Orissa High Court
Dusmanta Kumar Naik vs State Of Odisha And Others on 6 September, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No. 24671 of 2021
Dusmanta Kumar Naik .... Petitioner
Mr. B.K. Sharma, Adv.
-Versus -
State of Odisha and others .... Opposite Parties
State Counsel
CORAM:
DR. JUSTICE B.R. SARANGI
ORDER
06.09.2021
Order No. This matter is taken up through hybrid mode.
2. Heard Mr. B.K. Shamra , learned counsel for the petitioner and
learned counsel for the State.
3. The petitioner has filed this writ petition seeking direction to
CDMO, Mayurbhanj to regularize/absorb the service of the petitioner in
the regular vacant post of Pharmacist in regular establishment keeping
in view the statutory Rule, namely, Odisha Pharmacist (Method of
Recruitment and Conditions of Service) Rules, 2019 under Annexure-4.
4. Mr. B.K. Sharma, learned counsel for the petitioner contended that
similar question had come up for consideration before the Tribunal in
Amit Kumar Mishra and others vs. State of Odisha and others in O.A.
No. 744 of 2017, which was disposed of on 17.05.2018. In paragraph-7
it has been held as follows:
"7. Hence the impugned order at Annexure-9
dtd.20.04.2017 issued by the C.D.M.O., Balangir stands
quashed. The applicants be brought over as Contractual
Pharmacists under General Health Stream/DDC without
facing further recruitment test as per Advertisement
dtd.15.07.2015 under Annexure-7 as they have already
completed six years of contractual service in Mobile
Health Unit (MHU). This exercise be completed within
one month from the date of receipt of the copy of this
order.
With these orders, the O.A. is disposed of."
5. The order of the Tribunal was challenged by the State before this
Court in W.P.(C) No.3957 of 2019, which was disposed of on
21.11.2019 confirming the order of the Tribunal and as such, the order
of the Tribunal having not been complied with, W.P.(C) No. 1353 of
2020 was filed by the petitioner, which was disposed on 03.02.2020
directing the opposite parties to work out the direction of the Tribunal
passed in O.A. No. 477 of 2017 dated 17.05.2018, within a period of six
weeks from the date of communication of that order by the petitioner.
Against the said order, the State preferred appeal before the apex Court
in Special Leave to Appeal (C) No. 13077 of 2020. The said appeal was
dismissed on 12.01.2021 with an observation that:
"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 employee who have
completed six years of service."
6. It is further contended that since new rule came into force with
effect from 8th March, 2019, in view of the observation made by the
apex Court, the benefit should be extended to the petitioner. It is further
contended that the petitioner having stood same footing with that of the
Amit Kumar Mishra and others (supra), his case should be considered
in terms of the judgment of the Tribunal as well as this Court and apex
Court.
7. Learned Counsel for the State submits that since the question has
already been decided by the Tribunal as well as this Court and apex
Court, the case of the petitioner may be considered.
8. Considering the contentions raised by learned counsel for the
parties and after going through the records, this Court disposes of this
writ petition with a direction to opposite parties to consider the case of
the petitioner and act in view of the direction given by the Tribunal in
Amit Kumar Mishra and others (supra), which has been confirmed by
this Court as well as Apex Court, as expeditiously as possible,
preferably with a period of six months from the date of communication
of this order.
9. With the above observation and direction, the writ petition stands
disposed of.
Issue urgent certified copy as per rules.
(Dr. B.R. Sarangi)
Judge
Alok
