Orissa High Court
Dr. Abinashi Sabyasachi Sethy vs State Of Odisha And Another ... ... ... on 15 July, 2022
Author: M.S.Sahoo
Bench: Mruganka Sekhar Sahoo
A.F.R.
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.17325 of 2020
An application under Articles, 226 and 227 of the Constitution of
India.
Dr. Abinashi Sabyasachi Sethy ... ... Petitioner.
Versus.
State of Odisha and another ... ... Opp.parties
For petitioner : Mr. Avijit Mishra, Advocate
For opp.parties : Mr. S.K.Samal,
Addl. Govt. Advocate
(For Opposite party no.1)
Mr. P.K. Mohanty, Sr. Advocate
along with Mr. S.N. Das, Advocate
(For opposite party no.2)
PRESENT
THE HON'BLE SHRI JUSTICE MRUGANKA SEKHAR SAHOO
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Date of Hearing :28.06.2022 : Date of judgment: 15.07.2022
M.S.SAHOO, J. This matter is taken up through Hybrid mode.
2. The petitioner in the writ petition is the applicant pursuant to
the advertisement No.12 of 2018/19 (Annexure-1) issued by the
Odisha Public Service Commission (OP No.2) for selection of Assistant
Professor in the discipline of Paediatrics, in the Odisha Medical
Education Service.
3. The facts of the case as narrated in the writ petition, which also
remain uncontroverted, are that the petitioner applied in the category
of SC for selection of Asst. Professor of Paediatrics. He was
considered and evaluated as per the selection process of O.P.No.2-
OPSC. Three candidates were recommended in the SC category
(including one woman candidate) as per the advertisement pursuant
to the requisition of the State Government and one post for SC
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candidate remains unfilled inasmuch as the candidate Dr. Manas
Ranjan Mallick (OPSC Roll No.373), was not given appointment.
Dr. Mallick is already working in the cadre of Assistant
Professor in the Odisha Medical Education Service (as per Method of
Recruitment and Conditions of Service Rules, 2009) after he was
selected by O.P. No.2-OPSC, pursuant to the advertisement no.10 of
2016/17, had got appointed earlier by notification No.28408 dated
06.11.2018 (Annexure-4) issued by the Government of Odisha,
Health and Family Welfare Department-opposite party no.1.
Dr. Mallick choose to apply second time for the post of
Assistant Professor against the subsequent notification No. 12 of
2018/19 pursuant to the subsequent requisition of the State
Government. Apparently, the post already occupied by Dr. Mallick as
Assistant Professor could not have been taken as a vacant post and
requisition could not have been sent by the State to the OPSC as
indicated above.
The non recommendation of the petitioner herein by the OPSC,
pursuant to the subsequent notification No. 12 of 2018/19 being
challenged, is the subject matter for consideration in the present writ
petition.
4. In the peculiar facts and circumstances, after Dr. Mallick while
working as Asst. Professor, was recommended for the second time,
the Government in the Department of Health and Family Welfare, has
come up with the notification no.12868 dated 04.06.2020 (Marked as
Annexure-9 annexed to the rejoinder dated 09.12.2022 filed by
petitioner) issued by opposite party no.1-Government of Odisha,
Health and Family Welfare Department. The said notification is
extracted herein:
"Government of Odisha
Health & Family Welfare Department
***
NOTIFICATION
No. 12868 Dated 04.06.2020
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The following regular Assistant Professors are already
appointed and working under Odisha Medical
Education Service Cadre after duly recruited pursuant
to the OPSC advertisement no.10 of 2016/17. But their
names are once again recommended by OPSc in the
respective discipline pursuant to the advertisement
no.12 of 2018/19. Therefore, they are not considered
for appointment pursuant to the advertisement No.12
of 2018/19."
.....2) Dr. Manas Ranjan Mallick, at present Assistant
Professor, Paediatrics, PRM MCH, Baripada.,......."
(emphasis supplied)
5. The Memo No.12869 dated 04.06.2020 issued by the Govt. in
the H&FW Department forwarding the aforesaid notification dated
04.06.2020 (Annexure-10) to OPSC-opposite party no.2 for
information and necessary action, indicates :
"In lieu of the above said candidates, the OPSC is
requested to recommend names of suitable candidate in
the respective discipline, selected under the corresponding
category as per merit, out of the waiting list, if any, for
their appointment."
