Orissa High Court
Akhila Kumar Naik And Others vs State Of Odisha & Others on 11 December, 2021
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 33301 of 2020,
W.P.(C) No. 32900 of 2020,
W.P.(C) No. 33346 of 2020
And
W.P.(C) No. 33366 of 2020,
In the matter of applications under Articles 226 and
227 of the Constitution of India.
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AFR
W.P.(C) No. 33301 of 2020
Akhila Kumar Naik and others ..... Petitioners
-Versus-
State of Odisha & others ..... Opp. Parties
For Petitioners : M/s. Krishna Chandra
Sahu, B.S. Panigrahi, and
D.K.Mahalik, Advocates.
For Opp. Parties : Mr. H.M. Dhal,
Addl. Government Advocate
W.P.(C) No. 32900 of 2020
Subrat Kumar Mohanty and others
..... Petitioners
-Versus-
State of Odisha and another ..... Opp. Parties
For Petitioners : M/s. Shasi Bhusan Jena,
// 2 //
S. Behera, C.K. Sahoo, and
B.S. Patnaik, Advocates
For Opp. Parties : Mr. H.M. Dhal,
Addl. Government Advocate
W.P.(C) No. 33346 of 2020
Ranjan Kumar Pattanaik
..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For Petitioner : M/s. Subrat Mishra,
R.K. Pradhan and
A.K. Nanda, Advocates
For Opp. Parties : Mr. H.M. Dhal,
Addl. Government Advocate
W.P.(C) No. 33366 of 2020
Jalendra Nath Rana
..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For Petitioners : M/s. Purusottam Chuli and
P. Nath, Advocates
For Opp. Parties : Mr. H.M. Dhal,
Addl. Government Advocate
// 3 //
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of Hearing: 30.11.2021: Date of Judgment: 11.12.2021
DR. B.R. SARANGI, J. All the above four writ petitions having
common cause of action and the petitioners therein
having sought similar relief, they are heard together
and disposed of by this common judgment, which will
govern in all the cases.
2. The petitioners in all the writ petitions are
working as contractual Laboratory Technicians under
different schemes/societies, being duly recruited
through regular process of selection, pursuant to
advertisements. By means of these writ petitions, they
seek to quash the observation made in order dated
17.11.2020, so far as it relates to rejection of their
cases for regularization on the plea that they have
acquired qualification from private institutions, which
have not been affiliated to All India Council of
Technical Education (AICTE), whereby, their juniors
have been regularized, by declaring such action taken
// 4 //
by the authorities as arbitrary, unreasonable and
contrary to the provisions of law. They further seek for
direction to the opposite parties to regularize their
services like other contractual paramedics as well as
Laboratory Technicians, keeping in view the provisions
contained in the statutory recruitment rule by
invoking the relaxation clause from the date of
notification of the rule, as has been done in case of
similarly situated paramedic employees, and to extend
all consequential service and financial benefits within
a stipulated period.
3. For the sake of convenience, the factual
matrix, as has been delineated in W.P.(C) No. 33301
of 2020, is referred to:-
3.1 The Director of Health Services, Odisha,
vide letter dated 14.08.2005 under Annexure-9,
intimated the Deputy Director General (TB), CTD, New
Delhi by proposing the revised criteria for selection of
Senior Tuberculosis Laboratory Supervisors (STLS)
// 5 //
and Lab Technicians. In the said letter, it has been
indicated that for the post of Laboratory Technicians,
the candidates should have passed 10+2 Science with
Diploma or Certificate course in Medical Laboratory
Technology or its equivalent. In clause (C) it has been
indicated that for the posts of STLS and Laboratory
Technicians, the candidates who have completed
DMLT course after Matriculation or equivalent may
also be considered. Such a proposal for revised criteria
has been made due to non availability of adequate
number of institutions approved by the AICTE, as the
State is having only three government medical
colleges, which are AICTE approved institutions and
required posts of STLS and Laboratory Technicians
could not be filled up due to non availability of eligible
candidates. In view of such proposal of the Director,
Health Services, the Director General of Health
Services, CTD, Government of India, New Delhi wrote
a letter to the State TB Officer, Odisha on 19.08.2005
vide Annexure-10 approving the proposal of the
// 6 //
Director in respect of the State of Odisha. As per the
criteria of selection prescribed by the Director, Health
Services, vide letter dated 14.08.2005 in Annexure-9,
which was duly approved by the Director General of
Health Services, CTD, Government of India, New
Delhi, vide order dated 19.08.2005 under Annexure-
10, the Director, Health Services, Odisha, vide letter
dated 07.03.2006 under Annexure-11, wrote to Chief
District Medical Officers of all the districts for issuing
advertisement for selection and appointment of
contractual Laboratory Technicians and STLS under
RNTCP. In the said letter, the criteria as well as the
qualification for the post of Laboratory Technicians
was prescribed, according to which the candidates,
having 10+2 in Science with Diploma or Certificate
course in Medical Laboratory Technology or its
equivalent, would be eligible to apply, and that even
the candidates who completed DMLT course after
matriculation or equivalent from three Medical
Colleges of Odisha would also be considered for
// 7 //
appointment. Consequently, the Mission Director,
National Rural Health Mission (NRHM), Odisha issued
an advertisement in December, 2006 under Annexure-
1 for filling up of the post of Laboratory Technicians
indicating therein that the candidates must have
passed the Laboratory Technician course from any of
3 Medical Colleges of the State or from a recognized
private institution to be eligible to apply for
appointment with a consolidated pay of Rs.5040/-. It
was also mentioned that the appointment would be
made purely on merit basis; and the candidates
belonging to the same district would be given
preference; and interested candidates fulfilling the
eligibility were required to apply in the prescribed
format in A/4 size paper; and the completely filled in
application forms, along with other documents, should
reach the office of the CDMO of the concerned district
on or before 05.01.2007. In the note of the
advertisement, the documents which were to be
produced by the candidates were indicated.
// 8 //
3.2 The petitioners, having requisite
qualification of Diploma in Medical Laboratory
Technology from the State Government recognized
colleges/institutions applied for the post of Laboratory
Technicians and by following due process of selection
the petitioners were selected and issued with
appointment orders and accordingly they joined the
service on 11.09.2007, 12.09.2007 and 01.12.2012,
respectively.
3.3. The Government of Odisha in Health and
Family Welfare Department issued a resolution on
13.05.2013 by formulating a policy, for regularization
of services of contractual Laboratory Technicians and
STLS working under various projects/ schemes for
their absorption against the post of Laboratory
Technicians under General Health Care on completion
of six years of contractual service and the service
rendered under different schemes shall be counted for
the purpose of six years for such regular absorption.
// 9 //
3.4 The contractual Laboratory Technicians
working under the CDMO, Nuapada approached the
Odisha Administrative Tribunal, Cuttack Bench,
Cuttack in O.A. No. 4179 (C) of 2014 and batch
seeking regularization of their service, since their
services had not been regularized by the High Power
Committee of the Government on the plea that they
had not possessed the requisite educational
qualification from the government institute and had
prosecuted such course in private institutions which
had no AICTE approval. The Tribunal allowed all the
cases, vide order dated 20.07.2016, by directing the
Government to regularize the services of the
petitioners therein. The CDMO, Nuapada, vide order
dated 10.08.2016 under Annexure-13, implemented
the order of the Tribunal by regularizing the services
of these petitioners, who had completed six years of
contractual service, by extending all financial benefits.
Similarly, without interference of the Court, the
services of Laboratory Technicians working under
// 10 //
Chief District Medical Officer, Sambalpur were also
regularized on 04.12.2019. Thereby, the petitioners,
having stood in the same footing, their services should
have been regularized, as has been done in case of
Laboratory Technicians, who were having the same
qualification as that of the petitioners and whose
institutions were also not approval by the AICTE.
