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2015 DIGILAW 441 (ORI)

Sagarilal Murmu v. State of Odisha

2015-07-28

B.R.SARANGI

body2015
JUDGMENT Dr. B.R. SARANGI, J. - The above mentioned 25 writ petitions have been filed by the candidates in Civil Engineering belonging to Scheduled Castes and Scheduled Tribes category, who have been engaged as Assistant Project Manager in the Orissa Police Housing & Welfare Corporation on contractual basis seeking to quash Annexure-1 whereby the petitioner has been intimated that no decision in the matter of regularization would be taken till restructuring of the Corporation is finalized and approved by the Government and further seeking for a direction to regularize their services pursuant to the Resolution dated 22.09.2008, Annexure-11 as has been done in case of other departments under Annexure-26 series with all consequential service and financial benefit with retrospective effect and other ancillary reliefs as mentioned in the prayer portion of the writ petitions. 2. The short fact of the case, in hand, is that Orissa State Police Housing and Welfare Corporation Limited, in short, ‘Corporation’, a public Sector Undertaking of the Government of Odisha is committed to build Police Buildings innovatively to enhance police efficiency and thereby improve Police-Community relations. The main objectives of the Corporation include to undertake construction of buildings for housing of the employees of the Government of Odisha in the Police, Prisons, Home Guards, Fire Force Department and Judicial Department as well as other similarly situated institutions. Initially the Corporation was started by bringing the persons on deputation from the Government and other Corporations and thereafter certain posts were created for the Corporation by the Board of Directors, which were later on approved by the Government in Home Department. One of those posts was Assistant Project Manager, which is equivalent to the post of Junior Engineer under the Government. On completion of the deputation period, the persons, who were borrowed, were sent back and consequently, the post of Junior Engineer fell vacant. In order to maintain the works already undertaken by the Corporation, the Corporation was required to recruit persons to fill up those posts. 3.Initially the Government of Odisha in P & S Department vide its Resolution dated 06.08.1979 constituted a committee for recruitment of Diploma Holders in Civil Engineering and other heads of the Departments concerned in which the Establishment Officer attached to the National Highway Organization would work as Secretary of the Committee. 3.Initially the Government of Odisha in P & S Department vide its Resolution dated 06.08.1979 constituted a committee for recruitment of Diploma Holders in Civil Engineering and other heads of the Departments concerned in which the Establishment Officer attached to the National Highway Organization would work as Secretary of the Committee. The Committee would allocate the Diploma Holders in Civil Engineering according to their requirements from the list of candidates available with the Technical Manpower Employment Exchange. All appointments were to be made from the list of candidates sponsored by the said Exchange and incase it failed to furnish candidates within a specified period of three weeks recruitment may be made from the open market. The Government in G.A. Department issued another Resolution on 03.04.1991 constituting a committee consisting of Officers mentioned therein as Chairman and Members of the said Committee to maintain a panel of candidates having Diploma Engineering qualification for employment of those unemployed Diploma Engineers of different disciplines under the Government Departments/Undertakings/ Corporations. On 08.02.1995, the Government of Odisha, G.A. Department brought some modifications in the Resolution dated 03.04.1991 stating that the Chief Engineer, National Highway shall act as the Chairman of the Committee. Again on 02.02.2000 the Resolution dated 03.04.1991 and 08.02.1995 issued by the G.A. Department were modified by reconstituting the committee to empanel Diploma Holders of all Engineering disciplines for appointment in Govt. Departments/Undertakings with Engineer-in-Chief (‘EIC’, in short) as the Chairman and all other officers as the members of the said committee. The Chairman-cum-Managing Director of opposite party no. 4 Corporation having found that there is dearth of Engineers in comparison to the work undertaken intimated their difficulties in the Corporation to the Chairman-cum-Secretary to the Government P & E Department with proposal for engagement of some bright Civil Diploma Holders from the panel maintained by the EIC (Civil) at consolidated pay fixed by the Government on contractual basis and had also sought for permission to engage at least 20 Civil Diploma Holders. Accordingly, requisition was