Orissa High Court
Dr. Pradeep Kumar Gochhayat vs State Of Odisha And Another on 16 December, 2021
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 10024 of 2014,
W.P.(C) No. 9944 of 2014
And
W.P.(C) No. 10157 of 2015
In the matter of applications under Articles 226 and
227 of the Constitution of India.
---------------
AFR W.P.(C) No. 10024 of 2014
Dr. Pradeep Kumar Gochhayat ..... Petitioners
and others
-Versus-
State of Odisha and another ..... Opp. Parties
For Petitioners : M/s. K.P. Mishra,
S. Mohapatra, T.P. Tripathy and
L.P. Dwivedy, Advocates
For Opp. Parties : Mr. A.K. Mishra,
Addl. Govt. Advocate,
[O.P. No.1]
M/s. B.P. Tripathy,
R. Achary, T. Barik and
S. Hidayatullha, Advocates
[O.P. No.2]
W.P.(C) No. 9944 of 2014
Dr. Debaraj Patra ..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
// 2 //
For Petitioner : M/s. K.P. Mishra,
S. Bahadur and
B.B. Behera, Advocates
For Opp. Parties : Mr. A.K. Mishra,
Addl. Govt. Advocate,
[O.P. Nos.1 and 3]
M/s. B.P. Tripathy,
R. Achary, T. Barik and
S. Hidayatullha, Advocates
[O.P. No.2]
W.P.(C) No. 10157 of 2015
Dr. Niranjan Baral ..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For Petitioner : M/s. K.P. Mishra,
S. Mohapatra, T.P. Tripathy and
L.P. Dwivedy, Advocates
For Opp. Parties : Mr. A.K. Mishra,
Addl. Govt. Advocate,
[O.P. Nos.1 and 3]
M/s. B.P. Tripathy,
R. Achary, T. Barik and
S. Hidayatullha, Advocates
[O.P. No.2]
// 3 //
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 06.12.2021: Date of judgment: 16.12.2021
DR. B.R. SARANGI, J. All these three writ petitions, having
been filed impugning the order dated 09.05.2014 passed by
the Mission Director, NHM, Odisha-opposite party no.2
denying the reservation and age relaxation to the petitioners
for appointment to the post of Ayush Doctor under Rashtriya
Bal Swasthya Karyakram (RBSK), involve common questions
of law and facts. Therefore, they are heard together and
disposed of by this common judgment which will govern all
the cases.
2. The petitioners in all these writ petitions are
members of Socially Economically Backward Class (SEBC).
For the sake of convenience and for just and proper
adjudication of the cases, the factual matrix of W.P.(C)
No.10024 of 2014 is referred to in a nut shell.
2.1 All the petitioners, except petitioner no.15,
having possessed requisite qualification, applied for
// 4 //
appointment to the post of Ayush Doctor (Ayurvedic),
pursuant to advertisement issued by opposite party no.2
inviting applications from eligible candidates. Last date of
submission of such applications was fixed to 10.10.2013.
Thereafter, another advertisement was issued on 31.12.2013
for the above post without keeping any reservation for SEBC,
although reservation was there for SC/ST, Women, Ex-
servicemen and Physically handicapped. Being aggrieved by
such action of opposite party no.2, the petitioners approached
this Court by filing W.P.(C) No.24677 of 2013 and batch,
which were disposed of after giving due opportunity of
hearing to the parties, vide judgment dated 21.03.2014, with
observation that since opposite party no.2 has reserved some
posts for SC/ST candidates, it should have also reserved
some posts for SEBC candidates with age relaxation. While so
observing, this Court has also taken note of the ratio decided
in the case of Dr. Rupendra Brined v. State of Odisha, 2008
(II) OLR 357, and directed opposite party no.2 to consider the
case of the petitioners in the light of the circular dated
12.01.1995 governing the field by taking a decision for
// 5 //
reservation of post in respect of SEBC candidates, as well as
for age relaxation. In compliance of the judgment dated
21.03.2014 passed by this Court, opposite party no.2 rejected
the claim of the petitioners vide order dated 09.05.2014 in
Annexure-10 by misinterpreting the word "consider". Hence
this application.
