Orissa High Court
Sanjaya Kumar Biswal And Others vs State Of Odisha And Others on 13 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.34120 of 2021
Sanjaya Kumar Biswal and others .... Petitioners
-versus-
State of Odisha and others .... Opposite Parties
For Petitioners : M/s. Krishna Chandra Sahu, S.
Pradhan, D.K. Mahalik
For Opp. Parties : Mr. T.K. Pattanaik,
learned Addl. Standing Counsel
M/s. B. Routray, Sr. Advocate,
S.K. Samal, S.P. Nath, S.D.
Routray, S. Sekhara, J. Biswal,
A.K. Das and M. Panda
(for the Intervenor)
W.P.(C) No.30075 of 2022
Biswanath Sahu and others .... Petitioners
-versus-
State of Odisha and others .... Opposite Parties
For Petitioners : M/s. B. Routray, Sr. Advocate,
S.K. Samal, S.P. Nath, S.D.
Routray, S. Sekhara, J. Biswal,
A.K. Das and M. Panda.
For Opp. Parties : Mr. T.K. Pattanaik,
Learned Addl. Standing Counsel
// 2 //
CORAM:
JUSTICE A.K. MOHAPATRA
JUDGMENT
Date of hearing : 16.12.2022 | Date of Judgment : 13.01.2023
A.K. Mohapatra, J.
Above noted both the writ petitions involve a common question of
law and issue which is required to be adjudicated is based on a common set
of facts. Accordingly, both the writ petitions are being taken up together for
hearing and the same are being disposed of by the following common
judgment.
W.P.(C) No.34120 of 2021
1. The present writ petition has been filed by the petitioners with a
prayer to quash the impugned final gradation list of MPHW(M) under
Annexure-12 dated 21.10.2021 and for further direction to the Opposite
Parties to modify/correct the gradation list of MPHW(M) under Annexure-
12 by first re-fixing the seniority of the petitioners by assigning them the
correct position in the provisional gradation list and the final gradation list
be published by reflecting the names of the petitioners against the serial at
which they deserve to be placed as per law and rules and on the basis of
their seniority and by taking into consideration the date of regularization of
the petitioner, which is required to be fixed on completion of six years of
contractual services which was determined under Annexure-7 including all
// 3 //
consequential and service benefits be sanctioned and disbursed in favour of
the petitioners within a stipulated period of time.
2. The factual background of the case, in a nutshell, is that since the
petitioners were having required eligibility, they had applied for recruitment
to the post of Multipurpose Health Worker (Male) (hereinafter referred to as
"MPHW(M)".
3. The petitioners were duly selected in the recruitment process
pursuant to the advertisement issued by the CDM&PHO, Dhenkanal. On
being selected they were appointed as MPHW(M) on contractual basis and
were posted at different Sub-centers against the existing regular vacant
posts under the different CHCs/PHCs under the administrative control of
CDM&PHO, Dhenkanal.
4. The recruitment process pursuant to the advertisement was conducted
following all formalities as is required to be followed in case of regular
appointment to sanction posts such as advertisement reservation under ORV
Act etc. However, on being selected, the petitioners were appointed on
contractual basis against the regular sanctioned vacant posts which were
created by converting regular MPHW(M) posts of contractual establishment
as per the decision of the Government. It has been pleaded in the writ
petition that the petitioners although were appointed on contractual basis,
however, they were appointed against the paramedical sanctioned posts like
// 4 //
Pharmacist, Staff Nurse, Lab Technician, Radiographer etc. Since the
petitioners were selected by following regular recruitment process, they
were eligible for regularization of their services on completion of six years
of contractual services. However, despite completion of six years on
contractual service against the sanctioned posts, the service of the
petitioners were not regularized for the posts of MPHW(M) on the contrary,
their counterpart paramedical employees holding such posts on regular
basis. As such, Pharmacist, Staff Nurse, Lab Technician, Radiographer etc.