placed. The EIC (Civil) on 29.06.1994 sought for some essential information from opposite party No. 4. Meeting that query, opposite party No. 4 wrote a letter on 15.07.2004 informing that 25 nos. of Diploma in Civil Engineering Candidates, particularly Scheduled Castes-5 nos. and Scheduled Tribes-20 nos. were required for engagement of backlog vacancies in the Corporation as Asst. Project Managers (JE)(Civil) with monthly consolidated remuneration of Rs. Meeting that query, opposite party No. 4 wrote a letter on 15.07.2004 informing that 25 nos. of Diploma in Civil Engineering Candidates, particularly Scheduled Castes-5 nos. and Scheduled Tribes-20 nos. were required for engagement of backlog vacancies in the Corporation as Asst. Project Managers (JE)(Civil) with monthly consolidated remuneration of Rs. 5,000/- per month. Since there was delay, opposite party no. 4 again reminded on 09.08.2004 and accordingly on 13.08.2004 the EIC (Civil) sponsored the names of 5 Scheduled Caste candidates and 20 Scheduled Tribe Candidates to fill up the backlog vacancies in which the names of the writ petitioners had been recommended. Accordingly the petitioners were issued with engagement orders on contractual basis on 04.09.2004 for a period of one year i.e. from 04.09.2004 to 31.08.2005 with a consolidated monthly remuneration of Rs. 5,000/- per month. As per the terms of engagement, the petitioners executed an agreement in every year after completion of each year period and their services have been extended from time to time by opposite party no. 4. As per the information sought under the Right to Information Act dated 06.02.2006, opposite party No. 4 Corporation has stated that the Corporation has adopted Government Rules to regulate the service condition of the Officers and staff members of the Corporation. The Government of Odisha in Home Department being the administrative Department of the opposite party No. 4 Corporation has taken a decision for structuring of the staffing pattern of the Engineering and Non-Engineering staff of the Corporation on 16.06.2007. In Clause-A (VI) of the letter dated 16.06.2007, the Government has rejected the proposal of creation of creation of 9 nos. of Asst. Manager in the rank of Junior Engineers for regularization in the post of Asst. Project Manager (ad hoc) on the ground that regularization of irregular recruits is not permissible under the State Government Rules. Since the Government Rules are applicable to the Government owned Corporation, the Corporation could take a decision to regularize the irregular recruits without following due process of law and thus, the ad hoc Asst. Project Manager have approached this Court by filing W.P. (C) No. 8350 of 2015 and batch of cases and they have also been impleaded as opposite parties in the present writ petitions. Project Manager have approached this Court by filing W.P. (C) No. 8350 of 2015 and batch of cases and they have also been impleaded as opposite parties in the present writ petitions. The Government of Odisha in Works Department vide its Resolution dated 22.09.2008 decided that the monthly remuneration of Junior Engineers engaged on contractual basis will be enhanced to Rs. 7,150/- plus FTA of Rs. 350/- on completion of 3 years of uninterrupted contractual service and satisfactory performance and further decided that after successful completion of six years of uninterrupted engagement, the Junior Engineers appointed on contractual basis out of the panel sponsored by the Committee of the Chief Engineer maintained by the EIC (Civil) may be considered for absorption in regular establishment/posts with regular scale of pay attached to the post of Junior Engineer subject to availability of sanctioned vacant posts in the cadre of the respective departments. On completion of 3 years contractual engagement, the petitioners have been extended with enhanced monthly consolidated remuneration of Rs. 7150/- w.e.f. 01.10.2008 vide Office Memo No. 138 dated 06.01.2009. The aforesaid remuneration of Rs. 7150/- was again revised to Rs. 9300/- w.e.f. 01.01.2011 vide office memo no. 421/OPHWC dated 17.01.2011. But in the meantime, the Corporation in its 110the Board of Directors Meeting dated 08.03.2011 allowed the Asst. Project Managers (ad hoc) conferring higher power of check measurement and also sought permission to regularize their services in the rank of Junior Engineers contrary to the restructuring programme. At this point of time each of the petitioners approached this Court by filing individual writ petitions registered as W.P. (C) No. 28317 of 2012 and its connected matters with a prayer to regularize their services as per the Government of Odisha Works Department Resolution dated 22.09.2008 as they have completed more than 6 years of uninterrupted contractual service. But the said writ petitions were disposed of on 26.3.2012 giving liberty to the petitioners to file fresh representation