(emphasis supplied)
The OPSC by letter No. 3630 dated 16.7.2020 has responded to
the Memo of the Govt. dated 04.06.2020 in the negative (Annexure-
10).
6. The writ petition was presented before this Court on
17.07.2020 after recommendation of the OPSC dated 07.06.2019
(Annexure-7) and also after the OPSC (opp. Party no.2) had
responded to the letter No. 3630 dated 16.07.2020 of the Govt. in
H&F.W. Deptt. (Annexure-10) to the rejoinder dated 09.12.2021.
7. While issuing notice on 25.08.2020 this Court had passed the
following interim order in I.A. No. 8190 of 2020.
"It is directed that any development pursuant to the
advertisement vide Annexure-1 shall remain subject
to the result of the Writ Petition.
I.A. stands disposed of."
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8. Counter affidavit by opposite party no.2-OPSC sworn to by its
Deputy Secretary dated 23.12.2020, has been filed on 24.12.2020
and is part of the record.
9. The petitioner has filed rejoinder dated 09.12.2021 to the
counter affidavit dated 23.12.2020. The OPSC has filed the
instructions in a sealed cover along with letter dated 27.06.2022
addressed to the learned Senior Counsel appearing for OPSC.
10. The advertisement no.12 of 2018/19 pursuant to which the
applicant had applied, has been annexed as Annexure-1, i.e.,
dated 11.10.2018, provides eligibility at paragraph-2, which is
quoted herein:
"2. Eligibility:- The following categories of persons are
eligible to apply for the post of Assistant Professors in
different disciplines (Specialty and Super Specialty).
(i) Selection shall be made through the Odisha
Public Service Commission, from amongst the Tutors
and senior Residents having P.G. Degree in the same
discipline with three experience as such.
Provided that, the recruitment may also be made
from amongst the Assistant professors in any other
Specialty of Higher Specialty subject to the condition
that seniority in the Specialty or Higher Specialty, as
the case may be shall be determined from the date of
appointment in the new discipline in accordance with
the placement given by the Commission, and accepted
by Government. ... ..."
(emphasis supplied)
11. Reading of 2(i) (as quoted above) indicates that a candidate
already employed can apply for a "new discipline." Further
paragraph-6 of the said advertisement provides for Other Eligibility
Conditions and paragraph- 6 (iv) thereof, provides as follows :
"6 xxx xxx xxx
(iv) Government servants, whether temporary or
permanent, are eligible to apply provided that they
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possess the requisite qualification and experience.
They must inform their respective Heads of
Offices/Departments in writing regarding submission of
their applications for this recruitment and obtain "No
Objection Certificate ... ..."
(emphasis supplied)
It is not very clear from pleadings whether Dr. Mallick,
continuing in OMES cadre as Asst. Professor, had produced "No
Objection Certificate" from the appropriate authority when he
applied for the selfsame post for the second time. The OPSC in
their counter have not clarified the issue or produced any record to
indicate that a NOC that was in order was produced.
12. It is submitted by the learned counsel for the petitioner that
since the selected candidate was already appointed in the cadre of
Orissa Medical Education Service working as Assistant Professor,
Paediatrics pursuant to the order dated 06.11.2018, he was not
given appointment for the subsequent selection as per the
advertisement no.12 of 2018-19 and he continues to serve the
Government in the cadre of OMES as per his earlier appointment.
The learned counsel refers to the rejoinder filed by the
petitioner dated 09.12.2021 which encloses the notification dated
04.06.2020 (marked as Annexure-9), i.e., the notification issued by
the Government of Odisha, Health & Family Welfare Department
observing as follows :
"The following regular Assistant Professors are already
appointed and working under Odisha Medical
Education Service Cadre after duly recruited pursuant
to the OPSC advertisement No.10 of 2016/17. But their
names are, once again recommended by OPSC in the
respective discipline pursuant to the advertisement
no.12 of 2018/19. Therefore, they are not considered
for appointment pursuant to the advertisement no.12 of
2018/19.
.....2) Dr. Manas Ranjan Mallick, at present Assistant
Professor, Paediatrics, PRM MCH, Baripada.,......."
