Orissa High Court
Akhila Kumar Naik And Others vs State Of Odisha & Others ..... Opp. ... on 11 December, 2021
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 33301 of 2020,
W.P.(C) No. 32900 of 2020,
W.P.(C) No. 33346 of 2020
And
W.P.(C) No. 33366 of 2020,
In the matter of applications under Articles 226 and
227 of the Constitution of India.
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AFR W.P.(C) No. 33301 of 2020 Akhila Kumar Naik and others ..... Petitioners
-Versus-
State of Odisha & others ..... Opp. Parties For Petitioners : M/s. Krishna Chandra Sahu, B.S. Panigrahi, and D.K.Mahalik, Advocates.
For Opp. Parties : Mr. H.M. Dhal,
Addl. Government Advocate
W.P.(C) No. 32900 of 2020
Subrat Kumar Mohanty and others
..... Petitioners
-Versus-
State of Odisha and another ..... Opp. Parties
For Petitioners : M/s. Shasi Bhusan Jena,
// 2 //
S. Behera, C.K. Sahoo, and
B.S. Patnaik, Advocates
For Opp. Parties : Mr. H.M. Dhal,
Addl. Government Advocate
W.P.(C) No. 33346 of 2020
Ranjan Kumar Pattanaik
..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For Petitioner : M/s. Subrat Mishra,
R.K. Pradhan and
A.K. Nanda, Advocates
For Opp. Parties : Mr. H.M. Dhal,
Addl. Government Advocate
W.P.(C) No. 33366 of 2020
Jalendra Nath Rana
..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For Petitioners : M/s. Purusottam Chuli and
P. Nath, Advocates
For Opp. Parties : Mr. H.M. Dhal,
Addl. Government Advocate
// 3 //
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of Hearing: 30.11.2021: Date of Judgment: 11.12.2021 DR. B.R. SARANGI, J. All the above four writ petitions having common cause of action and the petitioners therein having sought similar relief, they are heard together and disposed of by this common judgment, which will govern in all the cases.
2. The petitioners in all the writ petitions are working as contractual Laboratory Technicians under different schemes/societies, being duly recruited through regular process of selection, pursuant to advertisements. By means of these writ petitions, they seek to quash the observation made in order dated 17.11.2020, so far as it relates to rejection of their cases for regularization on the plea that they have acquired qualification from private institutions, which have not been affiliated to All India Council of Technical Education (AICTE), whereby, their juniors have been regularized, by declaring such action taken // 4 // by the authorities as arbitrary, unreasonable and contrary to the provisions of law. They further seek for direction to the opposite parties to regularize their services like other contractual paramedics as well as Laboratory Technicians, keeping in view the provisions contained in the statutory recruitment rule by invoking the relaxation clause from the date of notification of the rule, as has been done in case of similarly situated paramedic employees, and to extend all consequential service and financial benefits within a stipulated period.
3. For the sake of convenience, the factual matrix, as has been delineated in W.P.(C) No. 33301 of 2020, is referred to:-
3.1 The Director of Health Services, Odisha, vide letter dated 14.08.2005 under Annexure-9, intimated the Deputy Director General (TB), CTD, New Delhi by proposing the revised criteria for selection of Senior Tuberculosis Laboratory Supervisors (STLS) // 5 // and Lab Technicians. In the said letter, it has been indicated that for the post of Laboratory Technicians, the candidates should have passed 10+2 Science with Diploma or Certificate course in Medical Laboratory Technology or its equivalent. In clause (C) it has been indicated that for the posts of STLS and Laboratory Technicians, the candidates who have completed DMLT course after Matriculation or equivalent may also be considered. Such a proposal for revised criteria has been made due to non availability of adequate number of institutions approved by the AICTE, as the State is having only three government medical colleges, which are AICTE approved institutions and required posts of STLS and Laboratory Technicians could not be filled up due to non availability of eligible candidates. In view of such proposal of the Director, Health Services, the Director General of Health Services, CTD, Government of India, New Delhi wrote a letter to the State TB Officer, Odisha on 19.08.2005 vide Annexure-10 approving the proposal of the // 6 // Director in respect of the State of Odisha. As per the criteria of selection prescribed by the Director, Health Services, vide letter dated 14.08.2005 in Annexure-9, which was duly approved by the Director General of Health Services, CTD, Government of India, New Delhi, vide order dated 19.08.2005 under Annexure-
10, the Director, Health Services, Odisha, vide letter dated 07.03.2006 under Annexure-11, wrote to Chief District Medical Officers of all the districts for issuing advertisement for selection and appointment of contractual Laboratory Technicians and STLS under RNTCP. In the said letter, the criteria as well as the qualification for the post of Laboratory Technicians was prescribed, according to which the candidates, having 10+2 in Science with Diploma or Certificate course in Medical Laboratory Technology or its equivalent, would be eligible to apply, and that even the candidates who completed DMLT course after matriculation or equivalent from three Medical Colleges of Odisha would also be considered for // 7 // appointment. Consequently, the Mission Director, National Rural Health Mission (NRHM), Odisha issued an advertisement in December, 2006 under Annexure- 1 for filling up of the post of Laboratory Technicians indicating therein that the candidates must have passed the Laboratory Technician course from any of 3 Medical Colleges of the State or from a recognized private institution to be eligible to apply for appointment with a consolidated pay of Rs.5040/-. It was also mentioned that the appointment would be made purely on merit basis; and the candidates belonging to the same district would be given preference; and interested candidates fulfilling the eligibility were required to apply in the prescribed format in A/4 size paper; and the completely filled in application forms, along with other documents, should reach the office of the CDMO of the concerned district on or before 05.01.2007. In the note of the advertisement, the documents which were to be produced by the candidates were indicated.
// 8 // 3.2 The petitioners, having requisite qualification of Diploma in Medical Laboratory Technology from the State Government recognized colleges/institutions applied for the post of Laboratory Technicians and by following due process of selection the petitioners were selected and issued with appointment orders and accordingly they joined the service on 11.09.2007, 12.09.2007 and 01.12.2012, respectively.
3.3. The Government of Odisha in Health and Family Welfare Department issued a resolution on 13.05.2013 by formulating a policy, for regularization of services of contractual Laboratory Technicians and STLS working under various projects/ schemes for their absorption against the post of Laboratory Technicians under General Health Care on completion of six years of contractual service and the service rendered under different schemes shall be counted for the purpose of six years for such regular absorption.
