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2017 DIGILAW 641 (ORI)

KUNJALATA NAIK v. STATE OF ORISSA

2017-06-29

G.R.PUROHIT, M.M.PRAHARAJ

body2017
ORDER G. R.Purohit, Member (Judicial) - The applicant who was working as Sweeper in Govt. Polytechnic Berhampur on monthly consolidated remuneration since 21.11.1995 has moved the Tribunal for regularization of her service by quashing Annexure-3 dated 18.03.2015 by which, her prayer for regularization has been rejected by Resp. no. 2. 2. The brief facts are as follows : The applicant was engaged as a Sweeper on contractual basis in Government Polytechnic, Berhampur against a regular post on 02.11.1995. Resp.no.2. vide letter No. 703 dated 15.02.1996 (Annexure-1) had allowed the vide Principal, Women Polytechnic, Berhampur for engagement of the applicant and five others on contract basis stipulating therein that the contract engagement shall be of three months from the date of their actual engagement. The persons engaged for the purpose shall have to give an undertaking that they will not claim for further extension and their engagement will be terminated if their work is found to be unsatisfactory. Even though these conditions were incorporated in Annexure-1, she was made to continue without break for a period of 18 years still 01.08.2013. She had moved Resp.on.2. in her representation dated 20.11.2012 (Annexure-2) along with some other employees for regularization of their services. In the mean time, the government Odisha department of finance vide Resolution no. 31715/F dated 04.09.2012 (Annexure-3) has prepared a scheme for grant of temporary status and absorption of casual/daily wage labourer engaged in different government establishments prior to 12.04.1993 against regular Grade-D vacancies. The Resp. No. 3 in consideration of the representation at Annexure-2 moved Resp. No. 1 vide his letter no. 1012 dated 08.12.2012 (Annexure-4) for regularization of service of NMR/DLR staff engaged in Government Polytechnic, Berhampur after 12.04.1993. The applicant had approached the Tribunal in O.A. No. 11(B) of 2013 seeking a direction to Resp. Nos. 1 and 2 to regularize her service taking into consideration the recommendation of Resp. No. 3 at Annexure-4. The Tribunal vide its order dated 04.02.2013 directed Resp. No. 1 and 2 to pass appropriate order in respect of regularization of the service of the applicant on the recommendation of Resp.no.3 within two months. Pursuant to that the order of the Tribunal Resp. No. 2 vide his order dated 16.04.2013 (Annexure-6) rejected the claim of the applicant for regularization on the ground that they have been engaged after 12.04.1993 and they have not been engaged through a proper recruitment process. Pursuant to that the order of the Tribunal Resp. No. 2 vide his order dated 16.04.2013 (Annexure-6) rejected the claim of the applicant for regularization on the ground that they have been engaged after 12.04.1993 and they have not been engaged through a proper recruitment process. Thereafter, the applicant was dis-engaged from service with effect from 01.08.2013 and the respondents filled up the above post by a person through out-sourcing. The applicant being aggrieved by her disengagement with effect from 01.08.2013, moved Resp. No. 2 vide her representation dated 23.09.2013 (Annexure-7) for her re-engagement. The applicant again moved the Tribunal in O.A.No.33 (B) of 2014 for a direction to the respondents for regularization of her service. The said case was disposed of by the Tribunal in its in its order dated 02.02.2015 (Annexure-8) directing the respondents to pass appropriate order taking into account the existing rules and guidelines. Pursuant to the order of the Tribunal, Resp. No. 2 again rejected the claim of the applicant vide its order dated 18.04.2015 (Annexure-9) citing the finance department Resolution dated 04.09.2012 (Annexure-3) stating that as she was not appointed prior to 12.04.1993, - her case for regularization cannot be considered. In Annexure-9, it is also mentioned that the case of the applicant cannot be compared with the case of Sri Ambika Pr. Panda who was engaged as a Driver against a Class-III post and his service was regularized vide order of the Hon'ble High Court in W.P.(C) No. 3349 of 2002. The stand of the applicant is that she has continuously rendered service of Sweeper from 21.11.1995 to 01.08.2013 without any break or protection of the court order and in view of the judgment of the Hon'ble Apex Court rendered in the case of State of Karnataka and others v. Uma Devi and others reported in 2006 S.C. 1806, her service is to be regularized, but Resp.no.2 has not considered the same while rejecting her prayer at Annexure-9. Her further stand is that by the time the judgment of Uma Devi was rendered by the Hon'ble Apex Court, the applicant had already put in 10 years of service against the regular Sweeper post with requisite qualification without protection of any court order and therefore, she is entitled to be regularized in the post of Sweeper with all consequential service and financial benefits. Her further stand is that as per the settled principle of law a temporary employee cannot be replaced by another temporary employee and therefore, the applicant could not have been disengaged to keep another person on outsourcing basis. 