Research › Search › Judgment

Orissa High Court · body

2019 DIGILAW 326 (ORI)

Minati Sahoo v. State Of Orissa

2019-04-16

B.R.SARANGI

body2019
JUDGMENT B.R. Sarangi, J. - The petitioner has filed this writ petition to quash order dated 03.04.2016 passed by opposite party no.3-Chief District Medical Officer, Malkangiri-cum-District Mission Director in Annexure-6 rejecting her representation for engagement as Staff Nurse/ANM in the district of Malkangiri pursuant to advertisement issued in Annexure-1. 2. The factual matrix of the case, in brief, is that opposite party no.3 issued an advertisement in Annexure-1 dated 31.12.2013 inviting applications from eligible candidates for filling up of posts of AYUSH Doctors (Ayurvedic/ Homoeopathic), Pharmacist and Staff Nurse/ANM in the Mobile Medical Teams (MMTs)/Mobile Health Teams (MHTs) under Rashtriya Bal Swasthya Karyakram (RBSK), NHM, Odisha on contractual basis for a term of 11 months as per remuneration fixed for each of the posts. Pursuant to said advertisement, the petitioner having requisite qualification and eligibility criteria applied for the post of Staff Nurse in respect of Malkangiri district. As per vacancy position, the total number of posts of Staff Nurse/ANM in Malkangiri district was 10. Total 33 number of candidates, including the petitioner, applied for the post of Staff Nurse/ ANM for Malkangiri district. A data base of 33 candidates for objection to the draft merit list was published, vide Annexure-2, in the website of the opposite parties. In the said data base draft merit list, the name of the petitioner found place at serial no. 1. After publication of draft merit list, some of the unsuccessful candidates for the post of Ayush Doctor, questioning the legality and propriety of the said advertisement, on the ground that there was no reservation for SEBC candidates, approached this Court by filing W.P.(C) No.24677 of 2013 and this Court vide order dated 21.03.2014 disposed of the said writ petition and other connected writ petitions directing the opposite parties to take a decision with regard to reservation of posts in respect of SEBC candidates following the Government circular dated 12.01.1995 and vacated the interim orders passed in all the writ petitions. Pursuant thereto, so far as selection of Ayus Doctors and Pharmacists in respect of Malkangiri district is concerned, engagement orders have been issued in favour of the selected candidates, but the petitioner, though stood first in the draft merit list, she was not issued with engagement order. Hence this application. 3. Mr. Pursuant thereto, so far as selection of Ayus Doctors and Pharmacists in respect of Malkangiri district is concerned, engagement orders have been issued in favour of the selected candidates, but the petitioner, though stood first in the draft merit list, she was not issued with engagement order. Hence this application. 3. Mr. S. Jena, learned counsel for the petitioner contended that there is no valid and justifiable reason available with opposite party no.3 for not issuing engagement order in favour of the petitioner. But for the reasons best known to the authority, no engagement order was issued in favour of the petitioner, despite publication of data base draft merit list in the website Therefore, the petitioner approached this Court by filing W.P.(C) No.12099 of 2015 with a prayer to direct opposite parties no.2 and 3 to give effect to the merit list within a reasonable time and this Court vide order dated 15.07.2015 directed opposite party no.3 to consider and dispose of her representation. Since no action was taken, pursuant to such direction, the petitioner filed CONTC No.1627 of 2015 which was also disposed of vide order dated 22.01.2016 granting two months time to comply with the order. After expiry of the said period, when no action was taken, the petitioner was constrained to file second contempt petition bearing No.561 of 2016. During pendency of the said contempt petition, the order impugned dated 03.04.2016 was passed rejecting the representation of the petitioner assigning the following reasons: "1. As per decision taken in selection committee meeting held on 20.05.2014, the certificate verification will not be conducted for the post of Staff Nurse/ANM under RBSK till outcome of the O.A. No.232/2014 filed by Smt. Padmalaya Mirkap and O.A. No.314/ 2014 filed by Karuna Biswas. 2. In the meantime Smt Padmalaya Mirkap again filed a W.P.(C) no.7987/2015 & 23239/2015 before the Hon'ble High Court of Odisha relating to the same matter, out of which the W.P.