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Judgment
Dr. S.K. Panigrahi, J
The Petitioners, in this Writ Petition, seek a direction from this Court to the Opposite Parties to restore their services and regularize their services as per the letter dated 30.10.2003 issued by the Opposite Party No.7/ Engineer-in-Chief, Water Resources Department, Odisha, Bhubaneswar. They further seek direction from this Court to the Opposite Parties to pay their arrear salary as applicable to them.
I. FACTS OF THE CASE:
The fact of the case, in brief, is that the Petitioners are working under the Executive Engineer, Jonk Canal Division, Nuapada since the date of construction of the said canal and also in the garden named as “Rajiv Udyan” after 12.04.1993.
The Petitioners were engaged after 12.04.1993 as N.M.R. staffs by the authority for proper maintenance of garden Rajiv Udyan. After their appointment, the Petitioners are working under the Executive Engineer, Jonk Canal Division, Nuapada with the satisfaction of the authority.
The Executive Engineer, Jonk Canal Division, Nuapada requested the Chief Engineer-cum-Basin Manager, R.V.N. Basin Manager, Berhampur vide letter No.4153 dated 05.12.2002 stating that one beautiful garden named “Rajiv Udyan” has been developed on downstream of the earth dam of upper Jonk Irrigation Project by defunct Jonk Dam Division, Patora. For maintenance of the said “Rajiv Udyan” Orchard at downstream of earth dam and terraced garden in the dam side left dyke. For maintenance of main entrance gate and ticket counter, 42 numbers of N.M.R., D.L.R. staffs were approved by the Engineer-in-Chief-cum-Chief Engineer and Basin Manager, RVN, Basin, Berhampur on 14.01.1999 besides the then regular N.M.Rs. working therein, Work Charged, D.L.R. and Job Contract staffs of defunct Jonk Dam Division.
As per the said request, the defunct Jonk Dam Division had been handed over to the Jonk Dam works including “Rajiv Udyan Orchards” etc. along with the staff i.e. 3 numbers of Work Charged, one Regular NMR, 56 numbers of Casual NMR. Out of those 56 NMRs, 28 numbers of NMRs have been engaged prior to 12 4.1993 and 28 numbers have been engaged after 12.04.1993. as per the approval list of the Engineer-in-Chief-cum- Chief Engineer and Basin Manager, RVN, Basin, Berhampur. Those staffs engaged after 12.04.1993 were mainly engaged for day to day maintenance for Rajiv Udyan, Orchards Dam Side of the earth dam and terraced Garden dam side of left dyke etc. Government of Orissa was also earning revenue by selling entry tickets and selling seedlings. The details of revenue earning from 8/2000 to 11/2002 month wise were given to the Government. It is also mentioned here that the revenue receipt from garden may cross Rs.4.00 Lakhs. “Rajiv Udyan” also helps in maintaining the safety of the dam.
The L.C. issued by the Chief Engineer and Basin Manager, RVN Basin, Berhampur to the office of the Executive Engineer, Jonk Canal Division and the office of the Executive Engineer, Nuapada excluding the salary of work charged, NMR, DLR etc. engaged after 12.04.1993 by which these staffs (list was enclosed) who have already worked for October, 2002 to November, 2002 were not being paid their salary. It would be difficult to manage the “Rajiv Udyan” and others without these staffs. Hence, the Executive Engineer would like to request the Chief Engineer and Basin Manager to kindly make arrangement for payment of salary to those staffs early for ensuring the smooth maintenance of “Rajiv Udyan”, Orchards, Terraced garden etc.
The Government of Orissa, Department of Water Resources issued letter No.31228 /WR, dated 05.09.2003 to the Engineer-in-Chief, Water Resources, Orissa, Bhubaneswar regarding the continuance and disengagement of NMR personnel after 12.04.1993 and payment of their wages. In the said letter, the Government directed the authorities to pay the back wages and the wages which is pending since long.
The Superintending Engineer, Western Irrigation Circle, Bhawanipatna issued a letter to the Engineer-in-Chief, Water Resources, Orissa, Bhubaneswar on 23.09.2003 requesting the authorities for payment of the wages to NMR staff engaged after 12.04.1943 in ‘Rajiv Udyan, Dam’ and Spillway of Upper Jonk Irrigation Project, Nuapada and Regularization of their post with reference to the letter No.2018/WE dated 13.06.2003 and the matter was brought to the notice of the higher authority.
