Orissa High Court
State Of Odisha vs Akhila Kumar Naik on 20 June, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No. 687 of 2022
1. State of Odisha, represented through its Additional Chief Secretary
to Government, Health & Family Welfare Department, Lokseva
Bhawan, Bhubaneswar, Dist- Khurda.
2. Director, Health Services, Odisha, Heads of Department Building,
Unit-V, Bhubaneswar, Dist- Khurda
3. Chief District Medical & Public Health, Officer, Sundargarh,
At/P.O./Dist- Sundargarh
...Appellants
-Versus-
1. Akhila Kumar Naik, S/o. Dayanidhi Naik, resident of Telijore, PS-
Talsara, Dist- Sundargarh at present serving as Laboratory Technician
on contractual basis under CHC, Subdega, under NHM, Dist-
Sundargarh.
2. Prakash Kumar Swain, S/o. Tribikram Swain resident of Bargaon,
Dist- Sundargarh at present serving as Laboratory Technician on
contractual basis under CHC, Bargaon, under NHM, Dist- Sundargarh
3. Manoj Kumar Barik, S/o. Muralidhar Barik, resident of At/P.O.
Kinijirkela, Dist- Sundergarh at present serving as Laboratory
Technician on contractual basis under CDMO, Sundargarh NHM,
Dist.-Sundargarh.
...Respondents
W.A. No.687 of 2022 Page 1 of 41
For the Appellants: Mr. M. K. Khuntia, Addl. Government
Advocate
For Respondents No.1 to 3: Mr. Krishna Chandra Sahu, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SIBO SANKAR MISHRA
JUDGMENT
20.06.2024 Chakradhari Sharan Singh, CJ.
1. The State of Odisha has put to challenge, in the present intra- Court appeal, a judgment and order dated 11.12.2021 passed in W.P.(C) No.33301 of 2020 whereby the said writ petition has been allowed by a learned Single Judge of this Court with a direction to the appellants to take steps for regularization of the services of the respondents within three months from the date of communication of the impugned judgment. There were three petitioners in the writ petition, who are the respondents in the present appeal.
2. The operation of the impugned order passed by the learned Single Judge came to be stayed by a co-ordinate Bench of this Court by an order dated 19.9.2022, passed in the present intra-Court appeal.
3. We have heard Mr. M. K. Khuntia, learned Additional Government Advocate („AGA‟ in short) on behalf of the appellants and W.A. No.687 of 2022 Page 2 of 41 Mr. Krushna Chandra Sahu, learned counsel on behalf of the respondents.
4. The facts leading to filing of the writ petition are that the respondents No.1, 2 and 3 (the writ petitioners) were initially appointed as Laboratory Technicians on 12.09.2007, 11.09.2007 and 01.11.2013 respectively on contractual basis. They asserted in the writ petition that they possessed qualification of Diploma in Medical Laboratory Technician („DMLT‟ in short) and their appointment on contractual basis was pursuant to an advertisement after following a process of recruitment against the sanctioned posts created by Health and Family Welfare Department. They were appointed under the administrative control of Chief District Medical and Public Health Officer („CDMO‟ in short) Sundargarh and while they were continuing as such, the Health and Family Welfare Department, Odisha issued a resolution dated 13.05.2013 stating that services of contractual Laboratory Technicians, who were working under different health schemes/societies of the Health and Family Welfare Department and had completed six years as such, would be regularized by converting the contractual posts into regular posts. The resolution further stipulated that past service of the contractual Laboratory Technicians working under various projects/ schemes shall also be counted for computation of six years at the time of regularization after their absorption against the post of Laboratory Technician under general health care. In terms of the said resolution dated 13.05.2015, several regular posts of Laboratory Technician were filled up by absorbing the W.A. No.687 of 2022 Page 3 of 41 Laboratory Assistants on completion of six years of contractual service, following the said resolution dated 13.05.2013. The petitioners also approached the authorities for their regular absorption against the regular vacant posts but the vacancies were filled by appointing fresh candidates from open market, and thus, the State did not take any step to regularize the services of the writ petitioners. In the meanwhile, in exercise of the power conferred by the proviso to Article 309 of the Constitution of India, the State Government framed Odisha Laboratory Technician Service (Methods of Recruitment and Conditions of Service) Rules, 2019 („Rules of 2019‟ in short) for regulating the method of recruitment and conditions of service of persons appointed to the Odisha Laboratory Technician service in the medical institutions of the State. Rule 4 of the said Rules of 2019 provides as under:-
"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:W.A. No.687 of 2022 Page 4 of 41
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 OSH&FW Society till closure of the project, retirement or disengagement, whichever is earlier: (2) On their regularization, 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. Rule 4 of the Rules of 2019, thus, prescribes that a contractual Laboratory Technician, yet to complete six years of service and having eligibility criteria under rule 5 of the Rules of 2019, shall be „deemed‟ to be contractual Government employees and shall be regularized upon six years of satisfactory completion of service. It further stipulates that the contractual Laboratory Technicians, who do not meet the eligibility criteria in terms of rule 5, shall continue as such till closure of the project/retirement/disengagement, whichever is earlier.
6. It is not in dispute that the qualification which the respondents possess is neither recognized by All India Council of Technical Education („AICTE‟ in short) nor by the State of Odisha and, therefore, they were not benefited by the scheme of regularization contemplated under rules 4 and 5 of the Rules of 2019. Rule 5 of the Rules of 2019 reads as under:-
W.A. No.687 of 2022 Page 5 of 41"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."
(Underscored for emphasis)
7. In the light of the provisions under the rules, the CDMOs were asked to furnish the service particulars of such paramedics who were working in different health institutions, either engaged against regular vacancies or against contractual positions under different schemes/programmes of the Health Department. Committees were constituted, comprising officials of the respective districts for collection, compilation and submissions of information to be placed before the respective Collectors of the Districts for approval. Based on the recommendation of High Power Committee („HPC‟ in short), the State Government issued an order dated 17.11.2020 for regularization/induction of different categories of Paramedic contractual employees, including W.A. No.687 of 2022 Page 6 of 41 Laboratory Technicians. The names of the respondents did not figure in the list of the employees regularized by applying Rule 5 of the Rules of 2019, apparently because the respondents did not have the qualification recognized by AICTE.
