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2021 DIGILAW 511 (ORI)

Sucharita Mohanty @ Mohapatra v. State Of Odisha

2021-12-21

B.R.SARANGI

body2021
JUDGMENT Dr. B.R. Sarangi, J. - The petitioners, who are working as Data Entry Operators/Computer Supervisors in the establishment of opposite party no.2-State Transport Authority, have filed this writ petition seeking direction to the opposite parties to issue formal orders in their favour regularizing their services in the Pay Band-1- 5200-20,200+GP Rs.1900/-, as per G.A. Department Resolution dated 17.09.2013, on completion of satisfactory service as has been allowed to the similarly outsourced Data Entry Operators in various State Government Departments and other various Government Establishments with all consequential service and monetary benefits. 2. The factual matrix of the case, in brief, is that in order to introduce e-Governance system in the Road Transport Sector, Govt. of India in the Ministry of Road Transport & Highways, in exercise of their powers conferred under Sections 27, 64, 110 & 137 of the Motor Vehicle Act, 1988, amended the Central Motor Vehicle Rules, 1989 w.e.f. 31.05.2002, vide Ministry of Road Transport & Highways Notification No.GSR- 400(E) dated 31.05.2002 . The said Rules were called as the Central Motor Vehicle (Third Amendment) Rules, 2002. The said notification authorized both the State Government and Union Territories to specify their respective notification. Basing on the said notification of the Government of India, opposite party no.1 issued guidelines dated 10.08.2004 to implement the mandatory statutory provisions of Central Motor Vehicle (Third Amendment) Rules, 2002 by inviting private participation to carry out entire e-Governance system in the Road Transport Sector including various functions relating to issuance of Smart Card based driving license, registration certificates and other functions of the Transport Department in the State of Odisha. Thereafter, Govt. of Odisha-opposite party no.1 invited proposals from successful bidders vide NIT dated 15.09.2005 and finally accepted the bid of M/s. Smart Chip Limited, New Delhi-M/s Smart Chip (P) Ltd. by issuing letter of acceptance dated 01.05.2006 for implementation of the aforesaid project. 2.1. Opposite party no.1 made Registered Concession Agreement on 29.07.2006 with M/s. Smart Chip Ltd., New Delhi as the 'Concessionaire' for implementation of the specified services as defined in Schedule-II for a period of 15 years commencing from the date of agreement, i.e 29.07.2006. The tenure of the said agreement with M/s. Smart Chip Ltd. would come to an end during 2021. The agreement dated 29.07.2006 defines the term 'Govt. The tenure of the said agreement with M/s. Smart Chip Ltd. would come to an end during 2021. The agreement dated 29.07.2006 defines the term 'Govt. of Odisha Offices' to mean Regional Transport Office (RTO) and office of the Transport Commissioner, Odisha and further the 'Govt. of Odisha Receipts' has been defined to mean the moneys for issuance/renewal/amendment/ providing other services, including penalties and other incidental levies, in accordance with the Act in respect of fees for driving licence, fees for Learner Licence, fees for Registration Certificate, fees for Trade Certificate, fees for Fitness Certificate, Motor Vehicle Tax and Permit Fees. 2.2. Under Article-5 of the said agreement, the Govt. of Odisha-opposite party no.1 was to provide all reasonable assistance to the Concessionaire for procuring electrical and water connections. Under Article-6 of the agreement, the authority has been given to the Concessionaire for levying and collecting appropriate service charges from users for rendering special services in accordance with Schedule-IV of the agreement. Perusal of the agreement would reveal that the entire governmental work of the State of Odisha in respect of e-Governance of the Transport Department including Smart Card Based Driving License, Registration Certificates and other functions of the Department including collection of Govt. Fees and Receipts under the Act, as defined in the agreement, have been assigned to the said Concessionaire, namely, M/s. Smart Chip Ltd., New Delhi. On behalf of State of Odisha-opposite party no.1, the Principal Secretary to Govt., Commerce & Transport Department had signed the agreement. Instead of implementing the e- Governance System in Transport Department by appointing persons in its various offices of STA, RTO and other Govt. Offices under the Transport Department, opposite party no.1 had introduced the aforesaid new device of implementing the e-Governance project through M/s. Smart Chip (P) Ltd. permitting