The Government of Orissa, Water Resources Department issued letter No.35436/WR, dated 18.10.2003 to the Engineer-in-Chief, Water Resources, Department, Orissa, Bhubaneswar for continuance and disengagement of NMR personnel engaged after 12.04.1993 and for payment of their wages. It is further mentioned here that while inviting a reference to the letter No.9853 dated 29.09.2003, the Government directed to say that the engagement of 111 number of NMR personnel in different Divisions.
The Engineer-in-Chief, Water Resources, Orissa, Bhubaneswar issued a letter requesting the Government through the Joint Secretary to Government, Water Resources Department, Orissa, Bhubaneswar for retention of 28 numbers of DLR workers of Rajiv Udyan under the Jonk Canal Division, Nuapada.
After receipt of the request letter from the Engineer-in-Chief, the Government vide letter No.31228 dated 05.09.2003 and letter dated 28.10.2003 allowed 111 numbers of NMR/DLR persons in different places in different grade and also categorized after 12.04.1993 under different divisions and the said order was communicated through the Engineer-in-Chief, Water Resources, Orissa, Bhubaneswar vide letter No.8891/WR dated 30.10.2003 to all the lower officers.
In addition to the above, a question was also raised by the Minister where it was discussed that 28 numbers of Khalasi were engaged for keeping and maintenance of the garden and surrounding area of the dam site on DLR basis. Due to the ban of appointment after 12.04.1993, their wages have been held up since October, 2002. They were engaged after the date of banning. It was also discussed and recommended by the Department of the Water Resources for concurrence of Finance Department. The Finance Minister considered their case sympathetically and accorded concurrence for regularization of the employees.
Government of Orissa, Water Resources Department, Bhubaneswar issued a letter to the Engineer-in-Chief, Water Resources Department for retention of 28 numbers of DLR workers of Rajiv Udyan under Jonk Canal Division of Nuapada District. The Government also sought for a clarification from the concerned authorities for retention of the above 28 numbers of DLRs in the said ‘Rajiv Udyan’ on 12.01.2004.
As per the clarification letter sought for by the Government, the Director Personnel, Water Resources issued a letter and made clarification vide his letter No.2161 dated 19.02.2004 that no legal complicacy would arise on retention of the 28 numbers of DLR workers.
A discussion was also held under aegis of the Hon’ble Chief Minister of Orissa with the Finance Minister for retention of the 385 DLRs and resolved that they would not retrench them from their services because their presence was highly necessary and they should be retained in the service. In fact, a News was published in the daily Newspaper the Samaj on 06.09.2004 to that effect.
The Government of Orissa, Water Resources Department issued a letter vide Memo No.35627 dated 04.11.2004 to the Superintending Engineer, Water Resources, Bhawanipatna for payment of the wages of NMR/DLR staff engaged after 12.04.1993 in Rajiv Udyan, dam and Spillway of Upper Jonk Irrigation Project, Nuapada wherein it was mentioned to take immediate action for releasing of their arrear remuneration etc. as well as current remuneration besides formation of the society under the Society Registration Act.
The Executive Engineer, Nuapada Irrigation Division, Nuapada issued letter dated 22.11.2004 and retrenched the persons who were working as NMRs and DLRs and also directed to receive the wages from the office as per the list published under the authority. But, till today, the said wages is not being disbursed to the above Petitioners so also to other counterparts.
After such order, the Executive Engineer issued an office order showing that the following NMR/DLR staff would be retrenched with effect from 31.01.2005 AN as per Department of Water Resources, Orissa, Bhubaneswar letter No.35624 dated 04.11.2004 and the office order No.6092 (WE) dated 30.12.2004 after payment of retrenchment compensation as per Section 25-ff of the Industrial Disputes Act, 1947 and the said order was communicated to all concerned.
After the above, the Collector and District Magistrate, Nuapada vide letter No.550 dated 20th March, 2005 requested the Commissioner-Cum-Secretary to Government of Orissa, Water Resources Department, Bhubaneswar for retention of the 28 numbers of DLR/NMR staffs of Rajiv Udyan, Jonk Canal Division of Nuapada district. But, the same is pending since long.
After numerous correspondences from the side of the Petitioners to the Government of Orissa, Water Resources Department, consequently, the Engineer-in-Chief, Water Resources Department, Orissa, Bhubaneswar issued letter No.9959 dated 10.08.2009 to all the Chief Engineers for review the performance of NMR/DLR/HR employees of Water Resources Department-reg. and, accordingly, a format was sent by the said authority for reconsider the same fact. Accordingly, the staffs submitted their applications before the authorities.
