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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OA) No.711 of 2017 Mihir Tripathy …. Petitioner Mr. K.C. Sahu, Advocate -versus- State of Odisha & Others …. Opposite Parties Mr. M.K. Balabantaray, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 09.01.2024 Order No. 11. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present Writ Petition inter alia with the following prayer:- “(i) The Hon’ble Tribunal be pleased to admit this original application, (ii) The Hon’ble Tribunal be pleased to quash the impugned order of rejection dated 25.01.2017 under Annexure-9 with further directing the C.D.M.O, Nabagrangpur for appointing the applicant in the post of contractual pharmacist she has possessed the requisites qualification and eligible criteria so also possesses higher marks in comparison to other selected candidates as per Annexure-12 & 13 for the interest of justice” (iii) The Hon’ble Tribunal may be pleased to pass any order(s) / direction (s) as deems fit and proper for the interest of justice”. // 2 // 4. It is the case of the Petitioner that the Petitioner while continuing as a Contractual Pharmacist w.e.f. 30.10.2007 when steps were taken to fill up the post of contractual Pharmacist basing on the decision taken by the Government on 01.07.2015 under Annexure-6 and consequential advertisement issued by the C.D.M.O., Nabarangpur on 13.07.2015 under Annexure-7, Petitioner challenging the action of the Government to fill up the post of Pharmacist on contractual basis prior to regularizing his services, approached the Tribunal initially in O.A No.34(B) of 2015. 4.1. The Tribunal vide order dtd.07.09.2015 so available at Annexure-B to the counter passed an interim order to the effect that the selection process may continue but no final appointment order shall be issued. The said order was modified vide order dtd.16.03.2016 and Opposite Parties were allowed to issue appointment order pursuant of the recruitment conducted for the post of Pharmacist. It is also observed in order dtd.16.03.2016 that in case the applicant has qualified in the merit list, then there is no need to keep any post vacant. 4.2. The aforesaid Original Application in O.A. 34(B) of 2015 was transferred and registered as O.A. No.1810 of 2016 before the Principal Bench. Vide
Decision
order dtd.29.11.2016 while disposing O.A. No.1810 of 2016, the Tribunal passed the following order in Para-13:- Page 2 of 9 // 3 // “13. In the result, instead of quashing the impugned order dated 01.07.2015 under Annexure-6-Series and impugned advertisement under Annexure-6-Series, we direct the State respondents, more particularly C.D.M.O., Nawarangpur to first consider the case of the applicant for his appointment as contractual pharmacist under the general stream as per his eligibility and seniority basis and thereafter he be regularized as per resolution and thereafter proceed with the recruitment as per the impugned advertisement. This exercise be completed within a period of two months from the date of receipt of a copy of this order”. 4.3. It is the case of the Petitioner that Petitioner in terms of the advertisement issued by the C.D.M.O., Nabarangpur though participated in the selection process and his name was reflected at Sl. No.4 of the final merit list, but his candidature was rejected on the ground that Petitioner has passed the Diploma in Pharmacy from an Institution which is not recognized by AICTE. 4.4. Learned counsel for the Petitioner contended that though in the relevant recruitment rules such a provision was there in Column No. IV of the Appendix appended to Odisha Pharmacists Service (Method of Recruitment and Conditions of Service) Rules, 2015, but vide letter dtd.21.09.2015 issued by the Government-Opposite Party No.1 under Annexure-11, the stipulation contained in Column No. 4 was clarified. In Column-4 the following stipulation was there:- Appendix (See rule 3, 4, 7(V) and 13) Sl. No 1 Name of the Post, Classification and cadre 2 Method of Recruitment 3 Minimum Qualification for Direct Recruitment 4 Eligibility Criteria for Promotion 5 Page 3 of 9 1 Pharmacist (Group-C) (District Cadre) // 4 // Direct Recruitment Must have passed +2 Science Examination under Council of Higher Secondary Education, Odisha/equivalent Diploma in Pharmacy from any of the 3(three) Medical College & Hospitals of the State/any other recognized private Institutions duly approved by A.I.C.T.E. and examination conducted by the Odisha Pharmacy Board 2 3 4 Senior Pharmacist Group- C (State Cadre) Promotion from Pharmacists Chief Pharmacist Group- B (State Cadre) Promotion from Senior Pharmacist Assistant Director, Pharmacist Group-B (State Cadre) Promotion from Chief Pharmacist Completion of 10(ten) years of continuous service as Pharmacist Completion of 2(two) years continuous service as Senior Pharmacist Completion of 1(one) year continuous service as Chief Pharmacist 4.5. It is contended that stipulation contained in Column-4 of the Appendix was clarified vide Annexure-11 and it was indicated that candidate must have passed Diploma in Pharmacy from an Institution duly approved by AICTE or from an Institution registered under Odisha Pharmacy Council. 4.6. It is contended that Petitioner admittedly has passed in Diploma in Pharmacy from College of Pharmacy, Jeypore and he has registered his name under the Odisha Pharmacy Council. It is contended that in terms of the clarification issued by the Government on 21.09.2015 under Annnexure-11, the candidature of the Petitioner could not have been rejected, while publishing the final merit list on 12.09.2015. But candidature of the Petitioner was rejected on the ground that Petitioner has not passed his Diploma in Pharmacy from an Institution recognized by Page 4 of 9 // 5 // AICTE as provided under Column-4 of the Appendix appended to the Rules. 