Orissa High Court
Afr Dr. Manamohan Biswal vs State Of Odisha & Ors. ..... Opp. Parties on 25 November, 2021
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 17194 OF 2021
In the matter of an application under Articles 226 & 227 of
the Constitution of India.
---------------
AFR Dr. Manamohan Biswal ..... Petitioner
-Versus-
State of Odisha & Ors. ..... Opp. Parties
For Petitioner : M/s. U.C. Mohanty &
G.P. Jena, Advocates
For Opp. Parties : Mr. A.K. Mishra,
Addl. Govt. Advocate
(O.Ps.1-4)
Mr. P.K. Mohanty, Sr. Advocate
along with M/s. P. Mohanty,
P.K. Nayak, P.K. Pasayat &
S.N. Dash, Advocates
(O.P.No.5)
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of Hearing: 15.11.2021 :: Date of Judgment: 25.11.2021 DR. B.R. SARANGI, J. The petitioner, who is functioning as Assistant Professor, Department of Clinical Haematology on deputation basis at SCB Medical College & Hospital, // 2 // Cuttack, has filed this writ petition to quash e-notification No.2832/PSC dated 28.04.2021 under Annexure-9 pertaining to Roll No.100102 & Registration ID No.111819250955 rejecting his candidature and to direct opposite party no.5 to consider his candidature so as to declare him as duly selected candidate for the post of Assistant Professor (Super Specialty) in the discipline of Clinical Haematology as per the advertisement no.11 of 2018-19 and recommend his candidature as a selected candidate to the State Govt., Health & Family Welfare Department-opposite party no.1 for his consequential appointment along with all service benefits at par with similarly situated persons in other discipline & department, who have been selected and appointed in their respective posts.
2. The factual matrix of the case, in brief, is that the petitioner acquired MBBS qualification from SCB Medical College & Hospital, Cuttack in the year 2005 and thereafter Post Graduate Degree in Pathology in the year 2016. While he was working as LTRMO (Leave Transfer // 3 // Relieve Medical Officer) in the District Headquarter Hospital, Jajpur, he was selected as Senior Resident and vide order dated 25.07.2017, he was posted as Senior Resident in the department of Clinical Haematology at SCB Medical College and Hospital, Cuttack, pursuant to which he joined on 21.07.2017, which was duly accepted by the authority. After joining in the said department, he discharged his duty and gained experience on special training in Clinical Haematology from 05.09.2016 to 19.12.2016 and 27.01.2017 to 27.11.2018 and thereby, he has acquired special training of two years four months and 14 days.
3. Odisha Public Service Commission (OPSC)- opposite party no.5 issued an advertisement on 09.08.2007 in the cadre of Odisha Medical Health Services, Class-II, (Group-B) for selection and appointment of Assistant Surgeon, pursuant to which the petitioner was selected and appointed on regular basis and posted at Dhualpur PHC (N) against the vacant post of Medical Officer in Class-II (Group-B) of the State Medical Health // 4 // Services Cadre in the scale of pay of Rs.6,500-10,500/- along with other allowances as sanctioned by the Govt. from time to time. He joined in the said cadre on 13.08.2007 and posted as Medical Officer in-Charge, PHC, Adenigarh, Boudh. He was allowed to receive revised scale of pay from time to time. Thereafter, he prosecuted his P.G. course for a period of three years w.e.f. 31.08.2013 to 30.08.2016. On completion of said course, he was posted at SCB Medical College & Hospital, Cuttack vide Govt. of Odisha, Health & Family Welfare Department order dated 12.08.2016. He was then posted in the establishment of Superintendent, SCB Medical College & Hospital, Cuttack vide Govt. of Odisha, Health & Family Welfare Department order dated 16.12.2016. Thereafter, the Superintendent, SCB Medical College & Hospital, Cuttack vide Memo No.25551 dated 03.11.2018 certified the deployment of services of the petitioner in the Department of Pathology, SCB Medical College & Hospital, Cuttack w.e.f. 31.08.2016. Though, he was deployed to the Pathology Department, practically he was discharging his duties and services in the Clinical Haematology wing of the Pathology // 5 // Department as well as Sishu Bhawan, Cuttack and got special training in Clinical Hematological work. This fact is evident from the service book annexed as Annexure-1 to the writ petition. Thereafter, he was posted to District Headquarters Hospitals as LTRMO, vide Government of Odisha, H&FW Department order dated 16.12.2016 and joined as such on 22.12.2016. Thereafter, he was selected as a Senior Resident/Tutor in the Department of Clinical Haematology in SCB Medical College & Hospital, Cuttack, vide office order dated 25.01.2017 of the Government of Odisha, Health & Family Welfare Department. Consequentially, he was relieved from the District Headquarters Hospital, Jajpur on 25.01.2017 and joined in the Department of Clinical Haematology, SCB Medical College & Hospital, Cuttack on 27.01.2017. 