are required to be absorbed against the sanctioned posts from the date of
completion of six years of service. So far completion of six years on
contractual service period is concerned and their subsequent regularization
and for better appreciation of the factual background a comparative table of
the relevant dates in respect of each of the petitioner is furnished herein
below:-
Sl. Name of the Date of initial Date of Date of
No. petitioner appointment completion regularization
of 6 years
1. S.K. Biswal 16.10.2005 16.10.2011 18.09.2013
2. P.C. Behera 08.10.2005 18.10.2011 18.09.2013
3. Antaryami Naik 17.05.2005 17.05.2011 18.09.2013
4. S.K. Maharana 19.10.2005 19.10.2011 18.09.2013
5. Biswajit Sahoo 18.10.2005 18.10.2011 18.09.2013
// 5 //
6. S.K. Rout 18.10.2005 18.10.2011 18.09.2013
7. A. Satapathy 19.10.2005 19.10.2011 18.09.2013
8. S.K. Samal 19.10.2005 19.10.2011 18.09.2013
9. D.N. Mishra 17.10.2005 17.10.2011 18.09.2013
10 S.K. Prusty 17.10.2005 17.10.2011 18.09.2013
11 A.K. Nayak 19.10.2005 19.10.2011 18.09.2013
12 S. Behera 18.10.2005 18.10.2011 18.09.2013
13 S. Panda 18.10.2005 18.10.2011 18.09.2013
14 P. Dehury 17.10.2005 17.10.2011 18.09.2013
15 N. Behera 19.10.2005 19.10.2011 18.09.2013
16 P. Singh 18.10.2005 18.10.2011 18.09.2013
17 S.N. Parida 18.10.2005 18.10.2011 18.09.2013
18 P.K. Pradhan 19.10.2005 19.10.2011 18.09.2013
19 L. Satapathy 18.10.2005 18.10.2011 18.09.2013
5. Although the petitioners have after completion of six years of
contractual service, approached the authority on several occasions to
regularize their services against the sanctioned vacant posts by taking into
consideration the fact that the similarly situated paramedical staffs like
Pharmacist, Staff Nurses, Laboratory Technicians and Radiographers have
been absorbed against sanctioned vacant posts on completion of six years,
// 6 //
the opposite parties initially did not take any action and preferred to sit over
the matter. Finally vide order dated 16.04.2018 passed by the Opposite
Party No.4, the services of the petitioners were regularized w.e.f.
18.09.2013 as per order vide Memo No.743 dated 16.04.2018 and on the
basis of the G.A. Department Resolution dated 17.09.2013. It has also been
pleaded that even though the petitioners have completed six years of their
contractual services in the year 2011, however, the Opposite Parties
ignoring such fact took a decision to regularize their services only w.e.f.
18.09.2013. Therefore, such conduct of the Opposite Parties have been
challenged on the ground that the same is arbitrary and discriminatory and
as such, the same is hit by Article 14 and 16 of the Constitution of India.
6. Mr. K.C. Sahu, learned counsel appearing for the petitioners
submitted that the present petitioners were appointed by following regular
recruitment procedure and pursuant to an advertisement for following up the
sanctioned vacant posts, they have been appointed on contractual basis
initially. He further contended that the similarly placed employees, who
were also appointed along with the petitioners in respect of the paramedical
posts like Pharmacist, Staff Nurses, Laboratory Technicians and
Radiographers etc., were regularized and absorbed in Government service
exactly on completion of six years on contractual services. Therefore, the
petitioners approached the Odisha Administrative Tribunal by filing O.A.
bearing O.A. No.1807 of 2018 with a prayer to ante-date their regularization
// 7 //
i.e. exactly from the date of which the petitioners completed six years on
contractual services.
