Orissa High Court
B.Ajaya Patro vs State Of Odisha And Others .... Opposite ... on 1 March, 2024
Author: A.K. Mohapatra
Bench: A.K.Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.40936 of 2023
(In the matters of the applications under Articles 226 and 227
of the Constitution of India.)
B.Ajaya Patro .... Petitioner
Mr. S.K. Mishra, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. N.K.Praharaj, A.G.A.
W.P.(C) No.38200 of 2023
Lipsarani Parida .... Petitioner
Mr. S.K. Samal, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. N.K.Praharaj, A.G.A.
W.P.(C) No.38203 of 2023
Loree Hati .... Petitioner
Mr. S.K. Samal, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. N.K.Praharaj, A.G.A.
W.P.(C) No.38478 of 2023
Rashmirekha Mohanta and others .... Petitioners
Mr. Tanmay Mishra, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. N.K.Praharaj, A.G.A.
// 2 //
W.P.(C) No.38741 of 2023
Jyotismita Parida and others .... Petitioners
Mr. Tanmay Mishra, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. N.K.Praharaj, A.G.A.
CORAM:
JUSTICE A.K.MOHAPATRA
Date of hearing : 21.02.2024 : Date of judgment : 01.03.2024
A.K. Mohapatra, J.
1. The present batch of writ applications have been filed by
some of the candidates who have applied pursuant to the
advertisement under Annexure-1 dated 21st January, 2023 for
appointment as Nursing Officers against a total of 7483 advertised
posts of district cadre Group-C post of Nursing Officer, 2023. The
petitioners in all the writ applications are all qualified Nursing staff
having received their post-Nursing Diploma/Degree certificate from
the recognized institutions. The present writ application has been
filed with a specific prayer to quash the reject-list dated 08.08.2023
and for a further direction to the opposite parties to consider the case
of the petitioners by granting the weightage mark of 5% as has been
provided for the Healthcare Workers who have rendered their
services during the Covid-19 Pandemic in the State of Odisha.
Accordingly, the petitioners have also prayed for a direction that in
the event the petitioners are found to be eligible with such weightage
// 3 //
mark of 5%, they shall also be given appointment to the post of
Nursing Officer as has been advertisement under Annexure-1 to the
writ application.
2. Heard Sri. B.Routray, learned Senior Counsel, Sri. Manoj
Mishra, learned Senior Counsel, Mr. Sukant Kumar Mishra, learned
counsel and many other counsels appearing for the petitioners in the
present batch of writ petitions. Heard Mr. N.K.Prharaj, learned
Additional Government Advocate for the State-Opposite Parties.
Perused the writ application as well as the documents/materials
placed in record by the petitioners.
3. Since the batch of writ applications referred to hereinabove
involve a common question of law, this Court deems it proper to
dispose of all the writ applications by the following common order.
For the sake of convenience the facts involved in case of the
Lipsarani Parida in W.P.(C) No.38200 of 2023 is being taken up for
analysis of the factual background of the above noted batch of writ
applications.
4. The factual background of the abovenoted batch of writ
applications leading to the filing of the present writ applications, in
short, is that the petitioners have completed Diploma in GNM, 2020
from the Subham School of Nursing situated in Bhadrak district,
after completing her +2 Science degree course from Salandi
Residential College, Bhadrak. In the abovenoted Diploma GNM
course, the petitioners had secured 76.44% mark. It appears from the
record that the petitioners was engaged as short-term Covid Worker
during the Covid-19 Pandemic, which has been duly certified by the
authorities. On perusal of the certificate attached to the writ
application, it appears that the petitioners were engaged by the Tata
Steel Medical Hospital at Jajpur under the Covid scheme from
// 4 //
29.08.2022 to 02.02.2022 as such the petitioners were eligible for
being appointed against regular vacancy post by giving her the
weightage marks as provided in the Rules, as well as in the
advertisement.
