The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C.(OAC) No.2335 of 2010 In the matter of an application under Section 19 of the Administrative Tribunal’s Act, 1985. ……………… Ramesh Chandra Dash …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioner : M/s. Somadarsan Mohanty (Advocate) For Opp. Parties :
Legal Reasoning
Mr. B. Panigrahi Addl. Standing Counsel Mr. Krushna Chandra Dash, Advocate (Opp. Party Nos. 9, 10, 16 & 17) PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 24.08.2023 and Date of Judgment: 05.09.2023 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. The Petitioner has been filed the present writ petition inter alia with the following prayer:- “In view of the facts stated in paragraph-7 of the Application, the applicant prays that this Hon’ble Tribunal may be pleased to:- Quash order No. 3390 dt.26.06.2010 (Annexure-13) passed by Chief Dist. Medical Officer, Kendrapara appointing 13 outsiders as Health Worker (Male) on Kendrapara District; (i) // 2 // (ii) Direct Respondents to promote the Applicant to the post of Health Worker (Male) with effect from 26.06.2010 with all service benefits; (iii) Direct the Respondents No. 3 & 4 to consider the case of the applicant for promotion to the post of Junior Clerk in accordance with the Orissa Ministerial Services (Method of Recruitment to the post of Junior Clerks in the District Offices) Rules, 1985 as amended in the year 2001; And pass such other order/orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case this original the in and Application.” justice and allow interest of (iv) 2. It is contended that the Petitioner with having qualification of HSC pass, he was appointed as Senior Helper (Class IV), where he joined on 26.12.1985. While so continuing pursuant to the letter issued by the Directorate of Family Welfare on 21.12.1993 under Annexure-14, Petitioner since was having HSC pass certificate, he was allowed to undergo the required training for his selection as an in-service candidate to the post of MPHW (Male). Not only that in terms of the letter issued on 21.12.1995 under Annexure-14 and on successful completion of the training, Director of Family Welfare vide his letter dtd.21.06.1996 under Annexure-15 requested the Opp. Party No. 4 to sponsor the names of eligible Class IV employees who have passed the High School certificate examination and have undergone the MPHW (Male) training during the session 1996-97 for consideration of their claim for appointment as against the post of MPHW (Male). Page 2 of 10 // 3 // 2.1. It is contended that in terms of the stipulation contained under Annexure-14 & 15, similarly situated Class IV employees with having HSC qualification and who have undergone the required training were appointed as against the post of MPHW (Male) vide office order dtd.16.11.1996 of Opp. Party No. 4 under Annexure-16. Not only that similarly situated Class IV employees working in the establishment of CDMO, Jajpur were promoted to the post of MPHW (Male) vide office order dtd.09.07.1999 under Annexure-17. 2.2. It is also contended that vide office order dtd.23.11.2005 of CDMO, Kendrapara under Annexure-18, a no. of similarly situated Class IV employees were appointed as Health Worker (Male). However, on the face of such benefit being extended in favour of Class IV employees with having HSC qualification, when the claim of the Petitioner was not considered and Opp. Party No. 3 issued an advertisement to fill up the post of MPHW(Male) by way of direct recruitment and provided appointment to Private-Opp. Parties basing on the said advertisement issued under Annexure-1, Petitioner challenging such action of the Opp. Parties in filling up the post of MPHW (Male) without considering the claim of the Petitioner for his promotion to the said post, filed the present writ petition inter alia with the prayer as indicated hereinabove. Page 3 of 10 // 4 // 3. It is contended by the learned counsel for the Petitioner that the Petitioner since his initial appointment as against a Class IV post is continuing as such till date and in spite of the letters issued under Annexure-14 & 15 and consequential benefit extended in favour of similarly situated Class IV employees vide orders under Anenxure-16 to 18, the Petitioner is yet to get the benefit of promotion as against the post of MPHW (Male). 