Orissa High Court
State Of Odisha & Ors vs Sri Ajaya Kumar Behera & Ors. ...... Opp. ... on 20 April, 2021
Author: S. K. Mishra
Bench: S. K. Mishra
W.P.(C) No.4099 of 2021
C O R A M:
SHRI JUSTICE S. K. MISHRA
AND
MISS JUSTICE SAVITRI RATHO
______________________________________________
State of Odisha & Ors. ...... Petitioners.
- Versus-
Sri Ajaya Kumar Behera & Ors. ...... Opp. Parties.
For Petitioners : Mr. A.K. Nanda, AGA.
For Opp. Parties : Mr. R.K. Bisoi & P.K. Dash
(Caveator-O.Ps.1 to 6)
ORDER
04. 20.04.2021 This matter is taken up through Video Conferencing mode.
2. Heard Mr. A.K. Nanda, learned Additional Government Advocate appearing for the Petitioners-State and Mr. R.K. Bisoi, learned counsel for the - Caveators- Opposite Party Nos.1 to 6.
3. In this writ petition, the State of Odisha through the Secretary to Government, Health and Family Welfare Department, Odisha, Bhubaneswar, the Director, Health Services, Odisha, Heads of Department Building, Bhubaneswar, Khordha and the Chief District Medical and 2 Public Health Officer, Khordha, District- Khordha has assailed the order dated 10.07.2018 passed by the learned Member (Judicial), Odisha Administrative Tribunal, Bhubaneswar in O.A. No.1535 of 2018 directing the present Petitioners-State to regularize the services of the Applicants therein on completion of six years of service with consequential service benefits from the date of which they have completed six years of service.
4. Major parts of the facts are not disputed.
An advertisement was brought out on 01.07.2005 by the Chief Medical Officer and Public Health Officer, Khordha, District- Khordha inviting applications from eligible candidates to be engaged as Multipurpose Health Worker (Male) (hereinafter referred to as "the M.P.H.W. (Male)" for brevity) and the vacancies were stated to be 72. The Opposite Party Nos.1 to 6 applied for the same and as per Office Order No.7240 dated 02.12.2005 of the Office of the Chief District Medical Officer, Khurda, they were appointed as M.P.H.W. (Male). They continued till expiry of eight years. However, they were regularized in pursuance to Resolution No.32010/Gen, dated 12.11.2013 of the Joint Secretary to Government, General Administration Department, Government of Odisha and the Order No.13007 dated 17.05.2014 of the Deputy Secretary to Government, Health and Family Welfare Department, 3 Government of Odisha on 31.05.2014. The same was challenged by the Opposite Party Nos.1 to 6 before the Odisha Administrative Tribunal, Bhubaneswar (hereinafter referred to as "the Tribunal" for brevity) in O.A. No.1535 of 2018. The Applicants/Opposite Party Nos.1 to 6's case was taken up on 10.07.2018 and after following the order and observations made by the Tribunal in O.A. No.1821 of 2015 vide order dated 21.07.2017 itself, the order impugned herein this writ petition was passed.
It is further borne out from paragraph-5 appearing at page 7 of the writ petition itself that after the order of the Tribunal, the Director of Health Services requested the Chief District Medical Officer, Khordha to implement the order to avoid contempt proceeding vide Letter No.3949/H, Bhubaneswar, dated 13.02.2019 to take appropriate steps for implementation of the order of the Tribunal. Pursuant to the said request letter, the Chief District Medical Officer, Khordha implemented the order allegedly without taking note of G.A. and P.G. Department Resolution No.26108/Gen, dated 17.09.2013. Subsequently, similar matters were examined by the G.A. and P.G. Department which were referred to in the impugned order and clarified in letter dated 18.10.2019 that there is no scope to implement the order of the Tribunal as the 4 same is contrary to the principles prescribed in G.A. and P.G. Department Resolution No.26108/Gen, dated 17.09.2013.
5. So, two questions arise in this case is; whether M.P.H.Ws. (Male), who are also paramedical staff of the Health and Family Welfare Department, should be treated in the same manner that Junior Radiographers and Staff Nurses, whose cases have been considered and their services have been regularized even prior to passing of the Resolution dated 17.09.2013. The second question is that whether the State Government after implementation of the order passed by the Tribunal is at liberty to challenge the same on the ground that the Chief District Medical and Public Health Officer, Khordha who acted on the direction of the Director, Health Services did not take into consideration some Notifications of the State Government.
6. In this connection, we take note of the order dated 21.07.2017 passed by the Tribunal in O.A. No.1821 of 2015. In order to appreciate the matter properly, we find it apposite to quote the entire order as under:
"O.A. No.1821/201521.07.2017 Heard Mr. R.K. Bisoi, learned counsel for the applicants and Mr. N. Mishra, learned standing counsel.
The applicants who are working as MPHW(M), have sought for a direction to ante date their regularization as has been done in the case of Pharmacists, Staff Nurse and Jr. Radiographer, who 5 have been appointed with the applicants on the basis of common advertisement.