5. While the matter stood thus, the Odisha Subordinate Staff
Selection Commission published an advertisement on 21st January,
2023, under Annexure-1 to the writ application, to fill up 7483 posts
of district cadre Group-C Nursing Officer, 2023. Such advertisement
reveals that the applications were to be filed online from the starting
date of application on 27.01.2023 to the end date of application on
17.02.2023. It has been stated in the writ application that the present
petitioners satisfies all the eligibility criteria as has been provided
under clause 3 of the said advertisement. Further, the said
advertisement under clause 3(A)(III) provides for grant of weightage
for Covid-19 health workers. Pursuant to Rule 3 of Odisha grant of
weightage in marks in the Recruitment for Short-Term COVID-19
Healthcare workers Rules, 2022, the aforesaid clause in the
advertisement also provides that the persons who have rendered the
service as covid-19 healthcare workers and have been engaged to
perform such duties for a minimum period of 3 months shall be
allowed 5% extra mark on the total marks secured by him/her in the
recruitment examination. It is further contended that although the
petitioners are entitled to the weightage mark of 5% as has been
provided pursuant to the Rules, 2022 and as per the advertisement
under clause 3(A)(III), such weightage mark has not been awarded
to the petitioners. Being aggrieved by such conduct of the OSSSC
the petitioners have approached this Court by filing the present writ
application.
// 5 //
6. Learned Senior Counsels as well as other counsels appearing
for the petitioners, at the outset, contended that the petitioners in the
batch of writ applications have all submitted their documents in
support of their contention that they have worked as Short-term
Covid-19 Health Workers for more than three months in different
hospitals/ healthcare institutions in the State of Odisha. It was also
contended that during the Covid-19 Pandemic both hospitals run by
the Government as well as the private hospitals were engaged in
Covid-19 duty under active & direct supervision of the Govt. of
Odisha. Learned senior counsel appearing for the petitioners also
contended that since the covid-19 healthcare operation was being
conducted under the direct supervision of the Government and the
local bodies, almost all the hospitals were following a common
protocol so far as the Covid-19 patients are concerned. Keeping in
view the valuable service rendered by the petitioners in the present
batch of writ applications, the Government took a policy decision
and accordingly the Rules, 2022 was formulated thereunder
providing a 5% weightage mark to such Health Workers who had
worked as short-term Covid-19 healthcare workers for more than
three months.
7. Accordingly, learned Senior counsels appearing for the
petitioners in the batch of writ applications submitted that it is not
open to the Government to discriminate amongst the petitioners and
to create a sub-class by classifying and differentiating the applicants
with regard to the grant of weightage mark by denoting one group as
health workers serving in the Government hospitals and the other as
health workers serving in private hospitals. It was further
emphatically contended by learned senior counsel that the same
would be violative of the underlying principles of Article 14 and 16
// 6 //
of the Constitution of India. Therefore, such an approach, in the
event same is adopted by the State Government while granting such
weightage mark to the applicants, would be against the spirit of law
as well as the mandate of the Constitution.
8. In view of the aforesaid submissions, learned counsels
appearing for the petitioners in the present batch of writ applications
submitted that the Opposite Parties be directed to consider the case
of the petitioners afresh by keeping in view the certificate submitted
by them in support of their contention for grant of 5% weightage
mark under clause 3(A)(III) of the advertisement, as well as pursuant
to the rules of the year 2022. With a further direction to the Opposite
Parties, including the OSSSC, to recommend such eligible
candidates for appointment to post of Nursing Officer immediately
within a stipulated period of time, since many such posts are still
lying vacant at the moment.
9. In course of their arguments Mr. Routray & Mr. Mishra,
leaned senior counsels appearing for the petitioners in the present
batch of writ petitions, referred to the Health & Family Welfare
department, Govt. of Odisha letter No.6599 dated 03.07.2020 and
submitted that the same contains a guideline for management of
Covid-19 positive cases in Covid care centers by PSUs, Corporate
Institutions, Private and NGO Sector. In such view of the matter,
learned Senior Counsel submitted that the entire healthcare operation
during the Covid-19 pandemic was being supervised and was being
carried out under the active & direct control of the Health & Family
Welfare department, Govt. of Odisha.
10. The guidelines attached to the aforesaid letter also provides
the details with regard to the treatment of such Covid-19 positive
patients. Further, referring to the said guidelines under the heading
// 7 //
"human resources" learned senior counsels for the petitioners
submitted that the guideline provides one GDMO/Ayush Doctor,
two Pharmacist/Staff nurse/ANM, two attendants, two cleaning
staffs and one BLS ambulance should be attached per 50 persons per
shift. Therefore, he submitted that it is beyond any doubt that all the
hospitals during Covid-19 Pandemic were governed and guided by
the aforesaid guideline of the state Govt. and accordingly, such
healthcare workers were engaged pursuant to such guidelines.