3. Mr. K.P. Mishra, learned counsel for the
petitioners contended that opposite party no.2 invited
applications for contractual appointment of Ayush Doctor
(Ayurvedic) under a scheme on 21.02.2014 under Annexure-
11 applying reservation for all the categories including SEBC
category. Thereby, the advertisement dated 31.12.2013 issued
by the authority without keeping any reservation under
RBSK scheme, is contrary to the provisions of law and
violative of judgment dated 21.03.2014 passed by this Court
under Annexure-7. It is further contended that opposite party
no.2 has also maintained reservation for SEBC candidates in
the year 2008 and 2012 and also extended age relaxation for
ineligible candidates. Due to non-extension of such benefit in
// 6 //
the advertisement dated 31.12.2013, the action of the
authority is arbitrary, unreasonable and contrary to the
provisions of law and violative of Article 14 of Constitution of
India, as the same is discriminatory one. More so, the order
dated 09.05.2014 under Annexure-10 has been passed by the
authority without adhering to the direction issued by this
Court vide judgment dated 21.03.2014 under Annexure-7. As
a consequence thereof, the order so passed by the authority
cannot sustain in the eye of law.
4. Mr. A.K. Mishra, learned Addl. Government
Advocate contended that since the crux of the dispute is
between the petitioners and opposite party no.2, State has no
role to play.
5. Mr. B.P. Tripathy, learned counsel for opposite
party no.2 admitted the fact that the applications were invited
from the eligible candidates for filling up of the post of Ayush
Doctors (Ayurvedic/Homoeopathic), Pharmacist, Staff
Nurse/ANM in the Mobile Medical Teams (MMTs) under
Rashtriya Bal Swasthya Karyakram (RBSK), NRHM, Odisha
// 7 //
on contractual basis for a term of 11 months with monthly
remuneration as noted against each and subject to renewal as
per the society norms basing on the performance and
subsistence of the programme. Under the said advertisement,
SC, ST and UR category candidates were to be appointed
under the RBSK. As the RBSK is a National Programme under
NRHM, the same was implemented in Odisha from the
financial year 2013-14 and under the said programme 30
identified health conditions were to be addressed through a
'4D' approach of screening and Early Intervention Services,
which includes (a) defects at birth, (b) deficiencies, (c)
childhood disease, and (d) developmental delays and
disabilities. Under the said scheme, 723 dedicated mobile
teams were to be engaged across the State in the tribal block
as well as non-tribal block. The composition of the dedicated
health team consists of two Ayush doctors (one male and one
female), one ANM/Staff nurse and one Pharmacist. In order
to achieve such goal, on 31.12.2013, an advertisement was
issued by opposite party no.2 to fill up unfulfilled SC/ST/UR
posts, due to non-availability of candidates in respective
// 8 //
categories as per advertisement no.26/2013 dated 02.10.2013
as additional requirement of manpower under RBSK scheme
as unreserved, pursuant to the decision taken by the society.
It is admitted that the petitioners had earlier approached this
Court by filing W.P.(C) No.24677 of 2013 and batch and this
Court, after giving due opportunity of hearing to the parties,
vide judgment dated 21.03.2014, directed the authority to
consider the case of the petitioners. Pursuant to such
direction, opposite partyno.2 considered the case of the
petitioners and passed the order impugned on 09.05.2014
under Annexure-10 contending that the decision for
reservation of posts in respect of SEBC candidates, having not
been taken for the recruitment under RBSK scheme, the case
of the petitioners cannot be considered for selection and
engagement under SEBC category. It is further contended
that appointment under the society is contractual in nature
and the staff working under the NHM are neither civil
servant nor holding any civil post under the Government. As
such, Orissa Reservation of Post and Services (for Socially and
Economically Backward Classes) Act, 2008 is not applicable
// 9 //
for the contractual recruitment under the society, as there is
no such provision for reservation for contractual recruitment.
The recruitment made for a specific programme under the
society, namely, RBSK wherein 50% of all recruitment has
been reserved for women as per the requirement and
stipulation of the aforesaid scheme. As the recruitment under
RBSK programme is purely contractual and solely based on
the subsistence of the programme and not against any
sanctioned post of any cadre, no reservation has been
prescribed for SEBC candidates for appointment to the post of
Ayush Doctor under RBSK programme and no age relaxation
has been provided for them. In absence of any provision
under the Act, 2008 and Rules framed thereunder, reservation
in the society for contractual appointment is not mandatory.
