The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.7701 of 2023 Bijaya Kumar Sahu and others …. Petitioners State of Odisha and others …. Opposite Parties Mr. S.N. Biswal, Advocate -versus- CORAM: Mr. S. Das, A.G.A. JUSTICE A.K. MOHAPATRA Order No. ORDER 10.04.2023 03. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the petitioners as well as learned counsel for the State. Perused the writ petition as well as documents annexed thereto. 3. The present writ petition has been filed by the petitioners with the following prayers: therefore pray “The petitioners
Legal Reasoning
that your Lordships would graciously be pleased to admit this writ application, issue notice to the Opp. Parties, call for the records and after hearing the parties allow the same with cost and issue writ/writs in the nature of certiorari / mandamus further order(s)/direction(s) commanding the O.P. No.1 3 & 4. any other or and passing (i) To regularize the petitioners service in the post of Nursing Officers w.e.f. date of their contractual appointment i.e. 13.03.2019 by the Odisha Group-B, C and applying and Special Group-D posts (repeal // 2 // Provisions), Rules, 2022 (Annexure-11) read with Odisha Group-c & D posts (Contractual Appointment) Rules, 2013 and Odisha Nursing Service Method of Recruitment and Conditions of Service) Rules, 2019 (Annexure-2) as has been mentioned in the advertisement published by OSSSC/O.P. No.5 dtd.21.01.2023 under Annexure-18 with all consequential service and financial benefits within stipulated time; (ii) To restrain the Opp. Parties/Authorities O.P. No.1 to 5 to make any recruitment as per the advertisement dtd.21.01.2023 under Annexure-18 until the aforesaid confusing State of position of the present petitioners with regard to their case of regularization is resolved; And pass any other order or orders as this Hon’ble Court deems fit and proper,” 4.
Legal Reasoning
It is submitted by learned counsel for the petitioners that being aggrieved by the inaction of the Opposite Parties in not considering the case of the petitioners for regularization of their services for the post of Nursing Officers pursuant to the State Government notification dated 16.10.2022 and keeping in view the decision of High Power Committee dated 16.11.2020, the petitioners have approached this Court by filing the present writ petiion. 5. Learned counsel for the petitioners further submitted that the petitioners were appointed on contractual basis in the office of the Superintendent, VSS Institute of Medical Sciences and Research, Burla (Sambalpur) (in short “VIMSAR”) under National Health Mission Scheme with a monthly remuneration of Rs.10,644/- vide // 3 // order dated 31.01.2019 issued by the VIMSAR, Burla. 6. On perusal of the engagement letter dated 31.01.2019, it is observed that there is no specific period mentioned for which the appointment letter was issued, however, such appointments are on temporary basis. Rather it reveals that the appointment is purely temporary and may be terminated at any time without assigning any reason and that the petitioners and similarly situated other persons, appointed on contractual basis, made a claim before the Government for their regular appointment. Further, such contract is terminable by either side by giving one month notice on abolition of scheme under NHM Programme. Further, one of the conditions in the appointment letter is that the performance of the petitioners will be evaluated by the Superintendent, VIMSAR, Burla every year. 7. While the matter stood thus, the Government of Odisha enacted a set of Rules under Article 309 of the Constitution of India. Such rules are known as Odisha Nursing Service (Method of Recruitment and Conditions of Service) Rules, 2019. The primary objective behind framing the Rules, 2015 is to regulate the service, Method of Recruitment and Condition of Service of persons appointed to the Odisha Nursing Service. The said rule came into force from the date of its gazette notification on 8th of March, 2019. 8. By referring to Rule-4 of the Rules 2019, learned counsel for the petitioners submitted that on the date of commencement of the 2019 Rules, the Contractual Nursing Staffs have been duly selected by the society/institution. Furthermore, on completion of six years of contractual service, they shall be deemed to be regular Government employees, as one time measure, subject to fulfillment of eligibility // 4 // criteria as prescribed under Rule-5. On perusal of the proviso to Rule-4, it is revealed that the same provides for the contractual Nursing Staffs, who have been completed six years of contractual service and having eligibility criteria as prescribed Rule-5, shall be deemed to be contractual Government employees as one time measure and shall be regularized as and when they complete satisfactorily six years of contractual service including the period of service all those persons have already rendered in the concerned scheme/society. 