// 9 // 3.4 The contractual Laboratory Technicians working under the CDMO, Nuapada approached the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 4179 (C) of 2014 and batch seeking regularization of their service, since their services had not been regularized by the High Power Committee of the Government on the plea that they had not possessed the requisite educational qualification from the government institute and had prosecuted such course in private institutions which had no AICTE approval. The Tribunal allowed all the cases, vide order dated 20.07.2016, by directing the Government to regularize the services of the petitioners therein. The CDMO, Nuapada, vide order dated 10.08.2016 under Annexure-13, implemented the order of the Tribunal by regularizing the services of these petitioners, who had completed six years of contractual service, by extending all financial benefits. Similarly, without interference of the Court, the services of Laboratory Technicians working under // 10 // Chief District Medical Officer, Sambalpur were also regularized on 04.12.2019. Thereby, the petitioners, having stood in the same footing, their services should have been regularized, as has been done in case of Laboratory Technicians, who were having the same qualification as that of the petitioners and whose institutions were also not approval by the AICTE. 3.5 While the matter stood thus, in exercise of power conferred under proviso to Article 309 of the Constitution of India and in supersession of all orders and instructions issued in this regard, the Government of Odisha framed Odisha Laboratory Technicians Service (Method of Recruitment and Conditions of Service) Rules, 2019, (for short "2019 Rules") which came into force with effect from 08.03.2019, the date on which it was published in the Odisha Gazette. As per Rule-4 of the said 2019 Rules, which prescribes the conditions of taking over the existing Laboratory Technicians, on the date of commencement of these rules, all the contractual // 11 // Laboratory Technicians, who have been duly recruited by concerned societies/schemes and have completed 6 (six) years of satisfactory contractual service, shall be deemed to be regular Government employee as one time measure subject to the eligibility criteria prescribed under Rule-5. Rule-5 prescribes the modalities for induction of Laboratory Technicians into the Cadre. Rule-9 of the said Rules prescribes the eligibility criteria for direct recruitment. Nothing has been prescribed about the qualification in respect of those contractual Laboratory Technicians/ STLS, who had been continuing in different schemes/societies and were to be inducted/ regularized as per Rule-4. 3.6 In accordance with 2019 Rules, the Government issued letters on 20.03.2019 and 30.07.2019 to different Chief District Medical Officers of the State for submission of information of the paramedics, including the Laboratory Technicians, who were continuing under different schemes/ societies of Health and Family Welfare Departments // 12 // for their regular induction as per 2019 Rules. One Shri Narayan Sahu, who was working as Laboratory Technician under CDM & PHO, Angul, had approached the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 3731 (C) of 2013, which was allowed in his favour vide order dated 09.01.2017. The State challenged the said order before this Court by filing W.P.(C) No. 14933 of 2017, which was dismissed on 18.01.2019 and against such dismissal order passed by this Court, the State approached the apex Court by filing Special Leave Petition (Civil) Diary No 10687/2019, which was also dismissed vide order dated 07.05.2019. After dismissal of the SLP by the apex Court, the CDM&PHO, Angul regularized the services of Shri Narayan Sahu, Laboratory Technician on completion of six years of service by extending all the benefits. Similarly, the CDM & PHO, Koraput vide memo dated 16.06.2020 under Anenxure-14 regularized one Jr. Laboratory Technician, namely, Prabhat Kiran Nayak, // 13 // on completion of six years of contractual service, who had also passed from the private institution without having AICTE approval. The CDMO, Sundargarh had also recommended a list of Laboratory Technicians, who were working on contractual basis in Sundargarh district, to the Government for their regularization. Basing upon the proposal submitted by the CDMO, Sundargarh, the High Power Committee of the Government, vide order dated 17.11.2020 recommended the names of 11 candidates, who had only passed from the government medical colleges, and in the said recommended list the candidates who were even appointed in February, 2019 were also considered by declaring them as contractual government employee indicating their regularization in February, 2025 on completion of six years of service, whereas the name of the petitioners and others have been rejected on the ground that they have not passed from the AICTE approved institution, even though there are several vacancies available in respect of // 14 // Sundargarh district. In the HPC proceeding, instead of correctly mentioning the names of the petitioners so also the recommended candidates, different names have been wrongly mentioned, although serial numbers as per the gradation list/recommended list submitted by the CDMO, Sundargarh in respect of the petitioners as well as recommended candidates as per the document annexed under Annexure-8 to the writ petition, are correct. The CDMO, Sundargarh, vide letter dated 23.12.2020 Annexure-R/2 to the rejoinder, clarified such typographical error by correctly mentioning the names of the petitioners as well as the recommended persons by the HPC vide letter dated 17.11.2020.
3.7 The Government of Odisha in Housing and Family Welfare Department, vide order No. 9490 dated 02.04.2020, created 1000 posts in the Laboratory Technician cadre on regular basis in different Health institutions of General Health Care for different districts including seven Government Medical Colleges // 15 // in the State of Odisha. Instead of regularizing/ inducting the petitioners in service, the authority are going to fill up those 1000 number of vacant posts of Laboratory Technicians through open market by fresh candidates. Such action taken by the opposite parties is not only arbitrary, unreasonable and contrary to the provision of law, but also discriminatory and violative of Article 14 of the Constitution of India. Hence these writ petitions.
4. Mr. K.C. Sahu, learned counsel appearing for the petitioners in W.P.(C) No. 33301 of 2020 vehemently contended that the Director of Health Services, Orissa issued circular dated 24.09.2004 with regard to contractual engagement of STS/ STLS/ ADEO/TBHV/LT under RNTCP prescribing essential qualification under clasue-2 thereof that the candidates should have possessed 10+2 in Science with Diploma in Laboratory Technician course from the Medical Colleges of the State. As adequate number of candidates having Laboratory Technician course // 16 // from the Medical Colleges of the State were not available, the Director of Health Services, Odisha issued a fresh circular on 14.08.2005 having essential qualification as 10+2 in Science with Diploma or Certificate course in Medical Laboratory Technology or its equivalent. Consequentially, the condition put in earlier notification dated 24.09.2004, that Laboratory Technician course from the Medical Colleges of the State, was given a go bye. As a result thereof, there was relaxation of essential qualification for the post of Laboratory Technicians. The Director of Health Services, Orissa on 07.03.2006 also issued another letter, wherein the essential qualification was fixed as 10+2 in Science with Diploma or Certificate course in Medial Laboratory Technology or its equivalent. In terms of the above circular, advertisements were issued, in pursuance of which, the petitioners applied for and got selected and engaged as Laboratory Technicians by following due procedure and have been discharging their duties. While the things stood thus, // 17 // some of the similarly situated Laboratory Technicians approached the Odisha Administrative Tribunal by filing a batch of Original Applications, of which O.A. No. 1066 (C) of 2015 (Subrat Kumar Mohanty v. State of Odisha) was the lead case. While disposing of the said batch of Original Applications, the Tribunal directed that opposite party no.1 shall take a policy decision for absorption of LT/STLS working under RNTCP in the post of contractual Laboratory Technician against regular vacancies of General Health Care and while formulating such policy the Government shall be free to reserve some percentage of post of contractual Laboratory Technician of General Health to be filled up from among the LT/STLS working under the RNTCP and may also formulate policy as to after how many years of service under the General Health Care or under RNTCP on contractual basis they will be regularized. As a consequence thereof, the Government of Orissa in Health and Family Welfare Department issued a // 18 // notification on 8th March, 2019 formulating "The Odisha Laboratory Technician Service (Method of Recruitment and Condition of Service) Rules, 2019". Rule-4 of the 2019 Rules, prescribes the conditions for taking over of existing Laboratory Technicians. Under Rule-4(A) it is prescribed that on the date of commencement of these rules, all the contractual Laboratory Technicians, who have been duly recruited by concerned societies/schemes 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. Rule-5 envisages modalities for induction of Laboratory Technicians into the cadre, wherein it is specifically mentioned that all the contractual Laboratory Technicians and Senior TB Laboratory Supervisor who have completed or are yet to complete 6 years of satisfactory contractual service under the societies/schemes, shall be deemed to have been inducted into the cadre, // 19 // subject to conditions prescribed in sub-rules (i) to (iii). Thereby, the petitioners, having already rendered service for more than 15 years, as a matter of course, have to be absorbed following Rules-4 and 5 of the 2019 Rules. But, when such a statutory rule was governing the field, on 16.11.2020 the members of the High Power Committee passed an order and the names of the present petitioners were not recommended for induction/regularization on the plea that they have acquired the qualification from the institutions which have not been duly approved by the AICTE and have acquired such qualification from a private institution recognized by the Government of Odisha.
