Orissa High Court
Amaresh Behera And Others vs State Of Odisha And Others ... Opposite ... on 26 April, 2024
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.35563 of 2020
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
-----------
Amaresh Behera and others ... Petitioners
- Versus -
State of Odisha and others ... Opposite Parties For Petitioner ... Mr. Budhadev Routray, Senior Advocate.
M/s. B. Singh, R.P. Dalai, K. Mohanty, & S.K. Samal For Opposite Parties ... Mr. Saswat Das, A.G.A.
(For O.P. Nos. 1, 2 & 4) M/s. B.P. Tripathy, R. Achary, N. Barik, A.K. Dash & S. Hidayatullah (For O.P. No.3-N.H.R.M.) And a batch of similar other Writ Applications bearing W.P.(C) Nos. 18192 of 2019, 24108 of 2019, 25512 of 2019, 29014 of 2019, 29157 of 2019, 1379 of 2020, 1795 of 2020, 2901 of 2020, 6334 of 2020, 13702 of 2020, 28081 of 2020, 28083 of 2020, 28085 of 2020, 33005 of 2020, 33220 of 2020, 33224 of 2020, 33921 of 2020, 33957 of 2020, 34175 of 2020, 34177 of 2020, 34987 of 2020, 35081 of 2020, 36105 of 2020, 36106 of 2020, 36180 of 2020, 37242 of 2020, 37250 of 2020, 4804 of 2021, 4805 of 2021, 4807 of Page 1 of 68 2021, 4809 of 2021, 4813 of 2021, 4816 of 2021, 4820 of 2021, 4822 of 2021, 4826 of 2021, 4830 of 2021, 4920 of 2021, 4927 of 2021, 4928 of 2021, 4932 of 2021, 4934 of 2021, 4935 of 2021, 4937 of 2021 , 4939 of 2021, 4940 of 2021, 4942 of 2021, 4943 of 2021, 4946 of 2021, 4947 of 2021, 4949 of 2021, 4951 of 2021, 4952 of 2021, 6129 of 2021, 6132 of 2021, 6140 of 2021, 6276 of 2021, 8050 of 2021, 8702 of 2021, 9193 of 2021, 9733 of 2021, 9737 of 2021, 10192 of 2021, 10197 of 2021, 10294 of 2021, 10297 of 2021, 10420 of 2021, 10421 of 2021, 10507 of 2021, 10588 of 2021, 11916 of 2021, 11917 of 2021, 11918 of 2021, 12200 of 2021, 12559 of 2021, 13206 of 2021, 13209 of 2021, 13938 of 2021, 14646 of 2021, 24130 of 2021, 24134 of 2021, 25088 of 2021, 26741 of 2021, 27020 of 2021, 27391 of 2021, 28628 of 2021, 29090 of 2021, 29551 of 2021, 31345 of 2021, 31815 of 2021, 31888 of 2021, 31947 of 2021, 32454 of 2021, 32456 of 2021, 32458 of 2021, 32461 of 2021, 32463 of 2021, 32621 of 202l, 33338 of 2021, 33339 of 2021, 33536 of 2021, 34165 of 2021 and 4I703 of 2021.
--------------
PRESENT:
THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA Date of hearing : 08.02.2024 : Date of judgment : 26.04.2024 A.K. Mohapatra, J. The present batch of writ applications have been filed by a group of persons, who are working as Pharmacists under the Opposite Party No.4, challenging the action/inaction of the Opposite Parties in not Page 2 of 68 regularizing/absorbing their services and consequently not inducting them in the cadre of Pharmacist under the provisions of the Odisha Pharmacist Service (Methods of Recruitment and Conditions of Service) Rules, 2019 (in short "2019 Rules"). The Opposite Parties, as it appears, denied regularization of service of the Petitioners as Pharmacist solely on the ground that the Petitioners are working in Mobile Health Unit (MHU), hence, their services are not covered under the aforesaid rules of the year 2019. Although the Petitioners have taken a stand that there is no prohibition under any law or the rules referred to hereinabove to exclude the category of the present Petitioners from the purview of Pharmacist merely because the Petitioners are employed in Mobile Health Units, and the presumption of the Opposite Parties that they are excluded from the purview of the 2019 Rules is highly illegal, arbitrary and discriminatory. Page 3 of 68
2. In the present batch of writ applications, the Petitioners have specifically prayed for quashing of the clarificatory letter dated 20.03.2019 under Annexure-9 issued by the Opposite Party No.1 and letter dated 23.03.2019 issued by the Opposite Party No.3 under Annexure-10 to the writ application. In addition to the above prayer, a further prayer has been made for issuance of a writ of mandamus directing the Opposite Parties to include the names of the Petitioners in the gradation list for the post of Pharmacist and to regularize the services of the Petitioners as Pharmacist and thereby induct the Petitioners in the gradation list meant for the Pharmacist as per the provisions contained in the above noted 2019 Rules and, consequentially, extend all service and financial benefits to the Petitioners as has been done in the case of their counterparts.
Page 4 of 68
3. The factual background leading to the filing of the present batch of writ applications, bereft of all unnecessary details, is that initially Zilla Swasthya Samiti, Mayurbanj issued an advertisement on 11.08.2011 for recruitment to various posts for Mobile Health Unit under N.R. H. M. in Mayurbhanj District including 33 posts of Pharmacist. Pursuant to the aforesaid advertisement, the Petitioners, and similarly situated many other candidates, who were having the requisite qualification as prescribed in the advertisement, applied for the post of Pharmacist. In due course of selection, the Petitioners and similarly situated many other candidates were duly selected and were appointed through a fair and transparent selection procedure. Ever since their initial appointment the Petitioners have been continuing as Pharmacists as of now. While the matter stood thus, on 29.10.2008 in pursuance to the Finance Department Circular dated 31.12.2010, Page 5 of 68 instructions were issued to all the C.D.M.Os., Superintendents of Medical Colleges for filling up the Para Medical posts including the post of Pharmacist on contractual basis. It is relevant to mention here that such contractual posts were created after abolition of regular vacant posts. After such contractual appointment, the Pharmacist Association made a demand before the Government for regularization of the service of such contractual Pharmacists. The Government of Odisha pursuant to such demand and after a careful consideration was pleased to take a decision to the effect that the Pharmacist appointed on contractual basis on completion of 6 years of uninterrupted contractual service will be eligible for appointment as regular Pharmacist. Moreover, clause(D) of the Resolution dated 29.10.2008 specifically provides that the Pharmacists, who are working in Mobile Page 6 of 68 Health Unit will be eligible for regular appointment after completion of 6 years of service.