(C) no.7987/ 2015 already been disposed of." Learned counsel for the petitioner further contended that the reasons so assigned by opposite party no.3 in the order dated 03.04.2016 under Annexure-6 cannot sustain in the eye of law Therefore, the petitioner has approached this Court by filing this writ petition to quash the same. 4. Mr. 4. Mr. B. Senapati, learned Additional Government Advocate contended that due to pendency of the cases in various forums, the engagement order could not be issued in favour of the petitioner. As such, the representation of the petitioner has been rejected on the grounds, which have been stated in the counter affidavit at paragraph-19, that the selection procedure for the post of ANM/Staff Nurse under the NHM has been modified vide Mission Director Order No.9150 dated 29.09.2015, and that opposite party no.3 is accordingly taking steps to publish fresh advertisement to fill up the backlog and present vacancies for the post of ANM/Staff Nurse-RBSK basing upon the order of the MD, NHM, Odisha and liberty has been granted to the petitioner to apply for the post as per fresh advertisement to be published shortly. 5. Mr. B.P. Tripathy, learned counsel appearing for opposite party no.2-Mission Director, NHM contended that power has been vested with the CDMO, Malkangiri and, therefore, counter affidavit has been filed by him to defend the case. 6. Considering the contentions raised by learned counsel for the parties and after going through the records, it appears that representation of the petitioner has been rejected by order dated 03.04.2016 for the reasons that as per decision taken in selection committee meeting held on 20.05.2014, the certificate verification could not be conducted for the post of Staff Nurse/ANM under RBSK because of pendency of O.A. No.232 of 2014, W.P. (C) Nos.7987 and 23239 of 2015 filed by Smt. Padmalaya Mirkap and O.A. No.314 of 2014 filed by Karuna Biswas. But, it is evident from the records that O.A. No.232 of 2014 and W.P.(C) No. 23239 of 2015 filed by Smt. Padmalaya Mirkap have been disposed of as withdrawn and so far as W.P.(C) No. 7987 of 2015 filed by Smt. Padmalaya Mirkap is concerned, this Court disposed of the same vide order dated 24.07.2015 directing opposite party no.2 to take a decision on the representation filed by the petitioner within a period of four months from the date of communication of the order. Therefore, except O.A. No.314 of 2014 filed by Karuna Biswas, all other cases are not pending before any forum. If anything will be decided by the tribunal in O.A. No.314 of 2014 that will not stand on the way of the petitioner to get engagement as Staff Nurse, as she stood first in the merit list. Therefore, except O.A. No.314 of 2014 filed by Karuna Biswas, all other cases are not pending before any forum. If anything will be decided by the tribunal in O.A. No.314 of 2014 that will not stand on the way of the petitioner to get engagement as Staff Nurse, as she stood first in the merit list. Therefore, the reasons assigned by the CDMO, Malkangiri in the order impugned dated 03.04.2016 cannot sustain in the eye of law. 7. The subsequent explanation given in paragraph-19 of the counter affidavit filed by opposite party no.3-CDMO, Malkangiri cannot be taken into consideration, in view of the judgment of this Court in M/s. Shree Ganesh Construction vs. State of Orissa and others, 2016(11) OLR 237 which has been passed following the judgment passed of the apex Court in Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851 . In paragraphs-7 & 8 of the judgment in M/s. Shree Ganesh Construction (supra) this Court held as follows: "7. In the counter affidavit filed, the reasons have been assigned, which are not available in the impugned order of cancellation filed before this Court in Annexure-4 dated 5.2.2016. More so, while cancelling the tender, the principles of natural justice have not been complied with. It is well settled principle of law laid down by the Apex Court in Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851 that: "When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise an order bad in the beginning may by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. 8 In Commissioner of Police, Bombay vs. Gordhandas Bhanji, AIR 1952 SC 16 , the Apex Court held as follows : "Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older." Similar view has also been taken in Bhikhubhai Vithlabhai Patel and others vs. State of Gujarat and another, (2008)4 SCC 144 . 8. In view of such position, this Court is of the considered view that the reasons which have been assigned by opposite party no.3 in the counter affidavit cannot be taken into consideration. Therefore, the order dated 03.04.2016 passed by opposite party no.3 in Annexure-6 cannot sustain in the eye of law and the same is hereby quashed. Opposite parties no.2 and 3 are directed to consider the case of the petitioner for her engagement as Staff Nurse/ANM, pursuant to selection made vide Annexure-2 on the basis of advertisement issued in Annexure-1 dated 31.12.2013 as expeditiously as possible, preferably within a period of six weeks from the date of communication/ production of certified copy of this judgment. 9. The writ petition is allowed accordingly.