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2016 DIGILAW 1212 (ORI)

Bibhuti Bhusan Nayak v. State of Orissa

2016-12-07

D.P.CHOUDHURY

body2016
JUDGMENT : D.P. CHOUDHURY, J. 1. This writ petition has been filed challenging the action of the opposite party no. 3 in rejecting the representation of the petitioner filed for absorbing him against regular/permanent post of Toll Collector after declaring him senior to opposite parties 4 to 18 with a further prayer to quash the engagement letter dated 23.8.1996 of opposite parties 4 to 10. 2. The unshorn details of the facts leading to filing of the present writ petition is that the petitioner had earlier approached this Court in OJC No. 14278 of 1996 praying therein to regularize his service since 20.9.1989 as daily wager and disburse the salary and other allowances as a regular employee of opposite party no. 3-Regulated Market Committee, Kendrapara. This Court, after hearing the parties, disposed of the said writ petition on 3.3.1998 and the relevant portion of the order dated 3.3.1998 is placed below for better appreciation: “In case the petitioner makes a suitable application, the same shall be considered and disposed of expeditiously, preferably, within a period of four weeks from the date of filing thereof. We are sure, in the event such an application being made by the petitioner, the same will be considered and disposed of keeping in mind that he has been rendering service from 1989 onwards and that other persons have already been appointed/engaged on day to day basis.” 3. In pursuance of the aforesaid order, the petitioner made representation to the opposite party no. 3, but the Chairman of the RMC vide Annexure-3 expressed his inability to engage the petitioner on day to day basis as there was no vacancy as daily wager. Now, the petitioner challenges the said finding of the Chairman of the RMC stating that the opposite parties 4 to 18 have been engaged during the same period ignoring the case of the petitioner although the petitioner had been working since 1989 which has also been observed by this Court in the earlier writ petition. So, the petitioner claims that the employees junior to him were appointed on regular basis although this Court has directed to consider his case by taking into consideration his experience since 1989. The petitioner also made grievance that on 23.8.1996 (Annexure-1), opposite parties 4 to 10 have been also engaged on daily wage basis, but the case of the petitioner has not been considered. The petitioner also made grievance that on 23.8.1996 (Annexure-1), opposite parties 4 to 10 have been also engaged on daily wage basis, but the case of the petitioner has not been considered. He further submitted that under Annexure-1 opposite parties 4 to 10 have been engaged and under Annexure-3, the RMC informed that due to lack of vacancy, he could not be engaged, but whenever vacancy would arise, the case of the petitioner would be considered along with others. As the case of the petitioner has been discriminated, he has filed this writ petition with the above prayer. 4. Learned counsel for the petitioner submitted that the opposite party-RMC has illegally recruited opposite parties 4 to 10 on regular basis and also engaged other persons on daily wages basis in spite of the order of this Court passed in OJC No. 14278 of 1996 to consider the case of the petitioner who has been already engaged on daily wage basis since 1989. He further submitted that in view of the observation of this Court passed in OJC No. 14278 of 1996 in favour of the petitioner’s experience, he should be regularized in the post of Toll Collector being senior to opposite parties 4 to 18. Since there is discrimination between the petitioner and his juniors on same set of vacancies, it is illegal on the part of the RMC to engage some person or persons on similar footing ignoring the case of the petitioner. So, he submitted to appoint the petitioner against existing regular/permanent vacancies in order to comply the order of this Court passed in the earlier writ petition. 5. Miss. Mishra, learned Additional Standing Counsel for the opposite parties 1 to 2 submitted that the present writ petition is not maintainable because it has been filed to comply the order of this Court passed on 3.3.1998. She submitted that the concerned Department has considered the representation of the petitioner in pursuance of the order dated 3.3.1998 passed in O.J.C. No. 14278 of 1996 after the representation of the petitioner is received, but the opposite parties could not accommodate the petitioner due to lack of vacancy on daily wage basis and it would be considered as and when the vacancy would be made available to the Department. She thus submitted that the writ petition is not maintainable and as such the same should be dismissed. 6. She thus submitted that the writ petition is not maintainable and as such the same should be dismissed. 6. The main point for consideration is as to whether the petitioner is entitled to regularization? 