8. The respondents asserted in the writ petition that at the time of their recruitment, due to non-availability of sufficient DMLT pass candidates from three Government medical colleges, the State Government had recruited such candidates who had passed from such private institutions which did not have the approval by the AICTE. Accordingly, on the basis of their applications, the selection was done whereafter the respondents had been appointed and were serving for more than six years without any interruption. They pleaded that after utilizing their services for more than a decade, imposition of condition that they should have obtained qualification from such private institutions which had AICTE approval is un-reasonable. The requirement that the candidates should possess requisite qualification from an institution with AICTE approval came to be incorporated subsequent to their appointment on contractual basis and, therefore, the same should not have been made applicable in their cases.
9. The respondents asserted in the writ petition that due to non-availability of DMLT pass candidates from three Government medical colleges of the State, which were the only AICTE W.A. No.687 of 2022 Page 7 of 41 approved institutions, a request was made by the Director Health Services, Odisha to the Director General of TB, Government of India to relax the selection criteria for recruitment to the post of Lab Technician. It was suggested that the essential qualification should be 10 + 2 in Science with Diploma or Certificate course in Medical Laboratory Technology or its equivalent course, and further, those who had completed DMLT course after matriculation or equivalent might also be considered. The said recommendation was approved by the Government of India. Thereafter the Director, Health Services, Government of Odisha issued instructions to all CDMOs to fill up the posts of contractual Senior Tuberculosis Laboratory Supervisor (STLS) and LT under Revised National Tuberculosis Control Programme (RNTCP) as per the above criteria, thereby allowing candidates with Diploma or Certificate qualification in Medical Laboratory Technology or its equivalent from private institutions to be appointed as Laboratory Technician, irrespective of the fact whether such institutions had AICTE approval or not. Accordingly, taking into account the selection criteria for the post of Laboratory Technician under different CDMOs as well as the erstwhile National Rural Health Mission („NRHM‟ in short), the authorities recruited such eligible candidates who had the qualification of +2 Science with DMLT qualification from any Government or private institution, irrespective of approval of such institution by the AICTE. The respondents further pleaded that earlier also, the issue of denial of bringing into regular establishment of W.A. No.687 of 2022 Page 8 of 41 Laboratory Technicians working on contractual basis on the ground that they had DMLT qualification from private institutions having no approval by AICTE had surfaced. The issue was taken to the Odisha Administrative Tribunal (OAT) by the aggrieved persons, giving rise to OA No. 4179(C) of 2014 and batch of cases. After hearing of the case at length, the OAT had allowed the original applications directing the State authorities to regularize the services of contractual employees, discarding the plea of absence of approval of the AICTE of such private institutions. The said decision of OAT in OA No.4179(C) of 2014, which related to Nuapada District of the State of Odisha, has been implemented by the State of Odisha, without any challenge to the said decision. The respondents pleaded in the writ petition that the issue having already been decided by the OAT and not challenged before the higher Court, embargo of the same nature should not have been imposed against the respondents, who had served for more than a decade. Similarly, in case of Angul District, the OAT by an order passed in OA No.3731(C) of 2013 had directed for regular absorption of similarly circumstanced Laboratory Technicians who had obtained qualification from such institutions which had no AICTE approval. The decision of the OAT was challenged before this Court in W.P.(C) No.14933 of 2018 by the State of Odisha which was dismissed. A challenge to the order of this Court before the Supreme Court was also not sustained with the dismissal of SLP (Civil) Diary No.10687 of 2019) by an order dated 07.05.2019. It W.A. No.687 of 2022 Page 9 of 41 was accordingly the case of the respondents‟ before the writ court that once the issue decided by the OAT attained its finality to the effect that for regularization against the post of Laboratory Technicians, a qualification obtained from an institution, even if not approved by the AICTE, was a valid qualification, the incorporation of eligibility condition that a candidate must possess qualification from an institution approved by the AICTE is wholly arbitrary and unreasonable.
10. Based on the aforesaid pleadings, the respondents challenged the order dated 17.11.2020 to the extent the same related to non-regularisation of their services. They also sought a direction to the State of Odisha for regularization of their services keeping in view the provisions of statutory requirement and if necessary by invoking the relaxation provision under rule 20 of the Rules of 2019, in the writ petition.
11. Rule 20 of the Rules of 2019 reads as under:
"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."
12. It would be pertinent to mention here that the respondents heavily relied in their writ petition on the decisions of the OAT rendered before coming into force of the Rules of 2019, we make W.A. No.687 of 2022 Page 10 of 41 it clear at this stage itself that the issues decided in OA No.4179(C) of 2014, OA No.3731(C) of 2013 and W.P.(C) No.14933 of 2018 have no application for the present dispute which has arisen because of the framing of the Rules of 2019 by the State of Odisha in exercise of power under Article 309 of the Constitution of India. The said statutory provision under Rules 4 and 5 of the Rules of 2019 were never challenged by the writ petitioners.
