The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No. 1995 of 2024 Pravati Sahoo, aged 51 years, W/o. Indramani Sahu, Staff Nurse, CGHS Wellness Centre-II, Kharvelnagar, Unit-III, Bhubaneswar, Dist.: Khurda. -Versus- .…Appellant 1. Union of India, represented through Secretary to Government of India, Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi. 2. Director General, Central Government, Health Scheme, Nirman Bhawan, New Delhi, 3. Addl. Director, Central Government, Health Scheme, A.G. Colony, Unit-IV, Bhubaneswar, Dist.: Khurda. ....Respondents Advocates appeared in this case: For the Appellant: Mr. Bhabani Sankar Tripathy, Advocate For Respondents:
Legal Reasoning
Mr. P.K. Parhi, Deputy Solicitor General CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO JUDGMENT 29.07.2024 W.A. No. 1995 of 2024 Page 1 of 9 Chakradhari Sharan Singh, CJ. 1. The present intra-Court appeal has been filed putting to challenge a judgment dated 25.06.2024 passed by a learned Single Judge of this Court in W.P.(C) No.16471 of 2016 whereby the said writ petition filed by the appellant has been dismissed. 2. The appellant in the said writ petition had sought for quashing of the orders dated 07.04.2016 and 11.05.2016 passed by the concerned respondents declining to regularize her services as Staff Nurse at CGHS Wellness Centre-II, Kharvelnagar, Unit-III, Bhubaneswar (CGHS Wellness Centre). She had also sought for a direction to absorb/regularize her services against the regular vacancy of Staff Nurse at CGHS Wellness Centre, Bhubaneswar. 3.
Decision
It is evident from the pleadings in the writ petition itself that a decision dated 24.02.2004 was taken by respondent No.1 on for opening of a new dispensary under CGHS in Bhubaneswar and other places and an advertisement was issued. The said decision/ communication dated 24.02.2004 indicated the post of officers and staff for the dispensary. It was indicated in the said letter that for the initial period the post shall be filled up by CGHS on contract basis from retired staff of the Central Government. A private company namely, Team Lease Services (P) Ltd., Mumbai was engaged as a service provider for providing the manpower services including that of a Staff Nurse. The said Team Lease Services (P) Ltd., Mumbai (in short „service provider‟) issued an advertisement on 27.04.2005 inviting applications for engagement against various posts including W.A. No. 1995 of 2024 Page 2 of 9 the post of Staff Nurse, through Walk-in-interview. It was indicated that remuneration shall be attractive and will be matching to industry standards. In the said walk-in-interview notice, the aspirants were required to appear at Hindustan Latex Family Planning Promotion Trust, Bhubaneswar. The appellant was selected by the service provider as a Staff Nurse. 4. It is also the petitioner‟s case that she was engaged as Staff Nurse on contractual basis. She joined the post on 23.06.2005. Later, the service provider expressed its unwillingness to provide the service to CGHS and, therefore, a tender was invited from the local companies to provide services of Staff Nurse on contract basis in absence of regular vacancy. It was decided to give preference to the existing staff Nurse while inviting the tenders locally. Admittedly, no post of Staff Nurse was duly created against which the appellant could be said to be working on contractual basis. On 31.12.2015 one regular post of Staff Nurse was created diverting a post from CGHS, New Delhi to Bhubaneswar. Respondent No.1 issued guidelines on 07.04.2016 for filling up of the post of Staff Nurse and Pharmacist through written examination for the post in question. It is the appellant‟s case as disclosed in the writ petition that the guidelines in form of executive instructions would not override the then existing recruitment Rules of 2015 which did not stipulate any written examination. The appellant filed a representation for her absorption which was rejected on 11.05.2016. W.A. No. 1995 of 2024 Page 3 of 9 5. The appellant thereafter approached the Central Administrative Tribunal (CAT) by filing an original application bearing OA No.616 of 2016 for continuance of her service by way of regularization. The said application was disposed of as not maintainable, apparently because the appellant, whose services were provided by a service provider to the CGHS, did not come within the scope of provisions of the Administrative Tribunals Act, 1985. The appellant thereafter filed the aforesaid writ application before this Court which has been dismissed by the impugned judgment. 6. The learned Single Judge has dismissed the appellant‟s case mainly on the ground that the appellant was not selected against the available sanctioned vacancy by following the rules and regulations governing entry into the services. The learned Single Judge noted that the petitioner‟s engagement was through an agency and there was no contract of the Central Government with the appellant. The appellant knew this well when the appellant had left her previous contractual engagement with the State Government to join the present post through a manpower service provider. She knew it well that her engagement was only on contractual basis for a certain period of time. The regular post came into existence only on 31.12.2015. In such view of the matter, the learned Single Judge dismissed the writ petition. 