Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.7282 of 2023 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Dr. Prasanta Parida, Aged about 46 years, Son of Pradipta Kumar Parida, AT: Plot No.1486, CDA, Sector-11, P.O.: Markat Nagar, P.S.: Markat Nagar Phase-2, Town/District: Cuttack. … -VERSUS- Petitioner. 1. State of Odisha represented through Commissioner-cum-Secretary Health and Family Welfare Department. 2. Director, Acharya Harihar Post Graduate Institute of Cancer 3. Dean and Principal, Acharya Harihar Post Graduate Institute of Cancer 4. Dr. Gautam Nath, Aged about 33 years Son of: Not known At present working-Shanti Memorial Hospital, Thoria Shahi 5. Dr. Rakesh Kumar Barik Aged about 34 Years Son of: Not Known W.P.(C) No.7282 of 2023 Page 1 of 17 At: Quarter No-B/1 Rajabagicha Labour Colony P.O.: Talatelenga Bazar P.S.: Badambadi At present working at: IIGH, Near Mahanadi Vihar Petrol Pump, At/P.O.: Sikharpur Town/District: Cuttack. … Counsel appeared for the parties: Opposite Parties. For the Petitioner : M/s. Nityananda Behuria, R.K. Nath, N. Nayak, N. Behuria, Advocates For the Opposite parties : Mr. Tarun Patnaik, Additional Standing Counsel for Opposite Party No.1. M/s. Sachidanda Pattnaik, Sweta Pattnaik, B.K. Routray, A. Routrary, Advocates for Opposite Party Nos.2 & 3. M/s. Priyadarshi Swagat Palai, B. Jena, D.P. Panda, Ekta Agarwal, Advocates for Opposite Party No.4 P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 29.07.2024 :: Date of Order : 09.08.2024
Decision
ORDER Challenging the provisional merit list dated 17.01.2023, final merit list dated 30.01.2023 and approval letter W.P.(C) No.7282 of 2023 Page 2 of 17 dated 18.03.2023 for appointment of the Selected candidates for the post of Assistant Professor in the Department of Gastroenterology as per Advertisement No.AHPGIC/E-01/2022 dated 30.08.2022 published by the Office of the Dean and Principal Acharya Harihar Post Graduate Institute of Cancer, wherein the opposite party Nos.4 and 5 have been selected and placed at Serial Nos.1 and 2 on the ground of non-fulfilment of the eligibility criteria specified therein, the petitioner has approached this Court by way of filing this writ petition invoking provisions under Articles 226 and 227 of the Constitution of India with the following prayer(s): “The petitioner therefore prays that this Hon’ble Court may graciously be pleased to admit this writ petition, call for the records and after hearing the parties allow the same with cost and issue a writ/writs in the nature of certiorari/mandamus and/or any other or further writ/direction commanding the opp. Parties to quash the appointment order under Annexure-8 and refrain from appointing opp. Party Nos.4 and 5 for the post of Assistant Professor in Gastroenterology and further the opp. Party Nos.1 and 3 be directed to place the petitioner as Sl. No.1 in the final merit list and further be directed to appoint the present petitioner as Assistant Professor in Gastroenterology as per advertisement No.AHPGIC/E- 01/2022 dated 30/08/2022 published by Office of the Dean and Principal, Acharya Harihar Post Graduate Institute of Cancer. And may pass any other order/orders as deem fit and proper in this case W.P.(C) No.7282 of 2023 Page 3 of 17 And for this act of kindness the petitioner as in duty bound shall ever pray.” 2. Shorn off unnecessary details of fact, suffice it to narrate the relevant as adumbrated in the writ petition. 2.1. An advertisement was issued on 30.08.2022 by the Acharya Harihar Post Graduate Institute of Cancer (“AHPGIC”, for short) for recruitment to the posts of Assistant Professors in different Departments, namely, Medical Oncology (04 posts), Surgical Oncology (03 posts), Gastroenterology (01 post) and Plastic and Reconstructive Surgery (01 post), wherein the last date for submission of application form was 23rd September, 2022. 2.2. Responding to said advertisement, the petitioner applied for the post of Assistant Professor in Gastroenterology Department and appeared in the written examination, which was conducted on 06.01.2023 at 11 A.M. in the Lecture Hall-1, AHPGIC, Cuttack by the Department vide letter No.5861 dated 20.12.2022 along with other candidates. Considering the marks obtained in the written test, a provisional merit list was prepared, wherein the position of the petitioner was reflected at Serial No.3, which is extracted hereunder: Sl. No. Name of the Candidate Gender Roll No. W.P.(C) No.7282 of 2023 Date of Birth Written test marks obtained Page 4 of 17 1. 2. 3. 4. M M Dr. Gautam Nath Dr. Rakesh Kumar Barik 22051 22.01.1989 177.75 22118 18.06.1988 175.00 M 22107 05.01.1978 147.50 M 22130 21.06.1983 144.00 Dr. Prasanta Parida Dr. Sambit Kumar Behera 2.3. A letter dated 17.01.2023 was issued to the selected candidates for physical verification of the original certificates, documents etc. pursuant to Advertisement No.01 of 2022. By Letter No.HFW-MEI-AHRCC-0001- 2022-6261/H dated 18.03.2023, the Director of the AHPGIC communicated a final list of the selected candidates prepared by the Committee on 30.01.2023 to the Government of Odisha in Health and Family Welfare Department. The said final list of selected candidates relating to the post of Assistant Professor in Gastroenterology Department is as follows: “Candidate selected for the post of Assistant Professor in Gastroenterology-1 Post. Sl. No. 1 Name Discipline Roll No. Mark obtained Dr. Gautam Nath Gastroenterology 22051 177.75 W.P.