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2012 DIGILAW 233 (ORI)

Mamata Das v. State of Orissa

2012-05-07

B.K.NAYAK, B.P.DAS

body2012
JUDGMENT B. P. DAS, J 1. The Petitioner is a lady, who was engaged as DLR under unskilled category for a period of 44 days by the order of the Project Engineer, Project Management Unit-Opposite Party No.3, Orissa Water Supply & Sewerage Board, Bhubaneswar, dated 2.12.1997 & she was getting due extension continuing as such till 10.11.2008. According to the Petitioner, she has worked about 12 years without any complaint from any quarters till she intended to contest for the post of Corporator in Municipal election & sought for permission from Opposite Party No.2 by filing an application on 10.11.2008. The Petitioner failed to get elected to the post she contested in the Municipal election & hence on 8.12.2008 she filed an application before Opposite Party No.2 requesting him to allow her to join in the post she was working but the same was not accepted by Opposite Party No.2. Being aggrieved, the Petitioner filed a Writ Petition being W.P.(C) No.4980 of 2010, which was disposed of on 31.3.2010 with a direction to Opposite Party No.2 to take a decision on the representation of the Petitioner dated 8.12.2008. Subsequently, the representation of the Petitioner was rejected, hence the present Writ Petition. 2. A counter affidavit has been filed by Opposite Party No.2 taking a stand that the earlier engagement of the Petitioner for 12 years has not been disputed but the Petitioner filed an application seeking for permission to contest in Municipal election in which she has given a condition that if the permission was not granted by the authorities the letter be treated as a resignation. Accordingly, the authorities who were reluctant to grant her permission accepted resignation as per her wish. According to Learned Counsel appearing for Opposite Party No.2 there is no infirmity in the order of acceptance of resignation of the Petitioner. 3. In course of hearing, our attention was drawn to Annexure7. which is the order passed on the representation of the Petitioner in terms of the direction of this Court dated 31.3.2010 passed in W.P.(C) No.4980 of 2010. The relevant paragraph of the order is quoted herein below:- "In the present case the letter of resignation had been sent by Smt. Mamata Das, out of her own volition. It was her conscious act. Such resignation had been accepted & she had been disengaged. The relevant paragraph of the order is quoted herein below:- "In the present case the letter of resignation had been sent by Smt. Mamata Das, out of her own volition. It was her conscious act. Such resignation had been accepted & she had been disengaged. Once I have accepted the resignation letter sent by Smt. Das otherwise I can not review my own decision which has attained finality. Hence, the question of allowing her re-join the service cannot be accepted. The Govt. resolution dated 14.12.1994, carving out certain concession on woman Govt. employees who have resigned & subsequently allowed to be re-appointed within a time period of two years subject to certain conditions, is not applicable to .the case of Smt. Mamata Das. Hence her prayer to allow her to re-join in the earlier assignment is not permissible at this stage." 4. In course of hearing our attention is drawn to the resolution of the Government of Orissa, General Administration Department dated 14.12.1994 (Annexure-8), in which certain concessions have been given to women Govt. employees. The relevant concessions on which the Petitioner relies upon are quoted hereunder:- "(i) A women employee of the State Government who has resigned from the service may be allowed to re-enter the service within a time period of two years from the date of resignation. She shall be re-appointed to the service from which she resigned provided she is found – (a) Suitable in all respects to re-enter Govt. service; (b) Fit to resume public service: (c) Not engaged herself in undesirable activities during the period of absence from Government service." 5. According to Learned Counsel for Opposite Parties the aforesaid Government resolution is not applicable to the Orissa Supply & Sewerage Board & as the Petitioner is not a Government servant, the benefit of the aforesaid resolution cannot be granted to her. Learned Counsel also draws our attention to Annexure-C wherein a clarification was sought for by the Orissa Water Supply & Sewerage Board from the Government. 6. We have perused the resolution of State Government, which is solely for the purpose of giving certain benefits to the women employees & it cannot be said that the same is not applicable to the women employees working under the Orissa Water Supply & Sewerage Board which is an instrumentality of State & under deep & pervasive control of the State Government. Annexure-8 which confers benefit to the women employees under the Government does not keep it confined to regular employees only. Its application, from the tenor of the resolution as it appears, is for the benefit of all categories of women employees working under the State Government or its instrumentality. The clarification over which the Opposite Party No.2 relies upon cannot negate the true purport & effect of resolution dated 14.12.1994. 7. In our considered opinion, the spirit of resolution is in terms of the mandate under Article 15 of the Constitution of India making special provision for women. This is one of such resolution meant for the welfare of women employees who may be DLR or regular. The Opposite Parties being instrumentality of State are bound by this resolution & cannot get away from the same. 8. In this regard, we may refer to the decision of the Apex Court in the case of P. Vijaya Kumar Vs. Government of Andhra Pradesh, AIR 1995 SC 1648 . In the words of Justice Mrs. Sujata Vs. Manohar: "The insertion of clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially & economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women & to empower them in a manner that would bring about effective equality between men & women that Article 15(3) is placed in Article 15 Its object is to strengthen & improve the status of women. An important limb of this concept of gender equality is creating job opportunities for women. To say that under Article 15(3), job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this Article. Making special provisions for women in respect of employment or posts under the State is an integral part of Article 15(3)." 9. The order of rejection of the representation of the Petitioner is therefore illegal & sustainable. Petitioner's application for reemployment should have been accepted by the Opposite Parties. Accordingly, we allow the Writ Petition directing the Opposite Parties to re-engage the Petitioner as DLR employee. 10. The order of rejection of the representation of the Petitioner is therefore illegal & sustainable. Petitioner's application for reemployment should have been accepted by the Opposite Parties. Accordingly, we allow the Writ Petition directing the Opposite Parties to re-engage the Petitioner as DLR employee. 10. The order shall be complied with within a period of two months from the date of communication of this order.