SARAT CHANDRA MOHANTY Vs. STATE

JUDGEMENT

(1.) Each of the petitioners was a registered Homoeopathic practitioner within the meaning of Section 29 of the Orissa Homoeopathic Act, 1956 (hereinafter referred to as the State Act) and was given appointment as doctor for a term in a dispensary as would appear from the order of appointment appended to the respective writ applications. The term of appointment was extended by subsequent orders from time to time, but each of them was later informed that service was being terminated from a specified date. The writ applications have been filed on the footing that the termination was under a misapprehension that the petitioners were not qualified to continue as doctors in dispensaries in view of the Homoeopathy Central Council Act, 1973 (Act 59 of 1973) (hereinafter referred to as the Central Act), and though similarly placed doctors continued in service and have even been absorbed as regular employees under the State Government, the petitioners have been discriminated against. Counter-affidavit has been filed and the action has been justified by relying upon Section 43 of the State Act. It has also been contended that the petitioners being not institutionally qualified have no right to service and as a preliminary point it has been stated that the petitioners have no cause of action as they were under service contracts and their services have been terminated in terms of the service contracts.

(2.) It is not disputed that the petitioners, as a fact, were employed for specific periods and the termination has been at the end of the period and not before it. In that view of the matter, we accept the objection of the learned Additional Government Advocate that the petitioners are not entitled to issue of mandamus for continuing their employment.

(3.) Ordinarily, with this finding these writ applications should have been dismissed. There is, however, another aspect which cannot be lost sight of. According to the petitioners, persons similarly situated have already been absorbed in Government service. Therefore, there is no justification in the field of public employment to discriminate the petitioners from others who are similarly situated. Long arguments were advanced before us as to whether the grievance of the petitioners on this score should be examined inasmuch as in the original writ application there was no specific allegation on this score. There does not seem to be any dispute that Government have proceeded to take action being under the impression that the petitioners have no requisite qualification. Whatever may have been the position under the State Act according to the State Government, with the coming in of the Central Act institutional qualification became a must and, therefore, there is no scope for the petitioners to claim service. We think, we should clarify the legal position on this score and leave it open to the Government to examine the petitioners' grievances whether persons similarly situated have been more favourably treated than the petitioners giving rise to the allegation of discrimination. Learned Additional Government Advocate agrees that the field is covered by Article 16 of the Constitution and as it is public employment, discrimination cannot be permitted.