6
13. By Memo no.12869 dated 04.06.2020 (Annexure-9 to the
rejoinder), a request was made by Government to recommend the
names of suitable candidates in the respective disciplines as per
their merit.
Mr. S.K.Samal, learned AGA does not dispute that in fact the
notification dated 04.06.2020 was issued by Government of Odisha
and communicated to the opposite party no.2-Public Service
Commission.
The OPSC by letter No. 3630 dated 16.7.2020 has responded
to the Memo of the Govt. dated 04.06.2020 in the
negative (Annexure-10 to the rejoinder).
Thereafter, the instruction with letter dated 27.6.2022 by the
OPSC (OP No.2) is filed, in Court on 28.06.2022.
14. From the factual report filed by the OPSC annexed to the letter
dated 27.06.2022, the following is revealed :
"Odisha Public Service Commission
Recruitment to the Post of Asst. Professor, Pursuant to Advt.No.12
of 2018-19
Discipline- Paediatrics"
Roll number of the petitioner Dr. A.S.Sethy is '352'.
Roll number of Dr. Manas Ranjan Mallick is '373' (SC category).
15. In the Merit list dated 07.06.2019, the petitioner having Roll
No.352 finds place at sl.no.9 and the candidate though name is not
mentioned, sl. No.6 Roll No. 367 is the last candidate in the category
SC, recommended by the OPSC has secured 76.232 marks, petitioner
has been awarded 70.141 marks and would be the next candidate in
SC (Male) in the order of merit.
16. As per the order No. 12868 dated 4.6.2020 (Annexure-10) issued
by the Govt. of Odisha, Health & Family Welfare Department, by order
of His Excellency the Governor (as it deals with the appointment to
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the Assistant Professor in Class-I of OMES) the first candidate Dr.
Manas Ranjan Mallick (Roll No. 373) (who after being duly recruited
pursuant to the earlier OPSC advertisement No.10 of 2016/17, was
already appointed and working under Odisha Medical Education
Service, without leaving/resigning from his post has been once again
recommended by the OPSC in the respective discipline (Paediatrics ),
pursuant to the subsequent advertisement No.12 of 2018/19); was
"not considered again for appointment pursuant to the advertisement
no.12 of 2018/19." (Annexure-9, Notification by Govt. of Odisha, H &
F.W. Department).
The subsequent selection by OPSC was as per the subsequent
requisition of the Government.
17. Reliance is placed by the petitioner on the Rules-11(1) and
11(2) of the Odisha Medical Education Service (Method of
Recruitment and Conditions of Service) Rules, 2009. The said Rules
are reproduced below:
"11. Consultation with the Commission : (1) The
recommendation of the Selection Board shall be
referred to the Commission along with a list of all
eligible candidates, including those who have not
been recommended but considered together, with
the service particulars relating to their academic
qualification, teaching experience, research and
field experience, if any.
(2) The Commission shall consider the list
along with the service particulars received under
sub-rule (1) and shall furnish its
recommendations to the Government."
(Underlined to supply emphasis)
The learned counsel for petitioner in support of his contentions
relies on a recent decision rendered by this Bench dated 12.5.2022
that allowed W.P.(C) No. 16984 of 2020 (Dr. Rabindra Naik v. State of
Odisha and another). It is submitted that the facts of the present
case are identical to that of the said writ petition and contended that
in view of the proposition laid down in the said decision, the OPSC
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after evaluating and determining the merit of the petitioner in the
selection process of Asst. Professor cannot hold back the inter se
merit position qua the other candidates and the letter No. 3630 dated
16.07.2020 (Annexure-10).
Learned Senior Counsel for OPSC as well as the learned AGA
fairly agree to the contention that facts of the writ petition allowed
earlier, are identical to the present case.
18. From another perspective, the matter also needs to be considered
i.e. once Dr. Manas Ranjan Mallik got selected pursuant to the earlier
requisition of the Govt., following which advertisement No.10 of 2016-
17 was notified by the OPSC, the said post could not have been
shown as vacant and requisitioned again to be filled up through
advertisement by OPSC.
If Dr. Mallick would not have joined/resigned from his service,
his post could have been treated as vacant and would have been
requisitioned to OPSC for selection. If the post occupied by Dr.
Mallick is added to the vacancy the total vacancy comes to four and
the petitioner could have been recommended being the fourth
candidate (1 woman + 3 Men).