7. The main plank of petitioners argument before the Tribunal was that
the similarly placed employees like paramedical contractual staffs, who
were engaged along with the petitioners on contractual basis, have been
regularized and absorbed against the sanctioned vacant posts and they have
completed six years of contractual services, however, the Opposite Parties
have treated the present petitioners in discriminatory and arbitrary manner
and regularize of the services of the petitioners with effect from a later date
which according to the petitioner is grossly discriminatory. The Tribunal
after hearing the learned counsel for the parties by order dated 02.07.2018
and 31.07.2018 passed in O.A. No.1703 of 2018 allowed both the Original
Applications with a direction to the Opposite Parties to take an appropriate
decision for regularization of service of the petitioners with effect from the
date on which the petitioners completed six years of contractual service as
has been done in the case of other paramedical staffs referred to
hereinabove and further it was directed to ante-date the date of
regularization of the petitioners to the date on which they completed six
years of contractual services and accordingly, grant of consequential service
benefits within a period of three months. While allowing the case of the
petitioner, the Tribunal relied upon the decision in O.A. No.2023 of 2015
// 8 //
and O.A. No.1821 of 2015 wherein the law has been laid down by the
Tribunal by analyzing the issue that was raised by the petitioners.
8. After disposal of the case by the Tribunal, the Opposite Party No.1
directed the CDM&PHO, Dhenkanal to implement the order of the Tribunal
as the same had also been concurred by the Finance Department,
Government of Odisha. Accordingly, the CDM&PHO, Dhenkanal vide
Order No.1244 dated 06.07.2019 passed an order ante-dating the date of
regularization of services of the petitioners from the date of completion of
six years of contractual services with all service and consequential financial
benefits. The order of the CDM&PHO, Dhenkanal has been ignoring the
claim of regularizing the services of the petitioner from the date of
completion of six years on contractual service vide his letter dated
06.07.2019, which has been attached to the writ petition as Annexure-7.
9. While discussing the position, the Government of Odisha vide Order
No.27450 dated 27.11.2020, directed to all the Chief District Medical and
Public Health Officers, Odisha for cancellation of order of antedation of
date ofregularization of MPH(S) & MPHW(F) made pursuant to the orders
passed by the learned O.A.T. in different OAs. The aforesaid order dated
27.11.2020 was challenged before this Court in W.P.(C) No.33917 of 2020
by the petitioners. After hearing learned counsel for the parties, this Court
by order dated 13.04.2021 has allowed the writ petitioner and the impugner
// 9 //
order dated 27.11.2020 has been quashed holding that the order dated
27.11.2020 is unsustainable in law and further it was held that since the
service of the petitioners were protected by an interim order passed in the
aforesaid writ petition, the petitioners shall be deemed to be continuing in
services on regularization pursuant to order dated 06.07.2019 under
Annexure-7. In other words, the position of the petitioners remained
unaltered which they had acquired by virtue of order dated 06.07.2019.
10. The Director, Public Health Odisha, Bhubaneswar-Opposite Party
No.3 vide letter No.9270 dated 02.05.2021 circulated a provisional common
gradation list of MPHW(M) as it stood on 31.07.2021 and objections were
invited from MPHW(M). It is submitted by learned counsel for the
petitioners that in the said provisional gradation list, the names of the
petitioner found place against Sl. No.204 to 222 reflecting the correct facts.
Since the facts stated and the positions of the petitioners were as per law,
the petitioners did not opt to file any objection to the provisional gradation
list dated 05.08.2021. However, while publishing final common gradation
list of MPHW(M), the Director Public Health, Odisha, Bhubaneswar altered
the position and the seniority of the petitioner unanimously without any
intimation whatsoever to the petitioners and contrary to the provisional
gradation list and most shockingly the petitioners found that they have been
placed at Sl. No.854 to 871 in the final gradation list instead of Sl. No.204
to 222 as was shown in the provisional common gradation list. Furthermore,
// 10 //
the petitioners also found their regularization as have been intimated vide
order dated 18.09.2013, which is grossly illegal, arbitrary and erroneous. A
copy of the gradation list dated 21.10.2021 in respect of MPHW(M) issued
by the Opposite Party has been annexed to the writ petition as Annexure-12.
11. After publication of the final gradation list by the Opposite Party
No.3 on 05.08.2021 under Annexure-11, the Opposite Party No.3 vide his
Letter No.4251 dated 26.10.2021 directed to all the CDM & PHO of the
State for submission of CCR/PAR in respect of MPHW(M) for promotion
from 2017 to 2018 - 2021 to 2022 along with information on departmental
Proceeding/Vigilance Clearance/Criminal cases pending against them and
trained certificate duly verified and signed by the competent authority of the
Directorate of Public Health, Odisha within a period of seven days
positively without fail for consideration of their cases for promotion from
MPHW(M) to the post of MPHS(M).
