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2017 DIGILAW 650 (ORI)

State of Odisha v. Suryokanta Dwibedi

2017-07-03

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S. N. Prasad, J. 1. In these writ petitions common prayer has been made and as such the same are being disposed of by this common order. 2. The state of Orissa has approached this court invoking the extraordinary jurisdiction conferred under Articles 226 and 227 of the Constitution of India wherein the orders passed by the Tribunal in O.A. Nos.947 of 2012, 271 of 2013 and 929 of 2012 are under challenge whereby and where under the Tribunal has passed the order directing the State-Respondent to consider the case of the applicants for their appointments for the post of contractual pharmacists under general stream as per their eligibility and thereafter be regularized as per rule after 6 years of completion of contractual service without quashing the advertisement which was impugned in those original applications. 3. The brief fact of the case is that the applicants who are working as contractual pharmacists in different Mobile Health Units under the administrative control of Chief District Medical Officer, Sundargarh, Sambalpur have preferred original applications to quash the advertisement dtd. 25.7.2012, 27.7.2012 and 19.1.2013, respectively, so far as it relates to filling up the posts of Pharmacists from the open market is concerned and for a direction to the State - respondents not to fill up the regular vacant posts of Pharmacists on contractual basis from the open market other than the applicants without leave of the Tribunal and appoint the applicants against regular advertised vacant posts of Pharmacists under the general stream on contract basis as per the policy decision of the Govt. The applicants were initially appointed/engaged as Pharmacists in different Mobile Health Units against newly created posts for different PHC/CHCs since 2009. The Government of Odisha, in Health and Family Welfare Department/respondent no.1, in order to facilitate the mobile health unit staff, took a policy decision vide circular dtd.26.11.2001 and subsequent circular dtd.25.1.2002 for giving preference to the Pharmacists those who have served for three years or more while filling up the contractual posts of Pharmacists under the general stream in view of their long experience in the health organization. The authorities, in consultation with the Finance Department, have taken a policy decision by issuing the resolution vide order No.24160 dtd.29.10.2008 for regularizing contractual Pharmacists including the MHU pharmacists in the regular establishments those who have completed six years of contractual service by converting the contractual vacant post to regular one. The Government, in the resolution dtd.13.5.2013, with the concurrence of the Finance Department, also took a policy decision for regular absorption of contractual pharmacists who have completed uninterrupted contractual service of six years in MHU. When the applicants came to know about regular vacant posts of pharmacists under the administrative control of the CDMO, Sundargarh, they have made representation before the authority for allowing them to continue in the available regular vacant post of pharmacists on contract basis on seniority basis in order to be regularization of their services in future in view of the Government policy decision. At that juncture, the CDMO, Sundargarh, issued an advertisement on 27.7.2012 by inviting applications from eligible candidates from the open market for filling up eight nos. of regular vacant posts of pharmacists of different category lying vacant under different PHCs/CHCs of Sundargarh district. 4. The case of the applicants is that in other districts the respective CDMOs had filled up the vacant posts of pharmacists under the regular establishment in general wing by appointing the MHU Pharmacists on contractual basis in order to be regularization of their services on completion of six years of contractual service, but the case of the applicants are being discriminated. 5. The applicants approached to the Tribunal assailing the advertisement and decision of the Government wherein the State has filed counter affidavit inter alia stating therein that the petitioners are not coming under the parameter of the advertisement as contained in Annexure-3 since they have not completed six years of service to be considered for the post of pharmacists. 6. The Tribunal, after considering the rival submissions of the parties, have decided the issue without quashing the impugned advertisement, but directed the State-Respondents to consider the case of the applicants for their appointment in the post of contractual Pharmacists under the general stream as per their eligibility and thereafter be regularized as per rule after completion of six years of contractual service and thereafter proceed with the recruitment as per the impugned advertisement. 7. 7. The state of Odisha, being aggrieved with the said order is before this court by way of these writ petitions assailing the same on the ground that the Tribunal, while disposing of the original applications, has not considered the recruitment rule notified on 17.9.2013 (Annexure-5) and 12.11.2013 (Annexure-6) which pertains to the process of selection to the post of Group-C and Group-D employees. 8. Learned counsel representing the applicants/opposite parties herein have vehemently opposed the submission of the learned counsel representing the State of Odisha by submitting that the Tribunal has not erred in passing the order, rather the Tribunal, after taking into consideration the resolution of the Government dtd.29.10.2008 which has been issued to consider the case of engagement on annual contract basis with the condition of regularization of the services of the pharmacists who are working under mobile health units after completion of six years, since the applicants/opposite parties are continuing in the post, as such they are entitled to be allowed to continue in service. He submits that the notification dtd.17th September, 2013 and 12th November, 2013 pertains to regular appointment promulgated by the State Government in exercise of power conferred to it under Article 309 of the Constitution of India which also speaks about the process of regularization of existing contractual Group-C and Group-D employees, as such since the applicants/opposite parties are the existing Group-C employees, these notifications will not come in their way in dispensing with their services, rather these rules are in their favour which speaks about regularization of services after completion of six years of service and the Tribunal, after taking note of this, has directed to consider the case of the applicants for regularization after completion of six years of service, hence directed to consider their cases in accordance with law. They have submitted in the light of these submissions that the order needs no interference by this court. 