11. For better appreciation of the factual background of the
petitioners' case, this court deems it proper to quote the letter dated
13.07.2020 of the Health & Family Welfare Department,
Government of Odisha as well as the relevant portion of such
guidelines:-
"GOVERNMENT OF ODISHA
HEALTH & FAMILY WELFARE DEPARTMENT
File No.HFW-MEII-COVID-0006-2020-16599/H&F.W.
Dated 13.07.2020
From
Shri P.K. Mohapatra, IAS
Additional Chief Secretary to Government
To
All Collector & District Magistrates
All Municipal Commissioner
All CDM & PHOs,
Sub:- Guideline for management of COVID-19 positive
cases in COVID Care Centres by PSU, Corporate,
Institutions, private and NGO sectors.
Sir,
In inviting a reference to the subject cited above, I
am directed to send herewith the guideline for management
of COVID-19 positive cases in COVID Care Centres by
PSU, Corporate, Institutions, private and NGO sectors for
information and necessary action.
You are therefore requested to take necessary
steps to circulate the above guideline among all concerned
and to instruct them to follow the guideline scrupulously.
// 8 //
Yours faithfully
Additional Chief Secretary to Government"
"COVID CARE CENTRES BY CORPORATE,
PRIVATE AND NGO SECTOR
The COVID care centres (CCC) Created by the Govt. in
the state are facilities to accommodate mild and
asymptomatic COVID-19 positive cases without requiring
advanced medical attention. These facilities have either
separate room or dormitories with confortable beds with
adequate spacing and required hygiene and care by trained
manpower. Such facilities can be replicated to isolate and
monitor the health of the COVID-19 positive cases till they
recover and the discharged to return to their homes, in
accordance with the protocols laid down by health
authorities."
"Human Resource :
One Authorised Medical Officer/Nodal Officer to be
attached to the CCC.
One GDMO/AYUS Doctor, two Pharmacists/staff
Nurse/ANM, two attendants, two cleaning staff
(M&F) and one BLS Ambulance should be attached
per 50 persons per shift."
"The local authorities i.e., District Collectors/Municipal
Commissioners shall administer local/specific required
stipulation in addition to the above to meet with any
unforeseen contingencies."
12. Learned Additional Government Advocate on the other
hand, referring to the instruction received from the OSSSC vide
letter dated 15th December 2023, submitted before this Court that
some of the candidates who are petitioners in the abovenoted batch
of writ applications had not applied and thereby not claimed the
weightage mark for short-term covid-19 healthcare workers, in their
online applications. They OSSSC on such instruction has
specifically referred to the case of Smt. Lipasrani Parida in W.P.(C)
// 9 //
No.38200 of 2023 and Smt. Lori Hati in W.P.(C) No.38203 of 2023.
In respect of other applicants in other writ applications in the present
batch, the OSSSC has instructed the learned Additional Government
Advocate that after verification of such applicaitons by the Health &
Family Welfare department, a list of candidates who are eligible to
get the weightage mark of 5% towards short-term Covid 19 health
workers has been prepared and on such basis their cases have been
recommended for appointment to the post of Nursing officer. The
instruction dated 15th December, 2023 further reveals that 26
petitioners who are not eligible to get weightage as short term covid-
19 healthcare worker, as per the report received from H & FW
department, their cases have not been considered and they have not
been awarded the weightage mark as has been prescribed under
clause 3(A)(III) of the advertisement.
13. In course of his argument learned Additional Government
Advocate referred to the gazette notification dated 29th November
2022, whereunder the 'Odisha grant of weightage in marks in the
Recruitment for Short-Term COVID-19 Healthcare workers
Rules, 2022' has been duly notified. Further, referring to Rule 2(C),
learned Additional Government Advocate submitted before this
Court that the words "short term Covid-19 health workers" has been
defined in the aforesaid rules of the year 2022. The definition
contained in Rule 2(C) provides that the persons specially engaged
by Health and Family Welfare department as Nursing Officers,
Pharmacists, Laboratory Technicians, Radiographers, MPHW(M)
MPHW(F) for covid-19 duty, for a minimum period of 3 months are
to be certified by family welfare department. In such view of the
matter, learned Additional Government Advocate submitted that
weightage as provided under Rule 3 of 2022 rules notified on 29th
// 10 //
November, 2022 by the GA & PG Department Govt. of Odisha
applies to the persons who have been engaged by the Health and
Family Welfare department as Nursing officers in different
capacities as has been provided under Rule 2(c) of 2022 Rules.
