Orissa High Court
Dr. Smrutisudha Pattnaik vs Acharya Harihar Regional Cancer Centre ... on 2 May, 2017
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No. 1779 of 2016
In the matter of an application under Article 226 of the
Constitution of India.
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AFR Dr. Smrutisudha Pattnaik .... Petitioner
-Versus-
Acharya Harihar Regional Cancer
Centre, Cuttack & Others .... Opp. Parties
For petitioner : Mr. J. Pattnaik, Sr. Advocate
along with M/s. B. Mohanty,
T.K. Pattnayak, A. Patnaik, S.
Patnaik, B.S. Rayaguru, and S.
Mohapatra, Advocates.
For opp. parties : M/s. B. Nayak and
B.M. Bhuyan, Advocates
[ O.P. No.1]
Mr. A.K. Mishra,
Addl. Government Advocate
[O.P. No.2]
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PRESENT
THE HONOURABLE DR. JUSTICE B.R. SARANGI
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Date of hearing : 25.04.2017 : Date of judgment:02.05.2017
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DR. B.R. SARANGI, J. Acharya Harihar Regional Cancer Centre
(AHRCC) is a society registered under the Societies
Registration Act, 1860. All members of its Governing
Council are officers of the State Government. The Health
Minister of the State of Odisha is the President and
Health Secretary is the Secretary of the Society. The said
Society was formed on 24.04.1984. Acharya Harihar
Regional Centre for Cancer Research and Treatment
Society Bye-laws Amendment Rules, 2013 (hereinafter
referred to as "Rules, 2013") came into force w.e.f.
28.02.2013. As per Rule 18 of Chapter-3 of Rules 2013, appointment to all posts shall be made on the basis of recommendation of the Selection Committee or Staff Selection Committee, as the case may be, by the appointing authority. Director shall, in consultation with the Secretary to Government, Health & Family Welfare Department, Government of Odisha, frame standing order for the purpose of fixing the age, qualification and experience etc. required for direct recruitment to any post of the Centre and for promotion to any post belonging to 3 Group-B, C & D. The Society is run by the fund given by State Government of Odisha, Government of India, the grants, donations and gifts from other Governments, Corporate Bodies, Institutions, Organization, other individuals, and charges collected towards admission, care and treatment of patients.
2. Pursuant to advertisement dated 27.08.2015 (Annexure-1), applications were invited in the prescribed form from eligible candidates for the post of Senior Residents in different disciplines to work in the AHRCC. The last date for submission of application form was 15.09.2015 (5.00 P.M.). The appointment was to be made in accordance with Government of Odisha Health and F.W. Department Resolution No. 2705/H of 03.02.2014. The petitioner, being a doctor and serving under the Government of Odisha at Cuttack, after completion of her post-graduation in the subject of Obstetrics and Gynecology, applied for the post of Senior Resident on the subject Gynecologic Oncology against one unreserved post. After selection was over, the result of unreserved 4 category post of Senior Resident Gynecologic Oncology was published on 30.10.2015, in which the petitioner's name was not found place.
3. Being aggrieved, the petitioner filed a representation on 31.10.2015 before opposite party no.1. Due to in-action of the authority, she approached this Court by filing W.P.(C) No. 21814 of 2015, which was disposed of by order dated 14.12.2015 directing opposite party no.1 to consider and dispose of the representation and pass appropriate order within a period of four weeks from the date of communication of that order. In compliance of the same, opposite party no.1 passed an order on 28.01.2016 stating therein that AHRCC, Cuttack (opposite party no.1) was guided by resolution/ notification issued by Government of Odisha from time to time. During the selection process, Government Order vide No. ME-I-IM -12/08/15510/H dated 11.06.2014 reached the office wherein the appropriate Government issued instruction to all the Dean and Principal that Senior Resident/Tutor required, as per the MCI norm, 5 should be filled up as per the previous Government resolution no.1314/H dated 11.01.2013 and corrigendum issued vide letter no. 5756/H dated 19.02.2013, whereas the advertisement clearly indicates that the appointment would be in accordance with the Government of Odisha Health and Family and Welfare Department Resolution No. 2705/H dated 03.02.2014, and consequentially rejected the representation, hence this application.