3.5 While the matter stood thus, in exercise of
power conferred under proviso to Article 309 of the
Constitution of India and in supersession of all orders
and instructions issued in this regard, the
Government of Odisha framed Odisha Laboratory
Technicians Service (Method of Recruitment and
Conditions of Service) Rules, 2019, (for short "2019
Rules") which came into force with effect from
08.03.2019, the date on which it was published in the
Odisha Gazette. As per Rule-4 of the said 2019 Rules,
which prescribes the conditions of taking over the
existing Laboratory Technicians, on the date of
commencement of these rules, all the contractual
// 11 //
Laboratory Technicians, who have been duly recruited
by concerned societies/schemes and have completed 6
(six) years of satisfactory contractual service, shall be
deemed to be regular Government employee as one
time measure subject to the eligibility criteria
prescribed under Rule-5. Rule-5 prescribes the
modalities for induction of Laboratory Technicians
into the Cadre. Rule-9 of the said Rules prescribes the
eligibility criteria for direct recruitment. Nothing has
been prescribed about the qualification in respect of
those contractual Laboratory Technicians/ STLS, who
had been continuing in different schemes/societies
and were to be inducted/ regularized as per Rule-4.
3.6 In accordance with 2019 Rules, the
Government issued letters on 20.03.2019 and
30.07.2019 to different Chief District Medical Officers
of the State for submission of information of the
paramedics, including the Laboratory Technicians,
who were continuing under different schemes/
societies of Health and Family Welfare Departments
// 12 //
for their regular induction as per 2019 Rules. One
Shri Narayan Sahu, who was working as Laboratory
Technician under CDM & PHO, Angul, had
approached the Odisha Administrative Tribunal,
Cuttack Bench, Cuttack in O.A. No. 3731 (C) of 2013,
which was allowed in his favour vide order dated
09.01.2017. The State challenged the said order
before this Court by filing W.P.(C) No. 14933 of 2017,
which was dismissed on 18.01.2019 and against such
dismissal order passed by this Court, the State
approached the apex Court by filing Special Leave
Petition (Civil) Diary No 10687/2019, which was also
dismissed vide order dated 07.05.2019. After
dismissal of the SLP by the apex Court, the
CDM&PHO, Angul regularized the services of Shri
Narayan Sahu, Laboratory Technician on completion
of six years of service by extending all the benefits.
Similarly, the CDM & PHO, Koraput vide memo dated
16.06.2020 under Anenxure-14 regularized one Jr.
Laboratory Technician, namely, Prabhat Kiran Nayak,
// 13 //
on completion of six years of contractual service, who
had also passed from the private institution without
having AICTE approval. The CDMO, Sundargarh had
also recommended a list of Laboratory Technicians,
who were working on contractual basis in Sundargarh
district, to the Government for their regularization.
Basing upon the proposal submitted by the CDMO,
Sundargarh, the High Power Committee of the
Government, vide order dated 17.11.2020
recommended the names of 11 candidates, who had
only passed from the government medical colleges,
and in the said recommended list the candidates who
were even appointed in February, 2019 were also
considered by declaring them as contractual
government employee indicating their regularization in
February, 2025 on completion of six years of service,
whereas the name of the petitioners and others have
been rejected on the ground that they have not passed
from the AICTE approved institution, even though
there are several vacancies available in respect of
// 14 //
Sundargarh district. In the HPC proceeding, instead of
correctly mentioning the names of the petitioners so
also the recommended candidates, different names
have been wrongly mentioned, although serial
numbers as per the gradation list/recommended list
submitted by the CDMO, Sundargarh in respect of the
petitioners as well as recommended candidates as per
the document annexed under Annexure-8 to the writ
petition, are correct. The CDMO, Sundargarh, vide
letter dated 23.12.2020 Annexure-R/2 to the
rejoinder, clarified such typographical error by
correctly mentioning the names of the petitioners as
well as the recommended persons by the HPC vide
letter dated 17.11.2020.
3.7 The Government of Odisha in Housing and
Family Welfare Department, vide order No. 9490 dated
02.04.2020, created 1000 posts in the Laboratory
Technician cadre on regular basis in different Health
institutions of General Health Care for different
districts including seven Government Medical Colleges
// 15 //
in the State of Odisha. Instead of regularizing/
inducting the petitioners in service, the authority are
going to fill up those 1000 number of vacant posts of
Laboratory Technicians through open market by fresh
candidates. Such action taken by the opposite parties
is not only arbitrary, unreasonable and contrary to the
provision of law, but also discriminatory and violative
of Article 14 of the Constitution of India. Hence these
writ petitions.
4. Mr. K.C. Sahu, learned counsel appearing
for the petitioners in W.P.(C) No. 33301 of 2020
vehemently contended that the Director of Health
Services, Orissa issued circular dated 24.09.2004 with
regard to contractual engagement of STS/ STLS/
ADEO/TBHV/LT under RNTCP prescribing essential
qualification under clasue-2 thereof that the
candidates should have possessed 10+2 in Science
with Diploma in Laboratory Technician course from
the Medical Colleges of the State. As adequate number
of candidates having Laboratory Technician course
// 16 //
from the Medical Colleges of the State were not
available, the Director of Health Services, Odisha
issued a fresh circular on 14.08.2005 having essential
qualification as 10+2 in Science with Diploma or
Certificate course in Medical Laboratory Technology or
its equivalent. Consequentially, the condition put in
earlier notification dated 24.09.2004, that Laboratory
Technician course from the Medical Colleges of the
State, was given a go bye. As a result thereof, there
was relaxation of essential qualification for the post of
Laboratory Technicians. The Director of Health
Services, Orissa on 07.03.2006 also issued another
letter, wherein the essential qualification was fixed as
10+2 in Science with Diploma or Certificate course in
Medial Laboratory Technology or its equivalent. In
terms of the above circular, advertisements were
issued, in pursuance of which, the petitioners applied
for and got selected and engaged as Laboratory
Technicians by following due procedure and have been
discharging their duties. While the things stood thus,
// 17 //
some of the similarly situated Laboratory Technicians
approached the Odisha Administrative Tribunal by
filing a batch of Original Applications, of which O.A.
No. 1066 (C) of 2015 (Subrat Kumar Mohanty v. State
of Odisha) was the lead case. While disposing of the
said batch of Original Applications, the Tribunal
directed that opposite party no.1 shall take a policy
decision for absorption of LT/STLS working under
RNTCP in the post of contractual Laboratory
Technician against regular vacancies of General
Health Care and while formulating such policy the
Government shall be free to reserve some percentage
of post of contractual Laboratory Technician of
General Health to be filled up from among the
LT/STLS working under the RNTCP and may also
formulate policy as to after how many years of service
under the General Health Care or under RNTCP on
contractual basis they will be regularized. As a
consequence thereof, the Government of Orissa in
Health and Family Welfare Department issued a
// 18 //
notification on 8th March, 2019 formulating "The
Odisha Laboratory Technician Service (Method of
Recruitment and Condition of Service) Rules, 2019".
Rule-4 of the 2019 Rules, prescribes the conditions
for taking over of existing Laboratory Technicians.
Under Rule-4(A) it is prescribed that on the date of
commencement of these rules, all the contractual
Laboratory Technicians, who have been duly recruited
by concerned societies/schemes and have completed
6(six) years of satisfactory contractual service, shall be
deemed to be regular government employees as one
time measure subject to fulfillment of eligibility
criteria as prescribed under Rule-5. Rule-5 envisages
modalities for induction of Laboratory Technicians
into the cadre, wherein it is specifically mentioned
that all the contractual Laboratory Technicians and
Senior TB Laboratory Supervisor who have completed
or are yet to complete 6 years of satisfactory
contractual service under the societies/schemes, shall
be deemed to have been inducted into the cadre,
// 19 //
subject to conditions prescribed in sub-rules (i) to (iii).
Thereby, the petitioners, having already rendered
service for more than 15 years, as a matter of course,
have to be absorbed following Rules-4 and 5 of the
2019 Rules. But, when such a statutory rule was
governing the field, on 16.11.2020 the members of the
High Power Committee passed an order and the
names of the present petitioners were not
recommended for induction/regularization on the plea
that they have acquired the qualification from the
institutions which have not been duly approved by the
AICTE and have acquired such qualification from a
private institution recognized by the Government of
Odisha.
4.1 It is further contended that the petitioners,
having satisfied minimum requirement, as per
notifications issued by the Government from time to
time, and also satisfying the other condition having
rendered satisfactorily contractual service for more
than 15 years, now they cannot be denied induction
// 20 //
into the cadre on the plea that they have acquired
qualification from a private recognized institutions,
which are not approved by the AICTE. When
regularization has already been granted in favour of
similarly situated Laboratory Technicians by the
Government on completion of six years of service, in
compliance to the direction given by the Tribunal in
respect of Nuapada district, and also suo motu for
Sambalpur district, the petitioners though have
completed more than 15 years, have not been
regularized, which is arbitrary, unreasonable,
discriminatory, contrary to the provisions of law and
violative of Article 14 of the Constitution of India.