4. While this was the position, the Government of Odisha issued another resolution through the Opposite Parties No.1 and 2 on 13.05.2013 referring to the earlier resolution dated 29.10.2008 and on supersession of the above noted Circular dated 31.12.2010, the Government of Odisha was pleased to formulate a comprehensive policy for regularization of contractual Pharmacists. Further, it was also provided that such regularization of contractual Pharmacists shall be made on the basis of their seniority subject to completion of 6 years of service. Further, Clause-9 of the aforesaid resolution provides that the past service of such contractual Pharmacists rendered in various projects/schemes including the Mobile Health Unit shall also be counted for computation of the time period of 6 years' at the time of regularization. On 28.06.2014, the Page 7 of 68 Opposite Party No.1 issued a letter to Opposite Party No.2 with regard to absorption of MHU Pharmacists, working in MHUs, against regular vacancies. Accordingly, necessary information was sought for with regard to the detailed particulars of the Pharmacists working in different district MHUs. In pursuance to such letter of the Opposite Party No.1, the Opposite Party No.2 issued letter to all the C.D.M.Os. of the State thereby seeking information with regard to number of Pharmacists working under the MHU who have been absorbed against regular vacancies as per Resolution dated 29.10.2008 and as to how many MHU Pharmacists have been left out for regularization. The Opposite Party No.4 submitted necessary information with details of the persons who are working in MHU, for their absorption against regular vacancies. The names of the present Petitioners appeared in the said list provided by the Opposite Party No.4. The said letter further reveals that the Page 8 of 68 Pharmacists have been appointed by following the O.R.V. Act and Rules and have been selected by following the due selection procedure. The said letter further reveals that two of the Pharmacists working in MHU have already been regularized against the regular vacancies.
5. The Opposite Party No.4 again issued a letter on 10.01.2017 to all the Medial Officers-in-Charge of all the C.H.Cs. of Mayurbhanj district requesting them to furnish information with regard to engagement of Pharmacists in MHU under N.R.H.M and their present position. Pursuant to the said letter, again the names of the present Petitioners were sent in the proforma as mentioned in the aforesaid letter dated 10.01.2017. Most unfortunately, despite furnishing such details pertaining to the Petitioners, the Opposite Parties did not take any action for regularization of the service of the Petitioners as regular Pharmacists. Page 9 of 68
6. The entire basis of the claim of the present Petitioners is that no action for regularization was taken as per the Resolution of the year 2008 and the Resolution of the year 2013. While the matter stood thus, the Opposite Party No.1 vide Gazette Notification dated 08.03.2019 in exercise of the power conferred by proviso to Article 309 of the Constitution of India and in superannuation of all instructions and orders issued in this regard except as things omitted or have been done before supersession, a new rule, namely, the Odisha Pharmacist Service (Methods of Recruitment and Conditions of Service) Rules, 2019 was introduced and the said rule came into force for regulating the method of recruitment and condition of service of persons appointed under the Orissa Pharmacy Service. Rule-4 of the 2019 Rules deals with condition of taking over the existing contractual Pharmacist and all the contractual Pharmacists, who were duly recruited by the Page 10 of 68 concerned society/scheme and have completed of 6 years contractual service, are deemed to be a regular Government employees as one time measure subject to fulfillment of eligibility criteria as prescribed under Rule-5. Rule-5 provides the modalities for induction of Pharmacists into a cadre and that the contractual Pharmacists, who have completed 6 years of service in the society/scheme, shall be deemed to have been inducted to the cadre subject to fulfillment of the condition as laid down in Rule-5.
It is needless to mention here that the Petitioners satisfy all the eligibility criteria as provided under Rule-5 of the 2019 Rules and, as such, they are eligible in all respect for regularization of their service as regular Pharmacist by virtue of the deeming provision contained under the 2019 Rules, and, as such, they were to be inducted in the regular cadre of Odisha Pharmacist Service. Page 11 of 68
7. Be that as it may, the Petitioners got the first shock when they came across the letter dated 20.03.2019 issued by the Opposite Party No.1. Letter dated 20.03.2019 was issued after promulgation of the new rules, 2019 on 08.03.2019. The said letter reveals that the Opposite Party No.1 instructed all authorities for submission of information with regard to Laboratory Technician, Staff Nurse, Pharmacist, Radiographer, Multi Purpose Health Worker (Male) Government Health Worker (Male), however, the very same letter indicates that the Opposite Party No.1 has asked the authorities not to include the information of employees working in Mobile Health Unit (MHU). Pursuant to the letter dated 20.03.2019 of Opposite Party No.1, Opposite Party No.4 issued letter dated 23.03.2019 to the District Programme Manager, NHM, Mayurbhanj thereby informing him that the information relating to the employees working in MHU are not to be Page 12 of 68 included while submitting the detailed particulars of Para Medical Staff pursuant to letter dated 20.03.2019. The letter dated 20.03.2019 and 23.03.2019 were the first instance where the Petitioners were discriminated for the first time in violation of the provisions contained in 2019 Rules. Similarly, the Opposite Party No.1 again issued a letter to all the Collectors/Superintendents of Medical Colleges, C.D.M.Os for preparing the gradation list and for publication of such gradation list under intimation to the Opposite Party No.1 vide letter dated 04.10.2019. Such letter also reveals that the authorities were instructed not to include the names of the Petitioners in such gradation list pursuant to the letters issued by the Opposite Parties No.1 and 4 on 20.03.2019 and 23.03.2019 respectively.
8. The writ petition further reveals that on 30.07.2019, a letter was issued by the Opposite Party No.2 to all CDMOs of the districts wherein at Point No.3, the Opposite Party Page 13 of 68 No.3 sought for reasons as to why the Pharmacists engaged in MHU prior to 2013 could not be regularized as per the Resolution dated 29.10.2008. However, no action was taken on such letter of the Opposite Party No.2. Finally, a High Power Committee meeting was held on 16.11.2020 to consider regularization of contractual service of Para Medical staff engaged in various scheme/society as per the N.R.H.M. Scheme. In the said meeting, it was decided that the contractual employees shall be adjusted against the existing vacancies in the respective categories. A copy of the minutes of the meeting dated 16.11.2020 has also been filed along with the writ petition and marked as Annexure-
13.
9. Per contra, a counter affidavit has been filed on behalf of the Opposite Party No.1 and 2 by none other than the Director of Health Services of Odisha, Bhubaneswar. In the said counter affidavit, it has been stated that since 1995 Page 14 of 68 MHUs were created in both KVK and Non-KVK districts under different schemes as well as State budget in a phase- wise manner. In 2009, it was decided that 95 numbers of MHUs running under Revised Long Term Action Plan of Government of India (RLTAP) in KVK district and 95 numbers of MHUs in Non-KVK districts under ADAPT initiative of Government of India and the State will be further continued under N.R.H.M. Their funding will be met out of the N.R.H.M. fund. Subsequently, it was observed that there have been several significant improvements in the health indicator of the State over the last decade. These improvements have been made due to several interventions, the significance of which is due to placement of trained and competent Pharmacists at Health Care Facilities. It has also been stated that contractual Pharmacists under the society are working at Health Care Facilities such as Drug Warehouses and Urban Health Page 15 of 68 Facilities. Such Pharmacists are experienced and the Government has made a considerable investment in the training of NHM Pharmacists in Drug Logistic Management Programme to enhance their skills and competencies in providing quality services. It was felt by the Government that the emergent services of these Pharmacists are highly essential for a better and improved health service facilities in the State. Further, it was observed that the team and MHU including the Pharmacists working therein do not render any services at Health Care Facilities, rather they only work for health screening in the community with treatment of some minor ailments. The main job of such Pharmacists is only to refer required persons for further check-up and treatment at health facilities.
