The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.36109 of 2021 An application under Articles 226 and 227 of the Constitution of India. Supriya Kar and others . Petitioners Mr. P.K.Mohanty, Sr.Advocate -versus- State of Orissa and others . Opp. Parties Mr.N.K.Praharaj, A.G.A. W.P.(C) No.36349 of 2021 Puspanjali Bhitria . Petitioner Mr. M.Basu,Advocate -versus- State of Orissa and others . Opp. Parties Mr.N.K.Praharaj, A.G.A. W.P.(C) No.36136 of 2021 Satyajit Behera . Petitioner Mr. D.N.Rath,Advocate -versus- State of Orissa and others . Opp. Parties Mr.N.K.Praharaj, A.G.A. // 2 // W.P.(C) No.36210 of 2021 Sudhir Ranjan Sahu . Petitioner Mr. D.N.Rath,Advocate -versus- State of Orissa and others . Opp. Parties Mr.N.K.Praharaj, A.G.A. W.P.(C) No.36211 of 2021 Riyanka Malik and others . Petitioners Mr. D.N.Rath,Advocate -versus- State of Orissa and others
Legal Reasoning
. Opp. Parties Mr.N.K.Praharaj, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of hearing : 06.03.2024 | Date of Judgment : 26.04.2024 _____________________________________________________ A.K. Mohapatra, J. : 1. Heard Sri. P.K.Mohanty, learned senior counsel appearing for the petitioners along with Mr. D.Rath, learned counsel for the petitioners in the present batch of writ applications. Since the present batch of writ applications involve a common question of // 3 // law and are based on identical factual scenario all these matters are taken up together for hearing and the same is being disposed of by the following common judgement. 2. Since the present batch of writ applications are based on identical factual scenario, the facts involved in Supriya Kar and others V. State of Orissa and others in W.P.(C) No.36109 of 2021 is being taken up as the lead matter for analysis of the factual position. 3. The present writ application has been filed with a prayer to quash the impugned disengagement order dated 12.11.2021 under Annexure-4 and to pass any other order/directions as deemed proper in the facts and circumstances of the present case. 4. The factual background leading to the filing of the present writ application, in short, is that the Health & Family Welfare Department, Govt. of Odisha vide notification dated 13.06.2015 under Annexure-5, notified the Odisha Pharmacists Service (Methods of Recruitment and Conditions of Service), Rules, 2015. While the said rule was in force, an advertisement was published on 29.11.2017, under Annexure-1 to the writ // 4 // application, for appointment of Pharmacist - 27, junior Laboratory technician - 5, Junior Radiographer - 3, Attendant – 19, on contractual basis. The eligibility criteria for selection to the aforesaid advertised different categories of posts has been laid out in detail in the advertisement under Annexure-1 to the writ application. 5. Pursuant to the aforesaid advertisement the petitioners who complied with the eligibility requirement has provided in the advertisement, applied for appointment to the same. So far the present petitioners are concerned, they have all applied for the post of Pharmacists as against the total number of 7 advertised posts. The eligibility criteria governing the appointment to the posts of Pharmacists provides that the candidate must be aged between 21 years to 32 years, along with a further age relaxation to the category of Pharmacists who had worked on contractual basis under Central plan/scheme or State plan/scheme and exceptional gradation scheme and are below 45 years and have completed 1 year of continued service, were allowed to participate in the aforesaid recruitment process. So far the criteria of educational qualification is concerned, the candidates must // 5 // have passed +2 Science and must passes Diploma in Pharmacy from any recognized institution. Further, such candidates must have registered their names with the Pharmacy council in the State and accordingly, the candidate must have been issued with a valid registration certificate by such Pharmacy council as on the date of advertisement. Since the petitioners were complying with all the aforesaid eligibility criteria as provided under the advertisement, they had submitted their candidature for being appointed to the post of Pharmacist pursuant to the advertisement order under Annexure-1. 