It is further contended that the purpose behind enactment of
Act, 2008 is to extend the benefit of reservation to SEBC of the
State in public employment in respect of direct recruitment
only, but never intended to be applied in the case of any
contractual appointment arising out of any scheme or project.
It is further contended that under the Orissa Civil Service
// 10 //
(Fixation of Upper Age Limit) Rules, the maximum age for
entry into government service for general category is 32 years
with 5 years age relaxation to SC/ST/SEBC/Women
categories. But the NHM has already fixed upper age limit of
37 years which is also applicable for all category including
SEBC candidates. Thereby, there is no valid and justifiable
reason to claim further age relaxation by the petitioners when
the maximum age after relaxation has already been allowed
by NHM. It is further contended the order impugned has
been passed in adherence to the direction given by this Court
in W.P.(C) No.24677 of 2013 and, thereby, it cannot be said
that the judgment of this Court has not been complied with
nor any deviation has been made in compliance of the said
judgment. Consequentially, the writ petition has to be
dismissed.
To substantiate his contention he has relied upon
the judgments of the apex Court in the cases of State of
Orissa v. Sudhansu Sekhar Mishra, AIR 1968 SC 647; Indian
Medical Association v. Union of India, AIR 2011 SC 2365;
Islamic Academy of Education v. State of Karnataka, (2003) 6
// 11 //
SCC 697; Special Reference No.1 of 2012, (2012) 9 SCR 311;
Mohd. [email protected] BabbuSagiribhai v. Commissioner of Police;
(1994) 1 GLR 589; AP SRTC v. G. Srinivas Reddy, AIR 2006
SC 1465; Madan Lal v. State of Jammu and Kashmir, AIR
1995 SC 1088; Marripavi Nagaraja v. Gua of AP, (2007) 2 SCC
522; Dhananjaya Mallik v. State of U.P., (2008) 3 (PLJR) SC
271; and Amlan Jyoti Baruah v. State of Assam, (2009) 3 SCC
277.
6. This Court heard Mr. K.P. Mishra, learned
counsel for the petitioners; Mr. A.K. Mishra, learned Addl.
Government Advocate for the State and Mr. B.P. Tripathy,
learned counsel for opposite party no.2-NHM by hybrid
mode. Pleadings having been exchanged between the parties,
with the consent of learned counsel for the parties, these writ
petition are disposed of finally at the stage of admission.
7. Odisha State Health and Family Welfare Society
(National Health Mission) is a society registered under the
Societies Registration Act, 1860 since 1996-97 vide
Registration No.20212/167. RBSK as a national programme
// 12 //
under the NRHM to see the child health screening and early
intervention services, has been implemented in Odisha from
the financial year 2013-14. As per the said programme, the
existing school health programme were to be merged with
RBSK and about 1.21 crores children in the age group of 0-18
years at all AWCs, and Government/Govt. aided schools
managed by the department of S&ME, SC & ST, W&CD and
Labour and ESI were to be covered under this programme.
Under this scheme, 30 identified health conditions were to be
addressed through a '4D' approach of screening and early
intervention services, which includes (a) defects at birth, (b)
deficiencies, (c) childhood disease and (d) developmental
delays and disabilities. Composite package of services, such
as, screening, treatment on the spot, required referral
treatment at public private empanelled hospital (appropriate
facilities) as per need were to be undertaken. The total
budget of Rs.63.86 crores was allocated under NRHM for the
year 2013-14. Operational guidelines issued by the Ministry
of Health and Family Welfare Department, Govt. of India
also provides scope of service and to give effect such
// 13 //
programme, a dedicated Mobile Medical Team (MMT) was
constituted and 723 dedicated MMTs were to be engaged
across the State @ 3 per tribal block and 2 per non-tribal
block. Dedicated mobile health team consisted of two Ayush
Doctors (one male and one female), one ANM/Staff nurse
and one pharmacist. The frequency of visit was fixed as
round the year so as to cover each AWC- Bi-annually, Non-
residential schools-annually and Each residential school-
quarterly. The support of vehicle, screening equipment,
minor ailment medicine kit were to be made and headquarter
was fixed at block CHC. There were also provision for
monitoring by GPS tracking, reporting-CUG (SMS based
reporting) and online database. As such, 5 days specialized
training were to be provided during current year. It was
suggested that for composition of mobile health team, there
should be (1) two medical officers (Ayush)-one male and one
female at least with a bachelor degree from an approved
institution (2) one ANM/Staff Nurse, and (3) one Pharmacist
with proficiency in computer for data management. In case a
Pharmacist is not available, other paramedics-Lab.
