Orissa High Court
WP(C)/15728/2020 on 10 August, 2020
Author: K.R.Mohapatra
Bench: K.R.Mohapatra
W.P.(C) No. 15728 of 2020
2. 10.08.2020 Due to outbreak of COVID-19, this matter is
taken up through Video Conferencing.
2. Heard Mr.S.Rath, learned counsel for the
petitioner and Mr.Bibhu Prasad Tripathy, learned
Additional Government Advocate appearing for the
State-opposite parties.
3. Petitioner, in this writ petition, prays for a
direction to opposite parties, more particularly, the
Secretary to Government in Health and Family
Welfare Department (OP No.1) to pre-fix his date of
promotion as 03.07.2003 when his junior namely,
Dr.Rasananda Mangual (OP No.3) was promoted to
the post of Professor in the Department of Surgery
along with all consequential as well as pensionary
benefits.
4. Mr.Rath, learned counsel for the petitioner
submits that the petitioner was appointed as an
Assistant Surgeon under Odisha Medical and Health
Services Cadre vide H & FW Department Notification
No.27908/H dated 31.03.1981 on the
recommendation of the Odisha Public Service
Commission, Cuttack (for short, 'OPSC'). While
working as such, the petitioner was appointed as a
Junior Teacher in Surgery under Odisha Medical
Education Services Cadre (for short OMES) being
recommended by OPSC, vide H & FW Department
Notification No.30413/H dated 10.09.1986.
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Subsequently, vide Order No.32423/H dated
18.09.1992 of the State Government in the Health
and Family Welfare Department, Odisha, the
petitioner was promoted to the post of Asst. Professor.
The opposite party No.3-Dr.Mangual was also
promoted to the said cadre subsequent to the
petitioner. As such the petitioner was placed at Sl.
No.7 in the gradation list whereas Dr.Mangual (OP
No.3) was placed at Sl. No.8. However, basing upon
the GA Department Resolution No.10237/Gen dated
20.03.2002, the seniority of Asst. Professor in the
Department of Surgery was re-fixed and the petitioner
was placed below Dr.Mangual in the gradation list
vide H&FW Department Order No.14934/H dated
23.04.2002. Being aggrieved, Dr.Purna Chandra
Mohapatra along with others including the petitioner
moved the Hon'ble Supreme Court in W.P.(C) No.340
of 2002 assailing the said Government Order and re-
fixing the seniority and finding a prima facie case,
Hon'ble Supreme Court, vide order dated 11.07.2002
directed to maintain status quo with regard to
seniority list. However, Dr.Mangual was promoted to
the cadre of Professor in Surgery, vide H & FW
Department Order No.20592/H dated 03.07.2003 in
which, it was made clear that the promotion would be
subject to the result of W.P.(C) No.340 of 2002.
Subsequently, the petitioner was also promoted to the
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cadre of Professor by the H & FW Department Order
No.13543/H dated 17.05.2007.
4.1 The GA Department Resolution dated
20.03.2002 was quashed by this Court, vide order
dated 24.12.2010 in W.P.(C) No.6781 of 2008 and
W.P.(C) No.17375 of 2009. Accordingly, seniority of
the petitioner in the gradation list of Asst. Professor of
Surgery prepared pursuant to office order dated
23.04.2001 of the F & HW Department, was restored
and the petitioner became senior to Dr.Mangual in the
cadre of Asst. Professor in the Department of Surgery.
Basing upon the said gradation list under Annexure-
1, a draft gradation list of OMES Cadre was published
by the H & FW Department, vide order No.7202/H
dated 11.03.2014 (Annexure-7) inviting objections,
wherein the petitioner was placed at Sl. No.4 and
Dr.Mangual (OP No.3) was placed at Sl.No.5.
4.2 In the aforesaid backdrop, the petitioner
submitted a representation dated 19.09.2018 to the
Director, Medical Education and Training, Odisha (OP
No.2) to pre-fix the date of promotion of the petitioner
from 03.07.2003, when Dr.Mangual was promoted to
the cadre of Professor in the Department of Surgery.
Since the petitioner was all along discharging the
duties and responsibilities of Professor, he also
prayed for differential salary as well as all
consequential service benefits consequent upon such
pre-fixation and protection of his seniority.
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4.3 Upon receipt of such representation, opposite
party No.2, vide his letter No.9764 dated 25.07.2019
(Annexure-8), recommended the case of the petitioner
to the Government for pre-fixing the date of promotion
to the post of Professor in Surgery with effect from
03.07.2003, on which date his junior Dr.Mangual got
promotion to the post of Professor of Surgery.
However, the opposite party No.1, who was in seisin
of the matter, has not taken any decision on such
recommendation of opposite party No.2, as yet.
Hence, the petitioner finding no other alternative has
filed this writ petition.
4.4 Mr.Rath, learned counsel for the petitioner
further submitted that due to the faulty resolution of
the GA Department, the petitioner was made to suffer
and was denuded of his legitimate service benefits.
The gradation list (Annexure-1) of Asst. Professor of
Surgery reveals that the petitioner was senior to
Dr.Mangual (OP No.3) Although the inter se seniority
was subsequently changed, but pursuant to the order
of this Court quashing faulty resolution of the GA
Department dated 20.03.2002, the seniority as per
the gradation list of Asst. Professors as at Annexure-1
has already been restored. As such, the petitioner is
entitled to be promoted to the cadre of Professor with
effect from the date, when his immediate junior got
promotion. Learned counsel for the petitioner further
submits that the petitioner was eligible and suitable
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to be promoted to the cadre of Professor in the year
2002 as there was existing vacancy in the said cadre
in the Department of Surgery and the petitioner had
teaching experience of 10 years and he was fulfilling
all other eligibility criterion, as well. Hence, he prayed
for the aforesaid relief.
4.5 In the meantime, the petitioner has been
retired from service on attaining the age of
superannuation. Therefore, he prays that consequent
upon pre-fixation of the seniority of the petitioner, all
consequential, financial as well as pensionary benefits
may be extended to the petitioner forthwith.
5. Mr.Tripathy, learned Additional Government
Advocate, on the other hand, submits that the matter
relates to inter se seniority between the petitioner and
opposite party No.3. Since both the petitioner and
opposite party No.3 are already superannuated, the
authorities may be directed to consider the case of the
petitioner on its own merit; if necessary giving
opportunity of hearing to the parties concerned.
6. Taking into consideration the nature of
grievance made in this writ petition, this Court does
not feel it necessary to keep this matter pending by
issuing notice in the matter requiring response from
the opposite parties. As such, the writ petition is
disposed of at the stage of admission.
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7. In above view of the matter, this Court without
expressing any opinion on the merits of the case of
the petitioner, directs the opposite party No.1 to take
a decision on the recommendation dated 25.07.2019
(Annexure-8) of the opposite party No.2-Director,
Medical Education & Training, Odisha, Bhubaneswar
on its own merit, as expeditiously as possible,
preferably within a period of two months from the
date of receipt of an authenticated copy of this order
downloaded from the website of this Court, which
shall be treated at par with certified copy in the
manner prescribed in this Court's Notice No.4587
dated 25.03.2020.
7.1 Needless to mention that if necessary the
authority may extend opportunity of hearing to the
parties concerned, while taking a decision on the
recommendation of the opposite party No.2, as
aforesaid. It is further made clear that if opposite
party No.1 takes a decision to pre-fix the date of
promotion of the petitioner then all consequential
benefits including the pensionary benefit shall be
granted in favour of the petitioner forthwith.
.............................
K.R.Mohapatra, J.
ss J.