Rule-2(c)- "Short-Term COVID-19 healthcare
workers" means the persons specially engaged by the
Health and Family Welfare Department as Nursing
Officers, Pharmacists, Laboratory Technicians,
Radiographers, Multipurpose Health Workers (Male)
and Multipurpose Health Workers (Female) for
COVID-19 duty for a minimum period of 3 months to
be certified by the Health and Family Welfare
Department."
"Rule-3 - Notwithstanding anything contained in the
relevant recruitment rules, the Short-Term COVID-19
healthcare workers who have been engaged in and
performed COVID-19 duty for a minimum period of 3
months shall be allowed 5 per cent extra marks on the
total marks of the recruitment examination under the
said relevant recruitment rules subject to the award of
marks upto the maximum marks for which recruitment
is conducted, as an onetime measure only for the next
one recruitment process to be conducted after
commencement of these rules."
Therefore, it was contended that petitioners having been
engaged in private hospitals and their cases having not been
recommended by the Health and Family Welfare department, they
have not been awarded the 5% weightage mark that has been given
to similarly situated other candidates who have been appointed by
// 11 //
the Government as short-term covid-19 healthcare workers. In such
view of the matter, learned Additional Government Advocate
submitted that in view of the aforesaid provision in the rules, the
petitioners are not eligible to get such weightage mark.
14. In reply to the aforesaid contention raised by the learned
Additional Government Advocate, learned senior counsels appearing
for the petitioners in the above noted batch of writ petitions on the
other hand, contended that the aforesaid Rules of the year 2022 have
been formulated in exercise of the powers conferred upon the State
Government by the proviso to Article 309 of the Constitution of
India. They further contended that the definition contained in clause
2(C), which defines short-term covid-19 health workers, has been
given a restrictive interpretation. In other words, by interpreting the
rules in a restrictive manner, the Government has confined the
benefit under Rule 3 to a particular class of persons, i.e. the short-
term covid-19 healthcare workers specially engaged by the Health
and Family Welfare department in different capacities as mentioned
in Rule 2(C).
15. Moreover, such sub-classification within a broader class is
unreasonable and the same has no nexus with the objects sought to
be achieved through the Rules of the year 2022. Accordingly,
learned senior counsel appearing for the petitioners submitted that
creation of such a sub-class would not be protected under Article 14
and 16 of the Constitution of India as the same is not based on any
sound principle and reasoning. Accordingly, learned senior counsels
appearing for the petitioners further contended that the provision
contained in Rule 2(C) cannot be interpreted in such a restrictive
manner, so as the same would not pass the test of Article 14 and 16
of Constitution of India. In such background, it was also prayed that
// 12 //
the aforesaid rules should have been modified to include the short-
term COVID-19 healthcare workers who have worked in any
hospital of the state of Odisha during the Covid-19 pandemic as
short term COVID-healthcare workers for more than 3 months, as
the entire operation was being carried out under the direct
supervision and control of the State Government with the help of the
local bodies/local administration.
16. Having heard learned senior counsels and other advocates
appearing for the parties, on a careful examination of their
contentions as well as the materials on record, this Court found that
the petitioners who are eligible for being appointed as Nursing
officers, pursuant to advertisement under Annexure-1, satisfy all the
requirements/eligibility criteria as provided under clause 3 of the
aforesaid advertisement. Further, it is not disputed that they have
worked as short-term covid-19 healthcare workers at different
hospitals and healthcare centers in the State of Odisha. In
recognition of their service during a difficult time for the entire
humanity, the State Government formulated the Rule of the year
2022 in exercise of the power conferred by the proviso to Article
309 of Constitution of India.
17. On a careful analysis of the submissions and arguments
advanced by learned Additional Government Advocate, this Court
observes that the Health and Family Welfare department,
Government of Odisha has given the rule a restrictive interpretation,
thereby extending the benefit under Rule 3 only to the persons
engaged as short-term covid-19 healthcare workers by the Health
and Family Welfare department in different capacities as mentioned
Rule 2(C). While extending the benefit to the aforesaid category of
persons, the petitioners in present batch of writ applications, who
// 13 //
have rendered their services during such covid-19 pandemic by
putting their life in great danger, have been discriminated against
and they have not been extended the benefit of Rule 3 of the 2022
Rules. As a result of which they have not been awarded the 5%
weightage mark, as has been done in the case of their counterparts
who had worked in Government hospitals during those days.
