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2009 DIGILAW 131 (ORI)

Sasmita Sethi v. State of Orissa

2009-02-13

B.P.DAS, R.N.BISWAL

body2009
JUDGMENT R.N. BISWAL, J. — The petitioner has filed this writ petition with a prayer to direct the opp.parties not to remove her from service without following the due procedure of law. 2. As per the writ petition, petitioner, having been selected under due procedure, was appointed as System In-Charge by opp.party No.3 in S.C.B. Medical College ware house, Cuttack, with stipulation that she would receive her salary from M/s. Broadline Computer System Pvt. Ltd. functioning in the office of opp.party No.2 for implementation of Drug Inventory Management System (in short DIMS) Project under the Health Department. Pursuant to the appointment order, petitioner submitted her joining report in the office of opp.party No.4 on 17.7.2003 forenoon and since then she has been discharging her duty to the best of her ability to the satisfaction of the authorities and receiving her salary as a contractual staff. 3. There are altogether 33 ware houses-one ware house in each of the 30 districts and likewise one warehouse in each of the three Medical Colleges, under the Drug Inventory Management Unit for which the State Govt. has made budgetary provision. As against 33 ware houses, 30 System-in-Charges were appointed, and subsequently 13 of them left job. In the meantime, it is learnt that National Rural Health Mission (in short NRHM), Orissa, Department of Health & Family Welfare would take over the project and the contractual staffs working under Deputy Director, State Drug Management Unit, Orissa in short (DDSDMU, O) would be under the NRHM. On 5.7.2007 opp.party No.5 issued an advertisement to fill up the vacant 13 nos. of posts. However, 20 System-in-Charges, who were continuing in service, including the petitioner were also asked to participate in the selection and accordingly the petitioner, though she had not offered herself as a candidate participated in the recruitment test. Opp.party No.5 vide letter dated 29.1.2007 intimated the petitioner that she had been se¬lected/short listed and was asked to appear in the computer test and interview to be held on 17.11.2007 and 18.11.2007 at Mission Directorate. Accordingly, she participated in the computer test and interview. However, she came to know that she was going to be disengaged from service, only to accommodate some other fresh candidates, on the pretext that she was not selected. Under such circumstances, she has filed the present writ petition. 4. Accordingly, she participated in the computer test and interview. However, she came to know that she was going to be disengaged from service, only to accommodate some other fresh candidates, on the pretext that she was not selected. Under such circumstances, she has filed the present writ petition. 4. In his rejoinder, petitioner stated that after comple¬tion of the tenure of Broadline Computer System Private Limited in June 2004, the Director Health Services, Orissa, (opp.party No.2) wrote to all C.D.M.Os. and the Superintendents of SCB Medical College, Cuttack, VSS Medical College, Burla, MKCG Medi¬cal College, Berhampur stating that the Pharmacists and the non-pharmacists trained from State Drug Management Unit, Orissa in computerized Drug Inventory Management Information System be attached/posted to district headquarters hospitals ware houses for better management. The trained personnel would work under the supervision of System In-Charges in the computer system for inward and outward data entry and they would work independently in the computerized DIMS after exit of M/s. Broadline Computer System Pvt. Limited under Annexure-6. 5. Opp.parties 1 and 5 in their joint counter affidavit contended that the selection procedure was devised by a set of experts, who constituted the selection committee and there was fair play and no favour in the selection and that the petitioner failed in the selection, as she secured only 33% of marks. It is the further plea of these opp.parties that petitioner was never appointed by the Director of Health Services of the State Govern¬ment on the other hand she along with other System-in-Charges was appointed by M/s. Broadline Computer System, an outsider Company, based at Chennai, which was temporarily engaged by DFID to manage the D.I.M.S. in Orissa. In order to provide better opportunity to such employees, they were also asked to face the selection test and were given 5% mark as relaxation because of their past expe¬rience. Even after this relaxation, the petitioner could not qualify in the test, as she secured 33% of marks against the minimum mark of 40%. So opp.parties 1 and 5 prayed to dismiss the writ petition. 6. Opp.parties 2 and 3 in their joint counter affidavit also contended that the petitioner was never appointed/engaged by the Director of Health Services of the State Government and on the other hand, she was appointed by M/s. Broadline Computer Systems, a purely private organization. So opp.parties 1 and 5 prayed to dismiss the writ petition. 