Learned counsel for the applicants submitted that pursuant to the advertisement dtd. 30.07.2005 vide Annexure-1, for appointment to the post of Pharmacist, Jr. Radiographers and MPHW (M) in the district of Jagatsinghpur, the applicants submitted their applications for the post of MPHW (M). Being duly selected, they were appointed as per the order dtd.22.12.2005 is at Annexure-2 series. Simultaneously, the candidates for the post of Pharmacists, Jr. Radiographers have also been appointed. Subsequently, Government in Health and Family Welfare Department issued a resolution on 15.02.2004 for regularization of Jr. Radiographer on completion of six years of uninterrupted contractual service. Similar resolution dtd. 22.12.2008, have also been issued for regularization of Staff Nurse on completion of six years. Accordingly, one Mihir Kumar Lenka, Jyoti Prakash Nayak, Nirupama Ojha and Arabindha Sahu, who were appointed as contractual Pharmacists on 04.06.2013, 11.06.2013, 04.06.2013 and 05.06.2013 respectively were appointed on regular basis on completion of six years. Learned counsel further submitted that the applicants are entitled to similar benefits of regularization on completion of six years but without extending such benefit, they have been regularized as per G.A. Department Resolution dtd. 17.05.2013, with effect from 18.09.2013 instead of 28.12.2011 on completion of six years.
Learned standing counsel basing on the counter submitted that the services of the applicants have been regularized as per the decision of the High Power Committee in their meeting dtd. 06.05.2014, where it is decided to regularize the services of 35 MPHW (M) with effect from 18.09.2013. The grievance of the applicants being not similar to that of Pharmacists and Staff Nurses, they were not regularized immediately on completion of six years.
It may be noted that the Pharmacists who have been regularized as per order No.3312 dtd. 21.06.2013 and whose cases have been cited as 6 precedent, have not been appointed pursuant to the advertisement, basing on which the applicants have been appointed. It appears that those Pharmacists were appointed on contractual basis in the year 2007 and their regularization was made following resolution No.24160 dtd. 19.10.2008 and notification No.14575 dtd. 13.05.2013. Those resolutions have not been cited or filed to show that those resolutions are applicable to the applicants. As per the resolution of the Government in G.A. Department dtd. 17.09.2013, the contractual Group- C & D employee is to be regularized on satisfactory completion of six years as contractual service or from the date of publication of the resolution. The advertisement, on the basis of which the applicants have been appointed do not contain any stipulation that the candidate will be regularized on completion of six years of service. Therefore, the applicants cannot claim benefit at par with Radiographers whose services have been regularized on completion of six years. Be that as it may, when Government have issued resolution to regularize paramedical staff like Staff Nurse, Jr. Radiographer on completion of six years, there is no reason to discriminate the applicants, who stand in the same footing as other paramedical staff.
Accordingly, the O.A. is allowed and the respondent authorities are directed to take appropriate decision for regularization of the service of the applicants on completion of six years, as has been done in the case of Jr. Radiographer and Staff Nurse and thereafter proceed to ante date the date of their regularization on completion of six years with consequential service benefits. The entire exercise be completed within a period of three months from the date of receipt of a copy of this order."
7. Thus, from the aforesaid order, it is clear that the Tribunal while considering the case of some of the Pharmacists, who were appointed by the State Administration/ District 7 Administration without any advertisement, has observed that their services were regularized even before coming into force of the Resolution dated 17.09.2013. As yet, nobody is questioning their appointment. The Opposite Party Nos.1 to 6 who had applied for the posts of M.P.H.W. (Male) in pursuant to an advertisement and duly selected in course of appointment, we do not find any reason for the State Government/ District Administration not to regularize their services on completion of their six years tenure.
8. So, we are of the opinion that there is no distinction between the M.P.H.Ws. (Male) and other paramedical staffs.
9. Mr. A.K. Nanda, learned Additional Government Advocate for the Petitioners-State submits that Junior Radiographers were appointed on temporary basis against some abolished posts.
10. If those posts were already abolished then without recreating the posts in the cadre, how can the Junior Radiographers be regularized and whereas in this case, there is 72 posts of M.P.H.Ws. (Male), but the same benefit should not be extended to them. We are unable to uphold the discriminatory treatment meted out to the Opposite Party Nos.1 to 6 by the State Government.
811. The second question is whether the order which has already been implemented by the State Government should be allowed to be challenged or not?
12. Mr. R.K. Bisoi, learned counsel for the Petitioner submits that the pleadings of the Petitioners-State are factually incorrect. Drawing attention of the Court to the Letter No.3949/H &FW-(IW)-78/2018 Bhubaneswar dated 13.02.2019 of the Government of Orissa, Health and Family Welfare Department, he further submits that the Deputy Secretary to Government of Odisha, Health and Family Welfare Department requested the Chief District Medical and Public Health Officer, Khordha to take appropriate steps for implementation of the order of the Tribunal in favour of the Opposite Party Nos.1 to 6 only if and otherwise admissible under intimation to this Department. The concurrence of the Law Department vide UOR No.114 dated 22.01.2019 was also taken.
13. It is well-settled principles of law that an order which has already been executed or already been complied with should not be allowed to be challenged by the party who was directed to implement the same. But, in exceptional cases like in the case of fraud or forgery, a party may be allowed to challenge the same because fraudulent transaction vitiates all solemn acts. But, herein this case there is no such case of fraud.
9We also do not find any substantial reason for the implementing authority to again seek for setting aside of the order.
14. With such observations, this writ petition is dismissed.
15. Since the restrictions due to resurgence of Covid-19 are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned Advocate, in the manner prescribed vide Court's Notice No.4587 dated 25th March, 2020 as modified by Court's Notice No.4798 dated 15th April, 2021.
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(S. K. Mishra) Judge .........................
(Savitri Ratho) Judge BJ