Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.19049 of 2022 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Dr. Ajit Das, Aged about 33 years Son of Aruna Kumar Das, Working as Assistant Surgeon Senior Resident SLN Medical College & Hospital … Koraput. -VERSUS- Petitioner. 1. State of Odisha, represented through Addl. Chief Secretary to Govt., Health and Family Welfare Department, Bhubaneswar, District: Khordha. 2. Director of Health Services, Odisha, Bhubaneswar, Khordha. … Opposite Parties. Counsel appeared for the parties: For the Petitioner : M/s. Bhabani Sankar Tripathy, Atul Tripathy and Amit Sahoo, Advocates For the Opposite parties : Mr. Sailaza Nandan Das, Additional Standing Counsel P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN W.P.(C) No.19049 of 2022 Page 1 of 45 Date of Hearing : 25.07.2024 :: Date of Judgment : 04.09.2024 J UDGMENT The petitioner has come up before this Court craving to invoke extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India by filing this writ petition seeking direction to the opposite parties to consider him for promotion to the Rank of Group-A (Senior Branch) from Group-A (Junior Branch) of Odisha Medical & Health Services Cadre in terms of the Dynamic Assured Career Progression Scheme vide Health and Family Welfare Department Notification No.6735-HFW-MSII-AESTT-0006/2019/H, dated 08.03.2019 by counting his ad hoc period of service from 16.11.2015 to 10.10.2018 with all consequential service and monetary benefits in his favour and in the writ petition he made the following prayer(s): “On the facts and in the circumstances, the petitioner most humbly prayed that this Hon’ble Court be graciously pleased to; (i) hold and declare that denial of promotion to the petitioner to the rank of Group-A (SB) as bad, illegal and contrary to the law settled by the Apex Court reported in para-14 of the judgment reported in AIR 1990 SC 1607 read with policy resolution vide Notification dt.08.03.2019 of the opp. Party no.1 in Annexure-6; W.P.(C) No.19049 of 2022 Page 2 of 45 (ii) further hold and declare that the petitioner having been appointed to the cadre of Group-A (JB) on 16.11.2015 according to the Rule under Annexure-1 and he continues in the post uninterruptedly till his regular appointment by OPSC in accordance with Rules up to 10.10.2018, the entire ad hoc officiation of service of the petitioner would be counted for all purposes of promotion to Group-A (SB) of Odisha Medical & Health Services Cadre by holding that the petitioner has completed 7 years in the cadre of Group-A (JB) and entitled to be considered for such promotion to the cadre of Group-A (SB) with effect from 16.11.2021; and thereby; (iii) thereby direct the opp. Parties to forthwith consider and allow the petitioner promotion to the rank of Group-A (SB) by counting his ad hoc period of service from 16.11.2015 to 10.10.2018 as regular service for all purposes under Odisha Medical Health Services Cadre in terms of the Notification under Annexure-6 with all consequential service and monetary benefits; (iv) pass such other order as may be deemed fit and proper in the bona fide interest of justice and fair play; And for which act of your kindness, the petitioner shall as in duty bound, ever pray.” Facts: 2. Facts, as adumbrated by the writ petitioner, reveal that based on demand, to mitigate the acute shortage of doctors in the periphery service, the Government of W.P.(C) No.19049 of 2022 Page 3 of 45 Odisha in Health & Family Welfare Department vide Resolution No.32061/IMed-XXIA-207/2012/H., dated 07.12.2012 reintroduced the system of recruitment of “Class-I (Junior Branch) Medical Officers” on ad hoc basis in the Odisha Medical and Health Services Cadre (“OMHS”, for brevity). The selection and appointment of ad hoc doctors were required to be made from amongst persons qualified Bachelor of Medicine and Bachelor of Surgery (“MBBS”, as well-known) from any recognized University in the Indian Union or possess equivalent qualification or holder of registrable medical qualification from a Medical College recognized by the Medical Council of India. The Selection Committee is authorised to scrutiny the application and verify the original certificates, recognition of their degree, recognition of the institution from where they acquired the degree while short-listing and recommending the name of those medical officers to Government for appointment and the selection of ad hoc doctors are to be made strictly on mark basis taking into account the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 (for brevity, “ORV Act”). 2.1. After selection on approval of the Government as per selection list ad hoc appointment is given by posting selected candidates against sanctioned vacant posts with a condition regarding tenure as: W.P.(C) No.19049 of 2022 Page 4 of 45 “The ad hoc doctors will continue on ad hoc basis for a period of one year with effect from the date of their joining at the places of posting or until recommendation of the Odisha Public Service Commission for their regular appointment whichever is earlier.” 2.2. However it is stipulated that the salary and other allowances of such ad hoc Medical Officers would be like a regular Doctor. 2.3. The petitioner, being selected pursuant to Resolution dated 07.12.2012, was appointed as Assistant Surgeon under the OMHS Cadre on ad hoc basis for a period of one year in the scale of pay of Rs.15,600/- — Rs.39,100/- with Grade Pay of Rs.5,400/- with all other allowances as sanctioned vide Notification No.24539- HFW-MSI-JR-0004-2015/H, dated 16.11.2015 (Annexure-8 to the rejoinder affidavit). The tenure of appointment has been extended yearly and last of such extension was by Order dated 23.03.2018 (Annexure-2) which is extracted hereunder: “Government of Odisha Health and Family Welfare Department File No.HFW-MSI-ESTT-0085-2016/9331/H Dated 23.03.2018 The service of all the Assistant Surgeons appointed and posted on ad hoc basis vide Health and Family Welfare Department Notifications issued from time to time and whose period of one year services has already been completed as on the date of issue of this order are hereby Page 5 of 45 W.P.(C) No.19049 of 2022 extended for a further period of one year from the date of their actual joining into Government service of from the last date of completion of one year services with one day break in service or till their regular appointment on the recommendation of the Odisha Public Service Commission whichever is earlier with the same terms and conditions as laid down in notification of their initial appointment subject to their satisfactory performance and completion of one year continuous service in the said post. By order of the Governor Sd/- Additional Secretary to Government” 2.4. While continuing as such on ad hoc basis, the petitioner was posted to Community Health Centre, Laxmipur and continued till 30.05.2018 on annual extensions with one day break, till he resigned from service to join Post- Graduate (“PG”) Course. Being selected to pursue PG course in Orthopaedics at SCB Medical College and Hospital, Cuttack, he was directed by the Health and Family Welfare Department to be relieved vide Letter in File No.14628—HFW-MSI-ESTT-0047/2018/H., dated 22.05.2018 to resign in order to enable him to join the said Course. Hence, the petitioner tendered his resignation on 30.05.2018 from service in order to join the PG Course. 