Orissa High Court
Pravati Sahoo vs Union Of India & Ors. .... Opp. Party (S) on 25 June, 2024
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.16471 of 2016
along with
W.P.(C) Nos.16472, 17379, 17381 and 17382 of 2016
(In the matters of applications under Articles 226 and 227 of the
Constitution of India, 1950).
Pravati Sahoo .... Petitioner(s)
(In W.P.(C) No.16471 of 2016)
Samarendra Kumar Biswal
(In W.P.(C) No.16472 of 2016)
Swagata Rath
(In W.P.(C) No.17379 of 2016)
Sidheswar Prasad Nayak
(In W.P.(C) No.17381 of 2016)
Amulya Sen Deo
(In W.P.(C) No.17382 of 2016)
-versus-
Union of India & Ors. .... Opp. Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner (s) : Ms. Saswati Mohapatra, Adv.
-versus-
For Opp. Party (s) : Mr. P.K. Parhi, DSGI
Mr. M.K. Pati, CGC
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-07.05.2024
DATE OF JUDGMENT:-25.06.2024
Dr. S.K. Panigrahi, J.
1. Since common question of facts and law are involved in all the above-
mentioned Writ Petitions, the same were heard together and are being
Location: ORISSA HIGH COURT, CUTTACK
disposed of by this common judgment. However, this Court felt it
apposite to deal the W.P.(C) No.16471 of 2016 as the leading case for
proper adjudication of all these cases.
2. The Petitioner, in W.P.(C) No.16471 of 2016, has made a prayer to
quash the Guidelines regarding filling up of Group 'C' posts other than
LDC, Stenographer and MTS in CGHS issued on 7th April, 2016 by the
Opposite Party No.1/ Secretary to Government of India, Ministry of
Health and Family Welfare, CGHS-II Section, New Delhi and the letter
dated 11.05.2016 issued by the said Opposite Party No.1 addressed to
the Additional Director, C.G.H.S., Bhubaneswar regarding filling up of
regular posts in CGHS, Bhubaneswar. She further seeks a direction
from this Court to the Opposite Party No.1/ Secretary to Government of
India, Ministry of Health and Family Welfare, New Delhi and the
Opposite Party No.2/ Director General, Central Government Health
Scheme, New Delhi to absorb/ regularize her service against the regular
vacancy of Staff Nurse at CGHS, Bhubaneswar.
I. FACTUAL MATRIX OF THE CASE:
3. Facts culminating in filing of the present Writ Petition are that:
(i) In the year 2004, the Opposite Party No.1 decided to open new
dispensaries in Bhubaneswar, Dehradun and Ranchi under the Central
Government Health Scheme for the benefits of all Central Government
employees and pensioners.
Location: ORISSA HIGH COURT, CUTTACK
Date: 16-Jul-2024 11:04:47
(ii) Consequently, on 27.04.2005, an advertisement was issued for
recruitment of Pharmacist, Clerk, Staff Nurse etc. in terms of prevailing
Recruitment Rules.
(iii) Pursuant to the above-mentioned Advertisement, the Petitioner
applied for the post of Staff Nurse. The Selection Board was constituted
comprising the Manager (P & A), Regional Manager (East) and
Regional Director, Ministry of Health and Family Welfare,
Bhubaneswar. Following the selection process, the Petitioner was
selected for the post of Staff Nurse out of 58 candidates.
(iv) Due to want of regular vacancies of Staff Nurse, the posts were filled
up by a Company named, Hindustan Latex (Government of India
undertaking). Accordingly, the Petitioner being selected as Staff Nurse
and joined on 23.06.2005. The Petitioner was allowed to draw the scale
of pay attached to the said post.
(v) In the year 2011, the said Company showed its unwillingness to
provide service to CGHS at Bhubaneswar. Therefore, tender was
invited from local Company to provide services of Staff Nurse on
contract basis in the absence of regular vacancies. The Authorities
decided to give preference to the existing Staff while inviting the tender
locally.
(vi) While the Petitioner was/is continuing as such, on 31.12.2015 regular
posts of Staff Nurse and Pharmacists were created, inter-alia, diverting
the posts from CGHS, New Delhi. Ten numbers of posts were diverted
from CGHS, New Delhi to CGHS, Bhubaneswar which includes one
regular post of Staff Nurse.