4.2 Mr. Sahu, learned counsel further
contended that a similarly situated Laboratory
Technician, namely, Narayan Sahu, had approached
the Tribunal and succeeded in the said forum. The
State, having preferred appeal both in the High Court
as well as Supreme Court and having lost in both the
forums, have regularized the services of Shri Sahu.
// 21 //
The petitioners, having stood in the same footing, the
benefits of regularization should have been extended
to them without insisting upon approval from the
AICTE, because by the time the petitioners entered
into service, there was no requirement of approval of
the institution by the AICTE. It is also contended that
if the petitioners have acquired qualification from the
institutions recognized by the State Government,
merely because approval has not been given by the
AICTE to those institutions, they should not be
deprived of regularization as because when the
petitioners were inducted, as has been mentioned in
the circulars referred to above, the requirement of
approval by AICTE was not the eligibility criteria for
their induction. As such, having rendered more than
15 years of service, a right has been accrued in their
favour for regularization, which has been taken care of
in Rules-4 and 5 of 2019 Rules, as a consequence
thereof, their services should have been regularized
and they should have been extended with the financial
// 22 //
benefit at par with the similarly situated persons,
within a stipulated time.
5. Mr. S. Behera, learned counsel appearing
for the petitioners in W.P.(C) No. 32900 of 2020, Mr. P.
Chuli, learned counsel appearing for the petitioner in
W.P.(C) No. 33366 of 2020 and Mr. Subrat Mishra,
learned counsel appearing for the petitioner in W.P.(C)
no. 33346 of 2020 endorsed the argument advanced
by Mr. K.C. Sahu, learned counsel for the petitioners
in W.P.(C) No. 33301 of 2020.
6. Learned counsel for the petitioners relied
upon the decisions rendered in the case of Bhagwati
Prasad v. Delhi State Mineral Development
Corporation, AIR 1990 SC 371; Gujarat Agriculture
University v. Rathod Labhu Bechar and others,
AIR 2001 SC 706; State of Odisha v. Amit Kumar
Mishra, Special Leave to Appeal (C) No. 13077/2020
disposed of 12.01.2021; Ashok Kumar Uppal and
others v. State of J& K and others, AIR 1998 SC
// 23 //
2812; Gadei Swain v. State of Orissa and others,
129 (2020) CLT 56; Jema Topo & others v. State of
Orissa & Others, 129 (2020) CLT 408; Manas
Ranjan Pattnaik and others v. State of Odisha
and others, 2021 (II) OLR 109; Anil Kumar Das and
12 others v. State of Orissa & Others, 2009 (Supp-
II) OLR 412; State of Karnataka and others v. C.
Lalitha, (2006) 2 SCC 747; and State of Uttar
Pradesh and others v. Arvind Kumar Srivastava
and others, (2015) 1 SCC 347
7. Mr. H.M. Dhal, learned Additional
Government appearing for the State does not dispute
the factual matrix as discussed above, but contended
that since the High Power Committee of the
Government did not recommend the name of the
petitioners, as they had acquired the qualification
from the institutions not duly approved by the AICTE,
therefore, their cases could not be taken into
consideration for regularization. It is further
contended that not only petitioners, but also all those,
// 24 //
who had prosecuted their Laboratory Technicians
course in the institutions, which are not approved by
the AICTE nor by the Government of Orissa, their
services were not regularized. So far as applicability of
2019 Rules is concerned, he laid emphasis on Rules-4
and 5 of the said Rules and contended that all
contractual STLS and Laboratory Technicians, who
have completed or yet to complete six years of
satisfactory contractual service under the societies/
schemes should be deemed to have been inducted into
the cadre, subject to conditions inter alia that such
Laboratory Technicians must have minimum
educational qualification and other eligibility criteria
as per Rule-9 of 2019 Rules at the time of engagement
under the societies/schemes, since Rule-9 of the said
2019 Rules speaks about the eligibility criteria for
direct recruitment. Sub-rule (v) of Rule-9 speaks
about the minimum educational qualification for the
post of Laboratory Technicians, as specified in
column-4 of the Appendix, that one must have passed
// 25 //
+2 Science Examination under Council of Higher
Secondary Education Orissa/ equivalent, and passed
Diploma in Medical Laboratory Technology from
Government Medical College & Hospital of the State/
any other private institution recognized by
Government of Odisha or All India Council of
Technical Education. As the petitioners do not possess
such qualification, their services are not to be
regularized in terms of 2019 Rules. Thereby, he
contended that the writ petitions merit no
consideration and are to be dismissed.
8. This Court heard Mr. K.C. Sahu, learned
counsel for the petitioners in W.P.(C) No. 33301 of
2020; Mr. S. Behera, learned counsel for the
petitioners in W.P.(C) No. 32900 of 2020; Mr. S.
Mishra, learned counsel for the petitioner in W.P.(C)
No. 33346 of 2020; Mr. P. Chuli, learned counsel for
the petitioner in W.P.(C) No. 33366 of 2020; and Mr.
H.M. Dhal, learned Additional Government Advocate
by hybrid mode, and perused the record. Pleadings
// 26 //
having been exchanged between the parties, with their
consent, the writ petition is being disposed of finally at
the stage of admission.
9. There is no dispute that all the petitioners
in the above noted writ petitions have acquired their
qualification from recognized institutions of the State
of Odisha, which were not approved by the AICTE. But
fact remains by the time they were recruited, such
qualification had not been prescribed by the
Government. The reason being, sufficient number of
candidates having such technical qualification were
not available at the relevant point of time. That is why,
the Government, in supersession of the condition of
approval from AICTE stipulated that the candidates
having passed 10+2 Science with Diploma or
Certificate course in Medical Laboratory Technology or
its equivalent, can apply for the post. All the
petitioners have been selected by following due
processes of selection pursuant to the advertisement
issued by the Government. Thereby, once they have
// 27 //
been selected by following due process of selection,
pursuant to the advertisements and given contractual
engagement with a consolidated salary of Rs.5040/-
per month, a right has already been accrued in their
favour, after completion of six years of service, for
regularization. Not only that some of the similarly
situated Laboratory Technicians those who had
acquired qualification from the institutions, without
having approval from AICTE, had approached the
Tribunal in O.A. No. 4179 (C) of 2014 and batch and
pursuant to the order dated 20.07.2016 passed
therein, their services were regularized on 10.08.2016,
even without assailing the same before the higher
forum. In respect of Sambalpur district, suo motu the
services of similarly situated Laboratory Technicians
were also regularized on 04.12.2019. In case of
Narayan Sahu, the Tribunal had directed for
regularization of his service in O.A. No. 3731 (C) of
2013 disposed of on 09.01.2017. The same having
been affirmed by this Court in W.P.(C) No. 14933 of
// 28 //
2017, vide order dated 18.01.2019, by dismissing the
writ petition, as well as by the apex Court in SLP
(Civil) Diary No. 10687 of 2019, vide order dated
07.05.2019, dismissing the SLP, he has also been
extended with the benefit of promotion. The
petitioners, being stood in the same footing with the
Laboratory Technicians named above, their services
should have been regularized without creating any
hindrance but the High Power Committee, without
application of mind, in its minutes of meeting held on
16.11.2020 did not recommend the name of the
petitioners for induction as regular employee and, as
such, has acted arbitrarily, unreasonably and in
violation of Article 14 of the Constitution of India.
10. The Government of Orissa in Health and
Family Welfare Department issued a Resolution on
13.05.2013 in Annexure-4 indicating therein that the
Government was pleased to formulate a policy on
regularization of services of contractual Laboratory
Technicians working in General Health Care and
// 29 //
communicated the same vide Resolution No. 28516-H
dated 30.12.2008. In spite of above circular/
resolution, there were still some doubts in certain
quarters regarding regularization of Contractual
Laboratory Technicians. Therefore, in supersession of
the circular issued in this regard, Government after
careful consideration was pleased to formulate a
comprehensive policy on regularization of the
Contractual Laboratory Technicians working under
General Health Care to the following effect:-
1. With a view to regularizing Contractual Laboratory
Technicians, regular post of Laboratory Technicians
shall be created which were abolished earlier in lieu of
contractual engagement. Such creation of regular posts,
shall not be exceed the number of regular posts
abolished earlier for contractual engagement.
