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2019 DIGILAW 535 (ORI)

Parthpratima Panda v. State of Odisha

2019-08-20

B.R.SARANGI

body2019
JUDGMENT : Dr. B.R. Sarangi, J. 1. The petitioner, by means of this writ application, seeks direction to the opposite parties to give him appointment as AYUSH Doctor (Ayurvedic) under unreserved male category in the district of Bhadrak, as per advertisement no. 26/13 in Annexure-1, by quashing the selection of opposite party no. 4 as AYUSH Doctor (Ayurvedic) under the said category. 2. The fact of the case, in hand, is that National Rural Health Mission (NRHM) has been in operation since 2005 in the State of Odisha aiming to improve primary health care of the rural people, especially poor, women and children. The programme includes integration of health concern with determinant of health like sanitation and hygiene, nutrition and safe drinking water. To attain the above objective, NRHM introduces various schemes and programmes and implement the same district-wise. Rashtriya Bal Surakshya Karyakram (RBSK) is one of such programmes implemented by NHRM which aims at early detection and complete treatment of physical problem of children between 0-18 age and intends to cover over 1.21 crores of children within its domain. The programme of RBSK runs through NRHM and requires a mobile medical team for effective implementation of the programme. Mobile Medical Teams (MMTs) comprise of AYUSH Doctor (Ayurvedic/Homoeopathic), Pharmacists and Staff Nurse/ANM. 2.1. In order to implement the programme, opposite party no. 2 issued an advertisement inviting applications from eligible candidates for filling up of posts of AYUSH Doctor (Ayurvedic/Homoeopathic), Pharmacists and Staff Nurse/ANM for all the 30 districts on contractual basis for a term of 11 months with specified remuneration indicated against the posts. The petitioner, being a qualified Ayurvedic Doctor and registered practitioner possessing the required qualification and experience, as per the advertisement, applied for the post of AYUSH Doctor (Ayurvedic) for the vacancy against Bhadrak district under unreserved male category. As per advertisement, total 14 nos. of vacancies in AYUSH Doctors were intended to be filled up from the candidates having Bachelor Degree in Ayurvedic Medicine and Surgery (B.A.M.S). The advertisement stipulates that out of total 14 vacancies, 7 posts would be filled up by women candidates and rest by male candidates. From out of 7 male vacancies, 4 were to be filled up by unreserved category. The scheme of selection procedure, as per the advertisement, was based upon career weightage. 2.2. The advertisement stipulates that out of total 14 vacancies, 7 posts would be filled up by women candidates and rest by male candidates. From out of 7 male vacancies, 4 were to be filled up by unreserved category. The scheme of selection procedure, as per the advertisement, was based upon career weightage. 2.2. The authority, after receiving applications, on due scrutiny published a short list of eligible candidates for Ayush Doctor (Ayurvedic) on the basis of career weightage. As per the said short list, the petitioner's name figured at SI. No.8, and among the unreserved male candidates, the petitioner was figured at SI. No.5 of the merit list prepared on the basis of career weightage. The candidate at SI. No.1, namely Akshaya Kumar Khilar with career weightage of 60.671 in unreserved male category did not opt for the post. Hence the petitioner became eligible as the fourth candidate in the merit list. The authority, accordingly, called upon the petitioner and verified all the original documents. Therefore, the petitioner has got every legitimate expectation to be selected to the post of AYUSH Doctor (Ayurvedic) under unreserved male category, but his name did not figure in the final list of candidates selected for the post. Out of four unreserved male candidates, having better weightage and placed above the petitioner in the shortlist, the names of the three appeared in the final selection list. As Akshaya Kumar Khilar placed at SI. No. 1 did not turn up, the name of the petitioner, which ought to have been reflected at SI. No. 4 of the selected candidates under unreserved male category, had not appeared and instead the name of Debraj Panigrahi, opposite party no. 4 had figured in the final selection list though the said opposite party had figured at SI. No. 12 in the short listed candidate with career weightage of 49.692. 2.3. The petitioner sought for information under the Right to Information Act, 2005, but the same was not responded. Consequentially, on 25.11.2013, he requested opposite party no. 2, by filing representation, for knowing the reason of such exclusion of his name, but no action was taken. Though the petitioner has secured more weightage than opposite party no. 4, reason for exclusion has not been indicated. Hence this application. 