before opposite party No.4-Corporation highlighting their grievance who shall consider and take a decision in terms of Resolution dated 22.09.2008 within a period of two months from the date of filing of the representation. Thereafter, the petitioners filed representation on 4.4.2012. Opposite party no. Thereafter, the petitioners filed representation on 4.4.2012. Opposite party no. 4- Corporation vide letter dated 02.06.2012 has rejected the representation of the petitioners on a flimsy ground stating “that a consultant firm called “M/s. Deloitte” has been appointed by the P.E. Department-opposite party No. 2 to conduct a detailed study on Human Resources Management and its restructuring in various cadre in the Corporation which includes Asst. Project Manager (JE) (Civil) and thus, since the report of M/s. Deloitte is being studied. Hence, at this stage it would not be proper to take any view in the matter unless cadre restructuring is finalized and approved by opposite party No. 1. During pendency of the proposal of M/s. Deloitte for restructuring the Corporation and also during pendency of the writ petitions, the State Government in Water Resources Department (being the nodal department of all Engineering Departments) enacted a Rule called as “Odisha Engineering Service (Method of Recruitment and Conditions of Service) Rules, 2012”, hereinafter to be referred to as “Rules, 2012”, vide notification dated 29.12.2012 restructuring the earlier grades under different Departments of Government and constituting new grades under the said Rules, 2012 which has been followed by other Government Departments having Engineering cadre or grade. Since the petitioners’ claim for regularization has been rejected, they have approached this Court by filing these writ petitions. But during pendency of these writ petitions, the Government of Odisha in G.A. Department issued a resolution on 17.9.2013 on the subject to regularize the appointment of existing contractual Group-C and D employees, who are not holding any post in contravention of any statutory Rules made under the proviso to Article 309 of the Constitution of India or any executive instruction in absence of such Rule. In the said resolution under Clause-(1) of item no. 2, it has been categorically decided that on the date of satisfactory completion of six years of contractual service or from the date of publication of the resolution, whichever is later, the contractual employees shall be deemed to have been regularly appointed. Only a formal order of regular appointment shall be issued by the appointing authority. 2, it has been categorically decided that on the date of satisfactory completion of six years of contractual service or from the date of publication of the resolution, whichever is later, the contractual employees shall be deemed to have been regularly appointed. Only a formal order of regular appointment shall be issued by the appointing authority. After issuance of such resolution, the Government of Odisha in G.A. Department issued a notification on 17.1.2014 enacting a Rule called “Odisha Group-B”(Contractual Appointment) Rules, 2013", in short “2013 Rules” for regulating the recruitment and conditions of services of persons appointed on contractual basis to the Group-B posts. The Government of Odisha in G.A. Department vide resolution dated 15.02.214 reiterated the aforesaid rules and prescriptions so far as regular appointment of contractual Group-B employee are concerned. I view of 2013 Rules, the petitioners state that since they have already rendered contractual services for more than six years uninterruptedly, their services have to be regularized in terms of Rule 16 of the said 2013 Rules. Since the opposite party no. 4 Corporation has not regularized the services of the petitioners in terms of 2013 Rules, the present writ petitions have been filed. 4.Mr. J.Das, learned Senor Counsel appearing for the petitioners strenuously urged that the opposite party No. 4 Corporation sought permission to fill up the base level vacant posts pursuant to the letter dated 27.9.2010 in which it has been indicated that 23 Asst. Project Manager (Civil) posts are lying vacant and filing up such posts are badly required along with other posts indicated in the said letter. The minutes of the Screening Committee held on 22.9.2014 in the office chamber of Principal Secretary to Government of Odisha in P.E. Department reveals that decision was taken to fill up the existing sanctioned posts, which were lying vacant after following due procedure and obtaining necessary approval and it was further decided that the opposite party No. 4 Corporation shall submit proposals with sufficient justification and adhering to Government policies and directions for creation of other categories of posts along with considered views of the Administrative Department for consideration by the Committee. Mr. Das, learned Sr. Mr. Das, learned