9. It is also contended by learned counsel for the petitioners that some of the Nursing Officers were appointed under different schemes/societies as early as the year 2013-14. The State Government taking into consideration their continuous long service had come up with the new Rules, 2019 and their cases are to be governed by the Rules of the year 2019. Further, referring to the minutes of the meeting of the High Power Committee held on 16.11.2020, which has been annexed as Annxure-4 series to the writ application, learned counsel for the petitioners submits that the High Power Committee has taken a decision to regularize the service of the employees, who have completed six years of service on contractual basis. This Court on perusal of the minutes of the High Power Committee meeting dated 16.11.2020 observed that the said High Power Committee meeting was convened on 16.11.2020 to consider regularization of contractual service of Nursing Staffs who are working under the scheme/society in the respective districts. Pursuant to Odisha Nursing Service (Method of Recruitment and Conditions of Service) Rules, 2019, Odisha Pharmacists Service (Methods of Recruitment and Conditions of Service) Rules, 2019, Odisha // 5 // Laboratory Technician Service (Methods of Recruitment and Conditions of Service) Rules and Odisha Radiographer Service Methods of Recruitment and Conditions of Service) Rules, 2019 read with G.A. Department Resolution dated 16th of January, 2014. The minutes of the meeting of the said High Power Committee, in Clause- 3 and 4 categorically provides the manner in which service of such contractual employees are to be regularized on completion of six years from the date of joining in the respective scheme/society with further stipulation that the CDM and PHOs shall submit the proposal to the High Power Committee through the concerned Director for consideration of their cases for regularization of their service. 10. The further grievance of the petitioners in the present writ petition is that although they have completed six years of service on contractual basis, their cases have not been considered pursuant to the Rules, 2019 and the decision of High Power Committee meeting dated 16.11.2020. Learned counsel for the petitioner further contended that in some cases although names have been forwarded for consideration of their cases for regularization, however, the same has not been finally considered by the competent authority as of now. 11. It was further contended by learned counsel for the petitioners that the, Government of Odisha took a decision to repeal the 2013 Rules framed for contractual appointment of Group-C and Group-D employees in the State vide notification dated 16.10.2022. In view of the special provisions contained in Rule-4 of the repealing Rules, 2022, the contractual appointments made in the State under the 2013 Rules, shall be deemed to have been appointed against the post on regular basis from the date of repealing rule came into force i.e. 16.10.2022. By referring to the aforesaid repealing rules dated // 6 // 16.10.2022, learned counsel for the petitioner argued that the some of the petitioners were initially appointed in the year 2013. Therefore, by applying the special provision of the Rule-4 of 2022, repealing Rules, they should have been given benefits of Rule-4 and accordingly, their services should have been regularized from the date of coming into force of the aforesaid repealing rules. 12. Learned counsel for the petitioners further referring to letter dated 07.12.2022, which was issued by the Superintendent VIMSAR, Burla to the Joint Secretary to Government, Health and Family Welfare Department seking clarification from the Government with regard to the service of contractual Nursing Officers and other paramedics, who are working under different scheme/society and have been inducted into cadre w.e.f. 13.03.2019 by and Family Welfare Department letter No.263-H dated 17.11.2020 and as to whether they are to be regularized under above noted repealing Rules, 2022 or not? However, he further contended that no such clarification has been given by the Opposite Party No.1 in this regard. Therefore, the Superintendent VISMAR, Burla has not taken any steps for regularization of service of the petitioners and similarly situated other persons. Mr. S. Biswal, learned counsel for the petitioners, at this juncture, submitted that ventilating the grievance concerning the petitioners as well as similarly situated persons, Odisha Nursing Employees Association has submitted a representation before the Commissioner-cum-Secretary to Government, Health and Family Welfare Department-Opposite Party No.1 on 20.02.2023 and in the said context, he also submitted that the Opposite Party No.1 has not taken any steps to consider the grievance as narrated in the representation dated 20.02.2023 under Anexure-19 // 7 // to the writ application and till date no decision has been taken by the Opposite Party No.1. 13. Learned Additional Government Advocate, on the other hand, submitted that the petitioners were appointed under different schemes/society. Therefore, their initial appointed were not under the 2013 rules as claimed by leaned counsel for the petitioner. He further contended that since the petitioners have not been appointed under the 2013, Rules, therefore, they cannot claim the benefits under the repealing Rules, 2022. It was further contended by him that at best, it can be said that such appointment swere made subject to resolution of the G.A. Department dated 16.01.2014. 