Orissa High Court
Dr. Pramod Kumar Satapathy vs State Of Odisha & Ors. .... Opposite ... on 4 September, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C)(OA) No.221 of 2010
Dr. Pramod Kumar Satapathy .... Petitioner
Mr. G.K. Behera, Advocate
-versus-
State of Odisha & Ors. .... Opposite Parties
Mr. H.K. Panigrahi, ASC
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
04.09.2023 Order No
07. 1.This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode .
2. Heard Mr. G.K. Behera, learned counsel for the Petitioner and Mr. H.K. Panigrahi, learned Addl. Standing Counsel appearing for the Opp. Parties.
3. The present writ petition has been filed inter alia with the following prayer:-
"In view of the facts stated above in paragraph-6, the applicant prays for the following relif(s):-
(i) The Hon'ble Tribunal may be pleased to quash the order of rejection dtd.3.12.2009 as at Annexure-17.
// 2 //
(ii) The Hon'ble Tribunal may be pleased to quash the impugned order dated 7.11.2008 at Annexure-13 so far it relates to applicant.
(iii) And accordingly the state respondents be directed to absorb the applicant in the teaching cadre by taking into account his prolonged teaching experience as well as P.G. qualification in the concerned subject, with all service benefits for which the represented under Anenxure-11 & 22.
(iv) And further direct the state respondents to disburse the unpaid salary of the applicant from 1.7.2008 from the Homoeopathic Medical College where he is continuing.
(v) The Hon'ble Tribunal be further pleased to pass such other order/orders as deem fit and proper."
4. It is the case of the Petitioner that after completing his course in BHMS, Petitioner was appointed as a Homeopathic Medical Officer (HMO) after being duly selected and appointed vide order dtd.04.12.1986 so issued by the Directorate of Indian Medicines and Homeopathy, Odisha under Annexure-1. In terms of the said order issued on 04.12.1986 under Annexure-1, Petitioner whose name finds place at Sl. No. 8 in general category, joined in service as a HMO on 10.12.1986.
4.1. It is contended that while continuing as a HMO, vide order dtd.01.07.1997, the Petitioner was transferred and posted to Biju Pattnaik Homeopathic Medical College and Hospital, Berhampur, in the district of Ganjam (in short "BPHM College") which was earlier known as Co-operative Homeopathic Medical College & Hospital, Berhampur for imparting teaching on the subject 'Social Page 2 of 14 // 3 // and Preventive Medicine' (S.P.M.). On his transfer to the aforesaid College vide order dtd.27.10.1998 under Annexure-2/1 the Petitioner was allowed to take classes as a part time lecturer in the subject of Organon of Medicine. Not only that taking into account the continuance as a Part Time Lecturer, the name of the Petitioner was also registered as a College Teacher in Berhampur University vide Registration No. 27/99 under Annexure-2/2. 4.2. While continuing as such in the College in question the Petitioner was relieved for undergoing P.G. Diploma in Health Education Course at All India Institute of Hygiene and Public Health, Kolkata vide Notification issued by the Govt. in the Department of Health & Family Welfare on 12.08.2003 under Annexure-3.
4.3. It is contended that on coming back after completing the P.G. Diploma from All India Institute of Hygiene and Public Health, Kolkata, Petitioner was posted against the vacant post of Associate Professor in the Department of Materia Medica in BPHM College vide order dtd.03.07.2004 under Annexure-4 issued by the Opp. Party No. 2. Pursuant to the order dtd.03.07.2004 under Annexure-4 Petitioner joined as an Associate Professor on 05.07.2004. Taking into account such status of the Petitioner, Opp. Party No. 2 vide his Page 3 of 14 // 4 // letter dtd.09.08.2004 under Annexure-5 requested the Govt.-Opp. Party No. 1 to sanction the study leave of the Petitioner for the period from 01.07.2003 to 30.06.2004. It is also contended that Opp. Party No. 2 vide another letter issued on 25.10.2004 under Annexure-5/1 requested the Govt.-Opp. Party No. 1 to regularize the P.G. study period and sanction the deputation/study leave in favour of the Petitioner inter alia taking the ground that the Diploma course in Health Education so undertaken by the Petitioner at Kolkata is helpful in teaching for a teacher of Social and Preventive Medicine.
