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2015 DIGILAW 154 (ORI)

Santosh Kumar Sahoo v. State of Odisha

2015-03-03

B.R.SARANGI

body2015
JUDGMENT : Dr. B.R.Sarangi, J. The grievance of the petitioner, who is working as „Kantawala? in the office of the Civil Supplies Officer-cum-District Manager, Odisha State Civil Supplies Corporation Ltd., Cuttack, is that though he has been continuing for more than 18 years on daily wage basis and has been extended with the benefit of time scale of pay, grade pay like ad hoc employees along with medical allowance, but has been deprived of consequential benefits like increment, T.A., Leave Salary, House Rent etc. by the discriminatory disposition of the authorities by creating one day artificial break in every 44 days of service, pursuant to by order dated 3.1.2013 in Annexure-1, thereby escaping the statutory obligation of opening his service book. 2. The short fact of the case, in hand, is that petitioner has been working as „Kantawala? in the office of the Civil Supplies Officer-cum-District Manager, Odisha State Civil Supplies Corporation Ltd., Cuttack, (hereinafter to be referred to as “the Corporation”, in short) for more than 18 years on daily wage basis, but by order dated 3.1.2013 in Annexure-1, the opposite party no.3 has upgraded the status of daily wage employees of the Corporation to that of ad hoc status and allowed such ad hoc employees to continue for a period of 44 days with one day break after each spell of service. By upgrading the status of daily wage employees to the status of ad hoc employees, the petitioner has been extended with the monthly medical allowance of Rs.500/-, but has been deprived of consequential legal benefits like increment, T.A., Leave Salary, House Rent etc. by the discriminatory disposition of the authorities by creating one day artificial break in every 44 days of his service, consequently escaping the statutory obligation of opening his service book, whereas persons similarly situated who have been engaged on ad hoc status initially, have been allowed to continue “until further orders” or till a regular recruitment is done whichever is earlier by granting all the consequential benefits admissible to the post held by them. Pursuant to the decision taken by the Board of Directors in their 156th meeting held on 30.3.2012 and consequential approval of the Government in FS & CW Department communicated vide letter No.17199 dated 2.11.2012 and corrigendum issued vide No.19942 dated 19.12.2012, 98 employees of the opposite party-Corporation working on daily wage basis have been upgraded to the ad hoc status and extended the benefit of Orissa Revised Scales of Pay Rules,2008 with effect from 1.4.2012. It is made clear that the order does not confer any right for claiming the benefit of regular employees of the Corporation. The admissibility of D.A. will be communicated later after receipt of approval from the Government. Pursuant to such letter dated 20.12.2012 in Annexure-3, the list of 98 persons have been prepared and benefit has been extended to them. The Government also approved the extension of such benefit to 239 daily wage employees of the Corporation including the petitioner by its corrigendum dated 19.12.2012, but the Corporation has modified the order to the effect that there shall be one day artificial break in every 44 days in case of such employees including the petitioner vide letter dated 2.11.2013 in Annexure-5. Issuance of such letter creates an artificial discrimination between the same class of people i.e., allowing one group of people to continue in service “until further orders” status and another group of people of the same status on 44 days basis with one day break. The petitioner being aggrieved has approached this Court by filing the present writ petition challenging such discriminatory action of the opposite parties 3 and 4. 3. Mr. G.K.Mishra, learned counsel for the petitioner submitted that the opposite party-Corporation has allowed one group of ad hoc employees to continue in the status of “until further orders” and another group on 44 days basis with one day break, which creates discrimination amongst the same group of people working in the same working condition, thereby it violates Article 14 of the Constitution. He further submitted that the persons, who are continuing on “until further orders” status, have been allowed to get the benefits of annual increment, T.A., Leave Salary, House Rent etc., but the group of people who continue on 44 days basis with one day break are being deprived of getting such benefits though they have been given the benefit of time scale of pay, grade pay etc. like ad hoc employees continuing on “until further orders” status. Such action of the authorities being arbitrary, unreasonable and discriminatory one, he seeks for interference of this Court. 4. Mr. A.K.Mishra, learned counsel for opposite party nos.2 and 3 while refuting such allegations, justifies the stand taken by the Corporation with reference to the pleadings ma de in the counter affidavit and admits the fact that the post held by the petitioner has been upgraded to ad hoc status and he has been granted with the benefit of time scale of pay and grade pay like ad hoc employees, but he has been allowed to continue on 44 days basis with one day break after each spell of service. It is admitted that the persons who are continuing on ad hoc basis on 44 days basis with one day break are not getting the annual increments and other benefits admissible to the regular employees whereas similar ad hoc employees, who have been allowed to continue on “until further orders” status even though have been initially engaged on daily wage basis, they have been extended with the benefit of regular employees and allowed to legal benefits like annual increments, T.A., house rent etc. It is stated that the petitioner does not stand on the same footing as that of Sri Niranjan Satpathy, which has been referred to in Annexure-2 and to justify the same, it is stated that Sri Satpathy has been engaged as Junior Typist on ad hoc basis