4.1 It is further contended that the petitioners, having satisfied minimum requirement, as per notifications issued by the Government from time to time, and also satisfying the other condition having rendered satisfactorily contractual service for more than 15 years, now they cannot be denied induction // 20 // into the cadre on the plea that they have acquired qualification from a private recognized institutions, which are not approved by the AICTE. When regularization has already been granted in favour of similarly situated Laboratory Technicians by the Government on completion of six years of service, in compliance to the direction given by the Tribunal in respect of Nuapada district, and also suo motu for Sambalpur district, the petitioners though have completed more than 15 years, have not been regularized, which is arbitrary, unreasonable, discriminatory, contrary to the provisions of law and violative of Article 14 of the Constitution of India. 4.2 Mr. Sahu, learned counsel further contended that a similarly situated Laboratory Technician, namely, Narayan Sahu, had approached the Tribunal and succeeded in the said forum. The State, having preferred appeal both in the High Court as well as Supreme Court and having lost in both the forums, have regularized the services of Shri Sahu.
// 21 // The petitioners, having stood in the same footing, the benefits of regularization should have been extended to them without insisting upon approval from the AICTE, because by the time the petitioners entered into service, there was no requirement of approval of the institution by the AICTE. It is also contended that if the petitioners have acquired qualification from the institutions recognized by the State Government, merely because approval has not been given by the AICTE to those institutions, they should not be deprived of regularization as because when the petitioners were inducted, as has been mentioned in the circulars referred to above, the requirement of approval by AICTE was not the eligibility criteria for their induction. As such, having rendered more than 15 years of service, a right has been accrued in their favour for regularization, which has been taken care of in Rules-4 and 5 of 2019 Rules, as a consequence thereof, their services should have been regularized and they should have been extended with the financial // 22 // benefit at par with the similarly situated persons, within a stipulated time.
5. Mr. S. Behera, learned counsel appearing for the petitioners in W.P.(C) No. 32900 of 2020, Mr. P. Chuli, learned counsel appearing for the petitioner in W.P.(C) No. 33366 of 2020 and Mr. Subrat Mishra, learned counsel appearing for the petitioner in W.P.(C) no. 33346 of 2020 endorsed the argument advanced by Mr. K.C. Sahu, learned counsel for the petitioners in W.P.(C) No. 33301 of 2020.
6. Learned counsel for the petitioners relied upon the decisions rendered in the case of Bhagwati Prasad v. Delhi State Mineral Development Corporation, AIR 1990 SC 371; Gujarat Agriculture University v. Rathod Labhu Bechar and others, AIR 2001 SC 706; State of Odisha v. Amit Kumar Mishra, Special Leave to Appeal (C) No. 13077/2020 disposed of 12.01.2021; Ashok Kumar Uppal and others v. State of J& K and others, AIR 1998 SC // 23 // 2812; Gadei Swain v. State of Orissa and others, 129 (2020) CLT 56; Jema Topo & others v. State of Orissa & Others, 129 (2020) CLT 408; Manas Ranjan Pattnaik and others v. State of Odisha and others, 2021 (II) OLR 109; Anil Kumar Das and 12 others v. State of Orissa & Others, 2009 (Supp- II) OLR 412; State of Karnataka and others v. C. Lalitha, (2006) 2 SCC 747; and State of Uttar Pradesh and others v. Arvind Kumar Srivastava and others, (2015) 1 SCC 347
7. Mr. H.M. Dhal, learned Additional Government appearing for the State does not dispute the factual matrix as discussed above, but contended that since the High Power Committee of the Government did not recommend the name of the petitioners, as they had acquired the qualification from the institutions not duly approved by the AICTE, therefore, their cases could not be taken into consideration for regularization. It is further contended that not only petitioners, but also all those, // 24 // who had prosecuted their Laboratory Technicians course in the institutions, which are not approved by the AICTE nor by the Government of Orissa, their services were not regularized. So far as applicability of 2019 Rules is concerned, he laid emphasis on Rules-4 and 5 of the said Rules and contended that all contractual STLS and Laboratory Technicians, who have completed or yet to complete six years of satisfactory contractual service under the societies/ schemes should be deemed to have been inducted into the cadre, subject to conditions inter alia that such Laboratory Technicians must have minimum educational qualification and other eligibility criteria as per Rule-9 of 2019 Rules at the time of engagement under the societies/schemes, since Rule-9 of the said 2019 Rules speaks about the eligibility criteria for direct recruitment. Sub-rule (v) of Rule-9 speaks about the minimum educational qualification for the post of Laboratory Technicians, as specified in column-4 of the Appendix, that one must have passed // 25 // +2 Science Examination under Council of Higher Secondary Education Orissa/ equivalent, and passed Diploma in Medical Laboratory Technology from Government Medical College & Hospital of the State/ any other private institution recognized by Government of Odisha or All India Council of Technical Education. As the petitioners do not possess such qualification, their services are not to be regularized in terms of 2019 Rules. Thereby, he contended that the writ petitions merit no consideration and are to be dismissed.
8. This Court heard Mr. K.C. Sahu, learned counsel for the petitioners in W.P.(C) No. 33301 of 2020; Mr. S. Behera, learned counsel for the petitioners in W.P.(C) No. 32900 of 2020; Mr. S. Mishra, learned counsel for the petitioner in W.P.(C) No. 33346 of 2020; Mr. P. Chuli, learned counsel for the petitioner in W.P.(C) No. 33366 of 2020; and Mr. H.M. Dhal, learned Additional Government Advocate by hybrid mode, and perused the record. Pleadings // 26 // having been exchanged between the parties, with their consent, the writ petition is being disposed of finally at the stage of admission.
9. There is no dispute that all the petitioners in the above noted writ petitions have acquired their qualification from recognized institutions of the State of Odisha, which were not approved by the AICTE. But fact remains by the time they were recruited, such qualification had not been prescribed by the Government. The reason being, sufficient number of candidates having such technical qualification were not available at the relevant point of time. That is why, the Government, in supersession of the condition of approval from AICTE stipulated that the candidates having passed 10+2 Science with Diploma or Certificate course in Medical Laboratory Technology or its equivalent, can apply for the post. All the petitioners have been selected by following due processes of selection pursuant to the advertisement issued by the Government. Thereby, once they have // 27 // been selected by following due process of selection, pursuant to the advertisements and given contractual engagement with a consolidated salary of Rs.5040/- per month, a right has already been accrued in their favour, after completion of six years of service, for regularization. Not only that some of the similarly situated Laboratory Technicians those who had acquired qualification from the institutions, without having approval from AICTE, had approached the Tribunal in O.A. No. 4179 (C) of 2014 and batch and pursuant to the order dated 20.07.2016 passed therein, their services were regularized on 10.08.2016, even without assailing the same before the higher forum. In respect of Sambalpur district, suo motu the services of similarly situated Laboratory Technicians were also regularized on 04.12.2019. In case of Narayan Sahu, the Tribunal had directed for regularization of his service in O.A. No. 3731 (C) of 2013 disposed of on 09.01.2017. The same having been affirmed by this Court in W.P.(C) No. 14933 of // 28 // 2017, vide order dated 18.01.2019, by dismissing the writ petition, as well as by the apex Court in SLP (Civil) Diary No. 10687 of 2019, vide order dated 07.05.2019, dismissing the SLP, he has also been extended with the benefit of promotion. The petitioners, being stood in the same footing with the Laboratory Technicians named above, their services should have been regularized without creating any hindrance but the High Power Committee, without application of mind, in its minutes of meeting held on 16.11.2020 did not recommend the name of the petitioners for induction as regular employee and, as such, has acted arbitrarily, unreasonably and in violation of Article 14 of the Constitution of India.
