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2020 DIGILAW 38 (ORI)

Bishwonath Behera v. State of Orissa

2020-02-05

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. 1. In the accompanied writ petition, the petitioner has sought for regularization of services as JCB driver as per the recommendation made by the Vice-Chairman, Cuttack Development Authority (CDA)-opposite party No. 2 vide letter No. 18584/CDA dated 22.12.2014 and compliance made to opposite party No. 1 of his letter dated 19.06.2015 on 28.7.2015 and further prays to quash the tender call notice for the post of petitioner issued by opposite party No. 2 under Annexure-9. 2. The brief facts as delineated in the writ petition is that the petitioner was initially appointed on 01.10.2012 on daily wage basis, as JCB driver subsequently the services of the petitioner have been extended time and again and last extension was made vide letter dated 06.01.2015. Since 2012 the petitioner has been continuing in services without any break and interruption of services. While continuing as such, a meeting was convened by the opposite party Nos. 2 and 3 on 02.12.2014 and in the said meeting, after thorough discussion, it was decided to move Government, in Housing & Urban Development Department for consideration for regularization of services of 16 numbers of DLR/CLR engaged under the opposite party No. 2. Pursuant to the decision taken by the Committee, the opposite party No. 3 has recommended the case of the petitioner along with 15 others before the opposite party No. 1 for contractual engagement as evident from Annexure-8 to the writ petition. On receipt of the letter from Annexure-8, the opposite party No. 1 has directed the opposite party No. 3 to submit sufficient justification for engagement of DLR/CLR employees of CDA, Cuttack for onward transmission of the same to Finance department for consideration of the proposal at their end. It has been averred in the writ application that 14 numbers of regular posts are lying vacant and the CDA Authority has the power to engage the petitioner against one of such regular vacancies In pursuance to the direction of the opposite party No. 1, the opposite party No. 2 furnished the detailed information on the NMR/DLR/Job Contract workers working under the Establishment of Cuttack Development Authority. It has been further stated that the engagement of NMR/DLR/Daily wage labourer made after 12.04.1993 is illegal and proposal for engagement of those persons on contractual basis does not arise and the said decision of opposite party No. 1 is impugned in this writ petition. It has been further stated that the engagement of NMR/DLR/Daily wage labourer made after 12.04.1993 is illegal and proposal for engagement of those persons on contractual basis does not arise and the said decision of opposite party No. 1 is impugned in this writ petition. Being aggrieved by the decision of opposite party No. 1, the petitioner has been constrained to approach this Court under Articles, 226 and 227 of the Constitution of India for redressal of his grievances. 3. Ms. Deepali Mohapatra, learned counsel for the petitioner submits that the petitioner has rendered services for more than two decades. Since the opposite parties have utilized the services of the petitioner, the services of the petitioner ought to have been regularized in view of the decision of the Hon'ble Apex Court in the case of Secretary, State of Karnatak v. Uma Devi and others : AIR 2006 SC 1806 . 4. Mr. Dayananda Mohapatra, learned counsel for the Cuttack Development Authority by referring to the counter affidavit submitted that the engagement of the petitioner was made illegally and contrary to the instruction of the Government and in absence of sanctioned post Further it has been mentioned that the Government in consideration of the request of the Authority however issued instruction vide letter dated 26.11.2015 and rejected the proposal for engagement of NMR/DLR/daily wages labourer made after 12.04.1993. It has been further submitted that the petitioner was appointed without following due process of law, nor there exist any vacancy in this said post. The resolution of the authority was in respect of contractual engagement which has not been approved by the Government till yet. With the aforesaid averments, the prayer of the petitioner deserves no consideration Learned counsel for the Cuttack Development Authority further submits that services of one similarly situated person, namely, Sri Madhusudan Guru have been regularized in pursuance of the order passed in W.R(C) No. 4189 of 2007, but his appointment was against the vacant sanctioned post and the case of Madhusudan Guru is not applicable to the present case. 5. It would be apposite to refer Sections 4 & 103 of Odisha Development Authorities Act which are quoted hereunder: "4. 5. It would be apposite to refer Sections 4 & 103 of Odisha Development Authorities Act which are quoted hereunder: "4. Staff of the Authority- (1) Subject to such control and restrictions as may be prescribed by rules, the Authority may appoint a Secretary and such number of other officers and employees (including experts for technical work) as may and employees (including experts for-technical work) as may be necessary for the efficient performance of its functions and may determine their designation and grades. (2) The Secretary and other officers and employees of the Authority shall be entitled to receive from the funds of the Authority such salaries and such allowances, if any, and shall be governed by such conditions of service as may be determined by regulations made in this behalf. (3) Notwithstanding anything contained in this Act or in the rules or regulations made thereunder, for the purpose of smooth and efficient administration of the affairs of the Authorities, the State Government may, at the instance of any Authority or otherwise, direct any Authority for transfer of any officer or employee of such Authority, by way of deputation, to another Authority for such period not exceeding six years at a time and on such conditions, as may be specified in the direction. (4) Whenever, any officer or employee belonging to an Authority is transferred under Sub-section (3), the Authority to which the officer or employee is so transferred shall be bound to accept the joining report forthwith, employ him in the service of the Authority and pay all amounts due to him on account of his pay, allowances and other dues from out of the fund of that Authority. 5. 