Location: ORISSA HIGH COURT, CUTTACK
Date: 16-Jul-2024 11:04:47
(vii) On 11th March, 2015, the Government of India has promulgated the
Rules named, Ministry of Health and Family Welfare, Central
Government, Health Scheme Organization Staff Nurse (Allopathic)
Recruitment Rules, 2015 in supersession of 2002 Rules. The aforesaid
Rules postulates Diploma in Staff Nurse from recognized Institution(s)
and registered as Pharmacist under Planning Act, 1948 and 1 (One)
year's experience as Staff Nurse in any recognized Hospital. The
Petitioner has already served for 11 (Eleven) years as Staff Nurse in the
said Organization.
(viii) After diversion of posts from CGHS, New Delhi to CGHS,
Bhubaneswar on 31.12.2015, the Additional Director, CGHS,
Bhubaneswar vide Letter dated 22.01.2016 requested the Director,
CGHS, New Delhi for regularisation of existing employees, who have
already worked for more than 10 (ten) years of service in the said
Organization. Due to hard work and sincerity of the contractual
employees including the Petitioner, the CGHS, Bhubaneswar was
awarded as an outstanding dispensary in the country and won Merit
Certificate.
(ix) The Opposite Party No.1 issued a Guideline on 7th April, 2016 for
filling up Group 'C' posts other than LDC, Stenographer and MTS in
CGHS.
(x) The Petitioner had submitted a detailed representation before the
Competent Authority for absorption /regularisation against the
diverted regular posts on 31.12.2015. The aforesaid representation of
the Petitioner was duly forwarded by the Additional Director to the
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Date: 16-Jul-2024 11:04:47
Director, Central Government Health Scheme on 26.04.2016. But, the
Opposite Party No.1 vide letter dated 11.05.2016 rejected the
representation of the Petitioner stating that there would be no
relaxation of the conditions stipulated in the Recruitment Rules. Hence,
this Writ Petition.
II. PETITIONERS' SUBMISSIONS:
4. Learned counsel for the Petitioners earnestly made the following
submissions in support of his contentions.
(i) The Petitioner has been serving as Staff Nurse since 2005 under the
administrative control of the Opposite Party No.3 and prays for
absorption in sanctioned vacancy of Staff Nurse which was sanctioned
in the year 2015, after a lapse of 10 years.
(ii) In the year 2004, the Opposite Party No.1 decided to open new CGHS
dispensaries in the cities of Bhubaneswar, Dehradun and Ranchi vide
letter dated 24.02.2004. An open advertisement was issued for
recruitment of para-medical staff in Odia Newspaper "the Sambad"
dated 27.04.2005.
(iii) On 30.04.2005, the recruitment board conducted the interview.
Hindustan Latex Limited (HLL) (Government of India undertaking) is
executing of Ministry of Health and Family Welfare for recruitment of
Para-medical staff. The Petitioner appointed on contractual basis with
pay structure.
(iv) The Petitioner was selected for Staff Nurse under the State
Government in the year 2000. The Petitioner, thereafter, applied for the
post in question pursuant to the open Advertisement dated
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Date: 16-Jul-2024 11:04:47
27.04.20205. When she was selected, joined the post leaving the State
Government service, where she had completed five years of continuous
service.
(v) On 31.12.2015 sanctioned vacancies of paramedical staffs diverted
from CGHS, Delhi to CGHS, Bhubaneswar.
(vi) The Petitioner was selected in the year 2005 through an open
Advertisement in terms of Recruitment Rules, 2000. Out of two
candidates, one candidate was selected against regular vacancy. Due to
want of regular vacancy of Staff Nurse/ the Petitioner's appointment
was treated as contractual appointment.
(vii) The Petitioner has already completed more than ten years of service
under the said Organization uninterruptedly. The Petitioner is getting
the pay scale attached to the post in question.
(viii) It was contended that the candidates who were selected through
an advertisement and regular selection process in terms of the
Recruitment Rules, their appointment cannot be held to be dehors the
Rules and when regular vacancies occur, the selected contractual /ad
hoc employees have to be absorbed first.