13. A counter affidavit was filed on behalf of the appellants in the writ petition, wherein it was specifically denied that the respondents were appointed against any sanctioned post, rather they were appointed under the scheme of NRHM. It was stated in the counter affidavit that the State of Odisha in General Administrative Department vide its resolution No. 26108/GAD dated 17.09.2013 have made a policy regarding regular appointment of two categories of contractual Group-C and Group- D employees appointed under the State Government namely (I) Contractual appointments/ engagements made against contractual posts created with the concurrence of Finance Department on abolition of the corresponding regular posts and (II) contractual appointments/ engagements made against contractual posts created with the concurrence of Finance Department without abolition of any corresponding regular post in case of new offices or for strengthening of the existing offices/services, following the recruitment procedure prescribed for the corresponding regular W.A. No.687 of 2022 Page 11 of 41 posts. The principle of reservation of posts and services for different categories of persons decided by State Government from time to time was decided to be applied. In case of the engagement of these respondents, no reservation principle was followed. The State-appellants, in their counter affidavit, also relied on a resolution dated 16.01.2014 of the General Administrative Department, it was indicated wherein that the contractual employees, who had been recruited without following reservation rules, were not eligible for regularization. The said resolution was notified in the official Gazette of Odisha on 21.01.2014. The relevant portion of the said resolution was quoted in the counter affidavit as under:
"11. xxx xxx xxx
1. As per General Administration Department Resolution No. 26108/Gen., Dated the 17th September, 2013, the following are the mandatory eligibility conditionalities for regularization of contractual appointees/engagements.
(i) Contractual appointments/engagements must have been made against contractual posts created with the concurrence of Finance Department on abolition of the corresponding regular posts or contractual posts created with the concurrence of Finance Department without abolition of any corresponding regular post in case of new offices or for strengthening of the existing offices/services,
(ii) Such Contractual appointments/ engagements must have been made following the recruitment procedure prescribed for the corresponding regular posts, and W.A. No.687 of 2022 Page 12 of 41
(iii) Principle of reservation of Posts must have been followed in case of such Contractual appointments/ engagements.
In other words, no contractual appointee shall be eligible for regular appointment as per the aforesaid Resolution unless the mandatory eligibility conditionalities described above are fulfilled."
14. It is noteworthy that the respondents in their pleading in the writ petition had relied on the policy decision of the Finance Department dated 13.05.2013 (Annexure-4), which had provided that such contractual Laboratory Technicians working under the different health schemes/societies of Health and Family Welfare Department who had completed six years of contractual service shall be absorbed by converting the contractual posts to regular one. A specific plea was taken in the counter affidavit that the applicability of the resolution dated 13.05.2013 lost its force upon the subsequent resolution published in the Odisha Gazette on 21.01.2014 as noted above. It was reiterated in the counter affidavit that the respondents had not been engaged against any regular vacant post rather they were engaged as Laboratory Technicians under NRHM scheme. The appellants took specific plea that induction of contractual Laboratory Technicians working under Societies/Scheme as Senior Tuberculosis Laboratory Supervisor („STLS‟ in short) into regular Government employment or regular contractual Government employment is subject to the fulfillment of the eligibility criteria as laid down in rules 4, 5 and 9 of the Cadre Rules 2019. Referring to paragraphs W.A. No.687 of 2022 Page 13 of 41 3 of sub-rule (1) of rule 4 of the Cadre Rules of 2019, the appellants took a plea that those contractual Laboratory Technicians, who did not meet the eligibility criteria, as mentioned under Rule 5, would continue as such in Odisha State Health and Family Welfare Society till closure of the project, or retirement or disengagement of the employee, whichever is earlier. The appellants also brought on record an order passed by a learned Single Judge of this Court dated 20.03.2008 in W.P.(C) No.3816 of 2008 (Rakesh Kumar Sethy and another v. State of Orissa and others). In the said writ petition, the petitioners had approached this Court assailing the decision taken in the meeting of a committee on 12.12.2007 for filling up the vacancies of Laboratory Technicians in the State of Odisha with an apprehension that pursuant to the said decision, such students who had qualification from private medical colleges, not approved or recognized by the AICTE, would also be considered by the State Government for the post of Laboratory Technicians. After noticing the materials on record, following order was passed in W.P.(C) No.3816 of 2008:-
"2. Heard learned counsel for the petitioners and learned counsel for the State at length. Perused the materials available on record. Perusal of the letter dated 28.3.2007 (Annexure-3) issued by the Special Secretary to Government, Health and Family Welfare Department clearly reveals that the Government had taken a decision to the effect that the cases of candidates passing from Private Medical Colleges without AICTE recognition would not be entertained. Thus this Court feels that the apprehension of the W.A. No.687 of 2022 Page 14 of 41 petitioners is premature. However, it is made clear that the posts of Laboratory Technicians shall be filled up only by the candidates who have passed from the institutions, duly approved or recognized by AICTE.
This Writ Petition is accordingly disposed of."
(Underscored for emphasis)
15. It was also the specific stand of the appellants that the Government of Odisha in the Health and Family Welfare Department had by letter No.-9163/H dated 28.03.2007 clarified that recruitment to the post of Laboratory Technician (Path) and Junior Radiographer is to be done only of such candidates, who had passed out from AICTE recognized institutions. Thus the principle of the State of not taking candidates passed out from private institutions without AICTE recognition was in vogue since 28.03.2007 itself, in the matter of recruitment to Laboratory Technicians. Referring to the pleadings made in the writ petition, it was stated in the counter affidavit that by the communication dated 14.08.2005 addressed by the Directorate of Health Services, Odisha, a clarification from the Government of India regarding revision of selection criteria of STLS and LT was sought with a proposal to allow relaxation in +2 Science qualification for Schemes/Societies to the effect that the candidates who had obtained DMLT course from three medical colleges of the State after matriculation or equivalent would be considered for the post of Laboratory Technician under Revised National Tuberculosis Control Programme (RNTCP). After receiving the clarification W.A. No.687 of 2022 Page 15 of 41 from the Government of India vide letter dated 19.08.2005, the State Government prescribed the qualification for Laboratory Technician under RNTCP to the effect that one must have possessed 10 + 2 Science with Diploma or Certified course in Medical Laboratory Technician and further that the candidates who had Matriculation with Diploma in Medical Laboratory Technician course from Medical Colleges of Odisha were also to be considered.
16. A specific stand was taken that engagement of Laboratory Technicians having Diploma or certified course in Medical Laboratory Technology or its equivalent qualification passed out from unrecognized Institutions was made in Scheme or Society, not in government establishment, and that the respondents had been continuing in the Scheme/Society.
