats.
16. Mr. P.K. Rath, learned Senior Counsel would submit
that there is no provision in the Constitution or in any other
law for retrospective application of the principles of
reservation. Further, reservation is a benefit claimed by a
candidate. The State cannot force reservation upon a
candidate. Since in the instant case the concerned persons
were appointed admittedly when there was no reservation,
the State cannot subsequently segregate them on the basis of
the social categories to which they belong and apply the
principle of reservation suo motu at this distance of time. In
any case, the posts being contractual in nature, they stand
automatically excluded from the purview of the ORV Act and
in view of the overriding provision of Section 19, the State
has no power to make the Act applicable by an
executive/administrative decision.
Analysis and findings
17. The concept of reservation flows from Article-16 of
the Constitution, Clause-4 of which confers power on the
State to make provision for reservation of appointments or
posts in favour of any backward class of citizens, which in
the opinion of the State, is not adequately represented in the
services under the State. As argued by Ms. Rath, learned
Amicus Curiae, it is basically an enabling provision utilizing
which the State can make laws to provide for reservation to
the backward classes. For instance, the State of Odisha has
enacted ORV Act to provide for reservation in appointment to
members of the SC and ST communities. It is thus, a positive
benefit conferred by the legislature drawing power from the
Constitutional provision but then, reservation is not
automatic but a right to be claimed by persons belonging to
the reserved categories. Unless a claim is laid it is not for the
State to provide the benefit to a person only because he
belongs to a particular social category. This is being said for
the reason that it is open to persons of all social categories to
compete on merits without claiming reservation. In the case
of Mukesh Kumar (supra), the Supreme Court observed as
follows:
"12. Articles 16(4) and 16(4-A) do not confer fundamental
right to claim reservations in promotion [Ajit Singh
(2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S)
1239] . By relying upon earlier judgments of this Court, it
was held in Ajit Singh (2) [Ajit Singh (2) v. State of Punjab,
(1999) 7 SCC 209 : 1999 SCC (L&S) 1239] that Articles
16(4) and 16(4-A) are in the nature of enabling provisions,
vesting a discretion on the State Government to consider
providing reservations, if the circumstances so warrant. It is
settled law that the State Government cannot be directed to
provide reservations for appointment in public posts [C.A.
Rajendran v. Union of India, (1968) 1 SCR 721 : AIR 1968
SC 507] . Similarly, the State is not bound to make
reservation for Scheduled Castes and Scheduled Tribes in
matters of promotions. However, if they wish to exercise
their discretion and make such provision, the State has to
collect quantifiable data showing inadequacy of
representation of that class in public services. If the decision
of the State Government to provide reservations in
promotion is challenged, the State concerned shall have to
place before the Court the requisite quantifiable data and
satisfy the Court that such reservations became necessary
on account of inadequacy of representation of Scheduled
Castes and Scheduled Tribes in a particular class or
classes of posts without affecting general efficiency of
administration as mandated by Article 335 of the
Constitution. [M. Nagaraj v. Union of India, (2006) 8 SCC
212 : (2007) 1 SCC (L&S) 1013]
13. Articles 16(4) and 16(4-A) empower the State to
make reservation in matters of appointment and promotion
in favour of the Scheduled Castes and Scheduled Tribes "if
in the opinion of the State they are not adequately
represented in the services of the State". It is for the State
Government to decide whether reservations are required in
the matter of appointment and promotions to public posts.
The language in clauses (4) and (4-A) of Article 16 is clear,
according to which, the inadequacy of representation is a
matter within the subjective satisfaction of the State. The
State can form its own opinion on the basis of the material it
has in its possession already or it may gather such material
through a Commission/Committee, person or authority. All
that is required is that there must be some material on the
basis of which the opinion is formed. The Court should
show due deference to the opinion of the State which does
not, however, mean that the opinion formed is beyond
judicial scrutiny altogether. The scope and reach of judicial
scrutiny in matters within the subjective satisfaction of the
executive are extensively stated in Barium Chemicals
Ltd. v. Company Law Board [Barium Chemicals
Ltd. v. Company Law Board, AIR 1967 SC 295] , which
need not be reiterated. [Indra Sawhney v. Union of India,
1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1]"
To reiterate, reservation is a claim and not an automatic
conferment of right on a person.