19. In view of the above analysis, it is apparent, as indicated in
Merit List dated 07.06.2019 produced by OPSC, three SC candidates
with Roll Nos. 367, 352 and 372 (woman) should have been
recommended if the candidature of Dr. Mallik "at the top" could not
have been entertained, as he was already continuing in the same
cadre and post for which advertisement was issued. The petitioner in
the present writ petition has the Roll No. 352.
For reference the Merit List dated 07.06.2019 as enclosed to the
letter of OPSC dated 27.06.2022 for SC candidates, is reproduced
herein :
"ODISHA PUBLIC SERVICE COMMISSION
Recruitment to the Post of Asst. Professor, Pursuant to Advt. No.12 of 2018-19
Discipline - PAEDIATRICS
Merit List
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Sl. Roll REF CAT GENDERTOTAL V.V GRAND SELECT
No. No. No. CAREER MARKS TOTAL UNDER
MARKS (FM-15) MARKS CATEGORY
(FM-100) ((FM-115)
5 373 M44 SC M 66.309 10 76.309 SC
6 367 M91 SC M 67.232 9 76.232 SC
7 372 M47 SC F 66.998 8 74.998 SC(W)
9 352 M45 SC M 59.141 11 70.141
Prepared By Checked by- Verified by-
Sd/illegible Sd/illegible
Dt.illegible Dt.illegible 07.06.2019
It has to be noted that the photo copy of the "merit list"
produced does not indicate all the signatures and the date put by
persons for reasons best known to the OPSC. The OPSC has chosen
not to produce the records indicating that NOC was produced by Dr.
Mallick as required by the advertisement.
Advertisement NO.20 as at Annexure-1 is taken note of and at
paragraph-1 it provides method of selection, it is reproduced herein :
"ODISHA PUBLIC SERVICE COMMISSION
ADVERTISEMENT No.12 OF 2018/19
RECRUITMENT TO THE POSTS OF ASSISTANT
PROFESSORS IN SUPER SPECIALITY AND
SPECIALITY IN DIFFERENT DISCIPLINES OF SCB
MEDICAL COLLEGE, CUTTACK & MKCG MEDICAL
COLLEGE, BERHAMPUR.
Xx xx xx
METHOD OF SELECTION : Selection of candidates
shall be made as per the Odisha Medical Education
Service (Method of Recruitment and Conditions of
Service) Rules, 2009 taking into account the
academic career and performance of candidates in
the Viva Voce test.
(underlined to supply emphasis)
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20. It has to be noted that selection of the candidates by the OPSC
shall be made taking into consideration academic career and
performance of candidates in the Viva Voce test.
Once the OPSC has taken into account academic career and
performance of the petitioner in the Viva Voce test, as recorded in
Merit List dated 07.06.2019, quoted in paragraph-19 above), the
OPSC cannot go back not to disclose merit position of a particular
candidate as per method of selection advertised by OPSC itself.
Accordingly, the letter No. 3630 dated 16.07.2020, issued by
OPSC to the Govt. in H&FW Department is set aside being irrational,
based on irrelevant considerations as well as being based on
considerations not germane to the issue.
21. In view of the above analysis, the writ petition is allowed with the
following order :
OPSC shall include petitioner, who is the candidate at sl.
No.9, Roll No.352, in their recommendation to the Govt. for
appointment as Asst. Professor in the discipline of
Paediatrics in the OMES cadre. The OPSC shall forward
their recommendation forthwith to the Government.
22. It is also clarified that in view of the letter No. 12868 dated
4.6.2020 (Annexure-9) issued by the Govt. of Odisha, Health & Family
Welfare Department, the Government shall carry out the
recommendation of the OPSC to give appointment to the petitioner.
23. Having been deprived earlier of getting appointment without
any lawful reason, the petitioner shall be treated at par with the
appointees those were appointed as per the recommendation of the
OPSC pursuant to the advertisement No.12 of 2018/2019. However,
the petitioner shall be given the notional benefit of pay and seniority
after he actually joins service as Assistant Professor, Paediatrics in
OMES cadre, as per the inter se merit of the petitioner i.e. being the
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last amongst the candidates of SC (Men) category in the discipline of
Paediatrics.
......................
M.S.Sahoo,J.
Orissa High Court, Cuttack The 15th July,2022/dutta