Sr. counsel laid emphasis on Rule 16 of the 2013 Rules and contended that the petitioners having been appointed as contractual employees and they having completed 6 years of contractual service under Rule 9 (Tenure of contractual appointment), they shall be deemed to have been regularly appointed and a formal order of regular appointment should be issued by the appointing authority. Referring to the connotation “deemed to have been”, it is urged that “deemed” means by operation of law and by use of word ‘shall’ it puts a mandate on the authority that the persons who have completed six years of contractual service, they are to be continuing as regular employees and formal order is to be issued by the competent authority. Therefore, the petitioners having completed six years of contractual employment satisfactorily, they are deemed to be continuing as regular employees and are entitled to get consequential benefits in terms of Rule 13 of the 2013 Rules. To substantiate his contention so far as the contention with regard to the meaning and interpretation of ‘deemed’ used in Rule 16 of the 2013 Rules is concerned, he has relied upon the decisions in State of Bombay v. Pandurang Vinayak and others, AIR 1953 SC 244 , Commissioner of Income Tax, Dlehi v. S.Teja Singh, AIR 1959 SC 352 , Industrial Supplies Pvt. Ltd. v. Union of India, AIR 1980 SC 1858 , Rajasthan State Industrial Development & Investment Corporation Ltd. v. Diamond & Gem Development Corporation Ltd., (2013) 5 SCC 470 , and Manish Trivedi v. State of Rajasthan, (2014) 14 SCC 420 . 5.So far as the claim of opposite party nos. 5 to 13 is concerned, it is urged that those opposite parties stand on a total different footing than that of the present petitioners. Admittedly, those opposite parties have been appointed as Asst. Project Manager (Ad hoc) and as has been held in restructuring programme, they are all irregular appointees and therefore, they cannot stand on the same footing as that of the present petitioners. In any case, ventilating their grievances, they have filed separate writ petitions before Court and their cases would be dealt with separately as they have no nexus with the claim made by the petitioners because the basis on which they have been appointed is totally different. 6.Mr. B. Senapati, learned Addl. Govt. In any case, ventilating their grievances, they have filed separate writ petitions before Court and their cases would be dealt with separately as they have no nexus with the claim made by the petitioners because the basis on which they have been appointed is totally different. 6.Mr. B. Senapati, learned Addl. Govt. Advocate has referred to the affidavit filed on behalf of opposite party no. 1 on 17.5.2014, wherein it is stated that the report of M/s. Deloitte pertaining to restructuring of man power deployed in the Corporation, which has been recommended by the Chairman-cum- Managing Director of the Corporation is being examined by the State Government in Public Enterprises Department and the process of restructuring of man power deployed in the Corporation involves action to be taken up by the multi departments like Finance Department, Public Enterprises Department as well as Home Department and thus, for completion of the said process of restructuring the man power deployed , as proposed vide Annexure-1, would take some time for which the State Government requires further time to take a final decision on the said report, which has been recommended by the Corporation. Therefore, he seeks for six months time for taking such decision. 7.Mr. G.P. Dutta, learned counsel for opposite party no. 4 referring to the counter affidavit states that the contractual diploma engineers engaged by the Corporation are not working against any sanctioned vacant posts as approved and communicated by the Government in Home Department vide letter dated 16.6.2007 and therefore, regular absorption of the diploma civil engineers in the Corporation does not arise and such regularization shall be made after consideration of the Human Resource Restructuring proposal of the Corporation, which has been prepared by M/s. Deloitte, a consultancy firm engaged by the Government in P.E. Department to assess the actual requirement of Human Resource in various cadre after due study of the same. At the same time, the opposite party no. 4 has admitted that initially these petitioners have been engaged for a period of one year on contractual basis, but they are still continuing in service and as such the recommendation by the EIC (Civil) on the basis of the request made by opposite party no.2 is also admitted. At the same time, the opposite party no. 4 has admitted that initially these petitioners have been engaged for a period of one year on contractual basis, but they are still continuing in service and as such the recommendation by the EIC (Civil) on the basis of the request made by opposite party no.2 