SUVENDU MOHANTY AND ORS. Vs. STATE AND ORS.

JUDGEMENT

(1.) THE petitioners, who are at present working as Assistant Project Managers in the Orissa State Police Housing & Welfare Corporation Ltd., have filed these petitions seeking for a direction to the opposite parties, more particularly, opposite party No. 1 to regularize their services and to grant them consequential service benefits retrospectively as due and admissible to the post.

(2.) THE short fact of the case, in hand, is that Orissa State Police Housing and Welfare Corporation Limited, in short, 'Corporation', a Public Sector Undertaking of the Government of Odisha is committed to build Police Buildings innovatively to enhance police efficiency and thereby improve Police -Community relations. The main objective of the Corporation includes to undertake construction of buildings for housing of the employees of the Government of Odisha in the Police, Prisons, Home Guards, Fire Force Department and Judicial Department as well as other similarly situated institutions. Initially the Corporation was started by bringing the persons on deputation from the Government and other Corporations and thereafter certain posts were created for the Corporation by the Board of Directors, which were later on approved by the Government in Home Department. One of those posts was Assistant Project Manager, which is equivalent to the post of Junior Engineer under the Government. On completion of the deputation period, the persons, who were borrowed, were sent back and consequently, the post of Junior Engineer fell vacant. In order to maintain the works already undertaken by the Corporation, the Corporation was required to recruit persons to fill up those posts. At the relevant point of time, method of recruitment prescribed by the Government for the post of Junior Engineer in the State was based on a resolution of the erstwhile Political and Services Department dated 6.8.1979, which provided that the Government have to constitute a Committee consisting of the Chief Engineers and other Heads of Departments concerned for the purpose of recruiting the Junior Engineers. The Committee will allocate Diploma Holders in Civil Engineering to different Departments according to their requirement from the list of candidates available with Technical Manpower Employment Exchange. All appointments are to be made from the list of candidates sponsored by the said Exchange and in case it fails to furnish candidates within a specified period of three weeks, recruitment may be made from the open market. Accordingly, the Corporation placed requisition to the Employment Exchange to sponsor the names of the eligible candidates for filling up of the post of Junior Engineer. The petitioners applied for the post and on being selected were issued with orders of appointment as Assistant Project Manager for a period of 44 days on ad hoc basis with a consolidated pay of Rs. 3,000/ - per month vide Annexure -1. On expiry of 44 days with one day artificial break, the petitioners were allowed to continue again for another 44 days. The process continued for quite long time and ultimately even though the petitioners continued as Assistant Project Manager on ad hoc basis on 44 days basis with one day break, they have been paid the scale of pay of Rs. 9300 -34,800/ - with Grade Pay of Rs. 4200/ - with usual allowances per month w.e.f. 23.3.2012. After rendering service for quite long period, when the petitioners were deprived of getting their promotional benefits, and were paid the pay in the minimum scale of pay attached to the post, they moved the opposite party No. 2 seeking for regularization of their services. The grievance of the petitioners was placed before the Committee of opposite party No. 2 and after thorough discussion on the subject, it was recommended for taking appropriate steps to regularize all ad hoc employees. Accordingly, opposite party No. 2 moved the Government in Home Department seeking for regularization of 101 ad hoc employees working under the Corporation in different grades such as Assistant Project Manager, Junior Steno -cum -Assistant, Senior Assistant, Driver, Asst. Supervisor, M.T. Helper, Concrete Mixture Driver, Electrical Wiremen/Helper, Plumber, Watchman and Orderly Peon and such move was made on 24.6.2005 vide Annexure -3 and by that time most of the employees had already rendered service for more than 10 -20 years. The Corporation had specifically indicated that their services are absolutely essential during the leave period as well as when turnover was substantially increased from 3 crores to 35 crores per annum. Accordingly, the Corporation requested the Government to consider the proposal and accord approval in respect of regularization of the services of the ad hoc employees. When the matter was pending with the Government, there was restructuring of the staffing pattern of the Corporation. Under clause (vi) of the letter dated 16.6.2007 vide Annexure -4, it was indicated that creation of 9 posts of Assistant Manager in the rank of Junior Engineer for regular appointment of ad hoc Assistant Project Manager is not agreed to on the ground that regularization of irregular recruits is not permissible under the Government Rules. Since the State Government rules are applicable to the Government owned Corporation, the Corporation also cannot take a decision to regularize the irregular recruits without following due process of law. Under Clause -C of the said restructuring letter, it was clearly indicated that restructuring pattern will however be subject to fulfilling certain conditions, mentioned therein that the posts created/and upgraded may be filled up by annual contractual appointment or on promotion from amongst the eligible regular employees of the Corporation in the lower grade. Under sub -clause (e) of Clause -C, it is stated that no post may be created/upgraded for the ad hoc and irregular employees. Under sub -clause (f) of Clause -C, it is stated that the work of the Assistant Project Manager (JE -Civil) continuing on contractual basis shall be reviewed and if necessary, their number may be limited. Opposite party No. 2 vide its letter dated 28.5.2011 also sought permission to regularize the services of 9 Assistant Project Managers in the rank of Junior Manager. While seeking such permission, it was specifically mentioned that at present there are three categories of employees in the Corporation, namely, regular, ad hoc and contractual. All the employees recruited after 1998 are in the contractual category. At present there are 307 employees in the Corporation, which includes 98 regular, 88 ad hoc and 121 contractual. The ad hoc employees receive salary at the minimum of basic of the pay scale and the contractual employees receive salary at contractual rate fixed by the Government in Finance Department. Out of 88 ad hoc employees, it was proposed to regularize the services of 9 Assistant Project Managers (Junior Engineers) in the first phase reason being they have been recruited against permanent vacancies, which were sanctioned/created by the Board of Directors from time to time in their meetings held on 2.2.1982, 21.9.1988 and 31.12.1993. While appointing these 9 Assistant Project Managers, the provisions of the ORV Act has been complied with and all these 9 Assistant Project Managers have been interviewed by the Engineering Head of the Corporation after due scrutinisation of their academic records and past experience etc. They are in the pay roll of the Corporation for more than 12 years and their regularization will not involve any additional financial burden immediately and the Corporation is in a position to meet the future financial burden in terms of increments from its own resources and therefore, the Government should take a long term and generous view in the matter and agree to the proposal for regularization of services of all these nine ad hoc Junior Engineers of the Corporation. Similarly, correspondences were also made on 20.78.2011 and 19.4.2012 vide Annexures -10 and 11 respectively, but no final communication has been received from the Government. Hence, these petitions.

(3.) THOUGH several opportunities have been given to the opposite party No. 1, till date no counter affidavit is forthcoming from the side of the State Government. Mr. B. Senapati, learned Addl. Govt. Advocate for the State argued with vehemence that since the petitioners have been appointed irregularly even though they have rendered service for more than 10 years, their services cannot be regularized in terms of the restructuring policy of the State Government pursuant to Annexure -4. The restructuring of the staffing pattern of the opposite party No. 2 -Corporation has been done by the State Government as a matter of policy pursuant to which the letter under Annexure -4 has been issued on 16.6.2002. As regularization of the irregular recruits are not permissible under the State Government rules, the petitioners services cannot be regularized as claimed in the writ petitions.