6. Opp.parties 2 and 3 in their joint counter affidavit also contended that the petitioner was never appointed/engaged by the Director of Health Services of the State Government and on the other hand, she was appointed by M/s. Broadline Computer Systems, a purely private organization. It is their further case that the State Government had no made any budgetary provision for maintenance of the Drug Management Unit. 7. Opp.party No.4, in his Counter affidavit, stated that the petitioner was posted under the Superintendent of SCB Medical College, Cuttack as System-in-Charge of the ware house of the College with effect from 17.7.2003 under the D.I.M.S. Project vide DMET letter No.3885 dated 16.7.2003. Subsequently, she joined in the said ware house on 17.7.2003 and has been continu¬ing as such. Under such premises, opp.party No.4 prayed to drop the writ petition against him. 8. Learned counsel for the petitioner submitted that the petitioner is an M.A. in Political Science having secured 56% of marks from Utkal University and has successfully completed PGDCA. After strict selection process, she came out successful and was appointed as System-In-Charge in SCB Medical College ware house. She was certified by the Superintendent of SCB Medical College, Cuttack to be very diligent, punctual and sincere in her duty and well versed in D.I.M.S. as per Annexure-3. The petitioner was receiving her salary out of funds provided by the Department of International Development during the tenure of M/s. Broadline Computer Systems Private Limited till June 2004. DFID was provid¬ing funds to the said Company and in turn it was paying the salary to the System-In-Charges employed under the DIMS Project. If M/s. Broadline Computer System private Limited was the ap¬pointing authority of the System-In-Charges, including the peti¬tioner after its exit, the System-In-Charges ought to have been removed from service, but they were allowed to continue and as such they should not be removed illegally. 9. Learned counsel for the opp.parties contended that there is no document showing the appointment order of the peti¬tioner. Annexure-1 written by the DDSMV,O to the Superintendent of SCB Medical College and Hospital, Cuttack informing him that the petitioner having been appointed by M/s. Broadline Computer System Private Limited would work as System-In-Charge in SCB Medical College ware house with effect from 17.7.2003 under DIMS Project. Annexure-1 written by the DDSMV,O to the Superintendent of SCB Medical College and Hospital, Cuttack informing him that the petitioner having been appointed by M/s. Broadline Computer System Private Limited would work as System-In-Charge in SCB Medical College ware house with effect from 17.7.2003 under DIMS Project. So, it appears that the petitioner was appointed by M/s. Broadline Computer System private Limited, a Private Company based at Chennai. After the project was taken over by N.R.H.M., the petitioner ceased to have any right to continue in the project. In our considered opinion, only because for a temporary period the Govt. allowed the System-In-Charges engaged by M/s. Broadline Computer System Pvt. Ltd. to continue in service, they cannot claim the posts as of right. 10. Admittedly, the petitioner appeared at the recruitment test, she was short-listed and was asked to face viva voce and computer test. But, she could not be selected; even though 5% grace mark was awarded to her in view of her past experience. She secured 33.75% of marks as found from Annexure-A/1, while the cut off mark was 40%. She did not challenge the advertisement made for selection of System-In-Charges, rather she faced the written, viva voce and computer test and when she became unsuccessful, then only she filed the present case. There is no material to show that there was any foul play or favouritism in making the selection. 11. At this stage, learned counsel for the petitioner sub¬mitted that admittedly the petitioner belongs to Scheduled Caste community, her sub-caste being Dhoba. In view of the decision of this Court in the case of Dr. Rupananda Brined v. State of Orissa and two others, 2008 (II) OLR 357 , even if the advertisement was made for contractual appointment the opp.parties ought to have adhered to O.R.V. Act. The relevant portion of the decision reads as follows : “In the case at hand, though we could not get proper assist¬ance 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. candi¬dates are not deprived of their rights for consideration of such employment. The formula evolved, as stated, are as follows : 1. In case candidates of the reserve category viz. ST & SC are not available, they can be changed inter alia. 2. The formula evolved, as stated, are as follows : 1. In case candidates 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 avail¬able men from the same category will be considered. It is stated by Mr. Tripathy that in some districts they are adopting the aforesaid formula. In view of the statement of Mr. B.P. Tripathy, learned counsel for opp.party No.2, this writ petition is allowed. Let the opp.parties consider the case of the petitioner in accordance with law keeping in mind the policy evolved by the National Rural Health Mission and take a decision on the same within a period of fifteen days from the date of communication of this order.” 12. Accordingly, in view of the aforesaid decision, we dispose of the writ petition with a direction to the opp.parties to consider the case of the petitioner in accordance with the policy evolved by NRHM within a period of one month from the date of communication of this order. B.P. DAS, J. I agree. Petition disposed of.