// 14 //
Technician or Ophthalmic Assistant with proficiency in
computer for data management may be considered.
Therefore, to achieve the objective of operational guidelines,
steps were taken by the Government for appointment of
Ayush doctors both Ayurvedic and Homoeopathic so as to
engage in a MMT for screening the children as per the rules.
Earlier advertisement no.1129 dated 09.08.2012 was issued for
walk-in-interview, inviting applications from eligible
candidates for filling up of the posts of Ayush doctor
(Homoeopathic), Pharmacist and Health Worker (Female). So
far as recruitment to the post of Ayush doctor
(Homoeopathic) is concerned, requirement was prescribed to
the following effect:
Name of the post Vacancy Qualification/ Date of
Eligibility/Age interview
AYUSH Doctor 13 (Nos. * Must have passed Will be
(Homoeopathic) BHMS from a recognized informed later
University on.
* She/he should have
passed odia up to M.E.
Standard
* Should have registered in
the Homoeopathic Council
* Should be under 37 years
and over 21 years of age on
// 15 //
1.08.2012 by 5 years for
ST/SC/Women/Ex-service
Men/SEBC and 10 years
for physically challenged
candidates.
xxx xxx xxx xxx
8. Thereafter, advertisement no.26/2013 was issued
for contractual appointment and applications were invited
from eligible candidates for filling up of posts of Ayush
doctors (Ayurvedic/Homoeopathic), Pharmacists, Staff
Nurse/ANM in the Mobile Medical Teams (MMTs) under
Rashtriya Bal Swasthya Karyakram (RBSK), NRHM, Odisha
on contractual basis for term of 11 months with monthly
remuneration as noted against each and subject to renewal as
per the society norms basing on the performance and subject
to subsistence of the programme. Performance incentive and
other benefits were also admissible for all posts as per norms
and orders issued from time to time. For Ayush doctors
(Ayurvedic/Homoeopathic), the norms and conditions were
prescribed to the following effect:-
// 16 //
Mobile Medical Team (MMT) under RBSK, NRHM, Odisha
In all 30 districts of the State
Sl. Name of the Vacancy Monthly Qualification/ Experience
No. Post Base
Remune
ration
(in Rs.)
01 AYUSH Details 12,000/- * The candidate must have a
Doctor can be Bachelor degree in Ayurvedic
(Ayurvedic/ verified Medicine & Surgery
Homoeopathic) from the (B.A.M.S.)/ Bachelor in
official Homoeopathic medicine and
website. Surgery (B.H.M.S.) as the
case may be, from a
(www.nr recognized University. She/he
hmorissa must have completed the
.gov.in) Internship Training if any.
* She/he should have passed
Odia up to M.E. Standard.
* Should have registered in
the Odisha State Council of
Ayurvedic/ Homoeopathic
Medicine at the time of
application. No provisional
registration certificate is
acceptable. Applicant should
be above 21 years and below
37 years age as on 1st October
2013 and the upper age limit
as prescribed will be relaxable
only for the categories
mentioned below:-
* UPto a maximum of 5 years
if a candidate belongs to
SC/ST or Women or Ex-
serviceman.
* To maximum of 10 years in
case of Physically Challenged
candidates.
* Applicant belonging more
than one category shall avail
the benefit of age relaxation
which will be benefited to
him/ her.
// 17 //
xxx xxx xxx xxx
9. Advertisement no.51/2013 was issued on
31.12.2013 inviting applications from eligible candidates for
filling up of posts of Ayush doctors
(Ayurvedic/Homoeopathic), Pharmacists and Staff
Nurse/ANM in the Mobile Medical Teams (MMTs)/Mobile
Health Team under Rashtriya Bal Swasthya Karyakram
(RBSK), NRHM, Odisha on contractual basis for term of 11
months with monthly remuneration as noted against each
and subject to renewal as per the society norms basing on the
performance and subject to subsistence of the programme.