4.7. It is contended that the Tribunal while disposing O.A. No.1810 of 2016 vide order dtd.29.11.2016, directed the opposite parties to first consider the claim of the Petitioner for his regularization and thereafter to proceed with the selection. Since by the time the matter was disposed of by the Tribunal, the clarification issued by the Government under Annexure-11 was in force, the candidature of the Petitioner could not have been rejected on the ground indicated in the final merit list published on 12.09.2015, that the Petitioner has not passed the Diploma in Pharmacy from an Institution recognized by AICTE. 4.8. It is accordingly contended that taking into account the position of the Petitioner in the final merit list at Sl.No.4, Petitioner in view of the clarification issued under Annexure-11, should have been considered and provided with the appointment. However, after remand of the matter by the Tribunal on self-same ground the claim of the Petitioner was not considered vide the impugned order dtd.25.01.2017 under Annexure-9. 4.9. It is accordingly contended that the impugned order is not sustainable in the eye of law. It is also further contended that since the Petitioner is continuing as a Page 5 of 9 // 6 // contractual Pharmacist in the Mobile Health Unit since 2007, in view of her long continuance, Petitioner is also otherwise eligible to get the benefit of regularization as there are available vacancies in the establishment of C.D.M.O., Nabarangpur. 5. Mr. M.K. Balabantaray, learned Addl. Government Advocate for the State on the other hand made his submissions basing on the stand taken in the counter affidavit. It is contended that when the Opposite Parties initiated the process to fill up the post of contractual Pharmacist with issuance of the notice dtd.01.07.2015 under Annexure-6 and consequential advertisement issued by the C.D.M.O., Nabarangpur on 13.07.2015 under Annexure-7, Petitioner approached the Tribunal in O.A. No.34(B) of 2015. The Tribunal though passed an interim order initially on 07.09.2015, but the same was vacated vide order dtd.16.03.2016. Pursuant to the such order passed on 16.03.2016, the selected candidates were provided with the appointment vide order dtd.26.03.2016 under Annexure-13. 5.1. It is also contended that by the time the selection process was undertaken and completed on 12.09.2015, which is not disputed, the clarification issued by the Government on 21.09.2015 under Annexure-11 was not available. Therefore, the clarification so issued by the Government on 21.09.2015 cannot be taken into Page 6 of 9 // 7 // consideration in respect of an selection process, which has already been completed on 12.09.2015 with issuance of the order of appointment on 26.03.2016, pursuant to the order passed by the Tribunal on 16.03.2016. Petitioner also never challenged the order passed by the Tribunal on 16.03.2016, while vacating the interim order so passed on 7.9.2015. 5.2. It is contended that while publishing the final select list on 12.09.2015, the provisions contained under Column-4 of the Appendix was in force, and it is not disputed that Petitioner has not passed his Diploma from a recognized Institution, duly approved by the AICTE. 5.3. It is accordingly contended that there is no illegality or irregularity with regard to the rejection of the Petitioner’s candidature vide the impugned order dtd.25.11.2017 under Annexure-9. 6. To the submissions made by the learned Addl. Government Advocate for the State, learned counsel for the Petitioner contended that since by the time the matter was disposed of by the Tribunal on 29.10.2016, the clarification issued under Annexure-11 was in force w.e.f. 21.09.2015, in view of such clarification, the claim of the Petitioner could not have been rejected on the ground so indicated in the impugned order dtd. 25.01.2017 under Annexure-9. Page 7 of 9 // 8 // 7. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that the Petitioner challenging the selection process initiated to fill up the post of contractual Pharmacist under Annexure-6 and 7 approached the Tribunal in O.A No.34(B) of 2015. The Tribunal on 07.09.2015 under Annexure-D to the counter though passed an interim order protecting the interest of the Petitioner, but the same was vacated vide order dtd.16.03.2016 under Annexure-D. After vacation of the interim order, the order of appointment was issued in favour of the selected candidate on 26.03.2016 under Annexure-13. 7.1. As found from the record, the final merit was issued and published on 12.09.2015 and by that time the clarification issued by the Government on 21.09.2015 under Annexure-11 was not there. Therefore, as per the considered view of this Court, the clarification issued on 21.09.2015 under Annexure-11 cannot be utilized in respect of a selection process, which has already been finalized on 12.09.2015. In view of such position, this Court finds no illegality or irregularities with regard to the rejection of the Petitioner’s candidature vide the impugned order under Annexure-9 and accordingly not inclined to interfere with the order dtd.25.01.2017. However, considering the Page 8 of 9 // 9 // submissions of the learned counsel for the Petitioner that Petitioner is continuing as a contractual Pharmacist w.e.f. 30.10.2007 in the Mobile Health Unit and taking into account the further submissions that vacancies are there as against the post of Pharmacist in the establishment of C.D.M.O., Nabarangpur, this Court observe that if there are available vacancies as contended, Opposite Party No.3 shall consider the claim of the Petitioner to get the benefit of regularization, if he is otherwise eligible. Such a decision be taken by Opposite Party No.3 within a period of three (3) months from the date of receipt of this order. Interim order passed on 12.05.2017 stands vacated. 8. Accordingly, the Writ Petition stands disposed. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Jan-2024 13:10:08 Page 9 of 9