10. The counter affidavit further reveals that in view of the aforesaid ground reality, the Government of Odisha in Page 16 of 68 Health & Family Welfare Department has taken an in- principle stand to regularize the service of the contractual Pharmacists of the society working in different fixed Health Care Facilities mentioned above in consideration of the fact that the services of such contractual Pharmacists shall be required to be continued in the long term, in the facilities where they are posted unlike the Pharmacists who work in a community screening programme such as in MHU. Moreover, the services of the Pharmacists working in MHU are required only for a definite period till continuance of such programme. Accordingly, sub-rule-1 of Rule-4 of the Rules, 2019 has been amended by the Odisha Pharmacist Service (Methods of Recruitment and Conditions of Service) Amendment Rules, 2020. The said amendment is quoted herein below:-
"On the date of commencement of these Rules, all the contractual Pharmacists, who have been duly recruited by concerned Societies or Schemes for working in Page 17 of 68 different fixed Healthcare Facilities only against the posts approved or sanctioned by the Government in the Programme Implementation plan (PIP) or Action Plan of concerned Society or Scheme and have completed 6(six) years of satisfactory contractual service, shall be deemed to be regular Government employees as one time measure subject to fulfillment of eligibility criteria as prescribed under Rule-5."
11. The Opposite Parties No.1 and 2 have further stated in the counter affidavit that the Petitioners have been engaged in the post of Pharmacist in different MHUs under N.R.H.M. as per norms of the Society on contractual basis with a consolidated remuneration vide order dated 16.12.2011 of the C.D.M.O., Mayurbhanj (Opposite Party No.4). Therefore, by applying the provisions contained in the amended rules of the year 2020, it has been stated that since the Petitioners were not working in any fixed Healthcare Unit, they are not entitled to the benefit of automatic absorption in service against the vacant posts of Page 18 of 68 Pharmacist on completion of 6 years of satisfactory contractual service. In other words, by virtue of the amendment in the year 2020, the Petitioners were taken out of the purview of 2019 Rules, which categorically provides that on completion of 6 years of uninterrupted service, the Petitioners would be automatically absorbed against the regular vacant posts of Pharmacist.
12. In reply to G.A. Department Resolution dated 17.09.2023, it has been stated in the counter affidavit that the same is a policy decision of the Government with regard to regular appointment of two categories of contractual Group-'C' and Group-'D' employees appointed under the State Government on contractual basis and such appointment is against contractual posts which have been created with the concurrence of Finance Department by abolishing the corresponding regular posts. Moreover, to take the benefit of Resolution dated 17.09.2013, such Page 19 of 68 contractual employees must have been selected and recruited by following a regular recruitment process and by following the provisions of the O.R.V. Act and Rules. It is also mentioned in the counter affidavit that the G.A. & P.G. Department Notification dated 12.11.2013 under Rule- 3(4)(a) has further stipulated that the said rule is not applicable to any Temporary Plan Schemes (including those under Centrally Sponsored Plan Scheme, Externally Aided Projects). In such view of the matter, the Opposite Parties have taken a stand in the counter affidavit that Notification dated 12.11.2013, the Resolutions dated 29.10.2008 and 13.05.2013 have lost their force and the same is not applicable to the Petitioners.
13. Heard Mr. Budhadev Routray, learned Senior Counsel appearing for the Petitioners leading the argument on behalf of the Petitioners along with other learned counsels appearing for the Petitioners in the batch of similar other Page 20 of 68 matters and Mr. B.P. Tripathy, learned counsel appearing for the Opposite Party No.3-N.H.R.M. and Mr. Saswat Das, learned Additional Government Advocate appearing for the State-Opposite Parties Nos.1, 2 and 4. Perused the pleadings of the respective parties as well as the materials placed on record for consideration by this Court.
14. Learned counsels appearing for the Petitioners were all sailing in the same boat and, as such, the grounds taken by them are common. To summarize the arguments advanced by the learned counsels appearing for the Petitioners, this Court would refer to the broader arguments advanced by Mr. Budhadev Routray, learned Senior Counsel leading the arguments from the side of the Petitioners in the following terms:-
(i) Vide Resolution dated 29.10.2008 of the Health & Family Welfare Department coupled with the Finance Department Page 21 of 68 Circular dated 31.12.2004, contractual posts were created after abolition of equal number of regular vacant posts by the Government.
(ii) The Resolution dated 29.10.2008 specifically provides that on completion of 6 years of uninterrupted contractual service ignoring technical one day gap, if any, the Pharmacists engaged on contractual basis will be eligible for appointment as regular Pharmacists. For such regular appointment will be made after creation of regular post in lieu of contractual post.
(iii) In the case of Pharmacists, who worked under Mobile Health Units and subsequently were engaged on general stream on contractual basis, these six years will be taken from the date of joining in M.H.U. Page 22 of 68
(iv) The Pharmacists, who were working under Mobile Health Units, will also be eligible for regular appointment after completion of those six years.
(v) The contractual Pharmacists, who were engaged against contractual post, will be appointed after creation of regular posts. But in case of M.H.U. Pharmacists, they will be appointed on regular basis in future vacancies.
(vi) The regularization will be subject to observation of O.R.V. Act and Rules.
(vii) As per the aforesaid Resolution, an advertisement was issued on 11.08.2011 under Annexure-1 for recruitment to various posts under M.H.U. including the posts of Pharmacist. Accordingly, the Petitioners Page 23 of 68 were appointed as Pharmacist on contractual basis pursuant to order under Annexure-2.
(viii) While the Petitioners were continuing, , the Government of Odisha, taking into consideration the Resolution dated 29.10.2008, after a careful consideration was pleased to formulate a comprehensive policy on regularization wherein it was decided that regularization of contractual Pharmacist should be made on the basis of seniority subject to completion of six years of service as Pharmacist and such six years' service may include their service rendered on contractual basis in different projects/schemes.
15. It was emphatically submitted by the counsels appearing for the Petitioners that the Petitioners have Page 24 of 68 completed six years of service as Pharmacists on 16.12.2017 and as per the aforesaid Resolution the services of the Petitioners were to be regularized with effect from that date. It was also contended, by referring to letter dated 19.08.2014 of the C.D.M.O., Mayurbhanj under Annexure-6, that the Pharmacists, including the present Petitioners, were selected and appointed by following the O.R.V. Act and Rules.