3.1. It is also strenuously argued by Mr. Mohanty, learned counsel for the Petitioner that since the Petitioner is continuing as against a Class IV post from his initial date of appointment way back from the year 1985 and he fulfills the criteria for his promotion to the rank of Health Worker (Male), it is the responsibility of the Govt. being a model employer to provide promotional avenue in favour of the Petitioner and similarly situated Class IV employees. In support of his aforesaid submission Mr. Mohanty, learned counsel for the Petitioner relied on a decision of the Hon’ble Apex Court in the case of Raghunath Prasad Singh Vs. Secretary, Home (Police) Department, Government of Bihar & Ors. (AIR 1988 SC 1033). Hon’ble Apex Court in Para 4 of the said Judgment has held as follows:- “4.Before we part with the appeal, we would like to take notice of another aspect. In course of hearing of the appeal, to a query made by us, learned counsel for the appellant indicated the reason as to why the appellant was anxious to switch over to the general cadre. He relied upon two or three communications Page 4 of 10 // 5 // in service. In which are a, part of the record where it has been indicated that there is no promotional opportunity available in the wireless organisation. Reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence the absence of promotional prospects, the service is bound to degenerate and stagnation kills the desire to serve properly. We would, therefore, direct the State of Bihar to provide at least two promotional opportunities to the officers of the State Police in the wireless organisation. within six months from today by appropriate amendments of Rules. In case the State of Bihar fails to comply, with this direction, it should, within two months thereafter, give a fresh opportunity to personnel in the Police wireless organisation to exercise option to revert to the general cadre and that benefit should be extended to everyone in the wireless organisation.” 3.2. Similarly, Mr. Mohanty relied on another decision of the Hon’ble Apex Court in the case of CSIR & Anr. Vs. K.G.S. Bhatt & Anr. (AIR 1989 SC 1972). Hon’ble Apex Court in Para 9 of the said Judgment has held as follows:- in Engineering, he “9.That then is the scope of bye-law 71(b)(i). But that does not mean that we should interfere with the relief granted to respondent 1. By pointing out the error that crept into the decision of the Tribunal, we need not take to its logical end which will defeat justice. Respondent I is not a lay-man. He is a highly qualified engineer. Although joined service with a diploma later passed Bachelor of Engineering (B. E)' and also acquired M.Tech. degree and one, more diploma (D.P.M.). He was, however, left without opportunity for promotion for about twenty years. This is indeed a sad commentary on the appellant's management. It is often said and indeed, adroitly, an organisation public or private does not hire a hand' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive Page 5 of 10 // 6 // for personnel development as well. (See: Principles of Personnel Management by Flipo Edwin. B.4th Ed. p. 246). Every management must provide realistic opportunities for promising employees to move upward. "The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors.". (See: Personnel Management by Dr. Udai Pareek p. 277). There cannot be any modern management much less any career planning, man- power development, management development etc. which is not related to a system of promotions. (See: Management of Personnel in Indian Enterprises by Prof. N. N. Chatterjee, Chap. 12, p. 128). The appellant appears to have overlooked this basic requirement of management so far as respondent I was concerned till N. R. and A. S. were introduced.” 3.3. Mr. Mohanty also relied on another decision of the Hon’ble Apex Court in the case of Dr. Ms. O.Z. Hussain Vs. Union of India & Ors. (AIR 1990 SC 311). Hon’ble Apex Court in Para 7 & 8 of the said Judgment has held as follows:- “7.This Court, has on more than one occasion, pointed out that provision for promotion. increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why, while similarly placed officers in other Ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage, In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the 'A' category scientists in the non-medical wing of the Directorate. Page 6 of 10 // 7 // 8. This Writ Petition is allowed and the following directions are issued: 1. Within four months from today, the Ministry of Health and Family Welfare of the Union of India shall frame a set of appropriate rules, inter alia, providing suitable promotional avenue for the 'A' Group scientists in the non-medical wing of the establishment of Director General of Health Services; 2. These ‘A’ Goup Scientists shall be entitled to book allowance, higher degree allowance, risk allowance and conveyance allowance at the same rate as is admissible to doctors in the medical wing in the Directorate w.e.f.1-4-1989. 3. Government shall examine the tenability of the claim of equal pay scales for this category of officers within four months from today.” 