Excerpt
The single bench of Justice BR Sarangi gave the verdict in W.P.(C) NO. 34606 of 2020. The court ordered antedation of regularisation of contractual Multipurpose Health Worker (Male) appointed in Nayagarh district from the date they had completed six months of service.
Facts
In 2006 appointments were done by the chief medical officer of Nayagar in the post of Multipurpose Health Worker Male (MPHW (M)) on a contractual basis. The candidates had to give an undertaking that they would not demand regularisation in the future. The petitioners were among the candidates selected. They started working in 2006. The ministry of health and welfare had taken a policy decision that contractual paramedical staff like Pharmacist, Staff Nurse, Lab Technician, Radiographer etc would be regularised after six years of service in 2008. The petitioners were regularised in 2013. But they had completed their six years in 2011. The benefit given to other paramedical staff was not extended to them. The petitioners approached the State Administrative tribunal demanding that their regularisation should be antedated to completion of six years like other paramedical employees. The tribunal gave an order in favour of them in 2018. Meanwhile, the government allowed the benefit of antedating to the petitioners by O.A. No. 1821 of 2015. So the petitioners were antedated with all financial benefits. But the government then decided to challenge the order of the tribunal and the order of antedating was cancelled in 2020. The petitioners approached the court aggrieved with this.
Arguments of the Petitioner
Mr K.C. Sahu appearing for the petitioners argued that extending the benefit to other similar paramedical posts while not giving to MPHW(M)s violates Article 14 and 16 of the constitution of India. He also argued the government gave the petitioners the benefits in due process of law with the approval of the law department in following the tribunal’s order. Cancellation of the benefit without hearing the petitioners violated principles of natural justice. He also opined that the decision was hit by the provisions of estoppel. It was also argued that the division bench of the Odisha High Court had dismissed the state’s petitions challenging the order.
Arguments of the State
Mr A. Rath appearing for the state brought to the notice of the court the undertaking that the petitioners had signed while joining for the job. They had no right to claim regularization because of the contract they had signed. He contended since the petitioners had accepted the government’s decision when they had been regularised in 2013 without any objection they could not claim the benefit of antedating later. Also, it was argued since there had been no policy of regularising after six years any post except those mentioned in the 2008 order no illegality was committed.
Analysis of Court
The court first analysed the concept of promissory estoppel developed in a series of English and Indian cases. The court observed that the government being a model employer was bound by its promise of regularisation after six years because the promise was not prohibited by law. The person making it had the requisite authority. The court said that discrimination meant the difference in treatment of two or more persons with an element of unfavourable bias. The state could not establish that the MPHW employees are different from the other paramedical employees. So the state could not deny them the benefit which had been extended to other employees just because no separate order had been passed. This stance of the government was violative of Article 14 and 16. The court observed that no notice or hearing was given to the petitioners before the antedating was cancelled by government order. Thus the due process of law was not followed. Also, the court said that if the petitions filed by the government against the tribunal were dismissed there was no valid reason to withdraw the benefit.
Judgement
The court allowed the writ petition filed by the petitioners. The orders cancelling the antedation of regularisation were quashed. The court instructed that the petitioners will be deemed to have been regularised from the date they completed their six years.
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