16. Learned counsels appearing for the Petitioners further contended that in view of the provisions contained under Rules-4 and 5 of the 2019 Rules, the contractual Pharmacists like the Petitioners, who have been duly recruited by the concerned societies/schemes and have completed six years of satisfactory contractual service shall be deemed to be regular Government employees as an one- time measure as provided in the 2019 Rules. It was also contended that in view of Rules-4 and 5 of the 2019 Rules, Page 25 of 68 the Petitioners are deemed to be regular Government employees w.e.f. 16.12.2017, i.e. the date on which the Petitioners have completed 6 years of service as Pharmacists.
17. Learned counsels appearing for the Petitioners further contended that instead of regularizing the service of the Petitioners under Rules-4 and 5 of the 2019 Rules, the Opposite Parties issued the clarificatory letters dated 20.03.2019 and 23.03.2019. In the said context, it was submitted that the executive instructions in the shape of aforesaid two letters cannot override the statutory provision contained in the Rules, 2019 which have been framed under the proviso to Article 309 of the Constitution of India. Moreover, the amendment of the year which came into force vide Notification dated 27.11.2020 will have prospective effect. Therefore, by the time the amended 2020 Rules came into force, the benefit under Rules-4 and Page 26 of 68 5 had already accrued in favour of the Petitioners. Moreover, it was also contended that despite amendment dated 27.11.2020, the State Government had issued letter dated 30.12.2020 with a direction to hold a meeting on the subject of regularization of MHU staffs in the General Health Care.
18. By referring to the amendment Rules 2020, learned counsels appearing for the Petitioner contended that such amendment is prospective in nature and, as such, the same will be effective from the date of the Notification in the Official Gazette i.e. on 27.11.2020. By the time such amendment came into force, the right flowing from the earlier notification as well as under Rules 4 and 5 of 2019 Rules had already crystalized in favour of the Petitioners by virtue of deeming fiction contained in the aforesaid two rules. Furthermore, by applying the aforesaid deeming provision, the Opposite Parties should have treated the Page 27 of 68 services of the Petitioners were regularized w.e.f. 16.12.2017, on which date they completed 6 years of continuous service on contractual post as Pharmacist.
19. Per contra, Mr. Saswat Das, learned Additional Government Advocate appearing for the State-Opposite Parties No.1, 2 & 4 and Mr. B.P. Tripathy, learned counsel appearing on behalf of the Opposite Party No.3-N.H.R.M., advanced their arguments on the main plank that the Petitioners are not entitled to be regularized in service as they were not working in any fixed Health Care Unit. On careful analysis of their submission, this Court observes that such Opposite Parties were also sailing on the same boat and they were opposing the prayer of the Petitioners on common grounds. Therefore, the counter arguments advanced by such Opposite Parties are summarized herein below:-
Page 28 of 68
(a) The Petitioners were neither governed under the Resolution dated 29.10.2008 nor under the Resolution dated 13.05.2013. They were also not covered under the Resolution dated 17.09.2013 issued by the G.A. & P.G. Department, Government of Odisha and the Notification dated 12.11.2013. It was also contended that the Petitioners are not covered under 2019 Rules as the benefits under the 2019 Rules were confined to the Para Medical staffs working under the fixed Health Care facilities by virtue of amendment made to the aforesaid 2019 Rules in the year 2020 vide Gazette Notification dated 27.11.2020.
(b) The Pharmacists engaged in different MHT/MHU conduct health screening in the Page 29 of 68 community. Such Para Medical Team including the Pharmacist do not render any service at fixed Health Care Facilities. Their basic duty is to refer persons for further check-up and treatment at fixed Health Care Facilities. As such, the Government in Health & Family Welfare Department took an in-principle stand to regularize the service of the contractual Pharmacist of the society working in different fixed health care facilities. It was also contended that the services of the Pharmacists working in M.H.Us are required only for a definite period, i.e. till continuance of such programme. Keeping in view the aforesaid nature of their work, the Rules of the year 2019 was amended in the year 2020, thereby Page 30 of 68 excluding the Petitioners from the purview of 2019 Rules.
(c) The Petitioners have been specifically engaged as Pharmacist in M.H.U. under N.R.H.M. as per the Societies norms on contractual basis on a consolidated remuneration vide order dated 16.12.2011 issued by the Opposite Party No.4- C.D.M.O., Mayurbhanj.
(d) The post of Pharmacist in M.H.U. are not permanent in nature. Therefore, those are not regular vacant posts against which one can claim regularization. Thus, the services of the Petitioners under no circumstances can be regularized by operation of 2019 Rules.
Page 31 of 68
20. In the aforesaid context, learned counsel for the Opposite Parties referred to the judgments in The Government of Tamil Nadu and Anr. Etc. Etc. v. Tamil Nadu Makkal Nala Paniyalargal and Ors. Etc. Etc., reported in 2023 LiveLaw (SC) 294; Vibbhuti Shankar Pandey v. State of Madhya Pradesh and Others, reported in 2023 LiveLaw (SC) 91; The Managing Director, Ajmer Vidhyut Vitran Nigam Ltd., Ajmer & Anr. V. Chiggan Lal & Ors., reported in 2022 LiveLaw (SC) 296; Secretary, State of Karnataka and others v. Umadevi and others, reported in (2006) 4 SCC 1; and State of Odisha and another v. Anup Kumar Senapati, reported in (2019) 19 SCC 626.
21. Learned counsels appearing for the Opposite Parties further argued that the deeming fiction under Rule-4 of the 2019 Rules is to be read in isolation of the provisions contained in Rule-5, 6 & 7. Such regularization is not Page 32 of 68 automatic, but subject to fulfillment of the provisions contemplated under Rules-5, 6 & 7 of the 2019 Rules. Thus, the legal fiction under Rule-4 can be made applicable subject to the fulfillment of the aforesaid provisions and on verification of the eligibility of such persons in terms of Rules-5, 6 and 7. As such, it cannot be said that any vested right or accrued right is conferred on the Petitioners from the date of promulgation of the 2019 Rules. This is more so in view of the amendment of 2019 Rules in the year 2020 vide Notification dated 27.11.2020.
22. It was also contended by the learned counsels appearing for the Opposite Parties that the Petitioners have approached this Court after promulgation of the amended 2020 Rules on 27.11.2020. In the said context, it was argued that the Petitioners have not challenged the validity of the amendment of the year 2020. Therefore, they cannot claim any regularization by resorting to the rules of the year Page 33 of 68 2019. In the said context, learned counsels for the Opposite Parties referred to the judgment of the Hon'ble Supreme Court in State of Jammu & Kashmir and others v. Ajay Dogra, reported in (2011) 14 SCC 243 wherein the Hon'ble Supreme Court has held that in the absence of any challenge to the basic conditions/provisions of the Rules, no relief can be granted to the Petitioners.
In course of their argument, learned counsel appearing for the Opposite Parties also referred to the book (Principles of Statutory Interpretation) by Justice G.P. Singh (14th Edition). They further specifically referred to the following quotation from the book:-
"As was observed by James LJ; when a statue enacts that something deemed to have been done, which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what person, the statutory fiction is to be resorted to. When a legal fiction is created, stated S.R. Das, J for what purpose, one is late to ask at once, is it so created?"
