Orissa High Court
Dr. Rabindra Naik vs State Of Odisha And Another .... ... on 12 May, 2022
Author: M.S.Sahoo
Bench: M.S.Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 16984 of 2020
Dr. Rabindra Naik Petitioner
Mr. Avijit Mishra, Advocate
-versus-
State of Odisha and another .... Opposite Parties
Mr.P.K.Mohanty, Sr. Advocate instructed
by Mr. P.K.Pasayat, Advocate for OP No.2
Mr. R.N.Mishra, AGA for OP. NO.1
CORAM:
JUSTICE M.S.SAHOO
ORDER
Order No. 12.05.2022
12. 1. This matter is taken up by hybrid mode.
2. The petitioner in the writ petition is the applicant pursuant to the advertisement No.12 of 2018/19 (Annexurfe-1) issued by the Odisha Public Service Commission(OP No.2) for selection of Assistant Professor in the discipline of Obstetrics and Gynaecology Department.
3. The facts of the case as narrated in the writ petition and also remain uncontroverted, are that the petitioner applied in the category of ST for selection. He was considered and evaluated as per the selection process of O.P.No.2-OPSC. Five candidates were recommended in the ST category as per the advertisement pursuant to the requisition of the State Government and one post for ST candidate remain unfilled inasmuch as the candidate Ms. Snehalata Mallick working in the cadre of Assistant Professor in the Odisha Medical Education Service (Method of Recruitment and Conditions of Service) Rules,2009 pursuant to the advertisement no.10 of 2016/17 got appointed by notification No.28408 dated 06.11.2018 (Annexure-3) issued by the Government of Odisha, Health and Family Welfare Department-opposite party no.1 and applied again for the post of Assistant Professor against the subsequent notification pursuant to the subsequent requisition of the State Government. Apparently, the post occupied by Ms.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.
4. Reliance is place on the Rule-11(1) and 11(2) of the OMES Rules. The relevant Rules are reproduced below:
"quote
5. In the peculiar facts and circumstances after Ms. Mallick was recommended twice, the Government in the Department of Health and Family Welfare, has come up with the notification no.12868 dated 04.06.2020 (Annexure-10) issued by opposite party no.1-Government of Odisha, Health and Family Welfare Department filed along with I.A. No.820 of 2020. The said notification is extracted herein:
"Government of Odisha Health & Family Welfare Department *** NOTIFICATION No. 12868 Dated 04.06.2020 The following regular Assistant Professors are already appointed and working under Odisha Medical Education Service Cadre after duly recruited prusaunt 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."
6. The Memo No.12869 dated 04.06.2020 forwarding the said notification to OPSC-opposite party no.2 for information and necessary action. In lieu of the above said Page 2 of 12 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.
7. Apart from the writ petition, the petitioner has filed I.A. No.820 of 2020 rejoinder to the counter filed by opposite party no.2 which form part of the record.
8. Counter affidavit by opposite party no.2 shown to by the Joint Secretary to the opposite party no.2 dated 18.01.2022, has been filed on 19.01.2022.
9. The petitioner has filed rejoinder dated 18.02.2022 to the counter affidavit dated 18.01.2022. Opposite party no.2 has filed additional counter affidavit dated 02.04.2022 and pursuant to the order dated 25.04.2022 of this Court, filed additional affidavit dated 09.05.2022.
10. The writ petition was presented before this Court on 16.07.2020 after recommendation of the OPSC dated 06.06.2019 and the OPSC (opp.party no.2) responded by letter dated 02.011.2019 to the grievance of the petitioner as stated in the writ petition.
11. The matter was heard on 21.3.2022 and the following order was passed :
"1. This matter is taken up through hybrid mode.
2. It is submitted by the learned counsel for the petitioner that as averred in the writ petition and based on reliable information, the petitioner was duly considered and his merit was evaluated and he was placed by the opposite party no.2-Public Service Commission, just below the candidate, Page 3 of 12 Dr.Snehalata Mallik, who was continuing as Asst. Professor (O & G) in the cadre of Odisha Medical Education Service (OMES), as she was selected earlier and appointed by order dated 06.11.2018 issued by the Government of Odisha, Health & Family Welfare Department, as Assistant Professor of Obstetrics & Gynecology in PRM Medical College & Hospital (MCH), Baripada.
