The High Court · 2024
Case Details
Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Nov-2024 15:12:19 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos. 17811 of 2020 and 38309 of 2020 (An application under Articles 226 & 227 of the Constitution of India) W.P.(C) No.17811 of 2020 Sudhira Dhangada Majhi & Ors. .…… Petitioners -Versus- State of Odisha & Ors. ……. Opposite Parties W.P.(C) No.38309 of 2020 Narendra Bag .…… Petitioner -Versus- State of Odisha & Ors. ……. Opposite Parties Advocate(s) appeared in this case:- For Petitioners :
Legal Reasoning
Mr.S.Mallik, Advocate Mr.K.C.Sahu, Advocate For Opposite Parties : Mr.S.P.Panda, AGA CORAM : JUSTICE B.P. ROUTRAY JUDGMENT 29th October 2024 B.P. Routray,J. 1.
Decision
Since the issue involved in both the writ petitions is similar and the Petitioners in both the writ petitions had earlier approached this Court jointly, both the writ petitions are heard together and disposed of by this common judgment. W.P.(C) Nos. 17811 & 38309 of 2020 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Nov-2024 15:12:19 2. Heard Mr. S.Mallik and Mr. K.C.Sahu, learned counsels for respective Petitioners and Mr. S.P.Panda, learned AGA for Opposite Parties-State. 3. There are four Petitioners in W.P.(C) No.17811 of 2020 and one Petitioner in W.P.(C) No.38309 of 2020. All total five Petitioners had earlier filed W.P.(C) No.195 of 2012 before this Court. Their case was that, they all are serving as Pharmacists under Mobile Health Unit (MHU) in the District of Kalahandi, should have been regularized in service in view of the guideline dated 25th January 2002 issued by the Government of Odisha in Health and Family Welfare Department. On such prayer of the Petitioners, this Court by order dated 16th January 2012 disposed of W.P.(C) No.195 of 2012 with the direction to dispose of their representation in the light of letter dated 25th January 2002. The operative portion of the order reads as follows:- “In view of the aforesaid submission of the learned counsel for the Petitioners, this Court disposes of this writ petition at the stage of admission with a direction to the Chief District Medical Officer, Kalahandi shall take a decision on the representation of the Petitioners in Annexure-9 in the light of letter dated 25th January 2002 of the State Government, if the same is still in vogue, within a period of ten days from the production of a certified copy of this order. It is, however, made clear that no appointment to the posts in question shall be made till a decision is taken by the C.D.M.O., Kalahandi on the representation of the petitioners. W.P.(C) Nos. 17811 & 38309 of 2020 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Nov-2024 15:12:19 With the above direction and observation, the writ petition is disposed of.” 4. Thereafter the C.D.M.O., Kalahandi considered the representation of the Petitioners and sought for certain clarification from the State Government with regard to absorption of those Petitioners in service. But the State Government did not send any clarification despite repeated request made by the C.D.M.O. Finally the C.D.M.O. absorbed four Petitioners, who are present Petitioners in W.P.(C) No.17811 of 2020, as per the available vacancies and the case of fifth Petitioner (Narendra Bag), present Petitioner in W.P. (C) No.38309 of 2020, was not considered since he was the juniormost in the list and for him no vacancy was available. The order of appointment of four Petitioners on absorption in the post of Pharmacist has been issued by the C.D.M.O. in letter dated 17th June 2013 under Annexure-17. Since the 5th Petitioner namely, Narendra Bag could not be absorbed in service, he made a representation in the year 2018 i.e. on 29th October 2018 (Annexure-10) in W.P.(C) No.38309 of 2020, upon availability of vacancy. The C.D.M.O. considering his representation sought for clarification from Government in Health Department to absorb Petitioner Narendra Bag in the available vacant post. Thereafter on 24th September 2020, the Government in Health and Family Welfare Department communicated the letter under Annexure-12 in W.P.(C) No.38309 of 2020 to the C.D.M.O. regretting the proposal. This order of the Government under Annexure-12 is subject matter of challenge before this Court in W.P.(C) No.38309 of 2020. W.P.(C) Nos. 17811 & 38309 of 2020 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Nov-2024 15:12:19 Further, the Government in Health and Family Welfare Department in their letter dated 16th July 2020 (Annexure-21 in W.P.(C) No.17811 of 2020) has instructed the C.D.M.O. to terminate the services of four Petitioners in W.P.