Page 34 of 68
They further contended that, for the sake of argument, even if it is assumed that the Petitioners had approached this Court prior to commencement of amended Rules, 2020 and that the said rule was given effect to during the pendency of the writ petition, even then, it is to be construed that no vested or accrued right has arisen in favour of the Petitioners by virtue of the legal fiction/ deeming clause. As such, the deeming clause under Rule-4 can only be brought into operation subject to fulfillment of conditionality prescribed under Rules-5, 6 & 7, which is yet to be determined by this Court in the present proceeding.
23. Furthermore, referring to the judgment in Anup Kumar Senapati's case (supra), it was submitted that if in a repealed enactment, a right has been conferred by an investigation in respect of such right, it is necessary to determine whether such right should be or should not be Page 35 of 68 given, no such right is saved. No vested right is checked under the repealed rules. The very same principle, it was argued, is also applicable to the case of amendment, as is the case in the present writ petitions.
24. Finally, it was argued that the deeming clause as provided under Rule-4(1) of the 2019 Rules has to be construed to be the regularization of Pharmacists on successful completion of 6 years of satisfactory contractual service against the post as specified under Rule-3 of the 2019 Rules. The said 2019 Rules does not envisage or conceive of posts under M.H.U. Therefore, under no circumstance can the services of the present Petitioners be said to have been regularized by operation of the deeming clause contained in Rule-4 of the 2019 Rules. Moreover, such deeming clause was modified by virtue of an amendment in the year 2020 and that the Petitioners were not engaged in any fixed Health Care Facilities. Page 36 of 68
25. Learned counsels appearing for the Opposite Parties in course of their submissions, referring to the judgment in Tamil Nadu Makkal Nala Paniyalargal's case (supra), submitted before this Court that in the absence of sanctioned posts, the State cannot be compelled to create the posts and absorb the persons who are continuing in service of the State. Similarly, they also referred to the judgment in Vibbhuti Shankar Pandey's case (supra) and submitted before this Court that for regularization of daily wage employee two conditions are required to be satisfied; Firstly, initial appointed must be done by the competent authority and secondly, there must be sanctioned posts against which the daily rated employee must be working. No claim for regularization can be considered if these two conditions are not satisfied. They also referred to Chiggan Lal's case (supra) to impress upon this Court that it is a settled position of law that the date from which Page 37 of 68 regularization is to be granted is a matter to be decided by the employer keeping in view a number of factors like the nature of work, the number of posts lying vacant, financial condition of the employer, the additional financial burden, the suitability of the employee for the job etc. The final decision in the appropriate context will depend upon the facts of each year and no parity can be claimed based on regularization made in respect of the earlier years. A reference was also made to the judgment of the Hon'ble Supreme Court in Uma Devi's case (supra) to submit before this Court that for regularization it is mandatory that the person claiming regularization must have continued against a sanctioned vacant posts for more than 10 years without any intervention of any court or tribunal and that the person concerned must have been recruited against such sanctioned vacant posts through a valid recruitment process.
Page 38 of 68
26. Finally, learned counsel appearing for the Opposite Parties referred to the judgment of the Hon'ble Supreme Court in Ajay Dogra's case (supra). While referring to the aforesaid judgments, learned counsels appearing for the Opposite Parties led emphasis on paragraph-17 of the judgment in Ajay Dogra's case (supra), which is quoted herein below:-
"17. In our considered opinion, the ratio of the aforesaid decisions of this Court is squarely applicable to the facts of the present case. There was no challenge to the constitutional validity of Rule 176 of the Police Rules so far as it relates to prescribing physical conditions regarding the height and the chest. The stipulations in the advertisement regarding standard of physical conditions was also not challenged in the writ petition. The High Court was not justified in going into the validity of the aforesaid criterion in absence of any such challenge. The High Court also has not specifically declared the Rule prescribing minimum height standard and chest standard ultra vires and, therefore, so long as that Rule exists in the statute book, no such direction as issued by the High Court could be issued. Consequently, the directions issued by the High Court in the present case are required to be set aside."
Page 39 of 68
27. Further, referring to the judgment of the Hon'ble Supreme Court in Anup Kumar Senapati's case (supra), it was contended that what is unaffected by repeal of a statute is a right acquired or accrued and not a mere hope or expectation of or liberty to apply for acquiring a right. There is a distinction between application for enforcing a right acquired/accrued and making an application for acquisition of a right, it is the former that is saved, but the latter is not. It was also contended that under some repealed enactment maybe a right has been given, such right is then unaffected. But there is an inherent distinction between an investigation with respect to a right and an investigation to decide whether some right should or should not be given, the former is preserved on a repeal but the latter is not. A right to take advantage of the provisions, without doing any act towards availing that right, cannot be deemed as an accrued right. Therefore, it cannot be said that if steps are Page 40 of 68 taken under a statute for acquisition of a right, the right accrues even if the steps so taken do not reach the stage where the right is given. After repeal of advantage available under the Repealed Act, to apply and obtain relief is not a right which is saved when the application was necessary and it was discretionary to grant the relief and investigation is required into whether the relief should be granted or not. The repeal would not save the right to obtain such relief.
28. Having heard the learned counsels appearing on behalf of the Petitioners as well as the Opposite Parties and on a careful scrutiny of the pleadings of the respective parties as well as the materials on record, this Court is of the considered view that to determine the issue involved in the present writ petitions, this Court is required to examine as to whether the claim of the Petitioner is backed by any statutory right conferred upon them. In the aforesaid attempt, this Court is also required to examine as to Page 41 of 68 whether a vested/accrued right was conferred upon the Petitioners in view of Rule-4 of 2019 Rules and whether such right has been taken away subsequently with prospective effect before giving such benefit of the deeming clause under Rule-4 to the Petitioners by completing the process as provided under the aforesaid rules?
29. To reply to the aforesaid questions, this Court, at the outset, is required to examine the basis of the claim of the present Petitioners. The Petitioners will be entitled to the relief sought for in the present writ petitions only in the event this Court comes to a conclusion that their claims were backed by some authority and that such authority was withdrawn without even considering the case of the Petitioners pursuant to such authorities/provisions of the rules.
Page 42 of 68
30. It would be apt to first look into the Resolution dated 29.10.2008 under Annexure-3 to the writ petition. Learned counsel appearing for the Petitioners heavily relied upon the aforesaid Resolution and further contended that the Advertisement dated 11.08.2011 under Annexure-1 was issued pursuant to the said Resolution under Annexure-3. The Resolution under Annexure-3 provides that in pursuance of Finance Department Circular dated 31.12.2004, the C.D.M.O., Mayurbhanj was required to fill up the Para Medical posts including the post of Pharmacists on contractual basis with a consolidated remuneration. It further clearly provides that such contractual posts were created after abolition of equal number of regular vacant posts. Resolution under Annexure-3 provides that on completion of six (6) years of uninterrupted contractual service ignoring technical one day gap, if any, the Pharmacists engaged in contractual basis will be eligible for Page 43 of 68 appointed as regular Pharmacists. However, such regular appointment shall be made after creation of regular post in lieu of contractual post. The Resolution further provides that the Pharmacists who are working under MHUs will also be eligible for regular appointment after completion of six years of contractual service.
