The High Court
Case Details
Order No. 05. IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.649 of 2018 Purna Chandra Jena Petitioner Mr. Biswa Bihari Mohanty, Advocate …. -versus- State of Odisha & others …. Opposite Parties Mr. Rabi Narayan Mishra, AGA CORAM: JUSTICE MURAHARI SRI RAMAN ORDER 27.03.2024 This matter is taken up through hybrid mode. 2.
Legal Reasoning
Mr. Biswa Bihari Mohanty, learned counsel submitted that having working as sweeper on daily wages basis at Government Homeopathic Dispensary, Laxmisagar, Bhubaneswar since 02.12.2007, the petitioner completed more than ten years of continuous service. Assailing the order of rejection dated 05.02.2018 to regularize his service taking into account the provisions of the Odisha Ayush Assistant (Method of Recruitment and Condition of Service) Rules, 2015, Mr. Mohanty, learned counsel for the petitioner referred to Annexure-2 dated 05.02.2008 to indicate that the petitioner was engaged as “Sweeper on daily wages basis in the Government Homeopathic Dispensary, Laxmisagar, Bhubaneswar with effect from 02.12.2007” and the said engagement was approved by the Directorate of Indian Medicines and Homoeopathy, Odisha. Mr. Mohanty, learned counsel for the petitioner also submitted that since the petitioner has already completed more than ten years of service Page 1 of 5 // 2 // as sweeper and attendant in the said organization, he is entitled to be considered for regularization in view of the judgments of the Hon’ble Supreme Court of India in the case of State of Karnataka and others v. Umadevi, (2006) 4 SCC 1 and State of Karnataka and others v. M.L. Keshari and others, 2010 (II) OLR (SC) 982. Mr. Mohanty, learned counsel vehemently submitted that in the case of similarly situated person this Court relying on the aforesaid judgments of the Supreme Court in W.P.(C) No.4884 of 2020 (Laxmidhar Sahoo v. State of Odisha & others), vide order dated 24.09.2022 this Court directed the opposite parties to regularize the service of the petitioner therein. It is contended that the petitioner therein, namely Laxmidhar Sahoo was engaged in the post of “Part- time Sweeper-cum-Night Watcher on daily wages basis” in the Government Homeopathy Dispensary, Pattapol, Cuttack. The decision in the case of Laxmidhar Sahoo (supra) rendered by the Division Bench of this Court was carried to the Supreme
Decision
Court in SLP (Civil) No.8431 of 2023, which was disposed of on 21.04.2023 and the Government of Odisha in Health & Family Welfare Department have implemented the said order and reguarlized the service of Laxmidhar Sahoo in the post of Attendant. Mr. Mohanty, learned counsel strenuously urged that since the case of Laxmidhar Sahoo was considered for regularization, the present petitioner being similarly situated, he is also entitled to be considered for regularization of service basing on the aforesaid decision. 3. Mr. R.N. Mishra, learned Additional Government Advocate appearing for the State referring to counter affidavit filed on behalf of the opposite parties, submitted that since the engagement of the petitioner does not fall within the scope of the Group ‘C’ and ‘D’ Posts (Contractual Appointment) Rules, Page 2 of 5 // 3 // 2013, the petitioner is not entitled to claim any right for regularization. Mr. Mishra, learned Additional Government Advocate also submitted that one of the reasons for rejection of regularization of service of the petitioner vide order dated 05.02.2018 (Annexure-7) is the Odisha AYUSH Assistant (Method of Recruitment and Condition of Service) Rules, 2015 provides for appointment of such assistance by way of direct recruitment by the Odisha Staff Selection Commission. Mr. R.N. Mishra, learned Additional Government Advocate relied on the following paragraphs of the counter affidavit to contend that the petitioner cannot claim equal protection in terms of the decision in the case of Laxmidhar Sahoo (supra):- “6. That in reply to averments made under Para 6.6 & 6.8 as explained in detail in the forgoing para, it may be stated that there is no prevalent rules of Government to regularize a daily wage paid worker in any Group-C & D vacant posts. Since the applicant engaged on daily wages, his prayer for regularization of service cannot be considered. The applicant is not entitled any relief.” 