(C) No.7282 of 2023 Page 5 of 17 Candidates Wait-Listed for the Post of Assistant Professor in Gastroenterology. Sl. No. 1 2 3 Name Discipline Roll No Mark Obtained Dr. Kumar Barik Rakesh Dr. Prasanta Parida Dr. Sambit Kumar Behera Gastroenterology 22118 175.00 Gastroenterology 22107 147.50 Gastroenterology 22130 144.00 2.4. The said final merit list is the subject-matter of challenge before this Court in the present writ petition. 2.5. This Court vide order dated 22.03.2022 passed an interim order that “no further action be taken with regard to the appointment of Assistant Professor in Acharya Harihar Post Graduate Institute of Cancer, basing on the approval made by the Government-Opposite party no.1, vide order dated 18.03.2023”. 2.6. Nevertheless, the opposite party No.4, namely, Dr. Gautam Nath pursuant to appointment order vide No.1299 dated 23.03.2023 submitted his joining report of 24.03.2023. Notwithstanding that this Court vide order dated 11.07.2023 observed that “even though this Court passed an interim order on 22.03.2023 by holding that the appointment of Assistant Professor in Acharya Harihar Post Graduate Institute of Cancer not to be made till the next date”, learned counsel appearing for W.P.(C) No.7282 of 2023 Page 6 of 17 opposite party Nos. 2 and 3 contended that the said order was received on 29.03.2023 and by that time opposite party No. 4 had already been appointed vide Order No. 1299 dtd.23.03.2023. 2.7. Being allowed to amend the writ petition and consolidated writ petition was filed. 2.8. The opposite party No.4, Dr. Gautam Nath, has filed counter affidavit asserting that all the requisites qualifications as find mentioned in the advertisement has been fulfilled and having been found successful in obtaining better marks in written examination, the names of the opposite party Nos.4 & 5 were placed in the provisional merit list at Serial Nos.1 and 2. It is affirmed by the said opposite party that he secured highest marks, i.e., 177.75 out of 200 marks in the written examination, whereas the petitioner has secured 147.50 marks. 2.9. In such view of the matter, the opposite party No.4, being placed at serial No.1, urged that he is found more meritorious than the petitioner, who is placed at Serial No.2, in the waiting list. 2.10. The opposite party Nos.2 and 3 have filed their common counter affidavit asserting the fact that the opposite party No.4 has secured 177.75 marks out of 200 marks. W.P.(C) No.7282 of 2023 Page 7 of 17 It is explained with regard to “bond conditions” as follows: “*** 12. That, the petitioner in para-8, page-9, has challenged the candidature at Sl. No.1 & 2 in the Merit List on the plea that they have violated the Bond Conditions as stipulated by Govt. of Odisha. A copy of the Resolution issued by Health and FW Department, Government of Odisha vides Resolution No.ME-II-IXM/88/2008/3418/H date 03.02.2017 is placed as (Annexure-d). At Sl. No.1 of the above Resolution under the heading “the Bond Conditions” have been categorically stipulated from sub clause-(a), (b), (c), (d), (e), (f), (g) and (h). In Sub clause (a), it is mentioned that “No bond is applicable for students pursuing undergraduate (MBBS/BDS) or paramedical courses. In Sub Clause (f), it is mentioned that “State Government reserves the right to give appointment or not. In case no appointment is given by the State Government, within 6 months of completion of course, the students shall be released from bond conditions and the bond lapses”. In Sub Clause (g), it is mentioned that Monetary Penalty for defaulters (for not serving in state for two years after completion of course) shall be double the amount of stipend/salary received during study period. W.P.(C) No.7282 of 2023 Page 8 of 17 13. That, in connection with Bond Conditions, the candidate at Sl. No.1 of the Merit List has submitted to AHPGIC, prior to his joining, on 24.03.2023 (FN) a copy of the Order dated 01.09.2021 in I.A. No.9225 of 2021 arising out of W.P.(C) No.20057 of 2021 of the Hon’ble High Court of Orissa at Cuttack, where in the Hon’ble High Court has ordered, “It is in the circumstances, in disposal of the I.A., this Court observes, in the event petitioners decline to join pursuant to the order of posting for their claim pending adjudication in the writ petition, their such non-joining shall remain without prejudice to their claims and contentions involving the writ petition and further there shall be no coercive action against the Petitioners the writ petition”.(Annexure-E) final decision till in 14. That, as per the Bond conditions, at Sl. No.1(c) it is clearly mentioned that, “After completion of any of the following courses (MD/MS/MDS/DM/M. CH.), the candidates shall have to serve in any Health Institution of the State, for two years.” (Annexure-F).” 