The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No. 1246 of 2022 1. State of Odisha, represented through its Additional Chief Secretary to Govt., Health and Family Welfare Department, At- Lok Seva Bhawan, Bhubaneswar, Dist-Khurda. 2. The Director, Health Services, Odisha, At- Heads of Dept. Building, Bhubaneswar, Dist- Khurda. 3. The Chief District Medical & Public Health Officer, Koraput, At/P.O./Dist.- Koraput. …. Appellants Mr. M.K. Khuntia, Addl. Govt. Advocate -versus- 1. Malaya Kumar Sahoo, aged about 40 years, S/o. Balaram Sahoo, resident of Lamtaput, serving as Dist.- Koraput, at present Laboratory Technician on contractual basis under NHM under CHC, Lamtaput, P.S.- Machhakund, Dist.- Koraput. 2. Rohitaswa Jena, aged about 42 years, S/o. Suryamani Jena, resident of Bandhugaon, Dist- Koraput at present working as contractual Laboratory Technician under NHM under District Headquarters Hospital, Koraput, Dist- Koraput. 3. Santoshi Singh, aged about 40 years, D/o. Nimai Charan Singh, resident of Aditya Nagar (near Ambedkar College), Dist- Koraput, at present serving as contractual Laboratory Technician under NHM under office of DTC, Page 1 of 12 Koraput (SLNMCH & H, Koraput), Dist- Koraput. …. Respondents
Decision
CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO ORDER 18.07.2024 Order No. I.A. No.3064 of 2022 02. This matter is taken up through Hybrid mode. 2. This application has been filed seeking condonation of delay of 253 days in preferring the present intra-Court appeal. 3. We have heard learned Additional Government Advocate for the State-appellants and learned counsel appearing for the respondents. 4. In the present appeal, no objection has been filed to the application for condonation of delay. During the course of argument, learned counsel appearing on behalf of the respondents has vehemently opposed the prayer for condonation of delay and submitted that the appeal deserves to be dismissed on the ground of delay, in the absence of any sufficient explanation put forth by the appellant-State of Odisha in its application seeking condonation of delay. 5. In the application for condonation of delay, it has been stated that after getting the impugned order dated 11.12.2021, the Page 2 of 12 appellants decided to prefer a writ appeal. Thereafter, vide letter dated 20.05.2022, the relevant records were transmitted to the learned Advocate General, Odisha, which was received in the Office of the learned Advocate General on 23.05.2022. The file was placed before the learned Advocate General, whereafter, the same was entrusted to one of the Additional Government Advocates for preparation of memorandum of appeal. Upon examination of the records and necessary discussions, the memorandum of appeal was prepared and filed on 20.09.2022. 6. After having gone through the reasons assigned in the application seeking condonation of delay, we are of the opinion that the reasons for delay are not fully satisfactory. However, considering the facts that the judgment placing reliance on which the order impugned in the present intra-Court appeal has been set aside, we deem it proper to condone the delay. 7. We are, therefore, not convinced with the submission advanced on behalf of the respondent opposing the prayer for condonation of delay, specially for the reason that the judgment/order dated 11.12.2021 passed in W.P.(C) No.33301 of 2020 which is the basis for the order impugned in the present intra-court appeal, has already been set aside. 8. It is further noteworthy that the Supreme Court in the case of Collector, Land Acquisition, Anantnag v. Mst. Katiji; (1987) 2 SCC 107, has noticed that when the State is an applicant, praying for condonation of delay, it is common knowledge that on account Page 3 of 12 of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing and passing-on-the-buck ethos delay on the part of the State, is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. 9. The Supreme Court in State of Haryana Vs. Chandra Mani reported in (1996) 3 SCC 132 made further observations as under: “….It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise - is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and the characteristic Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice- oriented process.” functioning the of of 10. In Tehsildar (LA) v. K.V. Ayisumma; (1996) 10 SCC 634, the Supreme Court has observed as under:- “2. It is now settled taw that when the delay was occasioned at the behest of the Government, it would be very difficult to explain the day today delay. The Page 4 of 12 transaction of the business of the Government being done leisurely by officers who had no or evince no personal interest at different levels. No one takes personal responsibility in processing the matters expeditiously. As a fact at several stages they take their own time to reach a decision. Even in spite of pointing at the delay, they do not take expeditious action for ultimate decision in filing the appeal. This case is one of such instances. It is true that Section 5 of the Limitation Act envisages explanation of the delay to the satisfaction of the Court and in matters of Limitation Act made no distinction between the State and the citizen. Nonetheless adoption of strict standard of proof leads to grave miscarriage of public justice. it would result in public mischief by skilful management of delay in, the process of filing the appeal. The approach of the Court would be pragmatic but not pedandic. Under those circumstances, the rightly adopted correct Subordinate Judge has approach and had condoned the delay without insisting upon explaining every day's delay Sn filing the review application in the light of the law laid down by this Court. The High Court was not right in setting aside the order. Delay was rightly condoned.” 