4.4. Subsequently, vide letter dtd.20.09.2004 under Annexure-6 Opp. Party No. 1 when sought for some clarifications, Opp. Party No. 2 provided the required clarifications. On receipt of such clarifications Govt.-Opp. Party No. 1 also sanctioned the study leave in favour of the Petitioner for the period from 01.07.2003 to 30.06.2004 under Annexure-7.
4.5. It is also contended that taking into account his continuance as an Associate Professor in Materia Medica in the College in question, Opp. Party No. 2 vide his letter dtd.23.02.2005 under Annexure-8 requested the Opp. Party No. 1 to make necessary arrangements in the teaching duty by assigning teaching duty as Page 4 of 14 // 5 // well as duty of In-charge of Community Medicines (S.P.M.) of the College to the Petitioner as he has got the specific qualification from All India Institute of Hygiene and Public Health, Kolkata. However, in the meantime Govt.-Opp. Party No. 1 vide letter dtd.15.01.2005 permitted drawal of Grade Pay to the H.M.Os. & Demonstrator posted at Dr. A.C.H.M.C. & H., Bhubaneswar. 4.6. It is contended that taking into account the continuance of the Petitioner as an Associate Professor and his acquiring the Diploma in the subject in question, Opp. Party No. 2 gave the no objection to the Petitioner to prosecute his Ph.D. in Health Education (S.P.M.) Preventive & Social Medicine under Berhampur University vide letter dtd.07.07.2006 under Annexure-9. In the meantime Govt. in the Department of Health & Family Welfare, Govt. of India vide letter dtd.14.11.2006 under Annexure-10also clarified that Diploma in Health Education so acquired by the Petitioner is a Post Graduate qualification and the said qualification is a subject specialty of Social and Preventive Medicine, which includes Health Education & Family Medicines.
4.7. It is contended that taking into account his continuance as a Part Time Lecturer w.e.f.27.10.1998 and as an Associate Professor w.e.f.05.07.2004 as well as the acquisition of the qualification of Page 5 of 14 // 6 // Diploma in Health Education, which is equivalent to a Post Graduation qualification, Petitioner taking into account his continuance as a Part Time Lecturer and/or Associate Professor moved the Govt.-Opp. Party No. 1. On 21.07.2007 under Annexure-11 with a request to absorb/appoint him in the Teaching Cadre permanently as a Reader in P.S.M. subject. As the same was kept pending Petitioner again moved another application before the Opp. Party No. 2 reiterating the same prayer on 30.08.2007 under Annexure-11/1. On receipt of the representation under Annexure-11 Govt.-Opp. Party No. 1 vide letter dtd.08.08.2007 sought for a report from Opp. Party No. 2. But it is contended that without considering the claim of the Petitioner for his absorption against the teaching cadre, Petitioner vide office order dtd.07.11.2008 so issued by the Opp. Party No. 2 pursuant to the letter issued by the Govt. on 28.07.2008, was transferred and posted to GHD, Kodama, Rayagada. While transferring the Petitioner vide order dtd.07.11.2008 to GHD, Kodama, Petitioner however was allowed to work in the College in question.
4.8. Petitioner challenging order dtd.07.11.2008 under Annexure-13 approached the Tribunal in O.A. No. 1461 of 2008. But prior to approaching the Tribunal, Petitioner since had made an application before the Opp. Party No. 1 inter alia with a prayer to absorb him Page 6 of 14 // 7 // against the vacant post of Lecturer in S.P.M., the Tribunal while disposing the matter vide order dtd.20.11.2008 under Annexure-16 permitted the Govt.-Opp. Party No. 1 to take a decision on such application submitted by the Petitioner on 14.11.2008 under Annexure-15.