3. As the pleadings are completed and exchanged among the parties, on consent of the counsel for respective parties the matter was heard finally on 29.07.2024. Heard Mr. Nityananda Behuria, learned counsel for the petitioner; Mr. Tarun Patnaik, learned Additional Standing Counsel for State-opposite party No.1; Mr. Sachidananda Pattnaik, learned counsel along with Ms. Sweta Pattnaik, learned counsel for opposite party Nos.2 W.P.(C) No.7282 of 2023 Page 9 of 17 and 3 and Ms. Priyadarshi Swagat Palai, learned counsel for opposite party No.4. The matter has been kept reserved for delivery of orders 3.1. The main plank of argument of Sri Nityananda Behuria, learned counsel appearing for the petitioner is that the opposite party No.4 did not satisfy the requirement as contained in item (iv) of Clause 6 of the Advertisement inasmuch as the opposite party Nos.4 and 5, namely, Dr. Gautam Nath and Dr. Rakesh Kumar Barik are neither temporary nor permanent Government Servants because they worked in Private Hospitals. 3.2. Learned counsel appearing for opposite party Nos.2 and 3 submitted that there is no infirmity in the consideration of the appointment of the opposite party No.4 to the post of Assistant Professor in AHPGIC Establishment. 4. Perused the record and considered the rival contentions and submissions made by the learned counsel for respective parties. The grievance of the petitioner revolves in a narrow compass. At the time of hearing, learned counsel for the petitioner focussed on non- fulfilment of Item (iv) of Clause-6 of the Advertisement (Annexure-2). For ready reference, said clause is quoted hereunder: “6. Other Eligibility Conditions: W.P.(C) No.7282 of 2023 Page 10 of 17 (i) The candidate must be a citizen of India; (ii) The candidate must be of, (a) good moral character, and (b) good mental conditions and bodily health, good physique and active habits and free from organic defects or bodily infirmly so as not to create an impairment in the due discharge of duties; (iii) A candidate, who has more than one spouse living will not be eligible for appointment unless the State from Government has exempted his/her case operation of this limitation for any good and sufficient reasons; (iv) Government servants, whether temporary or permanent, are eligible to apply provided that they possess the requisite qualification and are within the prescribed age-limit as provided Para 3 & 1 of the Advertisement. They must inform their respective Heads of the Office in writing their application for this recruitment and furnish “No Objection Certificate” during document verification; submission regarding of (v) Before appointment, a candidate must register the Odisha Medical under himself/herself Registration Act, 1961. (vi) Only those candidates, who possess the requisites qualifications, are within the prescribed age limit and fulfill eligibility conditions etc. by the closing W.P.(C) No.7282 of 2023 Page 11 of 17 date for submission of application form, will be considered eligible; (vii) A candidate who claims change in his/her name after having passed the HSC examination, is required to furnish copy of publication of the changed name in the local heading daily newspaper as well as copy of notification in the Gazette in support of his/her change of name; (viii) Every candidate selected for appointment shall be examined by the Medical Board. A candidate, who does not satisfy the requirement after medical examination, shall not be appointed. ” 4.1. Reference may also be had to Clause 4, which reads as under: “4. Method of Selection: The selection of candidates for recruitment to the post of Assistant Professor in Super Speciality will be made on the basis of Written Test as per the guidelines as enumerated in Odisha Medical Education Service (Method of Recruitment and Conditions of Service) Rules, 2021. Written test will be conducted in the following manner: (i) Total Marks in written test-200; (ii) Total No. of questions is 200 which shall be of Multiple Choice Questions (MCQ) pattern; W.P.(C) No.7282 of 2023 Page 12 of 17 (iii) There shall be negative marking for wrong answers. For each wrong answer 0.25 marks shall be deducted from awarded for correct answers. (iv) The qualifying marks in the written examination- 40%; (v) Duration of Examination-3 hours; (vi) Syllabus: The syllabus for the post of Assistant Professor (Super Speciality) is as per NMC/MCI approved DM/M.CH syllabus. The Selection Committee shall prepare a list of candidates in order of merit on the basis of written test. Provided that, if two or more candidates secure equal marks, then the candidates securing higher marks in MBBS examination shall find place above the other in the merit list. In case marks obtained in the MBBS Examination is also the same, the candidate older in age shall be placed over the younger. The list recommended by the Selection Committee shall remain valid for a period of one (01) year from the date of its approval by the Government. There is provision for wait list.” 4.2. Cursory glance at these Clauses would transpire that the Selection Committee prepared merit list of the candidates on the basis of the written test. There is no dispute that the opposite party Nos.4, 5 and the petitioner are placed at Serial Nos.1, 2 and 3 respectively Page 13 of 17 W.P.