The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.27026 of 2023 Dr.Abhisek Pradhan …. Petitioner Ms.B.K.Pattanaik, Advocate -versus- State of odisha and another …. Opposite Parties Mr.N.K.Praharaj, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 25.08.2023 03. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard Ms.B.K.Pattnaik, learned counsel for the Petitioner and Mr.N.K.Praharaj, learned Additional Government Advocate for the State-Opposite parties. Perused the Writ Petition as well as the materials on record. 3. The present Writ Petition has been filed by the Petitioner with a prayer to quash the order dated 18.08.2023 under Annexure-10 and further for a direction to the Opposite Parties to issue relieve order in fvaour of the Petitioner so as to enable him to join as Senior Residents at Tata Memorial Centre, Homi Bhaba Hospital, Varanasi without any further delay. 4. The factual backdrop of the present Writ Petition, in short, is that the Petitioner on being duly selected pursued his course of MBBS and accordingly completed the course in the year 2019. Thereafter, he appeared in the OPSC examination and on being duly // 2 // selected he was appointed in the district of Bargarh. Thereafter, the Petitioner has completed DNB in Radiation on Oncology (Radiotherapy) from Narayan Super Specialty Hospital, Howrah, Kolkota after he was duly selected in NEET examination. 5. Upon completion of DNB course, the Petitioner was appointed in the City Hospital, Cuttack and subsequently he was deployed in the department of Radiology, SCB MCH, Cuttack vide order dated 28.07.2022. At the moment the Petitioner is working in Acharya Harihara Cancer Hospital, Cuttack. 6. A couple of months back, the Petitioner came across an advertisement dated 31.05.2023 issued by the Tata Memorial Centre, Homi Bhaba Hospital, Varanasi for recruitment to the post of Senior Resident in the department of Radiation Oncology. As per the eligibility criteria prescribed in the said advertisement, the Petitioner was eligible to apply for the said post. Accordingly, the Petitioner sought for NOC from the Health and Family Welfare Department, Government of Odisha to join in the post of Senior Resident at Tata Memorial Centre, Homi Bhaba Hospital, Varanasi. The application for grant of NOC by the Government of Odisha of the Petitioner was rejected by the Government on 06.07.2023 on the ground that it is only permissible to pursue the SR ship in the State Government institutions and AIIMS, Bhubaneswar Thereafter, the Petitioner has again requested the Government to reconsider the decision rejecting his prayer for grant of NOC. 7. While this was the position, on 13.07.2023 the Petitioner received an intimation from the Tata Memorial Centre, Homi Bhaba Hospital, Varanasi informing the Petitioner that he has been selected for the post of Senior Resident for a period of one year from // 3 // 01.08.2023 to 31.07.2024. Copy of the letter has been annexed to the Writ Petition as Annexure-5. Upon receiving a copy of the letter dated 13.07.2023, the Petitioner once again wrote to the Opposite Party No.1 requesting the said Opposite Party to issue relieve order for such further study of Senior Resident at Tata Memorial Centre, Homi Bhaba Hospital, Varanasi on 24.07.2023 along with a copy of the letter dated 13.07.2023. However, the Opposite Party no.1 has not responded to the same. Challenging the impugned rejection order dated 06.07.2023 and 18.08.2023 under Annexure-10, the Petitioner has approached this Court by filing the present Writ Petition and the other prayers made in this Writ Petition.