3.1. While he was so continuing, the Government of Odisha, Health & Family Welfare Department issued requisition to the OPSC for selection of Assistant Professor (Super Specialty)/Dentistry Disciplines under the Odisha Medical Education Service cadre for posting in the // 6 // Government Medical Colleges of the State in Group-A of the Odisha Medical Education Service (Methods of Recruitment and Conditions of Service) Rules, 2013 under the Health & Family Welfare Department in the scale of pay of Rs.15,600/--Rs.39,000 + AGP Rs.8,000/- with usual dearness allowance and other allowances, as may be sanctioned by the Government of Odisha from time to time. Accordingly, OPSC issued advertisement no.11 of 2018-19 for recruitment to the posts of Assistant Professors (Super Specialty) Disciplines of SCB Medical College, Cuttack & MKCG Medical College, Berhampur and Dentistry Disciplines of SCB Dental College, Cuttack. The number of vacancy was indicated as 1 in UR category against the Department of Clinical Haematology. Thereafter, a corrigendum was issued on 12.10.2018 extending the last date of receipt of application as 13.12.2018 instead of 15.11.2018.
3.2. So far as the post of Assistant Professor, Clinical Haematology (Super Speciality) is concerned, the educational qualification and experience was provided // 7 // under Para-4(b) of the advertisement. Further, the details of the discipline-wise academic qualification and teaching experience for the post of Assistant Professors in different disciplines of Super Speciality were also prescribed in the table appended to the said advertisement. As regards discipline of Clinical Haematology, it was prescribed as follows:
Sl.No. Name of the Academic qualification & teaching discipline experience 1 (2) (3) 1 Clinical D.M. (Clinical Haematology). M.D. Haematology (Medicine), M.D. (Paediatric) or M.D. (Pathology) with 2 years Special Training in Clinical Haematology in the Institute recognized by the MCI shall also be eligible 3.3. The petitioner, having possessed requisite qualification and completed more than two years of special training, applied for the aforesaid post well within the time specified in the advertisement issued by the OPSC, after obtaining permission from the competent authority, which was acknowledged granting Registration I.D. No.111819250955. After scrutiny of such application submitted through online and for having satisfied the // 8 // eligibility criteria, since the application submitted by the petitioner was found in order, he was called upon to appear in the written examination as per schedule of the examination. Pursuant to the of admit card issued having Roll No.100102, the petitioner appeared in the written examination on 14.12.2021. Only three candidates including the petitioner applied through online in order to participate in the recruitment process. Out of them, application of one candidate was rejected and the applications of other two candidates, including the petitioner, were kept valid. Of the remaining two candidates, the petitioner appeared in the written examination held on 14.12.2021, whereas the other candidate did not appear. Therefore, the petitioner was the sole candidate, who gave written examination and also declared qualified. Accordingly, he was called upon by the OPSC for his appearance and verification/production of original documents on 15.03.2021. Consequentially, he produced all the original documents, which were duly verified, but his candidature was rejected vide Annexure-9 dated 28.04.2021, on the plea of not having acquired // 9 // qualification as per Para-4(b) of the advertisement no.11 of 2018-19. Hence this application.