(ix) The Guidelines dated 07.04.2016 is without jurisdiction as the
Recruitment Rules, 2015 does not stipulate any written examination for
the post of Staff Nurse. The Government in its own wisdom,
formulated the 1979, 2002 and 2015 Recruitment Rules, where there is
no such provision for written examination. On the contrary, the Rules,
2015 only prescribed two years' experience in Hospitals. The Petitioner
has 11 years of experience at CGHS, Bhubaneswar.
Location: ORISSA HIGH COURT, CUTTACK
Date: 16-Jul-2024 11:04:47
(x) It is the settled position of law that the employee, who has rendered
service in the Institution/Organization and became age barred to
appear in any interview, the years of service rendered in the said
Institution / Organization shall be deducted from present age and/or
the over age shall be condoned by the Authority and preference will be
given to the employee.
(xi) Moreover, the Opposite Party No.3/ Additional Director, CGHS,
Bhubaneswar vide letter dated 22.01.2016 requested the Opposite Party
No.2/ Director, CGHS, New Delhi to fill up the regular posts from
among the contractual staffs as they have been working since last 10
years and/or condone their age to participate in the selection process.
Individually, all para-medical staff including the Petitioner represented
before the authority for relaxation of their age.
(xii) But, the Opposite Party No.1 rejected the claim of Para-medical staff
for relaxation of age. That apart, on and from the year 2022, as no
labour agency is willing to take tender for CGHS, Bhubaneswar.
Therefore, there is disruption in releasing the salary. In such premises,
he submits that the prayer of the Petitioner may be allowed.
III. SUBMISSIONS OF THE OPPOSITE PARTIES/ UNION OF INDIA:
5. Per contra, learned counsel for the Opposite Parties / Union of India
earnestly made the following submissions in support of his
contentions:
(i) The present Writ Petition is not maintainable and liable to be dismissed
as there is no cause of action arose on the part of the Petitioner. The
Signature NotPetitioner
Verified has been engaged through the agency (by the different
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 16-Jul-2024 11:04:47
Service providing) from 23.06.2005. The Opposite Parties have not
entered into any sort of contract with the Petitioner for rendering her
service at CGHS, Bhubaneswar.
(ii) So far as the open Advertisement as well as the Selection Committee
along with the merit list are concerned, it was submitted that the same
are not related to the Opposite Parties. These are related to the service
provider/local agencies. So far as the representation of the Petitioner to
the Opposite Parties for regularization of her service in the post of Staff
Nurse is concerned, the same was rejected by the Opposite as no
contract was executed with the Petitioner for rendering her service at
CGHS, Bhubaneswar. Thus, the Opposite Parties have no obligation to
regularize the services of the Petitioner.
(iii) The Petitioner had left the State Government Service of her own choice
in order to join the office of the Opposite Parties through the outsource
firm even while knowing well that her engagement is only on a
contractual basis for a certain period of time. The provisions for
relaxation of age limit exist only for some categories of candidates, such
as the candidates already holding the regular Government posts etc.
Whereas, the Petitioner is not covered under any of these categories.
Therefore, her claim for age relaxation is devoid of any merit.
(iv) To counter the submission of the Petitioner that after diversion of the
regular post from CGHS, Delhi to CGHS, Bhubaneswar on 31.12.2015,
as the Petitioner has worked in CGHS, Bhubaneswar for more than
eleven years, her service should have been regularized after
condonation of age as per the Recruitment Rules, it was contended that
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Date: 16-Jul-2024 11:04:47
the regular post came into existent only with effect from 31.12.2015 and
as such the Petitioner as on that date has to fulfill the age limit as
stipulated in the Recruitment Rules for the post of Staff Nurse.
(v) The Petitioner has been engaged through the service provider/agency.
The Opposite Parties paid the remuneration as per the contract with the
service provider not with the Petitioner.
(vi) The appointing authority has the discretion to devise his / her own
method within the prescribed policy of the Government for selection of
suitable candidates for the Post. In this connection, it was contended
that the contention made by the Petitioner is relevant only where the
candidate is holding a regular Government post. Whereas, in this case,
the Petitioner was appointed by an outsourced firm.
(vii) In such view of the matter, it was contended that the prayer made by
the Petitioner is not sustainable in law and, hence, this Writ Petition is
liable to be dismissed.
