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2013 DIGILAW 448 (ORI)

Sushil Kumar Nayak v. State of Orissa

2013-10-09

A.K.RATH, M.M.DAS

body2013
JUDGMENT Dr. A.K. RATH, J. : Since common questions of fact and law are involved in the present writ applications, the same were heard together and are disposed of by this common judgment. 2.Shorn of unnecessary details, the case of the petitioners is that pursuant to an advertisement dated 24.3.2006 issued by Orissa Power Transmission Corporation Ltd. (in short ‘OPTCL’) for the posts of Graduate Engineers on contractual basis, they appeared at the interview, but their appointment orders were made through an outsourcing agency, namely, M/s. M.K. Routray, Labour Contractor to avoid liability. On 15.3.2005 the Board of Directors of GRIDCO in its 92nd Board meeting resolved that due to ban order by the Government of Orissa, the GRIDCO could not appoint any new Graduate Engineers for better service of the transmission work. Since the number of Graduate Engineers were very meagre than was actually required by the Corporation, it was resolved in the said meeting that the engineers will be recruited on contractual basis through an outsourcing agency. After appointment their services were placed under the GRIDCO/OPTCL. Though they were appointed through an outsourcing agency, but their day-to-day activities are governed by the OPTCL Rules and Regulations. Their pay was revised from Rs.5000/- to Rs.6,500/- and, thereafter from Rs.6500/- to 7500/- respectively. They had discharged their duties with utmost devotion and sincerity to the entire satisfaction of the authority concerned. While the matter stood thus, they came to know that Government of Orissa in the Department of Energy vide its letter dated 21.1.2009 has permitted the Corporation for recruitment of the need based vacant posts in the technical and professional discipline in the Corporation. Thereafter, they approached the OPTCL authorities to regularize their services against the vacancies mentioned in the letter dated 21.1.2009 vide Annexure-3 and filed representations. The further case of the petitioners is that Corporation has filled up 15 number of posts of Management Trainees without conducting any recruitment test, but their services were not regularised. When the OPTCL issued an advertisement in the Daily Samaj on 15.2.2009 to fill up the post of Management Trainees, they filed writ applications. In the said writ applications, counter affidavit was filed by the opposite parties contending, inter alia, that service of the petitioners cannot be regularized because they are appointed by an outsourcing agency and not by OPTCL. When the OPTCL issued an advertisement in the Daily Samaj on 15.2.2009 to fill up the post of Management Trainees, they filed writ applications. In the said writ applications, counter affidavit was filed by the opposite parties contending, inter alia, that service of the petitioners cannot be regularized because they are appointed by an outsourcing agency and not by OPTCL. By order dated 11.5.2011, the said writ applications were disposed of with a direction to the State Government to take a decision in consultation with the Corporation as to whether the petitioners can be recruited as Management Trainee or to such posts, they are entitled to according to their qualification under Clause 15 of the Recruitment Policy or not. It was further observed that while taking a decision in this regard, the observation of this Court with regard to discrimination may be taken into consideration. This Court while disposing of earlier writ applications observed that claim of the petitioners for regularization of their services cannot be accepted in view of the law laid down by the Hon’ble apex Court in the case of Secretary, State of Karnatak and others v. Umadevi and others, (2006) 4 SCC 1 . After the judgment was passed, Corporation recommended the case of the petitioners to the State Government for appointing them as Management Trainees under Clause-15 of the Recruitment Policy. But then the State Government without considering the observation made in the judgments in its proper perspective rejected their claim on 14.10.2011 under Annexure-15. The said order is impugned in these present writ applications. Ancillary prayer has been made to recruit them as Management Trainees under Clause-15 of the GRIDCO Recruitment Policy. 3.Pursuant to issuance of notice, one Subrat Kumar Panda, Deputy Secretary to Government of Odisha, Department of Energy filed a counter affidavit on behalf of opposite party No.1. Case of opposite party No.1 is that after the judgment was passed by this Court on 11.5.2011, opposite party No.2 offered a detailed status note to the State Government in its letter dated 31.5.2011 and in the letter dated 24.6.2011, CMD GRIDCO/OPTCL has requested for early action on the order of this Court. Case of opposite party No.1 is that after the judgment was passed by this Court on 11.5.2011, opposite party No.2 offered a detailed status note to the State Government in its letter dated 31.5.2011 and in the letter dated 24.6.2011, CMD GRIDCO/OPTCL has requested for early action on the order of this Court. In the meeting