10. The Government of Orissa in Health and Family Welfare Department issued a Resolution on 13.05.2013 in Annexure-4 indicating therein that the Government was pleased to formulate a policy on regularization of services of contractual Laboratory Technicians working in General Health Care and // 29 // communicated the same vide Resolution No. 28516-H dated 30.12.2008. In spite of above circular/ resolution, there were still some doubts in certain quarters regarding regularization of Contractual Laboratory Technicians. Therefore, in supersession of the circular issued in this regard, Government after careful consideration was pleased to formulate a comprehensive policy on regularization of the Contractual Laboratory Technicians working under General Health Care to the following effect:-
1. With a view to regularizing Contractual Laboratory Technicians, regular post of Laboratory Technicians shall be created which were abolished earlier in lieu of contractual engagement. Such creation of regular posts, shall not be exceed the number of regular posts abolished earlier for contractual engagement.
2. The revival of posts for regularization shall be limited strictly to the number of Contractual Laboratory Technicians actually available under the appointing authority.
3. Regularization of Contractual Laboratory Technician should be made on the basis of their seniority/date of joining in respective establishment under General Health Care (i. e., against sanctioned post of Laboratory Technicians as Contractual Laboratory Technicians) subject to completion of six years of uninterrupted service. Their past service period under various schemes/ establishments can be counted towards their length of service at the time of regularization in the present establishment, but they // 30 // cannot claim their seniority from the date of joining earlier in the previous establishment.
4. The number of Laboratory Technicians to be regularized will be subject to category wise number of sanctioned posts lying vacant under respective appointing authorities. In no case regularization should be effected beyond the number of sanctioned posts under the respective authorities.
5. During absorption of Laboratory Technicians from one scheme to another, there may be some interruptions in service due to closure of projects. Such interruptions up to maximum period of three months shall be condoned by the appointing authority after due verification of relevant documents for computation of six years of uninterrupted service which were not due to the fault of employees but due to closure of one project and absorption in another. But, interruptions period due to the fault of the employees and the period beyond three months of interruption shall not be considered for computation of six years uninterrupted service. The period of interruption that will be condoned is subject to concurrence of Administrative Department.
6. Regularization should be made in respect of those Laboratory Technicians only who have been recruited by following due and transparent procedure of recruitment, i. e., advertisement in newspaper, selection through a selection committee and following the provisions of reservation policy in order to maintain the required representation of reserve category candidates.
A certificate to this effect shall be furnished by the appointing authority at the time of regularization.
7. The date of regularization of Contractual Laboratory Technicians should be made prospectively, i. e., from the date of actual regularization in the substantive post and not otherwise.
8. The past service of Contractual Laboratory Technicians and Senior Tuberculosis Laboratory Supervisor (STLS) having Diploma in Medical Laboratory Technician (DMLT) qualification working under Revised National Tuberculosis Control Programme (RNTCP) Scheme earlier under different Chief District Medical Officers (CDMOs) and subsequently absorbed under separate // 31 // establishments shall also be considered for regularization after their absorption against the post of Contractual Laboratory Technicians under General Health Care subject to proper verification of documents by appointing authorities. The appointing authority should ensure one undertaking from the Contractual Laboratory Technician to the effect that any false/fabricated information in this regard will entail cancellation of regularization order.
9. The past services of Contractual Laboratory Technicians and Senior Tuberculosis Laboratory Supervisor (STLS) working under various Project/Schemes like Swasthya Bikash Samity, Rogi Kalyan Samity, Zilla Swasthya Samity, National Rural Health Mission, Re-Productive and Child Health, Revised National Tuberculosis Control Programme, Odisha Health System Development Project, Odisha State Aids Control Society shall also be counted for computation of six years at the time of regularization after their absorption against the post of Contractual Laboratory Technicians under General Health Care subject to proper verification of documents by appointing authorities.
10. In case any regularization is made in contravention to above terms and conditions, the appointing authority will be held responsible for such lapse and the regularization order shall be cancelled forthwith. This has been concurred in by Finance Department vide their UOR No. 285-SS-III., dated the 21st December 2012."
11. If the aforesaid resolution is read carefully, it would be evident that the Government was conscious enough to regularize the services of the petitioners and, therefore, formulated such a policy, whereby it has been specifically provided that past // 32 // services of contractual Laboratory Technicians working under different organizations would be counted for completion of six years at the time of regularization after their absorption against the post of contractual Laboratory Technicians under General Health Care, subject to proper verification of documents by the appointing authorities. It has also been provided that responsibility shall be fixed on the appointing authority for the lapses, if any regularization is done in contravention to the terms and conditions mentioned therein. As per Clause-5 and 6, whereby modalities have been prescribed for regularization, the regularization should be made in respect of those Laboratory Technicians only who have been recruited by following due and transparent procedure of recruitment, i.e., advertisement in newspaper, selection through a selection committee and following the provisions of reservation policy in order to maintain the required representation of reserve category candidates and a certificate to this // 33 // effect shall be furnished by the appointing authority at the time of regularization. It has also been clarified that the date of regularization of Contractual Laboratory Technicians should be made prospectively, i.e., from the date of actual regularization in the substantive post and not otherwise.
12. In view of such position, it is apparently clear that even if the petitioners have acquired the requisite qualification from the institutions, which have not been duly approved by the AICTE, yet their services were to be regularized in terms of the resolution dated 13.05.2013. More so, if services of similarly situated Laboratory Technicians have already been regularized in terms of the direction given by the Tribunal, after the order of the Tribunal was confirmed by this Court as well as apex Court, as already mentioned herein before, the petitioners could not have been denied such benefits, since they stood at par with their counter parts whose services have already been regularized.