is also admitted. It is also admitted that the Corporation is fully aware of the resolution of the Works Department dated 22.9.2008, in which it is stated that on completion of six years of uninterrupted engagement, the Junior Engineers appointed on contractual basis out of the panel sponsored by the Committee of Chief Engineer maintained by E.I.C. (Civil) shall be considered for absorption in regular establishment posts with regular scale of pay attached to the post of Junior Engineers subject to availability of sanctioned vacant post in the cadre of the respective department. It is further stated that since the report submitted by M/s Deloitte is being examined at Government level, it would not be proper to take any view in the matter unless cadre restructuring is finalized and approved by the Government. 8.Considering the above mentioned pleadings made by the parties, it is to be considered whether the services of the petitioners can be regularized on completion of six years of uninterrupted service and satisfactorily in terms 2013 Rules framed by the Government. 9.From the factual matrix elaborated above, the admitted position is that the petitioners have been engaged on contractual basis as per the requisition made by opposite party no. 4 and their names have been duly sponsored by the competent authority from the panel of names maintained by the Committee of Engineers headed by E.I.C. (Civil) and on that basis though initially they have been allowed to continue on contractual basis for a period of one year, subsequently their services have been extended and as such till date they are continuing in the post and in the meantime all the petitioners have completed more than six years of contractual service satisfactorily and uninterruptedly. All along the opposite parties have taken a plea that for restructuring the Corporation, the M/s. Deloitte submitted its report to the Government, which is under consideration. All along the opposite parties have taken a plea that for restructuring the Corporation, the M/s. Deloitte submitted its report to the Government, which is under consideration. Even though in the counter affidavit filed by the State on 17.05.2014, 6 months’ time was sought for taking a decision on the report submitted by M/s. Deloitte, the said period has already elapsed in the meantime. In the process, the petitioners are being exploited by opposite party no. 4 by utilizing their services without regularizing them. The plea taken that some of them have not been appointed against sanctioned post but the fact that the authorities are allowing the employees to continue for years together indicates that post is available and the plea taken that they are not working against sanctioned post, cannot be sustained in the eye of law. Rendering continuous service against a particular post means there is need of work. While allowing the petitioner to continue in service for more than six years, subsequently the employer cannot say that the petitioners have not been appointed against sanctioned post and therefore their services cannot be regularized. 10.In course of hearing Mr. J.Das, learned Senior Counsel appearing for the petitioners laid emphasis that in exercise of the powers conferred under the provisions of Article 309 of the Constitution of India and in supersession of respective recruitment Rules, orders and instructions so far as the matters relates to mode of employment of the selected candidate to initial appointment to certain Group-B posts of the State, the 2013 Rules has been framed to regulate the recruitments and conditions of service persons appointed on contractual basis to Group-B posts. Under Sub-rule (1) (b) of Rule 2 of 2013 Rules, “Group-B posts” means any Group-B post classified as such by the State Government from time to time. The Junior Engineer working under the State Government in PB-2 in the Scale of Rs. 9300-34800/- with G.P. Rs. 4200/- having been classified as Group-B post, the petitioners who have been engaged on contractual basis against the said posts are coming under the category of “Group-B posts”. Rule 16 of the 2013 Rules reads as follows” “16. Conditions of Service on Regular Appointment : (a) On the date of satisfactory completion of six years of contractual service under Rule 9, they shall be deemed to have been regularly appointed. Rule 16 of the 2013 Rules reads as follows” “16. Conditions of Service on Regular Appointment : (a) On the date of satisfactory completion of six years of contractual service under Rule 9, they shall be deemed to have been regularly appointed. A formal order of regular appointment shall be issued by the Appointing Authority. (b) On regular appointment they shall be entitled to draw the time Scale of pay plus Grade pay with DA and other allowances as admissible in the corresponding pay band. (c) Other conditions of service shall be such as has been provided in the relevant recruitment rules.” 