2.5. While the matter stood thus, the petitioner on the recommendation of the Odisha Public Service Commission (“OPSC”, in short) was appointed as W.P.(C) No.19049 of 2022 Page 6 of 45 Assistant Surgeon in the rank of Group-A (Junior) of OMHS Cadre by virtue of Notification No.26629-HFW- MSI-ESTT-0137-0018/H, dated 10.10.2018 issued by the Health and Family Welfare Department-opposite party No.1 and posted as Leave Training Reserve Medical Officer (“LTRMO”) at District Headquarters Hospital, Koraput, inter alia with the following stipulations: “1. The appointment is purely temporary and terminable at any time without prior notice and without assigning any reason thereof. *** 3. *** 7. 8. The appointees should join at their places of posting within 30 (thirty) days from the date of issue of the notification failing which, their appointment shall be automatically cancelled. The newly appointed Medical Officers are required to undergo induction training as would be decided by Government. for regular appointment on The doctors continuing their PG/JR/SR/Tutorship the and selected recommendation of the OPSC are hereby allowed to join at the places of their posting and allowed to be relieved by the concerned CDM & PHO on the next day of their joining in order to enable them to continue their PG/JR/SR/Tutorship in the respective Medical Colleges on submission of an undertaking to join and serve under the State Government at the W.P.(C) No.19049 of 2022 Page 7 of 45 places of posting on completion of their PG/JR/SR/ Tutorship.***” 2.6. It is asserted by the petitioner that he “had completed PG Course and thereafter he was posted as Assistant Surgeon at SLN Medical College and Hospital, Koraput vide Letter No.17358, dated 17.06.2021 where he is continuing till date”. 2.7. The State Government in order to encourage the members of the OMHS Cadre and bring about greater commitment and dedication, implemented Dynamic Assured Career Progression (“DACP”, abbreviated) Scheme promulgated by Health and Family Welfare Department Notification No.6735-HFW-MSII-AESTT- 0006/2019/H, dated 08.03.2019 for providing them three assured promotions i.e., after 7 years, 14 years and 21 years of service counted from the direct entry level. 2.8. The Notification would reveal that the promotion from Group-A (Junior Branch) to Group-A (Senior Branch) number of years of regular service required for promotions under DACP Scheme is 7 years of continuous service from entry level. Based on the said Notification dated 08.03.2019 it is claimed by the petitioner that he has already completed 7 years of continuous service including the period of spent as ad W.P.(C) No.19049 of 2022 Page 8 of 45 hoc Medical Officer. Instead of considering the case of the petitioner for promotion under DACP Scheme, he has been denied regularisation of his ad hoc period of service on the plea that he had tendered resignation on 30.05.2018 to join the PG Course. 2.9. The petitioner has filed a representation for regularisation of his ad hoc period of service on 09.11.2021 before the opposite party No.1, which is stated to be pending. Counter affidavit of the opposite party No.1: 3. Pursuant to the direction of this Court dated 12.08.2022, counter affidavit has come to be filed being sworn to by the opposite party No.1 on 17.10.2022 stating that regular Medical Officers of the OMHS Cadre recruited through the OPSC are promoted to different ranks of OMHS Cadre as provided under Rule 8 of the Odisha Medical and Health Services (Method of Recruitment and Conditions of Service) Rules, 2017. However, in order to encourage the members of OMHS Cadre, DACP Scheme has been put in place providing three assured promotions, i.e., 07 years, 14 years and 21 years of continuous services to be counted from the direct entry level as regular Medical Officer. 3.1. The DACP Scheme, dated 08.03.2019 stipulates that for promotion to the Rank of Group-A (SB), a Medical Officer Page 9 of 45 W.P.(C) No.19049 of 2022 has to complete continuous regular service of seven years. The petitioner, while continuing on ad hoc basis, was selected as a fresh candidate for the PG Course. At that time the CDM & PHOs were instructed vide Letter dated 22.05.2018 (Annexure-3) that, those Medical Officers, appointed on ad hoc or contractual basis, were required to tender resignation to join in PG Course. Accordingly, after submitting his resignation on 30.05.2018, the petitioner joined the PG Course. 3.2. It is further clarified that while continuing his study in PG Course, the petitioner got appointed on regular basis being recommended by the OPSC vide Health and Family Welfare Department Notification dated 10.10.2018 and accordingly, he joined at District Headquarters Hospital, Koraput as LTRMO on 03.11.2018 and got relieved from the District Headquarter Hospital, Koraput on 04.11.2018 to complete his PG Course at SCB Medical College and Hospital, Cuttack. 3.3. While prosecuting study in PG Course, the petitioner was not getting any salary/leave salary as an in-service candidate, rather during the said period he was getting stipend. Hence, the said period cannot be claimed to have fallen within the scope of Rule 180 of the Odisha Service Code. W.P.(C) No.19049 of 2022 Page 10 of 45 3.4. It is asserted that having joined in service on 03.11.2018 being recommended by the OPSC and got relieved from service on 04.11.2018 to complete PG Course, the petitioner was allowed to join in service as Assistant Surgeon at SLN Medical College and Hospital, Koraput by virtue of Letter dated 17.06.2021 after completing said Course. As seven years of continuous service from the entry level being not completed, the claim for promotion to the rank of Group-A (Senior Branch), Level- 13 is not in consonance with the DACP Scheme. It is
Legal Reasoning
affirmed that since the petitioner has not completed qualifying service of seven years, he is not entitled to be considered for promotion to the rank of Group-A (Senior Branch), Level-13 under the DACP Scheme. Hearing: 4. Pleadings being completed and exchanged, the counsel for respective parties on consent agreed for final disposal
Legal Reasoning
of the matter. Accordingly, heard Sri Bhabani Sankar Tripathy along with Sri Atul Tripathy, learned Advocates for the petitioner and Sri Sailaza Nandan Das, learned Additional Standing Counsel for the opposite parties and the matter stood reserved for preparation and delivery of Judgment/Order. Rival contentions and submissions: W.P.(C) No.19049 of 2022 Page 11 of 45 5. Sri Bhabani Sankar Tripathy, learned Advocate appearing for the petitioner submitted that being appointed as ad hoc Medical Officers, in pursuance of the Health and Family Welfare Department Resolution dated 07.12.2012 for a period of one year with effect from the date of joining, which got periodically extended till 23.03.2018 with one day break. In order to join the PG Course, with constraint the petitioner resigned from ad hoc service as per the instruction imparted by the Government to the Director, Capital Hospital, Bhubaneswar, the Director, Ispat General Hospital, Rourkela and all Chief District Medical and Public Health Officers of Odisha to relieve the in-service Medical Officers, who have been selected for PG Courses in the academic session 2018-19. As a condition to join the PG Courses, the petitioner was required to resign, which is mere technical one. Inasmuch as the petitioner was recommended by the OPSC for appointment to the Post of Assistant Surgeon in Group-A (Junior Branch) and having joined in service on 03.11.2018 pursuant to Health and Family Welfare Department Notification dated 10.10.2018, the periods since the day he joined as ad hoc Medical Officer vide Notification dated 16.11.2015 should have been counted for the purpose of consideration of his case for promotion to the rank of W.P.