The Petitioners submitted their grievance by way of representations on so many occasions. Lastly, they filed representation on 14.09.2010 before the authority seeking release of their arrear dues and also for regularization of their services as per the request letter of the authorities. The same is still pending before the authority.
II. SUBMISSIONS ADVANCED ON BEHALF OF THE PETITIONERS:
Learned counsel for the Petitioners submitted that the Petitioners are working under the Executive Engineer, Jonk Dam Division, Patora / Jonk Canal Division / Nuapada Irrigation Division, Nuapada under the Water Resources Department, Government of Odisha,. They were also engaged for maintenance work of the Rajiv Udyan, Nuapada. The Petitioners were working as DLRs and NMRs under the executive Engineer, Jonk Dam Division, Patora/ Jonk Canal Division/ Nuapada Irrigation Division, Nuapada under the Water Resources Department, Government of Odisha.
The Petitioners were working under the Executive Engineer Jonk Canal Division, Nuapada. Since the days of construction of the said Jonk Canal, they have been working in Rajiv Udyan under the Jonk Canal Division. They have been working as NMR/ DLR staffs who were engaged by the authority for proper maintenance of the Rajiv Udyan, Nuapada.
The executive officer Jonk Canal Division admitted in his letter dated 05.12.2002 that the present Petitioners are working as NMR staffs in Rajiv Udyan dam and Spillway of Upper Jonk Irrigation Projects, Nuapada, after 12.04.1993. However, the Petitioners are working since 1987 onwards. But, this fact was suppressed by the Executive Engineer, Jonk Canal Division, Nuapada has not been filled.
It was further submitted that the present Petitioners are the NMR employees. The Joint Secretary to Government, Department of Water Resources engaged 111 persons of NMR personnel, out of 613 numbers who were engaged after 12.04,1993. However, the Petitioners’ cases were not considered then.
The Superintending Engineer, Western Irrigation Circle issued the letter dated 23.09.2003 to the Engineer-in-Chief, Water Resources Department Orissa, Bhubaneswar requesting him to regularize 28 persons who are working as DLRs since long and release their arrear wages. The Government of Odisha, Water Resources Department regularized 111 numbers of NMRs who were engaged after 12.04.1993 vide letter No.35436/WR dated 18.10.2003. However, the Petitioners’ case was not taken into consideration. Vide letter No.8445 dated 20.10.2003, the Engineer-in-Chief, Water Resources requested the Joint Secretary to Government, Water Resources, Orissa, Bhubaneswar for retaining of 28 numbers of DLR Workers of ‘Rajiv Udyan’ under Jonk Canal Division, Nuapada. However, the same is pending before the Government. On 30.10.2003, the Government regularized 111 numbers of NMRs and DLRs who were engaged after 12.04.1993. They are continuing as regular employees. However, the Petitioners’ request letter was pending before the Government. On 12.01.2004, the Department of Water Resources called for clarification for engagement of 28 numbers of DLR workers as per the common seniority list of the concerned circle. On 17.02.2004, the Director of Personnel requested the Government for retention of 28 DLR personnel who were working under ‘Rajiv Udyan’ under Jonk Canal Division of Nuapada. But, said letter was also pending with the Government for consideration.
It was also submitted that the Petitioners in their rejoinder affidavit annexed the order dated 25.10.2019 showing reengagement under the Department as regular employees of 12 persons who were working as DLR and NMR. In such view of the matter, since similarly situated persons have been reengaged and regularized, the Petitioners’ case should have been considered by following the principle of parity.
III. SUBMISSIONS ON BEHALF OF THE O.PS./ STATE:
On the other hand, learned counsel for the Opposite Parties/ State submitted that the Petitioners were working under the Executive Engineer, Jonk Dam Division, Patora / Jonk Canal Division/ Nuapada Irrigation Division, Nuapada up to 31.01.2005. They were also engaged under maintenance work of Rajiv Udyan. They were retrenched from their service with effect from 31.01.2005 as per (a) the Finance Department, Orissa, Bhubaneswar letter No.17815 (45) dated 12.04.1993, (b) letter No.15716 dated 05.06.1993 of the Government of Orissa, Department of Irrigation, (c) letter No.2346 (WE) dated 25.02.2003 of the Engineer-in-Chief, Water Resources, Orissa, Bhubaneswar, (d) letter No.35624 dated 04.11.2004 of the Government of Orissa, Department of Water Resources and order No.415 (27) dated 31.01.2005 of the Executive Engineer, Nuapada Irrigation Division. The payment of retrenchment compensation as per Section-25 F.F. of I.D. Act, 1947 was made to the Petitioners vide vouchers No.20 to 41 dated 31.01.2005 of the Sub-Divisional Officer, Nuapada Irrigation Sub-Division No.II, Nuapada.