6. On perusal of the records, it appears that the selection process which was initiated pursuant to the advertisement under Annexure-1, dated 29.11.2017, continued for a long time. The selection board, so far as the present petitioners are concerned, was formed in accordance with the provisions contained under the 2015 Rule under Annexure-5 to the writ application. The Selection Board which has been prescribed under rule 8 of the 2015 Rules, provides that the CDM-PHO of the district shall be the Chairman along with 4 other members as has been prescribed in the said rule. Accordingly, the candidature submitted by the // 6 // petitioners were duly scrutinized by the selection board. Further, the appendix to the rule of the year 2015 provides the method of recruitment and the minimum qualification for such direct recruitment. So far the Pharmacist (Group-C) (District cadre) is concerned, the method of recruitment prescribed is direct recruitment and the minimum qualification prescribed is that the candidate must have passed the +2 final examination from CHSE or any other equivalent board, and Diploma in Pharmacy from any of the medical colleges and the hospitals of the state or any other recognized private institutions duly approved by the AICTE and such examination must have been conducted by the Odisha Pharmacy Board. 7. While the selection process pursuant to the advertisement under Annexure-1 under the prevailing rules of the year 2015 was continuing, the State Government once again notified another set of rules on 8th of March, 2019. The Health and Family Welfare department Govt. of Odisha notified the Odisha Pharmacist Service (Method of Recruitment and Condition of Service) Rules, 2019. The above rule was notified with a stipulation that the same shall come into force on the date of its Publication in the Odisha // 7 // Gazette. Furthermore, the new rule of the year 2019, in its preamble, provides that the rule has been framed in exercise of the power under the proviso to Article 309 of the Constitution of India and in supersession of all orders and instructions issued in this regard. However, the said preamble carves out an exception. That is, in respect of things done or omitted to be done before such supersession. Subject to the aforesaid exception all recruitments and conditions of service of all persons appointed to the Odisha Pharmacist service shall be governed by the rules of the year 2019 under Annexure-6 to the writ application. 8. While this was the position with regard to the rule governing the recruitment, the present petitioners, on being duly selected, were given appointment by the CDM-PHO, Angul vide order No.1586 dated 17.06.2020 under Annexure-2 series. Another appointment letter was also issued separately vide order No.1034 dated 31.05.2021 to one Jayanti Murali, i.e. who is the petitioner No.5 in the present writ application, giving her appointment to the post of Pharmacist on contractual basis. The aforesaid appointment under Annexure-2 series are on contractual basis and pursuant to the GA department notification No.32010 // 8 // dated 12.11.2013, on a consolidated salary of Rs.9,500/- per month. However, such appointment letter giving appointment to the petitioners on contractual basis does not specify the period for which the petitioners were appointed on contractual basis. On the basis of such appointment letter, the petitioners joined as their respective places of posting and have been discharging their duties subject to the terms and conditions of such appointment letter under Annexure-2 series. 9. While the matter stood thus, a newspaper report was published in daily, Sambad Newspaper, dated 07.09.2021, wherein it has been alleged that certain irregularities have taken place in the appointment of Pharmacists. Further specific allegations were made against the CDM-PHO of Angul who had appointed two Pharmacists and two Lab Technicians directly in contravention of the rules, 2019. The report also reveals that the authorities had accepted illegal gratification in giving such appointment. On the basis of such newspaper report, the Government in Health and Family Welfare Department asked the CDM-PHO Angul to disengage all such appointees who have been appointed without having gone through the prescribed // 9 // recruitment process as per the new Rules, 2019 by the Odisha Subordinate Staff Selection Commission (OSSSC). Pursuant to the aforesaid letter of the Government, the petitioners in the present writ application as well as the petitioners in the batch of similar other writ applications were disengaged from service vide order No.2417 dated 12.11.2021 by a common order under Annexure-4 to the writ application. Such disengagement order dated 12.11.2021 clearly reveals that it was passed pursuant to the Government letter dated 11.11.2021. Being aggrieved by such disengagement order dated 12.11.2021, the petitioners have approached this Court by filing the present writ application. 