(C) No.19049 of 2022 Page 12 of 45 Group-A (Senior Branch), Level-13 in terms of Notification dated 08.03.2019. 5.1. Relying on the decision of the Hon’ble Supreme Court in the case of Direct Recruitment Class-II Engineer Officers Association Vrs. State of Maharashtra, AIR 1990 SC 1607, the learned counsel for the petitioner submitted that once an incumbent is appointed to a post according to Rules, his seniority is to be counted from the date of his appointment and not according to the date of his confirmation. 5.2. He further went on to submit that to become eligible for promotion from Group-A (Junior Branch), Level-12 to Group-A (Senior Branch), Level-13 in terms of the DACP Scheme dated 08.03.2019, a Medical Officer should have completed seven years of continuous service from entry level (if not promoted as per Cadre Rules). 5.3. The petitioner joined in service as ad hoc Medical Officer by virtue of Notification dated 16.11.2015 and after completion of PG Course he was posted as Assistant Surgeon at SLN Medical College and Hospital, Koraput vide Letter No.17358 dated 17.06.2021, being recommended by the OPSC for appointment as Assistant Surgeon in Group-A (Junior Branch) of OMHS Cadre by Notification No.26629 dated 10.10.2018, he is entitled to W.P.(C) No.19049 of 2022 Page 13 of 45 be promoted to Group-A (Senior Branch) in conformity with DACP Scheme. 6. Strongly opposing such contentions raised by the learned counsel for the petitioner, Sri Sailaza Nandan Das, learned Additional Standing Counsel appearing for the opposite parties submitted that the petitioner was appointed as ad hoc Medical Officer pursuant to the Resolution dated 07.12.2012, which clearly stipulated that ad hoc Medical Officer would continue as such for a period of one year with effect from the date of joining at the place of posting or until recommendation of the OPSC for their regular appointment, whichever is earlier. There is no dispute that being recommended by the OPSC, the petitioner was appointed to join as Assistant Surgeon in Group-A (Junior Branch) of the OMHS Cadre in pursuance of Notification No.26629 dated 10.10.2018 of the Health and Family Welfare Department. 6.1. He, therefore, urged that as the petitioner got into the Cadre in 2018, till date he has not completed seven years of continuous service from entry level in terms of the Health and Family Welfare Department Notification dated 08.03.2019 by virtue of which, the DACP Scheme has come to exist. 6.2. Learned Additional Standing Counsel vehemently contested that the expression “07 years of continuous W.P.(C) No.19049 of 2022 Page 14 of 45 service from entry level (if not promoted as per Cadre Rule)” employed in the Notification dated 08.03.2019 has significance. The petitioner has been appointed on regular basis as Assistant Surgeon in Group-A (Junior Branch) of OMHS Cadre by the Health and Family Welfare Department Notification dated 10.10.2018. Since the petitioner was not in regular service till he was recommended by the OPSC for appointment as Assistant Surgeon in Group-A (Junior Branch) in OMHS Cadre vide Notification dated 10.10.2018, the services rendered as ad hoc Medical Officer being not in the OMHS Cadre and the petitioner having borne in the Cadre by virtue of aforesaid notification, the promotion in Group-A (Senior Branch), Level-13 would be counted from that date when he joined in service as Assistant Surgeon (Junior Branch). Thus, having not completed seven years as required for consideration of promotion to Group-A (Senior Branch) in terms of the DACP Scheme, the contention of the petitioner that he has completed more than seven years is fallacious and misreading of purport of Notification dated 08.03.2019. 6.3. Sri Sailaza Nandan Das, learned Additional Standing Counsel further expanded his argument by urging that the petitioner in order to join the PG Course had resigned from service of ad hoc Medical Officer vide Letter dated 30.05.2018 addressed to the CDM & PHO, W.P.(C) No.19049 of 2022 Page 15 of 45 Koraput and joined the post of Assistant Surgeon being recommended by the OPSC and appointed by the Health and Family Welfare Department by Notification dated 10.10.2018. Thus, joining in the said post as Assistant Surgeon is treated as fresh appointment which occurred during the period of study of PG Course. Therefore, the petitioner cannot be considered to have seven years continuous service in Group-A (Junior Branch), Level- 12. Therefore, the claim of the petitioner that the period spent as ad hoc Medical Officer including the period of PG Course should have been counted for the purpose of determination of eligibility for being promoted to Group- A (Senior Branch), Level-13 as per DACP Scheme, is not only misconceived but also untenable. 6.4. In such view of the matter, learned Additional Standing Counsel submitted that the writ petition is devoid of merit and liable to be dismissed. Analysis and discussion: 7. Before delving into merit of the matter, it is apt to notice certain principles enunciated by the Hon’ble Supreme Court of India with regard to ad hoc appointees. In the case of R.N. Nanjundappa Vrs T. Thimmaiah, AIR 1972 SC 1767, it has been observed that regularization is not itself a mode of recruitment and any act in the exercise of executive power of the Government cannot override W.P.(C) No.19049 of 2022 Page 16 of 45 rules framed under Article 309 of the Constitution. In the case of State of Odisha Vrs. Sukanti Mahapatra, AIR 1993 SC 1650, it was observed that assuming that they having served for long years is a valid reason for regularization, that without anything more, will not meet the requirement of the action being in public interest and what has been done under the impugned orders is to regularize the illegal entry into service as if the Rules were not in existence. In the case of K.C. Joshi Vrs. Union of India, AIR 1991 SC 284, the Supreme Court of India observed that the ad hoc appointees cannot be put on a higher pedestal over the candidates who stood the test of merit and became successful in a competitive recruitment and secured ranking according to the merit in the approved list of candidates. In the case of State of Haryana Vrs Piara Singh, AIR 1992 SC 2130, it was observed that direction to regularize ad hoc appointees or work charged employees would only result in encouraging of unhealthy practice of back door entry— what cannot be done directly cannot be allowed to be done in such indirect manner. In the case of Dr. M.A. Haque Vrs. Union of India, (1993) 2 SCC 213, the Supreme Court held that the recruitment Rules made under Article 309 of the Constitution of India have to be followed strictly and not in breach. If a disregard of the rules and by-passing of the Public Service Commission W.P.