Legal Reasoning
8. Ms.B.K.Pattnaik, learned counsel appearing for the Petitioner submitted before this Court that the S.R ship at a prestigious institution like Tata Memorial Centre, Homi Bhaba Hospital, Varanasi would enhance the knowledge and skill of the Petitioner. Therefore, the same would be definitely beneficial to the Petitioner as well as the cancer patients in the State of Odisha. She further contended that the Tata Memorial Centre, Homi Bhaba Hospital, Varanasi being a premier institution in the field of cancer would provide better exposure to the Petitioner in the field of cancer research and treatment. Moreover, S.R ship is for a period of one year only. After completion of the aforesaid S.R ship the petitioner would come back to Odisha and with the acquired better skill and knowledge from the abovenamed institution, he would be able to provide better services to the cancer patient in the State. Therefore, it was contended that the S.R.ship at a premier institution like Tata Memorial Centre, Homi Bhaba Hospital, Varanasi is nothing but higher study for the Petitioner and that the Opposite party No.1 // 4 // should have considered the same in that context only. 9. She further stated that since the Petitioner belongs to the Radiation Oncology department no other institution in the State of Odisha including the AIIMS would provide a better experience, skill and knowledge in the field of cancer than the Tata Memorial Centre, Homi Bhaba Hospital, Varanasi, which is a cancer specific institution and a leading institution in the field of cancer in the entire country. Therefore, she contended that the restriction imposed by the State Government with regard to S.R ship within the State of Odisha is unreasonable and arbitrary and in the case of the Petitioner the same may not be beneficial to the residents of State of Odisha. 10. In addition to the aforesaid argument, learned counsel for the Petitioner further pointed out that the Petitioner has completed his DNB at Narayana Super Specialty Hospital, Howrah, Kolkota. Thereafter, he has been appointed and posted at Acharya Harihara Cancer Institution in Cuttack. As such, the Petitioner did not get the opportunity like other P.G. post Doctor to acquire experience as Senior Resident Doctor. Such S.R ship is mandatory so far the Doctors who have completed their PG from the Medical Colleges in the State of Odisha. Moreover, it was also argued that there are limited number of Radiation Oncology Centre in the Government Hospitals run by the State of Odisha. So far AIIMS, Bhubaneswar is concerned, there is only one seat for general category candidate in the stream of Radiology. As such, it was further contended that unless the petitioner is permitted to undergo S.R ship in a premier institution like Tata Memorial Centre, Homi Bhaba Hospital, Varanasi the Petitioner will not be able to improve his knowledge and skill and thereby he will not be able to serve the people of the // 5 // State in the best possible manner with the help of the latest technology and treatment method. 11. With regard to the service career of the Petitioner, learned counsel for the Petitioner submitted that the State Government is not issuing any advertisement for the post of S.R ship. However, at the same time only Senior Residents having teaching experience are eligible for promotion to the next higher post i.e. Assistant Professor. Therefore, unless the Petitioner is permitted to acquire experience of S.R. ship he will not be able given promotion to the post of next higher rank of Assistant Professor, as a result of which the career of the Petitioner will be seriously affected. It was also argued that since the Petitioner does not have the S.R. ship experience, junior Doctors having such experience of S.R. ship are likely to be given promotion ahead of the Petitioner and thereby ignoring the case of the Petitioner for promotion which is a legitimate expectation of any Government employee under the employment of Government. 12. Further, referring to NMC guidelines as well as OMES Rules, 2021 it was argued before this Court that for being considered for promotion to the post of Assistant Professor in Government Medical Colleges, an aspiring candidate must possess a P.G. degree in that subject having minimum one year of teaching experience in the post of Senior Resident/Tutor. In view of the aforesaid statutory provisions, the Petitioner will not be considered for promotion to the post of Assistant Professor unless he acquires the experience of Senior Resident/Tutor and the chances of getting such experience in the State of Odisha is very bleak due to lack of adequate facilities in the stream in which the Petitioner is interested. Therefore, it was argued that by virtue of the impugned order not permitting the // 6 // Petitioners to join as senior Resident, the future career of the Petitioner would be seriously affected thereby causing prejudice to the Petitioner. 13. In course of her argument, learned counsel for the Petitioner referred to many cases wherein this Court has passed orders directing the Opposite Parties to grant such NOC. She specifically referred to W.P.(C) No.4242 of 2021 (Dr.Snehalata Mallick, W.P.(C) No.9308 of 2022 disposed of on 20.04.2022, W.P.(C) No.9495 of 2023 (Dr. Bhagyashree Parida), W.P.(C) No.14493 of 2023 (Dr.Amresh Pati). In all the above referred maters, this Court had intervened and directed the Opposite Parties to grant NOC. 14. Earlier the Petitioner approached this Court by filing W.P.(C) No.24089 of 2023 with a prayer to quash the impugned order dated 06.07.2023. this Court vide order dated 01.08.2023 disposed of the same by directing the Opposite Party No.1 to reconsider the matter and take a fresh decision within a week from the date of production of certified copy of the order keeping in view the guideline of the Government of Odisha in Finance Department dated 31.03.2023. In compliance to the aforesaid order dated 01.08.2023 the Opposite Party No.1 vide order dated 18.08.2023 rejected the case of the Petitioner on the ground that similar case of Dr.Prakharanshu who was selected for SR in Trauma Surgery at New Delhi, it was held by DMET, Odisha that Senior Resident is not a higher study. Accordingly, the case of the Petitioner was rejected by referring to the decision of Dr.Prakharanshu’s case. 15. Learned counsel for the Petitioner further referred to the case of Dr.Bhagyshree Parida. She submitted that Dr.Bhagyashree Parida approached this Court by filing W.P.