18. Before proceeding to examine the applicability of the
provisions of the ORV Act in the matter of engagement of
GRS, it would be apt to keep in mind the fundamental
principle underlying reservation that a single post cannot be
reserved, as it would amount to 100% reservation, as was
held by the Supreme Court in the case of Post Graduate
Institute of Medical Education & Research2 v. Faculty
Assn. The following observations of the Supreme Court in the
aforesaid case are noteworthy.
"34. In a single post cadre, reservation at any point of
time on account of rotation of roster is bound to bring
about a situation where such a single post in the cadre
will be kept reserved exclusively for the members of the
backward classes and in total exclusion of the general
members of the public. Such total exclusion of general
members of the public and cent per cent reservation for
the backward classes is not permissible within the
constitutional framework. The decisions of this Court to
this effect over the decades have been consistent.
35. Hence, until there is plurality of posts in a cadre, the
question of reservation will not arise because any
attempt of reservation by whatever means and even
with the device of rotation of roster in a single post cadre
is bound to create 100% reservation of such post
whenever such reservation is to be implemented. The
device of rotation of roster in respect of single post cadre
will only mean that on some occasions there will be
complete reservation and the appointment to such post is
kept out of bounds to the members of a large segment of
the community who do not belong to any reserved class,
but on some other occasions the post will be available for
open competition when in fact on all such occasions, a
single post cadre should have been filled only by open
competition amongst all segments of the society."
19. To briefly advert to the facts of the case, it is
admitted that there were 96 „posts‟ of GRS in Subarnapur
district, which were Gram Panchayat-based and as such,
were single „posts‟. Therefore, appointments were made to the
said „posts‟ without applying the principles of reservation.
The number of „posts‟ increased to 109 after reorganization.
(1998) 4 SCC 1
There were 19 vacancies at the time of issuance of the
impugned advertisement. As per the comprehensive
guidelines dated 06.04.2018, the Government decided to
make the GRS a district cadre „post‟ meaning thereby, that all
109 „posts‟ formed a part of single cadre. Thus, 96 „posts‟,
which were originally single „posts‟, now purportedly became
part of a cadre comprising 109 „posts‟.
20. In its counter affidavit filed in W.P.(C) No.29309 of
2022, the State has enclosed the operational guidelines of
MGNREG Act, 2005 of which, Clause-4.6.7 (ii) provides as
follows:
"(ii) In the recruitment process, the reservation policy of
the State for contractual employment should be
followed. The MGNREGS staff should be adequately
represented by women, SCs, STs. Disabled etc."
The MGNREG Act, 2005 however, does not provide
for any such provision regarding engagement of GRS. The
State of Odisha has applied the provisions of the ORV Act to
the engagement of GRS as per the comprehensive guidelines
dated 06.04.2018. It is to be seen whether such application
of the provisions of the Act is permissible in law or not.
21. The ORV Act was enacted to "provide for adequate
representation of scheduled castes and scheduled tribes in
posts and services under the State". The term „posts‟ has not
been defined in the Act. The Odisha Civil Services
(Classification, Control and Appeal Rules, 1962 provides for
classification of posts under Rule-8, and reads as under;
"8. Classification of post - [(1) Civil Posts under the
State other than those ordinarily held by persons to
whom these rules do not apply or included in any State
Civil Service shall by a general or special order of the
Governor, issued in this behalf, be classified as follows :-
(i) State Civil Posts, Group-A
(ii) State Civil Posts, Group-B
(iii) State Civil Posts, Group-C
(iv) State Civil Posts, Group-D
(2) Any order made by the competent authority and in
force immediately before the commencement of these
rules relating to classification of civil posts under the
State shall continue to be in force until altered,
rescinded or amended by an order of Governor under
sub-rule (1).
(3) If any Civil post under the State has not been
classified by an order of the Governor and a question as
to its classification arises, the decision thereon of the
appropriate department of Government after taking into
account the class to which another Civil Post carrying a
comparable scale of pay belongs, shall be final."
22. Admittedly, GRS has not been classified as Civil Post
as per Rule-8 of the 1962 Rules. There is also no post of GRS
provided under MGNREG Act, 2005. On the contrary, the
comprehensive guideline dated 06.04.2018, without saying
that it is a civil post, specifically mentions that it is a
contractual post. In fact, the introduction to the
comprehensive guidelines read as follows:
"Multipurpose Assistants namely Gram Rozgar Sevaks
(GRSs) are engaged on contractual basis in each Gram
Panchayat for execution of work which is co-terminus
with MGNREG Scheme. Government in Finance
Department concurred in creation of 6234 nos. of posts
of Gram Rozgar Sevaks (GRSs) on 22-09-2014.