IV. CONCLUSION:
6. The stand of the Petitioner is that the Petitioner was selected for Staff
Nurse under the State Government in the year 2000. However, in the
year 2004, the Opposite Party No.1 decided to open new CGHS
dispensaries in the cities of Bhubaneswar, Dehradun and Ranchi vide
letter dated 24.02.2004. An open advertisement was issued for
recruitment of para-medical staff in Odia Newspaper "the Sambad"
dated 27.04.2005. The Petitioner applied for the post in question
pursuant to the open Advertisement dated 27.04.20205. When she was
Signature Notselected,
Verified joined the post leaving the State Government service, where
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 16-Jul-2024 11:04:47
she had completed five years of continuous service. Out of two
candidates, one candidate was selected against regular vacancy. Due to
want of regular vacancy of Staff Nurse/ the Petitioner's appointment
was treated as contractual appointment.
7. It was contended that the candidates who were selected through an
advertisement and regular selection process in terms of the
Recruitment Rules, their appointment cannot be held to be dehors the
Rules and when regular vacancies occur, the selected contractual /ad
hoc employees have to be absorbed first. It was further contended that
the Petitioner has already completed more than ten years of service
under the said Organization uninterruptedly.
8. But, instead of absorbing the service of the Petitioner, the Opposite
Party No.1 issued a Guideline on 7th April/ 2016 for filling up Group 'C'
posts other than LDC, Stenographer and MTS in CGHS. The Petitioner
had submitted a detailed representation before the Competent
Authority for absorption /regularisation against the diverted regular
posts on 31.12.2015. The aforesaid representation of the Petitioner was
duly forwarded by the Additional Director to the Director, Central
Government Health Scheme on 26.04.2016. But, the Opposite Party
No.1 vide letter dated 11.05.2016 rejected the representation of the
Petitioner stating that there would be no relaxation of the conditions
stipulated in the Recruitment Rules.
9. Regularization of contractual services has been a persistent matter of
litigation for the last several decades. In this regard, the Apex Court has
clarified that the same has to be based on the necessity of the said post
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Date: 16-Jul-2024 11:04:47
and the duration of the service of the employee. In the case of Roshan
Lal Tandon v. Union of India1, the Supreme Court observed:
"It is true that the origin of Government service is
contractual. There is an offer and acceptance in every case.
But once appointed to his post or office the Government
servant acquires a status and his rights and obligations are no
longer determined by consent of both parties, but by statute
or statutory rules which may be framed and altered
unilaterally by the Government. In other words, the legal
position of a government servant is more one of status than of
contract. The hall-mark of status is the attachment to a legal
relationship of rights and duties imposed by the public 'law
and not by mere agreement of the parties. The emolument of
the Government servant and his terms of service are governed
by statute or statutory rules which may be unilaterally
altered by the Government without the consent of the
employee. It is true that Art. 311 imposes constitutional
restrictions upon the power of removal granted to the
President and the Governor under Art. 310. But it is obvious
that the relationship between the Government and its servant
is not like an ordinary contract of service between a master
and servant. The legal relationship is something entirely
different, something in the nature of status. It is much more
than a purely contractual relationship voluntarily entered
into between the parties. The duties of status are 'fixed by the
law and in the enforcement of these duties society has an
interest."
10.In Ashwani Kumar and others v. State of Bihar and others2, the Apex
Court was considering the validity of confirmation of the irregularly
employed. The Court observed:
"In this connection it is pertinent to note that question of
regularization in any service including any government
service may arise in two contingencies. Firstly, if on any
1968 SCR (1) 185
Signature Not2 Verified
1996 Supp. (10) SCR 120
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 16-Jul-2024 11:04:47
available clear vacancies which are of a long duration
appointments are made on ad hoc basis or daily-wage basis by
a competent authority and are continued from time to time
and if it is found that the incumbents concerned have
continued to be employed for a long period of time with or
without any artificial breaks, and their services are otherwise
required by the institution which employs them, a time may
come in the service career of such employees who are
continued on ad hoc basis for a given substantial length of
time to regularize them so that the employees concerned can
give their best by being assured security of tenure. But this
would require one precondition that the initial entry of such
an employee must be made against an available sanctioned
vacancy by following the rules and regulations governing
such entry. The second type of situation in which the question
of regularization may arise would be when the initial entry of
the employee against an available vacancy is found to have
suffered from some flaw in the procedural exercise though the
person appointing is competent to effect such initial
recruitment and has otherwise followed due procedure for
such recruitment. A need may then arise in the light of the
exigency of administrative requirement for waiving such
irregularity in the initial appointment by a competent
authority and the irregular initial appointment may be
regularized and security of tenure may be made available to
the incumbent concerned. But even in such a case the initial
entry must not be found to be totally illegal or in blatant
disregard of all the established rules and regulations
governing such recruitment."