9. We have heard learned counsels for the parties and appreciated the argument advanced on their behalf. The fact which is not in dispute in this case is that the applicants/opposite parties are working as pharmacists under Mobile Health Units on contract basis. 9. We have heard learned counsels for the parties and appreciated the argument advanced on their behalf. The fact which is not in dispute in this case is that the applicants/opposite parties are working as pharmacists under Mobile Health Units on contract basis. The Government vide circulars dtd.26.11.2001 and 25.1.2002, took policy decision for giving preference to such type of pharmacists those who have served for three years or more while filling up the contractual post of pharmacists under the general stream in view of their long experience. Subsequently the State Government has come out with a resolution with consultation of the Finance Department vide order No.24160 dtd.29.10.2008 wherein the Government has taken decision regarding the cases of the contractual pharmacists, the decisions are as follows:- “In pursuance of Finance Department circular No.55764/F dated 31.12.2004, instructions were issued during the year 2005 and 2006 to all C.D.M.O.s/Superintendents of Medical Colleges for filling up of Para Medical posts inter alia pharmacists with the stipulation that such engagement will be on an annual contract basis with consolidated remuneration and contract will be renewed in subsequent years depending on the performance of the appointee. The contractual posts were created after abolition of equivalent number of regular vacant posts. The Orissa Pharmacists Service Association have been demanding for their regularization. Government after careful consideration have been pleased to order that (A) On completion of six (6) years of uninterrupted contractual service ignoring technical one day gap, if any, the pharmacists engaged on contractual basis will be eligible for appointment as regular pharmacist. But such regular appointment will be made after creation of regular post in lieu of contractual post. (B) In the case of pharmacists who worked under Mobile Health Units and subsequently were engaged in general stream on contract basis, these six years will be taken from the date of joining in the Mobile Health Unit. (C) The above principle will also be applicable to those pharmacists who were engaged on contractual basis under OHSDP and later engaged on contract basis in the Government after closure of the project. (D) The pharmacists who are working under Mobile Health Units will also be eligible for regular appointment after completion of six years. (E) The contractual pharmacists who were engaged against contractual posts will be appointed after creation of regular posts. (D) The pharmacists who are working under Mobile Health Units will also be eligible for regular appointment after completion of six years. (E) The contractual pharmacists who were engaged against contractual posts will be appointed after creation of regular posts. But in case of MHU Pharmacists, they will be appointed on regular basis in future vacancies. (F) The regularization will be subject to observance of provision of ORV Act and Rules. This order will come into force with immediate effect. This has been concurred in by the Finance Department vide their UOR No.384/PSF dtd.26.8.2008.” It is evident from the resolution dtd.29.10.2008 that the Govt. has taken policy decision with consultation of the Finance Department to regularize the services of pharmacists on completion of six years of uninterrupted contractual service. The Govt. has also taken decision to consider the regularization of such pharmacists who are working under Mobile Health Units for regular appointment after completion of six years. It is evident from these resolutions that the Govt. has taken policy decision not to dispense with the services of the pharmacists who have been engaged on contractual basis, rather the Govt., with the concurrence of the Finance Department, has taken a conscious decision to regularize the services of the contractual pharmacists after completion of six years of continuous service. The C.D.M.O., Sambalpur has come out with the advertisement on 25.1.2012 (Annexure-3) notifying the post to be filled up, i.e. the post of pharmacists on contractual basis. The applicants being aggrieved with the said advertisement have approached to the Tribunal for quashing of the said advertisement on the ground that since they are working on contract basis, as such engaging the other set of appointees on contract basis would amounts to victimizing them and the same would be contrary to the principal that one contractual engagement should not be replaced by another contractual engagement. The Tribunal, after taking note of this aspect of the matter, has directed the authorities to consider the case of the applicants without quashing the advertisement. 