SURYANARAYAN MISHRA Vs. STATE OF ODISHA
LAWS(ORI)-2021-2-12
HIGH COURT OF ORISSA
Decided on February 08,2021

Suryanarayan Mishra Appellant
VERSUS
STATE OF ODISHA Respondents

JUDGEMENT

Biswanath Rath,J. - (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 and 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 and 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 and Family Welfare Department dated 22.12.2020, there has been a direction to all Collectors and District Magistrates, All Municipal Commissioners and all CDMO and PHOs not to retain the services of the petitioners as well as similarly situated persons all engaged through Walk-in-Interview to manage Covid- 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 and Family Welfare Department to all the Collectors and District Magistrates, all Municipal Commissioners and all CDMO and 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 and District Magistrates, all Municipal Commissioners and all CDMO and 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.;


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