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2011 DIGILAW 562 (ORI)

Premananda Behera and six v. State of Orissa

2011-11-16

B.K.NAYAK, B.P.DAS

body2011
ORDER OJC Nos. 1551, 1552, 1553, 2097, 1184 & 1185 of 2002 16.11.2011 – Heard Mr. R. Rath and Mr. D. Mohapatra, learned counsel for the petitioners, and Mr. J.P. Pattnaik, learned Additional Government Advocate for the State. The petitioners have filed these writ petitions challenging the order dated 27.1.2000 passed by the Superintending Engineer, Southern Irrigation Circle, cancelling their provisional ad hoc appointment in the post of Wages Khalasi and a common order dated 20.12.2001 passed by the Orissa Administrative Tribunal, Bhubaneswar, dismissing their Original Applications filed against the said order dated 27.1.2000. The case of the petitioners is that initially they were appointed as N.M.R. under different establishments of the Irrigation Circles of the State prior to 1993. While working as such, by virtue of the office order dated 30.12.1999 passed by the Superintending Engineer, Southern Irrigation Circle, Berhampur, the petitioners were provisionally appointed on ad hoc basis against the existing vacancy posts of Regular (Wages) subject to acceptance of the terms and conditions enclosed therein. Thereafter the following impugned order dated 27.1.2000 was passed. "The N.M.R. personnels of this circle who had been provisionally appointed as wages Khalasi on ad hoc basis vide this Office Order No.6750 dt. 30.12.99 is hereby cancelled." Thereafter, the petitioners preferred separate Original Applications before the Orissa Administrative Tribunal, Bhubaneswar, which by way of the impugned common order dated 20.12.2001 dismissed the said Applications. The Tribunal amongst other directions directed that if in the meantime all the work-charged employees in the Southern Irrigation Circle were absorbed in regular establishment posts, the cases of the NMR employees would be taken up in a phased manner, subject to availability of vacant regular establishment posts and while making orders of regularisation of the NMR employees, the order of their seniority in their respective categories would also be strictly adhered to without giving any scope for any grievances/complaints. The Tribunal taking into consideration the resolution of the Finance Department dated 15.5.1997 passed the order dated 20.12.2001. Now Mr. Rath and Mr. Mohapatra, learned counsel for the petitioners, submits that the Tribunal has not gone into the legality of the order of cancellation of their appointment passed on 27.1.2000. According to them, the Tribunal should have dealt with the irregularity or otherwise of the order dated 27.1.2000. Now Mr. Rath and Mr. Mohapatra, learned counsel for the petitioners, submits that the Tribunal has not gone into the legality of the order of cancellation of their appointment passed on 27.1.2000. According to them, the Tribunal should have dealt with the irregularity or otherwise of the order dated 27.1.2000. According to them, in the meanwhile the petitioners have worked for more than two decades and the order dated 30.12.1999 was a ray of hope of getting regularized but the same was end in smoke by the subsequent order dated 27.1.2000, by dint of which all of them were reverted back in the posts of N.M.R. where also according to the learned counsel for the petitioners, they are not getting their salary regularly and there is no hope of their getting absorbed in future because no effort has been made by the O.Ps. for the last eleven years since the Tribunal passed the order in the year 2000. Counter affidavit sworn to by the Executive Engineer has been filed on behalf of the O.Ps. in the Year 2006. In the said counter affidavit, the O.Ps. have taken a stand that as and when the posts of in this category of the petitioners will be available, their cases will be considered for regularisation, for which they should not be aggrieved and cannot take the benefit of irregular/illegal order. From the facts narrated in this writ application as well as the counter affidavit, it is clear that the petitioners have been running from pillar to post for the last eleven years for regularization but in vain. On 30.6.2010 an affidavit has been filed by Sk. Abdul Ahad, Executive Engineer, Berhampur Irrigation Division, which contains only three paragraphs, indicating therein that the cases of the petitioners cannot be considered for absorption in regular wages establishment as their senior N.M.R. employees have not been regularized yet. Learned Additional Government Advocate also submits that it is not possible on the part of the State Government to regularize the services of the petitioners in view of the terms and conditions made in the resolution of the Finance Department dated 15th May, 1997. So far as it relates to cancellation of the appointment of the petitioners, the only plea has been taken by the O.Ps. that they have failed to fulfil the terms and conditions attached to the order of appointment. So far as it relates to cancellation of the appointment of the petitioners, the only plea has been taken by the O.Ps. that they have failed to fulfil the terms and conditions attached to the order of appointment. We have the privilege of going through the terms and conditions attached to the office order dated 30.12.1999 for appointment/absorption, which contains nineteen terms and conditions, two conditions of which are (1) the appointment/absorption in regular Establishment is provisional and temporary and can be terminated at any time and (2) in case of resignation, one must give one month's notice in advance to that effect or in lieu thereof he has to deposit one month's pay in advance before the resignation is accepted by the competent authority. The other conditions such as production of medical certificate regarding health, Registration Certificate, Caste Certificate etc., which the letter of appointment contains. Learned counsel for the petitioners submits that the plea of non-fulfilment of the terms arid conditions advanced by the State Government before the Tribunal is totally an afterthought and there is nothing on record to show as to which employee failed to fulfil which condition and conditions of the resolution. The Tribunal has only swayed away with the argument of the learned counsel for the State that such as all the petitioners are ad hoc employees being provisionally employed, they have no right to hold the post and the cancellation of their appointment is justified. On a bare perusal of the order dated 27.1.2000 and the counter affidavit, we find it is bald one without indicating any reason for cancelling the appointment of all the petitioners at a stroke. Not even any intimation was sent to the petitioners to show cause, which is also admitted by the learned Additional Government Advocate. There is not a single scrap of paper to show the conditions, which the petitioners alleged to have violated. The order dated 27.1.2000 is palpably illegal and has been passed in an arbitrary manner without giving an opportunity of hearing to the petitioners which the O.Ps. are bound to give in compliance of principles of natural justice and more over, as the petitioners have already joined and worked in the posts so regularised. The order dated 27.1.2000 is palpably illegal and has been passed in an arbitrary manner without giving an opportunity of hearing to the petitioners which the O.Ps. are bound to give in compliance of principles of natural justice and more over, as the petitioners have already joined and worked in the posts so regularised. In view of the facts and circumstances of the case, we have no hesitation to set aside the order dated 27.1.2000 passed by the Superintending Engineer, Southern Irrigation Circle, and the order dated 20.12.2001 passed by the Orissa Administrative Tribunal, Bhubaneswar. Accordingly, we do so. The O.Ps. are directed to allow the petitioners to continue as Wages Khalasi as per their Office Order dated 30.12.1999, compute their arrear salary and pay them deducting the amount, which they have already drawn while working as N.M.R. The entire exercise shall be completed within a period of three months from the date of communication of this order. The writ applications are accordingly allowed. Issue urgent certified copy. Let a free copy of this order be supplied to the learned counsel for the State. Applications allowed.