The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OA) No.1786 of 2019 An application under Section 19 of the State Administrative Tribunal’s Act, 1985. ……………… Dr. Desabandhu Behera …. Petitioner -versus- Govt. of Odisha & Others …. Opposite Parties For Petitioner : M/s.S.Jena & S.Mohanty. For Opp. Parties : M/s.S.B. Jena. PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing:14.12.2022 and Date of Order:10.01.2023 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. The present Writ Petition has been filed inter alia with the following prayer:- “(i) Admit and allow this O.A (ii) Quash the advertisement No.12 of 2018/19 as at Annexure- 5 to the O.A and the order of rejection dated 24.05.2019 as at Annexure-8 to the O.A (so far as it relates to the applicant). (iii) Direct the respondents to fill up the post of Assistant Professor in terms of the provisions laid down in the Recruitment Rules, 2013 as at Annexure-9 to the O.A. And (iv) Pass such other order as the Hon’ble Tribunal deem fit and proper”. // 2 // 2. The factual backdrop giving rise to filing of the present writ petition is that the Petitioner after completing his MBBS course in the year 2002 was posted at different places as an Asst. Surgeon. The Petitioner while continuing at VSS Medical College Burla, he was selected to undergo the post Graduate Course in Medicine in the year 2011 and took admission to prosecute the said course in MKCG, Medical College and Hospital, Berhampur on 30.06.2011. The Petitioner subsequently, completed his P.G. course in Medicine in the month of April, 2014 and was posted as a Specialist in Medicine in community Health Centre, Marshaghai on 21.07.2014. Subsequently, the Petitioner got himself admitted to prosecute Senior Residency in MKCG, Medical College & Hospital in the Department of Nephrology on 04.11.2014. The Petitioner completed the Senior Residency in the discipline Nephrology on 03.11.2017. After completing his Senior Residency from the Department of Nephrology in MKCG, Medical College & Hospital, Berhampur, the Petitioner was posted at City Hospital, Cuttack on 04.11.2017, where he continued till 29.01.2018. The Petitioner thereafter was transferred and posted to Bhimbhoi Medical College and Hospital, Bolangir Page 2 of 15 // 3 // as Asst. Prof. in General Medicine, where he joined on 30.01.2018. 2.1. While continuing at Bhimbhoi Medical College and Hospital, Bolangir as an Asst. Prof. in General Medicine, Odisha Public Service Commission (in short ‘Commission’) issued the advertisement vide Advertisement No.12 of 2018/19 under Annexure-5 inviting applications for recruitment to the post of Assistant Professor (Super Specialty and Specialty) under the Odisha Medical Education Service Cadre for posting in the government medical colleges of the State in Group-A of the Odisha Medical Education Service (Methods of Recruitment and Conditions of Service) Rules, 2009 under the Health & Family Welfare Department of the State. In terms of the said advertisement and the Petitioner having belong to S.C category, made his application for the post of Asst. Professor in Specialty in the discipline of Medicine. As per the said advertisement and in respect of the discipline medicine as against the total 13 nos. of vacancies, 3 posts were reserved for SC candidates with one post reserved for SC (women). On receipt of his application, the Petitioner was issued with Roll No.251 in respect of the discipline Medicine. But thereafter vide notice dated 24.05.2019 Page 3 of 15 // 4 // under Annexure-8, when the candidature of the Petitioner was rejected on the ground that the Petitioner is not eligible as per the provisions laid down in the advertisement and vide earlier notice issued on dated 23.05.2019 under Annexure-11, the Commission decided to conduct the viva voce test for recruitment to the post of Assistant Professor (Specialty) in Medicine, the Petitioner challenging such rejection of his candidature approached the Tribunal in O.A No.1786 of 2019. The Tribunal while issuing notice of the matter vide order dated 29.05.2019 passed an interim order by allowing the Petitioner to participate in the viva voce test scheduled to be held on 3.6.2019 in the discipline of Medicine but with a condition that the result of the Petitioner may not be published without