Orissa High Court
State Of Odisha vs Debika Mishra on 15 January, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.2072 of 2023
Arising out of the order dated 15.11.2022 passed by the learned
Single Judge in WPC (OAC) No.1059 of 2019.
1.State of Odisha
2.Director of Nursing, Odisha, Heads
of Department Building, Bhubaneswar ...
Appellants
-versus-
Debika Mishra .... Respondent
Advocates appeared in this case through Hybrid Mode :
For Appellant s : Mr.Saswat Das, AGA
For Respondent : Mr.S.Swain, Advocate
CORAM:
THE HON'BLE CHIEF JUSTICE
AND
THE HON'BLE MISS JUSTICE SAVITRI RATHO
................................................................................................
Date of Judgment : 15.01.2025 ................................................................................................. SAVITRI RATHO, J. This matter was taken up through hybrid mode .
2. The Appellants - State of Odisha and Director of Nursing, Odisha have filed this writ appeal being aggrieved by the judgment dated 15.11.2022 passed by a learned Single Judge in WPC (OAC) No. 1059 of CASE OF THE RESPONDENT ( WRIT PETITIONER )
3. The Respondent had filed O.A. No. 1059 (C) of 2019 before the W.A. No.2072 of 2023 Page 1 of 13 Odisha Administrative Tribunal ( in short "OAT") stating that she joined service as a contractual on 19.02.2009. While serving as such , she had submitted her application for selection to prosecute two years M.Sc. Nursing Course for the year 2015-2017 as in-service candidate . She was selected for the course . She had completed the course in first class with distinction. She was granted Course Completion Certificate on 16.11.2017 and relieved on the same day to join at her place of posting . Vide order dated 27.11.2017, she was allowed to join duty as a regular Staff Nurse treating her as such w.e.f. 18.02.2015 in the scale of pay PB-1 of Rs.5200-20,000/- with Grade Pay of Rs.2800/- with usual allowances as admissible thereon from time to time. But she was not grated study leave nor salary for the period - 17.11.2015 to 16.11.2017 (when she had prosecuted her two years M.Sc. Nursing Course) . She submitted a representation on 04.05.2018 . On 04.09.2018 , vide order No. 22805, the State Government granted her study leave for the aforesaid period of two years, but directed that the two years period will be treated as extra ordinary leave (in short "E.O.L" ), which meant that no salary will be paid to her for the said period. It was indicated in the said letter that the said two years period will be counted towards her increments under Rule 79 (b)(2) of the Odisha Service Code. The Respondent filed the original application W.A. No.2072 of 2023 Page 2 of 13 stating that vide order dated 07.11.2016 and 21.12.2016 , the State Government had sanctioned study leave with salary to other in-service candidates who had pursued M.Sc. Nursing Course in earlier academic Sessions, but illegally and arbitrarily, did not extend the same benefit to her which amounts to discrimination , for which she had filed a representation on 02.01.2019 before the State Government , on which no decision has been taken. Since the applicant had fulfilled all the terms and conditions for grant of study leave with PA and DA as admissible to her, the period from 17.11.2015 to 16.11.2017 should have been treated as study leave with PA and DA as admissible to her. She was entitled to the same in view of the Rule 179 and 181 of the Odisha Service Code.
After abolition of the Orissa Administrative Tribunal OA No.1059 (C) of 2019 was transferred to this High Court and renumbered as WPC(OAC) No. 1059 of 2019 .