2. The revival of posts for regularization shall be limited
strictly to the number of Contractual Laboratory
Technicians actually available under the appointing
authority.
3. Regularization of Contractual Laboratory Technician
should be made on the basis of their seniority/date of
joining in respective establishment under General
Health Care (i. e., against sanctioned post of
Laboratory Technicians as Contractual Laboratory
Technicians) subject to completion of six years of
uninterrupted service. Their past service period under
various schemes/ establishments can be counted
towards their length of service at the time of
regularization in the present establishment, but they
// 30 //
cannot claim their seniority from the date of joining
earlier in the previous establishment.
4. The number of Laboratory Technicians to be regularized
will be subject to category wise number of sanctioned
posts lying vacant under respective appointing
authorities. In no case regularization should be effected
beyond the number of sanctioned posts under the
respective authorities.
5. During absorption of Laboratory Technicians from one
scheme to another, there may be some interruptions in
service due to closure of projects. Such interruptions up
to maximum period of three months shall be condoned
by the appointing authority after due verification of
relevant documents for computation of six years of
uninterrupted service which were not due to the fault of
employees but due to closure of one project and
absorption in another. But, interruptions period due to
the fault of the employees and the period beyond three
months of interruption shall not be considered for
computation of six years uninterrupted service. The
period of interruption that will be condoned is subject to
concurrence of Administrative Department.
6. Regularization should be made in respect of those
Laboratory Technicians only who have been recruited
by following due and transparent procedure of
recruitment, i. e., advertisement in newspaper, selection
through a selection committee and following the
provisions of reservation policy in order to maintain the
required representation of reserve category candidates.
A certificate to this effect shall be furnished by the
appointing authority at the time of regularization.
7. The date of regularization of Contractual Laboratory
Technicians should be made prospectively, i. e., from
the date of actual regularization in the substantive post
and not otherwise.
8. The past service of Contractual Laboratory Technicians
and Senior Tuberculosis Laboratory Supervisor (STLS)
having Diploma in Medical Laboratory Technician
(DMLT) qualification working under Revised National
Tuberculosis Control Programme (RNTCP) Scheme
earlier under different Chief District Medical Officers
(CDMOs) and subsequently absorbed under separate
// 31 //
establishments shall also be considered for
regularization after their absorption against the post of
Contractual Laboratory Technicians under General
Health Care subject to proper verification of documents
by appointing authorities. The appointing authority
should ensure one undertaking from the Contractual
Laboratory Technician to the effect that any
false/fabricated information in this regard will entail
cancellation of regularization order.
9. The past services of Contractual Laboratory
Technicians and Senior Tuberculosis Laboratory
Supervisor (STLS) working under various
Project/Schemes like Swasthya Bikash Samity, Rogi
Kalyan Samity, Zilla Swasthya Samity, National Rural
Health Mission, Re-Productive and Child Health,
Revised National Tuberculosis Control Programme,
Odisha Health System Development Project, Odisha
State Aids Control Society shall also be counted for
computation of six years at the time of regularization
after their absorption against the post of Contractual
Laboratory Technicians under General Health Care
subject to proper verification of documents by
appointing authorities.
10. In case any regularization is made in contravention
to above terms and conditions, the appointing authority
will be held responsible for such lapse and the
regularization order shall be cancelled forthwith.
This has been concurred in by Finance Department
vide their UOR No. 285-SS-III., dated the 21st December
2012."
11. If the aforesaid resolution is read carefully,
it would be evident that the Government was
conscious enough to regularize the services of the
petitioners and, therefore, formulated such a policy,
whereby it has been specifically provided that past
// 32 //
services of contractual Laboratory Technicians
working under different organizations would be
counted for completion of six years at the time of
regularization after their absorption against the post
of contractual Laboratory Technicians under General
Health Care, subject to proper verification of
documents by the appointing authorities. It has also
been provided that responsibility shall be fixed on the
appointing authority for the lapses, if any
regularization is done in contravention to the terms
and conditions mentioned therein. As per Clause-5
and 6, whereby modalities have been prescribed for
regularization, the regularization should be made in
respect of those Laboratory Technicians only who have
been recruited by following due and transparent
procedure of recruitment, i.e., advertisement in
newspaper, selection through a selection committee
and following the provisions of reservation policy in
order to maintain the required representation of
reserve category candidates and a certificate to this
// 33 //
effect shall be furnished by the appointing authority at
the time of regularization. It has also been clarified
that the date of regularization of Contractual
Laboratory Technicians should be made prospectively,
i.e., from the date of actual regularization in the
substantive post and not otherwise.
12. In view of such position, it is apparently
clear that even if the petitioners have acquired the
requisite qualification from the institutions, which
have not been duly approved by the AICTE, yet their
services were to be regularized in terms of the
resolution dated 13.05.2013. More so, if services of
similarly situated Laboratory Technicians have already
been regularized in terms of the direction given by the
Tribunal, after the order of the Tribunal was
confirmed by this Court as well as apex Court, as
already mentioned herein before, the petitioners could
not have been denied such benefits, since they stood
at par with their counter parts whose services have
already been regularized.
// 34 //
13. The Government of Odisha in Health and
Family Welfare Department issued a notification on
08.03.2019, with regard to framing of Odisha
Laboratory Technician Service (Method of Recruitment
and Conditions of Service) Rules, 2019 in accordance
with proviso to Article 309 of the Constitution of India.
Rules- 4, 5, 9 and 20 of 2019 Rules along with
schedule attached thereto, being relevant for the
purpose of this case, are quoted below:-
"xxx xxx xxx
4. Conditions of taking over of existing Laboratory
Technicians:-- (A) (1) On the date of commencement of
these rules , all the contractual Laboratory Technicians
who have been duly recruited by concerned
societies/Schemes and have completed 6 (six) years of
satisfactory contractual service shall be deemed to be
regular government employees as one time measure
subject to fulfillment of eligibility criteria as prescribed
under rule 5:
Provided that all the contractual Laboratory
Technicians who are yet to complete six years of
contractual service and having eligibility criteria as
prescribed under rule 5 shall be deemed to be contractual
government employees as one time measure and shall be
regularized as and when they complete six years of
satisfactory contractual service, including the service that
has already been rendered in concerned scheme/society:
Provided further that those contractual Laboratory
Technicians, who do not meet the eligibility criteria, as
mentioned under rule 5 shall continue as such under the
// 35 //
OSH&FW Society till closure of the project, retirement or
disengagement, whichever is earlier:
(2) On their regularisation, such posts of contractual
Laboratory Technicians of the OSH&FW Society as in sub-
clause (1) shall be deemed to have been abolished from
the date of such induction of contractual Laboratory
Technicians into the Cadre. As these posts shall cease to
exist, no further recruitment to fill up these posts shall be
made by the OSH & FW Society other than by the
Commission:
5. Modalities for Induction of Laboratory
Technicians into the Cadre:--All the contractual
Laboratory Technicians and Senior TB Laboratory
Supervisor who have completed or are yet to complete 6
years of satisfactory contractual service under the
Society/ Scheme, shall be deemed to have been inducted
into the Cadre, subject to following conditions;
(i) Such Laboratory Technicians who have the
minimum educational qualification & other
eligibility criteria as per rule 9 at the time of
engagement under the Society/Scheme;
(ii) who have been selected through an open &
transparent recruitment process;
(iii) while inducting, the prevalent reservation
principles as in rule 7 shall be followed
xxx xxx xxx
9. Eligibility Criteria for direct recruitment:--In order
to be eligible for direct recruitment to the post of
Laboratory Technician, a candidate shall have to satisfy
the following conditions namely:--
(i) Nationality: - He must be a citizen of India;
(ii) Age limit: - He must have attained the age of 21
years and must not be above the age of 32 years:
Provided that the upper age limit in respect of the
reserved categories of candidates referred to in rule 7 shall
be relaxed in accordance with the provisions of the Act,
// 36 //
rules, orders or instructions for the time being in force, for
their respective categories.
Further provided that, the upper age limit for
contractual Laboratory Technicians under OSH&FW
Society/Scheme who shall take part in the recruitment
process, if otherwise eligible, shall be 50 years as on the
date of advertisement.