leave of the Tribunal. In terms of the said interim order passed by the Tribunal, the Petitioner was allowed to take part in the viva voce test. 3. It is the contention of the learned counsel for the Petitioner that the Petitioner after completing his MBBS Course in the year 2002, he took admission to prosecute the Post Graduate in Medicine in MKCG, Medical College & Hospital, Berhampur on 30.06.2011. The Petitioner Page 4 of 15 // 5 // completed the said P.G Course in General Medicine held in the month of April, 2014. The said fact is reflected in the certificate issued by Berhampur University under Annexure-4. The Petitioner thereafter took admission to prosecute his Senior Residency in the Department of Nephrology in MKCG, Medical College & Hospital, Berhampur on 04.11.2014 and he was relieved from the said Department after completing his Senior Residency on 03.11.2017. The said fact is also reflected in the certificate issued by the Dean and Principal, MKCG, Medical College & Hospital, Berhampur on 03.11.2017 vide Annexure-10. 3.1. It is contended that after completing his Senior Residency, the Petitioner was posted at City Hospital, Cuttack on 04.11.2017 and subsequently, he was transferred and posted as an Asst. Professor in General Medicine in Bhimbhoi Medical College and Hospital, Bolangir, where he joined on 30.1.2018. While continuing as an Asst. Professor in General Medicine, the advertisement under Annexure-5 was issued by the Commission inviting application to fill up the post of Asst. Professor (Super Specialty and Specialty) under the Odisha Medical Education Service cadre in Group-A of the Odisha Page 5 of 15 // 6 // Medical Education Service (Methods of Recruitment and Conditions of Service) Rules, 2009.
Legal Reasoning
3.2. It is contended that the Petitioner having the eligibility to make his application for the post of Asst. Professor in Specialty in the Discipline Medicine, made his application for the said post. In the advertisement and for the post of Asst. Professor in (Specialty) in the Discipline of Medicine, the prescribed Academic qualification and teaching experience was prescribed as MD (Medicine) with three years teaching experience in the subject from the recognized Medical College as Tutor or Senior Resident. 3.3. It is contended that the Petitioner with having M.D in Medicine and having Senior Residency completed in Nephrology from MKCG, Medical College & Hospital, Cuttack, he was having the required qualification as prescribed in the advertisement. The Petitioner accordingly made his application online vide Annexure-6 and the Petitioner was allotted with Roll No.251 as reflected in Annexure-7. Subsequently, vide notice dated 24.05.2019 under Annexure-8, when his candidature was rejected on the ground that the Petitioner is not eligible as per the Page 6 of 15 // 7 // provision laid down in the advertisement and vide another notice issued earlier on dated 23.05.2019 under Annexure-11, the Commission decided to conduct the viva voce test in different discipline including Medicine, the Petitioner challenging the rejection of his candidature approached the Tribunal in O.A No.1786/2019. Pursuant to the interim order passed by the Tribunal on 29.05.2019, the Petitioner was allowed to take part in the viva voce test held on 03.06.2019 in the Discipline of Medicine. 3.4. It is contended that as indicated in the advertisement the Commission took up the recruitment test to fill up the post of Asst. Professor (Super Specialty and Specialty) under the Odisha Medical Education Service Cadre for posting in the Government Medical Colleges of the State in Group-A of the Odisha Medical Education Service (Methods of Recruitment and Conditions of Service) Rules, 2009 (in short 2009 Rules). By the time the advertisement under Annexure-5 was issued vide Advertisement No.12 of 2018/2019, the relevant 2009 Rules was already amended vide notification dated 18.12.2013 under Annexure-9. As per the said amended provision contained under Rule- 2(XIV) specialty means any of the subjects of Anatomy and etc, which also includes medicine. Similarly, Super Page 7 of 15 // 8 // Specialty means any of the subjects of medicine or surgery mentioned under Rule-2(XV). 