It was further submitted that the Department of Water Resources, Government of Orissa, Bhubaneswar have decided to constitute a society for maintenance of ‘Rajiv Udyan’ and ‘re-engage the Petitioners’ under the control of the said Society vide letter No.35624 dated 04.11.2004 of the Department of Water Resources, Government of Orissa, Bhubaneswar. The Petitioners were transferred to the control of the society constituted for the purpose of maintenance of ‘Rajiv Udyan’ and all the arrear remunerations have already been disbursed to them in full.
He further submitted that the wages of the Petitioners for the period from 10/2002 to 28.07.2003 and 29.07.2003 to 29.11.2004 who were engaged after 12.04.1993 have been paid vide Voucher No.24 to 48 dated 25.11.2004 and voucher No.40 to 48 dated 31.12.2004 of the Sub-Divisional Officer, Nuapada Irrigation Sub- Division No.II, Nuapada. So the allegation of non-payment of arrear dues such as wages from 10/2002 to 11/2002 of the N.M.R./D.L.R. staff is baseless and erroneous. As per Order No.31228/WR dated 05.09.2003 of Department of Water Resources, 502 numbers of unauthorized Water Resources N.M.R. employees engaged were disengaged on payment of appropriate compensation in which all the above 28 numbers of N.M.R. employees placed under Superintending Engineer, Western Irrigation Circle, Bhawanipatna have been included. The Government of Orissa, Department Water Resources have decided to disengaged 28 numbers of N.M.R/ D.L.R. employees engaged after 12.04.1993. The letter No.2018 dated 13.06.2003 of the Superintending Engineer, Western Irrigation Circle. Bhawanipatna prior to Government order dated 05.09.2003 has got no meaning.
It was also submitted that the engagement of 111 numbers of N.M.R. persons were suggested for discussion with concerned Executive Engineer regarding their continuance. It was decided in the meeting that 111 numbers of N.M.Rs. would not be retrenched even if engaged after 12.04.1993 in which names of 28 numbers of N.M.R/D.L.R. persons who were engaged after 12.04.1993 under the Executive Engineer, Nuapada Irrigation Division are not found vide letter No.35436 (WE) dated 18.10.2003 of the Department of Water Resources, Government of Orissa, Bhubaneswar.
He further submitted that though the Engineer-in-Chief, Water Resources, Orissa, Bhubaneswar vide letter No.8445 dated 20.10.2003 has recommended for consideration of Government towards continuance of 28 numbers of DLR workers of ‘Rajiv Udyan’ of Jonk Canal Division but the Government of Orissa, Department of Water Resources vide letter No.35624 dated 04.11.2004 has instructed to form a society for maintenance of ‘Rajiv Udyan’ and re-engage the Petitioners under the control of the Society. However, the Petitioners did not co-operate with the suggestion of the Government. Hence, they were retrenched from their services and compensation was paid in full to the workers as narrated above.
It was also submitted that in response to the Memo No.35627 dated 04.11.2004 of the Department of Water Resources, Government of Orissa, Bhubaneswar, expeditious steps were taken and the arrear as well as compensation dues of all N.M.Rs./D.L.Rs. have been disbursed to them. Expeditious steps were also taken to form the society which could not be formed due to non-cooperation of the N.M.R/D.L.R. staff as some representative out of them were nominated as Members of the Executive Body as well as General Body of the Society. They put forth some demands to be fulfilled to form the society. But, it was not possible by the authority. So, the same was reported to the Department of Water Resources, Government of Orissa, Bhubaneswar vide letter No.3419 (WE) dated 24.08.2005 of the Executive Engineer, Nuapada Irrigation Division, Nuapada.
It was further submitted that though the Collector and District Magistrate, Nuapada has recommended to the Commissioner-cum-Secretary to Government to consider the case of 28 numbers of N.M.R/ D.L.R. workers of Rajiv Udyan, but the Society could not be formed due to non-cooperation of N.M.R./D.L.R. workers. Moreover, the Engineer-in-Chief, Water Resources, Orissa, Bhubaneswar has categorically instructed in his letter No.9959 dated 10.08.2009 to produce the original and attested copies of payment voucher/H.R. etc. along with M.B. and corresponding cash Book in support of their engagement prior to 12.04.1993 and continuance till 28.02.2009. But, the names of the retrenched 28 persons could not have been submitted to the higher office, as they were not continuing in service till 28.02.2009.