(C) No.7282 of 2023 in the provisional merit list prepared by the Selection Committee, which fact is apparent from Annexure-1, i.e., provisional merit list of Assistant Professor in Gastroenterology Department. The final merit list was communicated to the Health and Family Welfare Department on preparation of final merit list after following the modalities specified. In the final merit list, it is found that the name of Dr. Gautam Nath-opposite party No.4 was placed at Serial No.1 of the final list whereas the names of Dr. Rakesh Kumar Barik-opposite party No.5 and Dr. Prasanta Parida-petitioner, are shown at Serial Nos.1 and 2 respectively in the waiting list. 4.3. It has been strenuously argued by learned counsel for the petitioner that the advertisement invites applications from eligible Government servants only for participation though the petitioner worked in a Private Health Organization, the opposite party Nos.4 & 5 have also worked in Private Hospitals. Therefore, in view of Clause- 6(iv), the opposite party No.4 should not have been issued with appointment letter and the Department was not competent to accept his joining report. 4.4. Per contra, learned counsel appearing for opposite party Nos.2 and 3 urged that the petitioner has misread the terms of advertisement and misdirected himself. As is manifest from the argument of the petitioner he sought W.P.(C) No.7282 of 2023 Page 14 of 17 to impress upon this Court by submitting that the eligibility conditions as specified at Item (iv) of Clause-6 confines consideration of applications of the Government servants, but not doctors working in private organisations. Repelling such contention, the learned Additional Standing Counsel went on to explain that the said clause requires the applicants, who were Government Servants, to inform their respective Heads of the Offices in writing regarding submissions of their applications for the recruitment to the posts in AHPGIC establishment and such applicants also required to furnish “No Objection Certificate” during the document verification. However, this clause has no application to the applicants other than Government servants. This aspect is very clear if other clauses of the advertisement are taken note of. 5. This Court carefully perused the terms of the Advertisement and finds force in the submission of the learned counsel appearing for opposite party Nos.2 and 3. Opening paragraph of the Advertisement reads thus: following disciplines “Applications are invited in the prescribed format from the eligible candidates for the posts of Assistant Professor the AHPGIC in establishment. The appointment will be in accordance with the Odisha Medical Education Service (Method of Recruitment and Conditions of Service) Rules, 2021 (Published in the Odisha Gazette No.1607, Cuttack September 30th, 2021)” . to work in W.P.(C) No.7282 of 2023 Page 15 of 17 5.1. Proximate reading of aforesaid sentences would make it clear that applications are invited from the eligible candidates for different posts specified in the Advertisement having requisite qualification specified at Clause 3. There is no dispute that all the selected Doctors have the requisite qualification for the post of Assistant Professor in Gastroenterology Department as specified in Clause 3 of the said Advertisement. 5.2. The opening sentences of the Advertisement juxtaposed with Clause 6(iv) leads to construe that the applications are invited from eligible candidates and if any candidate, who is a Government servant (whether temporary or permanent) wishes to apply for the post, he is required not only to possess the requisite qualification but also has to have the age limit as prescribed at Clause 1 of the Advertisement. In addition to this, such candidate, who is a Government Servant, is required to inform the Heads of the Offices in writing regarding submissions of the application for recruitment and furnish “No Objection Certificate” during document verification. 5.3. Therefore, necessary corollary of the above analysis would be that Clause 6(iv) of the Advertisement is restricted to applicants, who are Government Servants. However, the Advertisement invites applications from eligible candidates and it notifies for participation to the world at large. So this Court does not find any merit in W.P.(C) No.7282 of 2023 Page 16 of 17 the contentions of learned counsel for the petitioner that the opposite party No.4 having served in a Private Hospital is not eligible candidate for the post of Assistant Professor in Gastroenterology Department. 6. In view of the above discussions and for the reason stated hitherto, the writ petition deserved to be dismissed and, accordingly, the writ petition stands dismissed being devoid of merit, but in the circumstances, there shall be no order as to costs. (MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 9th August, 2024//Laxmikant/Suchitra Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-Aug-2024 17:09:57 W.P.(C) No.7282 of 2023 Page 17 of 17