4. Mr. U. C. Mohanty, learned counsel for the petitioner vehemently contended that the rejection of candidature of the petitioner, pursuant to Annexure-9 dated 28.04.2021, cannot sustain in the eye of law, as it has been rejected on the ground "for not having required qualification" for recruitment to the post of Assistant Professor (Super Specialty) in the discipline of Clinical Haematology. He further contended that on the basis of certificate produced, so far as acquisition of special training is concerned, the petitioner, having satisfied the requirement of more than 2 years of experience, his application could not and should not have been rejected casually without application of mind. It is further contended that if for some reason or the other, it was found that the petitioner does not possess minimum qualification of two years of experience, as per the advertisement issued, then the same could have been relaxed as per Rule-16, whereby the power of relaxation // 10 // has been vested with the Government that in the event the State Government considered it necessary to do so in the public interest, then it should have exercised such power by passing an order reduced in writing and relax any of the provisions of the rules in respect of any class or category of the employee in consultation with the Commission in view of the provisions contained in Rule-
17, which specifically provides that if any question arises relating to the interpretation of the Rules of 2013 or any provision thereof, the same shall be referred to the Government, Health and Family Welfare Department for decision. Thereby, rejection of application without applying the provisions of law cannot sustain in the eye of law. It is further contended that computation of 2 years of experience has not been done in proper perspective and in due application of mind by the OPSC, and rejection of the candidature of the petitioner has been made arbitrarily and unreasonably. Thereby, order impugned dated 28.04.2021 under Annexure-9 should be quashed and the name of the petitioner should be recommended for recruitment to the post of Assistant Professor, Clinical // 11 // Haematology (Super Speciality), pursuant to advertisement No.11 of 2018-19.
To substantiate his contentions, he has relied upon the judgments of the apex Court in State of Bihar v. Ramesh Chandra, AIR 1998 SC 2384 : (1997) 4 SCC 43; Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16; Mahinder Singh Gill v. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851; Dwarka Nath v. Income Tax Officer, Special Circle D-ward, Kanpur, AIR 1966 SC 81; and the judgment of this Court in Dr. Bikash Kumar Pattanayak v. Principal Secretary to Government of Odisha, Health & Family Welfare Department (W.P.(C) No.3964 of 2020, which has been disposed of on 23.09.2021).
5. Mr. A.K. Mishra, learned Additional Government Advocate for the State, referring to the counter affidavit filed by opposite party no.3, contended that as per Para- 4(b) of the advertisement issued, a candidate must have satisfied the requirement of having two years of experience of special training in the subject itself. As the petitioner // 12 // has undergone special training in the Haematology Department of SCB Medical College & Hospital, OPSC sought for clarification vide letter dated 07.04.2021 regarding genuineness of the training certificates issued in favour of the petitioner. Consequentially, the OPSC was communicated vide letter dated 13.04.2021, along with letter dated 17.04.2015 of the MCI, wherein the committee decided to recommend to the Central Government to disapprove the scheme for starting of DM (Clinical Haematology) course at SCB Medical College & Hospital, Cuttack under Utkal University for the academic year 2015-16 and none of the faculty members have Super Specialty qualification or certificate of Special Training for two years from a recognized institution and their training certificates issued at Local Level have already been rejected by the Council at the time of last assessment. Consequentially, it is contended that the action taken by the OPSC in rejecting the candidature of the petitioner is well justified and that does not warrant interference of this Court.