31. While the matter stood thus, the C.D.M.O., Mayurbhanj published an advertisement on 11.08.2011 under Annexure-1 to fill up 33 number of posts of Pharmacist with a consolidated pay under Zilla Swasthya Samiti, Mayurbhanj. Pursuant to such advertisement, the Petitioners participated in the recruitment process and eventually they were selected and appointed as Pharmacist and engaged in M.H.Us. under N.R.H.M. in Mayurbhanj District. The Petitioners were given appointment pursuant to letter dated 16.12.2011 under Annexure-2. Page 44 of 68
32. While the matter stood thus, again another Resolution dated 13.05.2013 was issued by the Health & Family Welfare Department, Government of Odisha on the subject of regularization of contractual Pharmacists against regular vacant posts. The Resolution dated 13.05.2013 under Annexure-4 provides that regularization shall be made in respect of those Pharmacists only who have been recruited by following due and transparent procedure of recruitment and by following the reservation policy. A certificate to that effect shall be furnished by the appointing authority at the time of regularization. Under Clause-9 of the Resolution dated 13.05.2013 under Annexure-4, it has been specifically provided that the past services of contractual Pharmacists working under various project/schemes like M.H.U. etc. shall also be counted for computation of six years at the time of regularization after their absorption against the post of contractual Pharmacist under General Page 45 of 68 Health Care subject to proper verification of documents by appointing authorities. While this was the position, Health & Family Welfare Department, Government of Odisha, made an inquiry to the Director of Health Service, Odisha, Bhubaneswar with regard to absorption of M.H.U. Pharmacists against regular vacancy vide letter dated 28.06.2014. Acting upon such letter, the Director sought for information from all C.D.M.Os. vide his Circular dated 07.08.2014. The C.D.M.O., Mayurbhanj vide his letter dated 19.08.2014 addressed to the Director of Health Services, Odisha, Bhubaneswar provided the information with regard to the Pharmacists working in M.H.Us in the district. In the said letter, the C.D.M.O., Mayurbhanj has categorically stated that the above Pharmacists are appointed by following O.R.V. Act and Rules and that due recruitment procedure has been followed while selecting such Pharmacists for appointment in the M.H.Us. of Page 46 of 68 Mayurbhanj district. Such letter further reveals that two numbers of Pharmacists have already been absorbed against regular vacancy. However, it was mentioned that the list of Pharmacists attached to Annexue-6 have not completed 6 years of contractual service.
33. While the matter stood thus, the Government of Odisha framed a set of rules in exercise of the power conferred by the proviso to Article-309 of the Constitution of India in supersession of all orders and instructions issued earlier. The said set of rules notified in the Official Gazette on 13.03.2019 and, as such, the same has come into effect form 13.03.2019. Since the dispute in the present writ petition revolves around interpretation of Rules-4, 5, 6 & 7, such rules are quoted herein below for reference:-
"4. Conditions of taking over of existing contractual Pharmacists:- (A) (1) On the date of commencement of these rules, all the contractual Pharmacists who have been duly recruited by concerned societies / Schemes and Page 47 of 68 have completed 6(six) years of satisfactory contractual service shall be deemed to be regular government employees as one ttime measure subject to fulfilment of eligibility criteria as prescribed under rue-5:
Provided that all the contractual Pharmacists who are yet to complete six years of contractual service and having eligibility criteria as prescribed under rule-5 shall deemed to be contractual government employees as one time measure and shall be regularized as and when they complete six years of satisfactory contractual service, including the service that has already been rendered in concerned scheme/society:
Provided further that those contractual Pharmacists, who do not meet the eligibility criteria, as mentioned under rule-5 & shall continue as such under the OSH&FW Society tit closure of the project, retirement or disengagement, whichever is earlier. (2) On their regularisation, such posts of contractual Pharmacists of the OSH&FW Society in sub-clause (1) shall be deemed to have been abolished from the date of such induction of contractual Pharmacists into the Cadre. As these posts shall cease to exist, no further recruitment to fill up these posts shall be made by the OSH & FW Society other than by the Commission.
5. Modalities for Induction of Pharmacists into the Cadre:- All the Contractual Page 48 of 68 Pharmacists who have completed 6 years of satisfactory contractual service under the Society/ Scheme, shall be deemed to have been inducted into the Cadre, subject to following conditions;
(i)Such Pharmacists who have the minimum educational qualification & other eligibility criteria as per rule-10 at the time of engagement under the Society/Scheme;
(ii) who have been selected though an open & transparent recruitment process;
(iii) While inducting, the prevalent reservation principles as in rule-7 shall be followed.
6. Methods of recruitment:- Subject to other provisions made in these rules, the methods of recruitment to the posts as indicated in column 2 of the Appendix shall be made in the following manner, namely:-
(a) Recruitment to the post of Pharmacist shall be made by direct recruitment through competitive examination to be conducted by "the Commission" in the manner provided under rule 8.
(b) The post of Senior Pharmacist shall be filled up by way of promotion from among the persons holding the post of Pharmacist.
(c) The post of Chief Pharmacist shall be filled up by way of promotion from Page 49 of 68 among the persons holding the post of Senior Pharmacist.
(d) The post of Assistant Director shall be filled up by way of promotion from among the persons holding the post of Chief Pharmacist.
7. Reservations:- Notwithstanding anything contained in these rules the reservation of vacancies or posts as the case may be, shall be made for candidates-
(a) Belonging to Scheduled Castes and Scheduled Tribes shall be made in accordance with the provisions for the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act,1975 (Odisha Act of 1975) and the rules made thereunder;
(b) Belonging to SEBC, women, sportsmen, Ex-Servicemen and persons with disabilities shall be made in accordance with the provisions made under such Act, rules, orders, resolutions or instructions issued in this behalf by the Government from time to time."
34. On a careful reading of Rule-4 of 2019 Rules, this Court observes that the same provides that on the date of commencement of said rule all the contractual Pharmacists, who have been duly recruited by concerned society/scheme Page 50 of 68 and have completed 6 years of satisfactory contractual service, shall be deemed to be regular Government employees as one time measure subject to fulfillment of eligibility criteria as prescribed under Rule-5. The said rule also provides that all the contractual Pharmacists who are yet to complete six years of contractual service and are having eligibility criteria as prescribed under rule-5 shall deemed to be contractual government employees as an one- time measure and shall be regularized as and when they complete six years of satisfactory contractual service. It further provides that those contractual Pharmacists, who do not meet the eligibility criteria, as prescribed under rule-5 shall continue as such under the OSH&FW Society till closure of the project, retirement or disengagement, whichever is earlier.