(C) No.17811 of 2020. Accordingly, the order directing termination of four Petitioners in Annexure-21 has been challenged by the Petitioners in W.P.(C) No.17811 of 2020. 5. The State has filed the counter affidavit through the C.D.M.O. In the counter affidavit filed in W.P.(C) No.17811 of 2020, the C.D.M.O. has stated that pursuant to the order of the Government communicated to him it has been directed to terminate the services of four Petitioners in 17811 of 2020 as the same is illegal. Unfortunately, the Government did not give any reply to the contentions of the writ Petitioners and without filing any separate counter by the State, the counter submitted by the C.D.M.O. has been relied on by the learned Additional Government Advocate in course of hearing. 6. As per the C.D.M.O., the appointments given to four Petitioners in W.P.(C) No.17811 of 2020 are according to the principles of ORV Act so also satisfying the guidelines prescribed in letter dated 25th January 2002 of the Government in Health Department. Such appointments of the Petitioners in W.P.(C) No.17811 of 2020 in the available vacant posts has never been questioned by the State Government otherwise except the opinion of the Law Department. The Government in Health Department has not stated any reason for termination of those four Petitioners and by W.P.(C) Nos. 17811 & 38309 of 2020 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Nov-2024 15:12:19 simply relying on the opinion of the Law Department has instructed for termination of those Petitioners. 7. It needs to be mentioned here that the opinion of Law Department to Health Department is advisory in nature and it is inter department business in the Government as per rules of business formulated by Government of Odisha in terms of Article 166 of the Constitution of India. Therefore, the administrative department being the Health Department should not blindly cite the opinion of Law Department, which is advisory in nature, without any independent application of their mind. When the earlier direction of this Court dated 16th January 2012 was to consider the case of the Petitioners in the light of the guidelines mentioned in letter dated 25th January 2002 of the Government and no violation of the same has been alleged for absorption of those Petitioners in service in conformity with the principles of ORV Act, hardly any reason is left there to terminate their services. It is unexpected on the part of the Health Department being the Administrative Department to simply go on the opinion of the Law Department without independent application of mind. In the circumstances, the direction of Government dated 16th July 2020 in Health and Family Welfare Department under Annexure-21 is thus quashed being without support of any valid reason. 8. Next coming to consider the case of the Petitioner namely, Narendra Bag in W.P.(C) No.38309 of 2020, as admitted in the recommendation of the C.D.M.O. under Annexure-10, there was availability of vacancy in conformity with the reservation policy as per ORV Act. The vacancy was for SC category to which this Petitioner Narendra Bag belongs to. Therefore, in pursuance to the W.P.(C) Nos. 17811 & 38309 of 2020 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Nov-2024 15:12:19 guidelines prescribed in letter on 25th January 2002 and in conformity to the direction of this Court dated 16th January 2012 passed in W.P.(C) No.195 of 2012, the Petitioner cannot be denied his appointment by absorption particularly when other four similarly situated Petitioners have already been regularized since 2014. Therefore, the C.D.M.O. should proceed for regularization of the Petitioner Narendra Bag as has been done in case of other Petitioners. 9. The direction of the Government dated 24th September 2020 under Annexure-12 (in W.P.(C) No.38309 of 2020) to regret the proposal of regularization of the Petitioner without assigning any further reason is thus quashed. 10. In the result, both the writ petitions are disposed of as allowed and the direction of termination of the Petitioners in W.P.(C) No.17811 of 2020 is quashed as well as the direction to regret the proposal of regularization of Petitioner in W.P.(C) No.38309 of 2020 is also quashed. It is further directed that the Petitioner in W.P.(C) No.38309 of 2020 (Narendra Bag) should be given the benefit of regularization with effect from the date of availability of vacancy as per the recommendation of the C.D.M.O. dated 1st November 2018 under Annexure-10, within a period of two months from the date of receipt of certified copy of this order. Judge (B.P. Routray) Sangram Das, Sr.Steno W.P.(C) Nos. 17811 & 38309 of 2020 Page 6 of 6