Allowed

Dr.Debaraj Patra v. State and Ors.

Orissa HC16 Dec 2021WP(C)/9944/2014

Case brief

AI extract

What is this about?

SEBC candidates challenged denial of reservation and age relaxation for contractual Ayush doctor appointments under RBSK. The court allowed the petitions, quashed the rejection and remitted the matter to NHM for an appropriate order providing SEBC reservation as in its other advertisements.

What did the court decide?

Rejection order quashed; matter remitted to the Mission Director, NHM, to pass an appropriate order providing SEBC reservation as in the advertisements under Annexures-2 and 12.

Dr.Debaraj Patra Vs State and Ors. — Service and Employment | Orissa HC (2021)

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ORISSA HIGH COURT: CUTTACK

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W.P.(C) No. 10024 of 2014, W.P.(C) No. 9944 of 2014 And

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W.P.(C) No. 10157 of 2015

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In the matter of applications under Articles 226 and 227 of the Constitution of India.

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AFR

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W.P.(C) No. 10024 of 2014

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Dr. Pradeep Kumar Gochhayat ..… Petitioners and others

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-Versus-

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State of Odisha and another ….. Opp. Parties

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For Petitioners : M/s. K.P. Mishra, S. Mohapatra, T.P. Tripathy and L.P. Dwivedy, Advocates

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W.P.(C) No. 9944 of 2014

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Dr. Debaraj Patra ..… Petitioner

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State of Odisha and others ….. Opp. Parties

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For Petitioner : M/s. K.P. Mishra,

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S. Bahadur and

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B.B. Behera, Advocates

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For Opp. Parties : Mr. A.K. Mishra, Addl. Govt. Advocate, [O.P. Nos.1 and 3]

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M/s. B.P. Tripathy, R. Achary, T. Barik and S. Hidayatullha, Advocates [O.P. No.2] W.P.(C) No. 10157 of 2015 Dr. Niranjan Baral ..… Petitioner -Versus-

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State of Odisha and others ….. Opp. Parties

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For Petitioner : M/s. K.P. Mishra, S. Mohapatra, T.P. Tripathy and L.P. Dwivedy, Advocates

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For Opp. Parties : Mr. A.K. Mishra, Addl. Govt. Advocate, [O.P. Nos.1 and 3]

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M/s. B.P. Tripathy, R. Achary, T. Barik and S. Hidayatullha, Advocates [O.P. No.2]

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P R E S E N T:

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THE HONOURABLE DR. JUSTICE B.R.SARANGI

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Date of hearing: 06.12.2021: Date of judgment: 16.12.2021

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DR. B.R. SARANGI, J. All these three writ petitions, having

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been filed impugning the order dated 09.05.2014 passed by the Mission Director, NHM, Odisha-opposite party no.2 denying the reservation and age relaxation to the petitioners for appointment to the post of Ayush Doctor under Rashtriya Bal Swasthya Karyakram (RBSK), involve common questions of law and facts. Therefore, they are heard together and disposed of by this common judgment which will govern all the cases.

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The petitioners in all these writ petitions are members of Socially Economically Backward Class (SEBC). For the sake of convenience and for just and proper adjudication of the cases, the factual matrix of W.P.(C) No.10024 of 2014 is referred to in a nut shell.

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2.1 All the petitioners, except petitioner no.15,

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having possessed requisite qualification, applied for

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appointment to the post of Ayush Doctor (Ayurvedic), pursuant to advertisement issued by opposite party no.2 inviting applications from eligible candidates. Last date of submission of such applications was fixed to 10.10.2013. Thereafter, another advertisement was issued on 31.12.2013 for the above post without keeping any reservation for SEBC, although reservation was there for SC/ST, Women, Exservicemen and Physically handicapped. Being aggrieved by such action of opposite party no.2, the petitioners approached this Court by filing W.P.(C) No.24677 of 2013 and batch, which were disposed of after giving due opportunity of hearing to the parties, vide judgment dated 21.03.2014, with observation that since opposite party no.2 has reserved some posts for SC/ST candidates, it should have also reserved some posts for SEBC candidates with age relaxation. While so observing, this Court has also taken note of the ratio decided in the case of Dr. Rupendra Brined v. State of Odisha , 2008 (II) OLR 357, and directed opposite party no.2 to consider the case of the petitioners in the light of the circular dated 12.01.1995 governing the field by taking a decision for

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reservation of post in respect of SEBC candidates, as well as for age relaxation. In compliance of the judgment dated 21.03.2014 passed by this Court, opposite party no.2 rejected the claim of the petitioners vide order dated 09.05.2014 in Annexure-10 by misinterpreting the word “consider”. Hence this application.

