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2017 DIGILAW 1241 (ORI)

Sanatana Sahoo v. State of Odisha

2017-11-01

S.PANDA, S.PUJAHARI

body2017
JUDGMENT S.PANDA, J. - The order dated 14.05.2015 passed by Orissa Administrative Tribunal in O.A. No. 3421 of 2014 is assailed in this writ petition, wherein the prayer of the petitioner for regularization/absorption in the post of Junior Data Operator/Computer Operator with all consequential benefits, as has been extended to other similarly situated persons, has been rejected. 2. The brief fact leading to the writ application is as follows: The petitioner having Post Graduate Diploma in Computer Application engaged as Computer Operator in P.H. Sub-Division, Baripada under Executive Engineer, RWSS, Balasore on 01.09.1995. Thereafter, his service was handed over to P.H. Division, Baripada. The Chief Engineer, PH (Urban) vide office order dated 06.11.2002 intimated to the F.A.-cum-Joint Secretary to Government, Housing and Urban Development Department, Bhubaneswar that the petitioner has been directed to work as Computer Operator in Housing and Urban Development Department. Pursuant to such order, the petitioner continued to work as Computer Operator in Housing & Urban Development Department on a consolidated salary of Rs. 7000/-. While working as such, the applicant requested the authorities of P.H. Division as well as the authorities of Housing & Urban Development Department for regularization of his service. Thereafter on the basis of the instruction given by the Chief Engineer, PH (Urban), the Executive Engineer, PH, Baripada furnished a list of employees wherein the name of the petitioner was reflected. In the office of the Housing & Urban Development Department also proposals have been mooted by the authorities to create posts of Data Entry Operator and to regularize the petitioner as no such post of Data Entry Operator was available earlier and the same were required after computerization of official work. The opposite party No. 2 also in his note dated 16.08.2004 requested the Finance Department to consider the case of the petitioner. The Finance Department granted concurrence for creation two posts of Junior DEOs in Housing & Urban Development Department. The said two posts have been filled up on out sourcing basis by service providers. However, the case of the petitioner was not considered in the said vacancy. On the other hand several similarly situated persons were regularized. The Finance Department granted concurrence for creation two posts of Junior DEOs in Housing & Urban Development Department. The said two posts have been filled up on out sourcing basis by service providers. However, the case of the petitioner was not considered in the said vacancy. On the other hand several similarly situated persons were regularized. Therefore, the petitioner approached the Orissa Administrative Tribunal, Bhubaneswar in O.A. No. 3421 of 2013 with a prayer to direct the opposite parties to regularize/ absorb the petitioner in the post of Junior Data Entry Operator/Computer Operator with all service and financial benefits as has been extended to other similarly situated persons. 3. The stand of the petitioner before the Tribunal was that he has been working since 1995 and the persons who are similarly situated like him have already been extended with the benefit of regularization one in the year 2004 and another in the year 2013. While he was continuing in Housing and Urban Development Department, though two posts were sanctioned by the Finance Department, the same were filled up on outsourcing basis. Therefore, non consideration of the case of the petitioner is illegal and discriminatory. 4. The said Original Application was disposed of vide order dated 14.05.2015 wherein the Tribunal held that the claim of the applicant for parity in service conditions with regular employees cannot be accepted and accordingly the Tribunal rejected prayer of the petitioner. The Tribunal in the impugned order also recorded its finding to the effect that the applicant has been working in the office of respondent No. 2-Additional Chief Secretary to Government, Housing & Urban Development Department, since November, 2002 and his services has been appreciated by respondent No. 2 himself which is seen in Note Sheet No. 641/H& UD dated 16.08.2004. Perusal of the said office note it is clear that the petitioner has contributed his service to the fullest satisfactory of the authorities. Due to his efficient working vitals files could have been completed in time. He has a long standing service at his credit since 1995 and hence the authorities recommended his case for regularization. However, the Tribunal rejected the cse of the petitioner for regularization on the ground that as he is not covered under the rules. 5. Due to his efficient working vitals files could have been completed in time. He has a long standing service at his credit since 1995 and hence the authorities recommended his case for regularization. However, the Tribunal rejected the cse of the petitioner for regularization on the ground that as he is not covered under the rules. 5. Learned counsel for the petitioner submitted that through the petitioner has been performing his duty since 1995 and appreciating his performance he has been directed to work under H & UD Department, Secretariat Bhubaneswar since 2002 and juniors to him who were sponsored by the service providers have been regularized, non consideration of his case by the Tribunal for regularization/absorption in the post of Data Entry Operator needs to be interfered with. 6. Learned Additional Government Advocate fairly admitted the service rendered by the petitioner under Housing & Urban Development Department and the fact of regularization of the service of the two Data Entry Operators, who were engaged by service provider on outsourcing basis. It is however submitted by learned Additional Government Advocate that the service of the petitioner could not be regularized in view of the introduction of Odisha Group ‘C’ and Group ‘D’ posts (contractual appointment) Rules, 2003. 