JUSTICE v. NARASINGH DATE OF HEARING AND JUDGMENT
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO.3981 of 2021 (An application under Articles 226 & 227 of the Constitution of India). Jagannath Mallick …. Petitioner -versus- …. Opposite Parties 1. State of Orissa 2. Director of Health Services, Odisha, Bhubaneswar 3. Deputy Secretary to Government, Health & Family Welfare Department, Bhubaneswar 4. Chief District Medical Officer, (C.D.M.0.) Khordha. For Petitioner : Mr. A. Tripathy, Advocate For Opposite Parties : Mr. S.N. Das, ASC CORAM: JUSTICE V. NARASINGH DATE OF HEARING AND JUDGMENT :17.02.2025 V. Narasingh, J. 1.
Legal Reasoning
Heard Mr. Tripathy, learned counsel for the Petitioners and Mr. Das, learned Additional Standing Counsel for the State. W.P.(C) No.3981 of 2021 Page 1 of 8 2. Petitioner-attendant working under the administrative control of Opposite Party No.4 has filed
Decision
the Writ Petition assailing the order dated 28.09.2020 passed by the Chief District Medical and Public Health Officer, Khordha (Opposite Party No.4) denying his claim for regularization of his services inter alia on the ground that services of persons similarly circumstanced have already been regularized taking into account the norms of “six years of service” which, would be adverted to later, in this judgment. 3. It is his further submission that non- consideration of the claim of the Petitioner for regularization smacks of arbitrariness. 4. Learned counsel for the Petitioner submits that he belongs to SC category and he was appointed as an attendant in terms of Annexure-2 dated 12.12.2007. 5. It is apt to note that the name of the Petitioner is reflected at Serial No.2 under the SC Category and place of his posting was in CHC Jatni and on instruction, it is now stated that the Petitioner is working as such in CHC Banpur. 5-A. It is further relevant to note, as submitted by the learned counsel for the Petitioner, that services of one Sunil Behera appointed along with the Petitioner in C.H.C., Jatni who also belongs to SC Category has been regularized. W.P.(C) No.3981 of 2021 Page 2 of 8 6. On a bare perusal of the letter of engagement at Annexure-2, it is seen that the appointment was stated to the temporary/daily wage basis and was valid up to 09.02.2008. It is further relevant to note that the appointment of the Petitioner was against “existing regularly vacancy in the medical institutions noted against in each column”. 7. The Petitioner continued as such and his services were terminated on account of unauthorized absence w.e.f. 26.03.2012 and assailing the same, he moved the learned Labour Court by filing Industrial Dispute Case No.3 of 2017 seeking relief of reinstatement of service with back wages. 8. By Award dated 30.06.2017 passed by the Labour Court at Annexure-3 the action of the management in terminating the services of the 2nd party w.e.f. 26.03.2012 which according to the learned Labour Court amounted to retrenchment was held to be neither legal nor justified. And, thereafter, referring to several verdicts of Apex Court, Labour Court directed for reinstatement of the Petitioner in service but without any back wages. 9. It is not disputed at the Bar that the said Award had attained finality and that though the Award was passed on 14.12.2017 the Petitioner was re-engaged by order dated 04.01.2019 vide Annexure-4 in terms of the award. W.P.(C) No.3981 of 2021 Page 3 of 8 10. In the interregnum when the Petitioner was waiting to reap the fruits of the Award by the Labour Court, persons similarly placed were regularized as per order dated 03.04.2018 at Annexure- 6 passed by the Chief District Medical & Public Health Officer, Khordha (Opposite Party No.4). 11. It is apposite to note that name of one Shri Upendra Ku. Sahoo who was also an attendant (Unreserved Category), whose name figures in Serial No.2 (in Annexure-2 where the name of the Petitioner appears at Serial No.2 under SC Category) was also regularized by the virtue of the said order at Annexure-6. While regularizing the services of the persons vide Annexure-6, the Chief District Medical & Public Health Officer, Khordha has specifically stated that “the technical interruption period” is “hereby condoned for computing 6 years of interruption period of service”. 12. It is apposite to refer to the significance of the six years as referred to in the order at Annexure- 6 on the basis of the minutes of the High Power Committee meeting held on 28.05.2015 presided over by the Principal Secretary to Govt. in Health and Family Welfare Department with F.A.-cum-Joint Secretary to Govt. Health & Family Welfare Department and Director, Health Services, Odisha as members vide (Annexure-2, Additional Affidavit) who W.P.