Furthermore, on a careful analysis of the materials on record and
instructions received by the learned Additional Government
Advocate, taking into consideration the submissions advanced by the
learned Additional Government Advocate, this Court finds
absolutely no valid ground and justification for creation of such a
sub-class amongst the short-term COVID-19 healthcare workers.
Moreover, it is not that the healthcare workers employed in private
hospitals during COVID-19 were immense to such pandemic and
such workers did not die due to COVID-19 during such pandemic.
18. Additionally, on perusal of records of the writ application,
and while considering the instructions provided by the OSSSC to the
effect that two of the candidates namely Lipsarani Parida and Lori
Hati have not claimed such benefit and thereby they have not been
provided with such certificate, this Court on a careful examination of
the records of those writ applications found that they have annexed
the copies of the online application form claiming such benefit along
with supporting certificates. In fact, in almost all the cases the
petitioners have claimed such additional weightage mark of 5% and
such claims have been supported by medical certificate issued by the
authorities, where they have worked.
19. While considering the validity of Rule-2(c) of the Rules,
2022, this Court is required to examine the source of power
conferred upon the State to enact such a rule. On a careful reading of
// 14 //
Gazette Notification dated 29th November, 2022, it appears that the
Rule, 2022 has been formulated in exercise of power conferred by
the proviso to Article-309 of the Constitution of India. The preamble
of the rule reveals that the Hon'ble Governor of Odisha is pleased to
make the rules to provide one time weightage to short-term
COVID-19 Healthcare Workers engaged by the Health & Family
Welfare Department in the recruitment to the post of Nursing
Officer. It is not disputed that service condition of the employees
including the process of recruitment can be regulated by the
appropriate Government by bringing appropriate legislation in
exercise of the power conferred upon the competent legislature by
the Constitution to enact the rules and the laws. Moreover, the power
conferred under Article-309 of the Constitution of India is subject to
other provisions of the Constitution of India, as has been reflected in
the opening words used in Article-309. Thus, it is needless to
mention here that in the law/rules framed under Article-309 in
violation of the provisions contained in the Constitution of India,
including the provisions of Part III of the Constitution, i.e. Article
14, 16, 19 and 21, then in such eventuality, the constitutional
guarantee in the shape of aforesaid Articles will prevail over every
rules/laws enacted by the State.
20. In the present case, the Rule of the year 2022 having been
framed in exercise of the power conferred by the proviso to
Article-309, such Rules and laws shall have to conform to the
underlying principles of Article-14 and 16 of the Constitution of
India. Furthermore, the President of India or the Governor of the
State, as the case may be, may notify an appropriate rule to regulate
the relevant service conditions of Government servants. However,
notifications of such rules are transitional in nature. In other words,
// 15 //
the rules framed by the executive and notified in the aforesaid
manner shall remain in force till the appropriate legislature enacts
the law on the subject matter. The aforesaid analysis finds support
from the judgment of the Hon'ble Supreme Court in A.K. Krishna
Vs. State of Karnataka reported in AIR 1998 SC 1050.
21. It is also a well-settled proposition of law that the rules
framed under Article-309 of the Constitution of India may be struck
down by a court of law on any of the grounds that may invalidate a
legislative measure. Thus, if the rules famed under Article-309 of the
Constitution of India are not in conformity with Articles 14 and 16
of the Constitution of India, which are a part of the basic structure of
the Constitution of India, then such rules are liable to be struck down
by a Court of law in exercise of power contained under Article-226
of the Constitution of India. Therefore, in the event and on the basis
of the materials on record, if this Court holds that, in view of the
Rules in question, the present Petitioners have been discriminated
against without any reasonable ground and without any legal
justification, then such rules would be considered to have been in
contravention of the provisions contained in Article-14 and 16 of the
Constitution of India and, as such, they are liable to be struck down.
Furthermore, taking into consideration the factual background of the
present case, this Court observes that the short-term COVID-19
Healthcare Workers, who were engaged in treatment of COVID-19
infected patients during the pandemic, were engaged by various
hospitals including the Government Hospitals, as is evident that the
entire Health Care Operation during COVID-19 pandemic and the
same was being carried out under the active and direct supervision
of the State Government.