the said private opposite party to make contractual appointment of IT Personnel on daily wage basis by the process of 'Walk-in-interview' as against the posts sanctioned for each Govt. Offices of the STA and RTOs. For such engagement of IT personnel, State Government had prescribed modality for selection of those IT Personnel through M/s. IDCOL Software Ltd., a State Govt. Agency for conducting a transparent selection. Offices of the STA and RTOs. For such engagement of IT personnel, State Government had prescribed modality for selection of those IT Personnel through M/s. IDCOL Software Ltd., a State Govt. Agency for conducting a transparent selection. Thereafter, opposite party no.2 in its letter dated 13.02.2007 communicated to the MD, M/s. IDCOL Software Ltd. the details regarding the role, responsibility, educational qualification and experience required for those IT Personnel, including the Assistant Programmers. 2.3. M/s. Smart Chip (P) Ltd. notified for 'Walk-in-interview' for appointment of Computer Operators with qualification of PGDCA. As a consequence thereof, M/s. Smart Chip Ltd. in consultation with M/s. IDCOL Software and with the permission of the State Govt. in Finance Department, engaged IT Personnel, including petitioners, as Data Entry Operators/Supervisors, having requisite qualification of PGDCA, on being selected through 'Walk-in-interview', in the office of the Regional Transport Officer, Rourkela on fixed term employment basis in the aforesaid project as per 'Offer of Employment' with a consolidated amount per month on and from the date of their joining. Petitioners joined in their respective services in between 2008 and 2015. After six months of their continuance, all of them were confirmed in their services. 2.4. As the petitioners have completed 6 years of service, they claim for regularization of their services. The issue of regularization of similarly situated outsourced and contractual employees engaged in various Tahasils of the State was the subject matter of consideration by the State Govt. In the Minutes of meeting held on 28.04.2012, it was decided that Data Entry Operators engaged on contractual basis in Tahasils should continue and should not be disengaged till a decision regarding regularization is finalized, and that the Govt. was contemplating to frame policy on regularization of contractual Data Entry Operators in various Departments. 2.5. During continuance of the petitioners as contractual outsourced Data Entry Operators, the Govt. of Odisha promulgated a policy for regularization of services of existing outsourcing and direct contractual Group-C and Group-D employees working under the State Govt., vide G.A Department Resolution No.26108 dated 17.09.2013. was contemplating to frame policy on regularization of contractual Data Entry Operators in various Departments. 2.5. During continuance of the petitioners as contractual outsourced Data Entry Operators, the Govt. of Odisha promulgated a policy for regularization of services of existing outsourcing and direct contractual Group-C and Group-D employees working under the State Govt., vide G.A Department Resolution No.26108 dated 17.09.2013. As per the said policy, for regular appointment a gradation list of such contractual employees shall be prepared by the appointing authority on the basis of their date of appointment and regular appointment of those categories of contractual employees shall be made on the date of completion of six years of service or from the date of publication of the resolution, whichever is later. 2.6. The period of six years shall be counted from the date of contractual appointment prior to publication of the resolution. As per paragraph-2 of the Resolution dated 17.09.2013, on the date of satisfactory completion of six years of contractual service or from the date of publication of the resolution, whichever is later, they shall be deemed to have been regularly appointed and a formal order of regular appointment shall be issued by the appointing authority. Consequent upon regular appointment under the contractual post, if any, shall get re- converted to regular sanctioned post. In case the person concerned has crossed the upper age limit for entry into Government service on the date of contractual appointment for the corresponding regular post, the appointing authority shall allow relaxation of upper age limit. Subsequently, Government of Odisha in G.A Department issued another resolution on 16.01.2014 expressly clarifying the G.A Department Resolution dated 17.09.2013 that proposal for regularization of contractual appointments/ engagements as per resolution dated 17.09.2013 shall be considered and approved by the High Power Committee to be constituted under the Chairmanship of the concerned Department. Departments of Higher Education, Tourism & Culture and the Dean & Principal, SCB Medical College & Hospital, Cuttack, have implemented the G.A Department resolution for the Data Entry Operators in their respective posts w.e.f. 17.09.2013 in P.B.