CASE OF THE APPELLANTS (OPP. PARTIES IN THE WRIT PETITION)
4. A counter affidavit has been filed in WPC (OAC) No. 1059 of 2019 on behalf of the Appellants stating that as per Resolution No. 34929 dated 21.12.2013 of the Govt. in H & F.W Department, ten in- service B.Sc Nursing personnel had been allowed to avail study leave W.A. No.2072 of 2023 Page 3 of 13 to undergo M.Sc Nursing Course for a maximum period of two years subject to condition that they must have completed five years of service prior to undergoing M.Sc Nursing Course . The petitioner had been selected as a contractual State Government employee. As permission had not been granted to her by the Superintendent, she had filed W.P.(C) No. 19278 of 2015 in the High Court . She was granted NOC pursuant to interim order dated 26.10.2015 passed by this Court in W.P.(C) No. 19278 of 2015. By that time, she had completed six years of contractual service, but her service had not been regularized by the Government. She went on 16.11.2015 to join M.Sc. Nursing Course for the Academic Session 2015-17 at her own cost by availing leave as admissible as per Rules in vogue at that time , as she had not completed 5 years of Government service. She had agreed with the above terms and condition of Government and joined the M.Sc. Nursing Course on 17.11.2015 and completed her training course on 16.11.2017. While she was pursuing the course, her service was regularized with effect from 18.02.2015 vide order no. 10702 dated 27.07.2017 . On 13.04.2018, W.P.(C) No. 19278 of 2015 filed by the petitioner was dismissed as infructuous , granting her liberty to approach the authority if she had any grievance related to her period of study leave clarifying that that it had not expressed any opinion on the merit of the case. The W.A. No.2072 of 2023 Page 4 of 13 petitioner had represented to the Director of Nursing, Odisha along with the copy of the judgment dated 13.04.2018 to consider her representation. Pursuant to request of the Director , the Superintendent, submitted the proposal for sanction of study leave in favour of the petitioner vide office letter No. 6658 dated 22.05.2018 which was submitted to Government vide Director of Nursing Odisha , letter no. 1604 dated 16.07.2018 alongwith other proposals. After examination of the proposal by the Government , the study leave period of the nursing personnel were sanctioned as E.O.L. (Extra Ordinary Leave) on 04.09.2018 as none of them had completed five years of regular service before undergoing M.Sc. Nursing Course. It was also stated in the counter that as per Rule 180 of the Odisha Service Code „study leave will not ordinarily be granted to Government Servants of less than 5 years service‟ and that study leave will be sanctioned by the Government from time to time in favour of the nursing personnel who have completed five years of regular Government Service excluding the contractual period of service. In the instant case, Government has sanctioned the study leave period to the petitioner with effect from 17.11.2015 to 16.11.2017 as Extra Ordinary leave vide order no. 22805/H dated 04.09.2018 taking into account the period of regular service i.e. 8 months 29 days. The claim of the petitioner that she has W.A. No.2072 of 2023 Page 5 of 13 completed six years of regular service prior to undergoing M.Sc. Nursing Course was denied.. It was also stated that Government Order No. 31728/H dated 20.12.2014 was not applicable to the nursing personnel for undergoing M.Sc. Nursing Course and it was applicable to the Nursing personnel for undergoing Post Basic B.Sc. Nursing Course only. The Government has sanctioned the period as EOL vide order no. 22805 dated 04.09.2018 as she had not completed five years of Government service before undergoing M.Sc. Nursing Course . The claim of the petitioner for grant of study leave period with PA and DA for the period 17.11.2015 to 16.11.2017 was not tenable . JUDGMENT / ORDER PASSED IN WP ( C ) No. 19278 of 2015
5. The relevant portions of the order dated 13.04.2018 passed in WP( C) No. 19278 of 2015 , are extracted below :-
"Learned counsel for the petitioner, at the outset, has submitted that the grievance raised by the petitioner has been redressed and as such, he does not want to press this writ petition.However, he submits that since the petitioner has been given the study leave, she is now willing to make his claim before the authority for passing an order for continuity in service, since the same benefit has been extended in favour of the others.
Mr. B.P. Tripathy, learned Additional Government Advocate appearing for the State-opposite parties has submitted that the writ petition may be rendered to be infructuous as per submission of the learned counsel for the petitioner. However, if the petitioner is any W.A. No.2072 of 2023 Page 6 of 13 grievance, she may approach before the authority concerned. In view thereof, the writ petition is rendered to be infructuous. Accordingly, the writ petition is dismissed as infructuous. If the petitioner is having grievance related to counting of the period of study leave, she is at liberty to approach before the authority and if it is admissible, the authority shall take decision in accordance with law within eight weeks from the date of receipt of certified copy of this order.
