Sudhansu Kumar Das vs State Of Odisha & Others .... Opposite ...
2025 Latest Caselaw 2836 Ori

Orissa High Court

Sudhansu Kumar Das vs State Of Odisha & Others .... Opposite ... on 22 January, 2025

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

            IN THE HIGH COURT OF ORISSA AT CUTTACK
                        W.P.(C) (OA) No.753 of 2017


        Sudhansu Kumar Das                 ....
                                                                  Petitioner
                                                         Mr. N. Rath, Advocate


                                       -versus-



        State of Odisha & Others           ....              Opposite Parties
                                                              Mr. S. Das, ASC


                              CORAM:
                 JUSTICE BIRAJA PRASANNA SATAPATHY
                                         ORDER

22.01.2025 Order No.

24. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard learned counsel appearing for the Parties.

3. Petitioner has filed the present Writ Petition inter alia challenging the order dtd.13.04.2017 so passed by the Government-Opposite Party No.1 under Annexure-14. Vide the said order, claim of the Petitioner to get the benefit of regularization was rejected.

4. It is contended that Petitioner was initially engaged under the defunct DANIDA Project, where he continued till 30.11.1993. It is contended that employees working under the defunct DANIDA project though were adjusted in other departments, but Petitioner was denied such benefit. However, subsequently, he was engaged on daily wages basis under Rural Development Department and posted to // 2 //

RWS&S Division, Jajpur from 21.12.1996 to 31.07.2003, 01.08.2003 to 30.08.2011 and w.e.f. 30.08.2011 with consolidated remuneration.

4.1. It is contended that on the face of such continuance of the Petitioner on daily wages basis w.e.f. 21.12.1996 and the earlier continuance made under the defunct DANIDA Project, when no step was taken to regularize his services, he approached the Tribunal by filing O.A. No.732 of 2013. The Tribunal vide order dtd.11.09.2013 under Annexure-9 while disposing the O.A. passed the following order:-

" Order No.16, Dtd. 11.9.13

Learned counsel for the applicant and learned standing counsel are present and heard.

The applicant was initially working as Field Investigator in the Danish International Development Agency (DANIDA) from 1993. As DANIDA was abolished, the applicant had prayed for absorption as a Statistical Assistant in the R.D. or its successor department, Le. the R.W.S & S. as such absorption on regular basis has in the past been allowed to direct appointees in the DANIDA.

Learned counsel for the applicant submits that in the Hon'ble Supreme Court's judgment reported in AIR 2010. Supreme Court 2587 (State of Karnatak & others-Vrs- M.L.Keshari and others) and in State of Karnatak-Vrs- Uma Devi case, reported in AIR 2006 SC 1806: 2006 AIR SCW 1991) it has been held:-

".... that after the decision in Uma Devi(AIR 2006 SC 1806: 2006 AIR SCW 1991), each department or each instrumentalities should undertake a one time exercise and prepare a list of all casual, daily wage or ad hoc employees who have been working for more than ten years without the intervention of Court and Tribunal and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the past and if so, regularize their services."

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Learned counsel submits that in view of the fact that the applicant is now 47 years old, he will be satisfy if a direction is given to respondent no.2 to consider regularization of service of the applicant along with others in accordance Hon'ble Supreme Court order as above.

Learned standing counsel submits that the applicant does not come under the purview of the employees who are sought to be regularized by Finance Department Resolution dtd.15.05.1997 as he is either a NMR, DLR and Word Charged Employee.

Keeping in view the facts and circumstances of this particular case and submissions made by the learned counsel, we are of the view that the case of the applicant deserves benefits envisaged in terms of Hon'ble Supreme Court judgment reported in Alk 2010 Supreme Court 2587 (State of Karnatak and others-Vrs- M.L.Keshari and others) as applied in para-6 to 16 of the said judgment. It is therefore, directed that as a part of this exercise, the case of the applicant for his regularization be considered by the respondents in accordance with Hon'ble Supreme Court orders cited above and benefits as admissible be allowed as soon as possible without further loss of time.

Copies of the orders be sent to respondents Copies of the order, along with copies of judgment in AIR 2010 Supreme Court 2587 (State of Karnatak and other-Vrs- M.L.Keshari and others) be sent to the respondent no.2 for compliance in regard to the present case.

4.2. It is contended that challenging the order passed by the Tribunal under Annexure-9, State approached this Court by filing W.P.(C) No.15872 of 2016. This Court vide order dtd.22.03.2017 under Annexure-12, while disposing the Writ Petition issued the following directions:-

"We, on critical scrutiny of the order passed by the Tribunal, have found that the Tribunal on the one hand has come to definite finding that the case of the applicant/opposite party no.1 deserves benefit envisaged in the judgments in the case of Secretary, State of Karnataka and others vrs. Umadevi(3) and others (supra) and State of Karnataka and others vrs. M.L. Kesari and others (supra) but relevant fact has not been examined and as such we thought it proper to modify the order of the tribunal to the extent that the State Authority will consider the case of the

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applicant/opposite party no.1 on its own merit and if they came to conclusion that the case of the petitioner is coming in the parameter of the judgment rendered by the Hon'ble Apex Court in the case of Secretary, State of Karnataka and others vrs. Umadevi(3) and others (supra) and State of Karnataka and others vrs. M.L. Kesari and others (supra), consequential relief shall be granted.

