The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C.(OAC) No. 1087 of 2010 In the matter of an application under Section 19 of the Administrative Tribunal’s Act, 1985. ……………… Sashirekha Mishra & Ors. …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties W.P.C.(OAC) No. 1725 of 2011 Kalyani Swain …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties W.P.C.(OAC) No. 1726 of 2011 Jayanti Mohapatra …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties W.P.C.(OAC) No. 1727 of 2011 Bhagyabati Swain …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties // 2 // W.P.C.(OAC) No. 1728 of 2011 Smrutirekha Baral …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioners : For Opp. Parties :
Legal Reasoning
M/s. R.N. Nayak (Advocate) Mr. N.K. Sahoo (Advocate) Mr. G.N. Rout (Advocate) Mr. R.K. Pattnaik (Advocate) Mr. M.K. Balabantaray, Addl. Govt. Advocate (appearing for State-Opp. Parties) Mr. B.S. Tripathy-1 (Advocate (appearing for Private-Opp. Party Nos. 7 to 11, 13 to 15, 18 & 20 to 24) PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 04.05.2023 & Date of Order: 27.06.2023 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. Since the issue involved in all the aforesaid batch of writ
Decision
petitions is similar, all were heard analogously and disposed of by the present common order. For the sake of brevity, the writ petition in W.P.C.(OAC) No. 1087 of 2010 was taken up as the lead case. Page 2 of 19 // 3 // 2. All these writ petitions have been filed inter alia with the following prayer:- “It is therefore prayed that, this Hon'ble Court may graciously be pleased to issue a Writ of Mandamus or any other Writ by directing the Opp. Parties, more particularly the Opp. Party No.4- (i) to quash the impugned order of tentative seniority list of contractual Staff Nurses as at Annexure-13 and final seniority list as at Annexure-16 issued by the Opp. Party No. 4 in an arbitrary manner; and to quash the impugned orders of regularization of the contractual Staff Nurses passed by the Opp. Party No. 4 as at Annexure-21 basing on the erroneous seniority list as at Annexure-16. (ii) to direct the Opp. Party No.4 to regularize the service of the petitioner w.e.f. the date of completion of 6 years of contractual service by her, i.e. w.e.f. the year 2008 as per the Resolutions issued by the Opp. Party No.1 as at Annexure-R/1(of the Rejoinder Affidavit) & Annexure- 5(WPC); and (iii) to pass any other order(s) as this Hon'ble Court may deem fit and proper.” 3. It is the case of the Petitioners that pursuant to the advertisement issued by the Opp. Party No. 4 for contractual appointment of Staff Nurse in SCB Medical College & Hospital, Cuttack, all the Petitioners participated in the interview and got selected. On being so selected all the Petitioners were appointed as Staff Nurse in SCB Medical College & Hospital, Cuttack on contractual basis vide order issued on 22.03.2002 & 24.12.2002. All the Petitioners on being so appointed on contractual basis were allowed to continue as such in the Page 3 of 19 // 4 // establishment of Opp. Party No. 4 i.e. SCB Medical College & Hospital, Cuttack. 3.1. While the Petitioners were so continuing on contractual basis, Govt. in the Department of Health & Family Welfare in terms of the order passed by the Hon’ble Governor issued a resolution on 27.12.2008 under Annexure-5 prescribing the modalities for regularisation of services of Staff Nurses engaged on contractual basis. As per the said resolution the following guidelines were prescribed for being eligible for such regularisation:- “(i) Staff Nurse who have completed six years of uninterrupted and continuous service may be appointed in regular post. (ii) Only those Staff Nurse who have been recruited by following prescribed procedure/norm including Reservation Rule, may be appointed in regular posts. (iii) For the purpose of regularization, regular posts of Staff Nurse may be created which were abolished earlier in lieu of contractual appointment without creation of any additional post. Such creation of regular posts, may be limited to the number of regular posts abolished earlier for contractual appointment.” 3.2. Even though in terms of the said resolution the Petitioners became eligible for their regularisation in service, but subsequent to issuance of Annexure-5, various clarifications were issued by the Department under Annexure-6 to 10. While issuing such clarification on 29.12.2009 under Annexure-10 it was indicated therein that the period Page 4 of 19 // 5 // of contractual service rendered by the contractual Staff Nurses under any other scheme will not be counted for the purpose of regularisation. Para (3) of the clarification is quoted hereunder: - “(3) The period of contract service rendered by contractual Staff Nurse under any other scheme like ZSS/Swasthya Bikash Samity and Organisations like RSIC & AHRCC are not covered under rules/policy of regularization in Government establishment.” 