(iii) Knowledge in Odia:-He must -(a) be able to read,
write and speak Odia and
(b) have passed middle school examination with
Odia as language subject ; or
(c) have passed Matriculation or equivalent
examination with Odia as medium of examination in
non-language subject; or
(d) have passed in Odia as language subject in the
final examination of Class-VII from a school or
educational Institution recognized by the
Government of Odisha or the Central Government; or
(e) have passed a test in Odia in Middle English
School standard conducted by the School & Mass
Education Department.
(iv) Marital status: -lf married, he must not have more
than one spouse living:
Provided that the Government may, if satisfied that
such marriage is permissible under the personal law
applicable to such person or there are other specific
grounds for doing so, exempt any person from the
operation of this rule.
(v) Minimum Educational Qualification:- The
educational qualification of the candidate for the post of
Laboratory Technician shall be as specified at column 4 of
the Appendix.
(vi) Physical Fitness: - A candidate must be of good
mental and physical health and free from any physical
defects likely to make him incapable of discharging his
normal duties in the Service.
// 37 //
(vii) A candidate who after such medical examination as
the Government may prescribe is not found to satisfy these
requirements as specified in clause (VI) shall not be
appointed to the Service.
(viii) He must have registered his name in Laboratory
Technician Council in the State and have possessed valid
registration certificates as on the date of the
advertisement.
xxx xxx xxx
20. Relaxation:-- When it is considered by the
Government that it is necessary or expedient to do so in
the public interest, it may, by order, for reasons to be
recorded in writing, relax any of the provisions of these
rules in respect of any class or category of the employees.
xxx xxx xxx
SCHEDULE
(See rules 3, 9 & 12)
SI. Name of the Method of Minimum qualification Eligibility
No. Post, recruitment for direct recruitment criteria for
Classification promotion
and cadre
1 Laboratory Direct Must have passed +2
Technician recruitmen Science Examination
(District t under Council of
Cadre) Higher Secondary
Education, Odisha /
equivalent, and passed
Diploma in Medical
Laboratory Technology
from Government
Medical College &
Hospitals of the State /
any other private
Institutions recognized
by Government of
Odisha or All India
Council of Technical
Education
2 Senior Promotion Completion of
Laboratory from 10 (Ten)
Technician Laboratory years of
(State Cadre Technician continuous
services as
Laboratory
Technician
// 38 //
14. As per Rule-4(A)(1) of 2019 Rules, which is
extracted above, on the date of commencement of
these rules, all the contractual Laboratory
Technicians, who have been duly recruited by
concerned societies/schemes and have completed 6
(six) years of satisfactory contractual service shall be
deemed to be regular government employees as one
time measure subject to fulfillment of eligibility
criteria as prescribed under Rule-5.
15. Rule-5 which deals with the Modalities for
Induction of Laboratory Technicians into the Cadre, in
sub-rule (i) stipulates that such Laboratory
Technicians should have the minimum educational
qualification & other eligibility criteria as per Rule-9 at
the time of engagement under the society/scheme.
Rule-9 prescribes the eligibility criteria for direct
recruitment. Under sub-rule (v) thereof, which deals
with minimum educational qualification, it is provided
that the educational qualification of the candidate for
the post of Laboratory Technician shall be as specified
// 39 //
at column 4 of the Appendix. The minimum
qualification for direct recruitment to the post of
Laboratory Technicians, as prescribed in the schedule
attached to Rules-3, 9 and 12, is that the candidate
must have passed +2 Science Examination under
Council of Higher Secondary Education, Odisha /
equivalent, and passed Diploma in Medical Laboratory
Technology from Government Medical College &
Hospitals of the State / any other private institutions
recognized by Government of Odisha or All India
Council of Technical Education. Therefore, acquisition
of qualification from an institution approved by All
India Council of Technical Education is not
mandatory. Therefore, the services of contractual
Laboratory Technicians, who acquired qualification
even from other private institutions recognized by the
Government of Odisha and appointed on contractual
basis, can also be regularized. By putting the word
"or" in between the words "any other private
Institutions recognized by Government of Odisha"
// 40 //
and "All India Council of Technical Education", it
would imply that those two conditions are disjunctive.
Thereby, a candidate should have acquired the
qualification either from any other private Institutions
recognized by Government of Odisha "or" All India
Council of Technical Education. In such view of the
matter, acquisition of qualification from the institution
approved by All India Council of Technical Education
is not a condition precedent for regularization of all
contractual Laboratory Technicians, those who have
been appointed prior to the commencement of the
2019 Rules. More so, Rule 4-(A) (1) lays emphasis on
the date of commencement of these rules and clearly
envisages that all the contractual Laboratory
Technicians who have been duly recruited by
concerned societies/schemes and have completed 6
(six) years of satisfactory contractual service shall be
"deemed to be regular" government employees as
"one time measure" subject to fulfillment of eligibility
criteria as prescribed under Rule-5.
// 41 //
16. The very use of words "deemed to be
regular" gives a prima facie view that those who are
continuing in Government service on contractual
basis, their services are deemed to be regularized.
In St. Aubyn (L.M.) v. A.G., 1952 AC 15 : [1951]
2 AII ER 473 (HL), the apex Court held as follows:-
"The word 'deemed' is used to impose an artificial
construction of a word or phrase in a statute that would
not otherwise prevail. Sometimes it is used to put beyond
doubt a particular construction that might otherwise be
uncertain. Sometimes it is used to give a comprehensive
description that includes, what is obvious, what is
uncertain and what is impossible."
The word 'Deemed' as per Worcester
Dictionary, is :
"The word 'deemed' is used in various senses. Sometimes
it means 'generally regarded'. At other time it signifies
"taken conclusively to be". Its various meanings are to
been to be hold in belief, estimation, or opinion; to judge;
adjudge; decide; consider to be; to have or to be of an
opinion; to esteem; to suppose; to think, decide or believe
on consideration; to account; to regard; to adjudge or
decide; to conclude upon consideration.
In Ramprakash v. S.A.F. Abbas, AIR 1972 SC
2350, the apex Court, while dealing with Rule-3(3)(b)
// 42 //
of Indian Administrative Service (Regulation of
Seniority) Rules, 1954, held as follows:-
"The use of word 'deemed' in the rule indicates that the
Government has the power to make a retrospective
declaration because, it is only after promotion that there is
any occasion to consider whether the period of officiation
prior to promotion will be counted for purpose of seniority."
In State of Karnataka v. Shri Ranganatha
Reddy, AIR 1978 SC 215, the apex Court held as
follows:-
"The use of word "deemed" does not invariably and
necessarily imply an introduction of a legal fixation but it
has to be read and understood in the context of the whole
statute."
In Consolidated Coffee Ltd v. Coffee Board,
AIR 1980 SC 1468, the apex Court held as follows:-
"A deemed provision might be made to include what is
obvious or what is uncertain or to impose for the purpose
of a statute an artificial construction of a word or phrase
that would not otherwise prevail."
In Rishabh Agro Industries Ltd V. P.N.B
Capital Services Ltd, (2000) 5 SCC 515, the apex
Court while considering the provisions contained in
Section 441 of the Companies Act (1 of 1956) held as
follows:-
// 43 //
"The word 'deemed' as used in Section 441 of the Act
means "supposed', 'considered', 'construed', 'thought',
'taken to be' or 'presumed'."
17. Therefore, use of words "deemed to be
regular" in Rule-4(A)(1) of 2019 Rules, clearly
indicates that the Government has the power to make
retrospective declaration that the contractual
Laboratory Technicians who have been duly recruited
by the concerned societies/schemes and have
completed 6 (six) years of satisfactory contractual
service, as a one time measure, they are to be
regularized subject to fulfillment of eligibility criteria
prescribed in Rule-5. Therefore, when Rule-5 (i)
stipulated that contractual Laboratory Technicians
shall be inducted into the cadre if they have the
educational qualification and other eligibility criteria
as per Rule-9, which speaks in sub-rule (iv) that
educational qualification for the post of Laboratory
Technicians shall be as specified at Column-4 of the
Appendix. The petitioners having been selected by
following due process of selection, pursuant to an
// 44 //
advertisement, and having the requisite qualification
from the private institutions recognized by the State
Government, their services are to be regularized, even
though the institutions, wherefrom they have passed
have not been approved by the AICTE. As per Column-
4 of the Appendix to Rule-9, where qualification has
been prescribed, approval of AICTE is not the
mandatory requirement, because of use of the word
"or" in between "any other private Institutions
recognized by Government of Odisha" and "All India
Council of Technical Education". The word "or" is a
disjunctive one and, therefore, since the petitioners
have acquired qualification from private institutions
recognized by Government of Odisha, their cases can
be considered for regularization.
