Page 1 of 9 ORISSA HIGH COURT: CUTTACK O.J.C.No.4845 of 1999 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------ Sri Surendra Kumar Srichandan & Others … Petitioners -Versus- State of Orissa and others … Opp. Parties. For Petitioners : M/s. S.K. Sahoo, M. Mohapatra, S.K. Mishra & S.P. Das For Opp. Parties : M/s. K.P. Nanda & R.P. Nanda ------------- P R E S E N T : THE HONOURABLE MR.JUSTICE A.S.NAIDU AND THE HONOURABLE MR. JUSTICE B.N. MAHAPATRA ________________________________________________________________________ Date of Hearing: 31.03.2010 : Date of Judgment: 18.05.2010 B.N. Mahapatra, J The petitioners, in this writ petition, seeks for a direction to opposite party Nos. 6 and 7, the authorities of the Bhubaneswar Municipal Corporation (for short “the Corporation”) to absorb/appoint the petitioner Nos. 1, 2 and 4 permanently against the suitable post of Class-III category and petitioner No.3 against Class-IV post corresponding to the post held by each of them before merger of their respective Grama Panchayats with retrospective effect from Page 2 of 9 01.06.1997 and to grant them all consequential, financial and service benefits in the said post under the Corporation. In course of hearing, it transpires that the petitioner Nos. 1 and 4 were absorbed in service by the opposite parties. Subsequent to this, petitioner No.4-Sri Ganesh Prasad Sahoo on attaining age of superannuation was disengaged with effect from 02.06.2004 and died on 11.05.2008. Hence, this writ petition is only confined to petitioner No. 2- Sri Rashmi Ranjan Srichandan and petitioner no.3-Sri Rajendra Kumar Samantasinghar. 2. The facts and circumstances giving rise to the present writ petition are that, so far as petitioner nos. 2 and 3 are concerned, petitioner No. 2 consequent upon the selection to the post of Asst. Secretary of Mancheswar Grama Panchayat got appointed in the said post on 21.03.1996. While so working, his appointment was duly approved by the District Panchayat Officer, Khurda vide order dated 01.03.1997. Similarly, petitioner No.3 having been selected as a Peon got appointed in the said post under Mancheswar Grama Panchayat and his appointment was also duly approved by the District Panchayat Officer, Khurda vide order dated 28.04.1997 with effect from 10.03.1997. On 17.05.1997, the Government of Orissa in Housing & Urban Development Department vide notification dated 17.05.1997 (Annexure-1) notified that the existing municipal area of the Corporation shall include the local area of Mancheswar and Pahala Grama Panchayats. On 30.05.1997, the Page 3 of 9 Government of Orissa in Panchayatiraj (G.P.) Department, vide notification dated 30.05.1997 (Annexure-2) notified that the whole area of Grama “Mancheswar” of Bhubaneswar Block and five villages of Grama “Pahala” of Balianta Block under Bhubaneswar Sub-Division in the district of Khurda to have been included in the local limits of the Corporation and the remaining two villages namely, Saleswar and Bhimpur of Pahala to have been included within the Grama Balianta and Jagannathpur respectively. Consequently, it is declared that the two Gramas, namely, Mancheswar and Pahala to be abolished and the Grama Sasan thereof to be ceased to function with immediate effect. On 19.02.1998, the Collector, Khurda vide Order No.390(2) (Annexure-3) issued a letter to the Block Development Officers of Balianta and Bhubaneswar Blocks intimating that the Government in Panchayatiraj Department’s letter No. 486 dated 12.01.1998 had issued instructions for immediate transfer of the assets and liabilities of the concerned Grama Panchayats to the Corporation with adjustment of the office bearers of the concerned Grama Panchayats and to take immediate steps to transfer the staff, records, cash, materials etc of the concerned Grama Panchayats to the Corporation after due consultation with the Executive Officer. The said Order dated 19.02.1998 issued by the Collector, Khurda was also communicated to opposite party No.6-the Executive Officer of the Corporation for information with reference to Memo No.7138(22) dated 30.05.1997 of Under Secretary to Government, Page 4 of 9 P.R.