17. It was also pleaded in the counter affidavit that the sphere of work of a Laboratory Technician appointed under regular government establishment was different from one engaged in the Scheme/Society. There is a promotional hierarchy in the Cadre of Laboratory Technician. After promotion under Cadre Rule, 2019, a Senior Laboratory Technician in the regular government establishment can be posted in different periphery Hospitals and in Medical College & Hospitals of the State as well, where the work load is more. Presently, additional services such as high end pathological tests are also provided to the patients. District Head W.A. No.687 of 2022 Page 16 of 41 Quarter Hospitals also offer 64 types of tests to the patients. The treatment of a patient depends on the accuracy of the reporting of data by the Laboratory Technician. A Laboratory Technician‟s role in diagnosis of illness of a patient is vital and important for treatment as his/her performance includes the clinical laboratory tests in Haematology, Microbiology and Immunology. A Laboratory Technician has to collect the samples, handle them, have them tested, collect and interpret the data, maintain accurate records and report data. Laboratory Technicians possess the knowledge of critical values. Besides, Laboratory Technicians have to collect blood or tissue samples from patients, operate sophisticated equipment and instruments to identify the results, test and analyze body fluids such as blood and urine, and also analyze the samples for toxic components, examine cells and determine normal and abnormal findings, collect blood and cross match for transfusion purposes and perform blood counts, prepare tissue samples for examination by Pathologists. On the other hand, the Laboratory Technicians posted in Schemes/Societies passed out from the un-recognized institutions have limited sphere of work.
18. In the rejoinder to the counter affidavit, the respondents stated that the petitioners were held to be eligible having requisites qualification earlier for the purpose of their recruitment under NRHM, Odisha based on the certificates of educational qualification, which they had enclosed with their applications.
W.A. No.687 of 2022 Page 17 of 41During the recruitment process, no objection was raised relating to the said AICTE approval of the institutions. Even the advertisement (Annexure-1 to the writ petition) did not require approval of AICTE of an institution for the qualification to be valid for the said purpose. It has also been stated that under the NRHM (now NHM), not only these petitioners are working but other persons are also working in different schematic posts, including the Laboratory Technicians recommended for regularization by the HPC, out of whom, some have been regularized and some are in the process of regularization. In such circumstance, raising the issue of the respondents‟ engagement in NHM scheme, for denying them the benefit of regularization only for the petitioners, is unsustainable. The respondents further stated, the resolution dated 17.09.2013 and 16.01.2014 published in the official Gazette were not applicable for regularization of the services of the respondents who were working in different schematic posts based on a separate resolution issued by the Health and Family Welfare Department dated 13.05.2013. It is also their case that during the year of recruitment in 2007 for contractual appointment of the respondents so also other paramedic employees, applicability of reservation policy was not required which can be appreciated from the fact that in the advertisement (Annexure-1) there was no mention of any reservation policy. Only in the year 2014, the NHM, by way of an executive instruction, has applied the OVR Act in case of appointment in contractual schematic posts, as the ORV did not W.A. No.687 of 2022 Page 18 of 41 prescribe for its applicability in contractual appointments at the relevant time. They also pleaded in their rejoinder affidavit, that prior to introduction of new recruitment Rule in the year 2019, there was no such provision that only candidates passing from the Government Institutions with AICTE approval would be appointed as Lab Technicians. Due to non-availability of candidates passing from the Government medical colleges in comparison to vacancy of posts of Lab Technicians, the said letter dated 14.08.2005 was written to the Government of India. The respondents reiterated their plea in their rejoinder that in view of the decision of the OAT for regularization of the services of the Laboratory Technicians which has already been implemented, it was not permissible for the State to have introduced a provision like Rules 4 and 5 of the Rules of 2019 that services of only such contractual employees shall be regularized who have requisite qualification from institutions duly recognized by AICTE.
19. Learned Single Judge after having noticed the pleadings on record and the submissions advanced on behalf of the parties, has recorded his finding in paragraph-39 of the impugned judgment that the respondents herein possessed requisite qualification and fulfilled the eligibility criteria by completing six years of contractual service and otherwise satisfied the requirements of the Rules of 2019. Therefore, they could not have been denied the benefit of regularization on completion of six years merely because they did not satisfy the criteria of requisition W.A. No.687 of 2022 Page 19 of 41 of qualification from institutions approved by the AICTE. Learned Single Judge has accordingly declared the action of the State as arbitrary, unreasonable and contrary to the provisions of law, being violative of Article 14 of the Constitution of India. Accordingly, the decision of the High Power Committee dated 16.11.2020 as well as consequential letter dated 17.11.2020 to the extent, the same related to refusal to regularize the services of the respondents on the plea that they had passed from an institution which was not approved by AICTE, has been held to be unsustainable by the learned Single Judge. Learned Single Judge, for the said reason, quashed the said minutes of the meeting and the consequential letter and directed the opposite parties to take steps for regularization of services of the respondents like other contractual paramedic employees in consonance with the Rules of 2019, specifically applying Rule 20 thereof.
20. Learned Single Judge reached the above noted conclusion and issued direction on the following reasoning:
(i) When the respondents were appointed on contractual basis, there was no prescription that they must have acquired the requisite qualification from an institution approved by the AICTE.
They were selected by following due process of selection and therefore, right had already accrued in their favour after completion of six years of service, for regularization.
W.A. No.687 of 2022 Page 20 of 41(ii) By operation of an order dated 20.07.2016 passed by the OAT in OA No.4179 (C) of 2014, services of some of the Laboratory Technicians who were engaged on contractual basis were regularized on 10.08.2016.
(iii) Further, in case of one Narayan Sahu, the OAT had directed for regularization of his service in OA No.3731 (C) of 2013 disposed of on 09.01.2017. The same having been affirmed by this Court and the Supreme Court with the dismissal of writ petition and in limine dismissal of SLP, his service was regularized.
