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2008 DIGILAW 509 (ORI)

Dr. Rupananda Brined v. State of Orissa and two

2008-07-08

B.P.DAS, R.N.BISWAL

body2008
ORDER 8.7.2008 — Heard Mr. A.K.Mishra, learned counsel for the petitioner along with his associate, Ms. G.Majhi, learned counsel for the State appearing for O.Ps. 1 and 3 and Mr. B.P.Tripathy, learned counsel for O.P.2-Mission Director, NRHM. The petitioner has filed this writ petition with a prayer to issue a Writ of Mandamus directing the O.Ps. to consider his candidature and quash the list of candidates short-listed belong¬ing to Bargarh District, which was published on 9.6.2007 by the Mission Director, NRHM, O.P.2, for the appointment of Ayush doctors. The case of the petitioner is that though he is qualified to be engaged as an Ayush doctor and has applied for the same, his name did not find place in the selection list. According to him, the authorities have not followed the O.R.V. Act and Rules at the time of short-listing the candidates. Though he is a Scheduled Castes candidate and belongs to Bargarh District, he was deprived of getting the said appointment. Counter affidavits have been filed by O.P.2-Mission Direc¬tor, NRHM, and O.P.3-C.D.M.O., Bargarh. On 7.5.2008 we have directed O.P.1-Secretary, Department of Health and Family Welfare, to file counter affidavit by 17th June, 2008 indicating therein that whether the O.R.V.Act is applicable to this type of employment the petitioner is seeking for. But no counter affidavit is forthcoming. The reason for directing O.P.1 to file counter affidavit is to know the reaction of the State Government in this regard and whether there can be any room for the S.C. & S.T. candidates in such type of appointment which is stated to be contractual one and the O.R.V. Act is not applicable to the contractual staffs as per Section 3(d) of the O.R.V.Act. Unfortu¬nately, as usual the Secretary is non-responsive to the direction of this Court and failed to file counter affidavit. We deprecate the conduct of the Secretary, Department of Health and Family Welfare in not filing counter affidavit. However, a counter affidavit has come from the C.D.M.O., Bargarh. In paragraph-8 of the said counter affidavit, it is stated that O.P.2-Mission director intimated the deponent-O.P.3 that as the engagement was purely contractual in nature, the 80 point roster point of O.R.V.Act would not be followed for engage¬ment to the advised posts under NRHM. However, a counter affidavit has come from the C.D.M.O., Bargarh. In paragraph-8 of the said counter affidavit, it is stated that O.P.2-Mission director intimated the deponent-O.P.3 that as the engagement was purely contractual in nature, the 80 point roster point of O.R.V.Act would not be followed for engage¬ment to the advised posts under NRHM. The usual plea that has been taken as Section 3(d) of the Orissa Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 for reservation does not apply to those posts. The said Act was enacted by the Orissa Act 38 of 1975. The intention of legislature to bring the aforesaid enactment is evident from its object, which speaks that the purpose of enactment is to provide for adequate representation of Scheduled Castes and Scheduled Tribes in Posts and Services under the State. During the year 1975 when the O.R.V.Act came to operation, the concept of contractual employment was not prevalent. But now the contractual employment is the rule of the day. Virtually, the door for permanent employment has been closed. This scenario now prevailing in the employment market was unforeseen during the year 1975 and due to the massive growing of contractual employ¬ment, time has come for the State to re-look at the provisions of Section 3(d) of the O.R.V.Act and take a decision as to whether there is any requirement for its amendment to achieve the purpose, for which the aforesaid statute was enacted or to take a policy decision to adopt the provisions of the O.R.V.Act in the contractual employment in the government department or in the governmental organisations, as the case may be. We leave it to the Government to take a decision in this regard. In the case at hand, though we could not get proper assistance from the government, Mr. B.P.Tripathy, learned counsel for the Mission Director, NRHM, O.P.2 produces a document which shows that they have decided a formula so that the S.C. & S.T. candidates are not deprived of their rights for consideration of such employment. The formula evolved, as stated, are as follows : “1. In case candidate of the reserve category viz. ST & SC are not available, they can be changed inter alia. 2. If candidate of ST, SC & SEBC category are not available then candidates from unreserved category will be taken. 3. The formula evolved, as stated, are as follows : “1. In case candidate of the reserve category viz. ST & SC are not available, they can be changed inter alia. 2. If candidate of ST, SC & SEBC category are not available then candidates from unreserved category will be taken. 3. In case women candidates of any category are not available men from the same category will be considered.” It is stated that by Mr. Tripathy that in some districts they are adopting the aforesaid formula. In view of the statement of Mr. B.P.Tripathy, learned coun¬sel for O.P.2, this writ petition is allowed. Let the O.Ps. consider the case of the petitioner in accordance with law keep¬ing in mind the policy evolved by the National Rural Health Mission and take a decision on the same within a period of fif¬teen days from the date of communication of this order. Issue urgent certified copy. Petition allowed.