(G.P.), Department, requesting opposite party No. 6 to fix up a suitable date during the month of February, 1998 with intimation to the Block Development Officers of Bhubaneswar and Balianta Blocks for a discussion effecting handing over and taking over charge of records etc. It was further communicated in the said letter dated 19.02.1998 that the office bearers of the concerned Grama Panchayats should be adjusted in the Corporation as quick as possible. The Block Development Officer, Bhubaneswar vide his office letter No. 3744 dated 05.12.1998 (Annexure-4) had also informed the District Panchayat Officer, Khurda to take necessary steps for absorption of petitioner Nos. 2 and 3 in the appropriate corresponding posts in the Corporation at an early date with copies of the same to the Executive Officer-opposite party No.6 and to the Sub-Collector, Bhubaneswar for doing the needful. The Housing and Urban Development Department vide its letter No. 26.12.1998 (Annexure-5), requested the Collector-cum-District Magistrate, Khurda to sponsor the names and service particulars of the employees of Mancheswar and Pahala Grama Panchayats to the Corporation for their absorption in the said Corporation. Despite all this, as the opposite parties did not take any steps to get the petitioners absorbed in service, the present writ petition has been filed. 3. Mr. S.K.Mishra, learned counsel appearing on behalf of the petitioners vehemently argued that the petitioner No.2, consequent upon his selection as Asst. Secretary of the Mancheswar Gramapanchayat, got Page 5 of 9 appointed in the said post on 21.03.1996. While continuing as such, his appointment was duly approved by the District Panchayat Officer, Khurda (for short, ‘the DPO’) by order dated 01.03.1997. Similarly, consequent upon selection of petitioner No.3 as Peon, he was appointed in the said post which was duly approved by the DPO by order dated 28.04.1997 with effect from 10.03.1997. Referring to Section 149 of the Orissa Grama Panchayats Act, 1964 it is vehemently argued that in view of the decision of the State functionaries, the opp. parties should have absorbed the petitioners in the establishment of BMC. In a similar situation, after abolition and amalgamation/merger of the Aiginia Grama Panchayat with Bhubaneswar Municipality, the Chairman of BMC and the Executive Officer vide their Office Order dated 05.10.1990 appointed the ex-employees of the merged Aiginia Grama Panchayat in the substantive posts in pursuance of letter No.14961 dated 23.04.1990 and Order dated 11.09.1990 of the Government in Housing and Urban Development Department. Therefore, there is no justification as to why the BMC is not absorbing the petitioner Nos. 2 and 3 who were working in Mancheswar GP under Bhubaneswar Municipality immediately after transfer of the assets and liabilities of the Grama Panchayat to the Municipal Corporation. To strengthen his argument, learned counsel relied upon the Government Notification issued under Annexure-12, the Order of Collector under Annexure-3, letter of the Panchayat Samiti under Annexure-4 and letter of the Government to the Collector under Page 6 of 9 Annexure-5. 4. Mr. Nanda, learned counsel appearing for the BMC submitted that on 01.03.1997 Mancheswar G.P. was merged with BMC with effect from 30.05.1997 and just two months before the merger, petitioner No.2-Rashmi Ranjan Srichandan was appointed as Assistant Secretary. Had his appointment been made prior to initiation of merger, i.e., before 1994, then his case for regular appointment would have deserved consideration. On the other hand, though there are hundreds of DLR and NMR employees who have served the BMC for many years and many of them have higher qualification than that of the petitioners, their cases have not yet been taken up for regularization. Many writ petitions are also pending before this Court on the question of regularization of NMR/DLR employees. For these reasons, the case of petitioner No.2 does not merit any consideration. For similar reasons, Mr. Nanda contended that the case of petitioner No.3-Rajendra Kumar Samantasinghar also does not merit any consideration. 