ADITYA NARAYAN MISHRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioner files this writ petition while seeking quashing of the order passed by the opposite party no.1 vide Annexure-9 and also the order at Annexure-11 also seeks declaring the format of model form for written undertaking of the employees appearing at Annexure-13 and also to give a direction to the opposite parties to regularize the services of the petitioner as Junior Engineer with effect from his date of initial appointment as well as to pay the petitioner the scale of pay that was provided to him while continuing as Junior Engineer following the direction of this Court vide Annexure-14 and further also interfering in the order at Annexure-15 and thereby directing the opposite parties to regularize the service of the petitioner with effect from 13.8.1998 in place of 8.1.2012 as has been done vide Annexure-15.

(2.) Short background involving the case is that petitioner acquired diploma in engineering from Bhubanananda School of Engineering in the year 1993. He enrolled his name with the State Government in the National Highway Department and empanelled his name as engineering personnel (Civil) for engagement following a guideline of the State Government that no Graduate Engineer or Diploma Engineer in Civil would be engaged under State Government or Government Undertaking without enrolled/listed with the State Government under the empanelment scheme. On 13.11.1997 petitioner's name was sponsored by opposite party no.1 for appointment as Junior Engineer temporarily under the opposite party no.2 following which opposite party no.3 issued appointment order under the direction of the Chairman of the Municipality on 9.12.1997. Petitioner was appointed for 44 days and also on contractual basis @ Rs.2,000/- per month. While the matter stood thus, the Municipal Council in its sitting No.8 dated 29.11.1997 approved vide Resolution No.14 the appointment of the petitioner on contractual basis for 44 days pursuant to which the appointment letter dated 13.11.1997 was issued to the petitioner. On completion of 44 days, service of the petitioner was extended by the Council in its meeting held on 31.1.1998 allowing him to continue for further 44 days vide Annexure-4. While the petitioner continuing as such, opposite party no.2 in its sitting No.17 dated 30.5.1995 vide Resolution No.9 as appearing at Annexure-5 decided to appoint the petitioner on ad-hoc basis again in terms of contractual basis in the scale of pay of Junior Engineer prescribed by the State Government till regular process of selection and appointment is made to the said post. Petitioner was consequently issued with appointment order dated 9.6.1998 prescribing the scale of pay for the post of Junior Engineer i.e. Rs.1400/- to Rs.2600/- but again on 44 days basis. Petitioner alleged that this appointment vide Annexure-6 remained contrary to the resolution vide Annexure-5. It is while the matter stood thus, Junior Engineers (Civil) who were working either in Municipality or Notified Area Council or under the Urban Local Bodies on ad-hoc/ILR//NMR and contractual basis were all regularized by opposite party no.1 vide order No.26613 dated 13.8.1998 vide Annexure-7. Petitioner alleged that even though he was appointed prior to this date, his case was not considered and the petitioner suffered for no timely recommendation of his case by the opposite party no.3 and petitioner thus contended that had the name of the petitioner being recommended timely, he could have been also regularized along with similarly situated persons, who have all been regularized by virtue of the direction in annexure-7. While the matter stood thus, opposite party no.1 issued letter dated 19.4.2000 addressed to the Revenue Divisional Commissioner and all Collectors by reprimanding the action of Councils of Urban Local Bodies for appointing temporary employees in violation to Section 73(A) of the Orissa Municipal Act and therefore, directed the Urban Local Bodies should be cautioned not to give promotion in violation of section 73(A) of the Act. In the meantime, petitioner came across a letter of the Under Secretary dated 1.6.2000 directing disengagement of the petitioner following the direction of opposite party no.1 dated 19.4.2000 and dated 1.6.2000 appearing at Annexures- 8 and9 respectively. However, petitioner was not relieved and was allowed to continue. The order at Annexure-9 being challenged in filing the present writ petition, in the counter it is surfaced that by further direction of the opposite party no.1 dated 3.12.2005, petitioner's service has been placed at the disposal of Notified Area Council, Pattamundai again intimating he petitioner therein to have been posted on contractual basis on consolidated salary of Rs.4,000/- against the existing vacancy appearing at Annexure-11. It is on receipt of such order, the opposite party no.2 relieved the petitioner on 7.1.2006 to enable the petitioner to join in his new place of posting , which fact was communicated to the petitioner vide memo no.25 dated 6.1.2006 appearing at Annexure-12. Petitioner on being relieved from Choudwar Municipality, submitted his joining report before the Chairman, Pattamundai Notified Area Council. It is at this stage, the Executive Officer, Pattamundai Notified Area Council asked the petitioner to give a written undertaking as appearing at Annexure-13. It is seeking an interim protection involving the above order, this Court in disposal of Misc. Case No. 1329 of 2005 vide order dated 22.12.2005 directed that in the meantime the salary of the petitioner, he was getting earlier, shall not be reduced in any manner. While the matter stood thus, Office order was again passed by the opposite party no.1 on 9.4.2012 regularizing the services of the contractual Junior Engineers (Civil) in the post of Junior Engineer(Civil) to LFS cadre from the date of completion of six years of uninterrupted service. Petitioner's name was shown at Sl.No.10 taking the date of contractual service of the petitioner on 9.1.2006 and consequently petitioner treated to have completed six years of uninterrupted service on 8.1.2012 vide Annexure-15 giving rise him to file the writ petition and the consequential amended writ petition presently under consideration.

(3.) Sri J.K.Rath, learned senior counsel appearing for the petitioner taking this Court to the entire documents involved herein contended that looking to the length of service of the petitioner even assuming that petitioner was a 44 days appointee from the beginning but, however, taking into consideration the decision of the competent authority regularizing 45 Junior Engineer (Civil) working on contractual basis in the post of Junior Engineer on 13.8.1998 contended that the petitioner though was continuing along with the above 45 Junior Engineers but for the inaction of the opposite parties, his employer, he is made to suffer for there being no recommendation of his name at that point of time. Secondly, taking to the subsequent decision of the authority involving Resolution No.9 to appoint the petitioner on ad-hoc basis in the scale of Junior Engineer, Sri J.K.Rath, learned senior counsel contended that for the petitioner not being regularized along with other similarly situated persons, at least considering the Resolution No.9 to allow the petitioner to the scale of pay of Junior Engineer vide order dated 9.6.1998, petitioner deserved to be regularized as Junior Engineer in the minimum from 9.6.1998. It is in the background of the case, Sri J.K.Rath, learned senior counsel again contended that in spite of full knowledge with the Municipality, all the victimization meted to the petitioner for not being regularized is only for the latches of the Municipality. Sri Rath, learned Senior Advocate in the circumstances contended that there was no occasion on the part of the Municipality to appoint him again on contractual basis on consolidated salary of Rs.4,000/- in Pattamundai Notified Area Council vide Annexure-11. Referring to the subsequent regularization of the petitioner vide Annexure-15, Sri Rath, learned senior counsel contended that instead of regularizing the petitioner from 8.1.2012, he should have been regularized along with 45 Junior Engineers, who have been regularized by the order of the competent authority since 13.8.1998. It is in the above circumstance, Sri Rath, learned counsel while seeking interference of this Court in the action of the opposite parties requested this Court for interfering in the impugned orders and thereby granting appropriate relief to the petitioner.