The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.12169 of 2024 1) Prabhati Meher 2) Haripriya Tandy 3) Barsha Ranee Sahu 4) Sujata Putel ..... Petitioners Represented By Adv. - Krishna Chandra Sahu -versus- 1) State Of Odisha 2) Director, Family Welfare, Odisha 3) Chief Dist Medical And Public Health Officer, Balangir ..... Opposite Parties Represented By Adv. – D.Mohapatra, A.S.C.
Legal Reasoning
CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No. 01. 1. 2.
Decision
ORDER 16.05.2024 This matter is taken up through hybrid mode. Heard learned counsel for the Petitioners as well as learned counsel for the State-Opposite Parties. 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:- “It is therefore prayed that the Hon’ble Court be graciously pleased to pass following relief(s):- (i) The Hon’ble Court be pleased to admit & allow this writ petition induction (ii) The Hon’ble Court be pleased to further direct so also for the Opp. Parties regularization of the services of the Petitioners as Regular MPHW(F) in view of completion of six years of uninterrupted contractual service on the date of commencement of statutory recruitment rule namely "Odisha MPHW(F) Service (Method of Recruitment & Conditions of Service) Rules 2019 Page 1 of 5. in view of the unamended deeming keeping provisions of Rule-4 & 5 under Annexure-7 so also keeping in view of order of Hon’ble Apex Court as per Annexure-10 and in view of the recent judgment of this Hon’ble Court dtd. 26.04.2024 passed in W.P.(C) No. 35563 of 2020 & batch with all consequential service & financial benefits within a time bound period for the interest of justice. And/or (iii) The Hon’ble court be pleased to pass any other order(s) /direction(s) as deems fit & proper for the bonafide interest of justice.” 4. It is submitted by learned counsel for the Petitioners that the Petitioners were initially engaged as MPHW(F) by the State Govt. He further contended that after working continuously for a period for six years as per the rules, the service of the Petitioners should have been regularized against any regular post of MPHW(F) in view of the provision contained in the rules. However, the State-Opposite Parties are not taken up any action for regularization of the service of the Petitioners. Being aggrieved by such illegal conduct of the Opposite parties, the petitioners have approached this Court by filing the present writ application with a prayer for direction to the Opposite Parties to regularize the service of the Petitioners against a regular vacant post of MPHW(F). 5. Learned counsel for the Petitioners referred to the judgment of this Court in Amaresh Behera and others v. State of Odisha and others in W.P.(C) No.35563 of 2020 and a batch of other matters decided vide a common judgment dated 26.04.2024. By referring to the aforesaid judgment, learned counsel for the Petitioners submitted that an identical issue came up the consideration before this Court. Para 46, 47 & 48 of the said judgment has quoted hereinbelow:- 46. On a careful analysis of the 2019 Rules and the amendment thereto vide Amendment Rules, 2020, this Court has no hesitation in coming to a conclusion that Page 2 of 5. the Amending Rules which provides that the benefits under the Rule-4(1) of the 2019 Rules shall be confined to the Pharmacists appointed in fixed Health Care Facilities would come into force w.e.f. 28.11.2020, i.e. from the date the publication of such amending rule in the official gazette. Rule-1(2) of the 2020 Rules specifically provides that the same shall come into force with effect from their publication in Odisha Gazette. Therefore, this Court has no hesitation in coming to a conclusion that the amending rule confining the benefit under Rule-4(1) of 2019 Rules to the Pharmacists working fixed Health Care Facilities shall come into force w.e.f. 28.11.2020. in 47. As has already been observed, this writ petition was filed prior to the amending rule of the year 2020 under Annexure-B/2 to the counter affidavit came into force i.e. on 28.11.2020, therefore, this Court has to examine the case of the Petitioners by applying the provisions contained under the Rules of the year 2019. While saying so, this Court is also of the view that the cases of the Petitioners were also eligible to be considered under the Resolutions at Annexures-3 and 4 to the writ petition on completion of six years of satisfactory service. In either case, the Petitioners are eligible to be regularized on completion of six years of satisfactory service. Therefore, the question formulated by this Court for adjudication of the present writ petition is required to be answered in the affirmative and in favour of the present Petitioners. Thus, this Court has no hesitation in coming to a conclusion that a valuable right had accrued in favour of the Petitioners for their absorption against regular vacant posts of Pharmacist initially under the Resolution under Annexure-3 and 4 to the writ petition, and thereafter on the 2019 Rules, particularly in view of Rule-4(1) of the aforesaid rules. introduction of 48. In the ultimate analysis, this Court holds that the Petitioners are eligible for the benefit of regularization of their service against regular vacant posts of Pharmacist in terms of Rule-4(1) of 2019 Rules and that the Petitioners have the eligibility for such regularization and the selection procedure followed was in terms of Rule-5, as is evident from the letter of the C.D.M.O., Mayurbhanj under Annexure-6 that Page 3 of 5. to the writ petition. Accordingly, the Opposite Parties are directed to regularize the service of the Petitioners as an one-time measure, as provided under Rule-4(1) of the 2019 Rules, within a period of three months from the date of communication of a copy of this judgment. In such view of the matter, learned counsel for the Petitioners submitted that since the Petitioners stand in a similar footing with the Petitioner in W.P.(C) No.35563 of 2020 the Opposite parties should have unregularized the service of the present Petitioners. 6. In course of his argument, learned counsel for the Petitioners further referred to the decision of the Hon’ble Supreme Court in SLP Diary No.16707 of 2023 which was disposed of on 16.04.2024. In the aforesaid SLP, the State-Opposite Parties challenged the decision of the High Court in the case of Ashok Kumar Sahu and others v. State of Odisha wherein this Court had directed for regularization of a Pharmacist belonging to the Balangir District who was working in MHU. The Hon’ble Supreme Court vide order dated 16.04.2024 by referring to the decision in SLP(C) No.13077 of 2020 (State of Odisha and others v. Amit Kumar Mishra and othrs) dismissed the SLP preferred by the State-Opposite parties. 7. Learned counsel for the State-Opposite parties on the other hand submitted that the Petitioners have approached this Court directly without approaching the State-Opposite parties. In such view of the matter, learned counsel for the State submitted that the Petitioners be directed to approach the Opposite Party No.4. He further contended that in the event, the Petitioners approach the Opposite party No.4 by filing a fresh representation and in the event, if this Court directs the opposite Party No.4 to dispose of the same in terms of the judgments referred to hereinabove and strictly in accordance with law within a stipulated period of time, then he will have no objection to the same. Page 4 of 5. 8. Considering the submissions made by the learned counsels appearing for the respective parties, on a careful examination of the background facts as well as materials on record, further taking into consideration the judgment of this Court in Amaresh Behera (supra) as well as of the Hon’ble Supreme Court in State of Odisha v. Amit Kumar Mishra as well as in Ashok Kumar Sahu’s case, this Court deems it proper to dispose of the writ application at the stage of admission by granting liberty to the Petitioners to approach the Opposite Party No.4 by filing a fresh representation within three weeks from today taking therein all the grounds and all supporting documents. In such eventuality, the Opposite party No.4 shall do well to consider the same in the light of the judgments referred to hereinabove and dispose of the representation within a period of two months from the date of communication of a copy of today’s order by the Petitioners. The final decision so taken be communicated to the Petitioners within ten days from the date of taking such decision. 9. With the aforesaid observation/direction, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. Rubi ( A.K. Mohapatra ) Judge Page 5 of 5. Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-May-2024 11:58:13