held in the Department of Energy with CMD, OPTCL/GRIDCO on 27.7.2011 regarding implementation of the order of this Court in the case of Bibekananda Pradhan and others, proposal for regularization of outsourced employees deployed by the outsourcing agency in the OPTCL was discussed. It was further resolved that there are about 80 Degree and Diploma Engineers recruited by outsourcing agency claiming for regularization. Apart from that, about 86 support staffs engaged in various branch like IT, Finance, Maintenance of OPTCL and about 2800 Security Guards may initiate proceedings for regular employment. Such regularization will encourage other person engaged through outsourcing agencies in State Public Sector Undertaking as well as State Organization. After careful consideration, the Government as a matter of policy have decided not to give appointment/to recruit those people engaged through outsourcing agency in OPTCL. So far as recruitment of 15 SC and ST candidates as Management Trainees in OPTCL in the year 2007 and 2008 is concerned, as per the meeting held on 17.5.2007 by the Development Commissioner, the proposal for recruitment of SC and ST Engineering candidates in OPTCL was recommended and the Government approved the same. However, the said appointment of SC and ST candidates was disputed and is under challenge before the learned Tribunal in O.A. No.201 of 2008. It is further stated that the advertisement was made for the year 2010 and 2011 relaxing the age to give a chance for over aged candidates to compete. Some of the outsourced engineers had successfully made through the selection process and were appointed as Management Trainees. Further the petitioners having raised all the issues in their earlier writ applications, the same cannot be re-agitated time and again. 4.A counter affidavit has also been filed by opposite parties 2 and 3 through Chandra Sekhar Pradhan, Assistant General Manager (HRD), OPTCL, Bhubaneswar. Further the petitioners having raised all the issues in their earlier writ applications, the same cannot be re-agitated time and again. 4.A counter affidavit has also been filed by opposite parties 2 and 3 through Chandra Sekhar Pradhan, Assistant General Manager (HRD), OPTCL, Bhubaneswar. The sum and substance of the case of opposite parties 2 and 3 is that in view of the judgment dated 11.5.2011 passed by this Court in W.P.(C) No.3319 of 2009 (Bibekananda Pradhan v. State of Orissa and others) and similar batch of writ applications, the petitioners have no fresh cause of action to file the present writ applications, since their prayer for regularization of service have been rejected by this Court in the aforesaid judgment. The State Government in accordance with the direction of this Court have rejected the case of the petitioners for appointment/recruitment in the post of Management Trainees after due consideration. In the concluding paragraph of the said judgment, this Court had also directed the State Government for consideration of the case of the petitioners for appointment and thus, there is no illegality in the order and the petitioners have no right to file a fresh case for the self-same relief. It is further stated that the present writ applications are barred by the principles of res judicata in as much as the issues involved in the present writ applications had attained finality in the earlier judgment. The specific case of opposite parties 2 and 3 is that the petitioners were recruited by M/s. M.K. Routray, Labour Contractor, who made an advertisement under Annexure-1 and their services were placed in OPTCL for their engagement in day-to-day work. They are in the pay rolls of the Labour Contractor for all intent and purpose. They are not the employees of OPTCL. It is further stated that the Labour Contractor, M/s. M.K. Routray has executed a contract in terms of which certain amount of consolidated payment in respect of the service of such engineering personnel provided to OPTCL is paid and the rate of such consolidated payment has been revised from time to time by OPTCL on the basis of the request of the Labour Contractor. The Labour Contractor is supposed to make payment of consolidated remuneration to the petitioners from time to time and also satisfy the OPTCL authorities regarding the deposit of their EPF and other such contributions in accordance with the labour laws. It is further stated that it was open to all eligible candidates to apply for and get themselves recruited and the petitioners had the opportunity to avail the process of recruitment in accordance with the eligibility. The question of regularization without resorting to open recruitment is out of context. It is further stated that the petitioners are not the employees of the OPTCL, but then on account of assignment of work or for getting them trained at another place, payment of travelling expenses for the purpose of undertaking journey was inevitable and as such, they were paid travelling expenses for undertaking journey. So far as recruitment to 15 posts of Management Trainees belonging to SC and ST categories are concerned, it is stated that such recruitment was made in two spells. In the first phase, 10 Management Trainees and later 5 