11. Every year there have been several litigations pertaining to
regularization. In such cases, the Court has to play a guiding role while
issuing directions for regularizing such employees more particularly
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Date: 16-Jul-2024 11:04:47
when the conditions prescribed in the said orders can be said to be
either unreasonable, arbitrary or discriminatory.
12.In the case of Secretary, State of Karnataka v. Umadevi And Others3,
the Supreme Court iterated:
"One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) of duly
qualified persons in duly sanctioned vacant posts might have
been made and the employees have continued to work for ten
years or more but without the intervention of orders of courts
or of tribunals. The question of regularization of the services
of such employees may have to be considered on merits in the
light of the principles settled by this Court in the cases above
referred to and in the light of this judgment. In that context,
the Union of India, the State Governments and their
instrumentalities should take steps to regularize as a one-time
measure, the services of such irregularly appointed, who have
worked for ten years or more in duly sanctioned posts but not
under cover of orders of courts or of tribunals and should
further ensure that regular recruitments are undertaken to fill
those vacant sanctioned posts that require to be filled up, in
cases where temporary employees or daily wagers are being
now employed. The process must be set in motion within six
months from this date. We also clarify that regularization, if
any already made, but not subjudice, need not be reopened
based on this judgment, but there should be no further by-
passing of the constitutional requirement and regularizing or
making permanent, those not duly appointed as per the
constitutional scheme."
13.In the instant case, the Petitioner has been engaged through the agency
(by the different Service Providers) from 23.06.2005. The Opposite
Parties have not entered into any sort of contract with the Petitioner for
rendering her service at CGHS, Bhubaneswar. The Petitioner had left
the State Government Service of her own choice in order to join the
Signature Not3 Verified
Appeal (civil) 3595-3612 of 1999
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 16-Jul-2024 11:04:47
office of the Opposite Parties through the outsource firm even while
knowing well that her engagement is only on a contractual basis for a
certain period of time. The provisions for relaxation of age limit exist
only for some categories of candidates, such as the candidates already
holding the regular Government posts etc. Moreover, the regular post
came into existent only with effect from 31.12.2015 and as such the
Petitioner as on that date has to fulfill the age limit as stipulated in the
Recruitment Rules for the post of Staff Nurse.
14. It is the fact that in the year 2004, the Opposite Party No.1 decided to
open new CGHS dispensaries in the cities of Bhubaneswar, Dehradun
and Ranchi vide letter dated 24.02.2004. An open advertisement was
issued for recruitment of para-medical staff in Odia Newspaper "the
Sambad" dated 27.04.2005. The Petitioner applied for the post in
question pursuant to the open Advertisement dated 27.04.20205. On
30.04.2005, the recruitment board conducted the interview. Hindustan
Latex Limited (HLL) (Government of India undertaking) is executing of
Ministry of Health and Family Welfare for recruitment of Para-medical
staff. The Petitioner selected in the selection process and joined the post
in question. It is also the admitted fact that out of two candidates, one
candidate was selected against regular vacancy and due to want of
regular vacancy of Staff Nurse/ the Petitioner's appointment was
treated as contractual appointment.
15. Since the initial entry of the Petitioner has not been made against an
available sanctioned vacancy by following the rules and regulations
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Date: 16-Jul-2024 11:04:47
governing such entry, therefore, the question of regularization service
of the Petitioner may not arise.
16. In light of the above-mentioned facts and precedents cited hereinabove,
this Court does not find any merit in the Writ Petition.
17. Hence, W.P.(C) No.16471 of 2016 is dismissed.
18. Accordingly, all the connected Writ Petitions are dismissed.
19. Interim order, if any, passed earlier in any of the Writ Petitions stands
vacated. No order as to costs.
( Dr. S.K. Panigrahi )
Judge
Orissa High Court, Cuttack,
Dated the 25th June, 2024/ B. Jhankar
Location: ORISSA HIGH COURT, CUTTACK
Date: 16-Jul-2024 11:04:47