4. Mr. J. Pattnaik, learned Senior Counsel appearing along with Mr. B. Mohanty, learned counsel for the petitioner strenuously contended that the selection, having not been done in consonance with the advertisement dated 27.08.2015 in Annexure-1 pursuant to Government of Odisha Health and Family and Welfare Department Resolution No. 2705/H dated 03.02.2014, cannot sustain in the eye law. Once an advertisement issued to give appointment pursuant to resolution dated 03.02.2014, the same should be adhered to. If any instruction (Government order dated 11.06.2014) was received during the selection process to select and give 6 appointment pursuant to previous Government resolution no. 1314/H dated 11.01.2013 and corrigendum issued vide letter no. 5756/H dated 19.02.2013, the same is absolutely bad in law. Therefore, the petitioner seeks for interference of this Court.
5. Mr. B. Nayak, learned counsel for opposite party no.1 states that AHRCC, Cuttack is guided by the Resolution/notification issued by the Government of Odisha from time to time. During the selection process, the Government order dated 11.06.2014 reached to the office, wherein the appropriate Government issued instruction to all the Dean and Principal to engage Senior Resident/Tutor required, as per the MCI norms, pursuant to the previous Government resolution no. 1314/H dated 11.01.2013 and corrigendum issued vide letter no. 5756/H dated 19.02.2013. Therefore, the selection and appointment, having been done pursuant to the Government Resolution dated 11.01.2013 and consequential corrigendum issued on 19.02.2013, no fault can be found with the authority concerned and, as 7 such, the selection of candidate for recruitment of Senior Resident under such resolution is wholly and fully justified, which warrants no interference of this Court.
6. Mr. A.K. Mishra, learned Addl. Government Advocate appearing for opposite party no.2 states that the opposite party no.1, being a society, has to adhere to its Rules and Regulations. Therefore, any action taken by opposite party no.1 in consonance with the Rules and Regulations of the Society, the State has nothing to do in the matter, save and except framing the guidelines, which opposite party no.1 is required adhere, and affording some funding for its management.
7. The opposite party no.3, who has been selected to join as Senior Resident having stood first in the selection list at Annexure-3, in spite of notice being issued, did not choose to appear and contest the matter. The opposite party no.1 in its counter affidavit specifically stated that opposite party no.3 has been relieved from the Centre to join as Senior Resident in the department of O & G, SCB Medical College and Hospital, Cuttack. So far 8 as appointment of Senior Resident from the wait list is concerned, none have joined as Senior Resident in the said subject till date. Therefore, the petitioner has neither impleaded them as party nor notices have been issued on them to participate in the proceeding.
8. This Court heard Mr. J. Pattnaik, learned Senior Counsel along with Mr. B. Mohanty, learned counsel for the petitioner; Mr. B. Nayak, learned counsel for opposite party no.1; and Mr. A.K. Mishra, Addl. Government Advocate for opposite party no.2 and perused the record. Pleadings between the parties having been exchanged, this writ petition is disposed of finally at the stage of admission with the consent of learned counsel for the parties.
9. In the advertisement dated 27.08.2015 issued by opposite party no.1, it was specifically mentioned that appointment to the post of Senior Resident in Gynecologic Oncology under one unreserved category would be in accordance with the Government of Odisha Health and Family and Welfare Department Resolution 9 No. 2705/H dated 03.02.2014. The said resolution deals with guidelines for engagement of Senior Resident/tutor in Government Medical/Dental Colleges in the State of Odisha. For just and proper adjudication of the case, relevant provisions of the said resolution dated 03.02.2014 are reproduced below.
" 2. Objective and Applicability of the Guidelines:
xx xx xx 2.2. Present guidelines would be applicable or all appointment, selection of SR/Tutor in Government Medical Colleges of the State superseding earlier notifications made by Government in this connection.