10. Mr. P.K.Mohanty, learned senior counsel representing the petitioners in the present writ application, as well as learned counsels appearing for the petitioners in the connected batch of writ applications, at the outset, submitted that the petitioners have been duly appointed pursuant to the advertisement dated 29.11.2017, under Annexure-1. The advertisement under Annexure-1 has been published under the 2015 rules which was governing the filed at the relevant point in time. It was further contended that since the petitioners were fulfilling the eligibility // 10 // criteria, they have submitted their candidature for being appointed to the posts which have been advertised under Annexure-1. Learned counsel appearing for the petitioners further contended that since there was a delay in conclusion of process of appointment, the petitioners could not be appointed immediately. Although they had been approaching the authorities repeatedly to conclude the recruitment process and to issue the appointment letter in favour of the duly selected candidate. It was also submitted before this Court that the Selection Committee which had scrutinized the application was duly constituted in view the provisions contained in Rules 8 of the 2015 rules with the CDM- PHO, Angul as the Chairman along with 4 other members. On the basis of the recommendation made by the selection board constituted pursuant to rule 8, the petitioners were selected and given appointment vide letter under Annexure-2 series to the writ application. In such view of the matter, learned counsels appearing for the petitioners submitted that the order of disengagement dated 12.11.2021, which was passed in pursuant to the letter of the Government dated 11.11.2021, is highly illegal & arbitrary, and as such, the same is unsustainable in law. // 11 // 11. In course of their argument, learned counsels appearing for the petitioners submitted that the letter dated 11.11.2021 issued by the Government to the CDM-PHO, Angul to disengage the petitioners, does not contain any information as to whether any inquiry had preceded such decision of the Government which is based on a newspaper clipping published in local daily on 07.09.2021. Further, taking this Court through the letter dated 11.11.2021, learned counsel appearing for the petitioners submitted that although the newspaper clipping has been referred to in the said letter, however, it does not speak of any inquiry conducted by the Govt. before taking a decision to disengage the petitioners who were appointed pursuant to the rules of the year 2015 as well as the advertisement under Annexure-1. Moreover, the Learned Counsels appearing for the petitioners alleged that the petitioners were not given any an opportunity to explain their position before they were disengaged from their service which is in gross violation of the principles of natural justice. 12. Per Contra, a counter-affidavit has been filed by the State- Opposite Parties. Wherein it has been stated that the very appointment of the petitioners was illegal in view of the fact that // 12 // by the time they were issued with their respective appointment letters under annexure-2 series, the new rule of the year 2019 had already come into force. Therefore, it was contended that the CDM-PHO, Angul could not have issued such appointment letters as the selection of the petitioners was not in terms of the 2019 rules. He further contended that on the basis of allegation made in the local daily, Sambad, the Government had conducted an inquiry and upon such inquiry, it was decided that the appointment was made by not following the rules of the year 2019 and that the petitioners have not been selected by the Odisha Subordinate Staff Selection Commission. As a result of which the entire selection process of selecting and appointing the petitioners is vitiated. Moreover, such appointment letter issued under Annexure-2 series, is contrary to the rules and as such the same does not confer any rights on the petitioners for continuing in service, since their very appointment is illegal and not in conformity with the rules which were in force at the time when the petitioners were appointed. 13. Learned Additional Government Advocate submitted before this Court that the entire selection and the appointment of // 13 // the petitioners by the CDM-PHO, Angul is illegal, arbitrary, and contrary to the provisions of the rules. He further alleged that while selecting the petitioners, the Opposite Party No.3 has not followed the provisions as contained in 2015 rules as well as in the new rules of the year 2019. It was also contended by the learned Additional Government Advocate that serious allegations of acceptance of illegal gratification in violation of the provisions of rules were alleged in the newspaper report and, on the basis of such newspaper report the Government, after conducting an inquiry, had come to a conclusion to disengage the petitioners. Accordingly, vide letter dated 11.11.2021., the opposite Party No.3 was directed to disengage the petitioners forthwith. 