12. It is further contended by learned counsel for the petitioners that
pursuant to letter dated 26.10.2021 under Annexure-13, the Opposite Party
No.3 is very soon going to convene a D.P.C. meeting for giving promotion
to the MPHW(M) to the post of MPHS(M) on the basis of their seniority.
He further contends that while the process for promotion was going on, the
final gradation list intervened and it is further contended that the same is
illegal and erroneous and accordingly, the seniority of the petitioners has
// 11 //
been altered unanimously by the CDM&PHO, Dhenkanal in an arbitrary
and illegal manner by ignoring various judicial pronouncement in favour of
the petitioners. In such view of the matter, learned counsel for the
petitioners submits that the petitioners will be seriously prejudiced in the
event the final gradation list under Annexure-12 illegally altering the
seniority of the petitioner is allowed to be acted upon by the DPC while
considering the promotion of the candidates to the post of MPHS(M).
13. A coordinate Bench of this Court while admitting the present writ
petition vide order dated 02.11.2021 has passed a detailed order while
issuing notice to the Opposite Parties. Further on perusal of the order dated
02.11.2021, the coordinate Bench of this Court has observed as follows:-
"7. The Opposite Party No.3-Director, Public Health,
Odisha, Bhubanswar has been called upon to file show cause
as to why a contempt proceeding shall not be initiated against
him for preparing final gradation list in violation of order
passed by this court as well as Tribunal and the show-cause
shall be filed within a period of fifteen days from today".
14. Further, it was stated that the judgment of this Court in the case of
State of Odisha vrs. Mahendra Nath Karan and others (W.P.(C) No.4253
of 2021) and in the case of State of Odisha vrs. Trilochan Gochhayat and
others (W.P.(C) No.37783 of 2020 were assailed before the Hon'ble
Supreme Court of India by the State Government by filing SLP. Further it
// 12 //
has also been stated that the order of the Tribunal in O.A. No.1858 of 2018
filed by Mahendra Nath Karan and others (supra) was affirmed by this
Court in W.P.(C) No.4253 of 2021 vide order dated 09.03.2021 by
dismissing the State Government's writ petition and upheld the order of the
Tribunal and as against the same, the State has preferred SLP before the
Hon'ble Supreme Court bearing SLP No.14680 of 2021, which was filed on
24.08.2021 and pending before the Hon'ble Supreme Court for
adjudication.
15. On a conspectus of the grounds taken in the show-cause reply, this
Court is of the considered view that the same is absolutely vague and an
attempt has been made to defend illegal and arbitrary conduct of Opposite
Party No.3. Accordingly, show-cause reply filed by the Director, Public
Health, Odisha, Bhubaneswar-Opposite Party No.3 by one Dr. Niranjan
Mishra is hereby rejected. It appears that the Opposite Party No.3 has made
an attempt to justify his illegal conduct by citing vague reasons, this Court
hereby expressed unhappiness on the conduct of the Opposite Party No.3 in
ignoring the order passed by the Tribunal and also upheld by this Court.
16. Moreover, there was no interim order by the Hon'ble Supreme Court
restraining the Opposite Parties not to implement the order passed by the
Tribunal as well by this Court. Therefore, the Opposite Party No.3 should
have been more cautious in his approach and should have shown due regard
// 13 //
to the Majesty of law and this Court. However, considering the fact that the
Opposite Party No.3 has tendered un-conditional apology in paragraph-5 of
the show-cause reply, this court deems it proper to accept such apology by
directing the Opposite Party No.3 not to act in such reckless manner in
future. Other Opposite Parties have not filed any counter affidavit although
the petitioners have filed replies to the show-cause filed on behalf of the
Opposite Party No.3. Therefore, the facts also stand established by applying
the doctrine of non-travesty.