// 16 //
22. Moreover, such Health Care Operations were being actively
supervised by the local administration and they were conferred with
power to take remedial measures under the guidelines. Additionally,
the guidelines issued by the State Government in this regard
provides the procedure to be followed by all hospitals without any
discrimination which includes engagement of Healthcare Workers. It
is also a fact that such Healthcare Workers, by putting their life in
danger, have rendered their service in such hospitals for the
betterment of the humanity. As such, this Court found there is no
difference between the class of Health Workers engaged in either
Government Hospitals or by the Health and Family Welfare
Department and the ones who are engaged either in private hospitals
or pursuant to the guidelines issued by the Government for
management of the COVID-19 pandemic. Therefore, this Court
found no justification in creating a sub-class by the executive by
putting the Healthcare Workers, who have been engaged by the
Health & Family Welfare Department in a different category
altogether. Such classification, according to this Court, would be in
contravention of the fundamental principles as enshrined in Article
14 and 16 of the Constitution of India.
23. Even assuming for a moment that the rule in question is
based on a policy decision of the Government or a scheme prepared
by the State Government to provide benefit to a certain class of
persons, such policy/scheme must pass the test of Article 14 and 16
of the Constitution of India. In other words, the policy decisions
taken by the executives are not immune to the test of Article 14 and
16 of the Constitution of India.
24. Having said that, this Court is aware of the scope and
authority of the Government to change any policy decision keeping
// 17 //
in view the larger public interest. Such policy decision, even if
creates a sub-class within a class, if it is done keeping in view a
definite objective which is sought to be achieved by the
Government, then it would definitely be protected within the
purview of the exceptions to Article 14 and 16 of the Constitution of
India. On a careful examination of the factual background of the
present case this Court observes that such reasoning/justification for
creation of such sub-class within a class is conspicuously absent in
the present case. Even in course of the argument, neither could the
learned Additional Government Advocate justify the same, nor any
reasoning is come forth from the side of the Government to defend
the classification under Rule-2(c) of the Rules, 2022. The State
Government and its authorities while taking a policy decision or
preparing a scheme, under its authority, are required to adhere to the
principles contained in Article 14 and 16 of the Constitution of India
and they must act fairly, and provide equal opportunity to all in the
matters of public employment. Such an objective is nothing but to
transform the goal of social justice, which is enshrined in the
preamble of the Constitution of India and casts and obligation on the
State to ensure that equal opportunity is provided to all persons
coming under the same category without any discrimination on any
of the grounds which are not acceptable under the law and the
provisions of the Constitution. In the aforesaid context, this Court
would like to refer to the judgments of the Hon'ble Supreme Court
in the case of Distt. Registrar v. M.B. Koyakutty reported in AIR
1979 SC 1060 and S.L. Sachdev v. Union of India, reported in AIR
1981 SC 411.
25. In view of the aforesaid analysis, this Court would be well
within its jurisdiction to test the rules with the touchstone of Article
// 18 //
14 and 16 of the Constitution of India. In the event the impugned
legislation/rules or the policy fails to pass such tests, this Court
would be justified in interfering with the rules/policies/schemes and
may pass a suitable direction with regard to adoption of the
principles of fairness by the State and for providing equal
opportunity to the citizens in the matter of public employment. It is
also not disputed that the principle enshrined in Article 14 of the
Constitution of India applies to cases of appointment by whatever
mode to public offices/posts and Government jobs. Therefore, the
conduct of the Opposite Parties in restricting the benefit under Rule-
3 to a certain class of persons without any valid and justifiable
reason is definitely in violation of Article 14 and 16 of the
Constitution of India. It is not disputed at bar that the Petitioners
along with similarly situated many other persons have rendered
services to the COVID-19 patients during the COVID-19 pandemic
by putting their life in great danger. Therefore, the State Government
was under a constitutional obligation to treat the Petitioners on par
with persons who were engaged in Government Hospitals or by
order of the Health and Family Welfare Department, Government of
Odisha. More so, when both categories of persons were engaged as
short-term COVID-19 Healthcare Workers. In such background, this
Court is of the considered view that the definition in Rule-2(C)
would not pass the test of judicial scrutiny by this Court while
weighing he same in the scale of Article 14 and 16 of the
Constitution of India.