3. Mr. Consequentially, on 25.11.2013, he requested opposite party no. 2, by filing representation, for knowing the reason of such exclusion of his name, but no action was taken. Though the petitioner has secured more weightage than opposite party no. 4, reason for exclusion has not been indicated. Hence this application. 3. Mr. G.M. Rath, learned counsel for the petitioner contended that as per the merit list drawn by the selection committee though the petitioner stood in 5th position, since the candidate stood in SI. No. 1, namely, Akshya Kumar Khilar did not opt for the post, automatically the petitioner would have been selected against 4th post of male AYUSH Doctor (Ayurvedic) under unreserved category. Instead of placing the petitioner against serial No. 4, opposite party no. 4 was figured at serial no. 4 in the final select list. The selection of opposite party no. 4, whose name found place at serial no. 12 in the select list, is arbitrary and contrary to the provisions of law. Therefore, he seeks for quashing of the same. To substantiate his contentions, he has relied upon Dr. Rupananda Brined v. State of Orissa, 2008(H) OLR 357 and Dr. P.K. Gochhayat v. Odisha State Health and Family Welfare Society (W.P.(C) No. 24677 of 2013 disposed of on 21.03.2014). 4. Mr. D.K. Pani, learned Additional Standing Counsel appearing for opposite parties no. 1 and 3 supporting the appointment of opposite party no. 4 contended that he was selected and appointed as AYUSH Doctor (Ayurvedic) under unreserved category following Orissa Reservation of Vacancies (Scheduled Castes and Scheduled Tribes) Act, 1975 and as per the resolution made by G.A. Department, Government of Odisha. 5. Mr. M.K. Mohanty, learned counsel appearing for opposite party no. 4 contended that opposite party no. 4, being a physically handicapped candidate with 40% disability, is eligible for the post as per Government of Orissa G.A. Department Resolution dated 20.09.2005 read with Orissa Reservation of Vacancies (Scheduled Castes and Scheduled Tribes) Act, 1975 (for short ORV Act, 1975) read with Persons with Disabilities (Physically Handicapped) Equal Opportunities, Protection of Rights and Full Participation) Rules, 1995. It is further contended that opposite party no. 4 is a physically handicapped candidate for which, he has been given engagement against the vacancy. Therefore, the authority has not committed any illegality or irregularity in giving such appointment to opposite party no. 4. 6. This Court heard Mr. It is further contended that opposite party no. 4 is a physically handicapped candidate for which, he has been given engagement against the vacancy. Therefore, the authority has not committed any illegality or irregularity in giving such appointment to opposite party no. 4. 6. This Court heard Mr. G.M. Rath, learned counsel for the petitioner; Mr. D.K. Pani, learned Additional Standing Counsel appearing for opposite parties no. 1 and 3; and Mr. M.K. Mohanty, learned counsel for opposite party no. 4. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties the matter is being disposed of finally at the stage of admission. 7. In view of the pleaded facts and the contentions raised by learned counsel for the respective parties, the only question which falls for consideration is whether opposite party no. 4 could have been appointed against the 4th post under unreserved male category of physically handicapped having secured less marks. 8. In the advertisement in Annexure-1, it has been specifically mentioned that applications were invited from eligible candidates for filling up of posts of AYUSH Doctors (Ayurvedic/Homeopathic), Pharmacist, Staff Nurse/ANM in the Mobile Medical Teams(MMTs)-under Rashtriya Bal Swasthya Karyakram (RBSK), NRHM, Odisha on contractual basis for a term of 11 months with monthly remuneration as noted against each and subject to renewal as per the Society norms basing on the performance and subsistence of the programme. Performance incentives and other benefits are also admissible for all posts as per norms and orders issued thereunder from time to time. The details of vacancy, eligibility, criteria and term of reference can be downloaded from the official website (www.nrhmorissa.gov.in). The above positions are purely temporary and also co-terminus with the scheme. Intending candidates fulfilling the eligibility criteria were to apply online through the aforesaid website. The printed copy of the application generated from the system, along with all supportive certificates, were to be sent to the concerned CDMO-cum-District Mission Directors of the district on or before 10.10.2013 by 5.00 