(C) No.19049 of 2022 Page 17 of 45 are permitted, it will open a back-door for illegal recruitment without limit. In the case of Dr. Arundhati A. Pargaonkar Vrs. State of Maharashtra, AIR 1995 SC 962, the Hon’ble Supreme Court of India has held that a continuous service by itself does not give rise to claim for regularization. 8. The undisputed fact as unfurled in the pleadings of the respective parties and having heard the arguments of counsel for both the sides, it is eminently clear that the petitioner has joined as ad hoc Medical Officer in response to Health and Family Welfare Department Resolution No.32061-I-Med-XXIA-207/2012/H, dated 07.12.2012 in Class-I (Junior Branch). Such engagement in terms of conditions of Resolution was for one year and with one day break. The facts reveal that on extension of period year to year being accorded to the petitioner, he continued till 30.05.2018, when he resigned from such service to join the PG Course. However, while continuing with the PG Course, on the recommendation of the OPSC the petitioner was appointed as Assistant Surgeon in the rank of Group-A (Junior) of the OMHS Cadre by virtue of Health and Family Welfare Department Notification No.26629-HFW- MSI-ESTT-0137-0018/H, dated 10.10.2018 and posted as LTRMO at District Headquarters Hospital, Koraput, with condition that the appointment was purely W.P.(C) No.19049 of 2022 Page 18 of 45 temporary. Further while continuing his study in PG Course, it transpires from Notification dated 10.10.2018 that he was selected for regular appointment on the recommendation of the OPSC and was allowed to join at SLN Medical College and Hospital, Koraput by tendering joining report on 03.11.2018 before the CDM & PHO concerned. He was allowed to get relieved on 04.11.2018 to continue with PG Course. 8.1. Scrutiny of the Notification dated 10.10.2018 clearly reveals that the Medical Officer continuing in P.G. Courses and selected for regular appointment on recommendation of the OPSC was allowed to join the respective place of posting and is relieved by the concerned CDM & PHO on the very next day of his joining in order to pursue PG Course as usual with an undertaking to join the service at the place of posting on completion of said course. 8.2. Since the posting as ad hoc Medical Officer was tenure based and subject to extension year to year with one day break, on the date of resignation to join the PG Course and its acceptance by the Authority concerned, the service came to an end. In other words, the ad hoc service of the petitioner had come to be ceased on 30.05.2018 when he resigned from the post of ad hoc Medical Officer. However, as he joined the service as Assistant Surgeon on 03.11.2018 by virtue of Page 19 of 45 W.P.(C) No.19049 of 2022 recommendation of the OPSC and consequent upon appointment by the Health and Family Welfare Department vide Notification dated 10.10.2018, it is, in the considered view of this Court, a fresh appointment. 8.3. The narration of fact by the opposite parties that during the period of continuance of PG Course, the petitioner had been paid stipend instead of salary, unlike the Medical Officers in regular service also leads this Court to appreciate that the petitioner had not borne in the OHMS Cadre till he joined on 03.11.2018 pursuant to Notification dated 10.10.2018. 8.4. Resignation from ad hoc service cannot be treated as mere technical when the fact of getting stipend during such period while undertaking the PG Course remained without objection. 8.5. As is trite that ad hoc service cannot be construed to be appointment in regular service or borne in Cadre, the periods spent for study in PG Course cannot be treated as “study leave” in terms of Rule 180 of the Odisha Service Code, which stands thus: “180. Extra leave on half average pay for the purpose of study leave.— Extra leave on half average pay for the purpose of study leave may be taken either in or outside India. leave will not ordinarily be granted to Study W.P.(C) No.19049 of 2022 Page 20 of 45 Government servants of less than five years service or to Government servants within three years of the date at which they have the option of retiring, or if they have the option of retiring after 20 years’ service, within three years of the date at which they will complete 25 years’ service.” 8.6. A Government servant is not entitled to such benefit under Rule 180 of the Odisha Service Code if he has rendered less than five years of service. In the present case the study leave as claimed to have been availed by the petitioner is not extendable to him as he had not completed five years of service during academic session 2018-19, having joined as ad hoc Medical Officer pursuant to Notification dated 16.11.2015. 8.7. Be that as it may, the petitioner has prayed for grant of relief in tune with decision of Hon’ble Supreme Court of India rendered in the case of Direct Recruit Class II Engineering Officers’ Association Vrs. State of Maharashtra, AIR 1990 SC 1607 = (1990) 2 SCR 900 = (1990) 2 SCC 715, wherein it was laid down as follows:
Decision
“47. To sum up, we hold that: (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap W.P.(C) No.19049 of 2022 Page 21 of 45 arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. it (C) When appointments are made from more than one for source, recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. is permissible the ratio fix to (D) rule, If it becomes impossible to adhere to the existing quota it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the the quota, but are made after the procedure prescribed by appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. following for rules the (F) Where the rules permit the authorities to relax the the quota, ordinarily a provisions relating to presumption should be raised that there was such W.P.(C) No.19049 of 2022 Page 22 of 45 relaxation when there is a deviation from the quota rule. (G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject. (H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. (I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers. (J) The decision dealing with important questions concerning a particular service given after careful than consideration should be respected rather scrutinised for finding out any possible error. It is not in the interest of service to unsettle a settled position. With respect to Writ Petition No. 1327 of 1982, we further hold: (K) That a dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final.” W.P.(C) No.19049 of 2022 Page 23 of 45 8.8. In the case of Malook Singh Vrs. State of Punjab, (2021) 7 SCR 1080 the aforesaid principles have been further explained as: “20. The law on the issue of whether the period of ad hoc service can be counted the purpose of determining seniority has been settled by this Court in multiple cases. In Direct Recruits (supra), a Constitution Bench of this Court has observed: for ‘13. When the cases were taken up for hearing before us, it was faintly suggested that the principle laid down in Patwardhan case, (1977) 3 SCC 399 = (1977) 3 SCR 775 was unsound and fit to be overruled, but no attempt was made to substantiate the plea. We were taken through the judgment by the learned counsel for the parties more than once and we are in complete agreement with the ratio decidendi, that the period of continuous officiation by a Government servant, after his appointment by following the rules applicable for substantive appointments, has to be taken into account for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of inglorious uncertainties of government the service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16. If an appointment is made by way of stop-gap arrangement, without considering the W.P.