11. It is trite that the provisions conferring discretion on the Courts to condone the delay in filing an appeal/application must receive a liberal construction so as to advance substantial justice and generally, delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. 12. In Sheo Raj Singh (Deceased) through Legal Representatives v. Union of India; (2023) 10 SCC 531, the Supreme Court has Page 5 of 12 referred to the law laid down by the Supreme Court in case of G. Ramegowda v. LAO; (1988) 2 SCC 142, paragraphs 15 and 17 of which read thus: “15. In litigations to which Government is a party there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not the share characteristics of decisions of private individuals. *** *** *** 17. Therefore, in assessing what, in a particular case, constitutes “sufficient cause” for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A therefore, not latitude certain amount of impermissible. It is rightly said that those who bear responsibility of Government must have “a little play at the joints”. Due recognition of these limitations on governmental functioning — of course, within reasonable limits — is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put government and private parties on the same footing in all respects in such matters. Implicit in the very nature of governmental is procedural delay functioning incidental to the decision-making process.” is, Page 6 of 12 13. In case of Sheo Raj Singh (supra), the Supreme Court observed, taking into account various decisions, that it is to be ensured that substantive rights of private parties and the State are not defeated at the threshold, simply due to technical considerations of delay. It is also worthwhile mentioning that in case of Sheo Raj Singh (supra), the Supreme Court was hearing an appeal against a discretionary order of the High Court granting the prayer for condonation of delay. 14. In the present batch of cases, based on what has been stated in the application seeking condonation of delay as has been noted above, it cannot be inferred that there was any intentional dilatory tactics adopted by the appellants. The reasons explained may not appear to be sufficient but the explanation, in the Court’s opinion, is bona fide. In the present set of facts, when the judgment dated 11.12.2021 passed in W.P.(C) No.33301 of 2020, which is the basis for granting the respondent relief, has been set aside in an intra- court appeal, we are of the considered view that it would cause miscarriage of justice if the delay is not condoned. 15. Accordingly, the interlocutory application seeking condonation of delay is allowed and the delay thereof is condoned. W.A. No. 1246 of 2022 . 16. In the present intra-Court appeal, the appellants-State of Odisha have put to challenge an order dated 11.12.2021 passed by a learned Page 7 of 12 Single Judge of this Court in W.P.(C) No.33306 of 2020. The said impugned order reads thus: “This matter is taken up through hybrid mode. 2. Heard learned counsel for the parties. 3. It is agreed by learned counsel for the parties that the issue involved in this case is analogous to one involved in W.P.(C) No.33301 of 2020, W.P.(C) No.32900 of 2020, W.P.(C) No.33346 of 2020 & W.P.(C) No.33366 of 2020, which have been allowed vide common judgment delivered today (11.12.2021) by this Court. 4. Therefore, in view of the detailed reasons stated in the judgment and order dated 11.12.2021 passed in W.P.(C) No.33301 of 2020, W.P.(C) No.32900 of 2020, W.P.(C) No.33346 of 2020 & W.P.(C) No.33366 of 2020, this writ petition stands disposed of in terms of the said judgments.” (Emphasis added) 17. The judgment and order dated 11.12.2021 passed in W.P.(C) No.33301 of 2020 has been set aside by a Division Bench of this Court by a judgment and order dated 20.06.2024 rendered in W.A. No.687 of 2022 (State of Odisha & others v. Akhila Kumar Naik & others). 18. Coming to the merits of the case, it is an undisputed fact that the respondent(s) do not have the qualification of Diploma in Medical Laboratory Technology from Government Medical College and Hospital of the State or from any private institution recognized either by the Government of Odisha or All India Page 8 of 12 Council of Technical Education (AICTE). It has been held by the Division Bench of this Court in case of State of Odisha v. Akhila Kumar Naik (supra) that a person having qualification of Diploma in Medical Laboratory Technology from an institution which is neither recognized by the Government of Odisha nor by the AICTE cannot be said to be possessing requisite qualification for application of Rules 4 and 5 read with Rule 9 of the Odisha Laboratory Technician Service (Method of Recruitment and Conditions of service) Rules, 2019 disagreeing with the view taken by the learned Single Judge in case of Akhila Kumar Naik (supra). 