4. Mr. B.B. Mohanty, learned counsel for the petitioner filed rejoinder affidavit enclosing therewith relevant documents relating to consideration of regularization of Laxmidhar Sahoo in terms of order dated 24.09.2022 passed by this Court in W.P.(C) No.4884 of 2020. Copy of the said rejoinder affidavit has already been served on Mr. R.N. Mishra, learned Additional Government Advocate appearing for the State. 5. Perusal of the documents enclosed to the rejoinder affidavit indicates that Laxmidhar Sahoo was engaged to work as Part-time Sweeper-cum-Night Watcher on daily wages basis, whereas in the present case, the petitioner is shown to have been engaged as “Sweeper on daily wages basis”. As Page 3 of 5 // 4 // urged by Mr. B.B. Mohanty, learned counsel for the petitioner that the case of the present petitioner stands at a better footing than Laxmidhar Sahoo and this Court in the case of Laxmidhar Sahoo (supra) taking into consideration the decisions of the Supreme Court in the cases of Umadevi (supra) and M.L. Keshari (supra), made the following observations at paragraphs-6 and 7:- It is of relevance to note that in a similar case, in “6. respect of Angul Municipality, this Court vide order dated 27.11.2014 in W.P.(C) No.26860 of 2013 directed the opposite parties to regularize the services of the petitioner therein in view of the judgments of the apex Court in Umadevi (supra) and M.L. Keshari (supra). Against the said order dated 27.11.2014 the State of Odisha, as well as Angul Municipality preferred W.A. No.407 of 2015 which was dismissed on 19.01.2016. Against the order dated 19.01.2016 passed in W.A. No.407 of 2015, the State as well as Angul Municipality filed S.L.P. was dismissed. Consequentially, the State authorities issued office order dated 06.06.2016 for regularizing the petitioner in the said writ application. Similar relief has already the employee of Paradeep been granted Municipality in W.P.(C) No.10100 of 2010 disposed of on 07.07.2017. Therefore, the petitioner having same footing, benefit should be extended to him by regularizing his service as expeditiously as possible. 7. Mr. S.Rath, learned Additional Standing Counsel does not dispute such position.” to 7. Considering the aforesaid rival submissions and documents enclosed to the writ petition as well as to the rejoinder affidavit, and taking note of the stand taken in the counter affidavit, this Court is of the view that the order dated 05.02.2018 (Annexure-7) cannot withstand the judicial scrutiny. Since the Division Bench of this Court has already decided the grievance of similarly circumstanced person, namely Laxmidhar Sahoo (supra) and directed for Page 4 of 5 // 5 // regularization of service of “Part-time Sweeper” on daily wages basis which got confirmed by the Supreme Court, the said order under Annexure-7 is liable to be set aside and this Court does so. 8. The opposite party no.1-Commissioner-cum-Secretary to Government, Health & Family Welfare Department and opposite party no.2-Director of AYUSH, Odisha, Bhubaneswar are directed to consider the case of the petitioner afresh taking into consideration of the order passed by the Division Bench of this Court in the case of Laxmidhar Sahoo (supra), as has been affirmed by the Supreme Court in SLP (Civil) No.8431 of 2023. While considering the case of the petitioner, the aforesaid opposite parties may also bear in mind that the Government of Odisha in Health and Family Welfare Department has already implemented the decision taken in the case of Laxmidhar Sahoo (supra) vide File No.HFW-HOM- CASE-0096-2022-23412 dated 21.09.2023. It is hoped that the opposite party nos.1 and 2 shall take expeditious steps to comply with the aforesaid direction preferably within a period of three months from the date of receipt of the certified copy of this order to be communicated by the petitioner. 9. With the aforesaid observation and direction, this writ petition stands disposed of. Judge MRS (M.S. Raman) Signature Not Verified Digitally Signed Signed by: MANORANJAN SAMAL Designation: PERSONAL ASSISTANT Reason: Authentication Location: Orissa High Court, Cuttack Date: 28-Mar-2024 12:21:10 Page 5 of 5