(iv) Learned Single Judge held that the cases of these respondents stood on the same footing as that of the applicants of OA Nos.4179 (C) of 2014 and 3731 (C) of 2013, whose services were regularized under the orders passed by the Tribunal.
(v) It was indicated in the resolution issued by the Government of Odisha in Health and Family Welfare Department on 13.05.2013, that the Government was going to formulate a policy on regularization of services of contractual Laboratory Technicians. Relying on the said resolution dated 13.05.2013, learned Single Judge concluded that by operation of the said resolution dated 13.05.2013, the respondents‟ services deserved to be regularized.
21. Learned Single Judge referred to the Schedule to the Rules of 2019, column-4 of which reads as under:
W.A. No.687 of 2022 Page 21 of 41Minimum qualification for direct recruitment 4 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
22. Interpreting the language used in column-4 of the schedule as above, learned Single Judge concluded that by putting the word "or" in between "any other private institutions recognized by Government of Odisha" 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 private institution recognized by the Government of Odisha "or" All India Council of Technical Education. In such view of the matter, acquisition of qualification from institution approved by all India Council of Technical Education is not a condition precedent for regularization of all contractual Laboratory Technicians, engaged prior to the commencement of the Rules of 2019.
W.A. No.687 of 2022 Page 22 of 4123. By virtue of Rule-4 (A) (1), on the date of commencement of the Rules, all contractual Laboratory Technician, who had been duly recruited by the concerned Societies/Schemes and had completed six years of satisfactory contractual service, shall be deemed to be regularized, the learned Single Judge held.
24. Mr. M.K. Khuntia, learned Additional Government Advocate assailing the impugned judgment and order of the learned Single Judge has submitted that the cases for regularization of the persons working on contractual basis as Laboratory Technician were under consideration by the appellants in accordance with the provisions under Rules 4 and 5 of the Rules of 2019. Rule 4 of the said Rules postulates the conditions for taking over of existing Laboratory Technicians which provides that all contractual Laboratory Technicians who have been recruited by concerned societies/schemes and have completed six years of contractual service shall be deemed to be regular government employees as one time measure, which is however subject to the eligibility criteria prescribed under Rule-5. Rule-5 prescribes the modalities for induction of Laboratory Technicians into the cadre and prescribes that the Laboratory Technicians, Senior TB Laboratory Supervisor who have completed or are yet to complete six years of satisfactory contractual service under the Society/Scheme, shall be deemed to have been inducted into the cadre subject to the condition that they possess minimum educational qualification and eligibility criteria as per Rule-9 at W.A. No.687 of 2022 Page 23 of 41 the time of engagement under the Society/Scheme. Secondly, they were selected through open and transparent recruitment process. Thirdly, while inducting, the prevalent reservation principles as in Rule -7 of the said Rules shall be followed. He submits that minimum educational qualification has been laid down under Rule 9 (v) as mentioned in column-4 of the Schedule. These contesting respondents have not acquired the Diploma in Medical Laboratory Technology from any Government Medical College and Hospital of the State or any other private institutions recognized by the Government of Odisha or AICTE. He has submitted that the cases of the respondents were rightly not considered for regularization under Rule-4 read with Rule-5 of the Rules of 2019 since they did not fulfill the requisite minimum educational qualification. He has further argued that earlier vide notification dated 05.10.2006, the Government of Odisha in Health and Family Welfare Department had issued instructions regarding requisite qualification for Laboratory Technicians (Path, Mal) and Radiographer. It was prescribed in the said notification that vacancies of laboratory technicians could be filled up by the candidates who had passed out from recognized private institutions and had registered their names in the respective Boards only in case that no candidates passed out from Government Medical Colleges were available. Subsequently, the said notification was modified on 28.03.2007 wherein it was specifically prescribed that the vacancies in respect of Laboratory Technicians (Path) could be filled up from amongst the candidates W.A. No.687 of 2022 Page 24 of 41 who had passed out from AICTE recognized institutions only and that the cases of candidates passed out from the private institutions without AICTE recognition would not be entertained. He has placed heavy reliance on an order passed by the learned Single Judge of this Court dated 20.03.2008 whereby it was directed that the post of Laboratory Technician should be filled up only by the candidates, passed out from the institutions duly approved or recognized by AICTE.
25. Mr. Khuntia, has submitted that in order to fulfill the eligibility condition for application of Rules 4 and 5 of the Rules of 2019, a candidate must have passed either from a Government Medical College and Hospital of the State or any other private institution recognized by the Government of Odisha or AICTE. The documents/certificates appended to the writ petition clearly show that the institutions from which the respondents had pursued their Diploma in Medical Laboratory Technician course, were neither recognized by the Government of Odisha nor AICTE. In such view of the matter, the direction issued by the learned Single Judge for regularization of the services of the respondents, who are ineligible, is contrary to law. Referring to the orders passed by the OAT dated 20.07.2016 and subsequent order passed by this Court affirming the order of the OAT directing for regularization of the services of such contractual Laboratory Technicians who had not pursued their diploma courses from institutions approved by the AICTE, he has submitted that the said orders were passed W.A. No.687 of 2022 Page 25 of 41 before coming into force of the Rules of 2019 with effect from 13.03.2019 and was not the subject matter before the OAT and therefore, such decision of the OAT having been not interfered with by this Court as well as by the Supreme Court is of no assistance for the respondents‟ claim of their regularization of services by invoking Rules 4 and 5 of the Rules of 2019. He has submitted that the impugned order passed by the learned Single Judge is unsustainable and deserves interference by this Court.
