Allowed

Gajendra Nayak v. State of Odisha

Orissa HC5 Sept 2023WP(C)/14934/2023

Case brief

AI extract

What is this about?

In a writ petition regarding service regularization, the petitioner claimed discrimination by denying regularization compared to similar posts. The High Court disposed of the matter at the admission stage, setting aside an impugned order and remanding it for consideration in light of coordinate bench judgments.

What did the court decide?

Impugned order set aside; matter remanded for fresh consideration adhering to coordinate bench orders; final decision and benefits to be communicated within two months.

Gajendra Nayak Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No. 14934 of 2023

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Sri Gajendra Nayak

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Petitioner

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Mr. Digambara Mishra, Advocate

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-versus-

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State of Odisha and others

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…. Opposite Parties Mr. N.K. Praharaj, A.G.A.

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CORAM: JUSTICE A.K.MOHAPATRA

ORDER

Order No.

05.09.2023

1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode).

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2. Heard learned counsel for the Petitioner as well as learned Additional Government Advocate appearing for the State-Opposite Parties. Perused the writ petition as well as the documents annexed thereto.

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3. The Petitioner has filed the present writ petition with the following prayer:-

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“Under the aforesaid facts and circumstances, it is, therefore, prayed that this Hon’ble Court may be graciously pleased to issue a ‘Rule-Nisi’ calling upon the Opposite Parties to show-cause as to why a writ in the nature of mandamus or any other appropriate writ or writs shall not be issued:

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(i) To hold and declare that the FD resolution dtd. 15.05.1997 (Annexure-4) and/or Letter dtd. 12.04.1993 (Annexure-

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3) are not an impediment to regularize the services of the Petitioner.

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(ii) To remove the discrimination to the petitioner in not regularizing the Petitioner in services especially when a host of similarly situated persons had already been regularized and similarly situated persons were also granted with regular pension.

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(iii) To quash the order/letter dtd. 11.11.2022 under Annexure-1.

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(iv) Consequentially direct the Opp. Parties to regularize the services of the Petitioner with effect from the date of initial joining with all the consequential service and financial benefits within a time to be fixed by this Hon’ble Court.

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And if the Opposite Parties fail to show cause or show insufficient cause make the said rule absolute.

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And pass such other order/orders and/or writ/writs as this Hon’ble Court may deem fit and proper.”

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4. It is submitted by the learned counsel for the Petitioner that the Petitioner was initially appointed as daily wage worker (NMR/DLR) LVD (Light Vehicle Driver) under the RWS&S on 01.02.1986. Thereafter while working as such, the Petitioner was brought over to the work charged establishment w.e.f. 01.03.2009. While the matter stood thus, the Petitioner earlier approached this Court by filing W.P.(C) No.21628 of 2019 with a prayer for regularization of his service as by then he has already discharged service in the work charged establishment for the period exceeding 5 years. A coordinate Bench of this Court vide order dated 18.11.2019 disposed of the said writ

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petition by directing the Opposite Parties to consider the representation by taking decision thereof within a period of two months. Since no decision was taken, the Petitioner was compelled to file contempt petitions bearing CONTC No.674 of 2020, CONTC No.1060 of 2021 and CONTC No.1069 of 2021, which were disposed of on 18.02.2020, 12.02.2021 and 18.02.2021 respectively. Finally, on 4.1.2021, the Additional Secretary to Government, P.R. & D.W. Department issued letter to E.I.C., RWS&WS indicating therein that the Finance Department has approved 634 Group-‘D’ posts and 135 Group‘C’ posts in the year 2018 for RWSS Wing under P.R. & D.W. Department. Pursuant to the aforesaid decision of the P.R. & D.W. Department vide letter dated 4.1.2021, a list of 452 Group-‘D’ posts keeping in view their seniority of the new gradation list as well as ORV Act was prepared. However, the name of the present Petitioner was not included in the said list of 452 candidates whose name were short listed in the Group‘D’ post. Thereafter no list has been prepared for remaining 182 Group-‘C’ posts as well as 135 Group-‘D’ posts.