(C) No.19049 of 2022 Page 24 of 45 in the qualitative difference claims of all the eligible available persons and without the rules of following appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because the of appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. Same will be the position if the initial appointment itself is made in accordance with substantive the appointments as in the present case. To hold otherwise will be discriminatory and arbitrary. *** regularization of his service applicable rules the to 47. To sum up, we hold that (A) Once an incumbent is appointed to a post according to a rule, his seniority has to counted from the date of appointment and not according to date of his confirmation. The corollary to the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account considering the seniority.’ W.P.(C) No.19049 of 2022 Page 25 of 45 21. The decision in Direct Recruits (supra) stands for the principle that ad hoc service cannot be counted for determining the seniority if the initial appointment has been made as a stop gap arrangement and not according to rules. The reliance placed by the Single Judge in the judgment dated 6 December 1991 on Direct Recruits (supra) to hold that the ad hoc service should be counted for conferring the benefit of seniority in the present case is clearly misplaced. This principle laid down in Direct Recruits (supra) was subsequently followed by this Court in Keshav Chandra Joshi Vrs. Union of India, 1992 Supp (1) SCC 272. Recently a two judge Bench of this Court in Rashi Mani Mishra Vrs. State of Uttar Pradesh, 2021 SCC OnLine SCC 509, of which one of us (Justice DY Chandrachud) was a part, observed that the services rendered by ad hoc employees prior to their regularization cannot be counted for the purpose of seniority while interpreting the Uttar Pradesh Regularization of Ad Hoc Appointment Rules. This Court noted that under the applicable Rules, “substantive appointment” does not include ad hoc appointment and thus seniority which has to be counted from “substantive appointment” would not include ad hoc service. This Court also clarified that the judgment in Direct Recruits (supra) cannot be relied upon to confer the benefit of seniority based on ad hoc service since it clearly states that ad hoc appointments made as stop gap arrangements do not render the ad hoc service eligible for determining seniority. This Court speaking through Justice MR Shah made the following observations: W.P.(C) No.19049 of 2022 Page 26 of 45 ‘36. The sum and substance of the above discussion would be that on a fair reading of the 1979 Rules, extended from time to time; initial appointment orders in the year 1985 and the subsequent order of regularization in the year 1989 of the ad hoc appointees and on a fair reading of the relevant Service Rules, namely Service Rules, 1993 and the Seniority Rules, 1991, our conclusion would be that the services rendered by the ad hoc appointees prior to their regularization as per the 1979 Rules shall not be counted for the purpose of seniority, vis-(cid:224)-vis, the direct recruits who were appointed prior to 1989 and they are not entitled to seniority from the date of their initial appointment in the year 1985. The resultant effect would be the subsequent re- determination of the seniority in the year 2016 cannot be sustained which was considering the services rendered by ad hoc appointees prior to initial 1989, appointment in 1985. This cannot be sustained and the same deserves to be quashed and set aside and the seniority list of 2001 counting the services rendered by ad hoc appointees from the date of their regularization in the year 1989 is to be restored. the date of their i.e., from that 37. Now so far as the reliance placed upon the decision of this Court in the case of Direct Recruit Class II Engg. Officers’ Assn. (supra), relied upon by the learned Senior Advocate appearing on behalf of the ad hoc appointees is concerned, it is required to be noted that even in the said decision also, it is observed and W.P.(C) No.19049 of 2022 Page 27 of 45 that where appointments made held that where initial appointment was made only ad hoc as a stop gap arrangement and not according to the rules, the officiation in such post cannot be taken into account for considering the seniority. In the case before this Court, the appointments were made to a post according to rule but as ad hoc and subsequently they were confirmed and to that this Court observed and held in accordance with the rules, seniority is to be counted from the date of such appointment and not from the date of confirmation. In the present case, it is not the case of confirmation of the service of ad hoc appointees in the year 1989. In the year 1989, their services are regularized after following due procedure as required under the 1979 Rules and after their names were recommended by the Selection Committee constituted under the 1979 Rules. As observed hereinabove, the appointments in the year 1989 after their names were recommended by the Selection Committee constituted as per the 1979 Rules can be said to “substantive appointments”. Therefore, even on facts also, the decision in the case of Direct Recruit Class II Engg. Officers’ Assn. (supra) shall not be applicable to the facts of the case on hand. At the cost of repetition, it is observed that the decision of this Court in the case of Direct Recruit Class II Engg. Officers’ Assn. (supra) was considered by this Court in the case of Santosh Kumar the be W.P.(C) No.19049 of 2022 Page 28 of 45 (supra) when this Court interpreted the very 1979 Rules.’ the through 22. The Notification dated 3 May 1977 stated that the ad hoc appointments were made in administrative interest in anticipation of regular appointments and on account of delay that takes place in making regular appointment concerned agencies. In this regard, the vacancies were notified to the Employment Exchange or advertisements were issued, as the case maybe, by appointing authorities. The appointments were not made on the recommendation of the Punjab Subordinate Service Selection Board. However, subsequently a policy decision was made to regularize the ad hoc appointees since their ouster after a considerable period of service would have entailed hardship. Thus, the initial appointment was supposed to be a stop gap arrangement, besides being not in accordance with the Rules, and the ad hoc service cannot be counted for the purpose of seniority.” 8.9. The present factual scenario is that there is no whisper in Notification dated 16.11.2015 (Annexure-8 as enclosed to the rejoinder affidavit) that recruitment Rules have been followed to appoint the petitioner as Assistant Surgeon on ad hoc basis. As a matter of fact the petitioner resigned from ad hoc service on 30.05.2018 to join PG Course and such ad hoc appointment was made on tenure basis for a period of one year with extensions. It is during the course of study W.P.