35. In view of the provisions contained in Rule-4, which is in the nature of a deeming provision, the same is subject Page 51 of 68 to fulfillment of the condition prescribed under rule-5. Rule-5 provides that all the contractual Pharmacists who have completed 6 years satisfactory contractual service under the Society/Scheme shall be deemed to have been inducted into the Cadre, subject to the conditions (i) such Pharmacists much have the minimum educational qualification and other eligibility criteria as per rule-10 at the time of engagement; (ii) they have been selected through an open and transparent recruitment process; and
(iii) while selecting such Pharmacists, the prevalent reservation principles as provided in rule-7 has been followed. While Rule-6 provides for method for recruitment, this Court is of the considered view that the same may not be strictly applicable to the case of the Petitioners as they are claiming regularization/absorption against regular vacancies in the post of Pharmacist. Rule-7, on the other hand, provides that notwithstanding Page 52 of 68 anything contained in these rules, the reservation of vacancies in posts shall be made for the candidates by following the O.R.V. Act and Rules for the reserved category candidates and for SEBC, women, sportsmen, Ex- Servicemen and persons with disabilities category, as the case may be. The minimum educational qualification under Rule-10 for the post of Pharmacist is prescribed in the schedule at column No.4. Column No.4 of the schedule provides that the candidates must have passed +2 Science Examination conducted by the Council of Higher Secondary Education, Odisha/equivalent and Diploma in Pharmacy from Government Medical College & Hospitals of the State/any other recognized private institutions duly approved by A.I.C.T.E. and examination conducted by the Odisha Pharmacy Board. So far the present Petitioners are concerned, it is not disputed by the parties that they did not have the minimum educational qualification as prescribed Page 53 of 68 under Rule-10 at the time of their selection and initial appointment as Pharmacist on contractual basis.
36. On a cogent reading of the rules/provisions contained in the 2019 Rules, this Court found that all the contractual Pharmacists, who have been duly recruited by the concerned societies/schemes, possess the minimum educational qualification, have been selected through an open and transparent recruitment process and, while conducting the recruitment test the reservation principles have been followed in respect of such recruitment, are eligible to be regularized in service by the operation of the deeming provision contained in Rule-4(1) of 2019 Rules as a one time measure. Applying the aforesaid conclusion drawn by this Court on interpretation of the rules, this Court observes that it is not disputed that the Petitioners do not have the minimum educational qualification as provided in Rule-10 of the 2019 Rules. Moreover, the Page 54 of 68 Petitioners were selected by following a due selection procedure pursuant to Advertisement under Annexure-1 to the writ petition. With regard to observance of the principle of reservation while carrying out the recruitment process, which is one of the requirement under Rule-5, this Court observes that the C.D.M.O., Mayurbhanj in its letter dated 19th August, 2014 under Annexure-6, being the appointing authority, has categorically stated as follows:-
"The above pharmacists are appointed by following ORV Act and Rule, due recruitment procedure by selection committee against the MHU of Mayurbhanj District. Two numbers of pharmacists have already absorbed against regular vacancy. The aforesaid pharmacists have not completed 6 years of the contractual service."
37. In view of the letter dated 19.08.2014 under Annexure-6 issued by none other than the appointing authority, i.e. the C.D.M.O., Mayurbhanj, this Court has no hesitation in coming to a conclusion that a fair and Page 55 of 68 transparent procedure was followed by the selection committee and that such selection committee has also followed the ORV Act and Rules by giving due weightage to different categories of candidates. Therefore, this Court is unable to find any hurdle under Rule-4 of the 2019 Rules which would come in the way of the present Petitioners for their regular absorption against regular vacant posts of Pharmacist. The letter under Annexure-6 further reveals that since the Petitioners have not completed 6 years of service on 19th August, 2014, their cases were not considered for absorption pursuant to the Resolution dated 29.10.2008 and Resolution dated 13.05.2013 under Annexures-3 and 4 respectively.
38. Indisputably the Petitioners, who were appointed pursuant to the letter dated 16.12.2011 under Annexure-2 to the writ petition, have completed 6 years of continuous service on 16.12.2017. Since the letter under Annexure-6 Page 56 of 68 was written on 19.08.2014, the C.D.M.O., Mayurbhanj has rightly observed that the Petitioners had not completed 6 years of continuous service for consideration of their case although it was categorically stated in the said letter that they were selected by following a valid selection procedure and by applying the principle of reservation as envisaged in O.R.V. Act and Rules.
39. It is pertinent to note that the 2019 Rules came into force from the date of Gazette Notification on 13.03.2019. It is clear that prior to the aforesaid date when the 2019 rule came into the force, the Resolutions under Annexures-3 and 4 were in force. A careful scrutiny of the letter dated 19th August, 2014 under Annexure-6 reveals that names of 37 candidates were included in the said list. Further, a noting has been attached to the said letter that two Pharmacists have already been absorbed against regular vacancy. So far as the other Pharmacists whose name appeared in the said Page 57 of 68 list are concerned, since they had not completed 6 years of contractual service, their cases were not considered for regular absorption. Taking into consideration the resolution under Annexures-3 and 4 as well as letter under Annexure- 3, it appears that the cases of the present Petitioners should have been considered on completion of 6 years of service, i.e. w.e.f. the date of completion of 6 years of continuous service from their respective date of joining. The date of joining as has been provided in the letter under Annexure-6 reveals that the Petitioners have joined immediately after the date of their initial appointment. Therefore, by the time the new rule came into force w.e.f. 13.03.2019, the cases of the Petitioner should have been considered under the Resolutions at Annexures-3 and 4 and keeping in view the fact that two of such Pharmacists engaged in MHU have been regularly appointed.
Page 58 of 68
40. So far the rule of the year 2019 is concerned, this Court on a careful analysis of the aforesaid rule, is of the considered view that the Petitioners fulfill all the eligibility criteria as is required under the 2019 Rules. Therefore, by applying the deeming provision contained in Rule-4(1) of the said Rules, the services of the Petitioners ought to have been treated as regularized w.e.f. the date on which the rule came into force, i.e. on 13.03.2019. The preamble of the Rules, 2019 further carves out an exception, i.e. with respect to things done or omitted to be done before such supersession, the Governor of Odisha hereby makes the following rules for regulating the method for recruitment and condition of service of persons appointed to the Odisha Pharmacist Service.
41. With regard to the judgments relied upon on behalf of the State-Opposite Parties as well as N.R.H.M., this Court on a careful reading of such judgments and on analysis of the Page 59 of 68 issue involved in such judgments, is of the considered view that such judgments are not applicable to the facts of the present case. The reported judgments relied upon by the Opposite Parties are cases which were not governed any rules or executive instructions. So far the case of the Petitioners are concerned, the same is clearly governed by two Resolutions of the Government under Annexure-3 and 4 of the writ petition and the 2019 Rules which has been formulated in exercise of the power conferred under Article-309 of the Constitution of India. Accordingly, the judgments cited by the counsels for the Opposite Parties are hereby distinguished.