It is made clear that this Court has not expressed any opinion on the merit of the case and it is upto the authority to take decision on its own."
ORDER OF THE LEARNED SINGLE JUDGE
6. Learned Single Judge allowed WPC (OAC) No. 1059 of 2019 and set aside the order dated 04.09.2018 under Annexure-6 passed by opposite party-authority and remitted the matter to Appellant No. 2 to look into the case of the petitioner and extend the benefit of study leave , during the period she was prosecuting her higher study as a regular employee, by granting regular pay and allowance as was granted to similarly situated persons, taking into consideration the notification dated 25.08.2020 under Annexure-12 issued by the Government of Odisha, Health and Family Welfare Department. ( emphasis supplied )
7. We have heard Mr. Saswat Das learned Additional Government Advocate for the Appellants and Mr. Sanjib Swain learned counsel for the Respondent and perused the WP (OAC) W.A. No.2072 of 2023 Page 7 of 13 application , the counter affidavit filed on behalf of the State , the affidavits filed by the Respondent in this Appeal as well as the written notes of submissions filed by the counsel .
SUBMISSIONS
8. Assailing the judgment of the learned Single Judge , Mr Saswat Das learned Additional Government Advocate, has submitted that the order dated 04.09.2018 treating the period the petitioner prosecuted M.Sc Nursing Course as extra ordinary leave , did not call for any interference as the Respondent did not stand on the same footing as the in-service nurses who have been allowed study leave and regular pay and allowances for the period they prosecuted the MSc. Course in nursing. The Respondent has been granted continuity of service and notional increments for the period . He further submits that Notification dated 25.08.2020 relied on by the Respondent cannot have retrospective effect as by that time it was issued , the Respondent had already taken leave to prosecute her course . He submits that as the cases of the nurses who have been allowed study leave and regular pay and allowances and with whom the Respondent claims parity , do not stand on the same footing as the Respondent , the impugned judgment calls for interference.
9. Mr Sanjib Swain learned counsel for the Respondent has W.A. No.2072 of 2023 Page 8 of 13 submitted that, as the Respondent had completed 5 years of regular service as a Staff Nurse by the time she proceeded for the course and many similarly placed Staff Nurses prior to her appointment and after her appointment have been granted study leave with pay for the period they prosecuted M.Sc course in nursing , she is also entitled for the same but she has been illegally discriminated against . So the learned Single Judge has rightly directed for re- consideration of her case and extending her the same benefits . He has submitted that under Rule 179 & 180 of Odisha Service Code and the clarification of State Government vide Notification dt.25.8.2020, she is entitled to study leave and regular pay and allowances for the period she pursued the M.Sc course in nursing as an in-service candidate. The stand of the Government that she had only served for only 8 months and 29 days in regular service when she prosecuted her M.Sc. course in nursing is illegal as her earlier service on contractual basis for six years has been ignored . She joined as a contractual staff nurse on 19.02.2009 and her service was regularized on 18.02.2015 after completion of six years contractual service .
He has submitted that the State Govt. in H & FW Dept. vide Notification dt.25.8.2020 has already clarified that the contractual service period of Staff Nurses those have already been regularised on W.A. No.2072 of 2023 Page 9 of 13 completion of 6 years contractual service. will be treated as Govt. service for the purpose of computation of 5 years of regular service under Rule - 180 of Odisha Service Code for grant of Study Leave in their favour. He has submitted that Smt. Sanghamitra Dash (w.e.f 18.02.2015 ) and one Smt. Banishree Pradhan (w.e.f 27.08.2015) whose contractual period of service were regularised along with the Respondent (w.e.f 18.02.2015) vide orders dated dt.27.07.2017, have been granted study leave with leave salary equal to Pay & D.A.vide Office Order dt.0l.11.2021 i.e. for 2 years period from 16.1.2020 to 15.1.2022 for prosecuting the M.Sc. course , before they had completed 5 years of service and prior to the Notification dt.25.08.2020. The Respondent has been discriminated against as her study leave period has been treated as E.O.L vide impugned order dt.04.9.2018 .