3.3. It is contended that on coming across the stipulation contained in Para 3 of Annexure-10, Opp. Party No. 4 vide his letter dtd.08.01.2010 under Annexure-11 clearly indicated that taking into account the date of engagement of the Petitioners on contractual basis as Staff Nurses, in terms of the resolution issued by the Govt. under Annexure-5, the Petitioners are otherwise eligible for being regularized in their services. In the said letter under Annexure-11 it was also indicated that the Petitioners were so appointed on contractual basis after due sanction of the post by the Govt. vide different orders. On receipt of Annexure-11, the Department vide its letter dtd.30.01.2010 under Annexure-12 requested the Opp. Party No. 2 to furnish a report candidate wise, who were working as contractual Staff Nurse in SCB Medical College & Hospital, Cuttack for consideration of their cases for regularisation. Page 5 of 19 // 6 // 3.4. But in the meantime Opp. Party No. 4 issued the provisional seniority list of contractual Staff Nurse working in SCB Medical College & Hospital, Cuttack on 02.02.2010 under Annexure-13 by placing the Petitioners below some of the contractual staffs who were never engaged on contractual basis in the establishment of SCB Medical College & Hospital, Cuttack. Even though the Petitioners submitted their objections to such placement in the provisional seniority list so published under Annexure-13 vide Annexure-14, but without considering the same, the final gradation list was published by the Opp. Party No. 4 on 24.02.2010 under Annexure-16 by maintaining the position as was published earlier in the provisional seniority list. 3.5. Basing on such position of the Petitioners in the seniority list so published under Annexure-16, the Private Opp. Parties who were never engaged as Staff Nurses on contractual basis in SCB Medical College & Hospital, Cuttack in terms of the resolution issued under Annexure-5, were regularised vide order dtd.20.03.2010 under Annexure-21. The Petitioners being aggrieved by their position in the provisional seniority list so published under Annexure-13 and the final seniority list published under Annexure-16 as well as the order of regularisation issued in favour of the Private Opp. Parties under Page 6 of 19 // 7 // Annexure-21 are before this Court challenging the same in the aforesaid batch of writ petitions. 4. Mr. R.N. Nayak, learned counsel appearing for the Petitioners in all the cases contended that pursuant to the advertisement issued by the College under Annexure-2 basing on the letters issued by the Department under Annexure-1 series, all the Petitioners on being duly selected were engaged as contractual Staff Nurse in the establishment of Opp. Party No. 4. On being so appointed on contractual basis all the Petitioners were allowed to continue as such under Opp. Party No. 4 without any break. 4.1. It is further contended that while so continuing on contractual basis, Govt.-Opp. Party No. 1 basing on the order issued by the Hon’ble Governor issued a resolution on 27.12.2008 prescribing the modalities for regularisation of services of such Staff Nurses engaged on contractual basis. It is contended that in terms of the said resolution issued under Annexure-5 the Petitioners became eligible for their regularisation as Staff Nurses. However, after issuance of Annexure-5 various clarifications were issued by the department under Annexure- 6 to 10. While issuing the clarification on 29.12.2009 under Annexure-10 it was clarified that the period of contract services Page 7 of 19 // 8 // rendered by the contractual Staff Nurse under any other scheme will not be considered for the purpose of regularisation. 4.2. Taking into account such clarification issued under Annexure-10, Opp. Parties by treating the Petitioners to have been appointed under the Swasthya Bikash Samiti in terms of the advertisement issued under Annexure-2, placed the Petitioners below the Private-Opp. Parties in the seniority list of contractual Staff Nurses published by the Opp. Party No. 4 on 02.02.2010 under Annexure-13. The period of service rendered by the Petitioners from their initial date of joining as contractual Staff Nurse under Annexure-4 was not taken as the initial date of engagement as contractual Staff Nurses in the establishment of Opp. Party No. 4. The said period was excluded on the ground that the Petitioners were engaged under Swasthya Bikash Samiti. 4.3. Learned counsel for the Petitioners contended that in the advertisement issued under Annexure-2 as well as the order of appointment issued vide Annexure-4 series nothing was indicated about the appointment of the Petitioners under any Samiti. But in view of the clarification issued by the Department on 29.12.2009 under Annexure-10, the period of service rendered by the Petitioners as indicated in Annexure-13 was treated to have been rendered under the Samiti and accordingly that period was not taken into consideration Page 8 of 19 // 9 // for the purpose of regularisation of their services in terms of Annexure-5. However, the date of initial engagement of contractual Staff Nurses engaged in different districts was taken as the date of engagement for the purpose of counting the required six (6) years of service as indicated in Annexure-5. 