3.5. It is contended that under Rule-2(XV), the discipline Medicine includes different subjects, which also includes Nephrology. Accordingly, it is contended that the Petitioner having PG degree in General Medicine and Senior Residency in Nephrology, in view of the provision contained under Rule-2(XV) of the amended Rules, the Petitioner is eligible to make his application for the post of Asst. Professor (Specialty) in the Discipline Medicine. But it is contended that the Commission by misinterpreting the same illegally rejected his candidature vide notice dated 24.05.2019 under Annexure-8. 3.6. It is further contended that since the Petitioner does possess the requisite qualification and he was allowed to take the viva voce test in terms of the interim order passed by the Tribunal, the Commission be directed to publish his result and if the Petitioner has qualified the test, then he be provided with the appointment as an Asst. Professor in Medicine. 4. Mr. S.B. Jena, learned counsel appearing for the Commission on the other hand made his submission Page 8 of 15 // 9 // basing on the stand taken in the counter filed by the Opposite Party No.4. It is contended that while verifying the documents of eligible candidates to call them to take the viva voce test as in the application of the petitioner deficiency was found to the effect that he does not have Senior Residency in the discipline Medicine his candidature was rejected vide notice issued on dated 24.05.2019 under Annexure-8. 4.1. It is further contended that the Government in Health & Family Welfare Department in its letter dated 18.12.2013 clarified that the recruitment to the posts in terms of Advertisement No.12/2018/2019 shall be made as per the provisions laid down under the Pre amended 2009 Rules, as all those posts for which the advertisement has been issued have fallen vacant prior to 18.12.2013. 4.2. It is accordingly contended that the reliance placed by the Petitioner to the notification issued on 18.12.2013 under Annexure-9 wherein 2009 Rules were amended cannot be made applicable to the case of the Petitioner as the Petitioner does not possess the Senior Residency in the Discipline of Medicine and he has Senior Residency in the subject of Nephrology. Page 9 of 15 // 10 // Accordingly, it is contended that the Commission has not done any wrong in rejecting the candidature of the petitioner and the same has been done by following the terms and conditions of the advertisement. 5. To the aforesaid stand taken by the learned counsel appearing for the Commission, learned counsel for the Petitioner contended that since the Petitioner was allowed to take the viva voce test in terms of the interim order passed by the Tribunal and in the order of appointment issued by the Opposite Party No.4 vide notification dated 18.05.2020 under Annexure-A, it has been clearly mentioned that the appointment of the candidate in the Discipline Medicine shall be subject to outcome of the O.A No.1786/2019, the Commission be directed to publish his result. 5.1. It is also contended that as against the Discipline Medicine, three posts were reserved for S.C category and one SC (Male) has been appointed and other post meant for SC (Male) has remained vacant till date. 5.2. Learned counsel for the Petitioner further contended that by the time the advertisement under Annexure-5 was issued, 2009 Rules was already amended vide notification Page 10 of 15 // 11 // dated 18.12.2013 under Annexure-9. As per the said amended provision, Nephrology is one of the subject in the discipline of Medicine. Since the Petitioner has completed three years of Senior Residency in Nephrology, the Petitioner does have the requisite qualification as provided under Clause-4 of the advertisement. 5.3. It is also contended that one Dr. Pranay Kumar Patra appointed as an Asst. Professor in Medicine vide notification dated 02.08.2016 does not have the Senior Residency in Medicine as he had prosecuted the Senior Residency in Neurology. But taking into account the fact that Neurology is one of the subject in the discipline of Medicine, which is evident from Rule-2(XV) of the 2009 Rules, he was provided with the appointment in terms of the advertisement issued by the Commission vide Advertisement No.15/2015/2016. 