(C) No.9495 of 2023. This // 7 // Court vide order dated 06.04.2023 disposed of the matter directing the Opposite Parties to consider her case to pursue Senior Resident. In compliance to the direction of this Court, the Opposite Parties have allowed the abovenamed Dr.Bhagyashree Parida to pursue Senior Resident subject to certain terms and conditions. Similarly, in the case of Amresh Pati, this Court directed the Opposite Parties to consider his case in the light of the Finance Department letter dated 31.03.2023. Accordingly, the State Government considered the case of Dr.Amresh Pati and he was allowed to pursue S.R.in the department of Microbiology at AIIMS, Raipur. She further contended that the Petitioner is ready and willing to give an undertaking that he will come back and join in the State Government service immediately after completion of his SR ship. Furthermore, the Petitioner has already deposited a security deposit of Rs.1,01,000/-. In the event the Petitioner fails to join within the extended time i.e. 28.08.2023 the aforesaid security deposit is likely to be forfeited by the Tata Memorial Centre, Homi Bhaba Hospital, Varanasi causing huge loss to the Petitioner. 16. Mr.Praharaj, learned Additional Government Advocate on the other hand referring to the instructions received from the State Government dated 23.08.2023 as well as 24.08.2023 submitted that the Government allowed the study leave to the Doctors working under the administrative control of H & FW department upto a maximum period of six years. In the service career for pursuing PG and post PG higher study. He further contended that as has been decided by DMET, Senior Resident is not higher study, rather the same is a duty period. Hence the S.R ship is to be considered as a service period and as such the Petitioner is not entitled to get study leave on that account. In the context of Dr.Bhagyashree Parida’s // 8 // case, learned Additional Government Advocate on instruction submitted that the representation of Dr.Bhagyashree Parida to pursue SR ship was rejected by the department on 12.01.2023 which was challenged before this Court in W.P.(C) No.9495 of 2023. This Court vide order dated 06.04.2023 directed the Opposite Party No.1 to issue NOC to the Petitioner within a period of one week from the date of production certified copy of the order. He further submitted that pursuant to the order passed by this Court, the Petitioner was permitted to pursue S R ship in O & G in Delhi Medical Council at her own cost and taking leave as is due and admissible and she was relieved by the Department letter dated 05.07.2023. 17. Learned Additional Government Advocate further referring to the OM of the Finance Department dated 31.03.2023 submitted before this Court that the Government has been pleased to decide that the study leave may be granted to the Doctors working under the administrative control of Health and Family Welfare department upto a maximum period of six years during the service career for pursuing P.G. & post PG higher study. In the aforesaid context learned Additional Government Advocate referred to the decision of DMET in the case of Dr.Prakkharanshu wherein it was decided by the DMET, Odisha that S R ship is not a higher study and accordingly the case of the aforesaid Dr. Prakharanshu was not considered. 18. Learned Additional Government Advocate further referring to the instructions dated 24.08.2023 of the H & FW department, Government of Odisha submitted before this Court that at present the State Government is expanding the number of Government Medical Colleges in the State of Odisha. In past few years eight numbers of // 9 // new Medical Colleges and Hospitals have been opened in the State. He further submitted that for getting NMC approval to open/renew medical colleges posting of certain number of S.Rs is mandatory criteria. Further, due to want of required number of S.R., State Government is facing difficulties in fulfilling the criteria of NMC for opening of new Medical Colleges. Moreover, although DMET, Odisha is regularly advertising for the post of S.R. in Government Medical Colleges of the State, he is not getting adequate number of Doctors for such post. Keeping in view the aforesaid difficulties the Government of Odisha through Finance Department has issued OM No.10235 dated 31.03.2023. The contents of such OM dated 31.03.2023 have been referred to in the preceding paragraph. It was emphatically argued by the Additional Government Advocate that S R ship is not a higher study, rather the same is a duty period, therefore, the Petitioner cannot avail study leave for joining as S.R. in a medical college outside the State of Odisha. 19. Having heard learned counsel appearing for the respective parties, on a careful consideration of the submissions made by the learned counsel as well as the materials on record, and the instructions received by the Additional Government Advocate from the H & FW department, Government of Odisha dated 23.08.2023 and 24.08.2023, this Court would now proceed to adjudicate the issue involved in the present Writ Petition. At the outset, this Court would like to observe that this adjudication is confined to the subject matter of Radiation Oncology in which the Petitioner is interested. No-doubt there are very few Government Medical Colleges in Odisha where there is Radiation Oncology subject. So far the AIIMS Bhubaneswar is concerned, it has been stated on behalf of the petitioner that there is only one post of S.R. in the faculty of // 10 // Radiation Oncology. In such background, this Court is constrained to hold that there are adequate facility for the Radiation Oncology subject in the State of Odisha While saying so, this Court may differ so far as other faculties are concerned, where there are adequate number of colleges, teaching various other subjects and therefore there may be adequate number of Doctors to join as Senior Resident/Tutor in such colleges. 