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2016 DIGILAW 817 (ORI)

PRAVAT KUMAR BISWAL v. STATE OF ODISHA

2016-09-15

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. - This is a writ petition filed seeking the following relief: "It is therefore, humbly prayed that, your Lordship be graciously pleased to admit this writ application, issue notice to the Opposite Parties and after hearing the parties quash the order under Annexure- 1 and direct the Opposite Party No.1 to approve the appointment of the petitioner on regular basis in the post of Peon-cum-Night Watchman and further direct the Opposite Parties to release his salary from the date of his joining against the post of Peon-cum-Night watchman vide order dated 05.10.2010 (Annexure-6) to the writ petition." 2. The fact involved in the writ petition is that the petitioner was initially appointed as a D.L.R. peon on 14.2.1994 under the Konark Notified Area Council-opposite party no.2. As the petitioner's dues were not released in appropriate time, the petitioner moved this Court in W.P.(C) No. 847 of 2013 seeking necessary direction against the opposite parties to consider his grievance for release of outstanding dues. This Court while disposing the writ petition, indicated herein above, on 21.1.2013 directed the opposite party no.1, Secretary, Housing & Urban Development Department to take a decision on the proposal within a period of two months. The said order having not been complied with within the stipulated period of time, as fixed by this Court in disposal of the earlier writ petition, the petitioner was constrained to file a contempt petition vide CONTC No.1079 of 2013, which is claimed to be pending. In the meantime, the opposite party no.1 vide Order No.7690 dated 31.3.2014, as appearing at Annexure-1, rejected the petitioner's prayer for drawl of the salary indicating that the appointment of the petitioner being irregular, is not admissible. In assailing the order under Annexure-1, Mrs. Mohanty, learned counsel appearing for the petitioner contended that the petitioner was initially appointed in the year 1994 as a D.L.R. peon and has rendered continuous service for more than two decades. Considering his unblemished long continuance thereafter, he was given appointment against a regular vacancy in the post of Peon-cum-Night Watchman since 5.10.2010 after following due process of selection and considering his sincerity and devotion in his working. Considering his unblemished long continuance thereafter, he was given appointment against a regular vacancy in the post of Peon-cum-Night Watchman since 5.10.2010 after following due process of selection and considering his sincerity and devotion in his working. The petitioner claims that the opposite party no.1 is the authority to approve the appointment of the petitioner against the sanctioned vacancy and the financial implication is to be borne by the Notified Are Council, which is an autonomous body. Similarly, the impugned order passed by the opposite party no.1 rejecting the claim of release of the salary of the petitioner on the pretext of ban order is illegal, arbitrary and prejudicial and the petitioner having discharged his duty as D.L.R. peon for more than two decades, has a right to claim permanency and arrear salary. It is in these premises, learned counsel appearing for the petitioner contended that the impugned order is bad in law and ought to be interfered with and set aside. 3. On the other hand, on their appearance, the Konark Notified Area Council-opposite party no.2 filed a counter. Sri Jena, learned counsel appearing for the opposite party no.2 referring to its counter affidavit submitted that in the rejection of their proposal by the State, being the competent authority, they had no option to accede to the prayer of the petitioner in absence of the approval of the State. While stating so, the Notified Area Council has admitted that the petitioner, who was initially appointed as a peon in D.L.R. basis in the office of the Notified Area Council, Konark from February, 1994 is also continuing as a Peon-cum-Night watchman since 5.10.2010 being appointed as against a regular vacancy. Similarly, on their appearance, the State-opposite party no.1 by filing a counter affidavit through the Under Secretary, Housing Urban & Development Department submitted that for the reasons assigned in Annexure-1, there is no illegality at the instance of the opposite party no.1 in declining the relief claimed by the petitioner. In substantiating its objection, the State counsel submitted that the petitioner's initial appointment remain contrary to ban on the recruitment of D.L.R./N.M.R./Job contract with effect from 12.4.1993 and further continuance of the petitioner is also illegal in view of the restriction imposed vide Memorandum No.10954 dated 14.3.2001 restricting filling up the base level vacant post. In substantiating its objection, the State counsel submitted that the petitioner's initial appointment remain contrary to ban on the recruitment of D.L.R./N.M.R./Job contract with effect from 12.4.1993 and further continuance of the petitioner is also illegal in view of the restriction imposed vide Memorandum No.10954 dated 14.3.2001 restricting filling up the base level vacant post. The appointment of the petitioner admittedly taken place after the ban order imposed on 12.4.1993 and the appointment of the petitioner was regularized against a regular vacancy during operation of the restriction in the year 2010 when the austerity measure was in vague. Thus, the claims are not sustainable in the eye of law. The request of the petitioner cannot be acceded to looking to the circular of the Finance Department directing absorption of the service of the D.L.R/N.M.R/Job contract in regular work charge establishment prior to 12.4.1993, the petitioner's case for regularization, having been appointed in 1994, is not permissible in any circumstance. 