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Judgment
,,,,
Dr. B.R. Sarangi, J",,,,
All these three writ petitions, having 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.,,,,
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.",,,,
2.1 All the petitioners, except petitioner no.15, having possessed requisite qualification, applied for 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, Ex-servicemen 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 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 “considerâ€. Hence this application.,,,,
Mr. K.P. Mishra, learned counsel for the petitioners contended that opposite party no.2 invited applications for contractual appointment of Ayush",,,,
Doctor (Ayurvedic) under a scheme on 21.02.2014 under Annexure-11 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 the year 2008 and 2012 and also extended age relaxation for ineligible candidates. Due to non-,,,,
extension of such benefit in the advertisement dated 31.12.2013, the action of the 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 a,,,,
consequence thereof, the order so passed by the authority cannot sustain in the eye of law.",,,,
Mr. A.K. Mishra, learned Addl. Government Advocate contended that since the crux of the dispute is between the petitioners and opposite party",,,,
no.2, State has no role to play.",,,,
Mr. B.P. Tripathy, learned counsel for opposite 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 Nurse/ANM in the Mobile Medical Teams (MMTs) under Rashtriya",,,,
Bal Swasthya Karyakram (RBSK), NRHM, Odisha 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 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 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 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 (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.",,,,
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",,,,
SCC 697; Special Reference No.1 of 2012, (2012) 9 SCR 311; Mohd. Ayub@ BabbuSagiribhai v. Commissioner of Police; (1994) 1 GLR 589; AP",,,,
SRTC v. G. Srinivas Reddy,A IR 2006 SC 1465;M adan 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; andA mlan Jyoti Baruah v. State of Assam, (2009) 3",,,,
SCC 277.,,,,
This Court heard Mr. K.P. Mishra, learned counsel for the petitioners; Mr. A.K. Mishra, learned Addl. Government Advocate for the State and",,,,
Name of the post,Vacancy,Qualification/ Eligibility/Age,Date interview of,
AYUSHÂ Â Doctor
(Homoeopathic)",13 (Nos.,"*  Must     Â
have      passed BHMS from
 a recognized University
*  She/he    Â
should     have passed Â
odia  up  to  M.E. Standard
*Â Â Should have registered in the
Homoeopathic Council
*Â Â Should be under 37 years and
over 21 years of age on 1.08.2012Â Â
by  5  years  for
ST/SC/Women/Ex-service
Men/SEBC  and  10  years
for   physically   challenged
candidates.","Will informed be later
on.",
xxx,xxx,xxx,xxx,
01,"AYUSH
Doctor (Ayurvedic/
Homoeopathic)","Details
can    Â
be verified
from  the
official website.
(www.nr
hmorissa
.gov.in)","12,000/-","* The candidate must have a
Bachelor degree in Ayurvedic
Medicine       Â
&Â Â Â Â Â Â Â Â Surgery
(B.A.M.S.)/Â Â Â Â Â
Bachelor     in
Homoeopathic  medicine  and
Surgery  (B.H.M.S.)  as  the
case     may    Â
be,     from     a
recognized University. She/he
must   have   completed  Â
the Internship Training if any.
* She/he should have passed
Odia up to M.E. Standard.
* Should  have   registered Â
in the Odisha State Council of
Ayurvedic/Â Â Â Â Â Â Â
Homoeopathic Medicine  Â
at   the   time   of
application.   No  Â
provisional registration    Â
certificate     is acceptable.Â
Applicant should be above 21Â
years and below 37 years age as
stÂ
on 1 October 2013Â and theÂ
upper age limit as prescribed will
be relaxable only    Â
for     the     categories
mentioned below:-
* UPto a maximum of 5 years if  Â
a   candidate   belongs  Â
to SC/ST  or  Women  or Â
Ex- serviceman.
* To maximum of 10 years in caseÂ
of Physically Challenged
candidates.
* Applicant  belonging  more
than one category shall avail
the benefit of age relaxation
which  will  be Â
benefited  to
him/ her.
,xxx,xxx,xxx,xxx
01,"AYUSH
Doctor (Ayurvedic/
Homoeopathic)","Details
can    Â
be verified
from  the
official website.
(www.nr
hmorissa
.gov.in)","12,000/-","Eligibility
* The candidate must have a
Bachelor degree in Ayurvedic
Medicine       Â
&Â Â Â Â Â Â Â Â Surgery
(B.A.M.S.)/Â Â Â Â Â
Bachelor     in
Homoeopathic  medicine  and
Surgery  (B.H.M.S.)  as  the
case     may    Â
be,     from     a
recognized University. She/he
must   have  Â
completed   the Internship
Training if any.
* She/he should have passed
Odia up to M.E. Standard.
* Must have registered in the
Odisha    State   Â
Council    of
Ayurvedic/Â Â Â Â Â Â Â
Homoeopathic Medicine  Â
at   the   time   of
application.   No  Â
provisional registration    Â
certificate     is acceptable. Â
Applicants  shall be in between the
age group of 21-37Â Â Â Â
years    as    on   Â
st
1
December, 2013.
,xxx,xxx,xxx,xxx
extracted hereunder:,,,,
“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-cum-Logistic Assistant, Lab. Technician & HW (F)/ANM.â€",,,,
Similarly, advertisement no.511/DPMU/NHM dated 16.02.2019 issued by the Chief District Medical and Public Health Officer, Kalahandi,",,,,
wherein in clause-6 it has been stated as follows:,,,,
“6. Age relaxation as per ORV act will be applicable to ST, SC, SEBC, Women, PWD, Ex-Service Man candidates.â€",,,,
As it appears from the advertisement in Annexures-2 and 12, the posts are contractual engagement under NHM in different districts where the",,,,
provisions of 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 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.",,,,
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",,,,
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 by the employer denying the legitimate claim of such employee.,,,,
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 purpose of enactment is to provide for 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. 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.",,,,
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 and 12, without causing any further",,,,
hindrance.,,,,
In the result, the writ petitions are allowed. However, there shall be no order as to costs.",,,,
…………………………………….,,,,