// 34 //
13. The Government of Odisha in Health and Family Welfare Department issued a notification on 08.03.2019, with regard to framing of Odisha Laboratory Technician Service (Method of Recruitment and Conditions of Service) Rules, 2019 in accordance with proviso to Article 309 of the Constitution of India. Rules- 4, 5, 9 and 20 of 2019 Rules along with schedule attached thereto, being relevant for the purpose of this case, are quoted below:-
"xxx xxx xxx
4. Conditions of taking over of existing Laboratory Technicians:-- (A) (1) On the date of commencement of these rules , all the contractual Laboratory Technicians who have been duly recruited by concerned societies/Schemes 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:
Provided that all the contractual Laboratory Technicians who are yet to complete six years of contractual service and having eligibility criteria as prescribed under rule 5 shall be 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 Laboratory Technicians, who do not meet the eligibility criteria, as mentioned under rule 5 shall continue as such under the // 35 // OSH&FW Society till closure of the project, retirement or disengagement, whichever is earlier:
(2) On their regularisation, such posts of contractual Laboratory Technicians of the OSH&FW Society as in sub-
clause (1) shall be deemed to have been abolished from the date of such induction of contractual Laboratory Technicians 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 Laboratory Technicians into the Cadre:--All the contractual Laboratory Technicians and Senior TB Laboratory Supervisor who have completed or are yet to complete 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 Laboratory Technicians who have the minimum educational qualification & other eligibility criteria as per rule 9 at the time of engagement under the Society/Scheme;
(ii) who have been selected through an open & transparent recruitment process;
(iii) while inducting, the prevalent reservation principles as in rule 7 shall be followed xxx xxx xxx
9. Eligibility Criteria for direct recruitment:--In order to be eligible for direct recruitment to the post of Laboratory Technician, a candidate shall have to satisfy the following conditions namely:--
(i) Nationality: - He must be a citizen of India;
(ii) Age limit: - He must have attained the age of 21 years and must not be above the age of 32 years:
Provided that the upper age limit in respect of the reserved categories of candidates referred to in rule 7 shall be relaxed in accordance with the provisions of the Act, // 36 // rules, orders or instructions for the time being in force, for their respective categories.
Further provided that, the upper age limit for contractual Laboratory Technicians under OSH&FW Society/Scheme who shall take part in the recruitment process, if otherwise eligible, shall be 50 years as on the date of advertisement.
(iii) Knowledge in Odia:-He must -(a) be able to read, write and speak Odia and
(b) have passed middle school examination with Odia as language subject ; or
(c) have passed Matriculation or equivalent examination with Odia as medium of examination in non-language subject; or
(d) have passed in Odia as language subject in the final examination of Class-VII from a school or educational Institution recognized by the Government of Odisha or the Central Government; or
(e) have passed a test in Odia in Middle English School standard conducted by the School & Mass Education Department.
(iv) Marital status: -lf married, he must not have more than one spouse living:
Provided that the Government may, if satisfied that such marriage is permissible under the personal law applicable to such person or there are other specific grounds for doing so, exempt any person from the operation of this rule.
(v) Minimum Educational Qualification:- The educational qualification of the candidate for the post of Laboratory Technician shall be as specified at column 4 of the Appendix.
(vi) Physical Fitness: - A candidate must be of good mental and physical health and free from any physical defects likely to make him incapable of discharging his normal duties in the Service.
// 37 //
(vii) A candidate who after such medical examination as the Government may prescribe is not found to satisfy these requirements as specified in clause (VI) shall not be appointed to the Service.
(viii) He must have registered his name in Laboratory Technician Council in the State and have possessed valid registration certificates as on the date of the advertisement.
xxx xxx xxx
20. Relaxation:-- When it is considered by the Government that it is necessary or expedient to do so in the public interest, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules in respect of any class or category of the employees.
xxx xxx xxx
SCHEDULE
(See rules 3, 9 & 12)
SI. Name of the Method of Minimum qualification Eligibility
No. Post, recruitment for direct recruitment criteria for
Classification promotion
and cadre
1 2 3 4 5
1 Laboratory Direct Must have passed +2
Technician recruitmen Science Examination
(District t under Council of
Cadre) Higher Secondary
Education, Odisha /
equivalent, and passed
Diploma in Medical
Laboratory Technology
from Government
Medical College &
Hospitals of the State /
any other private
Institutions recognized
by Government of
Odisha or All India
Council of Technical
Education
2 Senior Promotion Completion of
Laboratory from 10 (Ten)
Technician Laboratory years of
(State Cadre Technician continuous
services as
Laboratory
Technician
// 38 //
14. As per Rule-4(A)(1) of 2019 Rules, which is extracted above, on the date of commencement of these rules, all the contractual Laboratory Technicians, who have been duly recruited by concerned societies/schemes 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.
15. Rule-5 which deals with the Modalities for Induction of Laboratory Technicians into the Cadre, in sub-rule (i) stipulates that such Laboratory Technicians should have the minimum educational qualification & other eligibility criteria as per Rule-9 at the time of engagement under the society/scheme. Rule-9 prescribes the eligibility criteria for direct recruitment. Under sub-rule (v) thereof, which deals with minimum educational qualification, it is provided that the educational qualification of the candidate for the post of Laboratory Technician shall be as specified // 39 // at column 4 of the Appendix. The minimum qualification for direct recruitment to the post of Laboratory Technicians, as prescribed in the schedule attached to Rules-3, 9 and 12, is that the candidate must have passed +2 Science Examination under Council of Higher Secondary Education, Odisha / equivalent, and passed Diploma in Medical Laboratory Technology from Government Medical College & Hospitals of the State / any other private institutions recognized by Government of Odisha or All India Council of Technical Education. Therefore, acquisition of qualification from an institution approved by All India Council of Technical Education is not mandatory. Therefore, the services of contractual Laboratory Technicians, who acquired qualification even from other private institutions recognized by the Government of Odisha and appointed on contractual basis, can also be regularized. By putting the word "or" in between the words "any other private Institutions recognized by Government of Odisha"
// 40 // and "All India Council of Technical Education", it would imply that those two conditions are disjunctive.
Thereby, a candidate should have acquired the qualification either from any other private Institutions recognized by Government of Odisha "or" All India Council of Technical Education. In such view of the matter, acquisition of qualification from the institution approved by All India Council of Technical Education is not a condition precedent for regularization of all contractual Laboratory Technicians, those who have been appointed prior to the commencement of the 2019 Rules. More so, Rule 4-(A) (1) lays emphasis on the date of commencement of these rules and clearly envisages that all the contractual Laboratory Technicians who have been duly recruited by concerned societies/schemes 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.
// 41 //
16. The very use of words "deemed to be regular" gives a prima facie view that those who are continuing in Government service on contractual basis, their services are deemed to be regularized.
In St. Aubyn (L.M.) v. A.G., 1952 AC 15 : [1951] 2 AII ER 473 (HL), the apex Court held as follows:-
"The word 'deemed' is used to impose an artificial construction of a word or phrase in a statute that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes, what is obvious, what is uncertain and what is impossible."
The word 'Deemed' as per Worcester Dictionary, is :
"The word 'deemed' is used in various senses. Sometimes it means 'generally regarded'. At other time it signifies "taken conclusively to be". Its various meanings are to been to be hold in belief, estimation, or opinion; to judge; adjudge; decide; consider to be; to have or to be of an opinion; to esteem; to suppose; to think, decide or believe on consideration; to account; to regard; to adjudge or decide; to conclude upon consideration.
In Ramprakash v. S.A.F. Abbas, AIR 1972 SC 2350, the apex Court, while dealing with Rule-3(3)(b) // 42 // of Indian Administrative Service (Regulation of Seniority) Rules, 1954, held as follows:-
"The use of word 'deemed' in the rule indicates that the Government has the power to make a retrospective declaration because, it is only after promotion that there is any occasion to consider whether the period of officiation prior to promotion will be counted for purpose of seniority."
In State of Karnataka v. Shri Ranganatha Reddy, AIR 1978 SC 215, the apex Court held as follows:-
"The use of word "deemed" does not invariably and necessarily imply an introduction of a legal fixation but it has to be read and understood in the context of the whole statute."