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Mr. K.P. Mishra, learned counsel for the

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petitioners contended that opposite party no.2 invited applications for contractual appointment of Ayush Doctor (Ayurvedic) under a scheme on 21.02.2014 under Annexure11 applying reservation for all the categories including SEBC category. Thereby, the advertisement dated 31.12.2013 issued by the authority without keeping any reservation under RBSK scheme, is contrary to the provisions of law and violative of judgment dated 21.03.2014 passed by this Court under Annexure-7. It is further contended that opposite party no.2 has also maintained reservation for SEBC candidates in

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the year 2008 and 2012 and also extended age relaxation for ineligible candidates. Due to non-extension of such benefit in

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the advertisement dated 31.12.2013, the action of the

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authority is arbitrary, unreasonable and contrary to the provisions of law and violative of Article 14 of Constitution of India, as the same is discriminatory one. More so, the order dated 09.05.2014 under Annexure-10 has been passed by the authority without adhering to the direction issued by this Court vide judgment dated 21.03.2014 under Annexure-7. As

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a consequence thereof, the order so passed by the authority cannot sustain in the eye of law.

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Mr. A.K. Mishra, learned Addl. Government

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Advocate contended that since the crux of the dispute is between the petitioners and opposite party no.2, State has no role to play.

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Mr. B.P. Tripathy, learned counsel for opposite

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party no.2 admitted the fact that the applications were invited from the eligible candidates for filling up of the post of Ayush Doctors (Ayurvedic/Homoeopathic), Pharmacist, Staff

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Nurse/ANM in the Mobile Medical Teams (MMTs) under Rashtriya Bal Swasthya Karyakram (RBSK), NRHM, Odisha

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on contractual basis for a term of 11 months with monthly remuneration as noted against each and subject to renewal as per the society norms basing on the performance and subsistence of the programme. Under the said advertisement, SC, ST and UR category candidates were to be appointed under the RBSK. As the RBSK is a National Programme under NRHM, the same was implemented in Odisha from the financial year 2013-14 and under the said programme 30 identified health conditions were to be addressed through a ‘4D’ approach of screening and Early Intervention Services, which includes (a) defects at birth, (b) deficiencies, (c) childhood disease, and (d) developmental delays and disabilities. Under the said scheme, 723 dedicated mobile teams were to be engaged across the State in the tribal block as well as non-tribal block. The composition of the dedicated health team consists of two Ayush doctors (one male and one female), one ANM/Staff nurse and one Pharmacist. In order to achieve such goal, on 31.12.2013, an advertisement was issued by opposite party no.2 to fill up unfulfilled SC/ST/UR posts, due to non-availability of candidates in respective

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categories as per advertisement no.26/2013 dated 02.10.2013 as additional requirement of manpower under RBSK scheme as unreserved, pursuant to the decision taken by the society. It is admitted that the petitioners had earlier approached this Court by filing W.P.(C) No.24677 of 2013 and batch and this Court, after giving due opportunity of hearing to the parties, vide judgment dated 21.03.2014, directed the authority to consider the case of the petitioners. Pursuant to such direction, opposite partyno.2 considered the case of the petitioners and passed the order impugned on 09.05.2014 under Annexure-10 contending that the decision for reservation of posts in respect of SEBC candidates, having not

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been taken for the recruitment under RBSK scheme, the case of the petitioners cannot be considered for selection and engagement under SEBC category. It is further contended that appointment under the society is contractual in nature and the staff working under the NHM are neither civil servant nor holding any civil post under the Government. As such, Orissa Reservation of Post and Services (for Socially and Economically Backward Classes) Act, 2008 is not applicable