14. Learned Additional Government Advocate in course of his argument did not dispute the fact that petitioners were inducted in the cadre by following provisions of 2019 Rules and as such, it was also argued that the petitioners were governed by 2019 Rules. Further referring to the decision of the High Power Committee, learned counsel for the State submitted that the High Power Committee in its meeting held on 16.11.2020 also took a policy decision referring to 2019 Rules under which the petitioners have been inducted in the cadre. 15. In reply, learned counsel for the petitioners placed his reliance on letter dated 17.12.2022 written by the Superintendent of VIMSAR seeking a clarification from the Government. On the contrary, learned Additional Government Advocate referring to the letter of the Government dated 23.09.2022 submitted that a clarification has already been given by the Government. He further contended that in view of such clarification, an advertisement was issued prior to the // 8 // contractual appointment Rule, 2013 came into force but contractual appointment which were made after 12.11.2013, shall be regulated as per the stipulations outline under G.A. and P.G. Department resolution dated 17.09.2013 read with resolution dated 16.01.2014 and as such, the cases are required to be considered by the High Power Committee in the respective department. In such view of the matter, learned Additional Government Advocate further argued that in the case of the petitioners and other similarly situated others, Nursing Officers are not governed under the Rules, 2013 and as such, they shall also not be covered by the repealing Rule of the year 2022. 16. In addition, learned Additional Government Advocate for the State further contended that the petitioners’ association has approached the Opposite Party No.1 by filing a representation and that from the pleadings contained in the writ application it appears that the issue is pending before the Opposite Party No.1 for consideration. Learned counsel for the State further submitted that the writ application is premature and has not taken any decision as of now. On such grounds, learned Additional Government Advocate for the State submitted that the writ application is premature as the Opposite Party No.1 the same should be dismissed as devoid of merit. 17. Considering the submissions made by learned counsels for the respective parties, and upon a careful consideration of the background facts as well as on analysis of law applicable to the facts of the present case, this Court has no hesitation in holding that the petitioners are not appointed under the contractual appointment Rules, 2013, therefore, they are not to be governed by the repealing Rules, 2022 and as such, they are not entitled to claim the benefit // 9 // under the special provisions contained Rule-4 of the 2022 Rules. While saying so, this Court is also conscious of the factual position in the present case and is also of the considered view that the petitioners, who were initially appointed in different schemes/society, were later inducted into the cadre pursuant to the 2019 Rules. Therefore, their services are to be governed by 2019 Rules. This Court further deems it proper and is of the considered view keeping in mind the cases of the petitioners and similarly situated other Nursing Officers and by strictly applying Rule-4 of the 2019 Rules, their cases should have been considered for regularization. However, this Court found that the grievance of the petitioners are still pending either before the Superintendent of the concerned Medical Colleges or before the Opposite Party No.1 and no final decision has been taken till date. As a result of which the petitioners fates remain hanging. In view of the aforesaid factual analysis as well as the provisions contained in 2019 Rules, particularly, in view of the Rule- 4 of the 2019 Rules, this Court deems it proper to dispose of the writ application by directing the Opposite Party No.1 to consider the representation of the association under Annexure-19 keeping in view the provisions of 2019 Rules and the decision of the High Power Committee meeting dated 16.11.2020 and to take a decision in accordance with law as expeditiously as possible preferably within a period of two months from the date of communication of certified copy of this order. 18. Further, it is directed that the Opposite Party No.1 shall do well to consider the case of the petitioners as well as similarly situated other employees by constituting scrutiny committee at district level, who will consider the case of such employees strictly in // 10 // terms of 2019 Rules and on the basis of the report of such scrutiny committee which will be constituted under the Chairmanship of Superintendent of Medical College and Hospital concerned, CDM and PHO of the district as the case may be, and the case of the petitioners be regularized in terms of Rule-4 within the foresaid time limit. It is needless to mention here that the Opposite Party No.1 shall take a decision with regard to giving opportunity of hearing to the persons individually by such Scrutiny Committee while considering their cases individually in terms of Rule-4 of 2019 Rules. Further the final decision so taken as has been directed hereinabove, the same shall be communicated to the petitioners individually by the competent authority within a period of two weeks from the date of taking such decision. 19. With the aforesaid observation/direction, the writ petition is
Decision
disposed of. Urgent certified copy of this order be granted on proper application. Jagabandhu ( A.K. Mohapatra) Judge