5. Notwithstanding anything contained in this Act or Rules or Regulations made thereunder, the State Government may, at the instance of any Local Authority or Department of the State Government or any other Authority constituted or incorporated under the provisions of any State Act or otherwise, direct any Authority for transfer of any Officer or employee of such Authority, by way of deputation, to such Local Authority or Department of the State Government or any other Authority constituted or incorporated under the positions of the State Act for such period not exceeding six years at a time and on such terms and conditions, as may be specified in the direction and the provision of sub-section (4), shall apply to such deputation mutatis mutandis" "103. Control by State Government-(1) The Authority shall carry out such directions as may be issued to it, from time to time, by the State Government for the efficient administration of this Act. (2) If in, or in connection with the exercise of its powers and discharge of its functions by the Authority under this Act, any dispute arises between the Authority and the State Government, the decision of the State Government on such dispute shall be final. (3) The State Government may, at any time, either on its own motion or otherwise, call for the records of any case disposed of, or order passed by the Authority for the purpose of satisfying itself as to the legality or propriety of any order passed or directions issued and may pass such order or issue such directions in relation, as it may think fit: Provided that the State Government shall not pass an order prejudicial to any person without giving such person a reasonable opportunity of being heard." Rule-6 of the Odisha Development Authorities Rule, 1983 is hereunder: "6. Appointing authority, supervision and control-(1) The powers of appointment, promotion, and punishment of officers and employees of the Authority other than those on deputation shall vest in the Vice-Chairman: Provided that in case of appointment, promotion and removal from service of any officer belonging to Class-1 and Class-II Posts, the exercise of such power by the Vice-Chairman shall require previous approval of the Authority. (2) The Vice-Chairman shall exercise supervision and control over the officers and employees of the Authority and shall subject to the provisions of sub-rule (1), dispose by all questions relating to the services of the said officers and employees and their salaries, allowances and privileges. (3) The Vice-Chairman, with the prior approval of the Authority may, by order in writing, delegate and of his powers, and functions to any of the members of officers of the Authority, subject to such conditions, if any, as may be specified therein. (4)(a) During the period of deputation the concerned employee will draw this pay and allowances in the existing scale of pay, which is fixed by his/her parent organization. (b) He/she shall remain in the cadre of parent organization during the period of deputation. (c) Pay and allowances will be borne by the borrowing authority under intimation of parent organization. (d) The employees will be entitled to Dearness Allowances under the rule of parent organization. (e) House rent allowances will be paid to the deputationist as per norm fixed by the borrowing authority. (f) Any loan or advance will be sanctioned by the borrowing authority and the Service Book will be maintained by the borrowing authority. (g) He/she shall be entitled to the medical facilities as admissible to him/her as per norm fixed by the borrowing authority. (h) The share of CPF/EPF contribution of the employee concerned will be borne by the borrowing authority as per norm fixed by the parent organization and the borrowing authority will deposit the same in the Heads of Accounts of employee concerned. There is no need of change in respect of quantum of EPF contribution from the different Authority. (i) The borrowing authority shall sanction leave- (i) Upto a maximum period days credited to the leave account of the employee during deputation; and (ii) Exceeding the period as in para (i) above shall be sanctioned by the parent organization. (j) Joining time- (i) Not more than one day is admissible to an employee in order to join a new post on transfer within the same Headquarters. A holiday counts as a day for the purpose of this rule. (j) Joining time- (i) Not more than one day is admissible to an employee in order to join a new post on transfer within the same Headquarters. A holiday counts as a day for the purpose of this rule. (ii) Not more than one day excluding holiday and actual time taken for journey in the shortest route is admissible to an employee in order to join a new post when the appointment to such post necessarily involves on transfer from one station to another. Provided the Authority may extend the joining time for a maximum period up to six days in special cases where it is not possible on the part of the employee to join in new post within the period stipulated as in paras (i) & (ii) above (k) The borrowing authority at any time with concurrence of Administrative Department, may revert/repatriate the employee to his parent organization before completion of deputation period and vice versa. (l) The employee shall not be entitled to any other remuneration and concession of pensionary value unless it is specified on the terms of his/her deputation without specific sanction of parent organization (m) The borrowing authority with prior approval of the Administrative Department may initiate disciplinary action against the employee concerned on the ground of misconduct under Odisha Civil Services (Classification, Control & Appeal) Rules, 1962, in case he violates the rules and regulations of the borrowing authority. (n) No deputation shall exceed six years at a time: Provided that it is expedient to do so the Finance Department shall be consulted." In the case of Narendra Kumar Tiwari and others v. State of Jharkhand and others : (2018) 8 SCC 238 , in paragraph-7, it was held that: "The purpose and intent of the decision in Umadevi (3) was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularization and by placing the sword of Damocles over their head. This is precisely what Umadevi and Kesari sought to avoid." 6. After hearing the learned counsel for the respective parties and on perusal of the records, there is no gainsaying of the fact, that the petitioner has rendered services for pretty long period and in view of the decision in the cases of Narendra Kumar Tiwari and others (supra), Uma Devi and others (supra) and in the case of State of Jharkhand and others v. Kamal Prasad and others: (2014) 7 SCC 223 , the case of the petitioner requires reconsideration so far as regularization of service of the petitioner is concerned. 7. The writ petition is accordingly disposed of with' direction to the opposite parties, more particularly opposite party Nos. 1 and 2 to consider the case of the petitioner afresh for regularization of service of the petitioner in view of the judgments cited supra within a period of four months and the decision taken thereof be communicated to the petitioner within the aforesaid period.