Management Trainees were appointed pursuant to the direction of the Government. Out of 15 SC and ST candidates, 10 were found eligible as per the provision of recruitment regulations and, accordingly, their suitability was tested through an interview held on 14.10.2008 by the Selection Committee constituted for the purpose. After they found suitable by the Committee, they were appointed as Management Trainees in the services of OPTCL. Subsequent thereto, the Government again directed in its letter dated 25.4.2008 to consider remaining 5 SC and ST candidates by relaxing the rules/procedures. The Board of Directors of OPTCL reconsidered the matter again in its meeting held on 19.6.2008 and decided to appoint 5 SC and ST candidates by relaxing the percentage of marks and the age limit prescribed in the Regulation, subject to their suitability for the post. Accordingly, 5 SC and ST appeared at the interview conducted by the Selection Committee on 4.8.2008 and appointed as Management Trainees on 26.9.2008. 3.We have heard Mr. J. Pattnaik and Mr. S.K. Padhi, learned Senior Counsel for the petitioners, learned Advocate General for opposite party No.1 and Mr. N.C. Panigrahi, learned Senior Counsel for opposite parties 2 and 3. Accordingly, 5 SC and ST appeared at the interview conducted by the Selection Committee on 4.8.2008 and appointed as Management Trainees on 26.9.2008. 3.We have heard Mr. J. Pattnaik and Mr. S.K. Padhi, learned Senior Counsel for the petitioners, learned Advocate General for opposite party No.1 and Mr. N.C. Panigrahi, learned Senior Counsel for opposite parties 2 and 3. 4.In course of hearing, learned Senior Counsel appearing for the petitioners submitted that due to ban order of the Government of Odisha for fresh appointment, the Corporation on 15.3.2005 in its 92 at Board meeting decided to deploy Graduate and Diploma Engineers on contractual basis through outside agency for filling up sanctioned vacancy post of Assistant Manager (Electrical) and Junior Manager (Electrical) on payment of consolidated salary. Pursuant to the advertisement published in the daily newspaper on 24.3.2006, the petitioners, who are otherwise eligible, applied for the post. A High Level Selection Committee was constituted with the designated existing officers of the Corporation in terms of GRIDCO Officers Recruitment Policy. The Selection Committee scrutinising the performance of the various candidates prepared a merit list, which was approved by the M.D. and Sr. G.M. (HRD), OPTCL. Thereafter, the OPTCL requested the Labour Contractor to issue appointment letters according to the merit list. In course of employment, the petitioners had undergone training and were issued certificate of good performance, transferred to various places by the orders of the Corporation. Their services are directly regulated by the Corporation and payment is given by the Corporation. Learned Senior Counsel further submitted that on 8.2.2008, the Corporation appointed 10 candidates and subsequently another 5 candidates belonging to SC and ST category as Management Trainees without conducting any written test and interview and relaxing the age limit and minimum percentage of marks. Thus, there is no justification on the part of the Corporation to denude the same benefit to the petitioners. Learned Senior Counsel further submitted that in the earlier writ applications, a direction was issued to the State Government to take a decision in consultation with the Corporation as to whether the petitioners can be recruited as Management Trainees or to such posts according to their qualification under Clause-15 of the Recruitment Policy, but on untenable and un-supportable grounds, the Government have rejected the same. Learned Senior Counsel further submitted that the OPTCL had submitted the proposal recommending the case of the petitioners for appointment of Management Trainees with an observation that the petitioners have already put five years of service and in the process, acquired sufficient degree of expertise in O & M of GRID, but without considering the recommendation of the OPTCL, the Government have rejected the claim of the petitioners. The case of the petitioners can not be equated with the case of the Security Guards and other support staffs. 5.Per contra, learned Advocate General appearing for opposite party No.1 submitted that pursuant to the judgment of this Court, the Government have taken a decision not to consider the case of the petitioners for appointment/recruitment engaged through an outsourcing agency. 6.Mr. Panigrahi, learned Senior counsel appearing for opposite parties 2 and 3 submitted that the issues involved in the present writ applications have already been decided in W.P.(C) No.3319 of 2009 and other similar batch of writ applications and the same cannot be re-agitated again. He further submitted that the present writ applications are barred by principles of res judicata. He further submitted that the petitioners are recruited through an outsourcing agency and the case of the petitioners for regularization have been rejected by this Court relying on a decision of the Hon’ble apex Court in the case of Umadevi (supra). However, pursuant to the direction of this Court to consider the case of the petitioners in accordance with Clause-15 of the Recruitment Policy, the Government have taken a conscious decision and rejected the claim of the petitioners. 