W.P.(C) No.30075 of 2022
17. This writ petition has been filed by the petitioners with a prayer for a
direction to the Opposite Parties to consider the case of the petitioners for
promotion to the post of Multipurpose Health Supervisor (Male) as per the
gradation list, 2021 under Annexure-5 by constituting a committee in terms
of Rule 15 and 16 of the Odisha Multipurpose Health Workers (Male)
service (Method of Recruitment and conditions of Service) Rules, 2019
within a reasonable time to be stipulated by this Court.
18. On perusal of the writ petition, it appears that a batch of
Multipurpose Health Workers(Male) have approached this Court for a
direction to the Opposite Parties to give them promotion to the posts of
Multipurpose Health Supervisor(Male) (in short the "MPHS(M)". It has
been pleaded in the writ petition that although the petitioners are eligible to
// 14 //
get promotion from 2016 onwards and in the meantime, four gradation list
2015, 2018, 2020 and 2021 have been prepared and their names have been
shown in such gradition list, however, they have not been given promotion
till date. The petitioner in the present writ petition were all appointed as
regular Multipurpose Health Workers under the Rehabilitation Assistance
Scheme, 2006 against vacant sanctioned posts. Thereafter, the aforesaid
Rule, 2015 came into force in the year 2015. As per the 2015 Rules, the writ
petitioners fulfill the criteria for promotion to MPHS(M) as their tenure of
services MPHW(M) is continuous.
19. The Odisha Multipurpose Health Workers MPHW(M) method of
recruitment and condition of service rules, 2015 is a rule framed by the
State of Odisha under Article 309 of Constitution of India, which was
superseded by the subsequent new rule Odisha Multipurpose Health service
method and recruitment and condition of rules, 2019 w.e.f. 08.01.2019.
Rule 12 of 2019 rule provides that the eligibility criteria for MPHW(M) /
MPHS(M) is ten years of regular service and in-service training as would be
decided will also be a criteria for promotion. Rule 13 of the said rule
provides for duration of gradation list for the purpose of promotion and rule
14 deals that constitution of DPC.
20. Mr. Routray, learned senior counsel for the petitioners submitted that
the name of the petitioners appeared in the gradation list in the 2015 and
// 15 //
2018 as per the Rules 2015 but they could not be given promotion as there
was no vacancy in regular posts. Learned senior counsel further submitted
that as per the Rules 2014 and 2019 a gradation list was prepared for 2020
and 2021 and the names of the petitioners have been reflected in the said
gradation list on both the years 2020 and 2021. Furthermore, though the
gradation list was finalized and published in respect of two consecutive
years, the petitioners who are otherwise eligible as per the rules have not
been given promotion so far in violation of Rule 15 of 2019 Rules. In the
aforesaid context, learned senior counsel draws the attention of this Court to
the provision contained in the Rules, 2015 and to impress upon this Court
that the DPC is required to be convened at least once in every year
preferably in the month of January to prepare a list of employees, who are
found suitable to get promotion to the post existing/anticipated vacancies of
the year in which the DPC meets. In view of such specific provision, the
learned senior counsel submitted that the Opposite Parties have violated the
mandate in Rule 15 of the Rules 2019. Accordingly, a valuable right to be
considered for promotion to the promotional posts have been infringed by
the inaction of the Opposite Parties.
21. It is further contended that had the case of the petitioners been
considered for promotion as per rule 15 of 2019 rules, the petitioners would
have been promoted w.e.f. from the year 2020 itself. Therefore, non-
// 16 //
consideration of the case of the petitioners has caused serious prejudice to
the petitioners.
22. Mr. Routray, learned senior counsel for the petitioners also
contended that there are 600 posts for MPHS(M), which are lying vacant.
Therefore, in absence of any legal bar, this Court in terms of rule 15 be
pleased to direct the Opposite Parties to fill up such vacancies in the post of
MPHS(M) forthwith.
23. On perusal of the record of the present case, it appears that State has
not filed any counter affidavit and upon further analysis, this Court is of the
considered view that because of the illegalities committed by the Opposite
Party No.3 in W.P.(C) No.34120 of 2021 and in view of the interim order
dated 21.11.2021 passed in the said writ petition, the Opposite Parties in the
present case have not yet convened DPC as such the petitioners in W.P.(C)
No.30075 of 2022 have not been given promotion.