-1 Rs.5,200-20,200 with GP Rs.1900 and/or Rs.2400/-. Similarly situated outsourced employees like the petitioners, having been regularized, as per resolution dated 17.09.2013, the petitioners' claim for similar benefit should be extended to them. Similarly situated outsourced employees like the petitioners, having been regularized, as per resolution dated 17.09.2013, the petitioners' claim for similar benefit should be extended to them. Similarly, the Data Entry Operators working under CT & GST Organization, who were initially engaged on outsourcing basis in 2005-07 were brought as direct contractual in February, 2008 had approached the Odisha Administrative Tribunal, Cuttack by filing O.A. No.2172(C) of 2015 (Jatin Kumar Das v. State) and batch for regularization of their services, as per G.A Department Resolution dated 17.09.2013, and the Tribunal allowed their claim vidfe judgment dated 17.05.2017. Aggrieved thereby, the State approached this Court by filing W.P.(C) No.6661 of 2018 and this Court, vide judgment dated 10.05.2018, dismissed the said writ petition. The State then carried the matter to the apex Court in SLP(C) No.18642 of 2018, which was also dismissed vide order dated 06.08.2018. Thereafter, all the Data Entry Operators working in CT & GST Organization were regularized, pursuant to the judgment dated 17.05.2017 passed in the case of Jatin Kumar Das (supra). The petitioners' case being identical to the Data Entry Operators in CT & GST, similar benefit should be extended to them. 2.7. Basing upon G.A Department Resolution dated 17.09.2013, all the Data Entry Operators, including the petitioners, submitted their representations on 06.06.2015 to opposite parties no.1 & 2 and also to the Chief Secretary, Home Secretary, Finance Secretary and Secretary, G.A. Department, Govt. of Odisha seeking necessary action for regularization of their services under opposite parties no.1 & 2 with issuance of formal appointment order in their favour, as they have completed more than 10 years of service. Thereafter, the petitioners' Union made a detailed representation on 28.07.2017. Accepting the request of the association, the Addl. Commissioner of Transport, STA furnished all necessary details of the Data Entry Operators continuing on outsourcing basis, opposite party no.1 vide letter dated 25.02.2019 referred the matter to the Special Secretary G.A. Department for needful action. Since no action was taken, the petitioners approached this Court by filing W.P.(C) No.29349 of 2019 and this Court vide order dated 09.01.2020 in I.A. No.18563 of 2019 passed interim order directing that status quo as on date in respect of the petitioners be maintained till the next date. Since no action was taken, the petitioners approached this Court by filing W.P.(C) No.29349 of 2019 and this Court vide order dated 09.01.2020 in I.A. No.18563 of 2019 passed interim order directing that status quo as on date in respect of the petitioners be maintained till the next date. In the meantime, Transport Commissioner-cum-Chairman, STA issued letter dated 05.12.2019 approving the proposal of various Regional Transport Officers for deployment of additional DEOs and other staff in the financial year 2019-20 through service provider on daily wage basis. Prior to the said letter, steps were taken at the instance of opposite party no.1 and instructions were issued by the Transport Department with the intention to dispense with the services of the petitioners working on outsourcing basis. Consequentially, the petitioners when met opposite party no.3 on 16.12.2019 to ascertain about their claim in the context for deployment of additional DEOs, in turn the said opposite party stated that after such additional deployment, the services of the outsourcing employees would be dispensed with and to reaffirm the same, opposite party no.2 issued letter dated 20.02.2020 by directing the outsourcing agency not to deploy persons so engaged by it for more than 3 years at one place and to take appropriate action in terms of Finance Department OM No.37323/F dated 30.11.2018 and Transport Department letter dated 13.11.2019 and opposite party no.1 also accorded post facto approval for engagement of 350 manpower on daily wage basis by the service provider up to 30.09.2020. As a consequence thereof, there is every reasonable apprehension that the petitioners' services may be dispensed with at any point of time by opposite party no.2 even during pendency of their claim for regularization. 