He further contended that all the Petitioners have been paid their wages since their date of engagement to the date of their retrenchment i.e. 31.01.2005 including compensation. Therefore, there is no question of any arrear dues outstanding to be paid to them. Further, as all of them have received their retrenchment benefit, they have no further claim to be restored. Moreover, the Petitioners were working as N.M.R/D.L.R. basis, which are purely temporary in nature. In fact, they were disengaged when the Jonk Dam Division was abolished.
Learned counsel for the State further submitted that this Writ Petition filed by the Petitioners is not maintainable in view of the fact that the Petitioners are NMRs and they having been retrenched vide office order dated 31.01.2005 giving them retrenchment compensation as per Section 25 FF of the Industrial Disputes Act, their temporary service condition are amenable to the learned Industrial Tribunal. The Petitioners having not pursued their grievance before the appropriate forum challenging the retrenchment order dated 31.01.2005, they have filed this Writ Petition after five years of such retrenchment before the Tribunal which was transferred to this Court after abolition of the State Administrative Tribunal.
In view of the above reasons, it was submitted that the claim of the Petitioners for restoring them in services on regular basis and payment of arrear dues is baseless. Therefore, the Writ Petition is devoid of merit and liable to be dismissed.
IV. CONCLUSION AND ORDER:
The Department of Water Resources, Government of Odisha, Bhubaneswar has decided to constitute a society for maintenance of ‘Rajiv Udyan’ and re-engage the Petitioners under the control of the Society vide letter No.35624 dated 04.11.2004 of the Department of Water Resources, Government of Orissa, Bhubaneswar. Learned Counsel for the State has strongly contended that the Petitioners were transferred to the control of the society constituted for maintenance of ‘Rajiv Udyan’ and all the arrear remunerations have already been disbursed to them in full.
The Collector and District Magistrate, Nuapada has submitted recommendation to the Commissioner-cum-Secretary to Government to consider absorption of the cases of 28 numbers of N.M.R/ D.L.R. workers of ‘Rajiv Udyan’, but the Society could not be formed due to non-cooperation of N.M.R./D.L.R. workers. Moreover, the Engineer-in-Chief, Water Resources, Orissa, Bhubaneswar has categorically instructed in his letter No.9959 dated 10.08.2009 to produce the original and attested copies of payment voucher/H.R. etc. along with M.B. and corresponding cash Book in support of their engagement prior to 12.04.1993 and continuance till 28.02.2009. But, the names of the retrenched 28 persons could not been submitted to the higher office, as they were not continuing in service till 28.02.2009.
He further submitted that all the Petitioners have been paid their wages since their date of engagement to the date of their retrenchment i.e. 31.01.2005 including compensation. Therefore, there is no question of any arrear dues outstanding to be paid to them. Further, as all of them have received their retrenchment benefit, they have no further claim to be redeemed. Moreover, the Petitioners were working on N.M.R/D.L.R. basis, which are purely temporary in nature. They were disengaged when the Jonk Dam Division was abolished.
The position of law has been reaffirmed in a catena of judgments after State of Karnataka Vs. Uma Devi and others (2006) 4 SCC 1, hence, the continuance of service of the Petitioners is beyond the rules. Thus, the Petitioners’ service cannot be regularized. If the appointment is illegal, the principles laid down in Uma Devi (supra) cannot come to the aid of the Petitioners. This Court has, however, no doubt in its mind that the Constitution Bench deprecated such appointment through side door/back door being contrary to the Constitutional Scheme of equality.
In the case of State of Karnataka v. Umadevi and other(supra), the Supreme Court held as under:
“In B.N. Nagarajan v. State of Karnataka (1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937 this Court clearly held that the words “regular” or “regularisation” do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This Court emphasised that when rules framed under Article 309 of the Constitution are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognised therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation. We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the court, in appropriate cases, would have only the right to regularise an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed. This right of the executive and that of the court would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent.
One aspect arises. Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. Can the court impose on the State a financial burden of this nature by insisting on regularisation or permanence in employment, when those employed temporarily are not needed permanently or regularly? As an example, we can envisage a direction to give permanent employment to all those who are being temporarily or casually employed in a public sector undertaking. The burden may become so heavy by such a direction that the undertaking itself may collapse under its own weight. It is not as if this had not happened. So, the court ought not to impose a financial burden on the State by such directions, as such directions may turn counterproductive.”
In the light of the aforesaid discussion and the cases cited hereinabove, this Court hereby rejects the prayer of the Petitioners. This Writ Petition is, accordingly, dismissed. No order as to cost.
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