10. The main contention of learned counsel for the State is that the Tribunal has not taken note of the resolution dtd.17.9.2013 and 12.11.2013. We have gone through the resolution dtd.17.09.2013 which has been issued by the State Govt. 10. The main contention of learned counsel for the State is that the Tribunal has not taken note of the resolution dtd.17.9.2013 and 12.11.2013. We have gone through the resolution dtd.17.09.2013 which has been issued by the State Govt. in exercise of power conferred under Article 309 of the Constitution of India by which the provision has been made for regular appointment of existing contractual Group-C and Group-D employees who are not holding any post in contravention of any statutory Recruitment Rules made under the proviso to Article 309 of the Constitution of India. It transpires from Rule 1 (1) of the Regulation that for regular appointment the gradation list of such contractual employees shall be prepared by the appointing authority on the basis of their date of appointment. Further Rule 1 (2) provides that the regular appointment of the contractual employees shall be made on date of completion of six years or from the date of publication of the Resolution, whichever is later. It further transpires from the said notification that the regular appointment has been provided to be made under the provision of Rule 2 which speaks that on the date of satisfactory completion of six years of contractual service or from the date of publication of this resolution, which ever is later, they shall be deemed to have been regularly appointed, the formal order of regular appointment shall be issued by the appointing authority. For better appreciation Rule 1 and 2 are being referred herein below:- “1. Regular Appointment: (1) A gradation list of such contractual employees shall be prepared by the Appointing Authority on the basis of their date of appointment. In case, the dates of appointment of two or more employees are the same their inter se position may be decided on the basis of their date of birth, taking the elder as senior. (2) Regular appointment of the above categories of contractual employees shall be made on the date of completion of six years of service or from the date of publication of this Resolution, whichever is later, in the order in which their names appear in the gradation list prepared under Para-1. The period of six years shall be counted from the date of contractual appointment prior to publication of this Resolution. (3) xxxxxxxxxxxxxxxxxx (4) xxxxxxxxxxxxxxxxxxx 2. The period of six years shall be counted from the date of contractual appointment prior to publication of this Resolution. (3) xxxxxxxxxxxxxxxxxx (4) xxxxxxxxxxxxxxxxxxx 2. Conditions of service on Regular Appointment: (1) Regular Appointments: On the date of satisfactory completion of six years of contractual service or from the date of publication of this Resolution, whichever is later, they shall be deemed to have been regularly appointed. A formal order of regular appointment shall be issued by the appointing authority. (2) xxxxxxxxxxxxxx (3) xxxxxxxxxxxxxxx” We have also gone through the notification dtd.12.11.2013 which has also been issued by the State in exercise of power conferred by proviso to Article 309 of the Constitution of India and in super-session of the respective recruitment rules, orders and instructions so far as the matter relates to the mode of employment of the selected candidates to certain initial appointment to Group-C and Group-D posts of the State is concerned. The provision as contained in Rule 4 speaks regarding categorization of existing contractual employees, the contractual appointments have been classified in two categories, i.e.:- (a) Category-1 which contains the appointment made on contractual basis against contractual posts created with the concurrence of the Finance Department without following the recruitment procedure including The Odisha Reservation of Vacancies in posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 and the rules made there under and rules regulating recruitment for the regular posts. (b) Category-II contains contractual engagement made through manpower service provider agencies with concurrence of the Finance Department. The Rule 5 speaks about recruitment procedure to be made on the basis of provisions of the relevant recruitment rules or executive instructions, as the case may be in force. We have gathered from these rules that there is no averment in the said rules that, the services of the contractual engages appointed prior to promulgation of the notification dtd.12.11.2013 will be dispensed with, rather it has been categorized in two categories. However, the case of the applicants is not coming under these two categories, reason being that they have been appointed after following the due procedure of recruitment after following the provisions of The Odisha Reservation of Vacancies in posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975. However, the case of the applicants is not coming under these two categories, reason being that they have been appointed after following the due procedure of recruitment after following the provisions of The Odisha Reservation of Vacancies in posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975. We, after going through these provisions of the statute, are of the considered view that these rules do not contain any provision to dispense with the services of the contractual engagees who have been engaged after following due procedure of law, moreover, the cases of such employees have been directed to be protected by virtue of resolution dtd.29.10.2008. 12. We have examined the advertisement issued by the Government in the light of the resolution dtd.29.10.2008, resolution dtd.17.9.2013 and 12.11.2013 and from its perusal we are of the considered view that the State Government is supposed to consider the case of the applicants/opposite parties taking into consideration the decision of the Govt. dtd.29.10.2008 as also the rules promulgated in exercise of power conferred under the proviso to Article 309 of the Constitution of India for regularizing their services. 13. The Tribunal, in course of looking into the decision of the Government with respect to issuance of advertisement, although has not interfered with the same but however directed the authorities to consider the case of the applicants in accordance with law. 14. We, after going through the finding given by the Tribunal as also the resolution dtd.29.10.2008 and the notifications dtd.17.9.2013 and 12.11.2013, are of the considered view that the Tribunal has not committed any error in passing the said order, hence we decline to interfere with the same since there is no error apparent on the face of record. In the result the writ petitions stand dismissed. 15. This court directs the State Authorities to comply with the direction passed by the tribunal. With these observation and direction the writ petitions stand disposed of.