2.8. The Finance Department has also taken decision on austerity measure due to COVID 19 and issued office memorandum dated 07.07.2020 stating that the persons, who are engaged on outsourcing basis, are to be paid their entitlement as per the terms and conditions of the engagement till contract period ends. If the contract period ends within the lock down period, then the entitlements to be paid till the end of the contract period. If the contract period ends within the lock down period, then the entitlements to be paid till the end of the contract period. Being aggrieved by such action, the petitioners filed W.P.(C) No.9878 of 2020 seeking direction to the opposite parties to take a final decision on the issue of regularization of the petitioners in service as Data Entry Operators/Computer Operators in the establishment of STA in the scale of pay of Rs.5,200-20,200 + GP Rs.2400/- with effect from the date of their completion of six years of services with consequential benefits as per resolution dated 17.09.2013. The said writ petition was permitted to be withdrawn on 07.10.2020 granting liberty to the petitioners to file a better application. It is contended that the petitioners' cases are identical to the case of the petitioners in W.P.(C) Nos.10190, 9968, 10240 and 10243 of 2019 and W.P.(C) No.27248 of 2019, who have been extended regularization of their services. Therefore, the petitioners seek similar benefit and lay emphasis that the petitioners having completed six years of service on outsourced contractual basis, as per G.A. Department resolution dated 17.09.2013, they are deemed to have been regularized. Hence this application. 3. Mr. B.S Tripathy-1, learned counsel for the petitioners admitting the fact that the petitioners were engaged by outsourcing agency, emphatically urged that they have been rendering service for opposite party no.1-Transport Organization for more than 10 years continuously and that though essentially they are discharging the nature of duties assigned to government service, but they are being paid by outsourcing agency. Such an action is nothing but a camouflaged approach made by the State authorities to the service rendered by the petitioners just to deprive them of the benefits of contractual employment, as per resolution dated 17.09.2013 passed by the Government in G.A. Department and subsequent Rules framed in 2013 called 'Odisha Group-'C' and Group-'D' Posts (Contractual Appointment) Rules, 2013'. It is also contended that even though the petitioners are engaged on outsourcing basis, they are discharging their duties and responsibility of the State and, therefore, they are entitled to get regularization in terms of the Government resolution dated 17.09.2013 and rules framed in 2013, as have been referred to above. It is further contended that the petitioners' appointment may be considered to be irregular one, but cannot be said to be illegal, as they have come through the process of selection. It is further contended that the petitioners' appointment may be considered to be irregular one, but cannot be said to be illegal, as they have come through the process of selection. Consequentially, they are entitled to get the benefit of contractual appointment in terms of G.A. Department resolution dated 17.09.2013 and subsequent Rules framed in 2013. It is further contended that even though the petitioners are employed through outsourcing agency, there exists master-servant relationship between the petitioners and the opposite parties, thereby, they are entitled to get regularization. More so, if the services of similarly situated persons have already been regularized, the petitioners cannot be discriminated. Therefore, their claim for regularization on contractual basis has to be considered by the Government in proper perspective. It is further contended that similar question had come up for consideration before this Court in Rashmi Rekha Dash v. State of Odisha (W.P.