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Suryanarayan Mishra & Others v/s State of Odisha & Others

    W.P. (C) No. 37863 of 2020

    Decided On, 08 February 2021

    At, High Court of Orissa


    For the Petitioners: A.K. Pandey, D.N. Mishra, K.S. Das, Advocates. For the Respondents: A.K. Parija, Advocate General, Adhiranjan Pradhan, Advocate.

Judgment Text

1. This writ petition involves a challenge to the letter dated 22.12.2020 with further prayer as to why the petitioners will not be allowed to continue in their respective posts after 31.12.2020 and further as to why their services will not be regularized against the sanctioned post in the Government establishment.

2. Sri Pandey, learned counsel in view of the challenge involving the writ petition, taking this Court to the pleading in the writ petition as well as through Annexure-1 contended that vide Annexure-1, the Government of Odisha in Health & Family Welfare Department keeping in view of emergency requirement of deployment on account of Covid 19 pandemic creating a havoc in the State in different categories involving Staff Nurse, Pharmacists, Laboratory Technician, Radiographer, MPHW (M) and MPHE(F) vide Office order dated 23.3.2020, thereby requisitioning required number of employees belonging to different categories in the different districts with indication of their remuneration in different type and also indicating therein the detail remuneration of such employees that will be paid during their such continuance. Sri Pandey, learned counsel next contended that on the basis of decision of the Health & Family Welfare Department, entering into advertisement and after getting applications from the eligible candidates, petitioners who belong to MPHE(M), the petitioners being selected through the Walk-in-Interview were engaged temporarily. It is claimed that while these petitioners were continuing on temporary engagement, their temporary engagement having come an end their engagement has been to extended from 01.10.2020 to 31.12.2020 with one day break on 1st October, 2020. It is alleged that involving Annexure-4, a development at the instance of the Health & Family Welfare Department dated 22.12.2020, there has been a direction to all Collectors & District Magistrates, All Municipal Commissioners and all CDMO & PHOs not to retain the services of the petitioners as well as similarly situated persons all engaged through Walk-in-Interview to manage Covid3 19 institutions pursuant to the decision of the Government vide Annexure-1, but however, with an exception i.e. in the event of any District Office is in essential to retain any of the additional manpower for continuing Covid-19 related works (for operational Covid facilities and Covid testing) beyond 31.12.2020, such establishment may retain with manpower beyond 31.12.2020 but, however, not exceeding 25% of the total additional manpower currently in position in the respective districts. In challenging this order, for taking away services of the petitioners and several other situated persons, Sri Pandey learned counsel raised two prayers for consideration of this Court i.e. for their discharging a responsible duty during pandemic situation, all these petitioners should have been allowed to continue and further there should be also order for regularization of all these petitioners taking into consideration they are discharging a responsible duty in most difficult time of the State in relaxation of all requirements in the matter of regular recruitments. The second relief sought for in the writ petitions, as raised by Sri Pandey, learned counsel that while issuing letter dated 22.12.2020, even though there is a direction by the Health & Family Welfare Department to all the Collectors & District Magistrates, all Municipal Commissioners and all CDMO & PHOs to retain the manpower not exceeding 25% beyond 31.12.2020 in the event there is requirement in retention of any additional manpower but, however, State has not laid down any principle or guideline involving the manner of such retention. Advancing his submission, Sri Pandey learned counsel taking this Court to the grounds raised herein, reiterated his submission to the extent of regularisatin on the plea that these peoples have all been provided with Corona Jodha Certificates for their discharging a great responsibility during Covid-19 period and even though they have all been recruited involving Walk-in-Interview for their length of service and nature of service during pandemic period, they should all to be regularized. Sri Pandey, learned counsel however, while conceding to the limitation with the Court in the matter of regularization involving short time engaged employees, engaged with specific conditions not to have any further scope further with specific package involving remuneration and period of engagement however, unable to cite any decision to support his submission particularly on the claim of regularisation. It is at this stage of the matter, Sri Pandey, learned counsel, however requested this Court to at least getting into prayer no.2 as to fixing the modalities with the additional retention of manpower and also further made a request for giving at least some direction to the Government in the appropriate Department to at least consider for some relaxation involving such candidates in the event there is multiple candidates available at one place in the selection process. Sri Pandey, learned counsel here however submitted that all these petitioners have already applied pursuant to the advertisement floated in the meantime and they are all waiting for the outcome therein.