(C) No.19049 of 2022 Page 29 of 45 of PG, the petitioner was appointed as Assistant Surgeon by Notification dated 10.10.2018 and it is not disputed that the petitioner has joined the service on 03.11.2018 and got relieved on 04.11.2018 to complete the PG Course. Such appointment being a fresh appointment pursuant to recommendation of OPSC, the petitioner could not claim to have been working in the post uninterruptedly till the regularisation of his service in accordance with the rules, and the period of ad hoc service would be counted. 8.10. Observations of Courts are neither to be read as Euclid’s theorems nor as provisions of Statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Disposal of cases by blindly placing reliance on a decision is not proper because one additional or different fact may make a world of difference between conclusions in two cases. Reference may be had to Bharat Petroleum Corpn. Ltd. Vrs. N.R. Vairamani, (2004) 8 SCC 579; Sarva Shramik Sanghatana (KV), Mumbai Vrs. State of Maharashtra, (2008) 1 SCC 494; and Bhuwalka Steel Industries Limited Vrs. Bombay Iron & Steel Labour Board, (2010) 2 SCC 273; Union of India Vrs. Arulmozhi Iniarasu, (2011) 9 SCR 1 = (2011) 7 SCC 397. W.P.(C) No.19049 of 2022 Page 30 of 45 8.11. As against the contention of the petitioner that he was constrained to resign the ad hoc service to join the PG Course, Sri Sailaza Nandan Das, the learned Additional Standing Counsel has placed reliance on Director, Institute of Management Development U.P. Vrs. Smt. Pushpa Srivastava, (1992) 4 SCC 33, wherein the Hon’ble Supreme Court of India has observed as follows: “10. Inter alia it was urged that there was no justification for not giving a regular or a permanent appointment to her. She was compelled to submit her thereafter was given a resignation and permanent consolidated salary. Thus, the action of the Institute was arbitrary, unreasonable and discriminatory. It was further urged that there was every need for continuing the post. *** few days before and prayed 20. Because the six months’ period was coming to an end on February 28, 1991, she preferred the writ petition a for mandamus which was granted by the learned Judge under the impugned judgment. The question is whether the directions are valid in law. To our mind, it is clear that where the appointment is contractual and by efflux of the appointment comes to an end, the respondent could have no right to continue in the post. Once this conclusion is arrived at, what requires to be examined is, in view of the services of the respondent being continued from time to time on ‘ad hoc’ basis for more time, W.P.(C) No.19049 of 2022 Page 31 of 45 than a year whether she is entitled to regularisation? The answer should be in the negative.” 8.12. Under the aforesaid premise, though the petitioner claimed to have joined in response to Notification dated 16.11.2015 and remained as Assistant Surgeon on ad hoc basis till 30.05.2018, his case for counting said period for the purpose of treating him to have continuously discharging duty till date is repelled as he was not in service on and after 01.06.2018 as he tendered his resignation on 30.05.2018. There is a gap between 01.06.2018 and 03.11.2018, i.e., the date when he joined in SLN College and Hospital on the basis of Notification dated 10.10.2018. Subsequent joining in the post is considered to be fresh appointment on the basis of recommendation of OPSC. 9. Another pertinent factor for consideration is that the Resolution dated 07.12.2012, pursuant to which the petitioner has claimed to have joined as Assistant Surgeon in the rank of Group-A (Junior Branch) of the OMHS Cadre on ad hoc basis vide Notification No.24539- HFW-MSI-JR-00064-2015/H, dated 16.11.2015 (Annexure-8), spells out that “the ad hoc doctors will continue on ad hoc basis for a period of one year with effect from the date of their joining at the places of posting or until recommendation of the OPSC for their W.P.(C) No.19049 of 2022 Page 32 of 45 regular appointment whichever is earlier.” The material on record depicts that the petitioner tendered resignation on 30.05.2018, i.e., much prior to recommendation of the OPSC. In view of aforesaid clause of tenure stipulated in Paragraph 9 of Recruitment of Class-I (Junior) Medical Officers in the Odisha Medical and Health Services Cadre on ad hoc basis contained in Resolution dated 07.12.2012 since the petitioner as ad hoc Medical Officer remained in OMHS till 30.05.2018, which is earlier to recommendation of the OPSC for regular appointment, it is necessary corollary that the petitioner was not continuously working in the post till such recommendation was made by the OPSC. 9.1. In this respect it is relevant to refer to State of Rajasthan and others Vrs. Jagdish Narain Chaturvedi, (2009) 12 SCC 49, which was cited by the learned Additional Standing Counsel, wherein it was observed as follows: “10. Rule 25(4) relates to prospective appointment as is clear from the expression “occurrence”. Therefore, the starting point has to be as noted above, when the employee is borne in the Cadre, as observed by this Court in Chanchal Goyal (Dr.) Vrs. State of Rajasthan, (2003) 3 SCC 485, Santosh Kumar Vrs. G.R. Chawla, (2003) 10 SCC 513 and A.G. Sainath Reddy Vrs. Govt. of A.P., (2003) 4 SCC 65 ad hoc employee has no right to the post and ad hoc appointment does not count for the purpose of seniority. W.P.(C) No.19049 of 2022 Page 33 of 45 *** 18. *** In order to become “a member of service” a candidate must satisfy four conditions, namely, (i) the appointment must be in a substantive capacity; (ii) to a post in the service i.e. in a substantive vacancy; (iii) made according to rules; (iv) within the quota prescribed for the source. in the “appointment in Para 3 of Ad hoc appointment is always to a post but not to the Cadre/service and is also not made in accordance with the provisions contained in the recruitment rules for regular appointment. Although the adjective “regular” was not used before existing the words Cadre/service” the G.O. dated 25.01.1992 which provided for selection pay scale the appointment mentioned there is obviously a need for regular appointment made in accordance with the Recruitment Rules. What was implicit in the said paragraph of the G.O. when it refers to appointment to a Cadre/service has been made explicit by the clarification dated 03.04.1993 given in respect of Point 2. The same has been incorporated in Para 3 of the G.O. dated 17.02.1998. 20. The High Court failed to appreciate that the recruitment rules made a distinction between in appointments made the Cadre/service to W.P.(C) No.19049 of 2022 Page 34 of 45 accordance with the relevant recruitment Rules which are regular and appointments made de hors the regular recruitment rules which are ad hoc. 22. Apart from Haryana Veterinary case, (2000) 8 SCC 4 the position in law as stated in State of Punjab Vrs. Ishar Singh, (2002) 10 SCC 674 and State of Punjab Vrs. Gurdeep Kumar Uppal, (2003) 11 SCC 732 lays down that while reckoning the clearly required length of service the period of ad hoc service has to be excluded. It is relevant to note that the first selection scale of pay was excluded several years back on completion of 9 years of service subsequent to regularisation. After a long lapse of time i.e. after nearly 8 years it was not open to be canvassed that the second selection scale of pay ought to be granted after the employees concerned having put in 18 years of service from the date of ad hoc appointment.” 