The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.27371 of 2023 Suryamani Panda …. Petitioner Mr. Amitav Das, Advocate -versus- State of Odisha & others …. Opposite Parties Mr. N.K. Praharaj, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 24.08.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel appearing for the petitioner as well as learned Addl. Government Advocate for the State-Opposite Parties. Perused the writ petition as well as the documents annexed thereto. 3. The present writ application has been filed by the Petitioner with the following prayer:- Order No. 02. “It is, therefore, most humbly and respectfully prayed that this Hon’ble Court may be graciously pleased to issue rule NISI calling upon the opp. parties to show cause as to why:- 1. The Opposite Parties shall not be directed to regularize the service of the petitioner w.e.f. from the date of initial engagement keeping in view the G.A Department resolution no. 26108 dtd. 17.09.2013 and 1066 dtd. 16.01.2014. 2. The Opposite Parties shall not be directed to pay the remuneration as per enhanced rate on the basis of letter dtd. 06.10.2012 under Annexure-7 resolution dtd. and Finance Department // 2 // 08.03.2016 under Annexure-8 within a stipulated period. If the Opp. Parties fail to show cause or show insufficient cause, the rule maybe made absolute; And pass any other order/orders as would deem fit and proper;” 4. On perusal of the record it appears that on 20.08.2010 advertisement was published pursuant to such advertisement the Petitioner participated in the interview conducted on 21.10.2010. After the Petitioner was selected in such interview he was appointed on contractual basis as a Skilled Technician in ICU at Capital Hospital, Bhubaneswar vide appointment letter dated 25.10.2010 under Annexure-2 to the writ application. Thereafter, while the Petitioner was continuing as such on contractual basis. The Govt. of Odisha, Health and Family Welfare Department vide letter dated 05.02.2014 under Annexure-4 to inform the Chief District Medical Officer, Khurda with the concurrence of the Finance Department vide his letter dated 09.07.2012 certain posts were created which have been indicated in the table appended to the Annexure-4. So far the Petitioner is concerned, at Serial No.8 of the table it appears that there are 4 numbers of sanctioned posts out of which 3 have been already posted by the Capital Hospital, Bhubaneswar and one was recruited by the Chief District Medical Officer, Khurda. The three persons who were appointed by the Capital Hospital, Bhubaneswar includes the Petitioner, accordingly, the Petitioner continued in service. Further under Annexure-5 vide letter dated 12.02.2014, the Petitioner was again given appointment on contractual basis against the aforesaid regular post and their appointment was approved for absorption against the post created vide G.O. dated 25.08.2012 and 07.10.2013. 5. Learned counsel for the Petitioner further contended that on 12.02.2014 the petitioner was issued with an engagement order under // 3 // Annexure-6 to the writ application whereunder he was engaged as Gas Pipe Line Skilled Technician for Oxygen Plant in the ICU at the Capital Hospital, Bhubaneswar. Further, the said letter indicates that the petitioner has been appointed on Govt. contractual basis with effect from 12.02.2014. In such view of the matter, learned counsel for the petitioner submitted that the Petitioner has been appointed against a regular post by following the regular recruitment procedure under the 2013 rules. He further contended that out of the similarly situated 16 persons the Government has regularized 11 persons excluding the petitioner. Appointment order in respect of similarly situated persons has also been annexed to the writ application as Annexure-9 series. 6. Learned counsel for the petitioner further contended that since the Petitioner who was appointed against a regular post on contractual basis by following a regular selection procedure and their appointment has already been approved by the Government. The same is treated to be under 2013 rules. Therefore, after repeal of the 2013 rules by the Repeal Rule notified on 16.10.2022. In view of Rule 4 of the Repeal Rule, 2022 the persons who have been appointed on contractual basis are to be treated as Regular employees and they shall be deemed to be as such with effect from the date of completion of 6 years of their service from the date of their initial appointment under the 2013 rules. In such view of the matter, learned counsel for the Petitioner submitted that the Petitioner is to be deemed to have been regularized in service in view of Rule 4 of the Repeal Rules dated 16.10.2022. 7. Learned Additional Government Advocate on the other hand contended that the case of the Petitioner has not been evaluated by the Opposite Parties keeping in view the rules of the year 2013 as well as the repealing rules of the year 2022. He further contended that the Petitioner has approached this Court without approaching the // 4 // Departmental Authority first. In such view of the matter, learned Additional Government Advocate submitted that the Petitioner be directed to approach the Opposite Party No.3-Director, Capital Hospital, Bhubaneswar who is competent to take a decision. 8. Considering the submission made by the learned counsels appearing for the respective parties and on a careful examination of the background facts of the present case as well as materials on record, this Court is of the considered view that the case of the petitioner for regularization should have been considered by the Opposite Parties keeping in view the fact that similarly situated other persons have already been regularized in the meantime as is evident from the orders filed along with writ application as Annexure-9 series. Failure to regularize the service of the Petitioner shall definitely violate the Article 14 of the Constitution of India. In such view of the matter, this Court deems it proper to dispose of the writ application at the stage of admission by directing the Petitioner to approach the Director, Capital Hospital, Bhubaneswar- Opposite Party No.3 by filing a detailed representation taking therein all the grounds along with all supporting documents within a period of three weeks from today. In the event such representation is filed, the Opposite Party No.3 to consider the same keeping in view the provision of Rule 4 of the Repeal Rule dated 16.10.2022 as well as the fact that similarly situated many employees have already been regularized in the meantime as would be evident from Annexure-9 series and take a final decision with regard to the regularization of service of the Petitioner within a period of two months from the date the petitioner approaches the Opposite Party No.3 along with a certified copy of this order. The final decision that is to be taken by the Opposite Party // 5 // No.3 pursuant to such order shall also be communicated to the Petitioner within two weeks from the date of taking such a decision. 9. With the aforesaid observations/ directions, the writ application stands disposed of. Issue urgent certified copy of this order as per Rules. Anil ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 31-Aug-2023 18:28:08