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5. Learned counsel for the Petitioner, at this juncture, submitted that although services of similarly situated persons have been regularized in the meantime w.e.f. 20.12.2022, however, the case of the Petitioner has not been considered by the authorities keeping in view the relevant circulars of the Government as well as the decision of the P.R. & D.W. Department vide letter dated 4.1.2021. Alleging discrimination

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and arbitrary conduct of the Opposite Parties in not considering the case of the Petitioner for regularizing of his service, the Petitioner has approached this Court by filing the present writ petition.

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6. Learned Additional Government Advocate appearing for the State-Opposite Parties, on the other hand, contended that recognizing the services of the Petitioner as a daily wage worker who was initially appointed on DLR/NMR (Light Vehicle Driver) basis, the Government had already taken a decision and the Petitioner has accordingly brought over to the work charged establishment on 01.03.2009. However, the service of the employees, who are working in the work charged establishment, are dependent on availability of the vacancy as well as seniority of the persons, who are already there in the list on work charged establishment employees. He also contended that the case of the Petitioner shall be considered subject to Petitioner fulfilling other criteria as has been prescribed by the Government from time to time by virtue of different circulars. In such view of the matter, learned Additional Government Advocate submits that the present writ petition is pre-mature and the same should not be entertained at this stage.

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7. In reply to the submissions made by the learned Additional Government, learned counsel for the Petitioner referring to judgment of this Court in Banamali Mohanty v. State of Odisha and others (W.P.(C) No.1459 of 2020 decided on 28.1.2020) and in Ananta Prasad Das v. State of Odisha

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and others (W.P.(C) No.9545 of 2020 decided on 11.5.2020), submitted before this Court that in the case of employees who are identical placed with the Petitioner and pertaining to the very same RWS&S organization, a coordinate Bench of this Court after hearing the learned counsels for both the sides by virtue of the aforesaid orders disposed of the application by directing the Chief Engineer, RWS&W, Odisha to regularize the service of the Petitioner in their respective posts since the date persons junior to him have been regularized and further a direction was given to maintain the seniority of the Petitioner. The coordinate Bench further directed that while considering the case of the Petitioner in that writ petition, the Opposite Parties shall calculate all entitlement of the Petitioner as a regular employee and same to be released in favour of the Petitioner along with interest and the entire exercise was directed to be completed within a period of 1½ months. Keeping in view the aforesaid decisions of the coordinate Bench of this Court, the learned counsel for the Petitioner submitted that the case of the Petitioner be considered by taking into consideration the aforesaid decision by this Court.

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8. Having heard the learned counsels appearing for the respective parties and on a careful consideration of their submissions as well as the materials on record, this Court deems it proper to dispose of the writ petition at the stage of admission by setting aside the impugned order dated 11.11.2022 passed by the Opposite Party No.3 under Annexure-1 and further remand

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the matter back to the Opposite Party No.3 to consider the case of the Petitioner afresh keeping in view the order passed by the coordinate Bench as referred hereinabove and in the event it is found that the Petitioner stands in similar footing with the Petitioner in the above noted writ petitions, then Opposite Party No.3 shall do well to extend similar benefits in favour of the Petitioner within a period of two months from the date of communication of a certified copy of this order by the Petitioner. The decision so taken be also communicated by the Opposite Party No.3 to the Petitioner within a period of two weeks from the date of taking such decision. Further, it is made clear that in the event the Opposite Parties come to a conclusion that the Petitioner in the present writ petition is entitled to the relief as has been granted by this Court in the writ petition referred hereinabove, then financial entitlement shall be given to the Petitioner within a period of six weeks from the date of taking such decision. However, the same shall be without interest. In the event the Opposite Parties fail to give such amount within the aforesaid time, then said amount shall carry interest @ 8% per annum till the final payment is made.

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9. With the aforesaid observation and direction the writ petition is disposed of.

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Signature Not Verified

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Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC CUTTACK Date: 08-Sep-2023 18:03:08 Debasis

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(A.K. Mohapatra) Judge

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Gajendra Nayak v. State of Odisha

Case brief

What is this about?

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Gajendra Nayak v. State of Odisha

Case brief

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