7. Admittedly the petitioner had filed OJC No. 14278 of 1996 against the opposite parties 1 to 3 praying therein to issue appropriate writ directing the opposite parties to validate the petitioner’s appointment against the permanent/regular post of Toll Collector with effect from 20.9.1989 as he was working on daily basis since then. This Court, after hearing the parties, passed the aforesaid order directing the petitioner to make application which would be considered and disposed of expeditiously within a period of four weeks from the date of filing of the representation by keeping in mind that the petitioner has been rendering service from 1989 onwards and other persons have already been appointed or engaged on day to day basis. So, ultimately this Court has directed the opposite parties to consider the case of the petitioner in view of his experience and that similarly situated persons have already been appointed. 8. Annexure-1 goes to show that opposite parties 4 to 10 have been appointed on daily wage basis vide Memo No. 373(7) dated 23.8.1996. So, two years before the order is passed, the engagement order has been passed engaging the opposite parties 4 to 10. Vide Annexure-3 dated 31.9.1998, the opposite party No. 3 has passed the following order: “xx xx xx xx After careful consideration of your representation received on 10.3.98 the RMC. Kendrapara express its inability for your engagement in day to day basis (as is where is basis) with regret as no vacancy of above category exists at present. In the event of vacancy or necessity in future your case will be considered along with cases of others engaged in similar condition in weekly and bi-weekly markets. This disposes of your representation dated 10.3.98.” 8. From the aforesaid order, it is clear that the representation dated 7.3.1998 submitted by the petitioner has been considered, but the RMC expressed its inability to engage the petitioner on day to day basis as no vacancy was there on daily wage basis. This disposes of your representation dated 10.3.98.” 8. From the aforesaid order, it is clear that the representation dated 7.3.1998 submitted by the petitioner has been considered, but the RMC expressed its inability to engage the petitioner on day to day basis as no vacancy was there on daily wage basis. The order passed in the earlier writ petition was also made to consider the application of the petitioner for engaging him on day to day basis which means to engage him as daily wager but not against a regular vacancy. So, the petitioner has not got any order from this Court to consider his case by regularizing or absorbing him against a regular vacancy although it has been pleaded by the learned counsel for the petitioner that the opposite parties have failed to consider the case of the petitioner against a permanent/regular vacant post. 9. From Annexure-3, it appears that opposite party no. 3 has also assured the petitioner to consider his case to engage him as daily wager as and when vacancy arises. Since the representation of the petitioner has been considered but due to lack of vacancy, it was not considered then but gave assurance to consider his case in future vacancy, it cannot be said that opposite party No. 3 has not considered the case of the petitioner. 10. Learned counsel for the petitioner submitted that there was vacancy for which the opposite parties 4 to 18 got their engagement either on regular basis or on temporary basis. But the case of the petitioner was not considered in spite of the order of this Court. The petitioner has not produced any material to show that on the date the representation of the petitioner is received in pursuance of the order of this Court, there was vacancy, but the opposite parties refused to accommodate him and thereby leaving the case of the petitioner in lurch. The submission of the learned counsel for the petitioner that the case of the petitioner should be considered in view of the long experience on daily wage basis as observed by this Court in its order is not correct because this Court has only suggested to take the experience of the petitioner into consideration, if the opposite parties decides to consider the case of the petitioner against the post available. So, the contention of the learned counsel for the petitioner that this Court has directed to consider the case of the petitioner positively in view of the experience has no any leg to stand. 11. On the other hand, the contention of the learned Additional Standing Counsel that the case of the petitioner could not be duly considered due to lack of vacancy and there is no any contemplation of ignoring the order of the Court perhaps do not stand. This Court finds force with the submission of the learned Additional Standing Counsel as per the discussion made above. Hence, it must be observed that due to absence of vacancy, the case of the petitioner could not be considered as a daily wager and in absence of any observation of this Court passed in the earlier writ petition (OJC No. 14278 of 1996), the case of the petitioner should be considered against a regular/permanent post, the petitioner is not entitled to claim that he has been discriminated against similarly situated employees of the opposite party no. 3. Issue is answered accordingly. 12. In view of the aforesaid observation, this Court is of the view that the petitioner although has made representation in pursuance of the order dated 3.3.1998 passed in OJC No. 14278 of 1996, but due to absence of vacancy, his case could not be considered and assurance by the opposite parties to consider the case of the petitioner in the event of vacancy occurs in future, cannot be said to be faulted with. Considering such aspect, the Court finds no merit with the contention of the learned counsel for the petitioner. Hence, the writ petition, being devoid of merit, is liable to be dismissed and this Court do so.