3. Counter has been filed by the respondents with the following averments: The applicant was engaged for sweeping and cleaning work in the Office of Resp. No. 3 on wage basis. There is no regular post of Sweeper under the disposal of Resp. No. 3, but in view of urgently nature of work she was engaged and was paid consolidated remuneration from wages head. The applicant was engaged from 21.11.1995 to March, 2013 in different spells with break of one or two days between each spell. She was engaged on part time basis and such part time engagement has been discontinue with effect from March, 2013 and not from 01.08.2013 as claimed by the applicant. The Finance Department Resolution dated 04.09.2012 is not applicable to the applicant as the same is meant for the persons engaged on or before 12.04.1993. No regular or contractual Group-D post has been created in the officer of Resp. No. 3 and as such the works are being managed on wages basis. Pursuant to order dated 04.02.2015 in O.A.No. 11(b) of 2013 and Order dated 02.02.2015 of O.A.No.33(B) of 2014, Resp. No. 2 considered the grievance but has rejected the same as the applicant has given undertaking that she would not claim regularization of her service and the Finance department Resolution dated 04.02.2012 is not applicable to the applicant as she was engaged after 12.04.1993. The case of Sri Ambika Pr. Parida cited by the applicant is not similar in nature as Sri Parida was engaged against the regular vacant post whereas the applicant was engaged purely on daily wage basis and not against any regular vacant post. The case of Sri Panda was considered as per the Hon'ble High court's order in W.P.(C) No. 3639/02. As the applicant was not recruited through structural recruitment procedure prescribed by the Govt., her case cannot be taken into consideration in terms of Uma Devi Case. 4. I have heard both the sides. They have advanced their argument in the light of their respective pleadings. 5. A clear stand has been taken in the counter that there is no sanctioned post of Sweeper under the disposal of Resp. 4. I have heard both the sides. They have advanced their argument in the light of their respective pleadings. 5. A clear stand has been taken in the counter that there is no sanctioned post of Sweeper under the disposal of Resp. No. 3 and no regular or contractual Group-D posts even created in the Office of Resp. No.3 and as such works are being managed on wage basis. Annexure-1 shows that the applicant was engaged for Sweeping and cleaning on part time basis with contract amount of Rs. 350/- per month. It further reveals that Respondent No. 2 has specifically directed the vice principal of Women Polytechnic, Berhampur that persons engaged will give undertaking that they will not claim for further extension and their engagement will be terminated if their work is found unsatisfactory. The applicant and others had made representation for their regularization vide Annexure-2 dated 10.11.2012 and Resp. No.3 vide Annexure-4 dated 08.12.2012 after the issue of the Finance Department Resolution dated 04.09.2012 (Annexure-3) had moved the Resp. No.2 to consider the case of the applicant and others for their regularization, but the fact remain that Annexure-3 is not at all applicable to the applicant as the said resolution was meant for casual/daily wage labourer engaged prior to 12.04.1993. So, the rejection of the prayer for regularization by Resp. No. 1 as at Annexure-6 dated 16.04.2013 and at Annexure-9 by Resp. No. 2 basing on Annexure-3 cannot be treated as illegal. The applicant being a part time employee on contract monthly amount, she does not come in the ratio decided by the Hon'ble Apex Court in the case of State of Karnataka v. Uma Devi. Hence, the prayer of the applicant for her regularization has got no merit. 6. However, the facts remain that the applicant was engaged on part time basis on contractual monthly amount since 21.11.1995 and continued till March, 2013, i.e. for around 18 years and in such circumstances, disengaging her without issuing a show-cause notice and engaged another persons through out-sourcing is not justified. There is no pleading on the side of the respondents that the work of the applicant was unsatisfactory. Here even though the prayer for regularization is rejected, the respondents particularly Resp. There is no pleading on the side of the respondents that the work of the applicant was unsatisfactory. Here even though the prayer for regularization is rejected, the respondents particularly Resp. No. 3 is directed to re-engage the applicant as per the previous terms and conditions within a period of two months from the date of receipt of a copy of this order. Accordingly, the O.A. is partly allowed and disposed of. M.M. Praharai, J. - I agree.