4. Mr. B. Panigrahi, learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the Opp. Party Nos. 1 to 4. It is contended that though in terms of the letters issued under Annexure-14 & 15 similarly situated Class IV employees were given promotion by different CDMOs and Opp. Party No. 4 also initiated such process, but in view of the decision taken by the Govt. not to fill up any base level vacant post in Class III and Class IV on regular basis neither by way of promotion nor by way of direct recruitment because of financial emergency, the case of the Petitioner could not be considered for his promotion. However, taking into account the requirement, advertisement under Annexure-1 was issued and Private opp. Parties after facing due recruitment process were duly selected and appointed vide order dtd.27.11.2009 under Annexure-4. It is Page 7 of 10 // 8 // accordingly contended that in view of the restrictions imposed by the Govt. not to fill up any base level post in Class III and Class IV either by way of direct recruitment or by way of promotion, Opp. Party No. 4 is not in a position to consider the case of the Petitioner for his promotion to the post of Health Worker (Male). 5. To the submissions made by Mr. Panigrahi, learned Addl. Standing Counsel, learned counsel for the Petitioner contended that the restrictions so imposed by the Govt. with regard to filling up the base level vacant post in Class III and Class IV has since been withdrawn and posts have been filled up by way of direct recruitment, which is under challenge in the present writ petition. Accordingly, it is contended that Opp. Parties be directed to take a decision on the claim of the Petitioner to get the benefit of promotion to the post of MPHW (Male) as he possesses the required qualification of HSC pass and he has also undergone the required training. It is also contended that in view of the decisions relied on by the learned counsel for the Petitioner, Govt. is required to create promotional avenue in favour of the Petitioner and similarly situated Class IV employees. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is not disputed by either of the Parties that the Petitioner is continuing as against Class IV post from his initial date of appointment. It is also not disputed Page 8 of 10 // 9 // that pursuant to the stipulations contained in Annexure-14 & 15, similarly situated Class IV employees with having qualification of HSC pass and on acquisition of the required training got the benefit of promotion to the post of MPHW (Male). But it is found from the record that in view of the ban imposed by the Govt. directing not to fill up base level Class III and Class IV post either by way of direct recruitment or by way of promotion, the case of the Petitioner was not considered. But it is found that Opp. Party No. 4 issued the advertisement under Annexure-1 inviting application for direct recruitment as against the post of Health Worker (Male). Pursuant to the said advertisement issued under Anenxure-1, Private Opp. Parties after being duly selected were appointed vide order dtd.27.11.2009 under Annexure-4. 6.1. It is also found that in terms of the order issued under Annexure- 4, Private Opp. Parties are continuing as MPHW (Male) under the Opp. Party No. 4. Therefore, considering the submission made by the learned counsel appearing for the Parties and the fact that Private Opp. Parties after being duly selected and appointed vide order under Annexure-4 are continuing as against the post of MPHW (Male), this Court is not inclined to interfere with the selection and appointment and the prayer made in that regard is hereby rejected. Page 9 of 10 // 10 // 6.2. However, taking into account the benefit extended in favour of similarly situated Class IV employees with having qualification of HSC pass vide order under Annexure-16 to 18 and the stipulations contained under Annexure-14 & 15 as well as the decisions relied on by the learned counsel for the Petitioner as cited (supra) and the appointment of candidates to the post of MPHW (Male) by way of
Decision
direct recruitment, this Court while disposing the writ petition, directs Opp. Party Nos. 1 & 2 to take a decision on the claim of the Petitioner to get the benefit of promotion as against the post of MPHW (Male) and/or Health Worker (Male) with passing of an appropriate order/direction. Such a decision shall be taken by the Opp. Party Nos. 1 & 2 within a period of two (2) months from the date of receipt of this order. 7. The writ petition is accordingly disposed of with the aforesaid observation and direction. Orissa High Court, Cuttack Dated the 5th of September, 2023/Sneha (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Sep-2023 19:29:10 Page 10 of 10