P.M. through Regd. Post/Speed Post/Courier only and the envelope containing the application should be superscribed clearly the name of the post applied for and one candidate is eligible to apply for one district only. The qualification/experience for recruitment to the post of AYUSH Doctor (Ayurvedic/Homoeopathic) as prescribed in the advertisement states as follows: Sl. Post/Speed Post/Courier only and the envelope containing the application should be superscribed clearly the name of the post applied for and one candidate is eligible to apply for one district only. The qualification/experience for recruitment to the post of AYUSH Doctor (Ayurvedic/Homoeopathic) as prescribed in the advertisement states as follows: Sl. No. Name of the Post Vacancy Monthly Base Remuneration (in Rs.) Qualification/ Experience 1. AYUSH doctor Ayurvedic/ Homoeopathic) details can be verified from the official website www.nrhmorissa.gov.in 12,000/- The Candidate must have a Bachelor Degree in Ayurvedic Medicine & Surgery (B.A.M.S.)/Bachelor in Homoeopathic Medicine & Surgery (B.H.M.S.) as the case may be, from a recognized University S/he must have completed the Internship Training if any. S/he should have passed Odisha up to M.E. Standard. Should have registered in the Odisha State Council of Ayurvedic/Homoeopathic Medicine at the time of application. No provisional registration certificate is acceptable. Applicant should be above 21 years and below 37 years age as on 1st October 2013 and the upper age limit as prescribed will be relaxable only for the categoric mentioned below. Upto a maximum of 5 years if a candidate belongs to SC/ST or Women or ex-serviceman. To maximum of 10 years in case of Physically challenged candidate. Applicant belonging more than one category shall avail. 9. On perusal of the above, it can be seen that the upper age limit has been fixed to 32 years as on 1st October 2013 and will be relaxable only upto a maximum of 5 years if a candidate belongs to SC/ST or Women or ex-serviceman and to maximum of 10 years in case of physically challenged candidates. Therefore, the advertisement clearly indicates that the age relaxation shall be up to 10 years so far as physically challenged candidates are concerned. As such, there is no reservation made for physically challenged candidates. But in the counter affidavit filed by opposite party no. 3, it has been specifically 'mentioned in paragraph-4 that as per advertisement no. 26/13 of Mission Director, NRHM, Odisha regarding filling up of posts of Mobile Medical Terms(MMTS) under Rashtriya Bal Swasthya Karyakrama (RBSK), 14 nos. of posts (UR-08, ST-04, SC-02) of AYUSH Ayurvedic Doctors were to be filled up. 16 nos. of applications were received for the post of AYUSH Doctor (Ayurvedic), out of which 02 nos. of applications were rejected on preliminary scrutiny and rest 14 nos. of posts (UR-08, ST-04, SC-02) of AYUSH Ayurvedic Doctors were to be filled up. 16 nos. of applications were received for the post of AYUSH Doctor (Ayurvedic), out of which 02 nos. of applications were rejected on preliminary scrutiny and rest 14 nos. (04-Female & 10-Male) of candidates from unreserved categories were short listed for document verification. No applications were received from SC or ST category candidates. During final selection, the guidelines issued by Mission Director regarding selection procedures for recruitment in MMTs under RBSK, and as per the ORV Act, 1975 and the letter dated 20.11.2012 of Mission Director, NRHM, Odisha were strictly followed. In paragraph-8 of the counter affidavit it has been specifically admitted that as per the final list of candidates short listed for document verification uploaded in the website, the petitioner was in 5th position on the basis of career weightage. The candidate at the SI. No. 01 (Akshya Kumar Khilar) did not appear for verification of the documents. Hence, the petitioner became eligible for the 4th position in the list under unreserved (male) category. But, in paragraph-9, it has been stated that opposite party no. 4 (Dr. Debaraj Panigrahi) was selected for the post of AYUSH Doctor (Ayurvedic) under unreserved category following ORV Act, 1975 and as per the resolution made by G.A. Department, Govt. of Odisha. Though the petitioner has secured 53.319 and opposite party no. 4 secured 49.692 in career weightage, opposite party no. 4 was selected for the 4th position of AYUSH Doctor (Ayurvedic) under unreserved (male) category following the principle of ORV Act, 1975 and the petitioner was enlisted in the 1st position of the waiting list. 10. On perusal of Annexure-E/3, the Resolution dated 20.09.2005 passed by Government of Orissa in General Administration Department with regard to reservation of vacancies in favour of physically handicapped