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for the contractual recruitment under the society, as there is no such provision for reservation for contractual recruitment. The recruitment made for a specific programme under the society, namely, RBSK wherein 50% of all recruitment has been reserved for women as per the requirement and stipulation of the aforesaid scheme. As the recruitment under RBSK programme is purely contractual and solely based on the subsistence of the programme and not against any sanctioned post of any cadre, no reservation has been prescribed for SEBC candidates for appointment to the post of Ayush Doctor under RBSK programme and no age relaxation has been provided for them. In absence of any provision under the Act, 2008 and Rules framed thereunder, reservation in the society for contractual appointment is not mandatory. It is further contended that the purpose behind enactment of Act, 2008 is to extend the benefit of reservation to SEBC of the State in public employment in respect of direct recruitment only, but never intended to be applied in the case of any contractual appointment arising out of any scheme or project. It is further contended that under the Orissa Civil Service

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(Fixation of Upper Age Limit) Rules, the maximum age for entry into government service for general category is 32 years with 5 years age relaxation to SC/ST/SEBC/Women categories. But the NHM has already fixed upper age limit of 37 years which is also applicable for all category including SEBC candidates. Thereby, there is no valid and justifiable reason to claim further age relaxation by the petitioners when the maximum age after relaxation has already been allowed by NHM. It is further contended the order impugned has been passed in adherence to the direction given by this Court in W.P.(C) No.24677 of 2013 and, thereby, it cannot be said that the judgment of this Court has not been complied with nor any deviation has been made in compliance of the said judgment. Consequentially, the writ petition has to be dismissed.

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To substantiate his contention he has relied upon the judgments of the apex Court in the cases of State of Orissa v. Sudhansu Sekhar Mishra , AIR 1968 SC 647; Indian Medical Association v. Union of India , AIR 2011 SC 2365; Islamic Academy of Education v. State of Karnataka , (2003) 6

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SCC 697; Special Reference No.1 of 2012 , (2012) 9 SCR 311;

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Mohd. Ayub@ BabbuSagiribhai v. Commissioner of Police ; (1994) 1 GLR 589; AP SRTC v. G. Srinivas Reddy , AIR 2006 SC 1465; Madan Lal v. State of Jammu and Kashmir , AIR 1995 SC 1088; Marripavi Nagaraja v. Gua of AP , (2007) 2 SCC 522; Dhananjaya Mallik v. State of U.P. , (2008) 3 (PLJR) SC 271; and Amlan Jyoti Baruah v. State of Assam , (2009) 3 SCC

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This Court heard Mr. K.P. Mishra, learned counsel for the petitioners; Mr. A.K. Mishra, learned Addl. Government Advocate for the State and Mr. B.P. Tripathy, learned counsel for opposite party no.2-NHM by hybrid mode. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties, these writ petition are disposed of finally at the stage of admission.

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Odisha State Health and Family Welfare Society (National Health Mission) is a society registered under the Societies Registration Act, 1860 since 1996-97 vide Registration No.20212/167. RBSK as a national programme

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under the NRHM to see the child health screening and early intervention services, has been implemented in Odisha from

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the financial year 2013-14. As per the said programme, the existing school health programme were to be merged with RBSK and about 1.21 crores children in the age group of 0-18 years at all AWCs, and Government/Govt. aided schools managed by the department of S&ME, SC & ST, W&CD and Labour and ESI were to be covered under this programme. Under this scheme, 30 identified health conditions were to be addressed through a ‘4D’ approach of screening and early intervention services, which includes (a) defects at birth, (b) deficiencies, (c) childhood disease and (d) developmental delays and disabilities. Composite package of services, such as, screening, treatment on the spot, required referral treatment at public private empanelled hospital (appropriate facilities) as per need were to be undertaken. The total budget of Rs.63.86 crores was allocated under NRHM for the year 2013-14. Operational guidelines issued by the Ministry of Health and Family Welfare Department, Govt. of India also provides scope of service and to give effect such