5. In the additional affidavit filed on behalf of the petitioners, it is stated that in 1994 no proposal was ever made for merger of Mancheswar and Pahala Grama Panchayats with the BMC. However, such a proposal was initiated only on 17.05.1997 as per Annexure-1. Therefore, the stand taken by opp. parties 6 and 7 that proposal for such merger was initiated in 1994 is purely a figment with ill motivate. As per Rule 219 of the Orissa of the Orissa Grama Panchayat Rules, petitioner Page 7 of 9 Nos. 2 and 3 were validly appointed in Mancheswar GP on 21.03.1996. There are good number of vacant posts in the BMC from 1997. 6. In this context, it is felt necessary to refer to relevant provisions of Section 149 of the Orissa Grama Panchayats Act, 1964 that deals with matters ancillary to abolition or reconstitution of Gramas. “(1) xx xx xx (2) The State Government may, as in their opinion the expediency of the circumstances requires, by general or special order in that behalf provide for all or any of the following matters, arising out of or in relation to the abolition or reconstitution of Gramas, namely: (a) amalgamation, allegation, utilization or apportionment of assets and liabilities and procedure for enforcement of rights and obligations in relation thereto; (b) continuance or termination of or alterations in the conditions of service of officers and servants of such local authorities immediately before such abolition or reconstitution and the allocation of such persons to the different bodies thereafter; (c) reorganization and constitution of the Committees, their functions or term of office of the members thereof as were there prior to the abolition or reconstitution; and (d) any matter necessary, ancillary or incidental to such abolition or reconstitution for which this Act makes no provision or makes insufficient provision and provision in the opinion of the State Government is necessary. (3) The provisions of Section 148 and of this section shall have effect notwithstanding anything to the contrary in any of the other provisions of this Act or the rules made thereunder.” (Emphasis supplied) 7. In the instant case, it is not in dispute that the Mancheswar GP was merged with the BMC pursuant to the orders of the Government in H & UDD vide Notifications dated 17.05.1997 and 30.05.1997. It is Page 8 of 9 also not in dispute that pursuant to such merger, the Collector, Khurda vide his letter dated 19.02.1998 (Annexure-3) requested the B.D.Os. of Bhubaneswar and Balianta Blocks to take immediate steps for transfer of staff, records, cash, materials etc. of the concerned GP to BMC after due consultation with the Executive Officer who was intimated separately. The B.D.O., Bhubaneswar under Annexure-4 requested the District Panchayat Officer, Khurda to take necessary steps for absorption of the petitioner Nos. 2 and 3 in appropriate posts in the BMC at an early date. The Government of Orissa in H & UDD letter dated 26.12.1998 (Annexure-5) requested the Collector to furnish the name and service particulars of the employees of Pahala and Mancheswar GP under intimation to H & UD Department. A copy of the said letter was forwarded to Finance Department of BMC for information with a request to take immediate steps for absorption of the employees of Mancheswar and Pahal GP according to their qualifications and the posts held. It was further informed that a proposal may be furnished to the Government for creation of posts to absorb the said employees as required under law. Opp. Parties 6 and 7 have not brought any material to our notice to show that petitioner Nos. 2 and 3 have been appointed in Panchayat with some ill motive. As petitioners are the erstwhile employees of Mancheswar G.P. and there is a decision of the functionaries of the State to absorb them in regular posts and that apart when the assets of the erstwhile G.P. have Page 9 of 9 been taken over by the BMC, interest of the employees cannot be ignored for years together. Non-consideration of their case for appointment/absorption in the Corporation is against the very spirit of Section 149 of the Act and the decision taken by functionaries of the State to that effect. 8. In that view of the matter, we direct opp. parties to take immediate steps relating to absorption of petitioner Nos. 2 and 3 in the background of communications of the functionaries of the State referred to above. The writ petition is disposed of accordingly. ..……………………. B.N.Mahapatra, J. A.S. Naidu, J. I agree. .……..…………….. A.S. Naidu, J. Orissa High Court, Cuttack Dated 18th , May, 2010/pcp/skj/sss