24. Mr. K.C. Sahu, learned counsel for the petitioner in W.P.(C)
No.34120 of 2021 argued that the benefit of regularization from the date of
completion of six years of service, has been extended to all the MPHW(S)
working in the State of Odisha except such employees in the district of
Dhenkanal. In other words, the Chief District Medical & Public Health
Officer in respect of the other districts except Chief District Medical &
Public Health Officer, Dhenkanal have already complied with the order
// 17 //
passed by the Tribunal and confirmed by a division Bench of this Court. In
respect of Dhenkanal district to which the petitioners belong to, the
Opposite Parties have acted arbitrarily and discriminated the petitioners by
preparing a gradation list on the basis of the date of regularization as per the
Government order dated 27.11.2020 and the said G.A. Department Circular
has already been quashed by the Tribunal vide its order dated 31.07.2018
and the same has been upheld by this Court in the writ petition filed by the
State vide order dated 09.03.2021. Although State has filed SLP bearing
SLP No.18640 of 2021, learned counsel for the State was unable to produce
any interim order passed by the Hon'ble Supreme Court in the pending
SLP. In such view of the matter, this Court has no hesitation in holding that
that the petitioners should have been regularized w.e.f. the date they have
completed six years of contractual service as has been indicated in the table
in the preceding paragraph and accordingly, their names should have been
placed in the gradation list, which was challenged before this Court and
vide order dated 13.04.2021 this Court has been pleased to allow the writ
petition by quashing the impugned order of cancellation under Annexure-8
dated 27.11.2020.
25. Having heard learned counsel for the parties and upon a careful
consideration and analysis of the fact and law made hereinabove, this Court
in fact surprise to observe that while the Opposite Party No.3 followed a
common principle in respect of all the districts in the State by regularizing
// 18 //
the service of MPHW(M) from the date of their completion of six years of
contractual service, however, a marked departure from such principle was
observed by this Court so far Dhenkanal district is concerned. The
petitioners, who all belong to Dhenkanal district, have a genuine and bona
fide ground to approach this court not only for such discriminatory
treatment, but also the way the Opposite Parties have ignored the direction
issued by the Tribunal, which was upheld by this Court and further despite
the order of the Government recalling the earlier order to regularize the
petitioners from the date of completion of six years of contractual service
having been quashed by this Court in W.P.(C) No.33917 of 2020 vide order
dated 13.04.2021, the Opposite Parties, as it appears, have deliberately and
willfully ignored to follow the direction given by this Court vide order dated
13.04.2021. While expressing displeasure on the conduct of the Opposite
Parties, this Court deems it proper to allow the writ petitioner bearing
W.P.(C) No.34120 of 2021, accordingly, the Opposite Parties are directed
to restore the date of regularization of services of the petitioners as has been
indicated in the preceding paragraph i.e. on the date of their completion of
six years on contractual service and accordingly, final gradation list be re-
caste and the names of the petitioners be placed at the deserving places on
the basis of their seniority by taking into consideration the date of their
regularization as has been indicated in the table reflected in the preceding
paragraph and on the basis of said date of regularization all consequential
// 19 //
service benefits be granted to the petitioners within a period of three months
from the date of communication of this order.
26. In view of the of the aforesaid analysis and the order passed in
W.P.(C) No.34120 of 202, W.P.(C) No.30075 of 2022 is also allowed by
directing the Opposite Parties to consider the case for promotion of the
petitioners along with similarly placed MPHW(M) in the State of Odisha on
the basis of revised gradation list to be prepared pursuant to the direction
given hereinabove and the case of the petitioners as well as other eligible
MPHW(M) be considered in terms of 2019 Rules by the Departmental
Promotion Committee for promotion to the posts of MPHS(M) within a
period of three months from the date of communication of this Order.
27. With the aforesaid direction, both the writ petitions stand disposed
of.
( A.K. Mohapatra )
Judge
Orissa High Court, Cuttack
The 13th of January, 2023/ Jagabandhu.