26. Mr. Sahu, learned counsel for the respondents defending the impugned judgment passed by the learned Single Judge, has submitted that the respondents fulfilled the qualification of having passed +2 examination from Council of Higher Secondary Education, Odisha and have also passed Diploma in Medical Laboratory Technology from private "recognized" institutions and therefore they fulfill the eligibility conditions enumerated under Column-4 of the Schedule appended to the Rules of 2019 which has been duly taken note of by the learned Single Judge. He has further argued that taking recourse to Rule 20 of the Rules of 2019, the appellants ought to have relaxed the eligibility condition since it was necessary in public interest. It has been contended that even assuming for the sake of argument, if the requisite qualification as provided under Column-4 of the Schedule appended to the Rules is taken to DMLT from an institution having approval/recognition of the AICTE or State Government of Odisha, taking into consideration long standing experience and W.A. No.687 of 2022 Page 26 of 41 considerable period of service of the respondents, it is a fit case where the relaxation clause as provided under Rule 20 of the Rules of 2019 should be invoked. He adds by submitting that in similar circumstance, even after coming into force the Rules of 2019, services of certain Laboratory Technicians have been regularized. He has argued that it is impermissible for the appellants to discriminate by adopting the method of pick and choose in the matter of regularization of services. He has made submissions to the effect that the contractual services of several persons without having requisite qualification have been regularized by an order dated 03.03.2008 issued by the Directorate of Health Services. He has reiterated the plea as was taken in the writ petition, that pursuant to the order passed by the OAT in OA 4179 (C) of 2014 and batch of cases, services of many Laboratories Technicians working on contractual basis have been regularized. He has also argued that on 08.03.2019, a set of six statutory requirement rules were framed by the Health and Family Welfare Department in respect of induction/regularization of different categories of paramedical employees such as Laboratory Technician, Radiographer, Pharmacist, Staff Nurse, Multipurpose Health Worker (Male) and Multipurpose Health Worker (Female) who were working in different schematic posts on contractual basis since long. It is his submission that only for induction against the post of Laboratory Technician, the recruitment criteria as per Rule 9 has been taken, which is not the case in rest of the five Rules framed on 08.03.2019. Such action W.A. No.687 of 2022 Page 27 of 41 on the part of the Government is discriminatory and thus violative of Articles 14 and 16 of the Constitution. It has also been argued that relaxation has been allowed in the matter of fresh recruitment as per Rule 20 of the Rules of 2019. He has relied on the Supreme Court‟s decision in case of Bhagwati Prasad v. Delhi State Mineral Development Corporation (AIR 1990 SC 371) to contend that if at the time of initial appointment, one does not have requisite qualification and if he has been allowed to work for a longer period of time, in that case, his case for regularization cannot be denied. Reliance has also been placed on Supreme Court‟s decision in case of Ashok Kumar Upal v. State of J & K (AIR 1998 SC 2812) to contend that if on implementation of Rule, it causes hardship to a group/class of employees then the Government may relax the provisions of the Rule in order to appoint eligible/meritorious appointees in the public interest. Reliance has also been placed on Supreme Court‟s decision in case of State of Karnataka v. C. Lalitha, (2006) 2 SCC 747 and State of Uttar Pradesh v. Arvind Kumar Srivastava, (2015) 1 SCC 347 to contend that if similar benefit has been granted to one set of employees, the same benefit ought to be extended to other similarly situated employees irrespective of the fact, whether they had approached the Court or not. He has accordingly submitted that taking into account all the facts and circumstances by duly interpreting the provisions under the Rules of 2019, learned Single Judge has rightly issued the direction for regularization of W.A. No.687 of 2022 Page 28 of 41 the services of the respondents, which does not require any interference in the present intra-Court appeal. Discussion
27. We have carefully gone through the pleadings of the writ petition as well as other materials on record. We have gone through the impugned judgment and order passed by the learned Single Judge and have given our thoughtful consideration to the rival submissions advanced on behalf of the parties as noted above. There is no dispute on the factual aspect that the respondents do not possess the requisite qualification for the post of Laboratory Technician from an institution which is recognized either by the State Government or AICTE. The certificates of the respondents have been brought on record to the writ petition by way of Annexure-2 series. On bare perusal of the said certificates, it is patent that these institutions have no recognition/ affiliation/ approval at all by any authority/statutory body.
28. Further, this Court‟s order dated 20.03.2008 passed by a learned Single Judge of this Court in W.P.(C) No.3816 of 2008 as noted above cannot be overlooked wherein it was made clear that the post of Laboratory Technician would be filled up only by the candidates who have passed from the institutions duly approved or recognized by AICTE.
29. Be that as it may, in exercise of power under Article 309 of the Constitution of India, the State of Odisha framed the Rules W.A. No.687 of 2022 Page 29 of 41 of 2019 for regulating methods of recruitment and conditions of service of persons appointed to Odisha Laboratory Technician Service in the medical institutions of the State. The said Rules make provision for direct recruitment under Chapter II. However, by way of one time measure, the said Rules contain a provision for taking over of all contractual Laboratory Technicians upon completion of six years of satisfactory contractual service, by a deeming provision, to regular establishment. Such stipulation is however subject to fulfillment of eligibility criteria as prescribed under Rule 5. Rule 5 provides that all contractual Laboratory Technicians who have completed or are yet to complete six years of contractual service under the Society/Scheme shall be deemed to have been inducted in the cadre subject to the condition, inter alia, that they have minimum educational qualification and other eligibility criteria as per Rule 9 at the time of engagement under the Society/Scheme. Rule 9(v) provides that the educational qualification of the candidate for the post of Laboratory Technician shall be as specified at column 4 of the appendix, which reads as under:
"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."W.A. No.687 of 2022 Page 30 of 41
30. Rule 9 (viii) further provides that such person must have registered his name in Laboratory Technician Council in the State and have possessed valid registration certificate on the date of advertisement.
31. On a plain reading of column 4 of the Schedule as noted above, we reach a definite conclusion that following are the essential minimum qualifications for the purpose of application of Rule 5, which is to be read with Rule 9 of the Rules of 2019:-
(i) The candidate must have passed +2 Science examination under Council of Higher Secondary Education, Odisha/ equivalent and,
(ii) passed Diploma in Medical Laboratory Technology from Government Medical College and Hospital of the State, or any private institution recognized either by the Government of Odisha or All India Council of Technical Education.