Xx xx xx
5. Selection Process:
xx xx xx
5.3 A panel of SR/Tutor will be prepared by the
committee which will remain valid for a period of one year from the date of its approval.
Xx xx xx
6. Eligibility and Qualifications for SR/Tutor:
Xx xx xx
6.5 The MBBS degree holders applying for post of
Tutor must have completed three years of service as Assistant Surgeon under Govt. of Orissa (regular/contractual/ad hoc/temporary). The Candidates with MD/MS/MDS qualification applying for SR/Tutor must also have same requirement of three years of service as 10 Assistant Surgeon out of which at least two years of service shall be post P.G. under Government of Orissa which may be regular/contractual/ad hoc/temporary."
10. As per the above mentioned provisions, the candidate with MD/MS/MDS qualification applying for SR/Tutor must also have same requirement of three years of service as Assistant Surgeon, out of which at least two years of service shall be Post P.G. under Government of Orissa. The select list prepared in Annexure-3 dated 30.10.2015 is not in adherence to the provisions contained in Clause-6.5 of Resolution dated 03.02.2014. As such, the candidates so selected are not eligible to be appointed as Senior Resident in the subject advertised as they lack minimum requirement of three years of service as Assistant Surgeon out of which at least two years of service shall be post P.G. under Government of Orissa which may be regular/contractual /ad hoc/ temporary.
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11. While disposing of the representation filed by the petitioner, in Annexure-6 dated 28.01.2016, it has been mentioned as follows:
"AHRCC, Cuttack is guided by the Resolution/notification issued by the Government of Odisha from time to time. During the selection process, the Government order dated 11.06.2014 reached to the office, wherein the appropriate Government issued instruction to all the Dean and Principal to engage Senior Resident/Tutor require as per the MCI norms should be filled as per the previous Government resolution no. 1314/H dated 11.01.2013 and corrigendum issued vide letter no. 5756/H dated 19.02.2013"
Similarly, in paragraph-10 of the counter affidavit filed by opposite party no.1, it has been stated as follows:
"That as regards, the fact stated in Para-6 to 8, it is humbly submitted that, AHRCC, Cuttack is guided by the Resolution/notification issued by the Government of Odisha from time to time. During the selection process, the Government order dated 11.06.2014 reached to the office, wherein the appropriate Government issued instruction to all the Dean and Principal to engage Senior Resident/Tutor require as per the MCI norms should be filled as per the previous Government resolution no. 1314/H dated 11.01.2013 and corrigendum issued vide letter no. 5756/H dated 19.02.2013"
With reference to the resolution dated 11.01.2013, the selection process having been conducted and select list have been prepared on the basis of the 12 said resolution, the same is contrary to the conditions stipulated in the advertisement itself.
12. In Rakhi Ray v. High Court of Delhi (2010) 2 SCC 637 : AIR 2010 SC 932, the apex Court held that the process of selection begins with the issuance of advertisement and ends with the filling up of notified vacancies.
In A.P. Public Service Commission, Hyderabad v. B. Sarat Chandra, (1990) 2 SCC 669, the apex Court held that the process consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment.
In A.A. Calton v. The Director of Education, AIR 1983 SC 1143, the apex Court held that law as it stood at the point of time when the process of selection commenced will be the law according to which the selection has to be completed.
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Similar view has also been taken by the apex Court in P. Mahendran v. State of Karnataka, AIR 1990 SC 405.
