The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.5670 of 2024 Priyadarshani Madhusmita Nayak …. Petitioner Mr.K.C.Sahu, Advocate State of Odisha and others -versus- …. Opp. Parties Mr. T.K.Biswal, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 13.03.2024 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the petitioner as well as learned Additional Government Advocate appearing for the State-Opposite Parties. Perused the writ petition as well as documents annexed in the Writ Petition. 3. The present Writ Petition has been filed by the Petitioner with the following prayer : “It is therefore humbly prayed that the Hon'ble Court be graciously pleased to pass following relief(s): (i) The Hon'ble Court be pleased to Allow the writ petition; (ii) The Hon'ble Court be graciously pleased to quash the impugned decision /order under Annexure-9 & 14. (iii) The Hon'ble Court be graciously pleased to direct the Opp. parties for regular induction / absorption of the petitioner from the date of completion of 6 (six) years of contractual service in view of the settled position of law as has been decided by this Hon'ble Court in a similar case as per judgment under Annexure-15 & 18 being implemented as per Annexure-17 & 19 so also keeping in view of the govt. order under Annexure-20 as well as provisions of Pharmacy Act 1948 as per Annexure-11 (series) & 12 (series) with all consequential service & financial benefits within a time bound period for the interest of justice. // 2 // (iv) The Hon'ble Court be pleased to pass any other Writ(s), Direction(s), Order(s) as this Hon'ble Court may be deemed fit and proper;” 4. It is submitted by learned counsel for the Petitioner that on 25.08.2012 post of Pharmacist was created and sanctioned by Govt. for ICU, DHH, Jeypore. Accordingly advt. was issued to fill up the said post on 16.05.2013. Pursuant to such advt. the Petitioner participated in the selection process and on being selected the Petitioner was appointed on 22.01.2014 as a Pharmacist in ICU, DHH, Jeypore in the district of Koraput. While working as such the case of the Petitioner was recommended to the HPC for regularisation/ absorption of his service. The HPC in its meeting held on 17.12.2021 under Annexure-9 did not consider the case of the Petitioner on the ground that the Petitioner possesses a higher qualification of B. Pharma. It appears that the requirement under the rule for appointment as Pharmacist is D. Pharma. 5. Challenging the decision of the HPC under Annexure-9 dated 17.12.2021, the Petitioner earlier approached this Court by filing W.P.(C) No.36919 of 2022. This Court vide order dated 15.05.2023 disposed of the writ application by directing the Opposite Party No.2 i.e. Director Health Services, Odisha to take a decision in respect of the Petitioner keeping in view the judgment of this Court in Debendra Deep vs. State of Odisha & others in W.P.(C) No.36735 of 2022. The Opposite Party No.2 vide order dated 06.07.2023 under Annexure-14 disposed the grievance of the Petitioner with an observation that the Director Health Services, Odisha is not the competent authority to take a decision on the eligibility criteria for appointment to the post of Pharmacist. Being aggrieved by such order dated 06.07.2023 under Annexure-14, the Petitioner has again approached this Court by filing the present writ application. 6. Learned counsel for the Petitioner in course of his argument // 3 // drawing attention of this Court to the judgment in Debendra Deep’s case (supra) which has been filed as Annexure-15 series submitted that the issue with regard to the eligibility of B. Pharma candidates for appointment as Pharmacist was directly and substantially issue before this Court. After a detail analysis of the facts, this Court vide order dated 28.02.2023 in W.P.(C) No.36735 of 2022 has held that the candidates having B. Pharma degree are eligible to be considered for appointment to the post of Pharmacist as has been decided by the Pharmacy Council of India. This Court has also referred to the judgment in Puneet Sharma vs. Himachal Pradesh State Electricity Board Ltd. reported in AIR 2021 SC 2221. Furthermore, while disposing of the aforesaid case, this Court has also referred to the clarification issued by Pharmacy Council of India which is a statutory body. Finally, the writ application was disposed of with a direction to the Opposite Party No.2 i.e. Director of Health Services, Odisha to consider the case of the above named Debendra Deep afresh in the light of the analysis made in the said order. Consequentially, the Superintendent, Opposite Party No.4 Medical College was directed to issue appointment letter in favour of the Petitioner, if the post is not filled up till that date. 7. Learned counsel for the Petitioner also referred to the order in Rakesh Baroi vs. State of Odisha & ors. in W.P.(C) No.36664 of 2022 disposed of vide order dated 11.04.2023. It was contended that in both the above noted writ applications, the Petitioners have already been given appointment as Pharmacist. He also submitted that in view of the judgment and order passed by this Court, the Govt. of Odisha, Health & Family Welfare Dept. vide order dated 02.12.2023 has granted relaxation of the eligibility criteria and accordingly the B. Pharma degree has been included in the eligibility criteria for appointment to the post of Pharmacist. A Copy of such order dated 02.12.2023 has also // 4 // been appended to the writ application as Annexure-20. 8. Learned Additional Government Advocate on the other hand contended that after disposal earlier writ application, the Director, Health Services of Odisha, the Opposite Party No.2 has considered the case of the Petitioner and the grievance of the Petitioner has been disposed of by passing a detailed order under Annexure-14 to the writ application. He further contended that the Director Health Services of Odisha while disposing of the representation has categorically held that it is not within his authorities to take a decision with regard to eligibility criteria for appointment to the post of Pharmacist. In such view of the matter, learned Additional Government Advocate submitted that it is only the Opposite Party No.1 who is the competent authority to take a decision. With regard to the case of Debendra Deep’s case (supra), learned Additional Government Advocate submitted that he was given appointment pursuant to the direction given by this Court to the Superintendent of concerned Medical college. In view of the aforesaid facts, learned Additional Government Advocate submitted that the Petitioner should be approached the competent authority before approaching this Court. Accordingly, it was prayed that the writ application is devoid of merit and hence the same should be dismissed. 9. Having heard the submissions made by learned counsels appearing for the parties and on a careful examination of the background facts as well as materials on record, this Court is of the considered view that the issue involved in the present writ application is no more res integra. The very issue has been dealt with analysis and answered in Debendra Deep’s case (supra). In such view of the matter, this Court deems it proper to dispose of the writ application at the stage of admission by granting liberty to the Petitioner to approach the Opposite Party No.1 along with a copy of today’s order within three // 5 // weeks from today. In such eventuality, the Opposite Party No.1 shall do well to consider the case of the Petitioner in the light of the aforesaid analysis. Further, the Opposite Party No.1 shall do well place the matter before the HPC in its next meeting along with a copy of this order as well as a copy of the judgment in Debendra Deep’s case (supra). With the concurrence of the HPC, the Opposite Party No.1 shall take the follow up action in the matter. It is further directed that decision taken by the Opposite Parties in its stages be communicated to the petitioner within a period of a week from the date of taking such final decision. 10. With the aforesaid observation/direction, the writ petition is disposed of. 11. Urgent certified copy of this order be granted on proper application. Anil ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 14-Mar-2024 21:20:33