(C) No.3981 of 2021 Page 4 of 8 took a decision that as per the recommendation of CDMO, Khurda the attendant/sweeper on the regular basis working w.e.f. 18.09.2013 or from the date of completion of six years of service whichever is later as per G.A. Department notification No.1769 dated 18.09.2013 after condonation of one day break up of contractual service shall be regularized and shall be “reconverted to regular sanction post” 13. Since the name of the Petitioner was not recommended, his services were consequentially not regularized and ventilating his grievances, he filed a representation before the CDMO, Khurda (Annexure-5 series). Since the same did not yield any result, the Petitioner has filed this writ Petition. 14. It is submitted that the Petitioner has been discriminated so far as the regularization is concerned in as much as the services of the persons similarly circumstanced have already been regularized as demonstrated referring to the documents on record and it is his further submission that he was reinstated in service as per the order dated 2017 which was given effect in 2019 and as such his services ought to have been regularized since he qualified as per six year norms w.e.f. 2023. Even treating him to be in service from 2017 though in terms of the Award, he should be legitimately treated as an employee eligible for consideration w.e.f. 12.12.2007 (Annexure-2). W.P.(C) No.3981 of 2021 Page 5 of 8 14-A. It is submitted that even otherwise in the interregnum from the date of such reinstatement that is from 04.01.2019 the Petitioner have already completed six years as on date and therefore, his case is liable to be considered and he is entitled to be regularized. 15. By filing additional affidavit, it has been brought on record that one Sunil Behera who also belongs to SC category and whose name appears against Serial No.1 of Annexure-2 where the name of the Petitioner figures at Serial No.2 has in the meanwhile been regularized. Hence, it is submitted by the learned counsel for the Petitioner that there is no justification for the authorities not to grant the relief of regularization as prayed for. 16. Mr. Das, learned Additional Standing Counsel for the Opposite Party No.4 opposes such prayer and referring to the recitals in the counter, it is his further submission that the Petitioner cannot be treated at par with others who have been regularized, since he was cited as an accused in Jatni P.S. Case No.84 of 2012. 17. Controverting such assertion, learned counsel for the Petitioner has placed on record that so far as the FIR against the Petitioner is concerned, the same has since been quashed by this Court by order dated 29.07.2022 in CRLMC No.3508 of 2014. It may not be W.P.(C) No.3981 of 2021 Page 6 of 8 out of place to refer that while quashing the criminal proceeding pending against the Petitioner, this Court took note of the fact that the Petitioner had married the Opposite Party No.3 therein, the alleged victim and both of them are living happily in matrimony. 18. On a conspectus of materials on record, it is seen that the grounds as taken in the counter affidavit have no basis in as much as the criminal proceeding on which much reliance was placed by the learned State counsel has been quashed and there is nothing on record to indicate any distinguishing features so as not to extend the benefit of regularization of service to the Petitioner when the persons similarly circumstanced and whose names appear in the very appointment order along with the Petitioner namely one Upendra Kumar Sahoo, (who belongs to general category and one Jagannath Mallik who belongs to the same category as the Petitioner) have in the meantime been regularized. 19. Even otherwise, it can be seen that the services of the persons have been regularized vide Annexure-6, condoning the fictional break of service in terms of the decision of the High Power Committee. 20. Only because the name of the Petitioner was not recommended by the CDMO, the Petitioner’s case was not taken up for consideration. W.P.(C) No.3981 of 2021 Page 7 of 8 21. In such view of the matter, this Court finds that there is no justification for depriving the Petitioner from fruits of regularization of service which has been extended to others who are ex-facie similarly circumstanced. 22. Hence, instead of directing for consideration for regularization relegating the Petitioner into the quagmire of uncertainity, in the peculiar factual matrix of the case at hand considering the hardship of the Petitioner who is an attendant, it is directed that the services of the Petitioner shall be regularized with effect from the date persons similarly circumstanced with him as noted herein above, have been regularized in terms of the order dated 03.04.2018 at Annexure-6 with all consequential service benefit. 23. Such exercise shall be completed within a period of three months from the date of receipt/production of the copy of this judgment. Accordingly, the Writ Petition is allowed. No 24. costs. ( V.Narasingh ) Judge Orissa High Court, Cuttack, Dated the 17th of February, 2025/Santoshi Signature Not Verified Digitally Signed Signed by: SANTOSHI LENKA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Mar-2025 11:14:09 W.P.(C) No.3981 of 2021 Page 8 of 8