It is made clear that the authority will take decision within period of six weeks from the date of receipt of copy of this order to the extent as indicated above, the order passed by the Tribunal is modified.

Since we have modified the order dated 11.09.2013 passed in O.A.No.732(C) of 2013 by the Tribunal, hence we are not going into the merits of the contempt petition.

4.3. It is contended that on the face of such continuance of the Petitioner under the defunct DANIDA Project till 30.11.1993 and on daily wages basis in the Rural Development Department w.e.f.21.02.1996, claim of the Petitioner to get the benefit of regularization was rejected vide the impugned order dtd.13.04.2017 under Annexure-14.

4.4. It is contended that since Petitioner after closure of the DANIDA Project w.e.f. 30.11.1993 was allowed to continue on daily wages basis in the R.D Department w.e.f. 21.12.1996 without any break in engagement, his claim is squarely covered by the decision rendered by the Hon'ble Apex Court in the case of State of Karnataka and others vs. Umadevi (3) and Others and State of Karnataka and Others vs. M.L. Keshari and Others.

4.5. Even though this Court while interfering with the order passed by the Tribunal in O.A. No.732 of 2013 directed Opposite Party No.1 to consider the case of the

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Petitioner in the light of the decision in the case of Umadevi & M.L. Keshari, but without proper appreciation of the said two decisions, claim of the Petitioner was rejected vide the impugned order dtd. 13.04.2017 under Annexure-14.

4.6. It is also contended that on the face of the interim order passed by the Tribunal on 18.05.2017 wherein an order was passed to maintain status quo of the Petitioner till disposal of the present matter, Petitioner was not allowed to continue beyond 31.03.2018.

4.7. It is accordingly contended that on the face of the order passed by this Court in W.P.(C) No.15872 of 2016 under Annexure-12 and the interim order passed in the present case on 18.05.2017 not only rejection of the Petitioner's calm to get the benefit of regularization is illegal, but also the action of the Opposite Parties in not allowing him to continue beyond 31.03.2018.

4.8. It is accordingly contended that appropriate direction be issued to regularize the services of the Petitioner by reinstating the Petitioner in his services forthwith.

5. Mr. S. Das, learned Addl. Standing Counsel for the State basing on the stand taken in the counter affidavit contended that Petitioner since after closure of the DANIDA Project was engaged in different capacity under the R.D., Department for different period though without any break but since he continued in different nature of engagement, he is not covered by the decision rendered in the case of

// 6 //

Umadevi and M.L. Keshari. The stand taken in Para-11 of the counter affidavit reads as follows:-

"11. That, the averment made in Para 6.17, it is humbly submitted that, the applicant was engaged as Field Investigator merely for a period of 6 and half month i.e. from 15.05.1993 to 31.11.1993 on contractual basis by the Danida authority and paid under Danida Direct funding through the then Chief Advisor. After lapse of about 3 years, he worked on daily wages basis under RWS & S Division, Jajpur from 21.12.1996 to 31.07.2003. Then he left that and jumped to another post i.e. he was working as project Co- ordinator under District after & Sanitation Mission Jajpur from dt.01.08.2003 to 30.08.2011 being well known that the Mission is a time bound project and its establishment is not at all relating to RWS & S Organization. Then he worked as a Sanitation & Hygiene Consultant under District Water & Sanitation Mission, Khurda with effect from 30.08.2011 A.N. His contract was renewed year after year on the basis of his performance. From the above history of services, it is revealed that, the applicant is an opportunist who jumps from one post to another for his own convenience.

Further, the applicant was never engaged as Statistical Assistant. On the basis of representation one cannot claim for regularization in a particular post although he possesses the required qualification. As the applicant's service was on contract basis and his appointment comes to an end at the end of the contract".

5.1. It is also contended that on the face of the interim order passed by the Tribunal on 18.05.2017, since the term of engagement of the Petitioner ended on 31.03.2018, no further extension was provided to the Petitioner and accordingly Petitioner is not in engagement beyond 31.03.2018.

5.2. It is accordingly contended that neither the claim of the Petitioner to get benefit of regularization is covered by the decision rendered in the case of Umadevi and M.L.

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Keshari nor Petitioner can be re-engaged as he is not continuing beyond 31.03.2018.

6. This Court taking into account the stand taken in the counter affidavit and the writ petition passed the following orders on 30.10.2023, 07.01.2025, 17.01.2025 & 21.01.2025:-

"30.10.2023

1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard learned counsel appearing for the Parties.

3. The present Writ Petition has been filed by the Petitioner challenging the order dtd.13.04.2017 passed by Opposite Party No.1, wherein the claim of the Petitioner for his absorption in the regular establishment has been rejected.

4. From the said order, it is found that while rejecting the claim of the Petitioner, Opposite Party No.1 has taken a stand that Petitioner was not there in the DANIDA retrench list submitted by the Engineer-in-Chief in the year 1997. But in the communication issued by the Chief Engineer under Annexure-10 dtd.10.12.2013, it has been clearly indicated that Petitioner was retrenched from Defunct DANIDA Project w.e.f. 30.11.1993.

