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2009 DIGILAW 959 (ORI)

NILACHAL DAS v. STATE OF ORISSA

2009-12-15

A.S.NAIDU, B.N.MAHAPATRA

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JUDGMENT : A.S. Naidu, J. - Heard Mr. S.P. Mishra, Learned Counsel for the Petitioner & Mr. B. Panda, Learned Addl. Government Advocate for the State. 2. The Petitioner seeks to assail the direction issued by the Project Director, District Rural Development Authority, Kondhamal to the Block Development Officers to disengage all the Additional Computer Programmers engaged in different places on contractual basis & to fill up the posts on outsourcing basis. It is submitted that such decision is not only arbitrary but also violates the rights guaranteed to the Petitioners under the. Constitution. 3. After implementation of National Rural Employment Guarantee Act, 2006, in short, 'NREGA' to strengthen employment at the Gram Panchayat level, the Government after careful consideration laid down certain principles for engagement of personnel at Gram Panchayat/Panchayat Samiti level for the purpose of smooth execution of NREGA works & for maintenance of records thereof. In consonance with the scheme framed by the Central Government a notification was issued by the Govt., of Orissa, Panchayati Raj Department on 25.8.2005, with regard to engagement of staff & all the Collectors of 19 NRGEA districts were intimated about the procedure to be adopted for filling up. different posts under the scheme. In consonance with the said policy decision, an advertisement was issued on 16.9.2006 inviting applications from the eligible candidates of Kondhamal district for engagement of suitable persons, on contractual basis "in the post of Multipurpose Assistants (Grama Rosgar Sevak), Gram Panchayat Technical Assistant & Additional Computer Programmer on a remuneration of Rs. 4,000 per month as per the terms & conditions enumerated in the agreement. In response to the said advertisement, the Petitioner applied, faced recruitment & was selected. After receiving the letter of engagement, the Petitioner reported before the concerned B.D.O. & executed an agreement & joined in his post. It is further submitted that the Petitioner is discharging his duties in the post in question for last three years to the satisfaction of all the authorities concerned. There was no occasion to find any fault in discharge of his duties & he has served the organization to the best of his ability. It is further submitted that the Petitioner is discharging his duties in the post in question for last three years to the satisfaction of all the authorities concerned. There was no occasion to find any fault in discharge of his duties & he has served the organization to the best of his ability. While the matter stood thus, it is averred that the impugned letter dated 1.12.2009 (Annexure-5) was issued intimating the B.D.O. that as per the instruction of the Commissioner-cum-Secretary to Government, Panchayati Raj Department, Orissa in the I.T.P. held on 23.11.2009, all the Additional Computer Programmers engaged on contract basis should be disengaged & steps should be taken to fill up the post on outsourcing basis. The said order, as stated earlier, is assailed in this Writ Petition. 4. Learned Counsel for the State, on instruction, submitted that in order to handle huge Additional NREGA data & on-line monitoring/reporting, each Panchayat Samiti can deploy one Additional Computer Programmer to be engaged preferably on outsourcing basis through a Firm to be chosen in a transparent manner by a committee. Consequently, the Block Development Officers were called upon to disengage the Petitioners and Others. The instruction further reveals that the candidates, who have passed PGDCA or equivalent, from any recognized Universities, OCAC or DOEACC shall be eligible for engagement & they will be entitled to Rs. 4000 only per month on satisfactory performance during the month in question, but payment will be made through the outsourcing Firm. According to Mr. Panda, Learned Addl. Government Advocate, the decision being a policy decision & aimed for better administration of the scheme, the same may not be interfered with. 5. There is no doubt that being threatened by the order of disengagement, the Petitioner in this Writ Petition has approached this Court, but then the Petitioner has not assailed the decision taken by the Department on 23.11.2009, which was communicated by the Commissioner-cum-Secretary to Government, Panchayati Raj Department, Orissa to different Block Development Officers. Thus, the impugned order under Annexure-5 issued by the Project Directors only a consequential to the decision taken on 23.11.2009. 6. To disengage an employee on account of change of policy or abolition of post held by him, is not an action, which is proposed to be taken as a personal penalty but it is an action concerning policy of the State. 6. To disengage an employee on account of change of policy or abolition of post held by him, is not an action, which is proposed to be taken as a personal penalty but it is an action concerning policy of the State. Change of policy may have consequence of the termination of service of an employee & such termination does not amount to dismissal or removal within the meaning of Article 311 of the Constitution. The method as to how the post is to be filled up is a policy decision of the Government. In the case of K. Rajendran and Others Vs. State of Tamil Nadu and Others the Supreme Court observed that in modern administration it is necessary to recognize the existence of the powers with the legislature or the executive to create or abolish the posts. The volume of administrative work, the measures of economy & the need to stream-line the administration, to make it more efficient, may induce the State Government to make alteration in the staffing pattern. Creation & filling up posts is thus the prerogative of the executive. It is the executive that lays down the conditions of service subject to the law laid down by the appropriate legislature. The Court comes into picture only to ensure observance of fundamental rights, statutory provisions, rules & other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rules of law & to see that the Executive acts fairly & gives a fair deal to its employees consistent with the requirements of Articles 14 & 16. 