32. On bare reading of the said provision, we do not find any scope of an interpretation different from the plain language used in column 4 of the Schedule to the Rules of 2019. We are thus of the view that a person having qualification of Diploma in Medical Laboratory Technology from an institution which is neither recognized by the Government of Odisha nor by AICTE cannot said to be possessing the requisite qualification for application of W.A. No.687 of 2022 Page 31 of 41 Rules 4 and 5 read with Rule 9 of the Rules of 2019. It is true that even in the absence of approval/recognition of AICTE of an institution, a Diploma in Medical Laboratory Technology granted by such institution can satisfy the requirement of minimum qualification as laid down in column 4, if such institution has recognition by the State Government of Odisha. We do not concur with the opinion of the learned Single Judge to the effect that the respondents fulfilled the minimum eligibility criteria as laid down in the Rules of 2019 for giving them benefit of regularization by applying the provisions of Rules 4 and 5 of the said Rules. We need to keep in mind that the Rules of 2019 framed under Article 309 of the Constitution has force of law which bind everyone including this Court, exercising power of judicial review under Article 226 of the Constitution of India, unless they are challenged on limited permissible grounds.
33. If the interpretation of the eligibility criteria prescribed in column-4 of the Schedule to the Rules as given in the impugned judgment is accepted then even for direct recruitment, candidates having obtained DMLT qualification from unrecognized private institutions shall claim their right for consideration in the matter of direct recruitment. Such interpretation shall have deleterious effects in the matter of recruitment to the post of Laboratory Technicians.
W.A. No.687 of 2022 Page 32 of 4134. Further, the respondents in the writ petition questioned the decision of the appellants in refusing to regularize their services while considering regularization of Laboratory Technicians working on contractual basis in accordance with the provisions under the Rules of 2019. The High Power Committee constituted for the said purpose had no other option, but to follow the provisions prescribed under the Rules of 2019, which in no uncertain term prescribes the minimum educational qualification for such absorption.
35. Furthermore, we find rationale behind putting this condition that for the purpose of bringing contractual Laboratory Technicians to the permanent establishment under the service Rules i.e., Rules of 2019, to take over such contractual employees only who possessed qualification obtained from such institution, having recognition of the State Government of Odisha or the AICTE. Else, it would create an anomalous situation where the persons having qualification from unregulated institutions, having no basic facilities of training/teaching and requisite infrastructure would claim their eligibility on the sole ground that they have worked on contractual basis for substantial period. Since no issues have been raised in the pleadings on record as regards genuineness of the unrecognized institutions from where these respondents obtained their certificates, we need not make any comment in this regard. It may, however, be open for the concerned authorities to verify whether such institutions exist or W.A. No.687 of 2022 Page 33 of 41 not since the certificates which have been brought on record by way of Annexure-2 series to the writ petition do not inspire much confidence, at the first blush.
36. The direction which has been issued by learned Single Judge for regularization of the services of the respondents, situated thus, is against the law, i.e., the provisions of the Rules of 2019 framed under Article 309 of the Constitution of India. No direction or any writ in the nature of mandamus can be issued in disobedience of law, in our considered opinion.
37. Ostensibly, faced with a situation in the present appeal that the respondents did not fulfill the requisite minimum educational qualification prescribed under the Rules of 2019, an alternative submission has been advanced on behalf of the respondents, as has been noted above that the State, in the present facts and circumstances of the case, should take recourse to Rule 20 of the Rules of 2019 which provides that when it is considered by the Government that it is necessary or expedient to do so in public interest, it may, by order, for reasons to be recorded in writing, relax any provision of the Rules and in the present case, relax the minimum qualification as prescribed under the Rules of 2019 read with the Schedule.
38. Power of relaxation is a matter which can be exercised by the competent authority under Rule 20 when it is necessary or W.A. No.687 of 2022 Page 34 of 41 expedient to do so in public interest. This Court exercising the power of judicial review should ordinarily not issue such direction as to relax the eligibility criteria which is primarily within the domain of the competent authority, though, the Court may direct consideration for such relaxation.
39. We are not restraining the appellants from exercising the power of relaxation available under Rule 20 of the Rules of 2019 in the matter of regularization of these respondents. We, however, observe that if any such decision is taken, it shall be incumbent upon the concerned authorities to record satisfaction about the genuineness of the institutions where the respondents claimed to have pursued their courses of DMLT.
40. There is yet another eligibility condition under Rule 9 of the Rules which states "(viii) he must have registered his name in Laboratory Technician Council in the State and have possessed valid registration certificate as on the date of advertisement". The said aspect shall have to be kept in mind if the competent authority decides to invoke Rule 20 of the Rules.
41. As noted above, reliance has been placed by learned counsel for the respondents on various Supreme Court‟s decisions on the point of regularization of the employees who have worked for considerable period of time. The said decisions in our opinion do not apply in the present facts and circumstances of the case W.A. No.687 of 2022 Page 35 of 41 which is governed by statutory Rules framed under Article 309 of the Constitution of India, validity of which has not been questioned. We are therefore bound to follow the provision under the said Rules.
42. It may not be out of place to mention that the second proviso to Rule 4(A)(1) stipulates that those contractual Laboratory Technicians, who do not meet the eligibility criteria as mentioned under Rule 5, shall continue as such under OSH & FW Society till closure of the project, retirement or disengagement, whichever is earlier.
43. We do not agree with the view taken by the learned Single Judge that since on the date of appointment of the respondents on contractual basis, there was no prescription that they must have acquired the requisite qualification from an institution recognized/approved by the AICTE, a right accrued in their favour after completion of six years of service for regularization. Recruitment, absorption, service condition of employees in a service under the State is governed by the service rules. In the present case, Rules of 2019 have been framed in exercise of power conferred by the proviso to Article 309 of the Constitution in supersession of all the orders and instructions issued in this regard. A person‟s claim for appointment/ regularization shall be governed strictly by the provisions of the Rules till they are declared invalid.