9.2. In State of Punjab and others Vrs. Ishar Singh, (2002) 10 SCC 674, it was observed as follows: “2. The respondents were initially appointed as Horticulture Inspectors on ad hoc basis without following the procedure laid down in the Recruitment Rules. Subsequently their services were regularised and orders appointing them on regular/substantive basis were the respondents (ad hoc and regular) were made prior to 01.09.1989. The question is whether the ad hoc service rendered by them is to be included for the purpose of calculating 8 or 18 years’ service which is required for giving them the higher scale of pay under the proficiency step-up scheme issued. The appointments of for consideration W.P.(C) No.19049 of 2022 Page 35 of 45 for seniority etc. This question was considered by this Court in the case of State of Haryana Vrs. Haryana Veterinary & AHTS Assn., (2000) 8 SCC 4 in which a three-Judge Bench of this Court held that the ad hoc service rendered by the employees is for the purpose of not to be calculating 8/18 years of service; only regular service is to be counted for the purpose. included 3. On consideration of the facts and circumstances of this case we are satisfied that the decision in State of Haryana Vrs. Haryana Veterinary & AHTS Assn. case, (2000) 8 SCC 4 is applicable to this case.” 9.3. The observation of Hon’ble Supreme Court of India in State of Haryana Vrs. Haryana Veterinary & AHTS Assn., (2000) 8 SCC 4 = 2000 SCC OnLine SC 1329 is as under: “15. A combined reading of the aforesaid provisions of the Recruitment Rules puts the controversy beyond any doubt and the only conclusion which could be drawn from the aforesaid Rules is that the services rendered either on an ad hoc basis or as a stopgap arrangement, as in the case in hand from 1980 to 1982 cannot be held to be regular service for getting the benefits of the revised scale of pay or of the selection grade under the government memorandum dated 02.06.1989 and 16.05.1990, and therefore, the majority judgment of the High Court must be held to be contrary to the aforesaid provisions of the Recruitment Rules, consequently cannot be sustained. The initial letter of appointment dated 06.12.1979 pursuance to which respondent Rakesh Kumar joined as an Assistant Engineer on an ad hoc Page 36 of 45 W.P.(C) No.19049 of 2022 basis in 1980 was also placed before us. The said appointment letter unequivocally indicates that the offer of appointment as Assistant Engineer was on ad hoc basis and clauses 1 to 4 of the said letter further provides that the appointment will be on an ad hoc basis for a period of 6 months from the date of joining and the salary was a fixed salary of Rs.400 p.m. in the scale of Rs.400 to Rs.1100 and the services were liable to be terminated without any notice and at any time without assigning any reason and that the appointment will not enable the appointee any seniority or any other benefit under the Service Rules for the time being in force and will not count towards increment in the time scale. In view of the aforesaid stipulations in the offer of appointment itself we really fail to understand as to how the aforesaid period of service rendered on ad hoc basis can be held to be service on regular basis. The conclusion of the High Court is contrary to the very terms and conditions stipulated in the offer of appointment and, therefore, the same cannot be sustained. The regular letter of appointment dated 29.01.1982 in favour of Rakesh Kumar was also produced before us and that letter indicates that the respondent Rakesh Kumar along with others had applied to the Secretary, Haryana Public Service Commission for being appointed as an Assistant Engineer and the Service Commission after selecting list and the number of persons prepared a appointment letters were issued by the Government from the said list on the basis of the merit position of different candidates. Thus the appointment of respondent Rakesh Kumar was a fresh appointment in accordance with the statutory W.P.(C) No.19049 of 2022 Page 37 of 45 rules after the Public Service Commission adjudged their suitability and the regular service of the respondent Rakesh Kumar must be counted from the date he joined the post pursuant to the offer of appointment dated 29.01.1982 and the prior service rendered by him on ad hoc basis cannot be held to be regular service nor can it be tagged on to the later service for earning the benefit under the government circular dated 02.06.1989 as well as the clarificatory circular dated 16.05.1990. The conclusion of the majority judgment of the High Court, therefore, is wholly erroneous and cannot be sustained. 9.4. Examining the instant case in the aforesaid light, it may be relevant to notice that Rule 11 of the Odisha Service Code defines the word “Cadre” means “the strength of a service or part of a service sanctioned as a separate unit”. As has already been taken note of that under Rule 180 of the Odisha Service Code it is the Government servant who is granted study leave with condition that he should have been in the service for not less than five years. The term “Government servant” as is given under Rule 2(b) of the Odisha Government Servants’ Conduct Rules, 1959, connotes that “any person appointed to serve in connection with the affairs of the State, in respect of whom the Government of Odisha is empowered to make Rules under Article 309 of the Constitution of India, whether for the time being such W.P.(C) No.19049 of 2022 Page 38 of 45 person serving in connection with the affairs of the Government of lndia or of any State, or is on Foreign Service, or on leave”. 9.5. Bare perusal of Notification dated 16.11.2015 makes it abundantly clear that the petitioner has been working as Assistant Surgeon on ad hoc basis for a period of one year. As stated by the petitioner such appointment was extended till 30.05.2018, when he tendered resignation for pursuing PG Course. To reiterate, in terms of Paragraph 9 of Resolution dated 07.12.2012, the tenure of ad hoc appointment would remain valid for one year with effect from the date of joining or till recommendation of the OPSC for regular appointment, whichever is earlier. Since the petitioner resigned from service on 30.05.2018, he was no more in ad hoc service. On recommendation of the OPSC, pursuant to Health and Family Welfare Notification dated 10.10.2018 the petitioner having joined on 03.11.2018, he can be said to be borne in the OMHS Cadre on the entry in the Government service. As per Notification dated 08.03.2019, for consideration of promotion to the rank of Group-A (Senior Branch), Level-13, the petitioner was required to render 7 years of continuous service from entry level. From 03.11.2018 as the petitioner has not completed 7 years continuous service, he was not W.P.(C) No.19049 of 2022 Page 39 of 45 considered for promotion to the rank of Group-A (Senior Branch), Level-13. 