5. Since the stand taken by Opposite Party No.1 in the impugned order is contrary to the stand taken by the Chief Engineer in Annexure-10, this Court directs Opposite Party No.1 to file an affidavit justifying the stand taken in the impugned order that Petitioner was not a retrenched employee of DANIDA Project. Such an affidavit shall be filed before this Court on the next date.

6. List this matter in the week commencing 13th of November, 2023".

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"07.01.2025

1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard learned counsel for the parties.

3. Considering the order passed on 18.05.2017 and the action taken by the Opp. Parties in not allowing the petitioner to continue beyond 01.04.2019, this Court directs for personal appearance of O.P. No.6-Executive Engineer, RWS&S-cum-Member Secretary District Water & Sanitation Mission, Khordha on 17.01.2025.

4. List this matter on 17.01.2025.

Free copy to Mr. S.P. Das, learned Addl. Standing Counsel for compliance".

17.01.2025

1. This matter is taken up through hybrid mode.

2. Heard learned counsel appearing for the parties.

3. Pursuant to order dt.07.01.2025, Ms. Rashmita Dash, Executive Engineer, RWS & S Division, Bhubaneswar appeared in person and files an affidavit in Court. The same be kept on record. Copy of the affidavit is also served on the learned counsel for the Petitioner. This Court is unable to accept the contentions raised in the affidavit.

4. However, considering the request made by the learned Addl. Govt. Advocate, and so also the Officer who is present in Court, list this matter on 21.01.2025.

5. Ms. Rashmita Das, Executive Engineer, RWS & S Division, Bhubaneswar is directed to appear in person before this Court on the next date".

21.01.2025

1. This matter is taken up through hybrid mode.

2. Heard learned counsel appearing for the Parties.

3. Mr. N. Rath, learned counsel appearing for the Petitioner contended that on the face of the interim order passed by the Tribunal on 18.05.2017, Petitioner was not allowed to continue beyond 31.03.2018. The Tribunal passed the following interim order on 18.05.2017.

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18.05.2017

"Heard Mr. S.N. Pattanaik, learned counsel for the applicant and Mr. B. Dash, learned Standing Counsel.

The case is admitted. Notice be issued, returnable within four weeks and rejoinder, if any, be filed within two weeks thereafter.

List this matter in the 2nd week of July, 2017.

So far as prayer for interim order is concerned, status quo of the applicant as on today be maintained till filing of the counter and its adjudication."

4. It is contended that on the face of such interim order, Petitioner was not allowed to continue beyond 31.03.2018.

5. Learned Addl. Standing Counsel contended that the order in question was required to be implemented by the Panchayati Raj Deptt. and RWS & S Deptt. has no role to play with regard to implementation of the order.

5.1. It is also contended that taking into account the nature of interim order passed on 18.05.2017 appropriate order will be passed for reinstatement of the Petitioner by 22.01.2025.

6. List this matter on 22.01.2025".

On the face of such orders passed by this Court and the undertaking given before this Court Petitioner was not re-engaged taking into account the interim order passed by the Tribunal on 18.05.2017.

7. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner was initially engaged in DANIDA Project, where he continued till 30.11.1993. After closure of the said project though persons similarly situated were re-engaged in different departments coming under the Government vide orders issued under Annexures-1 to 5,

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but Petitioner was not extended with the similar benefit of re-engagement. As further found, Petitioner subsequently was engaged on daily wages basis in RWS&S Division, Jajpur coming under R.D. Department w.e.f. 21.12.1996 till 31.03.2018. Petitioner however was illegally not allowed to continue on the face of the interim order passed on dtd.18.05.2017 beyond 31.03.2018.

7.1. In view of such long continuance of the Petitioner on daily wages basis w.e.f. 21.12.1996 to 31.03.2018 and the interim order passed on 18.05.2017, it is the view of this Court that claim of the Petitioner is squarely covered by the decision rendered in the case of Uma Devi and M.L. Keshari. On the face of the order passed by this Court in the earlier writ petition under Annexure-12, Opposite Party No.1 without proper appreciation of both the decisions, has rejected the claim vide the impugned order dtd.13.04.2017 under Annexure-14.

7.2. In view of the aforesaid analysis, this Court is inclined to quash order dtd.13.04.2017 so passed by Opposite Party No.1 under Annexure-14. While quashing the said order, this Court directs Opposite Party No.1 to pass an order of re-engagement re-engaging the Petitioner taking into account the interim order passed on 18.05.2017 within a period of two (2) weeks hence. After such re-engagement of the Petitioner, steps be taken to regularize the services of the Petitioner in the establishment of Opposite Party No.6 within a further period of two (2) months from the date of

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receipt of this order. While considering the claim of the Petitioner for re-engagement as well as regularization, vacancy position available under Annexure-6 shall also be taken into consideration.

8. Accordingly, the Writ Petition stands disposed of.

(Biraja Prasanna Satapathy) Judge Subrat

Designation: Personal Assistant

Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Jan-2025 13:23:19