4.4. It is contended that even though the Petitioners on coming across the provisional seniority list so published under Annexure-13 made their objections vide Annexure-14, but without considering the same, final seniority list of contractual Staff Nurse was published on 24.02.2010 under Annexure-16. In the said final seniority list of contractual Staff Nurses, the period of service rendered by the Petitioners from their initial date of joining was not taken as the date of joining in the contractual establishment, on the ground that the Petitioners were engaged through a Samiti i.e. Swasthya Bikash Samiti. 4.5. It is however contended that after issuance of Annexure-10 Opp. Party No. 4 vide his letter dtd.08.01.2010 under Annexure-11 clearly indicated that the Petitioners were engaged as contractual Staff Nurse in the establishment of SCB Medical College & Hospital, Cuttack and all the Petitioners were so appointed as against sanctioned post so sanctioned by the Govt. vide different orders. It is also indicated in Page 9 of 19 // 10 // Annexure-11 that the Petitioners are otherwise eligible for their regularisation in terms of the Resolution issued under Anenxure-5. On receipt of Annexure-11 though Govt. vide letter dtd.20.01.2010 under Annexure-12 requested the Opp. Party No. 2 to furnish a report for consideration of the claim of the Petitioners and such report was also submitted by the Opp. Party No. 4 vide dtd.02.02.2010 under Annexure-15, but without taking note of that final seniority list was published on 24.02.2010 under Annexure-16 by maintaining the position of the Petitioners vis-à-vis Privat Opp. Parties as was published under Annexure-13. 4.6. Learned counsel for the Petitioners contended that because of the clarification issued under Annexure-10, the services of the Petitioners from their initial date of joining in the establishment of SCB Medical College & Hospital, Cuttack was not treated as contractual service for the purpose of regularisation. Not only that because of such wrong placement of the Petitioners in the seniority list so published finally under Annexure-16, the Petitioners were not regularised in terms of Annexure-5, while contractual Staff Nurses not borne in the establishment of SCB Medical College & Hospital, Cuttack were regularised vide the impugned order dtd.20.03.2010 under Annexure- 21. Page 10 of 19 // 11 // 4.7. Learned counsel for the Petitioners further contended that in view of the Office order issued by the Govt.-O.P. No. 1 on 30.12.1999 under Annexure-22, the post of Staff Nurse was treated as a District Cadre post and the Staff Nurses appointed in the establishment of SCB Medical College & Hospital, Cuttack along with the other two Medical Colleges were treated as district cadre posts. In view of Annexure-22, the period of service rendered by the Private Opp. Parties as contractual Staff Nurse in other districts could not have been taken as the service rendered by them in the establishment of SCB Medical College & Hospital, Cuttack and thereby entitling them to get the benefit of regularisation vide the impugned order under Annexure-21. 4.8. It is also contended by the learned counsel for the Petitioners that since the resolution under Annexure-5 was issued by the Govt. in terms of the order passed by the Hon’ble Governor, the clarification issued on 29.12.2009 under Annexure-10 having been issued by the Under Secretary to Govt. of the Department, the same cannot supersede the stipulations contained in Annexure-5. Since in view of the clarification issued on 29.12.2009 under Annexure-10, the contractual service rendered by the Petitioners from their initial date of joining was not taken into account for the purpose of counting the total period of service rendered by them in the establishment of Opp. Page 11 of 19 // 12 // Party No. 4, the said action of the Opp. Parties is not sustainable in the eye of law. It is also contended that because of such clarification issued under Annexure-10 which runs contrary to the resolution issued under Annexure-5, the Petitioners were deprived from being regularised, while issuing such order of regularisation under Annexure-21. The Petitioners were otherwise eligible for such regularisation from the date of their entitlement i.e. on completion of 6 years of contractual service from their initial date of engagement as reflected in Annexure-13. Mr. Nayak accordingly contended that the Petitioners are entitled to get the benefits as prayed for in the writ petitions. 