3. On perusal of the counter affidavit filed on behalf of opposite party no.2, the affidavit is completely silent about the merit position of the petitioner qua, Dr. Mallik.
The affidavit on behalf of opposite party no.2 has been sworn to by one Sri Judhisthir Naik working as Joint Secretary in the office of Odisha Public Service Commission, who was stated to be authorized by the Secretary and sworn the affidavit dated 18.01.2022. At internal page-3, sub-paragraph-(2) of the affidavit, the following has been stated :
".... ... As per the terms and conditions of the advertisement there was no provision to reject the candidature of any candidate if he/she previously got appointed to the said post by the Government."
4. 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.Page 4 of 12
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) 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 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)
5. On being asked specifically, (the learned counsel for the Public Service Commission) regarding the contention that there was no provision to reject the candidature of the candidate, if he/she previously got appointed to the said posts by the Government in view of the paragraph-2(i) & paragraph-6(iv) of the advertisement, learned counsel seeks further time to obtain instruction.
Page 5 of 126. 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 pursuant to the order dated 06.11.2018, she was not given appointment for the subsequent selection as per the advertisement no.12 of 2018-19 and she continues to serve the Government in the cadre of OMES as per her earlier appointment. The learned counsel refers to the rejoinder filed by the petitioner dated 18.02.2022 which encloses the notification dated 04.06.2020 (marked as Annexure-A), 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.
7. By Memo no.12869 dated 04.06.2020 (Annexure-A to the rejoinder), a request was made by Government to recommend the names of suitable candidates in the respective disciplines as per their merit.
8. Mr. R.N. Mishra, learned Addl.
Government Advocate 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.
Page 6 of 129. Learned counsel for the Public Service Commission seeks further time to obtain instruction on the said aspect.
As prayed for, list this matter on 25.04.2022.
Urgent certified copy of this order be granted on proper application.
Copy of the order be uploaded in the official website immediately."
12. Thereafter additional affidavit dated 21.4.2022 by the OPSC (OP No.2) was filed. That was considered by this Court on 25.4.2022. On 25.4.2022 following order was passed :
"1. This matter is taken up by hybrid mode.
2. Learned Sr. Counsel for the O.P.No.2- Odisha Public Service Commission (OPSC) submits that the additional affidavit dated 21.4.2022 on behalf of OPSC has been filed.
3. On perusal of the affidavit dated 21.4.2022 purportedly filed pursuant to the order dated 21.3.2022 it is indicated, said affidavit does not refer to the observations of this Court at paragraphs 3, 5, 6 & 9 of the order dated 21.3.2022.
3. Learned Senior Counsel prays for some further time to obtain instruction and file affidavit. As directed in paragraph-3 of the order dated 21.3.2022, the OPSC shall produce records/select list indicating the merit position of the petitioner qua Dr. Snehalata Mallik who was recommended in ST category as first candidate while she was continuing as Assistant Professor (O & G) in the cadre of Odisha Medical Education Service after being recommended earlier by the OPSC and appointed by order dated 6.11.2018.
4. Recommendation of Dr. Mallik in terms of advertisement No.12 of 2018/19 dated 11.10.2018 could not have been made in Page 7 of 12 view of specific provision as of 2(i) and 6(iv) of the advertisement as indicated in the order dated 21.3.2022. From the tenor of the affidavit submitted by the OPSC, it is indicated that the OPSC itself was not aware of recommending the candidate as result of an earlier selection.
5. The inter se merit position of the ST candidates records/select list shall be produced by the next date supported by affidavit.
6. As prayed for, list on 12.5.2022.
7. Copy of the order be uploaded in the official website."
13. Though it was specifically directed at paragraph-5 of the order dated 25.4.2022 that inter se merit position of the ST candidates records/select list shall be produced by the next date supported by affidavit, in the affidavit dated 9.5.2022 at paragraph-3 following has been stated :
"3. That it is further humbly submitted that the verified documents i.e., certificate/mark sheets/Experience certificate/NOC are also forwarded to the department at the time of sending recommendation letter. Amongst 5 S.T. candidates recommended, Dr. Snehalata Mallick secured highest mark, as would be evident from the merit list. The petitioner a S.T. candidate is at the bottom of list. In the Govt. notification dtd 04.06.2020 vide Annexure-A to previous affidavit of OPSC pursuant to order dtd.21.03.2022, candidates in Sl. Nos.1 to 3 are U.R. candidate, Sl. No.4 is Smt. S. Mallick, only S.T. candidate."