18. The word "or" is normally disjunctive and
'and' is normally conjunctive. In Hyderabad Asbestos
Cement Product v. Union of India, 2000 (1) SCC
426: AIR 2000 SC 314, it has been held that 'or' in its
// 45 //
natural sense denotes an 'alternative' and is not read
as 'substitutive'.
In Green v. Premier Glynrhonwy State Co.,
(1928) I KB 561, it has been held that 'or' does not
generally mean 'and' and 'and' does not generally
mean 'or'. The same view has also been taken in
Nasiruddin v. State Transport Appellate Tribunal,
(1975) 2 SCC 671:AIR 1976 SC 331 and Municipal
Corporation of Delhi v. Tek Chand Bhatia, (1980) 1
SCC 158 :AIR 1980 SC 360 and State (Delhi
Administration) v. Puran Mal (1985) 2 SCC 589: AIR
1985 SC 741. In Mersey Docks and Harbour Board
v. Henderson Bros., (1888) 13 AC 595, it has been
held that as pointed out by LORD HALSBURY the
reading of 'or' and 'and' is not to be resorted to,
"unless some other part of the same statute or the
clear intention of it requires that to be done".
In Union of India & Ors. v. Rabinder Singh,
(2012) 12 SCC 787, the apex Court held that where
// 46 //
provision is clear and unambiguous the word 'or'
cannot be read as 'and' by applying the principle of
reading down.
Applying the same principle to the case at
hand, here the word 'or' used in between "any other
private Institutions recognized by Government of
Odisha" and "All India Council of Technical
Education" is disjunctive one. Therefore, it cannot be
read as 'and' as the provision is clear and
unambiguous. Therefore, there is no necessary for
applying the principle of read down to read 'or' as
'and'.
19. In view of such position, admittedly the
petitioners have acquired qualification from private
institutions recognized by the Government of Odisha
and certainly not approved by the AICTE, which was
also not the required condition at the time of their
entry into service as per the advertisement issued.
This apart, Rule-20 of 2019 Rules clearly stipulates
// 47 //
that when it is considered by the Government that it is
necessary or expedient in the public interest to relax
such provisions of the Rules, it may relax the
provisions in respect of any class or category of the
employees. Accordingly, by invoking such power as
stipulated under Rule-20 of 2019 Rules, as it was
deemed necessary and expedient, the State
Government relaxed such acquisition of qualification
from the institution duly approved by the AICTE by
putting the word "or" in between the words "any other
private Institutions recognized by Government of
Odisha" and "All India Council of Technical
Education", to make the petitioners eligible to be
recruited and subsequently regularized in their
services taking into consideration their past service
rendered as they have been appointed by following
due process of selection pursuant to the
advertisement issued by the opposite parties. By the
time the petitioners had been selected, they had got
the requisite qualification, as per the advertisement
// 48 //
issued at the relevant point of time. They having got
the requisite qualification, now the State authorities
cannot turn around and say that the petitioners have
not passed from the institutions approved by the
AICTE and deprive them the benefit of regularization.
This itself amounts to arbitrary and unreasonable
exercise of power and hits by Article 14 of the
Constitution of India.
20. The initial minimum educational
qualification prescribed for the post is undoubtedly a
factor to be reckoned with, but it is so at the time of
initial entry into service. Once appointments were
made by following due process of selection, pursuant
to advertisement having been issued, and petitioners
were allowed to work for a considerable length of time,
it would be hard and harsh to deny them the
confirmation in the respective posts on the ground
that they lack the prescribed educational
qualifications. In Bhagwati Prasad (supra), the apex
Court at paragraph-6 held as follows:-
// 49 //
"6. The main controversy centres round the question
whether some petitioners are possessed of the requisite
qualifications to hold the posts so as to entitle them to be
confirmed in the respective posts held by them. The
indisputable facts are that the petitioners were appointed
between the period 1983 and 1986 and ever since, they
have been working and have gained sufficient experience
in the actual discharge of duties attached to the posts held
by them. Practical experience would always aid the person
to effectively discharge the duties and is a sure guide to
assess the suitability. The initial minimum educational
qualification prescribed for the different posts is
undoubtedly a factor to be reckoned with, but it is so at
the time of the initial entry into the service. Once the
appointments were made as daily rated workers and they
were allowed to work for a considerable length of time, it
would be hard and harsh to deny them the confirmation in
the respective posts on the ground that they lack the
prescribed educational qualifications. In our view, three
years' experience, ignoring artificial break in service for
short period/periods created by the respondent, in the
circumstances, would be sufficient for confirmation. If
there is a gap of more than three months between the
period of termination and re-appointment that period may
be excluded in the computation of the three years period.
Since the petitioners before us satisfy the requirement of
three years' service as calculated above, we direct that 40
of the senior-most workmen should be regularised with
immediate effect and the remaining 118 petitioners should
be regularised in a phased manner, before April 1, 1991
and promoted to the next higher post according to the
standing orders. Xxx xxx".
21. In Gujarat Agriculture University (supra),
at paragraph 26, the apex Court observed as follows:-
"26. In the light of the aforesaid decisions we now
proceed to examine the proposed scheme. Under Clause 1
it is proposed that all daily wage workers, whether skilled,
semi-skilled or unskilled who have completed 10 years or
// 50 //
more of continuous service with a minimum of 240 days in
each calendar year as on 31st December, 1999 is to be
regularised and be put in the time scale of pay applicable
to the corresponding lowest grade in the university.
However, the said regularisation is subject to some
conditions. Under Clause 1(a) such employee is eligible
only if he possess the prescribed qualifications for the post
at the time of their appointment. The strong objection has
been raised to this eligibility clause. The submission is,
those working for a period of 10 or more years without any
complaint is by itself a sufficient requisite qualification and
any other rider on the facts of this case would prejudice
these workers. We find merit in this submission. We have
perused the qualifications referred in the aforesaid
recruitment rules according to which, qualification for Peon
is that he should study up to 8th std., for Operator-cum-
Mechanic, should have Diploma in Mechanic having
sufficient knowledge of vehicle repairing experience in
automobiles or tractors Dealers workshop for two years,
for Chowkidar, he must be literate and have good
physique. Literate is not defined. For Plumber to have I.T.I.
Certificate.
We feel that daily rate workers who have been
working on the aforesaid posts for such a long number of
years without complaint on these posts is a ground by
itself for the relaxation of the aforesaid eligibility condition.
It would not be appropriate to disqualify them on this
ground for their absorption, hence Clause 1(a) need
modification to this effect."
In paragraph-27 of the said judgment, reference has
also been made to the case of Bhagwati Prasad
(supra) and in paragraph-29 it has been ruled that the
decision to absorb some of the employees at one point
of time or in a phased manner depends on facts and
circumstances of each case.
// 51 //
22. In the instant case, Rule-4(A)(1) clearly
specifies that all the contractual Laboratory
Technicians who have been duly recruited by
concerned societies/Schemes and have completed 6
(six) years of satisfactory contractual service shall be
deemed to be regular government employees as one
time measure subject to fulfillment of eligibility
criteria as prescribed under Rule-5. Thereby, all the
petitioners, having completed six years of service on
contractual basis on being recruited by following due
process of selection pursuant to an advertisement,
are deemed to be regular government employees as
one time measure as per eligibility criteria prescribed
under Rule-5.
23. A similar case had come up before this
Court, in which absorption under Odisha Pharmacist
Service (Methods of Recruitment & Conditions of
Service) Rules, 2015 was under consideration. In that
case, under Rule-6 of 2015 Rules, the mode of
selection prescribed for Pharmacists was through a
// 52 //
selection process and the claim of the Pharmacists
employed on contractual basis under different
schemes for regularization was denied. Since it was
provided in Rule-4 of the very same Rules that for
such contractual Pharmacists would be deemed to be
absorbed, once they complete six years of satisfactory
contractual service, this Court while considering the
same, extended the benefit to the similar persons who
were petitioners in W.P.(C) No. 1353 of 2020 (Amit
Kumar Mishra and others V. State of Odisha and
others) disposed of vide judgment and order dated
03.02.2020. The said judgment and order passed by
this Court was assailed by the State in Special Leave
to Appeal (C) No. 13077/2020, which was disposed of
by the apex Court vide order dated 12.01.2021
holding as follows:-
"xxx xxx xxx. In fact the pharmacists who are yet to
complete six years for contractual service are to be deemed
to be contractual Government employees and would be
regularized as and when they complete six years of
satisfactory service as per the proviso. In view of the
aforesaid there is little doubt that as per the statutory
Rules framed by the State of Odisha themselves they have
provided for a deeming provision for such contractual
// 53 //
employed Pharmacists and Rule 5 talks about modalities
for induction of the Pharmacists in the cadre while Rule 6
mentions the method of recruitment. Their induction in the
cadre is to based on a minimal educational qualification
and other eligibility criteria as per Rule 10 and it is
nobody's case that the respondent do not meet this
requirement.