persons, sportsmen and ex-servicemen in initial recruitment in State Civil Services and posts, it reveals that the State Government has reserved 3% of the vacancies for physically handicapped persons, 1% for sportsmen, 3% for ex-servicemen in case of initial recruitments in State Civil Services Now, it is to be examined the applicability of the provisions of ORV Act, 1975 to the present case, since the appointments are contractual in nature for a period of 11 months and are purely temporary and also co-terminus with the scheme as per advertisement issued in Annexure-1. Section 3(d) of the ORV Act, 1975 specifically excludes its application to the appointments to be made under contractual basis. This question no more remains res integra in Dr. Rupananda Brined (supra) wherein this Court, after analyzing the relevant provisions and taking into consideration the stand taken by the State Government, affirmed the position that the ORV Act, 1975 is not applicable until amendment of Section 3(d) and accordingly directed the State Government to either amend the statute or take a policy decision to adopt provision of the ORV Act, 1975 in respect of contractual appointments. Nothing has been placed before this Court to indicate that the State Government has taken any step for amendment of Section 3 of ORV Act, 1975 nor any policy decision has been taken prior to selection of opposite party no. 4 under reserved category. It is further clarified that the provision of the ORV Act, 1975, so far as NRHM programme is concerned, the State Government through the Mission Director-opposite party no. 2 has consistently taken the stand that the ORV Act, 1975 is not attracted to the appointment made under contractual basis. But for implementation of the project in the rural and tribal area, some posts are reserved for SC and ST candidates, which have already been specified in the advertisement itself. 11. Mr. B.P. Tripathy, learned counsel appearing for NRHM produced the communication dated 13.08.2019 before this Court containing instructions issued to him wherein it has been specifically mentioned that the advertisement was made to fill up vacant contractual posts of AYUSH MOs, Pharmacist and Staff Nurse/ANM under RBSK Programme under National Health Mission scheme. The advertisement in Annexure-1 clearly indicates reservation of candidates for SC and ST, and as such, no reservation was there for physically handicapped category. It is also specifically mentioned in the instruction as follows:- "Further, it will be important to mention here that, posts under RBSK are purely schematic, temporary and programmatic with 50% reservation for women candidates as per Government of India mandate having no resemblance to any regular position under Government. This contravenes the maximum ceiling of 33% reservation for women candidates in any recruitment for civil posts under Govt. This contravenes the maximum ceiling of 33% reservation for women candidates in any recruitment for civil posts under Govt. The posts are therefore, sui generis having no equivalent parallel under government, for which it was, clearly mentioned in the advertisement itself that, "the posts under RBSK are purely temporary and programmatic, their continuance is dependent on the subsistence of the programme " In view of such instruction issued by the Mission Director, NHM, Odisha, it is made clear that there was no reservation for physically handicapped category candidates, as has been claimed by opposite party no"4 in its counter affidavit. Under the NRHM scheme only certain benefits have been granted that for implementation of the projects in the rural and tribal areas some posts are reserved for SC and ST category candidates, which has already been mentioned in the judgment in Dr. P.K. Gochhayat (supra). Therefore, in the above premises, this Court unhesitatingly holds that the selection of opposite party no. 4, basing on the ORV Act, 1975, cannot be tenable in the eye of law. 12. Mr. M.K. Mohanty, learned counsel for opposite party no. 4 emphatically submitted that opposite party no. 4 has been selected under physically handicapped category i.e. in consonance with the ORV Act, 1975 and provisions of Rule 4(2) of the Persons with Disabilities (Equal Opportunities, Protection of Right and Participation) Rules, 1996 read with Gazette Notification dated 06.08.1986 issued by the Ministry of Welfare, Government of India. On perusal of the advertisement in Annexure-1 to the writ petition, it clearly specifies reservation of posts for SC and ST or Women or Ex-servicemen and no reservation of post has been specified for physically handicapped category candidates. But fact remains, under the said advertisement the age relaxation up to maximum of 10 years in case of physically