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programme, a dedicated Mobile Medical Team (MMT) was constituted and 723 dedicated MMTs were to be engaged across the State @ 3 per tribal block and 2 per non-tribal block. Dedicated mobile health team consisted of two Ayush Doctors (one male and one female), one ANM/Staff nurse and one pharmacist. The frequency of visit was fixed as round the year so as to cover each AWC- Bi-annually, Nonresidential schools-annually and Each residential schoolquarterly. The support of vehicle, screening equipment, minor ailment medicine kit were to be made and headquarter was fixed at block CHC. There were also provision for monitoring by GPS tracking, reporting-CUG (SMS based reporting) and online database. As such, 5 days specialized training were to be provided during current year. It was suggested that for composition of mobile health team, there should be (1) two medical officers (Ayush)-one male and one female at least with a bachelor degree from an approved institution (2) one ANM/Staff Nurse, and (3) one Pharmacist

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with proficiency in computer for data management. In case a Pharmacist is not available, other paramedics-Lab.

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Technician or Ophthalmic Assistant with proficiency in computer for data management may be considered. Therefore, to achieve the objective of operational guidelines, steps were taken by the Government for appointment of Ayush doctors both Ayurvedic and Homoeopathic so as to engage in a MMT for screening the children as per the rules. Earlier advertisement no.1129 dated 09.08.2012 was issued for

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walk-in-interview, inviting applications from eligible candidates for filling up of the posts of Ayush doctor (Homoeopathic), Pharmacist and Health Worker (Female). So far as recruitment to the post of Ayush doctor (Homoeopathic) is concerned, requirement was prescribed to the following effect:

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Name of the post	Vacancy	Qualification/ _Eligibility/Age _	Date interview	of
AYUSH Doctor (Homoeopathic)	13 (Nos.	* Must have passed BHMS from a recognized University	Will informed on.	be later
		* She/he should have passed odia up to M.E. Standard * Should have registered in the Homoeopathic Council * Should be under 37 years and over 21years of age on

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		1.08.2012 by 5 years for ST/SC/Women/Ex-service Men/SEBC and 10 years for physically challenged candidates.
xxx	xxx	xxx	xxx

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8. Thereafter, advertisement no.26/2013 was issued

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for contractual appointment and applications were invited

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from eligible candidates for filling up of posts of Ayush

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doctors (Ayurvedic/Homoeopathic), Pharmacists, Staff Nurse/ANM in the Mobile Medical Teams (MMTs) under Rashtriya Bal Swasthya Karyakram (RBSK), NRHM, Odisha

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on contractual basis for term of 11 months with monthly remuneration as noted against each and subject to renewal as per the society norms basing on the performance and subject to subsistence of the programme. Performance incentive and

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other benefits were also admissible for all posts as per norms and orders issued from time to time. For Ayush doctors (Ayurvedic/Homoeopathic), the norms and conditions were prescribed to the following effect:-

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	Mobile Medic	al Team (M In all 30 d	MT) under R istricts of th	BSK, NRHM, Odisha e State
Sl. No.	Name of the Post	Vacancy	Monthly Base Remune ration (in Rs.)	Qualification/ Experience
01	AYUSH Doctor (Ayurvedic/ Homoeopathic)	Details can be verified from the official website. (www.nr hmorissa .gov.in)	12,000/-	* The candidate must have a Bachelor degree in Ayurvedic Medicine & Surgery (B.A.M.S.)/ Bachelor in Homoeopathic medicine and Surgery (B.H.M.S.) as the case may be, from a recognized University. She/he must have completed the Internship Training if any. * She/he should have passed Odia up to M.E. Standard. * Should have registered in the Odisha State Council of Ayurvedic/ Homoeopathic Medicine at the time of application. No provisional registration certificate is acceptable. Applicant should be above 21 years and below 37 years age as on 1^stOctober 2013 and the upper age limit as prescribed will be relaxable only for the categories mentioned below:- * UPto a maximum of 5 years if a candidate belongs to SC/ST or Women or Ex- serviceman. * To maximum of 10 years in case of Physically Challenged candidates. * Applicant belonging more than one category shall avail the benefit of age relaxation which will be benefited to him/ her.