(C) No.16906 of 2020, disposed of on 23.11.2021), wherein this Court, after dealing with a catena of decisions, passed an elaborate order extending the benefit. Therefore, the petitioners being stood on the same footing, in terms of the said judgment, the benefit should be extended to them. 4. Per contra, Mr. P. Behera, learned Standing Counsel for Transport Department fairly stated that the petitioners have been appointed through the outsourcing agency and they are being paid by outsourcing agency and as such, there is no existence of master-servant relationship between the petitioners vis-a-vis the State. By referring to various provisions of the agreement executed between the State and the outsourcing agency, he contended that though the petitioners are being engaged by outsourcing agency and are performing their duties and responsibility under the State authority, they cannot claim regularization of their services or absorption on contractual basis. It is further contended that there is strong distinction between the contract of service and contract for service. In support thereof, he has referred to the provisions contained in offer of employment, such as Clause-1, 2, 3, 4, 5 & sub-clause (iv), (v) & (vi) of Clause-7. Thereby, he contended that since the petitioners have been engaged by outsourcing agency through an offer of employment, there is no existence of master servant relationship so as to claim for regularization of their services under the State authority. Thereby, he contended that since the petitioners have been engaged by outsourcing agency through an offer of employment, there is no existence of master servant relationship so as to claim for regularization of their services under the State authority. He has also placed reliance on Clause-A, Clause-2.1.1, sub-clause (iii) of Clause-2.1.2 of Article- 2, Clauses-5.1, 5.3, 5.3.2, 5.3.3, 5.3.4 of Article-5, Clauses-11.1, 11.1.8 of Article-11, Clauses-14.2.2, 14.2.4, 14.02.5 of Article-14, Clauses-2, 3, 13, 15 of Schedule-II and Schedule-IV of Concession Agreement under Annexure-A/1. To substantiate his contention, he has relied upon the judgment of the apex Court in Dharangadhara Chemical Works Ltd. v. State of Saurashtra, AIR 1957 SC 264 ; Chintaman Rao v. State of M.P., AIR 1958 SC 388 ; Punjab Land Development Recreation Corporation v. Labour Court, (1990) 3 SCC 682 ; Balwant Rai Saluja v. Air India Ltd., (2014) 9 SCC 407 and the judgments of this Court in Rashmi Rekha Dash v. State of Odisha (W.P.(C) No.16906 of 2020, disposed of on 23.11.2021) & Santosh Kumar Muduli v. State of Odisha (W.P.(C) No.18877 of 2021, disposed of on 23.11.2021) 5. This Court heard Mr. B.S. Tripathy-1, learned counsel for the petitioners and Mr. P. Behera, learned Standing Counsel for Transport Department by hybrid mode. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petitions are being disposed of finally at the stage of admission. 6. From the factual matrix and the rival contentions as narrated above, it is unraveled that the petitioners, having been undisputedly engaged by outsourcing agency, are discharging their duties and responsibility in different offices of the State Transport Department as Data Entry Operators/Supervisors. Essentially, the nature of work, as has been discharged by the petitioners, is for the Government and of the Government, and payments have been made to them through outsourcing agencies by the Government. Even if they are discharging their duty as Data Entry Operators/Supervisors for the Government, of the Government and by the Government, the benefit of regularization on contractual basis also accrued to them in terms of nature of duty discharged by them, even though they have been engaged in a camouflaged manner through service providers. More so, recruitment rules have already been framed by the Government bringing them into the fold of regular contractual posts. More so, recruitment rules have already been framed by the Government bringing them into the fold of regular contractual posts. But, in the name of financial crunch or by adopting some plea or the other, the Government even though is a model employer, is not making their appointment as regular contractual by following due procedure or rules governing the field for recruitment to the regular posts. Many a times, it is observed that the Government is engaging the people through outsourcing agencies and by paying a paltry sum of money is extracting the work similarly to regular employees of the Government. Thereby as a model employer, the Government is exploiting the employees, those who have been engaged by outsourcing agencies, by depriving them of getting their legitimate dues in terms of regular employment or in terms of contractual employment as per rules applicable to them. 7. The Government in the name of technological development depriving the manpower utilization for its betterment. No doubt, technology has got its own place for growth of the State, but that does not mean it will not create any employment causing a massive inconvenience to the youths of the country. Consequentially, there is brain drain of multi- laundering the persons to the country and outside the country. Therefore, the Government should be careful that the eligible persons are not denied employment in the name of technological development. It is easy to utilize the outsourcing agencies for supply of manpower, but that itself amounts to exploiting the young generations upon whom the future of the State as well as the country rests. Once youth is exploited, frustration grows up and ultimately it will have tremendous adverse effect on the growth of the State, resulting in creating disastrous conditions, which should be taken care of by the Government as a model employer. But instead of doing so, as it appears, steps are being taken from time to time to cause harassment to the youths by generating unemployment, which will have grave repercussions on the State and at that time the State cannot control the situation. 