42. At this juncture, this Court would like to refer to the fact that similarly placed Pharmacists working under the M.H.U. had earlier approached the Odisha Administrative Tribunal, Bhubaneswar by filing O.A. No.744 of 2017 before 2019 Rules came into force. The learned Tribunal Page 60 of 68 taking into consideration the judgment of the Division Bench of this Court dated 03.07.2017 passed in W.P.(C) No.2538, 2515 and 2537 of 2017 has categorically held that the Resolution dated 12.11.2013 of the G.A. & P.G. Department read with Resolution dated 29.10.2008 of the Finance Department is applicable to the contractual Pharmacist working under M.H.U. and, accordingly, Odisha Administrative Tribunal allowed the application with a direction to the Opposite Parties to bring over such applicants as contractual Pharmacists under the General Health Stream as they have completed 6 years of service in the M.H.U. The order passed in the aforesaid O.A. No.744 of 2017 has been confirmed by a Division Bench of this Court in W.P.(C) No.3957 of 2019 vide order dated 21.11.2019.
43. After the judgment of the Tribunal, which was confirmed by this Court, the order passed by the Tribunal Page 61 of 68 was not being implemented. The Odisha Administrative Tribunal was abolished vide order dated 05.08.2019 w.e.f. 02.08.2019. For implementation of the order passed by the Tribunal, the applicants approached this Court by filing W.P.(C) No.1353 of 2020 with a prayer to implement order dated 17.05.2018 passed in O.A. No.744 of 2017. This Court was pleased to allow the prayer and, accordingly, directed the Opposite Parties to implement the order of the Tribunal passed in O.A. No.744 of 2017 within a period of six weeks. The State-Opposite Parties being aggrieved by such order approached the Hon'ble Supreme Court by filing SLP (C) No(s). 13077 of 2020. The Hon'ble Supreme Court vide order dated 12.01.2021 while taking into consideration the 2019 Rules, particularly Rule-4(1) which introduced the deeming fiction for regularization of service of the Pharmacists who have completed six years of Page 62 of 68 service, dismissed the SLP. Thus, the order passed by the Tribunal in O.A. No.744 of 2017 has attained finality.
44. In the aforesaid context, learned Senior Counsel appearing on behalf of the Petitioners argued that on dismissal of the aforesaid SLP, the doctrine of merger applies. Accordingly, the order of the Tribunal merges with the order passed by the Hon'ble Supreme Court on merits. It was further contended that while dismissing the SLP, the Hon'ble Supreme Court has also referred to the 2019 Rules and that the incumbent having completed six years of satisfactory service shall be deemed to be regular.
45. The next question that falls for consideration is the amendment rules of the year 2020. On perusal of the present writ petition, it appears that the writ petition was initially filed on 15.12.2020. While the writ petition was pending for adjudication before this Court, the State of Odisha amended the 2019 Rules by virtue of amendment of Page 63 of 68 the year 2020. The aforesaid amendment Notification dated 27.11.2020 was notified in the Gazette on 28.11.2020. The Rule-1(2) of the amendment Rule, 2020 provides that the said rule shall come into force from the date of their publication in the Odisha Gazette. Since the amendment 2020 Rule was published in the gazette on 28th November, 2020, this Court has no hesitation to come to a conclusion that the amended rule shall come into force w.e.f. 28.11.2020. Moreover, on a careful scrutiny of the amendment to the Rule-4(1) of the 2019 Rules reveals that the amended rule is confined to the regularization of the service of the Pharmacists who have been appointed in different fixed Health Care Facilities and have competed six years of satisfactory service. Therefore, the learned Additional Government Advocate as well as learned counsel appearing for the N.H.RM. argued that the amendment of the year 2020 will be applicable to the Page 64 of 68 Petitioners and that since the Petitioners were not appointed in any fixed Health Care Facilities, they would not be entitled to the regularization by following the deeming clause under Rule-4(1) of the Rules, 2019. The main thrust of argument of the learned counsel for the Opposite Parties was that since the Petitioners have not been appointed in any fixed Health Care Facilities, they are not entitled to the benefit of regularization under Rule-4(1) of the 2019 Rules with the aid of the deeming clause envisaged therein.
46. On a careful analysis of the 2019 Rules and the amendment thereto vide Amendment Rules, 2020, this Court has no hesitation in coming to a conclusion that the Amending Rules which provides that the benefits under the Rule-4(1) of the 2019 Rules shall be confined to the Pharmacists appointed in fixed Health Care Facilities would come into force w.e.f. 28.11.2020, i.e. from the date the publication of such amending rule in the official Page 65 of 68 gazette. Rule-1(2) of the 2020 Rules specifically provides that the same shall come into force with effect from their publication in Odisha Gazette. Therefore, this Court has no hesitation in coming to a conclusion that the amending rule confining the benefit under Rule-4(1) of 2019 Rules to the Pharmacists working in fixed Health Care Facilities shall come into force w.e.f. 28.11.2020.
47. As has already been observed, this writ petition was filed prior to the amending rule of the year 2020 under Annexure-B/2 to the counter affidavit came into force i.e. on 28.11.2020, therefore, this Court has to examine the case of the Petitioners by applying the provisions contained under the Rules of the year 2019. While saying so, this Court is also of the view that the cases of the Petitioners were also eligible to be considered under the Resolutions at Annexures-3 and 4 to the writ petition on completion of six years of satisfactory service. In either case, the Petitioners Page 66 of 68 are eligible to be regularized on completion of six years of satisfactory service. Therefore, the question formulated by this Court for adjudication of the present writ petition is required to be answered in the affirmative and in favour of the present Petitioners. Thus, this Court has no hesitation in coming to a conclusion that a valuable right had accrued in favour of the Petitioners for their absorption against regular vacant posts of Pharmacist initially under the Resolution under Annexure-3 and 4 to the writ petition, and thereafter on introduction of the 2019 Rules, particularly in view of Rule-4(1) of the aforesaid rules.
48. In the ultimate analysis, this Court holds that the Petitioners are eligible for the benefit of regularization of their service against regular vacant posts of Pharmacist in terms of Rule-4(1) of 2019 Rules and that the Petitioners have the eligibility for such regularization and that the selection procedure followed was in terms of Page 67 of 68 Rule-5, as is evident from the letter of the C.D.M.O., Mayurbhanj under Annexure-6 to the writ petition. Accordingly, the Opposite Parties are directed to regularize the service of the Petitioners as an one-time measure, as provided under Rule-4(1) of the 2019 Rules, within a period of three months from the date of communication of a copy of this judgment.
49. With the aforesaid observation and direction, the writ petition is allowed. However, there shall be no order as to costs.
50. All the connected writ petitions are also allowed in terms of the present judgment.
(A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Orissa High Court, Cuttack Location: OHC, CUTTACK. The 26th April, 2024/Debasis Aech, Secretary. Date: 26-Apr-2024 19:34:04 Page 68 of 68