Learned counsel for the petitioner(s) states that
apparently the Rules are not very happily worded and
what was envisaged was that even the contractual
Pharmacists would have to go through an open selection
process in view of Rule 5(ii). If it was so, in our view, that
the Rule should have been so framed as Rule 4 introduces
a deeming fiction for regular employees who have
completed six years of service.
In view of the aforesaid, we are not inclined to
interfere with the impugned order."
24. Pharmacist Service Rules, 2015 are akin to
2019 Rules meant for Laboratory Technicians.
Therefore, by applying the said analogy to the present
case, the petitioners, who have completed six years of
contractual service, are deemed to be contractual
Government employees and would be regularized as
and when they complete six years of satisfactory
service as per the statutory Rules framed by the State
of Odisha which provided for a deeming provision for
regularization of such contractual Laboratory
Technicians.
// 54 //
25. Furthermore Rule-5 of 2019 Rules talks
about modalities for induction of the Laboratory
Technicians in the cadre. Their induction in the cadre
is to be based on a minimal educational qualification
and other eligibility criteria as per Rule-9 and as such
it is nobody's case that the opposite parties do not
meet this requirement, save and except the institution
from which they have acquired the qualification has
not been approved by the AICTE. As has been stated
in Rule-5 (ii) of 2015 Rules for the pharmacists, that
the contractual Pharmacists would have to go through
an open selection process, the apex Court held, if that
be so, the Rules should have been so framed as Rule-4
introduces a deeming fiction for regular employees
who have completed six years of service on
contractual basis. Applying the same analogy, here
since the petitioners have been appointed by following
due process of selection pursuant to advertisement
and they were having the requisite qualification at the
relevant point of time, by invoking the deeming
// 55 //
provision as prescribed in Rule-4, their services have
to be regularized. Now, their claim cannot be denied
on the plea that they do not possess the qualification
from the institution duly recognized by the AICTE
rather the institution has been recognized by the State
of Odisha. Apart from the above, after rendering
services for so many years, a right has been accrued
in their favour to be regularly absorbed, as they have
gained experience in the same line as has been held
in Bhagawati Prasad (supra) and also in Gujarat
Agriculture University (supra)
26. In Ashok Kumar Uppal (supra), the
Government had promoted a candidate who has
nearest to the prescribed standard and topped in the
merit list by relaxing his standard prescribed for
promotion. While dealing with that case, the apex
Court even gone to the extent to observe that
relaxation of rules is made to obviate the genuine
hardship caused to a class of employees. Thereby, the
action of the Government is neither arbitrary nor
// 56 //
capricious and accordingly held promotion by relaxing
the rules is proper. Applying the same analogy to the
case at hand, since the petitioners have acquired the
qualification from private institutions recognized by
the State and by following due process of selection
they were recruited and are continuing for more than
6 years on contractual basis, merely because their
institutions are not approved by the AICTE, they
cannot be denied regularization. Rather by applying
the relaxation clause under Rule-20 if the services of
the petitioners are regularized to obviate their genuine
hardship that cannot be construed either arbitrary or
capricious, and such absorption of the petitioners by
relaxing the rules would be just and proper.
27. As a matter of fact, 2019 Rules cannot have
a retrospective effect. Therefore, the eligibility
qualification for direct recruitment, which has been
prescribed under Rule-9 of 2019 Rules cannot be
applied retrospectively in a capricious manner to deny
the benefits to the petitioners, in view of the judgment
// 57 //
of this Court in Rajendra Prasad Singh V. State of
Orissa, 2001 (II) OLR 683, referred in the case of
Gadei Swain (supra).
28. In Manas Ranjan Pattnaik (supra), the
employment was given on contractual basis as
Multipurpose Health Worker (Male), subject to
condition that any claim to such post for regular
appointment shall not be entertained. The petitioners
therein had completed more than 15 years of services
on such basis, but similarly placed contractual
employees were absorbed on regular basis on
completion of 6 years of service. Consequentially, the
petitioners and similarly placed employees moved
erstwhile State Administrative Tribunal. Accordingly,
direction was given to the State Government to
regularize their services, pursuant to which though
their services were regularized, but subsequently the
same was cancelled. This Court held that cancellation
of such regularization is hit by principle of estoppels,
as the Government was bound by its promise to
// 58 //
regularize their services on completion of six years,
and that when similarly situated employees were
extended such benefit, there was no valid reason not
to extend similar benefit to the petitioners. Therefore,
the cancellation of regularization was set aside and
the petitioners' services were directed to be regularized
and consequentially the writ petition was allowed.
29. In Arvind Kumar Srivastava (supra), the
apex Court at paragraph-22 held as follows:-
"22. The legal principles which emerge from the reading
of the aforesaid judgments, cited both by the appellants as
well as the respondents, can be summed up as under:
22.1 The normal rule is that when a particular set of
employees is given relief by the Court, all other identically
situated persons need to be treated alike by extending
that benefit. Not doing so would amount to discrimination
and would be violative of Article 14 of the Constitution of
India. This principle needs to be applied in service matters
more emphatically as the service jurisprudence evolved by
this Court from time to time postulates that all similarly
situated persons should be treated similarly. Therefore,
the normal rule would be that merely because other
similarly situated persons did not approach the Court
earlier, they are not to be treated differently.
22.2 However, this principle is subject to well recognized
exceptions in the form of laches and delays as well as
acquiescence. Those persons who did not challenge the
wrongful action in their cases and acquiesced into the
same and woke up after long delay only because of the
reason that their counterparts who had approached the
// 59 //
Court earlier in time succeeded in their efforts, then such
employees cannot claim that the benefit of the judgment
rendered in the case of similarly situated persons be
extended to them. They would be treated as fence-sitters
and laches and delays, and/or the acquiescence, would
be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those
cases where the judgment pronounced by the Court was
judgment in rem with intention to give benefit to all
similarly situated persons, whether they approached the
Court or not. With such a pronouncement the obligation is
cast upon the authorities to itself extend the benefit thereof
to all similarly situated person. Such a situation can occur
when the subject matter of the decision touches upon the
policy matters, like scheme of regularisation and the like
(see K.C. Sharma & Ors. v. Union of India (supra). On the
other hand, if the judgment of the Court was in personam
holding that benefit of the said judgment shall accrue to
the parties before the Court and such an intention is
stated expressly in the judgment or it can be impliedly
found out from the tenor and language of the judgment,
those who want to get the benefit of the said judgment
extended to them shall have to satisfy that their petition
does not suffer from either laches and delays or
acquiescence."
30. In C. Lalitha (supra), the apex Court at
paragraph 29 held as follows:-
"29. Service jurisprudence evolved by this Court from
time to time postulates that all persons similarly situated
should be treated similarly. Only because one person has
approached the court that would not mean that persons
similarly situated should be treated differently. It is
furthermore well-settled that the question of seniority
should be governed by the rules. It may be true that this
Court took notice of the subsequent events, namely, that in
the meantime she had also been promoted as Assistant
Commissioner which was a Category I Post but the
direction to create a supernumerary post to adjust her
must be held to have been issued only with a view to
accommodate her therein as otherwise she might have
// 60 //
been reverted and not for the purpose of conferring a
benefit to which she was not otherwise entitled to."
31. In Jema Toppo (supra), this Court at
paragraph-7 observed as follows:-
"7. The petitioners belonged to S.C. and S.T. category.
