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2022 DIGILAW 382 (ORI)

Santosh Kumar Panda v. State of Odisha

2022-08-11

S.K.PANIGRAHI

body2022
JUDGMENT : S.K. PANIGRAHI, J. 1. The Petitioner has filed this Writ Petition challenging inaction on the part of the Opposite Parties in not passing orders for regularization of contractual services of the petitioner, though he has completed more than 6 years of service. 2. Shorn of unnecessary details, the factual matrix of the case in brief is that Mission Director NRHM, Health and Family Welfare Department vide Advertisement No. 19/2013 invited application for filling of Casualty Manager Post under National Rural Health Mission, Odisha on contractual basis subject to renewal as per Society’s norms purely based on their performance. Pursuant to the said advertisement, the petitioner applied for the post of “Casualty Manager” and followed by a due selection process and having fulfilled all eligibility criteria, he got appointed to the said post. As per the appointment order, the petitioner signed agreement on 17.07.2014 with the CDMO, Ganjam. 3. Thereafter, the NHM, Odisha decided to provide financial support for Casual Manager till March 2015. NHM Odisha further granted financial support for payment of remuneration to casualty manager up to September 2015, and stated that Casualty manager should enter fresh agreement with SBS and OSH and FW Society, and NHM Odisha will not take their liability further. Seeking approval of the post of Casualty Manager, the petitioner moved this Court vide WP (C) No. 18783 of 2015, wherein this Court directed to take decision on the representation of the petitioner within three months. 4. Pursuant to the direction of this Court, the authority decided that the casualty managers may be retained by keeping in mind the need of the expenses towards meeting their remuneration met out of interest money of RSBY/BKKY or the Users Fee after due approval of the competent authority with fresh agreement. The agreement of such engagement may be made with the SBS/ RKS. In the meantime, the patient-ratio in casualty Ward has increased and due to introduction of different welfare measures by Government and Hospitals, such as 108 ambulance Service, Janani Surakhya Express/BKKY/RSBY, the “Casualty Managers” are entrusted with the work of coordinating with different stakeholders to provide quick service in treatment of serious patient, maintenance of their record and supervise overall management of casualty section. Considering the necessity of service of the Casualty Manager, superintendent MKCG Medical College and Hospital communicated to the Principal Secretary Health and Family Welfare Department for necessary permission for continuance of Casualty Manger under Swasthya Bikash Samiti (SBS) MKCG, Berhampur, on consolidated monthly remuneration of Rs. 12,000/- per month from the Users Fund of the Hospital. 5. On getting the approval from the competent authority, from 2015 onwards, there has been agreement of engagement between the petitioner and the Swasthya Bikash Samiti (SBS) MKCG Medical College and Hospital, Berhampur. Since 2013 the petitioner has been continuing as Casualty manger in the MKCG Medical College. Considering the necessity of the post and responsibility of the management of casualty related tasks, the Superintendent of MKCG medical college and Hospital requested the Director of Medical Education and Training for creation of the said post for MKCG Medical College and Hospital. The Director of Medical Education and Training, Odisha invited reference from all the superintendents of all the medical colleges and Hospitals for a meeting on creation of post of Casualty Manger in medical colleges and Hospitals on 23.10.2017 in the office chamber of DMET. 6. Thereafter, Superintendent MKCG Medical College and Hospital furnished information pursuant to the letter dated 13.10.2017, before the director Medical Education Training discussing the necessity of the post. All the members present in the meeting convened under the chairmanship of Director Medical Education and Training, unanimously opined for creation of minimum seven posts of Casualty Manager for each institution, due to the heavy rush of patients in both day and night in the institutions. In order to manage the patient load in casualty and attached trauma center unit, there is a need for creation of Casualty Manger post in each Govt. Medical College and Hospital of the state, for which Director Medical Education and Training requested the Govt. to approve the proposal for creation of the post of Casualty Manager. 7. On 20.04.2018, the Director Medical Education and Training issued a letter to the Government of Orissa for creation of post of Casualty Managers in Government Medical Colleges and Hospitals of the states with concurrence of the Finance Department, and recommended the name of the petitioner for absorption taking into consideration his sincerity and experience in the management of casualty. 