Consequent upon reorganization of Gram Panchayats,
Finance Department have concurred in creation of 567
new posts of GRS increasing the total no. of posts of
GRS to 6801.
The selection of GRSs on contractual basis should be
done in a fair and transparent manner at the District
level under the overall direction, control & supervision of
Collector-cum-DPCs in the capacity of CEO, Zilla
Parishad abiding by the following Guidelines:"
23. The following provisions of the comprehensive
guidelines are also relevant and are quoted hereinbelow:
EXECUTION OF AGREEMENT &
ISSUE OF ENGAGEMENT ORDER;
UNDERTAKING:
• Prior to execution of agreement, an undertaking
should be obtained from the GRS as follows: -
• "I am quite aware that the engagement offered
is purely temporary and for a specific purpose
of executing the work under MGNREGA and
this is not a permanent job. Hence, I solemnly
affirm that I would not claim my permanent
absorption in the job under State Government/
Zilla Parishad/ Panchayat Samities/ Gram
Panchayats etc.
Further, I undertake not to approach any
Court of Law for engaging me on permanent
basis under the State Government or any
other organization merely on the ground of
my engagement as Gram Rozgar Sevak". (Ref:
Letter No. 5664 dated 07-02-2008]
• The Collector-cum-CEO, Zilia Parishad will execute
an agreement with the GRS in Non-judicial stamp
paper and issue engagement order (contractual
and coterminous with the Scheme).
• If any fraudulent testimonial is detected in future or
if he/she has been criminally prosecuted, the
engagement shall be cancelled without notice and
action as deemed proper will be taken against
him/her as per the provision of Law.
NATURE OF ENGAGEMENT:
The GRS will be engaged on contractual basis for a
period of one year. The selected candidates who join
may be engaged in any Gram Panchayat of the
concerned District by the Collector-cum-CEO, Zilla
Parishad.
RENEWAL OF CONTRACT:
The BOG will assess the performance of GRS of each
Gram Panchayat every year as per their Job Chart. On
the basis of the satisfactory performance and
recommendation by the EDO, the contract of GRS may
be renewed for another one year by the Collector-cum-
CEO, Zilla Parishad; and so on.
REMUNERATION:
The GRS may be paid a consolidated monthly
remuneration of Rs.5000/- (Rupees Five Thousand)
which may be revised with the approval of Government.
The remuneration may be paid from the Administrative
Contingency of MGNREGS parked at District level.
Payment of remuneration may be made through e-FMS.
[Ref: Letter No. 7240 dated 27-04-2016]
Thus, from a conjoint reading of all the aforequoted
provisions there can be no manner of doubt that engagement
of a GRS is not against any civil post in the State of Odisha
but is a purely contractual engagement, initially for a period
of one year and renewable from time to time depending on
performance.
24. Having held that GRS is a purely contractual
engagement, the question is, whether the provisions of ORV
Act would be applicable, as has been sought to be done in
the comprehensive guidelines as well as the advertisement
dated 30.06.2018. Firstly, GRS not being a „post‟ or „service‟
under the State, the provisions of the ORV Act would
ordinarily not be applicable. Secondly, Section-3 of the ORV
Act reads as follows:
"3.Applicability- This Act shall apply to all
appointments to the Posts and Services under the State
except-
(a) Class I posts which are above the lowest rank
thereof and meant for conducting or guiding or directing
Scientific and Technical research;
(b) Class I posts which are above the lowest rank
thereof and classified as scientific posts;]
(c) tenure posts;
(d) those filled up on the basis of any contract;
(e) ex-cadre posts;
(f) those which are filled up by transfer within the cadre
or on deputation;
(g) the appointment of such staff the duration of whose
appointment does not extend beyond the term of office of
the person making the appointment and the work
charged staff which are required for emergencies like
flood relief work, accident restoration and relief etc.;
(h) temporary appointments of less than forty-five days
duration;
(h-1) those which are required to be filled up by
appointment of persons under the rehabilitation
assistance given to the members of the family of the
deceased of permanent disabled employee who suffers
from the disability while in service;
(i) those in respect of which recruitment is made in
accordance with any provision contained in
the Constitution."
Thus, as per Clause-(d) of Section 3, the applicability of the
provisions of the Act stands excluded to those to be filled up
on the basis of any contract
25. The question is, can the State acting administratively
decide to apply the provisions of the Act on its own. Given the
Scheme of the Act as reflected in its provisions, the answer
would an emphatic „no‟. Reference in this regard may be had
to Section-19 of the ORV Act, which reads as follows:
"19. Overriding effect of the Act.- The provisions of
this Act shall have effect notwithstanding anything to
the contrary in any other law or in any rule, order or
resolution made by the State Government."