5. Mr. M.K. Balabantaray, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken by the Opp. Party Nos.1 to 4. It is contended that since the Petitioners were all engaged through Walk-in-Interview without observing the reservation rules and the remuneration fixed was to be paid from users fund of S.C.B. Medical College & Hospital Society, Cuttack, the Petitioners in view of the clarification issued by the Govt. on 29.12.2009 were not found eligible for their regularisation in terms of the resolution issued on 27.12.2008 under Annexure-5. It is contended that after issuance of Annexure-5 various clarifications were issued by the Govt. under Page 12 of 19 // 13 // Annexure-6 to 10 and while issuing such further clarification on 29.12.2009 under Annexure-10 it was clearly indicated therein that the period of contractual service rendered under any Samiti are not covered under Rules/policy of regularisation in Govt. establishment. Since the Private-Opp. Parties were continuing as contractual Staff Nurse in other districts, but not under any scheme, their initial date of engagement as contractual Staff Nurse in other district is also taken as the initial date of engagement for the purpose of regularisation in terms of Annexure-5 and subsequent clarification issued under Annexure-6 to 10. 5.1. Mr. Balabantaray, learned AGA further contended that subsequent to the regularisation of the Private-Opp. Parties vide order under Annexure-21, Govt. vide its resolution dtd.21.09.2010 framed further guidelines for the purpose of regularisation and while issuing such a resolution on 21.09.2010, it was decided that the past services of contractual Staff Nurses working under different scheme shall also be considered for the purpose of regularisation as against the post of Staff Nurses. In terms of the said resolution issued on 21.09.2010 the services of the Petitioners were also regularised vide orders issued under Annexure-C/4 series. It is accordingly contended that since the services of the Petitioners have already been regularised, no further claim as made in the writ petition is entertainable. Page 13 of 19 // 14 // 6. Mr. B.S. Tripathy, learned counsel appearing for the Private-Opp. Parties made his submission basing on the stand taken in the counter affidavit filed in the connected W.P.C.(OAC) No. 1725 of 2011. Basing on the stand taken in the said counter Mr. Tripathy, learned counsel appearing for some of the Private-Opp. Parties contended that subsequent to issuance of the resolution under Annexure-5, further clarifications were issued by the Department under Annexure-6 to 10 for consideration of the claim of contractual Staff Nurses for the purpose of their regularisation. It is contended that while issuing such clarifications, Govt. in its clarification issued on 29.12.2009 under Annexure-L/5 / Annexure-10 clearly indicated that the period of contract service rendered by the Contractual Staff Nurses under any other scheme are not covered under Rules/Policy of regularisation in Govt. establishment. It is contended that in view of such clarification issued by the Govt. under Annexure-L/5 Opp. Party No. 4 while publishing the provisional seniority list of contractual Staff Nurse as well as final seniority list under Annexure-16 placed the Petitioners below the Private-Opp. Parties. The period of contract service rendered by the Petitioners under Swasthya Vikash Samiti were not taken into consideration in view of the clarification issued by the Govt. on 29.12.2019 under Annexure-L/5. Since the Private Opp. Parties were engaged on Contractual basis though in other districts not Page 14 of 19 // 15 // under any scheme, their initial date of engagement was taken as the date of appointment for the purpose of regularisation. 6.1. It is also contended that the stipulation contained in the clarification issued on 29.12.2009 under Annexure-L/5 since was never challenged by the Petitioners, the Petitioners are not eligible and entitled to challenge the order of regularisation issued in favour of the Private-Opp. Parties under Annexure-21. 6.2. It is also contended by the learned counsel appearing for the Private-Opp. Parties that subsequent to the order of regularisation issued under Annexure-21 Govt. issued another resolution on 21.09.2010 and in terms of the said resolution the period of service rendered by the Petitioners in Swasthya Vikash Samiti was also counted for computation of 6 years for the purpose of regularisation and in terms of the said resolution the services of the Petitioners have also been regularised vide different orders issued by the Opp. Party No. 4. It is accordingly contended that since the Petitioners have already been regularised in their services in terms of subsequent resolution issued by the Govt. on 21.09.2010, the prayer of the Petitioners as made in the writ petition has become infructuous. 