7.Be it noted that in course of hearing of the writ applications, we have called for the file from the State Government, wherein a decision was taken by the Government in rejecting the claim of the petitioners. Excluding four writ applications, i.e., W.P.(C) Nos.31686, 31688, 29241 and 29319 of 2011, all the petitioners have approached this Court by filing independent writ applications. All the writ applications were clubbed together and disposed of on 15.5.2011 by a common judgment passed by this Court in W.P.(C) No.3319 of 2009 and other similar batch of writ applications. In the earlier writ applications, the petitioners have prayed, inter alia, for regularization of their services as Management Trainees and to quash the advertisement dated 24.3.2006. All the writ applications were clubbed together and disposed of on 15.5.2011 by a common judgment passed by this Court in W.P.(C) No.3319 of 2009 and other similar batch of writ applications. In the earlier writ applications, the petitioners have prayed, inter alia, for regularization of their services as Management Trainees and to quash the advertisement dated 24.3.2006. While disposing of the said writ applications, their Lordships held that a conscious decision was taken to recruit Graduate and Diploma Engineers through an outsourcing agency on a consolidated pay on contractual basis to manage the work. M/s. N.K. Routray, a registered Labour Contractor came forward with a proposal to provide services of such Graduate and Diploma Engineers on contract basis. Accepting the offer of the Labour Contractor, a committee was constituted consisting of former senior officers of the Corporation and an interview was conducted. All the petitioners, having been selected in the interview, were recruited on contractual basis on a consolidated pay of Rs.5,000/- per month. Their Lordships’ further held that there is no dispute that recruitment to different posts under the Corporation is made under a set of Guidelines known as Gridco Officers’ Recruitment Policy, Gridco Officers’ Promotion Policy and Policy for appointment of E10 Grade. Such Policies have been formulated in the Gridco Officers’ Service Regulations. As is evident from the said Policy, three types of recruitment have been provided for. Under clause 11, in case of direct recruitment for a post, the governing principle shall be to secure the services of the persons most suitable to the post. In order to achieve the said objective, an advertisement is to be issued inviting applications, a written test to be conducted and on the basis of the number of posts, the qualifying marks in the written test is to be finalised. All those who qualify in the written test shall be called for a personal interview and the Selection Committee shall finalise a panel of selected candidates on the basis of the marks obtained in the written test, the interview and other relevant factors. Their Lordships further held that another method of recruitment in respect of departmental candidates has been provided in Clause 13 of the Policy. It provides that when a post is to be filed in by limited departmental recruitment, the governing principle shall be to secure the services of the persons most suitable to the post. Their Lordships further held that another method of recruitment in respect of departmental candidates has been provided in Clause 13 of the Policy. It provides that when a post is to be filed in by limited departmental recruitment, the governing principle shall be to secure the services of the persons most suitable to the post. To achieve the objective, applications will be called for from the departmental candidates, written test shall be conducted and those who qualify in the written test, will face the interview. Considering the marks obtained in the written test as well as interview and other factors, a select list shall be prepared by the Selection Committee. Their Lordships further held that the third method of recruitment is provided in Clause 15, which provides that besides the methods of recruitment as detailed herein before, the HRD Committee may decide to adopt any other method of recruitment on case to case basis, as it may deem fit. In paragraph-12 of the judgment, their Lordships came to a conclusion that at no point of time prior to issuance of the advertisement, the Corporation had issued any advertisement inviting applications for recruitment to the post of Management Trainees. The advertisement was issued by the Labour Contractor M/s. M.K. Routray and in response to the said advertisement, all the petitioners submitted their applications. Their recruitment was through the said agency, though a committee was constituted consisting of former senior officers of the Corporation to select the candidates. No written test was conducted and only on the basis of marks obtained in the interview, the petitioners were selected for appointment. It was further held that this being the procedure adopted for appointment of the petitioners, under no stretch of