Performance incentive and other benefits are also admissible
for all posts as per norms and orders issued from time to
time. The society has decided to fill up the unfilled
SC/ST/UR posts (due to non-availability of candidates in the
respective categories) as advertised vide office advertisement
no.26/2013 dated 02.10.2013 and additional requirement of
manpower under RBSK scheme as treated "Unreserved". For
// 18 //
Ayush doctors (Ayurvedic/Homoeopathic), the norms and
conditions were prescribed to the following effect:-
Mobile Medical Team (MMT)/Mobile Health Teams (MMTs) under RBSK,
NHM, Odisha In all districts of the State except Mayurbhanj
Sl. Name of the Vacancy Monthly Eligibility
No. Post Base
Remune
ration
(in Rs.)
01 AYUSH Details 12,000/- Eligibility
Doctor can be
(Ayurvedic/ verified * The candidate must have a
Homoeopathic) from the Bachelor degree in Ayurvedic
official Medicine & Surgery
website. (B.A.M.S.)/ Bachelor in
Homoeopathic medicine and
(www.nr Surgery (B.H.M.S.) as the
hmorissa case may be, from a
.gov.in) recognized University. She/he
must have completed the
Internship Training if any.
* She/he should have passed
Odia up to M.E. Standard.
* Must have registered in the
Odisha State Council of
Ayurvedic/ Homoeopathic
Medicine at the time of
application. No provisional
registration certificate is
acceptable. Applicants shall
be in between the age group of
21-37 years as on 1st
December, 2013.
xxx xxx xxx xxx
10. The aforesaid advertisement no.51/2013 dated
31.12.2013 was subject matter of challenge before this Court
// 19 //
in W.P.(C) No.24677 of 2013 and batch, including W.P.(C)
No.25518 of 2013, which were disposed of vide judgment
dated 21.03.2014 under Annexure-7,with following orders:
"8.1 Taking into consideration the stand of opposite party no.1
that O.R.V. Act is not applicable for appointments under
RBSK Programme for which they have not declared
reservation in respect of S.C. and S.T. candidates, this Court
in the case of Dr. Rupananda Brined v. State of Odisha
and two others reported in 2008 (II) OLR 357 held that
during the year 1975 when the O.R.V. Act came to operation,
the concept of contractual employment was not prevalent. But
now the contractual employment is the rule of the day.
Virtually the door for permanent employment has been closed.
This scenario now prevailing in the employment market was
unforeseen during the year 1975 and due to the massive
growing of contractual employment, time has come for the
State to re-look at the provisions of Section 3(d) of O.R.V. Act
and take a decision as to whether there is any requirement for
its amendment to achieve the purpose, for which the aforesaid
statute was enacted or to take a policy decision to adopt the
provisions of the O.R.V. Act in the contractual employment
in the government departmental or in the government
organizations as the case may be. Accordingly, this Court
directed the opposite parties to consider the case of the
petitioner therein in accordance with law keeping in mind the
policy evolved by the National Rural Health Mission and take
a decision on the same within a period of fifteen days from the
date of communication of the order.
8.2 After the direction of this Court (supra) the authorities in
the impugned advertisement have reserved some posts in
respect of S.C. and S.T. candidates, however, they have not
reserved any posts in respect of S.E.B.C. candidates.
9. In the advertisement published subsequently, opposite party
no.1 in pursuance of the direction of this Court in the case
reported in 2008 (II) OLR 357 has already reserved posts in
respect of S.C./S.T. candidates for engagement of AYUSH
Doctors. Hence, this Court directs the said opposite party no.1
to take a decision with regard to reservation of posts in respect
// 20 //
of S.E.B.C. candidates following the Government Circular
dated 12.01.1995 as well as the ratio decided by this Court in
the aforesaid case and consider the case of the petitioners in all
these writ petitions for appointment as AYUSH Doctors
(Ayurvedic/Homoeopathic) in the Mobile Medical Teams
under Rashtriya Bal Swasthya Karyakram (RBSK), NRHM,
Odisha in pursuance of the impugned advertisements and
proceed with the selection process accordingly. The entire
exercise shall be completed as expeditiously as possible,
preferably within a period of six weeks from the date of
production of certified copy of this judgment."