W.A. No.687 of 2022 Page 36 of 4144. The reasoning assigned by the learned Single Judge that the case of the present respondents stand on the same footing as that of the persons whose services were regularized by the orders passed by the OAT as noted above cannot be accepted since such orders were passed prior to coming into force of the Rules of 2019 and the cases of the respondents were to be considered under the said Rules. It may be noted that the respondents have heavily relied on the Resolution dated 13.05.2013 issued by the Government of Odisha in the Health and Family Welfare Department (Annexure-4 to the writ petition), which laid down a policy for regularization of service of contractual Laboratory Technician working under general health care which prescribed that regular posts of Laboratory Technicians shall be created which were abolished earlier in lieu of contractual engagement. A definite stand was taken in the counter affidavit filed on behalf of the appellants in the writ proceedings that Gazette Notification was issued on 21.01.2014, a portion of which has been quoted hereinabove. It was specifically provided in the said Gazette Notification that for regularization of contractual appointees, their engagements must have been made against contractual posts following recruitment procedure and principles of reservation of posts. Accordingly, the said resolution dated 13.05.2013 lost its force after publication of Gazette Notification dated 21.01.2014 since the employees recruited without following reservation Rules were not eligible for regularization.
W.A. No.687 of 2022 Page 37 of 4145. In the present facts and circumstances, as noted above, the doctrine of legitimate expectation does not apply.
Conclusions
46. Situated thus, in view of the above noted discussions, we reach following irresistible conclusions:
(i) A person having qualification of Diploma in Medical Laboratory Technology from an institution which is neither recognized by the Government of Odisha nor by AICTE cannot said to be possessing the requisite qualification for application of Rules 4 and 5 read with Rule 9 of the Rules of 2019.
(ii) In terms of the Rules of 2019, even in the absence of approval/recognition of AICTE of an institution, a Diploma in Medical Laboratory Technology granted by such institution can satisfy the requirement of minimum qualification as laid down in column 4, if such institution has recognition by the State Government of Odisha.
(iii) The opinion of the learned Single Judge to the effect that the respondents fulfilled the minimum eligibility criteria as laid down in the Rules of 2019 for giving them benefit of regularization by applying the provisions of Rules 4 and 5 of the said Rules, cannot be accepted.
(iv) The Rules of 2019 framed under Article 309 of the Constitution has force of law which bind everyone including this Court exercising power of judicial review under Article 226 of the W.A. No.687 of 2022 Page 38 of 41 Constitution of India, unless they are challenged on limited permissible grounds.
(v) The High Power Committee constituted for the said purpose had no other option, but to follow the provisions prescribed under the Rules of 2019, which in no uncertain terms prescribes the minimum educational qualification for such absorption.
(vi) The direction which has been issued by learned Single Judge for regularization of the services of the respondents, situated thus, is against the law, i.e., the Rules of 2019 framed under Article 309 of the Constitution of India. No direction or any writ in the nature of mandamus can be issued in disobedience of law, in our considered opinion.
(vii) Power of relaxation is a matter which can be exercised by the competent authority under Rule 20 when it is necessary or expedient to do so in public interest. This Court exercising the power of judicial review should ordinarily not issue such direction as to relax the eligibility criteria which is primarily within the domain of the competent authority, though, the Court may direct consideration for such relaxation.
(viii) We are not restraining the appellants from exercising the power of relaxation available under Rule 20 of the Rules of 2019 in the matter of regularization of these respondents. We, however, observe that if any such decision is taken, it shall be incumbent upon the concerned authorities to record satisfaction about the W.A. No.687 of 2022 Page 39 of 41 genuineness of the institutions where the respondents claim to have pursued their courses of DMLT and such relaxation would not be in breach of any other law in force.
(ix) Supreme Court‟s decisions on the point of regularization of service, relied upon on behalf of the respondents, have no application, in the present set of facts, governed by the statutory rules framed under the proviso to Article 309 of the Constitution of India.
(x) We do not agree with the view taken by the learned Single Judge that since on the date of appointment of the respondents on contractual basis, there was no prescription that they must have acquired the requisite qualification from an institution recognized/approved by the AICTE, a right accrued in their favour after completion of six years of service for regularization.
Recruitment, absorption, service condition of employees in a service under the State are governed by the service rules. In the present case, Rules of 2019 have been framed in exercise of power conferred by the proviso to Article 309 of the Constitution in supersession of all the orders and instructions issued in this regard. A person‟s claim for appointment/ regularization shall be governed strictly in terms of the provisions of the said Rules, till they are declared invalid.
(xi) The reasoning assigned by the learned Single Judge that the case of the present respondents stand on the same footing as that of the persons whose services were regularized by the orders W.A. No.687 of 2022 Page 40 of 41 passed by the OAT as noted above cannot be accepted, since such orders were passed prior to coming into force of the Rules of 2019 and the cases of the respondents were to be considered under the said Rules.
47. For the reasons aforementioned, in our opinion, the impugned judgment and order passed by the learned Single Judge deserves interference, as the same cannot be sustained. Accordingly, the impugned judgment and order dated 11.12.2021 passed in W.P.(C) No.33301 of 2020 by the learned Single Judge is set aside. This appeal is allowed.
48. W.P.(C) No.33301 of 2020 stands dismissed.
49. All interlocutory applications stand disposed of.
50. There shall be no order as to costs.
(Chakradhari Sharan Singh)
Chief Justice
S. S. Mishra, J. I agree.
(S. S. Mishra)
Judge
M. Panda/S. K. Guin
Signature Not Verified
Digitally Signed
Signed by: MRUTYUNJAYA PANDA
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 24-Jun-2024 17:36:31
W.A. No.687 of 2022 Page 41 of 41