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xxx xxx xxx xxx

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Advertisement no.51/2013 was issued on 31.12.2013 inviting applications from eligible candidates for of of doctors filling up posts Ayush (Ayurvedic/Homoeopathic), Pharmacists and Staff Nurse/ANM in the Mobile Medical Teams (MMTs)/Mobile

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Health Team under Rashtriya Bal Swasthya Karyakram (RBSK), NRHM, Odisha on contractual basis for term of 11

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months with monthly remuneration as noted against each and subject to renewal as per the society norms basing on the

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performance and subject to subsistence of the programme. Performance incentive and other benefits are also admissible for all posts as per norms and orders issued from time to

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time. The society has decided to fill up the unfilled SC/ST/UR posts (due to non-availability of candidates in the

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respective categories) as advertised vide office advertisement no.26/2013 dated 02.10.2013 and additional requirement of

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manpower under RBSK scheme as treated “Unreserved”. For

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Ayush doctors (Ayurvedic/Homoeopathic), the norms and

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conditions were prescribed to the following effect:-

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Mobile Medical Team (MMT)/Mobile Health Teams (MMTs) under RBSK,
NHM, Odisha In all districts of the State except Mayurbhanj
Sl. Name of the Vacancy Monthly Eligibility
No. Post Base
Remune
ration
(in Rs.)
01 AYUSH Details 12,000/- Eligibility
Doctor can be
(Ayurvedic/ verified * The candidate must have a
Homoeopathic) from the Bachelor degree in Ayurvedic
official Medicine & Surgery
website. (B.A.M.S.)/ Bachelor in
Homoeopathic medicine and
(www.nr Surgery (B.H.M.S.) as the
hmorissa case may be, from a
.gov.in) recognized University. She/he
must have completed the
Internship Training if any.
* She/he should have passed
Odia up to M.E. Standard.
* Must have registered in the
Odisha State Council of
Ayurvedic/ Homoeopathic
Medicine at the time of
application. No provisional
registration certificate is
acceptable. Applicants shall
be in between the age group of
21-37 years as on 1 st
December, 2013.
xxx xxx xxx xxx

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The aforesaid advertisement no.51/2013 dated

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31.12.2013 was subject matter of challenge before this Court

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in W.P.(C) No.24677 of 2013 and batch, including W.P.(C) No.25518 of 2013, which were disposed of vide judgment dated 21.03.2014 under Annexure-7,with following orders:

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“8.1 Taking into consideration the stand of opposite party no.1 that O.R.V. Act is not applicable for appointments under RBSK Programme for which they have not declared reservation in respect of S.C. and S.T. candidates, this Court in the case of Dr. Rupananda Brined v. State of Odisha and two others reported in 2008 (II) OLR 357 held that during the year 1975 when the O.R.V. Act came to operation, the concept of contractual employment was not prevalent. But now the contractual employment is the rule of the day. Virtually the door for permanent employment has been closed. This scenario now prevailing in the employment market was unforeseen during the year 1975 and due to the massive growing of contractual employment, time has come for the State to re-look at the provisions of Section 3(d) of O.R.V. Act and take a decision as to whether there is any requirement for its amendment to achieve the purpose, for which the aforesaid statute was enacted or to take a policy decision to adopt the provisions of the O.R.V. Act in the contractual employment in the government departmental or in the government organizations as the case may be. Accordingly, this Court directed the opposite parties to consider the case of the petitioner therein in accordance with law keeping in mind the policy evolved by the National Rural Health Mission and take a decision on the same within a period of fifteen days from the date of communication of the order.

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8.2 After the direction of this Court (supra) the authorities in the impugned advertisement have reserved some posts in respect of S.C. and S.T. candidates, however, they have not reserved any posts in respect of S.E.B.C. candidates.

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9. In the advertisement published subsequently, opposite party no.1 in pursuance of the direction of this Court in the case reported in 2008 (II) OLR 357 has already reserved posts in respect of S.C./S.T. candidates for engagement of AYUSH Doctors. Hence, this Court directs the said opposite party no.1 to take a decision with regard to reservation of posts in respect

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of S.E.B.C. candidates following the Government Circular dated 12.01.1995 as well as the ratio decided by this Court in the aforesaid case and consider the case of the petitioners in all these writ petitions for appointment as AYUSH Doctors (Ayurvedic/Homoeopathic) in the Mobile Medical Teams under Rashtriya Bal Swasthya Karyakram (RBSK), NRHM, Odisha in pursuance of the impugned advertisements and proceed with the selection process accordingly. The entire exercise shall be completed as expeditiously as possible, preferably within a period of six weeks from the date of production of certified copy of this judgment.”