26. In the present case, this Court would like to refer to the
judgment of Hon'ble Supreme Court in National Highway
Authority of India Vs. Madhukar Kumar (Civil Appeal No.11141
of 2018) decided on 23.09.2021 wherein by following the ratio laid
// 19 //
down by the earlier constitutional Bench judgment of the Hon'ble
Supreme Court in Ajay Hasia Vs. Khalid Mujib Sehravardi
reported in AIR 1981 SC 487, the constitutional Bench of the
Hon'ble Supreme Court has held that every state action must be fair,
failing which, it was found to be violative of the mandate of Article-
14 of the Constitution of India. Moreover, Article 14 of the
Constitution of India strikes at arbitrariness because, an action that is
arbitrary must necessarily involve negation of equality. Whenever,
therefore, there is arbitrariness in State action, whether it be of the
legislature or of the executive, Article 14 immediately springs into
action and strikes down such action.
27. The Hon'ble Supreme Court has also taken similar views in
E.P. Royappa Vs. State of T.N. reported in AIR 1974 SC 555 and
Maneka Gandhi Vs. Union of India reported in AIR 1978 SC 597.
The word "arbitrariness" has been defined in a judgment of the
Hon'ble Apex Court in Sharma Transport Vs. Govt. of A.P.
reported in (2002) 2 SCC 188. The Hon'ble Supreme Court has
defined arbitrariness by observing that in order to describe an action
as arbitrary, a party has to satisfy that such action was not reasonable
and was manifestly arbitrary. The expression "arbitrarily" means an
act done in an unreasonable manner, or as fixed or done capriciously
or at pleasure without adequately determining the principle, not
founded in the nature of things, non-rational, not done or acting
according to reason or judgment, depending on the will alone. Such
view has also been reiterated in Bombay Dyeing & Mfg. Co.Ltd Vs.
Bombay Environmental Action Group reported in (2006) 3 SCC
434.
28. In Bidhannagar (Salt Lake) Welfare Assn. Vs. Central
Valuation Board reported in AIR 2007 SC 2276 and in Grand
// 20 //
Kakatiya Sheraton Hotel and Towers Employees and workers
union Vs. Srinivasa Resorts Ltd. reported in (2009) 5 SCC 342, the
Hon'ble Supreme Court has observed that a law cannot be declared
ultra vires on the ground of hardship. However, the same can be
done on the ground of total unreasonableness. The piece of
legislation can be challenged and questioned as arbitrary and ultra
vires under Article 14. Before declaring the act ultra vires under
Article 14, the Court must be satisfied in respect of substantive
unreasonableness in the statute itself. Similarly, in A.P. Dairy
Development Corpn. Federation Vs. B. Narasimha Reddy reported
in (2011) 9 SCC 286, the Hon'ble Supreme Court has held that it is
a settled legal proposition that Article 14 of the Constitution of India
strikes at arbitrariness because an action that is arbitrary must
necessarily involve negation of equality. Furthermore, such doctrine
of arbitrariness is not restricted only to executive action, but also
applies to the legislature. Thus, an action of the legislature, which is
violative of Article 14 of the Constitution, should ordinarily be
manifestly arbitrary. There must be case of substantive
unreasonableness in the Statute itself for declaring the Act ultra vires
to Article 14 of the Constitution of India.
29. In the context of the present case, this Court would like to
specifically refer to the finding of the Hon'ble Supreme Court in
Krishnan Kakkanth Vs. Govt. of Kerala reported in (1997) 9 SCC
495. In para-36 of the said judgment, which is relevant for the
purpose of our case, is quoted herein below:-
"36. To ascertain unreasonableness and arbitrariness
in the context of Article 14 of the Constitution, it is not
necessary to enter upon any exercise for finding out the
wisdom in the policy decision of the state government. It
is immaterial whether a better or more comprehensive
could have been taken. It is equally immaterial if it can
// 21 //
be demonstrated that the policy decision is unwise and
is likely to defeat the purpose for which such decision
has been taken. Unless the policy decision is
demonstrably capricious or arbitrary and not informed
by any reason whatsoever or it suffers from the vice of
discrimination or infringes any statute or provisions of
the Constitution, the policy decision cannot be struck
down. It should be borne in mind that except for the
limited purpose of testing a public policy in the context
of illegality and unconstitutionality, courts should avoid
"embarking on uncharted ocean of public policy"."