11.The petitioners have satisfactorily completed 6 years of continuous service under Rule-9 of 2013 Rules and therefore, they shall be deemed to have been regularly appointed and only formal order of regular appointment, shall be issued by the appointing authority. On regular appointment the petitioners shall be entitled to draw the time Scale of Pay+ Grade Pay with D.A. and other allowances as admissible in the corresponding pay band and also are entitled to get other consequential benefits which are provided in the recruitment Rules. It is urged that by using the word ‘deemed’ under the Rules means by operation of law, the petitioners’ services are being regularized. 12.In State of Bombay v. Pandurang Vinayak (supra) while interpreting the deeming provision, the apex Court has held as follows: “When a statute enacts that something shall be deemed to have been done, which in act and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. [Vide Lord Justice James in Ex parte Walton , In re Levy, (1881) 17 ch. D. 746 at p. 756 (A)]. If the purpose of the statutory fiction mentioned in S. 15 is kept in view, then it follows that the purpose of that fiction would be completely defeated if the notification was construed in the literal manner in which it has been construed by the High Court. In East End Dwellings Co. D. 746 at p. 756 (A)]. If the purpose of the statutory fiction mentioned in S. 15 is kept in view, then it follows that the purpose of that fiction would be completely defeated if the notification was construed in the literal manner in which it has been construed by the High Court. In East End Dwellings Co. Ltd. V. Finsbury Borough Council, (1952) A.C. 109(B), Lord Asquith while dealing with the provisions of the Town and Country Planning Act, 1947 made reference to the same principle and observed as follows: If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it ….. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.” The said view of the apex Court has been reaffirmed by subsequent judgments in Commissioner of Income Tax, Delhi (supra), Industrial Supplies Pvt. Ltd. (supra), Rajasthan State Industrial Development & Investment Corporation Ltd. (supra) and Manish Trivedi (supra). Therefore, when statute enacts that something shall be deemed to have been done, which in act and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. Therefore, by using words “deemed to have been regularly appointed” under Rule 16 of the 2013 Rule, by operation of law, the petitioners are continuing in service and consequently their services are to be regularized by issuing formal order of regular appointment. By using the word ‘shall’ it puts a mandate on the appointing authority that as the petitioners have already satisfied the requirements of 2013 Rules on completion of 6 years of contractual service and that too uninterruptedly, they shall be issued with a formal order of regular appointment by the appointing authority. By using the word ‘shall’ it puts a mandate on the appointing authority that as the petitioners have already satisfied the requirements of 2013 Rules on completion of 6 years of contractual service and that too uninterruptedly, they shall be issued with a formal order of regular appointment by the appointing authority. The language of the statue is clear and unambiguous and therefore, there is no iota of doubt that on satisfactory completion of six years of uninterrupted service, the petitioners are deemed to be continuing a regular employee of the opposite party no. 4 Corporation and are entitled to get all the consequential service benefits as due and admissible in accordance with law. 13.So far as the claim made by opposite party nos. 5 to 13 is concerned, their source of recruitment and mode of appointment are different from that of the present petitioners and therefore, their claim cannot be equated with these petitioners. That apart they have approached this Court by filing separate writ petitions ventilating their grievances and the same has been considered separately without jeopardizing the claim of the present petitioners, who stand on completely different footing than that of the opposite parties 5 to 13. 14.In view of the aforesaid facts and circumstances, this Court is of the considered view that as per the provisions contained under 2013 Rules, the petitioners, who have been continuing in service on contractual basis for more than six years, are deemed to have been regularly appointed and they shall be issued with formal order of regular appointment by the appointing authority and consequently they are entitled to get the benefits of regular employee as admissible and as permissible under the Rules in view of the fact that they have satisfactorily completed 6 years of uninterrupted contractual service under Rule 9 of 2013 Rules( tenure of contractual appointment) and this Court directs accordingly. Petition allowed.