3. Sri A.K.Parija, learned Advocate General however taking this Court to the indications and the clarity involving the decision of the Government at Annexure-1, taking this Court to the document at Annexure-1, submitted that the decision of the Government not only made it clear on the engagement required in different districts in the different categories involved therein, but also brought to the notice of this Court that in Annexure-1, it is clearly indicated that the engagement will be short time engagement considering the Covid-19 requirement and further the manpower recruited through such process shall be also on contractual (daily wage basis). Sri Parija, learned Advocate General here contended that the process of engagement being through Walk-in-Interview without adhering to the requirement of process held in case of regular recruitments, there is no scope for regularization involving such candidates. Further, for the specific condition by the decision of the Government vide Annexure-1, it is also contended that the engagement involving the petitioners is not only purely temporary but there is also clear indication that their services/engagement can be terminated at any point of time and without assignment of any reason thereof. It is next taking to the development taken place in the meantime, while not disputing the engagement of these petitioners for specific period and also involving an extension through document at page 21,. Sri Parija, learned Advocate General taking this Court to Annexure-4 contended that it is before the order at Annexure-4 issued and looking to the ground reality in the reduction in the Covid-19 havoc not requiring to run such large number of emergency institutions, there was a threadbare discussion on the continuance of such institutions and engagement and getting into overall situation in the State and taking into account the massive reduction in Covid-19 positive cases position in the State, the State in its consideration decided not to give further extension of such type of engagement but, however, keeping in view that there was still requirements of functioning of some Covid Centers, through Annexure-4 though directed not to have any further extension involving engagement through Annexure-1, there has been relaxation given to the Collectors & District Magistrates, all Municipal Commissioners and all CDMO & PHOs depending of the manpower requirement in the Covid-19 institutions desired to continue to take a maximum retention of such type of engagement up to 25 %. It is in this view of the matter, Sri Parija, learned Advocate General strongly disputed the claim for regularization by the petitioners for having no support of law nor any support of the pleading. On the question of formulation of criteria in the matter of retention of maximum manpower up to 25%, Sri Parija contended that for the interim order passed in many such cases, the State Government in its appropriate Department has issued necessary instructions to the authorities concerned to follow the principle of first come and last go scrupulously and there should not be any deviation on such principle. On the asking of the Court to Government to at least provide some relaxation to the employees engaged during Covid-19 pandemic in the selection process pursuant to the advertisement involved, Sri Parija, learned Advocate General however has no hesitation to submit that in the event there is multiple candidates at one position in any category of posts, State will not be hesitating in giving due weightage to the persons applied having Covid-19 experience and whoever certificates to such extent exists.

4. Considering the rival contentions of the parties, this Court finds Annexure-1, the main source of such engagement during Covid-19 situation in the State, the State has a clear intention to give short time engagement in different categories such as Staff Nurse, Pharmacists, Laboratory Technician, Radiographer, MPHW (M) and MPHE(F) and it is in the process by issuing the order at Annexure-1 State in its appropriate Department has also made it clear that the engagement during Covit-19 situation will all be contractual engagements and for specific time and with specific conditions. Further, there is also no dispute that for the condition involving the order dated 23.3.2020, there has been engagements through Walk-in-Interview only through verification of records/ documents, experience certificate with such candidates and there is no following of process of recruitment test taking place in the case of filling regular vacancies. There is also no dispute in the Bar that filling up these temporary vacancies is not against any permanent vacancies. Further this Court also makes it clear that the engagement of the category of employees including that of petitioners in the first instance was up to 30th June, 2020, of course, there is no dispute that engagement was confined to area where continuance of Covid-19 institutions have been extended, extending it up to 31.12.2020. This Court from the conditions imposed and taking into consideration the contention of the learned counsel for the petitioners and the objection to this claim in the matter of regularization by Sri Parija, learned Advocate General, finds once these candidates accepted the contractual engagement with particular terms and conditions are stopped from claiming otherwise as they are all bound by such terms and conditions. For the nature of the post temporary within the meaning of Rule 45 of Orissa Service Code and Tenure posts within the meaning of Rule 46 of the Orissa Service Code, law has been settled through a decision of Hon’ble Apex Court in the case of Dr L.M. Nath v Dr S.K. Kacker and others (1996) 1 SCC 229, such post been ceased to exist on expiry of tenure and such employees have no right to claim otherwise. Besides there is also no law supporting to the claim of the petitioners for regularization of their services for their merely working for may be six months as contractual employees. It is in this view of the matter, this Court rejects the request of the petitioners in the matter of regularization of their services. So far as allegation on not fixing any criteria in the matter of retention of additional manpower, through the document at Annexure-4, for interim direction in many such writ petitions to adopt practice of first come last go in case of additional retention, for the recording of this Court of the submission of Sri Parija, learned Advocate General that the State in its Department and all the competent authorities are all following the principle dependant on the interim protection involving many of the writ petitions on this line by adopting the principle of first come last go in every catego

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ries. Coming to the other request to at least giving some weightage to the petitioners and similarly situated persons to consider their cases in the advertisement process, this Court has already recorded the submission of Sri Parija, learned Advocate General submitting that State has no hesitation to provide weightage to the persons engaged during Covid-19 period applied through the advertisement, in the event there is number of candidates at one place in the process of selection for different categories. There is complain by some counsels involving some other writ petitions also in list today that even though there has been extension of services in some categories of Covid-19 engagement adhering to the maximum limitation 25% but, however, principle of first come last go has not been followed. In absence of any specific allegation, this Court however observes in such event, it is open to such petitioner to make a representation to the concerned authority for their correcting such illegality within a period of seven days and basing on receipt of such representation, the competent authority shall examine the same and if there is any deviation in the matter of maintaining of manpower up to 25% in the above manner, if necessary, rectify the same. 5. With this observation and direction the writ petition stand disposed of.