and has been allowed the time scale of pay from the date of his initial engagement and his service has been renewed after each spell of 44 days of service. Sri Satpathy who was availing the time scale benefit, was allowed to continue as such “until further orders” basis with effect from 11.03.1997, whereas the petitioner was initially engaged on daily wage basis. So, the condition of initial appointment of the petitioner is different from that of Sri Satpathy and therefore, the petitioner has been engaged on 44 days basis with break of one day. But by virtue of the decision dated 21.10.2010 in Annexure-A/3, the Government have decided that the ad hoc employees can be appointed at the minimum of the revised scale of pay attached to the post with grade pay under the Orissa Revised Scales of Pay Rules, 2008 with prospective effect without any arrear benefit. But by virtue of the decision dated 21.10.2010 in Annexure-A/3, the Government have decided that the ad hoc employees can be appointed at the minimum of the revised scale of pay attached to the post with grade pay under the Orissa Revised Scales of Pay Rules, 2008 with prospective effect without any arrear benefit. Pursuant to the letter dated 21.10.2010, benefits have been extended to the petitioner by upgrading the daily wage status to ad hoc status with effect from 1.4.2012 and engaging for a period of 44 days with one day break with renewal of service after each spell of 44 days, which is well within the competence of the authority. Therefore, the claim made by the petitioner should not be granted by this Court. 5. Considering the contentions raised by the learned counsel for the parties and after going through the records, it appears that admittedly the petitioner was initially engaged on daily wage basis and due to upgradation of ad hoc status, the petitioner is continuing on 44 days having with one day break after each spell of service pursuant to Annexure-1. But similarly situated persons who have been initially engaged on daily wage basis and thereafter granted the time scale of pay, have been allowed to continue “until further orders” with benefits like, annual increment, T.A., leave salary, house rent allowance etc. In view of such position, the opposite parties 3 and 4 have created an artificial classification amongst the same group of people working in the same working condition by creating a discrimination by allowing a group of daily wage employees upgraded to that of ad hoc status to continue for a period of 44 days with one day break after each spell of service vis-à-vis daily wage employees allowed to receive the time scale of pay to continue in service with “until further orders” status extending all the benefits applicable to the regular employees, such as increment, T.A., Leave Salary, House Rent etc. Such action of the authorities is in gross violation of Article 14 of the Constitution of India. That apart, no justifiable reasons have been ascribed for giving such spell appointment of 44 days with one day break nor has any reasons been shown in any of the documents nor is there any pleading to that effect in the counter affidavit filed by the Corporation. That apart, no justifiable reasons have been ascribed for giving such spell appointment of 44 days with one day break nor has any reasons been shown in any of the documents nor is there any pleading to that effect in the counter affidavit filed by the Corporation. The daily wage employees have been upgraded to ad hoc status and they have been allowed to continue in service on 44 days basis with one day break, thereby depriving them of all the benefit of annual increment, T.A., Leave Salary, House Rent etc. admissible to the similarly situated employees working in the same working condition with “until further orders” status. Therefore, the very action of the authorities depriving the benefits admissible to the petitioner is wholly arbitrary and suffers from vice of discrimination. 6. Similar question came up for consideration by the apex Court in Sri Rabinarayan Mohapatra v. State of Orissa and others, AIR 1991 SC 1286 wherein appointment of teachers on ad hoc basis on 89 days basis with one day break was under challenge. The apex Court held that the practice of adhocism by giving appointment on 89 days basis with one day break suffers from the vice of discrimination. The ratio of the said judgment has been followed in plethora of judgments by the apex Court and this Court. Therefore, the question of spell appointment having been deprecated by the apex Court by holding that the same suffers from the vice of discrimination, the same remains no more res integra. 7. Applying the said principle to the present context, the action of the opposite party-Corporation upgrading the daily wage employees to the status of ad hoc employee extending the benefit of time scale of pay and grade pay, but allowing them to continue in service for 44 days with artificial break of one day spell, suffers from vice of discrimination and violates Article 14 of the Constitution of India. Therefore, such action of the opposite party-Corporation is not sustainable in the eye of law and is hereby quashed. Accordingly, the opposite party-Corporation is directed to allow the petitioner to continue in service like that of other employees with “until further orders” status enabling him to get all the consequential legal benefits like increment, T.A., Leave Salary, House Rent etc. with statutory obligation to open the service book. Accordingly, the opposite party-Corporation is directed to allow the petitioner to continue in service like that of other employees with “until further orders” status enabling him to get all the consequential legal benefits like increment, T.A., Leave Salary, House Rent etc. with statutory obligation to open the service book. Such benefits be extended to the petitioner from the date his juniors have been extended such benefits without creating artificial break of one day break after each 44 days spell. 8. With the aforesaid observation and direction, the writ petition stands disposed of. No cost.