7. On perusal of the record, it reveals that the petitioner having the requisite qualification was engaged as Data Entry Operator on 01.09.1995. Since he was computer literate by then and computers were introduced in various departments of the State Government, being satisfied with the performance of the petitioner, on the discussion made between the Chief Engineer, P.H. Orissa with Secretary Housing & Urban Development Departments, vide order dated 06.11.2002, the petitioner was directed to work under Housing & Urban Development Department, at Bhubaneswar. Since then the petitioner has been performing his duty to the best of the satisfaction of all concerned. The Chief Engineer, PH (Urban) vide order dated 17.06.2009 directed all the Executive Engineers of PH divisions to furnish the information about DLR/NMR/HR workers engaged after 12.04.1993 for their regularization. Prior to deployment of the petitioner in Housing & Urban Development Department, there was a meeting on 30.10.2002 wherein it was decided to create the post of Computer Assistants in lieu of abolition of equal numbers of Junior Assistants. Prior to deployment of the petitioner in Housing & Urban Development Department, there was a meeting on 30.10.2002 wherein it was decided to create the post of Computer Assistants in lieu of abolition of equal numbers of Junior Assistants. After the posting of the petitioner also Housing & Urban Development Department vide letter No. 641/HUD dated 16.08.2004 recommended the case of the petitioner for regularization with concurrence of Finance Department. Thereafter in the meeting of all Principal Secretary, it was decided to absorb Data Entry Operators. While the petitioner was so continuing two posts of Jr. Data Entry Operator in the Administrative Department of Housing & Urban Development Department recommended the case of the petitioner and others since their services are badly required. Thus, it is apparent that appreciating his performance, time and again steps are being taken for regularization of his service both by PH Department and U & UD Department. While he was so continuing, even though two posts of Jr. Data Entry Operators were created under H& UD Department, the same were filled up on out sourcing basis from the service provider without due process of selection. Their services have also been regularized. Thus non consideration of the case of an employee, whose services have been utilized for last 22 years, is nothing but exploitation of such employee by his employer. The persons who were sponsored through outsourcing agency by the Service Provider and not through the due process of selection, have already been regularized, whereas the petitioner, has been discriminated on the plea that he has not been appointed by following the Rules meant for Data Entry Operators. 8. Law is well settled in the case of Secretary State of Karnataka and others v. Umadevi reported in (2006) 4 SCC 1 , Wherein at paragraph 53 it has been held as thus:- “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of Courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a onetime measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of Courts or of tribunals and should further endure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” However in the case of State of Karnataka & others v. M.L. Keshari & others reported in (2010) 9 SCC 247 , the principle decided by the Apex Court in the case of Umadevi (supra) has been further clarified and followed. 9. This Court in the case of Prakash Kumar Mohanty v. State of Odisha and others (W.P.(C) No. 22159 of 2012 decided on 28.02.2017) referring to the decisions in the case of Umadevi (Supra) and M.L. Kesari (supra) directed the competent authority to take a decision on the grievance of the petitioner in the light of the observations made in paragraph-53 of the Umadevi case within eight weeks from the date of receipt of copy of the order. 10. Admittedly in the present case, the petitioner having the requisite qualification was engaged as Data Entry Operator since September, 1995 and he has been continuing as such till date without the intervention of the Courts. He approached the Tribunal in the year 2013 for his regularization before the notification issued by the State Government regarding Odisha Group ‘C’ and Group ‘D’ posts (contractual appointment) Rules, 2003. The recruitment rule came into force only in the year 2008 and the rule regarding contractual engagement as contended by the State Government was followed latter on. He approached the Tribunal in the year 2013 for his regularization before the notification issued by the State Government regarding Odisha Group ‘C’ and Group ‘D’ posts (contractual appointment) Rules, 2003. The recruitment rule came into force only in the year 2008 and the rule regarding contractual engagement as contended by the State Government was followed latter on. Thus the engagement of the petitioner at best can be termed as irregular engagement and not illegal engagement. That apart, it is also admitted that sanctioned posts are available since 2009 and the petitioner had also completed more than 10 years by then. 11. In view of the discussion made hereinabove paragraphs and in the peculiar facts and circumstances of this case, this Court is of the opinion that the Tribunal has lost sight of all such facts while passing the impugned order and it has not appreciated the entire facts in right perspective on the light of the aforesaid decisions of the Apex Court. Thus, this Court sets aside the impugned order dated 14.05.2015 passed in O.A. No. 3421 of 2013 and remits the matter back to the authorities to regularize the service of the petitioner by applying the aforementioned ratio and to extend consequential service benefits to the petitioner accordingly, within a period of eight weeks. The writ petition is disposed of accordingly. Petition disposed of.