In Consolidated Coffee Ltd v. Coffee Board, AIR 1980 SC 1468, the apex Court held as follows:-
"A deemed provision might be made to include what is obvious or what is uncertain or to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail."
In Rishabh Agro Industries Ltd V. P.N.B Capital Services Ltd, (2000) 5 SCC 515, the apex Court while considering the provisions contained in Section 441 of the Companies Act (1 of 1956) held as follows:-
// 43 // "The word 'deemed' as used in Section 441 of the Act means "supposed', 'considered', 'construed', 'thought', 'taken to be' or 'presumed'."
17. Therefore, use of words "deemed to be regular" in Rule-4(A)(1) of 2019 Rules, clearly indicates that the Government has the power to make retrospective declaration that the contractual Laboratory Technicians who have been duly recruited by the concerned societies/schemes and have completed 6 (six) years of satisfactory contractual service, as a one time measure, they are to be regularized subject to fulfillment of eligibility criteria prescribed in Rule-5. Therefore, when Rule-5 (i) stipulated that contractual Laboratory Technicians shall be inducted into the cadre if they have the educational qualification and other eligibility criteria as per Rule-9, which speaks in sub-rule (iv) that educational qualification for the post of Laboratory Technicians shall be as specified at Column-4 of the Appendix. The petitioners having been selected by following due process of selection, pursuant to an // 44 // advertisement, and having the requisite qualification from the private institutions recognized by the State Government, their services are to be regularized, even though the institutions, wherefrom they have passed have not been approved by the AICTE. As per Column-
4 of the Appendix to Rule-9, where qualification has been prescribed, approval of AICTE is not the mandatory requirement, because of use of the word "or" in between "any other private Institutions recognized by Government of Odisha" and "All India Council of Technical Education". The word "or" is a disjunctive one and, therefore, since the petitioners have acquired qualification from private institutions recognized by Government of Odisha, their cases can be considered for regularization.
18. The word "or" is normally disjunctive and 'and' is normally conjunctive. In Hyderabad Asbestos Cement Product v. Union of India, 2000 (1) SCC 426: AIR 2000 SC 314, it has been held that 'or' in its // 45 // natural sense denotes an 'alternative' and is not read as 'substitutive'.
In Green v. Premier Glynrhonwy State Co., (1928) I KB 561, it has been held that 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. The same view has also been taken in Nasiruddin v. State Transport Appellate Tribunal, (1975) 2 SCC 671:AIR 1976 SC 331 and Municipal Corporation of Delhi v. Tek Chand Bhatia, (1980) 1 SCC 158 :AIR 1980 SC 360 and State (Delhi Administration) v. Puran Mal (1985) 2 SCC 589: AIR 1985 SC 741. In Mersey Docks and Harbour Board v. Henderson Bros., (1888) 13 AC 595, it has been held that as pointed out by LORD HALSBURY the reading of 'or' and 'and' is not to be resorted to, "unless some other part of the same statute or the clear intention of it requires that to be done".
In Union of India & Ors. v. Rabinder Singh, (2012) 12 SCC 787, the apex Court held that where // 46 // provision is clear and unambiguous the word 'or' cannot be read as 'and' by applying the principle of reading down.
Applying the same principle to the case at hand, here the word 'or' used in between "any other private Institutions recognized by Government of Odisha" and "All India Council of Technical Education" is disjunctive one. Therefore, it cannot be read as 'and' as the provision is clear and unambiguous. Therefore, there is no necessary for applying the principle of read down to read 'or' as 'and'.
19. In view of such position, admittedly the petitioners have acquired qualification from private institutions recognized by the Government of Odisha and certainly not approved by the AICTE, which was also not the required condition at the time of their entry into service as per the advertisement issued. This apart, Rule-20 of 2019 Rules clearly stipulates // 47 // that when it is considered by the Government that it is necessary or expedient in the public interest to relax such provisions of the Rules, it may relax the provisions in respect of any class or category of the employees. Accordingly, by invoking such power as stipulated under Rule-20 of 2019 Rules, as it was deemed necessary and expedient, the State Government relaxed such acquisition of qualification from the institution duly approved by the AICTE by putting the word "or" in between the words "any other private Institutions recognized by Government of Odisha" and "All India Council of Technical Education", to make the petitioners eligible to be recruited and subsequently regularized in their services taking into consideration their past service rendered as they have been appointed by following due process of selection pursuant to the advertisement issued by the opposite parties. By the time the petitioners had been selected, they had got the requisite qualification, as per the advertisement // 48 // issued at the relevant point of time. They having got the requisite qualification, now the State authorities cannot turn around and say that the petitioners have not passed from the institutions approved by the AICTE and deprive them the benefit of regularization. This itself amounts to arbitrary and unreasonable exercise of power and hits by Article 14 of the Constitution of India.
20. The initial minimum educational qualification prescribed for the post is undoubtedly a factor to be reckoned with, but it is so at the time of initial entry into service. Once appointments were made by following due process of selection, pursuant to advertisement having been issued, and petitioners were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In Bhagwati Prasad (supra), the apex Court at paragraph-6 held as follows:-
// 49 // "6. The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 and ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years' experience, ignoring artificial break in service for short period/periods created by the respondent, in the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and re-appointment that period may be excluded in the computation of the three years period.
Since the petitioners before us satisfy the requirement of three years' service as calculated above, we direct that 40 of the senior-most workmen should be regularised with immediate effect and the remaining 118 petitioners should be regularised in a phased manner, before April 1, 1991 and promoted to the next higher post according to the standing orders. Xxx xxx".
21. In Gujarat Agriculture University (supra), at paragraph 26, the apex Court observed as follows:-
"26. In the light of the aforesaid decisions we now proceed to examine the proposed scheme. Under Clause 1 it is proposed that all daily wage workers, whether skilled, semi-skilled or unskilled who have completed 10 years or // 50 // more of continuous service with a minimum of 240 days in each calendar year as on 31st December, 1999 is to be regularised and be put in the time scale of pay applicable to the corresponding lowest grade in the university. However, the said regularisation is subject to some conditions. Under Clause 1(a) such employee is eligible only if he possess the prescribed qualifications for the post at the time of their appointment. The strong objection has been raised to this eligibility clause. The submission is, those working for a period of 10 or more years without any complaint is by itself a sufficient requisite qualification and any other rider on the facts of this case would prejudice these workers. We find merit in this submission. We have perused the qualifications referred in the aforesaid recruitment rules according to which, qualification for Peon is that he should study up to 8th std., for Operator-cum- Mechanic, should have Diploma in Mechanic having sufficient knowledge of vehicle repairing experience in automobiles or tractors Dealers workshop for two years, for Chowkidar, he must be literate and have good physique. Literate is not defined. For Plumber to have I.T.I. Certificate.
We feel that daily rate workers who have been working on the aforesaid posts for such a long number of years without complaint on these posts is a ground by itself for the relaxation of the aforesaid eligibility condition. It would not be appropriate to disqualify them on this ground for their absorption, hence Clause 1(a) need modification to this effect."
In paragraph-27 of the said judgment, reference has also been made to the case of Bhagwati Prasad (supra) and in paragraph-29 it has been ruled that the decision to absorb some of the employees at one point of time or in a phased manner depends on facts and circumstances of each case.