14. Apparently despite repeated opportunities, OPSC by affidavits filed through Joint Secretary, somehow has not been able to understand/follow the orders passed by this Court which are very clear and have been filing vague affidavits, like affidavit dated 9.5.2022 at paragraph-3 Page 8 of 12 wherein it is stated, "the petitioner a ST candidate is at the bottom of the list". Nowhere in the said affidavit, the inter se merit position of the ST candidates, has been indicated.
15. In Annexure-D/2 filed by the OPSC annexed to the affidavit dated 9.5.2022 is captioned as follows :
"Odisha Public Service Commission Recruitment to the Post of Asst. Professor, Pursuant to Advt.No.12 of 2018-19 Discipline- O & G"
Roll number of the petitioner is '316'.
Roll number of Dr. Snehalata Mallick is '321'.
16. In the said affidavit, the roll no.316 finds place at sl.no.10 and the candidate though name is not mentioned, at sl.10, i.e., as last candidate in the category ST, petitioner has been awarded 57.103 marks.
17. In view of 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 the Assistant Professor in clause-I of OMES, the first candidate Snehalata Mallik who after being duly recruited pursuant to the OPSC advertisement No.10 of 2016/17, already appointed and working under Odisha Medical Education Service without leaving/resigning has been once again recommended by the OPSC in the respective discipline (O&G), pursuant to the advertisement No.12 of 2018/19. Therefore, she was not considered again for appointment pursuant to the Page 9 of 12 advertisement no.12 of 2018/19 which was as per the requisition of the Government.
18. From another angle, the matter also needs to be considered i.e. once Dr. Snehalata Mallik got selected and pursuant to the earlier requisition, 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, her post could have been treated as vacant and would have been requisitioned to OPSC for selection.
19. It is indicated that the posts that were advertised pursuant to the advertisement No. 12 of 2018/19 (Annexure-1), were to be filled pursuant to the recommendation of the OPSC. In view of the continuation of Dr. Mallik in OMES Service pursuant to the earlier selection i.e. advertisement No.10 of 2016/17 as Assistant Professor w.e.f. 1.2.2018 though the petition has disclosed that she was working as Assistant Professor pursuant to the notification dated 6.11.2018 (Annexure-3).
20. In view of the above analysis, it is apparent that as at Annexure-D/2, five ST candidates starting with roll Nos. 303, 304, 310, 325, 311 & 316 would have been recommended if the candidature of Dr. Mallik "at the top" could not have been entertained.
21. The writ petition is allowed with the following order :
OPSC shall include sl. No.10, Roll No.316 having secured 5th position among the ST candidates those could have been recommended with the roll numbers as indicated above. Pursuant to such recommendation by the OPSC, the Page 10 of 12 Government shall do the needful for issuing notification appointing the petitoner. In view of the letter No. 12868 dated 4.6.2020 (Annexure-10) issued by the Govt. of Odisha, Health & Family Welfare Department, Government shall carry out the recommendation of the OPSC.
22. OPSC having considered the petitioner as the 6th candidate though not recommended in view of the recommendations made in favour of Dr. Mallik. Letter No.3630 dated 16.7.2020 as at (Annexure-11) issued by the OPSC is out of context and based on irrelevant considerations, for the following reasons :
Advertisement NO.20 as at Annexure-1 is taken note of, at paragraph-1 it provides method of selection :
"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)
2. ELIGIBILITY : The following categories of persons are eligible to apply for the post of Assistant Professors in different disciplines (Speciality and Super Speciality).Page 11 of 12
(i) Selection shall be made through the Odisha Public Service Commissio, 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 Speciality or Higher Speciality subject to the condition that seniority in the Speciality or Higher Speciality, 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.
xx xx xx"
23. It has to be observed that selection of the candidates shall be made taking into consideration academic career and performance of candidates in the Viva Voce test.
24. In view of the above, once the OPSC has taken into account academic career and performance of the petitioner in the Viva Voce test, as recorded in Annexure-D/2 to the additional affidavit dated 9.5.2022, the OPSC cannot go back not to disclose merit position of a particular candidate as per method of selection advertised by OPSC itself.
Urgent certified copy shall be issued as per Rules.
Copy of the order be uploaded in the official website.
(M.S.Sahoo)
dutta Judge
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