14. The learned Additional Government Advocate further contended that there exists a specific cadre rule in the shape of 2019 Rules which was notified in the Gazette on 13.03.2019. However, the appointment which was made much thereafter has been done without following the aforesaid specific cadre rules of the year 2019. In course of his argument, learned Additional Government Advocate placed specific reliance on rules 8 and 10 of the 2019 Rules which provides that appointment to the post of // 14 // Pharmacist shall be done through OSSSC and on the basis of a written test. Since such procedure has not been followed in the case of the petitioners, their very selection and appointment has been rendered as a nullity. In such view of the matter, learned Additional Government Advocate submitted that the present writ application is devoid of merit and accordingly, the same should be dismissed. 15. Having heard the learned counsel appearing for the respective parties, on a careful examination of the pleadings of the respective parties and on due scrutiny of the materials on record, this Court found that the issue which is required to be adjudicated in the present batch of writ applications, is with regard to the order dated 12.11.2021 passed by the Opposite Party No.3 under Annexure-4, thereby disengaging the petitioners from service, who were initially engaged on contractual basis. While adjudicating the aforesaid issue, this Court is required to go into the validity of the selection process adopted by the Opposite Party No.3 in selecting the present petitioners. Accordingly, on perusal of the rules of the year 2015, this Court observes that the said rule was holding the field at the time the selection process started. // 15 // Moreover, the advertisement dated 29.11.2017 under Annexure-1 was lawfully published in consonance with the 2015 rules. It is not the case of the Opposite Parties that the advertisement under Annexure-1 is not in consonance with the 2015 rules. Therefore, while testing the validity of the selection process pursuant to the advertisement under Annexure-1, this Court is required to see whether the procedure prescribed under the 2015 rules, as well as the advertisement has been complied with by the Opposite Parties while carrying out the selection process. 16. The advertisement dated 29.11.2017 under Annexure-1 to the writ application reveals that the posts of Pharmacists, junior Laboratory Technician, Junior Radiographer, and Attendants were advertised to be filled up by following a direct recruitment process. Further, the said advertisement lays down the eligibility criteria as well as the minimum educational qualification as is required for being appointed to the advertised posts. It is also not disputed at bar that the advertisement was published and the selection process was carried out strictly in terms of the provisions contained in 2015 Rules. Additionally, the advertisement also contained a detailed selection procedure to be // 16 // followed by the selection board. Further, on perusal of the counter affidavit this Court could not find any allegation with regard to the Constitution of the District Selection Board. Therefore, this Court is well within its authority to draw a legal presumption that the district selection board was validly constituted. Therefore, this Court does not find it difficult to come to a conclusion that a valid selection procedure was followed in selecting the petitioners for the post which were advertised under Annexure-1 to the writ application. 17. The difficulty arose when the selection process which was started in 2017, pursuant to the advertisement under Annexure-1, could not be concluded within the stipulated time. In the meantime, set of new Rules of the year 2019 was framed and notified in the official Gazette. Admittedly the petitioners were appointed after the 2019 Rules came into force. Therefore, the validity of appointment of the petitioners under Annexure-2 is to be tested by taking into consideration the scope and ambit of the 2019 rules which was notified in the Odisha Gazette on 13.03.2019. In order to carry out the aforesaid exercise and to test the validity of the appointment of the petitioners by overlooking // 17 // the 2019 Rules, this Court is required to examine the preamble of the 2019 Rules, which has been filed under Annexure-6 to the writ petition. The said notification dated 8th March, 2019 starts with the preamble that the Government in Health & Family Welfare Department, in exercise of the power conferred under the proviso to Article 309 and, in supersession of all orders and instructions issued with regard to the method of recruitment and conditions of service of persons appointed to the post of Pharmacists and, with the exception in respect of things done or omitted to be done before such supersession, the method of recruitment and conditions of service as prescribed in the notification dated 8th March, 2019 under Annexure-6 shall apply to the persons who are interested in applying for appointment as Pharmacists. 