imagination, it can be said that they had been recruited in terms of Clause 11 of the Recruitment Policy. Similarly, the petitioners were working on contract basis on a consolidated pay and, therefore, they cannot be treated as departmental candidates and as such the other recruitment method for departmental candidates enumerated in Clause-13 of the Recruitment Policy has no application to the case of the petitioners. The only departure that the Corporation could make with regard to regularization/appointment of the petitioners is under Clause 15 of the Recruitment Policy. The only departure that the Corporation could make with regard to regularization/appointment of the petitioners is under Clause 15 of the Recruitment Policy. It was further held that 15 Scheduled Castes and Scheduled Tribes candidates were directly appointed to the post of Management Trainees without written test or interview. If a departure could be made in the matter of appointment of these 15 reserved candidates, the same can only be done under Clause 15 of the Recruitment Policy, there being no other provision in the Recruitment Policy for such recruitment. Having held thus, their Lordship further observed that if 15 reserved category candidates could be given appointment on the insistence of the State Government without following the Recruitment procedure prescribed under Clause 11, there is no reason as to why the petitioners should be discriminated and cannot be recruited under Clause 15 of the Recruitment Policy. However, claim of the petitioners for regularization of their services was rejected by this Court relying on a decision of the Hon’ble apex Court in the case of Umadevi (supra). On taking a holistic view of the matter, their Lordships directed the State Government to take a decision in consultation with the Corporation as to whether the petitioners can be recruited as Management Trainees or to such posts they are entitled to according to their qualification under Clause 15 of the Recruitment Policy or not. Their Lordships further observed that while taking a decision in this regard the observation with regard to discrimination may be taken into consideration. A further direction was issued that in the event all the posts advertised had been filled up in the meantime, the State Government shall consider creation of such number of posts or grant approval for appointment to such number of vacancies so that all the petitioners can be considered for recruitment. It was further directed that till a decision is taken, the petitioners shall be permitted to continue in their respective posts on contractual basis on consolidated pay. 8.Though much argument was advanced by the learned Senior Counsel appearing for the petitioners, we are afraid that we cannot delve into that aspect of the matter. It was further directed that till a decision is taken, the petitioners shall be permitted to continue in their respective posts on contractual basis on consolidated pay. 8.Though much argument was advanced by the learned Senior Counsel appearing for the petitioners, we are afraid that we cannot delve into that aspect of the matter. The issues involved in the present writ applications lies in a very narrow compass: As to whether the petitioners can be recruited as Management Trainees or to such posts they are entitled to according to their qualification under Clause 15 of the Recruitment Policy or not ? The other issues had been conclusively determined in the earlier judgment and attained finality. Since the claim of the petitioners have been rejected by the Government in W.P.(C) No.3319 of 2009 and other similar batch of writ applications, this Court has to see whether the order of rejection is legal, valid or justified ? 9.On perusal of the letter dated 24.6.2011 vide Annexure-A/1, it is evident that Chairman-cum-Managing Director, Orissa Power Transmission Corporation Limited has sent the said letter to the Commissioner-cum-Secretary to Government of Orissa, Department of Energy, Bhubaneswar stating therein that it would be fair and justified to consider the appointment of the petitioners as Management Trainees, who have put in more than 5 years of service and in the process, acquired sufficient degree of expertise in O & M of Grid S/s and lines. These GTRPs are also likely to continue in the Corporation, since they have already crossed the age limit for outside employment. The regular employment can only be considered subject to their performance during training period and after successful completion of training period, which shall be assessed by an expert committee at the end of the training. A proposal was made to consider their engagements for one year as Management Trainee provided that the State Government issues clear direction/instruction to proceed with the matter. While recommending the case of the petitioners, it was observed that this may encourage all other persons engaged through outsourcing agencies in all other utilities to knock at the door of the Court and claim regular employment invoking the power vested with the HRD Committee under Clause-15 of the Recruitment Rules. 10.On perusal of the file, it is evident that the Government have rejected the claim of the petitioners under Clause-15 of the Recruitment Policy. 