handicapped category candidates has been provided for. Admittedly, opposite party no. 4 has availed such age relaxation of maximum of 10 years, as he was 46 years 9 months by the time of submission of application, as against maximum age fixed as 37 years for other reserved category of candidates. In absence of any reservation of posts for physically handicapped candidates in the advertisement, selection of opposite party no. 4 for the post of un-reserved category is not permissible under law. Apart from the same, opposite party no. In absence of any reservation of posts for physically handicapped candidates in the advertisement, selection of opposite party no. 4 for the post of un-reserved category is not permissible under law. Apart from the same, opposite party no. 4 had furnished disability certificate dated 25.08.2009 with the category of disability "Visually" and percentage of disability "40%". In view of Rule 4(2) of the Persons with Disability (Equal Opportunities, Protection of Right and Participation) Rules, 1996 and as per the guidelines issued by the Ministry of Welfare Government of India vide Gazette Notification dated 06.08.1986, the said disability certificate is invalid and not a real one for selection of opposite party no. 4 to the present post. The said rules and the guidelines at Clause-6(i) clearly mandate that the certificate is valid for a period of three years. Since in the present case, the impugned advertisement was issued in the year 2013 and opposite party no. 4, pursuant to such advertisement, submitted his application with the disability certificate issued on 25.08.2009, by that time it had lost its validity. 13. In course of hearing, Mr. M.K. Mohanty, learned counsel for opposite party no. 4 argued with vehemence that as per provisions contained in Persons with Disability (Equal Opportunities, Protection of Right and Participation) Rules, 1996, 3% of the posts is reserved for physically handicapped candidates, therefore, contended that selection of opposite party no. 4 under such category cannot be found fault with the authority. A query was made by this Court that if total posts advertised in respect of Bhadrak district were 14 and out of the same if 3% of posts were to be reserved for physically handicapped category, the same cannot be done because to get one post reserved for physically handicapped candidate, the minimum posts should be 33. In absence of advertisement to that extent, so far as Bhadrak district is concerned, the claim made by opposite party no. 4 that one post was reserved for physically handicapped category candidates is absolutely a misconceived approach and thus selection of opposite party no. 4 under such category cannot sustain in the eye of law. In absence of advertisement to that extent, so far as Bhadrak district is concerned, the claim made by opposite party no. 4 that one post was reserved for physically handicapped category candidates is absolutely a misconceived approach and thus selection of opposite party no. 4 under such category cannot sustain in the eye of law. Furthermore, neither the advertisement nor any other documents indicate that any reservation of posts was made available to the physically handicapped category candidates, save and except the SC and ST or Women or Ex-serviceman Apart from the same, the selection and engagement was made to a schematic posts on contractual basis for a period of 11 months subject to renewal as per Society norms basing on the performance of the candidates and the reliance placed on the Government of India Resolution is only applicable to the holders of civil posts not to the candidates of schematic appointment/contractual appointment. Thereby, the selection of opposite party no. 4 against un-reserved vacancy of 4th post of AYUSH Doctor (Ayurvedic), pursuant to advertisement in Annexure-1, cannot sustain in the eye of law. 14. In view of the facts and circumstances and settled position of law, as discussed above, this Court is of the considered view that the selection of opposite party no. 4 under physically handicapped category by applying the provisions of ORV Act, 1975 cannot sustain in the eye of law and the same is hereby quashed. Admittedly, the petitioner is at serial no. 5 in the select list. Since the first person, namely, Akshaya Kumar Khilar did not opt for job, the vacancy made available was to be filled up by the petitioner. In that view of the matter, this Court directs the opposite parties to issue necessary engagement order in favour of the petitioner disengaging opposite party no. 4 as expeditiously as possible, preferably within a period of four months from the date of production/communication of this judgment. 15. The writ petition is accordingly allowed. However, there shall be no order as to costs.