DISCUSSION
10. Smt. Sanghamitra Dash and Smt. Banishree Pradhan whose period of contractual service were regularised along with the Respondent on dt.27.07.2017, have proceeded for pursuing M.Sc course in nursing after order of regularization of their service had been passed . They have been granted study leave vide Office Order dt.0l.11.2021 i.e. for 2 years from 16.01.2020 to 15.01.2022. When W.A. No.2072 of 2023 Page 10 of 13 they proceeded for study leave , order had already been passed for regularizing their service and they pursued the course as Government servants .
11. In case of Miss Samapika Dehury , Mrs Laxmipruya Sen , Rashmi Behera and Nayana Samal whose cases have been relied on by the Respondent , it has not been mentioned if order had been passed for regularization of their service before they prosecuted the M.Sc. Course in nursing .The petitioner was working as contractual nurse when she went to prosecute the M.Sc. Course in nursing as order had not been passed for regularizing her service . She had been permitted to prosecute the M.Sc Course in nursing , pursuant to an interim order passed by this Court in WP ( C) No. 19278 of 2015 while she was still a contractual nurse and order had not been passed then for regularizing her service . From a perusal of Annexure H and I Series annexed to the counter affidavit filed by the Appellants in WP( OAC) No. 1059 of 2019 , we find that the names of three other staff nurses - Sangeeta Kumari Mishra , Sasmita Sethy and sasmita Pradhan had been proposed by the Director by letter No. 1604 dated 1.07.2018. While study leave has been granted to all four of them by the Government and the period directed to be counted under Rule- 79
(b) (2) of the Odisha Service Code towards increment , but the period W.A. No.2072 of 2023 Page 11 of 13 has been directed to be treated as EOL . We are therefore satisfied that the Respondent does not been discriminated against .
12. Perusal of the clarification of the State Government in Notification dated 25.8.2020 reveals that the past service of contractual nurses whose services have been regularized will be treated as Government service for purpose of computation of five years of regular service . But this cannot have retrospective effect . So the Respondent cannot derive any benefit from the same.
13. After hearing the learned counsel we are inclined to allow the IA for condonation of delay and the Writ Appeal .
The learned Single Judge while setting aside the order dated 04.09.2018 and remitting the matter for fresh consideration , has issued a positive direction to grant the Respondent regular pay and allowance as was granted to similarly situated persons taking into consideration the notification dated 25.08.2020 . While setting aside the impugned judgment and order, we we observe that in case , the benefit of study leave with pay and other benefits has been granted to any other contractual staff nurse for prosecuting M.Sc. Course in Nursing and in whose favour order of regularisation of service had not been passed before 24.08.2020 , the Respondent is at liberty to bring it to the notice of the Government for extending similar benefit to her. W.A. No.2072 of 2023 Page 12 of 13
CONCLUSION
14. In view of the above discussion, we are satisfied that notification dated 25.08.2020 will not be applicable to the Respondent, making her eligible to get study leave or regular pay and allowances for the period she was pursuing the M.Sc Course in Nursing.
15. In view of our earlier discussion, we are also satisfied that there has been no discrimination in the case of the Respondent, as she does not stand on the same footing as Banishree Pradhan and Sanghamitra Dash who have been granted study leave with other benefits.
16. The judgment dated 15.11.2022 passed by the learned Single Judge in WPC (OAC) No. 1059 of 2019 is therefore liable for interference and we set aside the same.
17. There shall not be any order as to costs.
(Savitri Ratho) Judge Chief Justice. I agree.
Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA (Chakradhari Sharan Singh) Designation: Senior Stenographer Reason: Authentication Chief Justice Location: Orissa High Court, Cuttack Date: 05-Feb-2025 21:25:18 Orissa High Court, Cuttack Dated 15th January, 2025/Sukanta W.A. No.2072 of 2023 Page 13 of 13