26. Thus, on the face of Section 3(d), read with Section
19 of the ORV Act, the operational guidelines issued under
the MGNREG Act and the comprehensive guidelines dated
06.04.2018 can have no sanction of law in so far as applying
the principles of reservation to the engagement of GRS is
concerned. Of course, had there been any enabling provision
in the ORV Act conferring power on the State to act in a
manner contrary to Section 3 or had the Act provided any
exception, the matter would have been different. But in the
absence of any such provision and on the face of the
provision under Section 19, the State is denuded of its power
to do so. In other words, the State has no power to suo motu
apply the provisions of the ORV Act in the matter of selection
and engagement of GRS on its own.
27. It would be profitable at this stage to refer to a
judgment passed by a Division Bench of this Court in the
case of Susanta Kumar Sethi vs. State of Odisha3, wherein,
referring to the provision under Section 3(d) of the ORV Act,
it was held as follows:
30. Section 3 makes it clear that the Act will apply to all
appointments to the posts and services under the
State. Section 3 of the ORV Act lists out the posts to
which the ORV Act will not apply. What is relevant here
is that under Section 3 (d) the ORV Act will not apply to
posts "filled up on the basis of any contract."
Admittedly, the post of SS is a contractual post and
therefore, the ORV Act does not apply to it.
36. With the ORV Act itself making it clear that it will not
apply to the recruitment for the post of SS, the question
of applying Section 6 of the ORV Act and thereby
insisting that the unfilled vacancies of STs should be
filled up by SCs alone and nobody else, cannot be
sustained in law. It was rightly rejected by the learned
Single Judge.
28. The State has made a feeble attempt to justify its
decision by citing two grounds, firstly that GRS has become a
district cadre post and secondly, appointment to the post of
village level worker as per the 2008 Rules can be made from
amongst GRS to the extent of 30 %. For the reasons to be
indicated below this Court finds both the arguments
fallacious and absurd. As has already been held, GRS is not
MANU/OR/0330/2021 : ( W.A. No. 86 of 2018 decided on 03.09.2021)
a civil post under the State nor is it a service within the
meaning of the OCS(CCA) Rules. It is an engagement
coterminous with the MGNREG Scheme with the engagees
being given consolidated remuneration and on executing
agreement with undertaking that they shall not claim regular
employment under the State. So, even if the State makes a
fiction of creating a district cadre, the same will not confer a
status akin to a civil post or service in the State to the said
district cadre. In fact, it would be a namesake cadre without
the trappings of a civil post or service under the State.
Secondly, reference to the 2008 Rules is also fallacious for
the reason that only because the State has provided an
avenue of appointment to the said service from amongst the
GRSs would not change their status as contractual
appointees. Of course, once they are appointed under the
said Rules, their status would change but prior to that their
status as contractual appointees would remain intact.
29. In view of the clear finding of this Court that GRS
being a contractual appointment the principles of reservation
would have no application, the alternative argument
advanced to the effect that the comprehensive guidelines
would be effective only prospectively, is not necessary to be
gone into.
Conclusion
30. Thus, from a conspectus of analysis of facts,
statutory provisions and the case laws referred, this Court is
of the considered view that the impugned comprehensive
guidelines dated 06.04.2018 in so far as it relates to making
the provisions of the ORV Act strictly applicable, cannot be
sustained in the eye of law. Consequently, the advertisement
dated 30.06.2018 providing for reservation in respect of all
the 19 vacancies also cannot be sustained.
31. In the result, W.P.(C) No. 13017 of 2018 is allowed.
The comprehensive guidelines dated 06.04.2018 in so far as
it provides that the provisions of ORV Act and Rules framed
thereunder would be strictly followed is hereby quashed.
Further, the advertisement dated 30.06.2018 is also
quashed.
32. Consequently, W.P.(C) Nos. 15082 of 2020, W.P.(C)
No. 21256 of 2021 and W.P.(C) No. 29309 of 2022 are hereby
dismissed.
33. In view of the above findings, the advertisement
dated 24.03.2021 shall be modified/revised accordingly to
invite applications from candidates without applying the
principles of reservation.
................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack.
The 6th February, 2025/ A.K. Rana, P.A.
Designation: Personal Assistant
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 07-Feb-2025 19:35:00
