Orissa High Court
Dr. Sivasankar Das vs State Of Odisha & Ors. ..... Opposite ... on 30 September, 2021
Author: B.R. Sarangi
Bench: B.R. Sarangi
1
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.30874 OF 2021
Dr. Sivasankar Das ..... Petitioner
Mr.Avijit Mishra, Advocate
Vs.
State of Odisha & Ors. ..... Opposite parties
Mr. J.P. Pattnaik, GA
CORAM:
DR. JUSTICE B.R. SARANGI
ORDER
30.09.2021 Order No. This matter is taken up through hybrid mode.
12. Heard Mr. A. Mishra, learned counsel for the petitioner and Mr. J.P. Pattnaik, learned Government Advocate for the State.
3. The petitioner has filed this writ petition to quash the letter dated 23.09.2021 under Annexure-1 issued by opposite party no.1, wherein his prayer for issuance of No Objection Cetificate to participate in the process of selection to the post of Senior Resident, Microbiology at AIIMS, Bhubaneswar pursuant to Annexure-1 has been rejected.
4. Mr. A. Mishra, learned counsel for the petitioner contended that the petitioner, after completion of his P.G. course in Microbiology at AIIMS, Bhubaneswar, joined in the office of opposite party no.1 w.e.f. 04.09.2021. Pursuant to advertisement issued under Annexure-1 dated 13.09.2021 for recruitment to the post of Senior Residents in various department of 2 AIIMS, the petitioner is to make an application by obtaining No Objection Certificate from the employer, but the same has been rejected vide order dated 23.09.2021 on the plea of emergent situation of COVID- 19 pandemic situation and dearth of doctors in the State.
5. Mr. J.P. Pattnaik, learned Government Advocate for the State contended that since the petitioner has joined in the Government Service, he is to continue there and as such, if the petitioner wants to higher studies, then he has to make an application for NOC. Such NOC has been rejected on the plea of emergent situation of COVID-19 pandemic situation and dearth of doctors in the State. Even though the petitioner goes for higher studies, it will cause prejudice to the Department. Therefore, the authority is well justified in rejecting the NOC filed by the petitioner.
6. Having heard learned counsel for the parties and after going through the records, it appears that the petitioner has applied for NOC to appear in the examination/interview for Senior Residentship at AIIMS, Bhubaneswar pursuant to advertisement issued under Annexure-1 dated 13.09.2021. Even though he joined in the Government Service, as a model employer, the Government should not preclude him from prosecuting higher studies, as it will be beneficial if the petitioner acquires higher qualification and experience pursuant to advertisement issued under Annexure-1. The authority has rejected his application on the ground of emergent situation of COVID-19 and dearth of doctors in the 3 State. More so, the academic career of the petitioner reflects that even though he goes for higher studies ultimately, the public at large will be more beneficial. Therefore, the reason for dearth of doctors in the State cannot have any justification in view of fact that the State Authorities are not going for recruitment process and many of the doctors are not getting employment, though they are interested to join in the Government service.
7. Similar question had come up for consideration before the apex Court in Dr. Rohit Kumar v. Secretary Office of Lt. Governor of Delhi in Civil Appeal No.2739 of 2021 (arising out of SLP (C) No.3824 of 2021), which has been disposed of vide order dated 15.07.2021 in which notification issued by Delhi Union Territory was under challenge wherein no doctors were allowed to go for higher studies in apprehension of a rise in COVID-19 cases. Considering such notification, the apex Court in paragraphs 21 and 22 has observed as follows:
"21. The policy decision not to grant Study Leave to doctors for a certain length of time, in apprehension of a rise in COVID-19 cases, to ensure the availability of as many doctors, as possible for duty , is neither arbitrary, nor discriminatory, nor violative of Article 14 of the Constitution of India.
22. At the same time this Court cannot be oblivious to the legitimate expectation of COVID-19 warriors like the Appellant to fair treatment, in conformity with the Service Rules by which they are governed, to enable them to pursue higher education and enhance their educational qualifications. Needless to mention that doctors with higher qualifications and special knowledge in specific areas would be an asset to the medical fraternity, as also to the society."
8. In view of such observation made by the apex Court, this Court is of the considered view that the petitioner should go for higher studies, pursuant to 4 advertisement issued under Annexure-1. Thereby, the order dated 23.09.2021 under Annexure-3 rejecting the application for NOC for Senior Residentship in view of emergent situation of COVID-19 and dearth of doctors in the State cannot sustain in the eye of law. Accordingly, the same is hereby quashed. The State authorities are directed to grant NOC, as the last date of submission of application through online basis is 05.10.2021 enabling the petitioner to apply for the Senior Residentship pursuant to advertisement under Annexure-1 and such NOC shall be granted prior to 05.10.2021.
A copy of this order be handed over to Mr. J.P. Pattnaik, learned Government Advocate for immediate compliance of the order and also a copy to the learned counsel for the petitioner for compliance thereof.
Alok (DR. B.R. SARANGI) JUDGE