10.On perusal of the file, it is evident that the Government have rejected the claim of the petitioners under Clause-15 of the Recruitment Policy. While rejecting the claim of the petitioners, the Government took into consideration that it will encourage other persons engaged through outsourcing agencies in all other Public Sector Undertakings as well as the Government Organization for claim of regular employment, which will invite legal complicacy for Government. It is further observed that there are 2500 numbers of other category candidates (like Data Entry Operator, ITI Technician, Cost Accountants and Security Guards), who will also claim for regularization in future. The OPTCL has already filled up the posts through open advertisement, and sufficient vacancies are not available to absorb these outsourced people. The ORV Act has not been followed at the time of engagement through outsourcing agency. Hence, it will create serious problem, if they are appointed/recruited without following the reservation policy. Furthermore, the OPTCL has not requested the Government for further creation of the posts. Thus, there is no justification why Government will create surplus posts, which will be a financial burden to the organization and there will be under utilization of human resources. 11.We are of the view that the direction issued by this Court in the earlier judgment to consider the case of the petitioners under Clause-15 of the Recruitment Policy has not been considered in its proper perspective. A specific direction was issued by this Court to consider the case of the petitioners under Clause-15 of the Recruitment Policy and while taking a decision in this regard, the observation of this Court with regard to discrimination may be taken into consideration. The order of rejection is totally silent on this aspect. Though in the note sheet, it is stated that appointment of 15 persons is impugned before the Tribunal in O.A. No.201 of 2008, but in view of the specific direction of this Court to consider the case of the petitioners under Clause-15 of the Recruitment Policy vis-a-vis 15 persons, it is incumbent upon the Government to consider the case in terms of the judgment of the case. Pendency of the matter before the Tribunal is no bar to consider the case of the petitioners. Pendency of the matter before the Tribunal is no bar to consider the case of the petitioners. 12.Be it noted that in the earlier writ applications, it was observed that till a decision is taken with regard to the claim of the petitioners, they shall be permitted to continue in their respective posts on contractual basis and on consolidated pay. Further, by an interim order dated 03.11.11, this Court has directed that the petitioners shall continue in the post of Graduate Engineers (Contractual) on consolidated pay till the next date. Thus the finding of the Government that the OPTCL has already filled up the posts through open advertisement and sufficient vacancies are not available to absorb the outsourced people is totally perverse. The petitioners are still continuing in their respective posts. Thus, it cannot be said that sufficient vacancies are not available. The further observation that the OPTCL has not requested the Government for future creation of posts which shows that there is no requirement for further creation of posts and that there is no justification why Government will create surplus posts, which will be a financial burden to the organization, is of no avail. Creation of post does not arise at all, since the petitioners are continuing by an interim order passed by this Court from time to time, which means the posts are still lying vacant. In our considered view, the order of rejection is bad in law. 13.In view of the same, we have no other option except to quash the order dated 14.10.2011 passed by the Government under Annexure-15. We remit the matter back to the Government to take a fresh decision in consultation with the Corporation to consider the case of the petitioners under Clause-15 of the Recruitment Policy in terms of the earlier judgment dated 11.5.2011 passed by this Court in W.P.(C) No.3319 of 2009 and other similar batch of writ applications. More particularly, while taking a decision, the observation made in paragraph-14 (1) and (2) of the judgment dtd. 11.05.2011 passed in W.P.(C) No.3319 of 2009 shall be kept in mind. Since the petitioners are continuing, we direct that their services shall not be terminated till a decision is taken by the Government. More particularly, while taking a decision, the observation made in paragraph-14 (1) and (2) of the judgment dtd. 11.05.2011 passed in W.P.(C) No.3319 of 2009 shall be kept in mind. Since the petitioners are continuing, we direct that their services shall not be terminated till a decision is taken by the Government. Before parting with the case, we would like to observe that the opposite parties may go ahead with selection process and free to fill up the vacancies keeping 72 posts vacant till a decision is taken. 14.With the aforesaid observation, all the writ applications are disposed of. M.M. DAS, J. :I agree. Application disposed of.