13. In view of the law discussed above, there is no dispute that pursuant to advertisement issued in Annexure-1 dated 27.08.2015, the process of selection for appointment to the post of Senior Resident was to be conducted in consonance with the resolution dated 03.02.2014, as specified in the advertisement. But, as would be evident from Annexure-6, the order dated 28.01.2016 disposing the representation of the petitioner, as well as the counter affidavit, the process of selection has been done pursuant to the Government Resolution dated 11.01.2013 and corrigendum issued dated 19.02.2013. As per Clause 2.2 of Resolution dated 03.02.2014, the Government Resolution dated 1314/H dated 11.01.2013 and corrigendum issued vide letter no. 5756/H dated 19.02.2013 had already been superseded. Therefore, the selection made pursuant to the Government Resolution dated 11.01.2013 and 14 corrigendum issued on 19.02.2013 is dehores advertisement dated 27.08.2015 and Government Resolution dated 03.02.2014. To be more specific, by publishing an advertisement and specifying therein that the appointment would be made pursuant to resolution dated 03.02.2014, the subsequent disclosure of fact that the selection has been done pursuant to the Government Resolution dated 11.01.2013 and corrigendum dated 19.02.2013, without bringing the same to the notice of the candidates, is arbitrary, unreasonable and hit by the principle "once game is played the rule of game cannot be changed in the midst".
14. In Secretary, A.P. Public Service Commission Vrs. B. Swapna and others, 2005 (2) Supreme 615, where the Andhra Pradesh Public Service Commission had initially advertised for recruitment to 8 posts of Asst. Public Relation Officers. Subsequently 7 more vacancies were advertised. Therefore, the recruitment was made for 15 vacancies. The selection was finalized on 2.7.1996. During the currency of the wait list, 15 the competent authority again notified 14 more vacancies on 14.04.1997 to be filled up by the candidates from the wait list. In that case, the Apex Court held that there were two principles in service laws, which were indisputable. Firstly, there could not have been appointment beyond the advertised number; and secondly, the norms of selection could not have been altered after the selection process had started. Paragraph 16 of the judgment of the Apex Court is reproduced hereunder:
"The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by Learned Counsel for the applicant-respondent No. 1 it was unamended rule, which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criteria e.g., minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If the Rule is expressed in a language which is 16 fairly capable of either interpretation it ought to be considered as prospective only."
In the above mentioned facts and circumstances, and the law laid down by the Apex Court, this Court has come to the conclusion that once selection process was started the norms fixed in the advertisement could not have been changed and if they were liable to be changed then the same should have been published in the like manner in which initial advertisement was published.
Non-publication of the norms changed subsequently after starting of the selection process was violative of Article 16 of the Constitution and thus is not sustainable in the eye of law.
15. Relying upon the said judgment of the apex Court, this court also in the matter of recruitment of Ad hoc Additional District Judges under the Orissa Judicial Service (Special Scheme) Rules, 2001 in pursuance of the advertisement issued by the High Court of Judicature, Orissa, Cuttack by advertisement no. 1 of 2003 has taken 17 a similar view in Mrs. Madhumita Das v. State of Orissa, 100 (2005) CLT 465.
16. In view of the law discussed above, there is no iota of doubt that once the advertisement issued to make an appointment pursuant to Resolution dated 03.02.2014, the same cannot be and could not have been changed during the selection process by adhering to the Government Resolution dated 11.01.2013 and corrigendum dated 19.02.2013 which is violative of Article 16 of the Constitution of India. Consequentially, the impugned selection made, for appointment of the Senior Resident in the discipline of Gynecologic Oncology under unreserved category, vide Annexure-3 dated 30.10.2015 cannot sustain in the eye of law, accordingly, the same is hereby quashed.
17. While issuing notice, this Court directed that any action taken pursuant to advertisement issued under Annexure-1 shall abide by the result of the writ petition. Therefore, the post of Senior Resident in the discipline of Gynecologic Oncology is to be made in pursuance of the 18 Government Resolution dated 03.02.2014. Accordingly, it is directed that opposite party no.1 should prepare a select list in consonance with the Government Resolution dated 03.02.2014 from amongst the candidates who have appeared pursuant to advertisement to the post of Senior Resident in the discipline Gynecologic Oncology under unreserved category for one post. The entire exercise shall be done within a period of one month from the date of communication of this judgment.
18. The writ petition is allowed. No order to cost.
Sd/-
(DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack The 2nd May, 2017, Ajaya/GDS True copy Sr. Secretary 19