18. On a careful scrutiny of the aforesaid preamble of the 2019 Rules, this Court observes that the 2019 Rules has been issued in supersession of all earlier orders and instructions. However, such notification is subject to exception that things which have been done or omitted to be done before such supersession shall not be covered by the new rules of the year // 18 // 2019. While analyzing the aforesaid exception contained in the preamble to the aforesaid rule, it is very clear that things which have already been done under the earlier instructions/orders, are saved by the provisions contained in the preamble. Applying the aforesaid provision to the facts of the present case this Court observed that the advertisement under Annexure-1 having been published in the year 2017 in respect of vacancies for appointment on contractual basis under the provisions of the 2015 Rules, which was in force then, and the selection process which has commenced prior to the 2019 Amendment Rules came into force, the acts done by selecting and appointing the petitioners shall be saved by the exception carved out in the preamble portion of the 2019 Rule. 19. Learned Additional Government Advocate in course of his argument referred to the judgment of the Hon’ble Supreme Court in State of Himachal Pradesh and others V. Rajkumar in Civil appeal No.9746 of 2011. Referring to the above judgement, the Learned Additional Government Advocate submitted that in view of the law laid down by the Hon’ble Supreme Court in the aforesaid latest judgment, the recruitment rules which were in // 19 // force at the time of selection of the candidates shall be applicable and, not the rules which were in force when the vacancy arose. On a careful reading the aforesaid judgment, this Court observes that the facts of the reported judgment are different than the facts involved in the present writ application. Therefore, the ratio laid down in the aforesaid judgment may not be strictly applicable to the case of present petitioners in as much as, in the present case vacancies arose under the old rules and process of recruitment had commenced under the old rules, and while such recruitment process was ongoing, the new Rules were framed and notified in the Odisha Gazette. Moreover, on a plain reading of the preamble of 2019 Rules, it is revealed that the acts done under the old rules are saved and they shall come under the exception carved out in the 2019 Rule itself. As such, the present case would not be governed under the 2019 Rules under Annexure-6 to the writ application. 20. In view of the aforesaid analysis of law, as well as factual position, this Court is of the considered view that the conduct of the Opposite Parties in disengaging the petitioners vide order under Anexure-4 to the writ application is unsustainable in law on // 20 // several grounds. Firstly, the Opposite Parties have failed in their attempt to establish that the present petitioners were not appointed by following a valid selection procedure. Secondly, although, pursuant to Government letter dated 11.11.2021, the present petitioners were disengaged from the service, however, the said letter does not indicate as to whether any inquiry was conducted prior to sending a letter to the Opposite Party No.3 with a direction to disengage petitioners. Thirdly, in contravention of the principles of natural justice, the present petitioners were never given an opportunity to explain their position and merely on the basis of a newspaper allegation they have been thrown out of service even though they were selected and recruited by following a valid selection procedure. Finally, the selection of the petitioners under the old rules is protected by the exception provided in the preamble of the 2019 Rules. While coming to the aforesaid conclusion, this Court also categorically observes that the petitioners are not covered under the Rules of the year 2019 and they shall, therefore, not be eligible for getting any advantage under the 2019 Rules. In view of the aforesaid analysis, the impugned order under Annexure-4 is hereby quashed. The matter // 21 // is remanded back to the Opposite Party No.3 to issue re- engagement orders in favour of the petitioners on contractual basis, which shall be subject to any policy decision of the Government to be taken in due course. The Opposite Parties are directed to carry out the aforesaid direction within a period of two months from the date of communication of a certified copy of this judgment. 21. With the aforesaid observation and direction, the writ petitions stands allowed. Similarly, in W.P.(C) No.36136 of 2021, W.P.(C) No.36210 of 2021 & W.P.(C) No.36211 of 2021, the impugned orders No.2417 dated 12.11.2021 under Annexure-6 & orders No.3023 dated 1.11.2021 under Annexure-7 respectively are also hereby quashed. Orissa High Court, Cuttack The 26th April, 2024/ Rubi/ Jr. Steno. (A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 30-Apr-2024 12:12:24