Sri Bibhu Prasad Das Vs. Cuttack Municipal Corporation and anr. - Court Judgment

Excerpt:

- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. .....regularisation in the said post.3. learned counsel for the corporation submits that there has been an amendment in the orissa municipal (amendment) act, 1997. section 73-b of the act prescribes that no person is appointed on a temporary basis under sub-section (2) of section 73 and is continuing as such at the commencement of the orissa municipal (amendment) act, 1997 shall have or shall be deemed to have a right to claim for regularisation of his services on any ground whatsoever and the services of such person shall be liable to be terminated at any time without any notice and without assigning any reason thereof. on the basis of the said amendment, learned counsel for the corporation submits that in view of the ban imposed in the aforesaid provision, case of the petitioner cannot be considered as a matter of right. however, as and when vacancies arise in future, case of the petitioner can be considered for regular appointment. learned counsel for the petitioner has also no objection to the said proposition.4. i, therefore, allow the writ application to the extent that in the event vacancies arise in future in which the petitioner can be accommodated, case of the petitioner.....

Judgment:

ORDER

L. Mohapatra, J.

1. Heard the learned counsel for the petitioner and the counsel appearing for the Cuttack Municipal Corporation.

2. The petitioner in this writ application has prayed for regularisation of his service in the post of Mechanical Helper (Class-IV) as he has been continuing in the said post with effect from 3.12.1993.

Case of the petitioner is that his brother Sankar Das was the driver in respect of the bus bearing registration No. OR-05-6492 owned by the Cuttack Municipal Corporation and on 5.11.1993 the said bus met an accident, resulting serious injuries on the person of the brother of the petitioner. Brother of the petitioner succumed to injuries on 10.11.1993. Thereafter the petitioner was appointed as Mechanical Helper (Class-IV) on compassionate ground. Since the petitioner has already Worked for some years in the meantime he has prayed for regularisation in the said post.

3. Learned counsel for the Corporation submits that there has been an amendment in the Orissa Municipal (Amendment) Act, 1997. Section 73-B of the Act prescribes that no person is appointed on a temporary basis under Sub-section (2) of Section 73 and is continuing as such at the commencement of the Orissa Municipal (Amendment) Act, 1997 shall have or shall be deemed to have a right to claim for regularisation of his services on any ground whatsoever and the services of such person shall be liable to be terminated at any time without any notice and without assigning any reason thereof. On the basis of the said amendment, learned counsel for the Corporation submits that in view of the ban imposed in the aforesaid provision, case of the petitioner cannot be considered as a matter of right. However, as and when vacancies arise in future, case of the petitioner can be considered for regular appointment. Learned counsel for the petitioner has also no objection to the said proposition.

4. I, therefore, allow the writ application to the extent that in the event vacancies arise in future in which the petitioner can be accommodated, case of the petitioner shall be considered by the opposite parties provided there is no other person(s) available senior to the petitioner working on temporary basis for consideration of appointment for the said post. Learned counsel for the petitioner further prays for ignoring the affidavit dated 17.11.98 filed by the petitioner. Prayer is allowed.

The writ application is disposed of with the aforesaid observations and directions.

Requisites for communication of the order be filed by 23.2001.

Urgent certified copy of the order be granted on proper application.