4.9. It is contended that the Tribunal while disposing the matter vide order dtd.20.11.2008 for consideration of the representation dtd.14.11.2008 passed an interim order by holding that the status- quo of the Petitioner as on 20.11.2008 is to be maintained. 4.10. It is contended that without considering the genuine grievance raised by the Petitioner in his representation dtd.14.11.2008 and the direction issued by the Tribunal in its order dtd.20.11.2008, the claim of the Petitioner to draw the salary admissible to the post of Lecturer was rejected vide order dtd.03.12.2009 under Annexure-
17. The present writ petition has been filed inter alia challenging the order dtd.03.12.2009 under Annexure-17 as well as the order passed by the Opp. Party No. 1 on 07.11.2008 under Annexure-13. 4.11. It is contended that the Tribunal while issuing notice of the matter vide order dtd.03.03.2010 passed an interim order to maintain status-quo and also directed for release of the arrear and current salary of the Petitioner. On the face of the order passed by Page 7 of 14 // 8 // the Tribunal on 03.03.2010 when the salary of the Petitioner as directed was not released, C.P. No. 58 of 2011 was filed. 4.12. It is contended that on the face of the order passed by the Tribunal on 03.03.2010 the Petitioner was allowed to continue as an Associate Professor in the College in question till he was promoted to the rank of Class I (JB) vide order dtd.14.08.2019 so issued by the Opp. Party No. 1 and posted to DHMO, Kandhamal. But in the said order the place of posting as on 14.08.2019 is was shown as BPHM College, Berhapur.
4.13. It is contended that pursuant to the order passed on 14.08.2019 the Petitioner joined at DHMO, Kandhamal on 30.08.2019 and while continuing as such he retired from his service on attaining the age of superannuation on 30.06.2022. After his retirement from service the Petitioner was again re-engaged as a contractual Reader in BPHM College, Berhapur.
5. Learned counsel for the Petitioner contended that even though the Petitioner was appointed as a Homeopathic Medical Officer vide order under Annexure-1 in the year 1986, but on his transfer to BPHM College vide order dtd.01.07.1997, he was allowed to take classes as a Part Time Lecturer vide order dtd.27.10.1998 under Annexure-2/2. The Petitioner subsequently was posted against the Page 8 of 14 // 9 // vacant post of Associate Professor vide order dtd.05.07.2004 under Annexure-4. Not only that vide order dtd.23.02.2005 under Annexure-8, Petitioner was allowed to remain as Department in- charge of Community Medicine (S.P.M.). The Petitioner in the meantime was also allowed to undergo P.G. Diploma in Health Eduction at All India Institute of Hygiene and Public Health, Kolkata, which was declared as a Post Graduate qualification by the Govt. of India in the Department of Health & Family Welfare. 5.1. It is contended that w.e.f.27.10.1998 till the Petitioner was transferred and posted to DHMO, Kandhamal vide order dtd.14.08. 2019 where he joined on 30.08.2019, Petitioner continued as a teaching faculty in BPHM College, Berhampur. It is contended that in view of such long continuance as a teaching faculty in the College in question, the Petitioner is eligible and entitled for his absorption in the teaching cadre. But without considering such claim so made by the Petitioner under Anenxure-11 & 11/1 as well as in the representation dtd.14.11.2008 under Annexure-15, Petitioner though was posted as a HMO in GHD, Kodama, Rayagada vide order dtd.07.11.2008, but he was allowed to work in the Hospital in question till he was promoted and transferred to DHMO, Kandhamal vide order dtd.14.08.2019. It is accordingly contended that Petitioner in view of such long continuance in Page 9 of 14 // 10 // BPHM College, Berhampur is eligible and entitled for his absorption in the teaching cadre and rejection of the said claim so made vide order dtd.03.12.2009 under Anenxure-17 is not sustainable in the eye of law and liable for interference.
6. Mr. H.K. Panigrahi, learned Addl. Standing Counsel appearing for the Opp. Parties on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the Opp. Party Nos. 1 & 2. It is contended that the Petitioner was appointed as a H.M.O., which belong to a Periphery cadre and he does not belong to the teaching cadre at any point of time. Even though the Petitioner was allowed to work against the vacant post of Lecturer, Organon of Medicine in BPHM College, Berhampur and as an Associate Professor against the vacant post w.e.f.05.07.2004, but at no point of time the Petitioner was treated as a Lecturer in the teaching cadre.