11. The grounds for challenging advertisement
no.51/2013 dated 31.12.2013 were that no provisions have
been made for reservation of posts in respect of SEBC
candidates nor any age relaxation was granted up to
maximum 5 years for those SEBC candidates. As it reveals
from the advertisement no.1129/09.08.2012 under Annexure-
2, so far as recruitment to the post of Ayush doctor
(Homoeopathic) is concerned, it has been specifically
mentioned that candidates should be under 37 years and over
21 years of age as on 01.08.2012 and upper age limit is
relaxable by 5 years for ST/SC/Women/Ex-service
men/SEBC and 10 years for physically challenged
candidates, whereas no such reservation has been prescribed
granting age relaxation pursuant to advertisement
// 21 //
no.26/2013 dated 02.10.2013 and subsequent advertisement
no.51/2013 dated 31.12.2013 in Annexures-3 and 4
respectively. The grievance of the petitioners is that
reservation should be prescribed for the SEBC category
candidates and also they should be granted age relaxation as
has been granted pursuant to advertisement
no.1129/09.08.2012 in Annexure-2. More so, by not providing
such reservation, it contravenes the observation made by this
Court in Dr. Pradeep Kumar Gochhayat (supra), wherein
reference has also been made to the judgment of the apex
Court in the case of Dr. Rupananda Brined v. State of
Odisha, 2008 (II) OLR 357, so far as SEBC candidates are
concerned.
12. In Dr. P.K. Gochhayat (supra), this Court
directed to consider the case of the petitioners for giving
reservation and age relaxation.
13. In AP SRTC v. G. Srinivas Reddy (supra), the
apex Court held that where a court directs an authority to
"consider", it requires the authority to apply its mind to the
// 22 //
facts and circumstances of the case and then take a decision
thereon in accordance with law. The said power can be
exercised in three different scenarios:-
(a) Where an authority vested with power to decide a
matter, fails to do so in spite of a request: In such
case, the High Court directs consideration without
examining the facts or the legal questions involved
and without recording any findings on the issues.
(b) Where an authority had decided a matter without
considering the relevant facts and circumstances, or
by taking extraneous or irrelevant matters into
consideration, in such case, the HC may not
examine the validity or tenability of the claim on
merits, but require the authority to do so.
(c) Where the High Court finds the decision making
process erroneous and records its findings as to the
manner in which the decision should be made and
then directs the authority to consider the matter, in
such case, the authority will have to consider and
decide the matter in the light of its findings or
observations of the court."
Examining the order impugned from the above angle, this
Court comes to a finding that the authority, while passing the
order impugned, should have considered and decided the
matter in the light of the findings and observation of this
Court made in Dr. P.K. Gochhayat (supra).
// 23 //
14. Reliance was placed on the advertisement
no.1872/dated 21.02.2019 under Annexure-12, wherein the
very same NHM has provided reservation for SEBC category
with age relaxation, as has been done in the advertisement
no.1129/dated 09.08.2012. Clause-13 of the said
advertisement is extracted hereunder:
"13. Relaxation of 5 years for Women, SC, ST &
SEBC category and 10 years for Physically Disable,
Ex-Sports Person, Ex-Serviceman category. A
candidate can avail only one relaxation that most
beneficial to him/her. ORV rule will be followed as
per the Govt. of Odisha guideline for the posts of
Ayush Medical Officer, Pharmacist/Pharmacist-cum-
Logistic Assistant, Lab. Technician & HW
(F)/ANM."
15. Similarly, advertisement no.511/DPMU/NHM
dated 16.02.2019 issued by the Chief District Medical and
Public Health Officer, Kalahandi, wherein in clause-6 it has
been stated as follows:
"6. Age relaxation as per ORV act will be applicable
to ST, SC, SEBC, Women, PWD, Ex-Service Man
candidates."