8. But instead of doing so, as it appears, steps are being taken from time to time to cause harassment to the youths by generating unemployment, which will have grave repercussions on the State and at that time the State cannot control the situation. 8. In a similar situation, in Rashmi Rekha Dash (supra), this Court had occasion to consider the similarly placed persons by relying upon various judgments of the apex Court, including the judgments cited by the opposite parties herei, and applying the piercing the veil, has come to a definite finding that the petitioners are discharging the duties and responsibilities of the government, for the government and by the government. Though they have been paid their remuneration through the outsourcing agency, that ipso facto cannot be said that no master- servant relationship exists between the petitioners and the State opposite parties for whom they are rendering the services. 9. So far as the contention raised by Mr. P. Behera, learned Standing Counsel for Transport Department, that the present case is distinguishable from the judgment in Rashmi Rekha Dash (supra) is not substantiated how the same is distinguishable and more so, the contentions so raised by him referring to various clauses of agreement, were also raised in Rashmi Rekha Dash (supra). Thereby, the petitioners being stood in the same footing like the petitioner in Rashmi Rekha Dash (supra), the benefit should be extended to them in the light of the said judgment. As such, the said judgment is fully applicable to the present case. 10. Considering from other angle, if all the above aspects borne in mind, it would apparently be made clear that the petitioners are discharging the duty and responsibility akin to the State Government employees, though they are being paid through the outsourcing agencies. Needless to say, similarly situated employees like Jatin Kumar Das and Others, who were working as DEOs, had approached the Tribunal in O.A. No. 2172 (C) of 2015 and batch, which were allowed vide judgment dated 17.05.2017. The judgment so passed by the Tribunal was challenged before this Court in W.P.(C) No.6661 of 2018, which was dismissed by judgment dated 10.05.2018. Although the said judgment was assailed by the State in SLP No.18642 of 2018, but the same was dismissed on 06.06.2018. The judgment so passed by the Tribunal was challenged before this Court in W.P.(C) No.6661 of 2018, which was dismissed by judgment dated 10.05.2018. Although the said judgment was assailed by the State in SLP No.18642 of 2018, but the same was dismissed on 06.06.2018. Pursuant thereto, all the DEOs working under the CT & GST Department having been regularized, the petitioners cannot be discriminated from Jatin Kumar Das & others, so as to deprive them of the benefit of contractual appointment in terms of resolution dated 17.09.2013 or Rules, 2013, otherwise it will amount to violative of Article 14 of the Constitution of India. 11. In view of the facts and circumstances, as discussed above, this Court is of the considered view that as the petitioners are discharging the duties and responsibilities for the Government, of the Government and by the Government, even though they have been paid through outsourcing agencies, they are entitled to get the benefit of contractual appointment, as per resolution dated 17.09.2013 or they may be brought over to the contractual establishment in view of the 2013 Rules governing the field, since they stand at par with the employees those who have been absorbed in CT&GST Department, pursuant to the judgment of the Tribunal in Jatin Kumar Das (supra). Thereby, the ratio decided in Rashmi Rekha Dash (supra) is fully applicable to the present case. As a consequence thereof, such benefits should be extended to the petitioners as expeditiously as possible, preferably within a period of three months from the date of communication of this judgment. 12. In the result, the writ petition is allowed. However, there shall be no order as to costs.