Having satisfied with the qualification acquired by the
petitioners, pursuant to advertisement issued under
Annexure-1, and on verification of documents, the
petitioners were issued with engagement order, pursuant
to which they joined in the post and were continuing. But,
all on a sudden on 30.04.2010, they were terminated from
service. Though representation was filed in Annexure-4
series immediately on 02.05.2010, the same was not
considered, rather a fresh advertisement in the name of
walk in interview was issued on 11.07.2011 vide
Annexure-5 to fill up the vacancies with another set of
contractual employee. Fact remains, by rendering services
and discharging their duty as assigned to them from
07.12.2007 till the date of termination, i.e. 30.04.2010, the
petitioners have gained experience. But subsequently, by
filing counter affidavit, the opposite parties have stated
the reasons for disengagement of the petitioners from
service indicating that the institutions, from where they
have acquired qualification, do not come under the
approved training centre list, thereby the services of the
petitioners were terminated. But, the order of termination
does not reflect the said reason and for the first time in the
counter affidavit, the aforesaid reason has been stated.
Therefore, such reason is an afterthought and cannot be
accepted at this stage, and thus the order of termination
cannot sustain in the eye of law."
32. Considering from other angle, the
petitioners, having requisite qualification and by
following due process of selection having been
appointed and continuing in the post, have got a
// 61 //
legitimate expectation that their services would be
regularized after completion of six years. The legal
maxim "salus populi est suprema lex" (regard for
public welfare is the highest law) comes to an aid in
the instant case also in view of the judgments of the
apex Court in A. Mahudeswaran v. Govt. of T.N,
(1996) 8 SCC 617; Dr Meera Massey (Mrs) v. Dr Abha
Malhotra, (1998) 3 SCC 88; National Buildings
Constructions Corporation v. S. Raghunathan,
(1998) 7 SCC 66; State of West Bengal v. Niranjan
Singha, (2001) 2 SCC 326; State of Bihar v. S.A
Hasan, (2002) 3 SCC 566; Dr. Dr. Chanchal Goyal
(Mrs) v. State Of Rajasthan, (2003) 3 SCC 485; J.P
Bansal v. State of Rajasthan, (2003) 5 SCC
134; Hira Tikkoo v. Union Territory, Chandigarh,
(2004) 6 SCC 765 : AIR 2004 SC 3649, Ram Pravesh
Singh v. State of Bihar, (2006) 8 see 381;
Confederation of Ex-Servicemen Association v.
Union of India, (2006) 8 SCC 399 : AIR 2006 SC
// 62 //
2945; & Secy. State of Karnataka v. Uma Devi,
(2006) 4 SCC 1 : AIR 2006 SC 1806.
In the above judgments, it has been laid
down that the doctrine of legitimate expectation can
be pressed if a person satisfies the Court that he has
been deprived of some benefit or advantage which
earlier he had in the past been permitted by the
decision maker to enjoy or he has received the
assurance from the decision maker that such benefit
shall not be withdrawn without giving him an
opportunity of advancing reasons for contending that
it should not be withdrawn.
33. In Union of India v. Hindustan
Development Corporation, (1993) 3 SCC 499 : AIR
1994 SC 988, the supreme Court held as follows:
"On examination of some these important decisions it is
generally agreed that legitimate expectation gives the
applicant sufficient locus standi for judicial review & that
the doctrine of legitimate expectation is to be confined
mostly to right of a fair hearing before a decision which
results in negativing a promise or withdrawing of an
undertaking is taken. The doctrine does not give scope to
claim relief straight way from the administrative
authorities as no crystallized right as such is involved. The
protection of such legitimate expectation does not require
// 63 //
the fulfillment of the expectation where an overriding
public interest requires otherwise. In other words where a
person's legitimate expectation is not fulfilled by taking a
particular decision then decision-maker should justify the
denial of such expectation by showing some overriding
public interest."
34 In Punjab Communications Ltd. v. Union
of India, (1999) 4 SCC 727 : AIR 1999 SC 1801, the
Supreme Court held as follows:
"...... the doctrine of legitimate expectation in the
substantive sense has been accepted as part of our law &
that the decision-maker can normally be compelled to give
effect to his representation in regard to the expectation
based on previous practice or past conduct unless some
overriding public interest comes in the way...."
35. In M.P Oil Extraction v. State of Madhya
Pradesh, (1997) 7 SCC 592 & National Buildings
Construction Corporation v. S. Raghunathan,
(1998) 7 SCC 66, it has been held as follows:
"The doctrine of legitimate expectation has a meaning that
the statements of policy or intention of the Government or,
its Department in administering its affairs should be
without abuse or discretion. The policy statement could not
be disregarded unfairly or applied selectively for the
reason that unfairness in the form of unreasonableness is
akin of violation of natural justice. It means that said
actions have to be in conformity of Article 14 of the
Constitution, of which non arbitrariness is a second
facet. Public Authority cannot claim to have unfettered
discretion in the public law as the authority is conferred
with power only to use them for public good. Generally
// 64 //
legitimate expectation has essentially procedural in
character as it gives assurance of fair play in
administrative action but it may in a given case be
enforced as a substantive right. But a person claiming it
has to satisfy the Court that his rights had been altered by
enforcing a right in private law or he has been deprived of
some benefit or advance which he was having in the past
& which he could legitimately expect to be permitted to
continue unless it is withdrawn on some rational ground or
he has received assurance from the decision making
Authority which is not fulfilled, i.e, the kind of promissory
estoppel. Change of policy should not violate the
substantive legitimate expectation & if it does so it must be
as the change of policy which is necessary & such a
change is not irrational or perverse. This doctrine being an
aspect of Article 14 of the Constitution by itself does
not give rise to enforceable right but it provides a
reasonable test to determine as to whether action taken by
the Government or authority is arbitrary or otherwise,
rational & in accordance with law".
36 In Kuldeep Singh v. Government of NCT
of Delhi, (2006) 5 SCC 702 : AIR 2006 SC 2652, the
issue of legitimate expectation was considered
observing that the State actions must be fair &
reasonable. Non-arbitrariness on its part is significant
in the field of governance. The discretion should not
be exercised by the State instrumentality whimsically
or capriciously but a change in policy decision, if
found to be valid in law, any action taken pursuant
thereto or in furtherance thereof should not be
invalidated.
// 65 //
37. Similarly, in Ashok Smokeless Coal India
(P) Ltd. v. Union of India, (2007) 2 SCC 640, the
apex Court held as under:
"Principles of natural justice will apply in cases where
there is some right which is likely to be affected by an act
of administration. Good administration, however,
demands observance of doctrine of reasonableness in
other situations also where the citizens may legitimately
expect to be treated fairly. Doctrine of legitimate
expectation has been developed in the context of principles
of natural justice."
38. Applying the above principle and ratio laid
down by the apex Court as well as by this Court, to
the facts of the present case, this Court holds that the
petitioners, having got the requisite qualification and
having been recruited by following due process of
selection pursuant to advertisement, and having
completed six years of service on contractual basis,
their services are to be regularized and non-extension
of such benefit on the plea of not having passed from
the institutions approved by the AICTE cannot have
any justification and, as such, the same has resulted
in unfairness, being not in conformity with the Article
// 66 //
14 of the Constitution of India. This view has also
been taken by this Court in Anil Kumar Das (supra).
39. In view of the fact and law, as discussed
above, this Court comes to an irresistible conclusion
that the petitioners, having got the requisite
qualification and fulfilled the eligibility criteria by
completing six years of contractual service and having
otherwise satisfied the 2019 Rules, cannot and should
not be denied the benefit of regularization in service
on completion of six years, merely because they do not
satisfy the criteria of acquisition of qualification from
the institutions approved by the AICTE. As such, the
action of the authorities is arbitrary, unreasonable
and contrary to the provisions of law, being violative of
Article 14 of the Constitution of India. As a
consequence thereof, the observation made in the
minutes of meeting of the High Power Committee
dated 16.11.2020 (appended to Annexure-8 dated
17.11.2020) as well as its consequential letter under
Annexure-8 dated 17.11.2020, so far as it relates to
// 67 //
non-regularization of services of the petitioners on the
plea, that they have passed from non-AICTE approved
institutions, cannot sustain in the eye of law.
Accordingly, the same are liable to be quashed and
hereby quashed.
40. Resultantly, this Court directs the opposite
parties to take steps for regularization of service of the
petitioners like other contractual paramedic
employees in consonance with 2019 Rules, more
specifically by applying Rule-20 thereof, within a
period of three months from the date of
communication of this judgment.
41. The writ petitions are accordingly allowed.
No order as to costs.
..................................
DR. B.R. SARANGI,
JUDGE
Orissa High Court, Cuttack
The 11th December, 2021, ARUN/GDS