7. Now considering the dispute in the touchstone of the aforesaid legal principles, we find that the Government of India, Ministry of Rural Development, NREGA Division issued a circular on 30th March, 2007 to all the Principal Secretaries with regard to streamlining the management cost for implementation of National Rural Employment Guarantee Act, 2005. Paragraph-5 of the said letter mostly deals with administrative expenses. The relevant portion of the said paragraph is quoted below for better appreciation: xxx This personnel could be regular Government employees deployed for the NREGS or could be employees on contract or staff deployed on outsourcing basis. The scale of staff which is to be deployed has to be related to the volume of work in a Gram Panchayat, Block or a District. The scale of staff which is to be deployed has to be related to the volume of work in a Gram Panchayat, Block or a District. Thus, there are three options left to the Government for engaging staffs, for effective implementation of NREGA Scheme. The first option being, regular Government employees can be deployed, the second being employees can be engaged on contractual basis, & the third being staff deployed on outsourcing basis. 8. In the case in hand, as it appears, after considering all the pros & cons, the authorities had taken a decision to engage "Additional Computer Programmers" on contractual basis. Accordingly, appointment letters were issued to the Petitioner and Ors way back in the year 2006, they have entered into agreements & have been discharging their duties for last 3 years. There is no material to reveal that in fact the Petitioner is not discharging his work properly and/or he is not otherwise qualified or eligible to hold the post. 9. Mr. Panda, Learned Addl. Govt. Advocate on instruction submitted that in order to handle; huge Additional NREGA data & on-line monitoring/reporting, decision has been taken to engage one Additional Computer Programmer, preferably on outsourcing basis in each Panchayat Samiti. Mr. Panda produced the letter of the Government in Panchayati Raj Department dated 10.3.2008. The scale of pay of the said persons is fixed at the same amount, which is paid to the Petitioner and Ors. i.e., Rs. 4000 per month. The only difference which the Government seeks to introduce is that payments will be made through outsourcing Firm. In other words, the system of middleman is sought to be introduced for the purpose of engaging Additional Computer Programmers & with regard to payment of their remuneration. If the salary of Additional Computer Programmer is kept in tact, this Court fails to understand the reason as to why payment is being made through outsourcing firm by spending some more money for the said purpose. In this, modern era, generally steps are taken to avoid middleman-ship so as to give maximum benefit to the person who discharges the work & also to avoid exploitation. The State Government being an ideal employer, is expected to look after the welfare of the citizens who discharge their duties under the State or instrumentalities of the State. 10. In this, modern era, generally steps are taken to avoid middleman-ship so as to give maximum benefit to the person who discharges the work & also to avoid exploitation. The State Government being an ideal employer, is expected to look after the welfare of the citizens who discharge their duties under the State or instrumentalities of the State. 10. In course of hearing, the intimation issued by the Commissioner-cum-Secretary to Government of Orissa, Revenue & Disaster Management, Department bearing No. S-125/08/6391/R & DM dated 12.2.2009 was brought to our notice. By the said letter, all the Collectors were directed to engage Data Entry Operators-cum-Assistants at Tahasil offices on contract basis for a period of one year on the same terms & conditions by renewing the contract period & by executing fresh agreement. 11. In view of the aforesaid facts & circumstances, this Court feels that all endeavour should be made to implement the scheme in proper way & at a minimum cost so that the surplus amount can be spent for better purpose. At the same time, the interest of the employees, who are engaged for implementation of the scheme should also be protected & they should get a fair deal. 12. After giving conscious thought to the facts & circumstances of the case & the point of law involved, we feel that ends of justice & equity will be better served if the Petitioner is given opportunity to. approach the Commissioner-cum-Secretary to Govt of Orissa, Panchayati Raj Department, Opp. Party No. 1 by filing suitable representation/petition highlighting his grievances & enclosing all relevant documents within a period of 3 weeks hence. If such petition/representation is filed, the said Opp. Party shall do well to consider the facts & circumstances in the light of the observations made in this Judgment, & also the fact that the Petitioner is discharging his duties for last 3 years without any blemish & no latches have been attributed to him, call for a meeting & take a decision, in accordance with law as expeditiously as possible. It is needless to say that till a decision is taken by the authorities the Petitioner shall not be disengaged. 13. With the aforesaid observation, the Writ Petition stands disposed of. B.N. Mahapatra, J. I agree.