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The grounds for challenging advertisement

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no.51/2013 dated 31.12.2013 were that no provisions have

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been made for reservation of posts in respect of SEBC candidates nor any age relaxation was granted up to

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maximum 5 years for those SEBC candidates. As it reveals from the advertisement no.1129/09.08.2012 under Annexure2, so far as recruitment to the post of Ayush doctor (Homoeopathic) is concerned, it has been specifically mentioned that candidates should be under 37 years and over

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21 years of age as on 01.08.2012 and upper age limit is relaxable by 5 years for ST/SC/Women/Ex-service men/SEBC and 10 years for physically challenged candidates, whereas no such reservation has been prescribed

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granting age relaxation pursuant to advertisement

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no.26/2013 dated 02.10.2013 and subsequent advertisement

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no.51/2013 dated 31.12.2013 in Annexures-3 and 4 respectively. The grievance of the petitioners is that reservation should be prescribed for the SEBC category candidates and also they should be granted age relaxation as has been granted pursuant to advertisement no.1129/09.08.2012 in Annexure-2. More so, by not providing such reservation, it contravenes the observation made by this Court in Dr. Pradeep Kumar Gochhayat (supra), wherein reference has also been made to the judgment of the apex Court in the case of Dr. Rupananda Brined v. State of Odisha , 2008 (II) OLR 357, so far as SEBC candidates are concerned.

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In Dr. P.K. Gochhayat (supra), this Court

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directed to consider the case of the petitioners for giving

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reservation and age relaxation.

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In AP SRTC v. G. Srinivas Reddy (supra), the

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apex Court held that where a court directs an authority to “consider”, it requires the authority to apply its mind to the

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facts and circumstances of the case and then take a decision thereon in accordance with law. The said power can be exercised in three different scenarios:-

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(a) Where an authority vested with power to decide a matter, fails to do so in spite of a request: In such case, the High Court directs consideration without examining the facts or the legal questions involved and without recording any findings on the issues.

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(b) Where an authority had decided a matter without considering the relevant facts and circumstances, or by taking extraneous or irrelevant matters into consideration, in such case, the HC may not examine the validity or tenability of the claim on merits, but require the authority to do so.

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(c) Where the High Court finds the decision making process erroneous and records its findings as to the manner in which the decision should be made and then directs the authority to consider the matter, in such case, the authority will have to consider and decide the matter in the light of its findings or observations of the court.”

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Examining the order impugned from the above angle, this

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Court comes to a finding that the authority, while passing the order impugned, should have considered and decided the matter in the light of the findings and observation of this Court made in Dr. P.K. Gochhayat (supra).

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Reliance was placed on the advertisement

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no.1872/dated 21.02.2019 under Annexure-12, wherein the very same NHM has provided reservation for SEBC category with age relaxation, as has been done in the advertisement

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no.1129/dated 09.08.2012. Clause-13 of the said

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advertisement is extracted hereunder:

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“13. Relaxation of 5 years for Women, SC, ST & SEBC category and 10 years for Physically Disable, Ex-Sports Person, Ex-Serviceman category. A candidate can avail only one relaxation that most beneficial to him/her. ORV rule will be followed as per the Govt. of Odisha guideline for the posts of Ayush Medical Officer, Pharmacist/Pharmacist-cumLogistic Assistant, Lab. Technician & HW (F)/ANM.”

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Similarly, advertisement no.511/DPMU/NHM

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dated 16.02.2019 issued by the Chief District Medical and Public Health Officer, Kalahandi, wherein in clause-6 it has

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been stated as follows:

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“6. Age relaxation as per ORV act will be applicable to ST, SC, SEBC, Women, PWD, Ex-Service Man candidates.”