In the aforesaid context, it would also be apt to refer to some
of the other land mark judgments of the Hon'ble Supreme Court, i.e.
in the case of S. Nagaraj Vs. State of Karnataka reported in (1993)
Supp. 4 SCC 595 and Shrilekha Vidyarthi (Kumari) Vs. State of
U.P. reported in (1991) 1 SCC 212.
30. In the ultimate analysis of the factual background of the
present case, which is apparent from the materials on record and
further keeping in view the analysis of law made hereinabove, this
Court is of the considered view that the provision contained in Rule-
2(c) of the 2022 Rules is not in compliance with the principles
mandated by Article 14 and 16 of the Constitution of India.
Therefore, this Court has no hesitation in coming to a conclusion
that the discrimination meted out to the Petitioners would be hit by
the principles enshrined in the Article 14 and 16 of the Constitution
of India. However, before striking down the rule, this Court, by
applying the golden rule of interpretation, would make an attempt to
bring the said rule in conformity with Article 14 and 16 of the
Constitution of India. Furthermore, in the event such interpretation is
possible, this Court would first opt for reading down the rule to
bring the same in conformity with Article 14 and 16 of the
Constitution of India before striking down the same by holding that
// 22 //
the same is ultra vires of Article 14 and 16 of the Constitution of
India.
31. By applying the aforesaid proposition to the facts of the
present case, particularly Rule-2(c) of the Rules, 2022, this Court is
of the considered view that by reading down the provisions
contained in Rule-2(c) of the Rules, 2022, the same can be brought
in conformity with Articles 14 ad 16 of the Constitution of India.
Therefore, this Court is of the considered opinion that by removing
the words "by health and family welfare department" and reading
down such provision in Rule-2(c), the same can be made compliant
of Articles 14 and 16 of the Constitution of India. Accordingly, this
Court, by reading down the aforesaid words, directs the Opposite
Parties to bring an end to the disparity or discrimination between the
two classes of Healthcare Workers, who had rendered their services
during COVID-19 pandemic. As a result, the aforesaid words in
Rule-2(c) are hereby struck down. Further, the Opposite Parties are
directed to consider the case of the Petitioners. Further, this Court
directs the Opposite Parties to interpret Rule-2(c) in a manner which
would include all categories of persons, who have rendered their
services as Short-Term COVID-19 Healthcare Workers for a period
of more than three years as has been provided in the Rules. The
eligibility criteria with regard to their rendering service as Short-
Term COVID-19 Healthcare Workers for three months can very
well be verified from the local administration, who were keeping
record of such healthcare workers during COVID-19 pandemic and
such healthcare workers were working under the active and direct
control of the local administration.
32. Lastly, subject to verification of the aforesaid fact, the
Opposite Parties are directed to consider the case of the Petitioners
// 23 //
by granting them the weightage of mark as has been provided under
Rule-3 of Rule-2022 and subject to Petitioners eligibility, the case of
the Petitioners shall be considered for appointment as Nursing
Officer pursuant to the advertisement under Annexure-1 to the writ
petition. The Opposite Parties are further directed to carry out
aforesaid exercise within a period of two months from the date of
communication of a copy of this judgment by the Petitioners.
Furthermore, in view of the aforesaid direction, the rejection list in
respect of the Petitioners in the batch of writ application dated
08.08.2023 is hereby quashed. It is also directed that while
examining the cases of the Petitioners, the Opposite Parties shall
provide opportunity to the Petitioners to furnish their respective
certificates in support of their claim and thereafter, it is open to the
Opposite Parties to verify such certificates from the local
administration. Subject to satisfaction of the aforesaid criteria, the
cases of the Petitioners if found eligible for such appointment shall
be recommended by the OSSC to the Government by including their
name in the merit list for appointment as Nursing Officer against the
vacant post of Nursing Officers.
33. Accordingly, the batch of writ petitions stand allowed.
However, in the facts and circumstances of the present case, there
shall be no order as to costs.
(A.K. Mohapatra)
Judge
Orissa High Court, Cuttack
Reason: Authentication 1 March, 2024/Rubi Behera, Jr. Stemo/
The
Location: OHC, CUTTACK. D. Aech, Secretary
Date: 01-Mar-2024 20:38:36