// 51 //
22. In the instant case, Rule-4(A)(1) clearly specifies that all the contractual Laboratory Technicians who have been duly recruited by concerned societies/Schemes 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. Thereby, all the petitioners, having completed six years of service on contractual basis on being recruited by following due process of selection pursuant to an advertisement, are deemed to be regular government employees as one time measure as per eligibility criteria prescribed under Rule-5.
23. A similar case had come up before this Court, in which absorption under Odisha Pharmacist Service (Methods of Recruitment & Conditions of Service) Rules, 2015 was under consideration. In that case, under Rule-6 of 2015 Rules, the mode of selection prescribed for Pharmacists was through a // 52 // selection process and the claim of the Pharmacists employed on contractual basis under different schemes for regularization was denied. Since it was provided in Rule-4 of the very same Rules that for such contractual Pharmacists would be deemed to be absorbed, once they complete six years of satisfactory contractual service, this Court while considering the same, extended the benefit to the similar persons who were petitioners in W.P.(C) No. 1353 of 2020 (Amit Kumar Mishra and others V. State of Odisha and others) disposed of vide judgment and order dated 03.02.2020. The said judgment and order passed by this Court was assailed by the State in Special Leave to Appeal (C) No. 13077/2020, which was disposed of by the apex Court vide order dated 12.01.2021 holding as follows:-
"xxx xxx xxx. In fact the pharmacists who are yet to complete six years for contractual service are to be deemed to be contractual Government employees and would be regularized as and when they complete six years of satisfactory service as per the proviso. In view of the aforesaid there is little doubt that as per the statutory Rules framed by the State of Odisha themselves they have provided for a deeming provision for such contractual // 53 // employed Pharmacists and Rule 5 talks about modalities for induction of the Pharmacists in the cadre while Rule 6 mentions the method of recruitment. Their induction in the cadre is to based on a minimal educational qualification and other eligibility criteria as per Rule 10 and it is nobody's case that the respondent do not meet this requirement.
Learned counsel for the petitioner(s) states that apparently the Rules are not very happily worded and what was envisaged was that even the contractual Pharmacists would have to go through an open selection process in view of Rule 5(ii). If it was so, in our view, that the Rule should have been so framed as Rule 4 introduces a deeming fiction for regular employees who have completed six years of service.
In view of the aforesaid, we are not inclined to interfere with the impugned order."
24. Pharmacist Service Rules, 2015 are akin to 2019 Rules meant for Laboratory Technicians. Therefore, by applying the said analogy to the present case, the petitioners, who have completed six years of contractual service, are deemed to be contractual Government employees and would be regularized as and when they complete six years of satisfactory service as per the statutory Rules framed by the State of Odisha which provided for a deeming provision for regularization of such contractual Laboratory Technicians.
// 54 //
25. Furthermore Rule-5 of 2019 Rules talks about modalities for induction of the Laboratory Technicians in the cadre. Their induction in the cadre is to be based on a minimal educational qualification and other eligibility criteria as per Rule-9 and as such it is nobody's case that the opposite parties do not meet this requirement, save and except the institution from which they have acquired the qualification has not been approved by the AICTE. As has been stated in Rule-5 (ii) of 2015 Rules for the pharmacists, that the contractual Pharmacists would have to go through an open selection process, the apex Court held, if that be so, the Rules should have been so framed as Rule-4 introduces a deeming fiction for regular employees who have completed six years of service on contractual basis. Applying the same analogy, here since the petitioners have been appointed by following due process of selection pursuant to advertisement and they were having the requisite qualification at the relevant point of time, by invoking the deeming // 55 // provision as prescribed in Rule-4, their services have to be regularized. Now, their claim cannot be denied on the plea that they do not possess the qualification from the institution duly recognized by the AICTE rather the institution has been recognized by the State of Odisha. Apart from the above, after rendering services for so many years, a right has been accrued in their favour to be regularly absorbed, as they have gained experience in the same line as has been held in Bhagawati Prasad (supra) and also in Gujarat Agriculture University (supra)
26. In Ashok Kumar Uppal (supra), the Government had promoted a candidate who has nearest to the prescribed standard and topped in the merit list by relaxing his standard prescribed for promotion. While dealing with that case, the apex Court even gone to the extent to observe that relaxation of rules is made to obviate the genuine hardship caused to a class of employees. Thereby, the action of the Government is neither arbitrary nor // 56 // capricious and accordingly held promotion by relaxing the rules is proper. Applying the same analogy to the case at hand, since the petitioners have acquired the qualification from private institutions recognized by the State and by following due process of selection they were recruited and are continuing for more than 6 years on contractual basis, merely because their institutions are not approved by the AICTE, they cannot be denied regularization. Rather by applying the relaxation clause under Rule-20 if the services of the petitioners are regularized to obviate their genuine hardship that cannot be construed either arbitrary or capricious, and such absorption of the petitioners by relaxing the rules would be just and proper.
27. As a matter of fact, 2019 Rules cannot have a retrospective effect. Therefore, the eligibility qualification for direct recruitment, which has been prescribed under Rule-9 of 2019 Rules cannot be applied retrospectively in a capricious manner to deny the benefits to the petitioners, in view of the judgment // 57 // of this Court in Rajendra Prasad Singh V. State of Orissa, 2001 (II) OLR 683, referred in the case of Gadei Swain (supra).
28. In Manas Ranjan Pattnaik (supra), the employment was given on contractual basis as Multipurpose Health Worker (Male), subject to condition that any claim to such post for regular appointment shall not be entertained. The petitioners therein had completed more than 15 years of services on such basis, but similarly placed contractual employees were absorbed on regular basis on completion of 6 years of service. Consequentially, the petitioners and similarly placed employees moved erstwhile State Administrative Tribunal. Accordingly, direction was given to the State Government to regularize their services, pursuant to which though their services were regularized, but subsequently the same was cancelled. This Court held that cancellation of such regularization is hit by principle of estoppels, as the Government was bound by its promise to // 58 // regularize their services on completion of six years, and that when similarly situated employees were extended such benefit, there was no valid reason not to extend similar benefit to the petitioners. Therefore, the cancellation of regularization was set aside and the petitioners' services were directed to be regularized and consequentially the writ petition was allowed.
29. In Arvind Kumar Srivastava (supra), the apex Court at paragraph-22 held as follows:-
"22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:
22.1 The normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2 However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the // 59 // Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."
30. In C. Lalitha (supra), the apex Court at paragraph 29 held as follows:-
"29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently. It is furthermore well-settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I Post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have // 60 // been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to."
31. In Jema Toppo (supra), this Court at paragraph-7 observed as follows:-
"7. The petitioners belonged to S.C. and S.T. category. Having satisfied with the qualification acquired by the petitioners, pursuant to advertisement issued under Annexure-1, and on verification of documents, the petitioners were issued with engagement order, pursuant to which they joined in the post and were continuing. But, all on a sudden on 30.04.2010, they were terminated from service. Though representation was filed in Annexure-4 series immediately on 02.05.2010, the same was not considered, rather a fresh advertisement in the name of walk in interview was issued on 11.07.2011 vide Annexure-5 to fill up the vacancies with another set of contractual employee. Fact remains, by rendering services and discharging their duty as assigned to them from 07.12.2007 till the date of termination, i.e. 30.04.2010, the petitioners have gained experience. But subsequently, by filing counter affidavit, the opposite parties have stated the reasons for disengagement of the petitioners from service indicating that the institutions, from where they have acquired qualification, do not come under the approved training centre list, thereby the services of the petitioners were terminated. But, the order of termination does not reflect the said reason and for the first time in the counter affidavit, the aforesaid reason has been stated. Therefore, such reason is an afterthought and cannot be accepted at this stage, and thus the order of termination cannot sustain in the eye of law."