19. The Division Bench in case of Akhila Kumar Naik (supra), has concluded in paragraph 46 as under: “46. Situated thus, in view of the above noted discussions, we irresistible conclusions: following reach (i) A person having qualification of Diploma in Medical Laboratory Technology from an institution which is neither recognized by the Government of Odisha nor by AICTE cannot said to be possessing the requisite qualification for application of Rules 4 and 5 read with Rule 9 of the Rules of 2019. (ii) In terms of the Rules of 2019, even in the absence of approval/recognition of AICTE of an institution, a Diploma in Medical Laboratory Technology granted by such institution can satisfy the requirement of minimum qualification as laid down institution has recognition by the State Government of Odisha. in column 4, if such Page 9 of 12 (iii) The opinion of the learned Single Judge to the effect that the respondents fulfilled the minimum eligibility criteria as laid down in the Rules of 2019 them benefit of regularization by for giving applying the provisions of Rules 4 and 5 of the said Rules, cannot be accepted. (iv) The Rules of 2019 framed under Article 309 of the Constitution has force of law which bind everyone including this Court exercising power of judicial the Constitution of India, unless they are challenged on limited permissible grounds. review under Article 226 of (v) The High Power Committee constituted for the said purpose had no other option, but to follow the provisions prescribed under the Rules of 2019, the which minimum educational qualification such absorption. in no uncertain terms prescribes for (vi) The direction which has been issued by learned Single Judge for regularization of the services of the respondents, situated thus, is against the law, i.e., the Rules of 2019 framed under Article 309 of the Constitution of India. No direction or any writ in the nature of mandamus can be issued in disobedience of law, in our considered opinion. (vii) Power of relaxation is a matter which can be exercised by the competent authority under Rule 20 when it is necessary or expedient to do so in public interest. This Court exercising the power of judicial review should ordinarily not issue such direction as to relax the eligibility criteria which is primarily within the domain of the competent authority, though, the Court may direct consideration for such relaxation. Page 10 of 12 (viii) We are not restraining the appellants from exercising the power of relaxation available under Rule 20 of the Rules of 2019 in the matter of regularization of these respondents. We, however, observe that if any such decision is taken, it shall be incumbent upon the concerned authorities to record satisfaction about the genuineness of the institutions where the respondents claim to have pursued their courses of DMLT and such relaxation would not be in breach of any other law in force. (ix) Supreme Court’s decisions on the point of regularization of service, relied upon on behalf of the respondents, have no application, in the present set of facts, governed by the statutory rules framed under the proviso to Article 309 of the Constitution of India. (x) We do not agree with the view taken by the learned Single Judge that since on the date of appointment of the respondents on contractual basis, there was no prescription that they must have acquired the requisite qualification from an institution recognized/approved by the AICTE, a right accrued in their favour after completion of six years of service for regularization. Recruitment, absorption, service condition of employees in a service under the State are governed by the service rules. In the present case, Rules of 2019 have been framed in exercise of power conferred by the proviso to Article 309 of the Constitution in supersession of all the orders and instructions issued in this regard. A person’s claim for appointment/ regularization shall be governed strictly in terms of the provisions of the said Rules, till they are declared invalid. Page 11 of 12 (xi) The reasoning assigned by the learned Single Judge that the case of the present respondents stand on the same footing as that of the persons whose services were regularized by the orders passed by the OAT as noted above cannot be accepted, since such orders were passed prior to coming into force of the Rules of 2019 and the cases of the respondents were to be considered under the said Rules.” 20. It is not in dispute that the facts of the present case are squarely covered by the decision rendered in case of State of Odisha v. Akhila Kumar Naik (supra). Since the order passed by the learned Single Judge in Akhila Kumar Nayak v. State of Odisha (supra) has been set aside by the Division Bench, in the present case, the impugned order of the learned Single Judge is set aside. The appeal is, accordingly, allowed. 21. All the interlocutory applications stand disposed of. There shall be no order as to costs. Chief Justice (Chakradhari Sharan Singh) Judge (Savitri Ratho) SK Jena/Secy. Signature Not Verified Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 27-Aug-2024 12:03:52 Page 12 of 12