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As it appears from the advertisement in

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Annexures-2 and 12, the posts are contractual engagement

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under NHM in different districts where the provisions of

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relaxation of age and reservation to SEBC category has been prescribed. But so far as advertisements in Annexures-3 and 4 are concerned, which are under a programme of RBSK and the same are schematic and programmatic, wherein such reservation has not been prescribed. But fact remains, the appointments are being made under the same society, i.e., NHM. As such, taking into consideration the advertisements in Annexures-2 and 12, pursuant to which, candidates have been engaged and attached to Medical Officers and the nature of work discharged by them is akin to that performed by government employees. As a consequence thereof, the reservation applicable to the government employees is also applicable to them. But fact remains, the appointment made pursuant to Annexures-3 and 4 are dedicated mobile health team along with two Ayush doctors (one male and one female), one ANM/Staff Nurse and one Pharmacist and, as such, they are not attached to any hospital. Rather, their very nature of nomenclature being MMT, which has got no nexus to the present engagement, i.e., as per advertisement under Annexure-2 and 12. Thereby, effectively the advertisement

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issued under Annexure-2 and 12 are totally distinguishable than that of Annexure-3 and 4 and, as such, the nature of work discharged by two category of persons in two category of organization being distinct one.

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But fact remains, in both these advertisements, applications were invited for giving contractual appointment. Contention raised by Mr. B.P. Tripathy, learned counsel for opposite party no.2-NHM that the posts advertised pursuant to Annexures-3 and 4 are not civil post nor they are considered as civil servant. Thereby, the SEBC and ORV Act is not applicable for programmatic and schematic appointment of the petitioners. But this Court finds that there is no regular recruitment to the posts for long since. As such, employments have been given on contractual basis in poultry

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sum of amount by giving different names by forming different society and, as such, when the persons claim any benefit under any policy, then different stand has been taken

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by the employer denying the legitimate claim of such employee.

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For example, so far as reservation is concerned, it is governed under Orissa Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975. The reservation so far as contractual appointment is concerned, the same are not provided under Section-3(d) of the Act itself. But the said Act was enacted by the Orissa Act 38 of 1975. The intention of legislature to bring the aforesaid enactment is evident from its object, which speaks that the of enactment is to for purpose provide adequate representation of Scheduled Caste and Scheduled Tribes in Posts and Services under the State. The said Act has come into operation in the year 1975, when the concept of contractual employment was not prevalent. But now the contractual employment is the rule of the day. As a consequence thereof, the entry into service through permanent employment is no more existence. Thereby, this scenario now prevailing in the employment market was unforeseen during the year 1975 and due to the massive growing of contractual employment, time has come for the State to re-look at the provisions of Section 3(d) of the O.R.V.

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Act and take a decision as to whether there is any requirement for its amendment to achieve the purpose, for which the aforesaid statute was enacted or to take a policy decision to adopt the provisions of the O.R.V. Act in the contractual employment in the government department or in the governmental organizations, as the case may be. As such, this is not within the domain of the Court to make such decision, rather it is left open to the Government to take a decision in this regard. But fact remains, if there will be no representation from different categories, unemployment crisis will go up and it will put the government in a disturbing position. Thereby, knowing fully well the purpose of reservation for different categories, even though the society, like that of opposite party no.2 has extended such benefits to the similarly situated Ayush doctors, pursuant to advertisements issued under Annexures-2 and 12, it should not deny such benefit to the petitioners, pursuant to the advertisements in Annexures-3 and 4, on the ground that the engagement is schematic and programmatic one, which is arbitrary and unreasonable on the part of the authority.

¶153

// 28 //

¶154

In the above view of the mater, the order impugned dated 09.05.2014 under Annexure-10 cannot sustain in the eye of law and the same is liable to be quashed and is hereby quashed. The matter is remitted back to the opposite party no.2 to re-look the same and pass appropriate order providing reservation for the SEBC candidates, as has been done pursuant to the advertisements under Annexures-2

¶155

and 12, without causing any further hindrance.

¶156

In the result, the writ petitions are allowed.
However, there shall be no order as to costs.
…………….…………..
DR. B.R. SARANGI,
JUDGE

¶157

Orissa High Court, Cuttack The 16^th December, 2021, Ashok/GDS

Dr.Debaraj Patra v. State and Ors.

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Dr.Debaraj Patra v. State and Ors.

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