9.6. This Court feels it apt to have regard to following observations made in Rashi Mani Mishra Vrs. State of Uttar Pradesh, (2021) 6 SCR 435: “It is to be noted that in the present case when the ad hoc appointees were appointed in the year 1985, there was no consultation with the UPSC and as such there was no recommendation by the UPSC. Their services came to be regularised as per the 1979 Rules and after they were selected by the Selection Committee constituted under the 1979 Rules, which specifically provides that for the purpose of regularisation of ad hoc appointments, the appointing authority shall constitute a Selection Committee and consultation with the Commission shall not be necessary. It is also to be noted that when the ad hoc appointees were appointed in the year 1985, they were appointed on the basis of the recommendations of the Selection Committee constituted for ad hoc appointments and when subsequently their services were regularised and they were appointed in the year 1989, they were appointed by the order of Governor. This is one their substantive additional ground appointments can be said to be only from the date of their regularisation/appointment made in the year 1989 after the Selection their names were recommended by Committee constituted under the 1979 Rules and their services were regularised as per the 1979 Rules after following the procedure as required under the 1979 Rules, i.e., in the year 1989. Therefore, their seniority is to be counted only from 14.12.1989, the date of their Page 40 of 45 to hold that W.P.(C) No.19049 of 2022 regularisation and the services rendered by the ad hoc appointees prior thereto, i.e., from the date of their initial appointments in the year 1985 is not to be counted for the purpose of seniority, vis-(cid:224)-vis, the direct recruits appointed prior to 1989.” 9.7. On the aforesaid conspectus of legal perspective, this Court is of the view that the period spent as Assistant Surgeon on ad hoc basis by the petitioner cannot be counted for the purpose of consideration of promotion to the rank of Group-A (Senior Branch), Level-13 in terms of Notification dated 08.03.2019 (Annexure-6). Conclusion: 10. On the discussed facts coupled with averments and submissions made in course of hearing with reference to the principles enunciated by the Courts, this Court on perusal of record finds that the petitioner, being appointed as Assistant Surgeon in the rank of Group-A (Junior Branch) of the OMHS Cadre on ad hoc basis for a period of one year with effect from the date of joining in response to Notification dated 16.11.2015 (Annexure-8 to the rejoinder affidavit), has resigned from such service on 30.05.2018 by tendering the following letter: “To The CDMO, Koraput H&FW, Government of Odisha Sub.: Resignation of self to join PG Course W.P.(C) No.19049 of 2022 Page 41 of 45 Respected Sir, With due respect I Dr. Ajit Das want to state that currently I am working at CHC, Laxmipur as Medical Officer on ad hoc basis. I have been selected for PG Course in in-service quota, in which I have to resign from my post as said by Government. Therefore, I request you to kindly accept my resignation for do the needful. Thanking you Yours faithfully Sd/- M.O., CHC, axmipur Koraput” 10.1. It is manifest from Letter File No.14628-HFW-MSI-ESTT- 0047-2018/H, dated 22.05.2018 of Health and Family Welfare Department (Annexure-3) that, in case of regularly appointed Medical Officers of OMHS Cadre and selected for the purpose of PG Course were required to be relieved by the CDM & PHO, but in the case of “Medical Officers working under OMHS Cadre on ad hoc and contractual basis shall have to resign from their services to join their PG/SR Courses”. 10.2. The petitioner in order to join and pursue PG Course, has tendered his resignation from service without any qualification/reservation on 30.05.2018. However, the Government of Odisha in Health and Family Welfare Department has issued Notification dated 10.10.2018 W.P.(C) No.19049 of 2022 Page 42 of 45 (Annexure-5) appointing the petitioner along with many others as Assistant Surgeon in the rank of Group-A (Junior) of OMHS Cadre honouring recommendation of the OPSC. 10.3. Since the petitioner was not in service after 30.05.2018, having tendered resignation and joined in service on 03.11.2018 pursuant to aforesaid Notification dated 10.10.2018 (afresh) and got relieved from duties with undertaking to join the said post after completion of PG Course, the period spent during ad hoc service (from joining till date of resignation) cannot be considered for the purpose of counting “7 years of continuous service from entry level (if not promoted as per Cadre Rules)” as per DACP Scheme vide Notification dated 08.03.2019. The petitioner has come to the Cadre on 03.11.2018, when he joined the SLN College and Hospital, Koraput, being recommended by the OPSC. 10.4. It is also not out of place to refer to Rule 180 of the Odisha Service Code which is meant for the Government servants. The definitions of “Government servant” in Rule 2(b) of the Odisha Government Servants Conduct Rules, 1959 and “Cadre” in Rule 11 of the Odisha Service Code, makes it unambiguous that the benefit of study leave could not be extended to the petitioner in terms of Rule 180 of the Odisha Service Code. W.P.(C) No.19049 of 2022 Page 43 of 45 10.5. Regard in this respect be had to Dr. P.P.C. Rawani Vrs. Union of India, (2008) 16 SCR 61, wherefrom the following principle may be culled out: regularization “9. If all the ad hoc doctors were to be regularized with effect from the date of their initial appointment, with seniority also from the date of initial appointment, regular there will be no difference between recruitment and of ad hoc appointments, thereby defeating the very purpose of systematic regular recruitment through UPSC. Ad hoc or stop gap appointees were not normally regularized and given seniority from the date of initial appointment. They were usually given regularization and seniority only after a certain period of service, which used to vary from one year to ten years or even more. When this Court directed on 09.04.1987, that regularized doctors shall have seniority from the date of their initial appointment, it was only a direction intended to regulate the seniority inter se the regularized doctors as this Court found that among the ad hoc appointees, regularization was not being effected in accordance with seniority and some who were subsequently appointed were being regularized earlier and some who earlier appointed were being regularized later. It was not intended to affect the seniority of regularly appointed doctors. The regularized doctors cannot occupy the posts meant for regular doctors, either at entry level or at higher promotional levels.” 10.6. It is but natural corollary under the aforesaid premises that the petitioner cannot be said to have occupied W.P.(C) No.19049 of 2022 Page 44 of 45 continuously in the rank of Group-A (Junior Branch). As is admitted by the parties that he was regularly appointed by virtue of the Health and Family Welfare Department Notification dated 10.10.2018, pursuant to which he joined in OMHS Cadre on 03.11.2018. Therefore, the prayers as made by the petitioner cannot be acceded to. 11. In the wake of aforesaid discussion on the facts and in the circumstances of the case as well as the legal position as enunciated by the Hon’ble Supreme Court of India referred to supra, the writ petition is liable to be dismissed being devoid of merit and this Court does so. 11.1. Accordingly, the writ petition stands dismissed, but in the circumstances, there shall be no order as to costs. (MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 4th September, 2024// Laxmikant/Suchitra Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Sep-2024 10:53:52 W.P.(C) No.19049 of 2022 Page 45 of 45