7. Mr. B.S. Tripathy, learned counsel appearing for the appellant has vehemently argued that it is an admitted fact that the appellant discharged her duties as Staff Nurse at CGHS Wellness Centre, Bhubaneswar right from her initial engagement in 2005 till W.A. No. 1995 of 2024 Page 4 of 9 creation of regular post in 2015. He has submitted that though she was engaged by a private party (service provider) to provide service to CGHS, there was an employer and employee relationship between the appellant and the respondent No.1. To bolster his contention, he has relied on the Supreme Court‟s decision in the case of Dharangadhara Chemical Works Ltd. v. State of Saurashtra and Others, AIR 1957 SC 264 which relates to the definition of a „workman‟ under section 2(s) of the Industrial Disputes Act, 1947 (ID Act). He has also relied on the decision of the Supreme Court in the case of State of U.P. and Another Vs. Audh Narain Singh and Another, AIR 1965 SC 360 to submit that there existed employer and employee relationship between the appellant and the respondent, though the appellant‟s engagement was by a service provider. He has next relied on a Single Bench decision of this Court dated 19.01.2022 rendered in W.P.(C) (OAC) No.2430 of 2015 (Rudrakanta Panda Vs. State of Odisha and Others) and batch, wherein the learned Single Judge relying on a Division Bench decision in the case of State of Odisha and others Vs. Jatin Kumar Das and Others (WPC No.6661 of 2018) decided on 10.05.2018 has held that since the appointments were made with the concurrence of the Finance Department and the posts were exclusively created by the Government by abolition of equal number of regular posts, the petitioners in the said case were entitled to regularization. 8. Mr. P.K. Parhi, learned Deputy Solicitor General appearing for the respondents has argued that there is no illegality in the impugned judgment passed by the learned Single Judge inasmuch as it W.A. No. 1995 of 2024 Page 5 of 9 is an admitted fact that the appellant was engaged by a service provider on contractual basis for providing services to CGHS. Further when the appellant was engaged to provide services as Staff Nurse, the said post was not created. Further she knew it well right from the beginning that her appointment was on contractual basis and she had no right to be absorbed in service. 9. We have heard learned counsel appearing for the appellant and the respondents. 10. The moot questions which arise for consideration in the present appeal are:- (i) Whether the impugned judgment passed by the learned Single Judge denying the appellant‟s claim for regularization suffers from any legal infirmity requiring this Court‟s interference in an intra-court appeal in the facts and circumstances of the case ? (ii) Whether a person selected by a service provider to an establishment within the meaning of Article 12 of the Constitution of India can claim regularization in the said establishment on the ground of continuous service ? 11. To address the issue it would be profitable to notice at the outset the observations made in paragraphs 47 and 49, the Supreme Court‟s decision in the case of State of Karnataka Vs. Uma Devi (3) reported in (2006) 4 SCC 1, which are as under: W.A. No. 1995 of 2024 Page 6 of 9 “47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. *** *** *** 49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able W.A. No. 1995 of 2024 Page 7 of 9 to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.” (Underscored for emphasis) 12. The case of Uma Devi (3) (supra) was considered in case of Official Liquidator Vs. Dayanand reported in (2008) 10 SCC 1 when the Supreme Court made the following observation in paragraph 52 :- appear to have “52. … In this context, we may also mention that though the Official Liquidators issued advertisements for appointing the company-paid staff and made some sort of selection, more qualified and meritorious persons must have shunned from applying because they knew that the employment will be for a fixed term on fixed salary and their engagement will come to an end with the conclusion of liquidation proceedings. As a result of this, only mediocres must have responded to the advertisements and joined as company-paid staff. In this scenario, a direction for absorption of all the company-paid staff has to be treated as violative of the doctrine of equality enshrined in Articles 14 and 16 of the Constitution.” (Emphasis added) 13. In our considered view, the learned Single Judge has rightly rejected the appellant‟s claim for regularization against a post which was not created. Secondly, we are of the considered view that a selection made based on walk-in-interview by a service provider for providing services to the State within the meaning of Article 12 of the Constitution of India cannot be treated to be a selection satisfying the requirements of Articles 14 and 16 of the Constitution of India. The appellant knew that she was being engaged by a service provider. The payments were made to her by the service provider. She could not W.A. No. 1995 of 2024 Page 8 of 9 claim a legitimate expectation of absorption/regularization as she knew when she was appointed that her appointment was temporary and the respondents had not given nor could have given an assurance of regularization without following the regular recruitment process. As held in the case of Dayanand (supra), such “company appointed” persons cannot claim to be regularized alleging violation of Article 21 of the Constitution. Also, the equity in favour of millions who are waiting to be employed through regular recruitment process outweighs the equity in favour of a number of such persons, who claim regularization. 14. Coming to the decision in the case of Rudrakanta Panda (supra), we notice that an intra-court appeal giving rise to W.A. No.470 of 2024 was preferred, which came to be dismissed by a Division Bench of this Court on the ground of limitation. In a Special Leave Petition filed by the State of Odisha, the said order passed by this Court has been stayed on 12.07.2024, by the Supreme Court. 15. For the reasons stated above, we do not find any merit in the present intra-Court appeal, which is accordingly dismissed. Chief Justice (Chakradhari Sharan Singh) Signature Not Verified Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 29-Aug-2024 17:18:58 SK Jena/Secy. (Savitri Ratho) Judge W.A. No. 1995 of 2024 Page 9 of 9