4. Considering the rival contentions of the learned counsel appearing for the respective parties, this Court finds that there is no dispute that the petitioner was initially appointed as a D.L.R. peon on 14.2.1994 and while continuing as such, he was continuing uninterruptedly for about 16 years. The petitioner was again appointed against a sanctioned vacant post of Peon-cum-Night Watchman in a duly constituted selection process in the year 2010 which fact not only been confirmed through Annexure-5, page-18 of the writ petition but there is no denial to the above fact by any concern. Hence, it is confirmed that the petitioner is still some short of employees for over two decades as on date and he is subsequently selected as against a regular vacancy in the year, 2010. Now looking to the submissions of the learned counsel appearing for the opposite parties, this Court on perusal of the ban order dated 12.4.1993, as appearing at Annexure-A/1, this Court finds that the State Government in the appropriate Department refereeing to some of the Finance Department letters dated 1.11.1973, 18.1.1974, 10.3.1975, 25.11.1981 and 14.9.1981 directed the Secretary to Government in All Departments to strictly follow the ban on the recruitment to the work-charged and N.M.R. establishment and also warned all the Secretaries that any recruitment thereafter will be treated as unauthorised and personal responsibility shall be fixed on the Officers making such engagement and disbursing wages on account of unauthorised engagement. Looking to the documents vide Annexure-B/1, filed at the instance of the opposite party no.1, Government of Orissa, Finance Department Office Memorandum dated 14.3.2001, as an austerity measures, the Government not only restricted main recruitment but also provided measures right sizing the working strength with rider for filling up of the base level vacant post in the highly urgently required areas. In Clause-3, in issuing instruction for applicability of the circular, 2001 on the aided institutions/PSUs/Cooperatives/autonomous organisations extended the recommendation. In clause-2 therein, extended instruction to all Aided Institutions/Public Sector Undertakings/Cooperatives/Autonomous etc. On perusal of the documents vie Annexure-C/1, a resolution of the Finance Department, this Court finds Clause-8 of the said resolution as relevant and the same is quoted hereunder: 8. While filling up the regular vacant posts preference shall be given to work-charged employees first. Where no suitable work-charged employees are available to man the post, preference shall be given in the following order i.e. N.M.R./D.L.R./Job Contract workers and others." There is no pleadings forthcoming by any of the opposite parties taking away the effect of the resolution dated 15th May, 1997 resolution, the Finance Department from his own considering the direction of Hon'ble Supreme Court, High Court and Orissa Administrative Tribunal in different cases bringing down the scope in filling up the regular vacant posts by giving preference at the first instance to the work-charged employees and in the second instance in the event work-charged employees are not available to man the post, preference shall be given in the order of N.M.R./D.L.R./Job Contract workers and others. Looking to the resolution of the Finance Department dated 15th May, 1997, as available at Annexure-C/1, to the counter affidavit of opposite party no.1 this Court finds the scheme prepared therein is not to be affected by either notification under Annexure-1 or the office memorandum under Annexure-B/1. The admitted fact involved in the case is that the petitioner was initially engaged as a D.L.R. peon in the year 1994 and subsequently was appointed as a Peon-cum-Night Watchman against a sanctioned regular post of Peon-cum-Night watchman on the retirement of a regular incumbent, namely, Sri Sarbeswar Jena on 31.3.2010. The conditions of ban following austerity measures for the financial difficulties faced by the State has no application to the petitioner's claim. 5. The conditions of ban following austerity measures for the financial difficulties faced by the State has no application to the petitioner's claim. 5. Under the circumstance, this Court finds that the office order dated 31.34.2014, appearing at Annexure-1 disapproving the engagement of the petitioner as Peon-cum-Night Watchman in Konark Notified Area Council with effect from 31.1.2010 is based on wrong and erroneous observation and also on wrong application of circular/office memorandum, which have no application to the petitioner's case. Further, looking to the engagement of the petitioner, who was continuing as a D.L.R. peon since 1994 and based on a selection process appointed in the post of Peon-cum-Night Watchman with effect from 31.3.2010 being covered under the resolution of the Government of Odisha under Annexure-C/1 issued by the Finance Department, the petitioner cannot be deprived from the benefits of salary and other benefits attached to the regular post at least with effect from 31.1.2010. Consequently, while setting aside the order under Annexure-1, this Court directs the opposite parties to treat the petitioner as Peon-cum-Night watchman with effect from the date of his joining i.e. from 5.10.2010, as appearing at Annexure-6 and release all his consequential benefits with interest at the rate of 6% per annum all through. In the result, the writ petition succeeds. However, there is no order as to cost.