6.1. It is also contended that while so continuing, Petitioner vide order dtd.07.11.2008 was not only transferred and posted as Homeopathic Medical Officer, Govt. Homeopathy Dispensary, Kodama in the district of Rayagada, but also pursuant to the said order, he was relieved vide order No. 1086 dtd.14.11.2008 vide Annexure-F to the counter. On being so relieved though the Page 10 of 14 // 11 // Petitioner joined in GHD, Kodama on 22.11.2008, but he was allowed to continue in the College, because of the order of status- quo passed by the Tribunal. It is also contended that in similar claim made by one Dr. Chittaranjan Kar before this Court in W.P.(C) No. 7456 of 2009, this Court passed the following order:-
"Hence, this Court has no jurisdiction to direct the O.Ps to appoint or absorb the petitioner to the post of Lecturer. It is for the appropriate authority to take a decision as per the prevailing rules and regulations. It is essentially an act of executive, which cannot be usurped by the judiciary while exercising the power of judicial review. Accordingly, we are not inclined to interfere with the impugned order."
6.2. It is also contended that since the Petitioner was appointed as a H.M.O., which belongs to Periphery cadre, even if the Petitioner was allowed to take classes in BPHM College, Berhampur, but that does not give any right to the Petitioner to be absorbed in the teaching cadre and thereby enabling him to get the benefit of the said cadre. It is also contended that the claim made by the Petitioner for his absorption in teaching cadre cannot be entertained as the Petitioner was appointed in the Periphery cadre. The Petitioner by facing due recruitment process was never appointed as against any teaching post in BPHM College, Berhampur. It is accordingly contended that the claim of the Petitioner has been rightly rejected Page 11 of 14 // 12 // vide order dtd.03.12.2009 under Annexure-17 and it requires no interference.
7. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that even though the Petitioner was appointed as a Homeopathic Medical Officer vide order under Annexure-1, where he joined on 10.12.1986. But the Petitioner w.e.f.27.10.1998 was allowed to take classes as a Part Time Lecturer in BPHM College & Hospital, Berhampur. Subsequently, the Petitioner vide order dtd.05.07.2004 under Annexure-4 was posted against the vacant post of Associate Professor of the said College. The Petitioner again vide order dtd.23.02.2005 under Annexure-8 was allowed to remain as Department In-charge, Community Medicine. During his continuance in the college, Petitioner was also allowed study leave to undergo P.G. Diploma in Health Education course at All India Institute of Hygiene and Public Health, Kolkata. The said qualification as found from the clarification issued by the Govt. of India is a Post Graduate qualification.
7.1. Even though vide order dtd.07.11.2008 under Annexure-13, Petitioner was posted as H.M.O. to GHD, Kodama, but he was allowed to work in the College for teaching purposes. As found Page 12 of 14 // 13 // from the record the Petitioner on the face of the order issued by the Govt. on 07.11.2008 under Annexure-13 and the interim order passed by the Tribunal initially on 20.11.2008 in O.A. No. 1461 of 2008 and on dtd.03.03.2010 in the present case, was allowed to work in the College till 29.08.2019 when he was relieved because of his promotion and posting to DHMO, Kandhamal vide order dtd.14.08.2019.
7.2. Therefore, from the materials available on record, it is found that the Petitioner w.e.f.27.10.1998 till 29.08.2019 continued as a Part Time Lecturer/Associate Professor in BPHM College and Hospital, Berhampur. In view of such long continuance in the College as a teaching faculty, it is the view of this Court that the claim of the Petitioner for his absorption in the teaching cadre needs sympathetic consideration by the Opp. Party No. 1. 7.3. While taking such a view, this Court is inclined to quash the order dtd.03.12.2009 so issued by the Opp. Party No. 1 under Annexure-17. While quashing the same, this Court directs Opp. Party No. 1 to take a fresh decision on the claim of the Petitioner for his absorption in the teaching cadre taking into account his long continuance as a teaching faculty in BPHM College & Hospital, Berhampur for the period from 27.10.1998 till 29.08.2019. Such a Page 13 of 14 // 14 // fresh decision shall be taken by the Opp. Party No. 1 within a period of three (3) months from the date of receipt of this order.
8. The writ petition is accordingly disposed of.
(Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Sep-2023 16:14:17 Page 14 of 14