32. Considering from other angle, the petitioners, having requisite qualification and by following due process of selection having been appointed and continuing in the post, have got a // 61 // legitimate expectation that their services would be regularized after completion of six years. The legal maxim "salus populi est suprema lex" (regard for public welfare is the highest law) comes to an aid in the instant case also in view of the judgments of the apex Court in A. Mahudeswaran v. Govt. of T.N, (1996) 8 SCC 617; Dr Meera Massey (Mrs) v. Dr Abha Malhotra, (1998) 3 SCC 88; National Buildings Constructions Corporation v. S. Raghunathan, (1998) 7 SCC 66; State of West Bengal v. Niranjan Singha, (2001) 2 SCC 326; State of Bihar v. S.A Hasan, (2002) 3 SCC 566; Dr. Dr. Chanchal Goyal (Mrs) v. State Of Rajasthan, (2003) 3 SCC 485; J.P Bansal v. State of Rajasthan, (2003) 5 SCC 134; Hira Tikkoo v. Union Territory, Chandigarh, (2004) 6 SCC 765 : AIR 2004 SC 3649, Ram Pravesh Singh v. State of Bihar, (2006) 8 see 381; Confederation of Ex-Servicemen Association v. Union of India, (2006) 8 SCC 399 : AIR 2006 SC // 62 // 2945; & Secy. State of Karnataka v. Uma Devi, (2006) 4 SCC 1 : AIR 2006 SC 1806.
In the above judgments, it has been laid down that the doctrine of legitimate expectation can be pressed if a person satisfies the Court that he has been deprived of some benefit or advantage which earlier he had in the past been permitted by the decision maker to enjoy or he has received the assurance from the decision maker that such benefit shall not be withdrawn without giving him an opportunity of advancing reasons for contending that it should not be withdrawn.
33. In Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499 : AIR 1994 SC 988, the supreme Court held as follows:
"On examination of some these important decisions it is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review & that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing of an undertaking is taken. The doctrine does not give scope to claim relief straight way from the administrative authorities as no crystallized right as such is involved. The protection of such legitimate expectation does not require // 63 // the fulfillment of the expectation where an overriding public interest requires otherwise. In other words where a person's legitimate expectation is not fulfilled by taking a particular decision then decision-maker should justify the denial of such expectation by showing some overriding public interest."
34 In Punjab Communications Ltd. v. Union of India, (1999) 4 SCC 727 : AIR 1999 SC 1801, the Supreme Court held as follows:
"...... the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law & that the decision-maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way...."
35. In M.P Oil Extraction v. State of Madhya Pradesh, (1997) 7 SCC 592 & National Buildings Construction Corporation v. S. Raghunathan, (1998) 7 SCC 66, it has been held as follows:
"The doctrine of legitimate expectation has a meaning that the statements of policy or intention of the Government or, its Department in administering its affairs should be without abuse or discretion. The policy statement could not be disregarded unfairly or applied selectively for the reason that unfairness in the form of unreasonableness is akin of violation of natural justice. It means that said actions have to be in conformity of Article 14 of the Constitution, of which non arbitrariness is a second facet. Public Authority cannot claim to have unfettered discretion in the public law as the authority is conferred with power only to use them for public good. Generally // 64 // legitimate expectation has essentially procedural in character as it gives assurance of fair play in administrative action but it may in a given case be enforced as a substantive right. But a person claiming it has to satisfy the Court that his rights had been altered by enforcing a right in private law or he has been deprived of some benefit or advance which he was having in the past & which he could legitimately expect to be permitted to continue unless it is withdrawn on some rational ground or he has received assurance from the decision making Authority which is not fulfilled, i.e, the kind of promissory estoppel. Change of policy should not violate the substantive legitimate expectation & if it does so it must be as the change of policy which is necessary & such a change is not irrational or perverse. This doctrine being an aspect of Article 14 of the Constitution by itself does not give rise to enforceable right but it provides a reasonable test to determine as to whether action taken by the Government or authority is arbitrary or otherwise, rational & in accordance with law".
36 In Kuldeep Singh v. Government of NCT of Delhi, (2006) 5 SCC 702 : AIR 2006 SC 2652, the issue of legitimate expectation was considered observing that the State actions must be fair & reasonable. Non-arbitrariness on its part is significant in the field of governance. The discretion should not be exercised by the State instrumentality whimsically or capriciously but a change in policy decision, if found to be valid in law, any action taken pursuant thereto or in furtherance thereof should not be invalidated.
// 65 //
37. Similarly, in Ashok Smokeless Coal India (P) Ltd. v. Union of India, (2007) 2 SCC 640, the apex Court held as under:
"Principles of natural justice will apply in cases where there is some right which is likely to be affected by an act of administration. Good administration, however, demands observance of doctrine of reasonableness in other situations also where the citizens may legitimately expect to be treated fairly. Doctrine of legitimate expectation has been developed in the context of principles of natural justice."
38. Applying the above principle and ratio laid down by the apex Court as well as by this Court, to the facts of the present case, this Court holds that the petitioners, having got the requisite qualification and having been recruited by following due process of selection pursuant to advertisement, and having completed six years of service on contractual basis, their services are to be regularized and non-extension of such benefit on the plea of not having passed from the institutions approved by the AICTE cannot have any justification and, as such, the same has resulted in unfairness, being not in conformity with the Article // 66 // 14 of the Constitution of India. This view has also been taken by this Court in Anil Kumar Das (supra).
39. In view of the fact and law, as discussed above, this Court comes to an irresistible conclusion that the petitioners, having got the requisite qualification and fulfilled the eligibility criteria by completing six years of contractual service and having otherwise satisfied the 2019 Rules, cannot and should not be denied the benefit of regularization in service on completion of six years, merely because they do not satisfy the criteria of acquisition of qualification from the institutions approved by the AICTE. As such, the action of the authorities is arbitrary, unreasonable and contrary to the provisions of law, being violative of Article 14 of the Constitution of India. As a consequence thereof, the observation made in the minutes of meeting of the High Power Committee dated 16.11.2020 (appended to Annexure-8 dated 17.11.2020) as well as its consequential letter under Annexure-8 dated 17.11.2020, so far as it relates to // 67 // non-regularization of services of the petitioners on the plea, that they have passed from non-AICTE approved institutions, cannot sustain in the eye of law. Accordingly, the same are liable to be quashed and hereby quashed.
40. Resultantly, this Court directs the opposite parties to take steps for regularization of service of the petitioners like other contractual paramedic employees in consonance with 2019 Rules, more specifically by applying Rule-20 thereof, within a period of three months from the date of communication of this judgment.
41. The writ petitions are accordingly allowed. No order as to costs.
.................................. DR. B.R. SARANGI, JUDGE Orissa High Court, Cuttack The 11th December, 2021, ARUN/GDS