8. On 20.04.2018, the Director Medical Education and Training issued a letter to the Government of Orissa for creation of post of Casualty Managers in Government Medical Colleges and Hospitals of the states with concurrence of the Finance Department, and recommended the name of the petitioner for absorption taking into consideration his sincerity and experience in the management of casualty. 8. In the meantime, staff nurse of MKCG Medical College and Hospital who were initially joined under NHM were regularized by the Government after completion of six years of contractual service. The Government of Orissa Family and Welfare Department issued letter dated 2.06.2021 to the all superintendent of Medical Colleges and HS and SVPPGIP Cuttack/CDM and PHOs/Director, AHPGIC, Cuttack regarding induction of contractual employees under different schemes/ Societies against regular vacancies after completion of six years of service. 9. The petitioner filed representation before the Opposite Party No. 1 for regularization of his service at par with the paramedics who are engaged on contractual basis under different scheme and societies of the Government on completion of 6 years of service as per the letter dated 2.06.2021. However, upon inaction of the authorities, the petitioner has filed this writ petition. 10. Learned Counsel for the petitioner has submitted that “Casualty Manager” is a group “C” post and considering that the petitioner has been working for more than 6 years hence he is entitled to be regularized with sanction of all consequential service benefits. Though the Opposite Parties have regularized services of other similarly placed persons, non-regularization of the petitioner's services and non-sanctioning of similar benefits to the petitioner as admissible to his post, is illegal, arbitrary and discriminatory. He further submitted that the authorities, in respect of similarly placed persons have already regularized their services. Hence, non-regularization of service in respect of the petitioner by the authorities violates Article 14 and 16 of the constitution of India. 11. Learned Counsel further submitted that in addition the appointment of the petitioner to the post of the Casualty manager after following due procedure selection process, the state government has allowed him to continue in service voluntarily for six years. Therefore, the non-regularization of service of the petitioner to the post of Casualty manager is illegal. 12. 11. Learned Counsel further submitted that in addition the appointment of the petitioner to the post of the Casualty manager after following due procedure selection process, the state government has allowed him to continue in service voluntarily for six years. Therefore, the non-regularization of service of the petitioner to the post of Casualty manager is illegal. 12. Learned counsel for the Opposite Party No. 2 has submitted that applications were invited vide Advertisement No. 19/13 of NIAM, Odisha at Annexure-1 of the Writ Petition from the eligible candidates for filling up the Casual Manager posts in Patient Transport Cell (PTC) under NHM, Odisha on contractual basis for a period of 11 months with monthly remuneration Rs. 10,000/- and subject to renewal as per society norms based on the performance. The said posting is purely temporary and also co-terminus with the scheme. Moreover, as per Order No. 10023 dated 01.07.2014 of CDMO, Ganjam, the service of the petitioner was placed at MKCG Medical College and Hospital, Berhampur and he has signed the agreement on 17.07.2014 as per the FIR Manual of the Mission Directorate, NRHM, Health and F.W. Departmentt, Govt. of Odisha and shall not claim permanent job in future and shall perform duties to the utmost satisfaction of the authority. 13. He additionally submits that as per the work load in the Casualty Department, Superintendent, MKCG Medical College and Hospital, Berhampur moved to the Health and F.W. Department, Odisha for continuation of Casualty Manager for smooth functioning of Casualty Department whereas no service condition was recommended to retain the petitioner. 14. Regularization of contractual services has been a persistent matter of litigation for the last several decades. In this regard, the Apex Court has clarified that the same has to be based on the necessity of the said post and the duration of the service of the employee. In the case of Roshan Lal Tandon vs. Union of India, 1968 (1) SCR 185 the Supreme Court observed: “It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public 'law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest.” 15. In Ashwani Kumar and Others vs. State of Bihar and Others, 1996 Supp. (10) SCR 120 the Apex Court was considering the validity of confirmation of the irregularly employed. The Court observed: “In this connection it is pertinent to note that question of regularization in any service including any government service may arise in two contingencies. In Ashwani Kumar and Others vs. State of Bihar and Others, 1996 Supp. (10) SCR 120 the Apex Court was considering the validity of confirmation of the irregularly employed. The Court observed: “In this connection it is pertinent to note that question of regularization in any service including any government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularize them so that the employees concerned can give their best by being assured security of tenure. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularization may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularized and security of tenure may be made available to the incumbent concerned. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment.” 16. This is a case where the Government has failed to take any steps for regularization of their contractual employees working over the years. Every year there have been several litigations pertaining to regularization. This is a case where the Government has failed to take any steps for regularization of their contractual employees working over the years. Every year there have been several litigations pertaining to regularization. In such cases, the court has to play a guiding role while issuing directions for regularizing such employees more particularly when the conditions prescribed in the said orders can be said to be either unreasonable, arbitrary or discriminatory. 17. In the case of Secretary, State of Karnataka vs. Umadevi and Others, Civil Appeal Nos. 3595-3612 of 1999 the Supreme Court iterated: “One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub-judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” 18. In the instant case, the necessity of the post of the petitioner has been clearly established by the learned counsel for the petitioner. Superintendent MKCG Medical College and Hospital furnished information pursuant to the letter dated 13.10.2017 and the matter was taken up for discussion at the Government level vide letter dated 21.11.2017 issued by the office of Directorate of Medical Education and Training, Odisha. Superintendent MKCG Medical College and Hospital furnished information pursuant to the letter dated 13.10.2017 and the matter was taken up for discussion at the Government level vide letter dated 21.11.2017 issued by the office of Directorate of Medical Education and Training, Odisha. All the members present in the meeting convened under the chairmanship of Director Medical Education and Training and unanimously opined for creation of minimum seven posts of Casualty Manager for each institution, due to the heavy rush of casualty patients in both day and night in the institutions. In order to manage the patient load in casualty and attached trauma center unit, there is need for creation of Casualty Manger post in each Govt. Medical College and Hospitals of the state, for which Director Medical Education and Training requested the Govt. to approve the proposal for creation of the post of Casualty Manager. Similarly, on 20.04.2018, the Director Medical Education and Training issued letter to the Additional Secretary to Government of Odisha, Department of Health and Family Welfare, Government of Orissa for creation of post of Casualty managers in Government Medical colleges and Hospitals of the states with concurrence of the Finance Department. In view of such recommendation, the petitioner being an experienced person in the said profession has already spent more than 6 years in the said post if there is no other impediments, his case deserve to be considered for absorption. 19. It is a fact that as per the work load in the Casualty Department, the Superintendent, MKCG Medical College and Hospital, Berhampur moved the Health and F.W. Department, Odisha for continuation of Casualty Manager for smooth functioning of Casualty Department whereas no service condition was recommended to retain the petitioner. This Court is also mindful of the fact that the petitioner has been appointed on a schematic job under National Rural Health Mission, Odisha and the Government cannot absorb him directly unless there is a policy backing. Though this Court is conservative in directing the Government for creation of post or regularization of posts, but the present case calls for consideration on the part of the Opposite Party No. 2. 20. In light of the above-mentioned facts and precedents cited hereinabove, the Opposite Party No. 2 is requested to examine the case of the petitioner and consider formulating a policy framework to absorb the petitioner considering the service rendered by him at the hospitals. 20. In light of the above-mentioned facts and precedents cited hereinabove, the Opposite Party No. 2 is requested to examine the case of the petitioner and consider formulating a policy framework to absorb the petitioner considering the service rendered by him at the hospitals. Further, in the light of the letter dated 21.11.2017 issued by the Director, Medical Education and Training/Annexure-10 of this Writ Petition, there is a need for Causality Managers in Medical College Hospitals and they play a critical role in the casualty management which all the more necessitates a serious consideration at the level of Government. 21. In the light of the above observation, the Writ petition is disposed of.