5.4. It is also contended that one Dr. Abinash Kumar Panda and Dr. Mahadev Prasad Patra were appointed as an Asst. Professor (Specialty) in the Discipline Surgery, though they do not have Senior Residency in the discipline of Surgery. Those two doctors were provided with the appointment as an Asst. Professor (Specialty) in Surgery Page 11 of 15 // 12 // vide notice dated 30.05.2018 pursuant to the Advertisement No.10/2016/2017 issued by the Commission. While Dr. Abinash Kumar Panda had got his Senior Residency in the subject Pediatric Surgery, Dr. Mahadev Prasad Patra prosecuted his Senior Residency also in Pediatric Surgery. But in view of the stipulation contained under Rule-2(XV) of the 2009 Rules, both Mr. Panda and Patra were appointed as Asst. Professor (Specialty) in the Discipline Surgery. 5.5. Learned counsel for the Petitioner accordingly contended that since Nephrology is one of the subject in the discipline Medicine as provided under Rule-2(XV) of the amended 2009 Rules, the rejection of the candidature of the Petitioner vide Annexure-8 is illegal and liable for interference of this Court. 6. I have heard Ms. Sujata Jena, learned counsel for the Petitioner and Mr. S.B. Jena, learned counsel appearing for the OPSC. On the consent of the learned counsel appearing for both the Parties, the matter was taken up for final disposal at the stage of admission and disposed of by the present order. Page 12 of 15 // 13 // 7. Since it is the contention of the learned counsel appearing for the Commission that the advertisement under Annexure-5 was issued to fill up the vacancies, which have fallen vacant prior to issuance of the notification under Annexure-9, this Court vide its order dated 01.12.2022 directed to Mr. Jena to produce the pre-amended 2009 Rules for perusal of this Court. Pursuant to the said order the pre-amended 2009 Rules was produced for perusal and this Court after due perusal of the same finds that as per Rule-2(IV) of the pre-amended 2009 rules, Nephrology is one of the subject in the discipline Medicine and Pediatric Surgery is one of the subject in the discipline Surgery. In view of the fact that both in the pre-amended 2009 rules as well as in the amended rules, since Nephrology is one of the subject in the discipline Medicine, it cannot be said that the Petitioner does not have the requisite qualification in terms of the advertisement issued under Annexure-5. Not only that similarly situated candidate with having Senior Residency in Neurology, which is also one of the subject in the discipline Medicine has been provided with the appointment vide order dated 02.08.2016 under Annexure-D. Not only that similarly situated candidate with Senior Residency in Pediatric Surgery have been Page 13 of 15 // 14 // appointed as Asst. Professor (Specialty) in Surgery vide order issued under Annexure-G and H. Therefore, the stand taken by the Commission that the Petitioner since does not have the Senior Residency in the subject Medicine, his candidature has been rightly rejected vide the impugned notice under Annexure-8 as per the considered view of this Court is not acceptable. In view of the provision contained under Rule-2(IV) of the pre-amended Rules, 2009 as well as Rule-2(XV) of the amended Rules. Since Nephrology is one of the subject of Medicine, it is the view of this Court that the Petitioner has got the requisite qualification in terms of the advertisement issued under Annexure-5. 7.1. Therefore, while holding so and in view of the fact that the Petitioner pursuant to the interim order passed by the Tribunal has been allowed to take part in the viva voce test, this Court directs the Commission to publish the result of the Petitioner. If on such publication of the result, it is found that the Petitioner has qualified the test, then necessary follow-up action be taken by providing appointment to the Petitioner as an Asst. Professor (Specialty in Medicine) in SC (Male) category. This Court directs the Commission to complete the entire exercise within a period of one (1) month from the date of receipt of Page 14 of 15 // 15 // this order. Opposite Party No.1 is also directed to act in terms of the recommendation of the commission within a further period of one (1) month. 8. With the aforesaid observations and directions, the
Decision
Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 10th of January, 2023/ Subrat (Sr. Steno) Page 15 of 15