16. As it appears from the advertisement in
Annexures-2 and 12, the posts are contractual engagement
under NHM in different districts where the provisions of
// 24 //
relaxation of age and reservation to SEBC category has been
prescribed. But so far as advertisements in Annexures-3 and 4
are concerned, which are under a programme of RBSK and
the same are schematic and programmatic, wherein such
reservation has not been prescribed. But fact remains, the
appointments are being made under the same society, i.e.,
NHM. As such, taking into consideration the advertisements
in Annexures-2 and 12, pursuant to which, candidates have
been engaged and attached to Medical Officers and the nature
of work discharged by them is akin to that performed by
government employees. As a consequence thereof, the
reservation applicable to the government employees is also
applicable to them. But fact remains, the appointment made
pursuant to Annexures-3 and 4 are dedicated mobile health
team along with two Ayush doctors (one male and one
female), one ANM/Staff Nurse and one Pharmacist and, as
such, they are not attached to any hospital. Rather, their very
nature of nomenclature being MMT, which has got no nexus
to the present engagement, i.e., as per advertisement under
Annexure-2 and 12. Thereby, effectively the advertisement
// 25 //
issued under Annexure-2 and 12 are totally distinguishable
than that of Annexure-3 and 4 and, as such, the nature of
work discharged by two category of persons in two category
of organization being distinct one.
17. But fact remains, in both these advertisements,
applications were invited for giving contractual appointment.
Contention raised by Mr. B.P. Tripathy, learned counsel for
opposite party no.2-NHM that the posts advertised pursuant
to Annexures-3 and 4 are not civil post nor they are
considered as civil servant. Thereby, the SEBC and ORV Act
is not applicable for programmatic and schematic
appointment of the petitioners. But this Court finds that there
is no regular recruitment to the posts for long since. As such,
employments have been given on contractual basis in poultry
sum of amount by giving different names by forming
different society and, as such, when the persons claim any
benefit under any policy, then different stand has been taken
by the employer denying the legitimate claim of such
employee.
// 26 //
18. For example, so far as reservation is concerned, it
is governed under Orissa Reservation of Vacancies in Posts
and Services (for Scheduled Castes and Scheduled Tribes)
Act, 1975. The reservation so far as contractual appointment is
concerned, the same are not provided under Section-3(d) of
the Act itself. But the said Act was enacted by the Orissa Act
38 of 1975. The intention of legislature to bring the aforesaid
enactment is evident from its object, which speaks that the
purpose of enactment is to provide for adequate
representation of Scheduled Caste and Scheduled Tribes in
Posts and Services under the State. The said Act has come
into operation in the year 1975, when the concept of
contractual employment was not prevalent. But now the
contractual employment is the rule of the day. As a
consequence thereof, the entry into service through
permanent employment is no more existence. Thereby, this
scenario now prevailing in the employment market was
unforeseen during the year 1975 and due to the massive
growing of contractual employment, time has come for the
State to re-look at the provisions of Section 3(d) of the O.R.V.
// 27 //
Act and take a decision as to whether there is any
requirement for its amendment to achieve the purpose, for
which the aforesaid statute was enacted or to take a policy
decision to adopt the provisions of the O.R.V. Act in the
contractual employment in the government department or in
the governmental organizations, as the case may be. As such,
this is not within the domain of the Court to make such
decision, rather it is left open to the Government to take a
decision in this regard. But fact remains, if there will be no
representation from different categories, unemployment
crisis will go up and it will put the government in a
disturbing position. Thereby, knowing fully well the purpose
of reservation for different categories, even though the
society, like that of opposite party no.2 has extended such
benefits to the similarly situated Ayush doctors, pursuant to
advertisements issued under Annexures-2 and 12, it should
not deny such benefit to the petitioners, pursuant to the
advertisements in Annexures-3 and 4, on the ground that the
engagement is schematic and programmatic one, which is
arbitrary and unreasonable on the part of the authority.
// 28 //
19. In the above view of the mater, the order
impugned dated 09.05.2014 under Annexure-10 cannot
sustain in the eye of law and the same is liable to be quashed
and is hereby quashed. The matter is remitted back to the
opposite party no.2 to re-look the same and pass appropriate
order providing reservation for the SEBC candidates, as has
been done pursuant to the advertisements under Annexures-2
and 12, without causing any further hindrance.
20. In the result, the writ petitions are allowed.
However, there shall be no order as to costs.
..............................
DR. B.R. SARANGI,
JUDGE
Orissa High Court, Cuttack
The 16th December, 2021, Ashok/GDS