20. The next issue that was highlighted by the learned Additional Government Advocate basing upon the instruction received from the State Government that S.R. is not a higher study, rather the same is a duty period. If that is so, then how the Government has fixed the experience of S.R. as a mandatory requirement for appointment to the post of Assistant Professor. Unless a Doctor acquires the experience as a S.R., he will not be considered for promotion/appointment to the post of Assistant Professor in any of the Government Medical Colleges. If the experience of Senior Resident is mandatory for being appointed as Assistant Professor, then he same is definitely an eligibility criteria or a qualification required for being promoted to the next higher post. While imposing such restriction of having experience as a SR., the Government at the same time cannot take a stand that the same is a mere duty period. Had that been so, then while fixing the eligibility criteria for Assistant professor, they would have provided experience as a Doctor would be sufficient for being appointed as Assistant Professor. 21. Be that as it may, even assuming that SR is not a higher study and should be treated as duty period, then by applying the O.M. dated 31.03.2023, it can at best be said that the Petitioner will not be // 11 // entitled to study leave, as the Petitioner is entitled to a part of his service condition and as such he will also not be entitled to financial benefit as is admissible during such study leave period. However, this Court is of the firm view that the State Government cannot impose any restriction on the future career of the Petitioner and further they cannot restrict the future career prospect of the Petitioner by imposing such condition which are likely to adversely affect the career prospect of the Petitioner or similarly placed other Doctors who had a legitimate expectation of a bright service career and future. No doubt as a Government employee, the Petitioner as well as other similarly situated persons are bound by the terms and conditions of service as well as the undertakings given by them to their employer. 22. Coming back to the case of Dr. Bhagyashree Parida, referred to in the instruction dated 23.08.2023, this Court observes that in the case of Dr. Bhagyashree Parida, this Court had directed the State Government to issue NOC in her favour vide order dated 06.04.2023 in W.P.(C) No.9495 of 2023. The NOC was for the purpose of making an application for Senior Resident. However, this Court never directed in that case to sanction leave and to relieve the petitioner to join as Senior Resident. However, the State-Opposite Parties pursuant to the order of this Court initially granted NOC to Dr. Bhagyashree Parida. Thereafter, vide letter No.15865 dated 05.07.2023 relieved Dr. Bhagyashree Parida to pursue her SR ship in the department of O & G in Indira Gandhi Hospital, Dwaraka, New Delhi. Subject to the conditions as follows: i. The Medical Officer concerned will pursue SR ship at her own cost availing leave due and admissible to her. // 12 // ii. The Medical Officer concern will give an undertaking in shape of an affidavit to the DHS through concerned authority to the effect that she will join in this Department soon after completion of SR ship positively failing which DP will be initiated against her. The above decision was taken by the H & FW Dept. after considering the case of Dr. Bhagyashree Parida. The case of the Petitioner is almost identical to the case of Dr. Bhagyashree Parida. Only difference being Dr. Bhagyashree Parida was pursuing her career in O & G Dept. whereas the Petitioner in Radiation Oncology. In such view of the matter, this Court is of the considered view while permitting Dr. Bhagyashree Parida the very same O M was in force and denying the Petitioner similar benefit would be unjust, unfair and arbitrary. 23. In view of the aforesaid analysis of the fact as well as law and keeping in view the fact that the prospect of getting opportunity for SR ship in the Radiation Oncology in the State of Odisha is very limited and keeping in view the interest of the Petitioner as well as the Cancer Patient in the State of Odisha, this Court is of the view that the State Government should have allowed the petitioner to join as a Senior Resident at Tata Memorial Centre, Homi Bhaba Hospital, Varanasi for one year with the terms and conditions as has been imposed on Dr. Bhagyashree Parida vide letter dated 05.07.2023. Accordingly, this Court has no hesitation to quash the impugned rejection order dated 18.08.2023 under Annexure-10 to the writ petition. Accordingly, the same is hereby quashed. Further, the Opposite Party No.1 is directed to relieve the Petitioner forthwith on production of certified copy of this order by the Petitioner preferably // 13 // not later than 28.08.2023. However, such relieve order shall be subject to the terms and conditions as has been imposed in the case of Dr. Bhagyashree Parida in H & FW Dept. letter No.15685 dated
Decision
05.07.2023. While disposing of the writ petition this Court makes it clear that keeping in view the peculiar facts and circumstances of the present case, this order has been passed and that this Court has not tested the validity and legality of the OM dated 31.03.2023 of the Finance Department. 24. Accordingly, the writ petition is allowed. Issue urgent certified copy of this order as per Rules in course of the day. RKS ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: Ex-A.R.-cum-Sr. Secretary Reason: Authentication Location: High Court of Orissa Date: 25-Aug-2023 20:27:18