7. I have heard Mr. R.N. Nayak, learned counsel for the Petitioners in all these cases, Mr. M.K. Balabantaray, learned AGA appearing for Page 15 of 19 // 16 // the State-Opp. Parties and Mr. B.S. Tripathy, learned counsel appearing for the Private-Opp. Party Nos. 5, 7, 9, 12 & 13 in connected W.P.C.(OAC) No. 1725 of 2011. On the consent of learned counsel appearing for the Parties, the matter was heard finally at the stage of admission and disposed of by the present common order. 8. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is borne from out of the record that all the Petitioners were engaged as contractual Staff Nurses in terms of the advertisement issued by the Opp. Party No. 4 under Annexure-2. Pursuant to the said advertisement issued under Annexure-2 all the Petitioners were appointed as contractual Staff Nurse vide different orders issued under Annexure-4. As reflected in the said orders nothing was indicated that the Petitioners were engaged through Swasthya Vikash Samiti save and except the condition that the consolidated pay will be paid from the User’s Fee Fund of SCB Medical College & Hospital Society, Cuttack. 8.1. It is also found from the record that Govt. in the Department of Health & Family Welfare while issuing the resolution on 27.12.2008 under Annexure-5 by order of the Hon’ble Governor, indicated therein that the Staff Nurses who have completed 6 years of uninterrupted and continuous service may be appointed in regular post along with other Page 16 of 19 // 17 // conditions. This Court after going through the conditions reflected in Annexure-5 finds that the Petitioners fulfil the conditions so indicated therein. But while issuing the clarification on 29.12.2009 under Annexure-10, for the first time it was indicated that the period of service rendered by the contractual Staff Nurses under any scheme will not be taken under any Rules/Policy of regularisation. It is also found from the record that because of such stipulation contained in the clarification issued on 29.12.2009 under Annexure-10 the period of service rendered by the Petitioners from their initial date of joining was not taken into account while preparing the provisional seniority list of contractual Staff Nurses so published under Annexure-13 and final seniority list published under Annexure-16. It is also found from the record that because of the clarification issued by the Govt. under Annexure-10 the Petitioners were deprived from being regularised in their services in terms of Annexure-5 and Private-Opp. Parties who were working as contractual Staff Nurse in other districts prior to their appointment in the establishment of SCB Medical College & Hospital, Cuttack were regularised vide order dtd.20.03.2010 under Annexure- 21. 8.2. It is also borne from out of the record that the subsequent to the order of regularisation under Annexure-21, Govt. while issuing a fresh resolution on 21.09.2010 decided to count the period of service Page 17 of 19 // 18 // rendered under any Samiti for the purpose of regularisation and in terms of the said resolution dtd.21.09.2010 the services to the Petitioners have been regularised vide different orders issued under Annexure-C/4 series. After going through the resolution issued under Annexure-5 vis-à-vis the clarification issued under Annexure-10, it is the view of this Court that since the stipulations contained in Annexure-5 was issued in terms of the order issued by the Hon’ble Governor, the clarification issued on 29.12.2009 under Annexure-10 since has been issued by the Department at the level of Under Secretary, it cannot supersede the stipulations contained in Annexure- 5. Since in view of such stipulation contained in Para-3 of Annexure- 10, the Petitioners were deprived from being regularised on the face of such order of regularisation issued on 21.09.2010, the said action of the State-Opp. Parties is not sustainable in the eye of law. 8.3. In view of the discussions made hereinabove, it is the view of this Court that the Petitioners are eligible and entitled for their regularisation from the date the Private-Opp. Parties were so regularised vide order dtd.20.03.2010 under Annexure-21. However, this Court directs the State-Opp. Parties to regularise the service of the Petitioners as Staff Nurse from the date Private-Opp. Parties were so regularised vide order dtd.20.03.2010 under Annexure-21, but on notional basis. This Court directs the Opp. Party Nos. 1, 2 & 4 to pass Page 18 of 19 // 19 // necessary order by antedating the date of regularisation of the Petitioners from the date the Private-Opp. Parties were so regularised, within a period of two (2) months from the date of receipt of this order. 9. All the writ petitions are accordingly disposed of with the aforesaid observation and direction. Orissa High Court, Cuttack Dated the 27th of June, 2023/Sneha (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Jr. Stenographer Reason: Authentication Location: Cuttack Date: 03-Jul-2023 10:57:22 Page 19 of 19