// 13 //
6. Mr. P.K. Mohanty, learned Senior Counsel appearing along with Mr. P. Mohanty, learned counsel for OPSC-opposite party no.5 specifically urged that the petitioner has not possessed two years experience on special training. If computation is made, for the period from 27.01.2017 to 28.12.2018, the petitioner at the most has acquired experience of one year eleven months and 15 days, by the date of application, i.e., 13.12.2018 and, thereby, he was fallen short of requisite training experience of two years. Consequentially, the application of the petitioner being found defective, in view of sub-para
(k) of Para-8 of the advertisement, which stipulates that admission to examination will be provisional and if on verification at any stage before or after the examination, it is found that a candidate does not fulfil all the eligibility conditions, his/her candidature will be liable for rejection, his application has been rejected vide Annexure-9 dated 28.04.2021. Thereby, opposite party no.5, having taken action in consonance with the advertisement issued, as the petitioner had not satisfied special training of two years and otherwise also he was not eligible, no illegality // 14 // has been committed in the order impugned and, therefore, the writ petition is liable to be dismissed.
7. This Court heard Mr. U.C. Mohanty, learned counsel for the petitioner; Mr. A.K. Mishra, learned Additional Government Advocate for the State; and Mr. P.K. Mohanty, learned Senior Counsel appearing along with Mr. P. Mohanty, learned counsel for opposite party no.5-OPSC by hybrid mode. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission.
8. In the conspectus of facts, as narrated above, the only question to be considered by this Court is, whether the petitioner has acquired two years of special training in Clinical Haematology from an institute recognized by the MCI, so as to make him eligible to submit his application and, if so, whether the special training qualification acquired by the petitioner in Clinical Haematology from SCB Medical College & Hospital, Cuttack makes him eligible to participate in the process of // 15 // selection for the post of Assistant Professor, Clinical Haematology (Super Speciality) pursuant to advertisement no.11 of 2018-19.
9. The petitioner has justified his acquisition of two years of special training experience in paragraph-11 of the writ petition, which reads as follows:
"11. That, it is respectfully submitted that so far the petitioner is concerned, he is possessing the Degree in M.D. (Pathology) & Special Training in Clinical Haematology as per the Experience Certificate issued by the Competent authority for the period from 31.08.2016 to 19.12.2016, 27.01.2017 to 28.12.2018 and 31.08.2018 to 19.12.2018. Thus a conjoint reading all the experience certificates, the petitioner is possessing the requisite qualification for more than two years in every aspect. From the requisite qualification as required is two years i.e. 730 days, whereas the petitioner possessing training/experience certificate in Clinical Haematology for 784 days, which is more than two years as revealed from the experience certificate issued in favour of the petitioner under Annexure-5 series. Therefore it is undisputed fact that the Petitioner possessing Special Training experience in Clinical Haematology along with M.D. (Pathology), thereby he is eligible as per the qualification prescribed under the Advertisement. So far the certificates being issued in favour of the Petitioner regarding Special Training in Clinical Haematology in every aspect and being granted by the Professor & Unit Head Pathology as well as Assistant Professor, Department of Clinical Haematology & the Professor, Department of Clinical Haematology, SCB Medical College & Hospital, Cuttack are genuine and valid in every aspect, which is the requisite qualification as prescribed in the Advertisement No.11 of 2018-19 and Corrigendum issued there under including with express // 16 // knowledge of the State Govt., H & FW Department as revealed from the Service Book."
10. Opposite party no.3 in paragraphs-8 & 9 of the counter affidavit has pleaded as follows:
"8. That as regards the averments made in Para-6 to 10 of the writ petition, this deponent has no comments to offer.
9. That in reply to the averments made in Para-11 to 13 of the writ petition, it is humbly submitted that the petitioner applied for recruitment to the post of Assistant Professor (Super Speciality) in clinical Haematology pursuant to Advertisement No.11 of 2018-19 (Annexure-7 series).
It would be relevant to state here that as per the terms and conditions of the aforesaid advertisement at Para-4(b) and Odisha Medical Education Service Rules 2013, the required qualification for the post of assistant Professor was prescribed as follows:
D.M. (Clinical Haematology).M.D. (Medicine), MD (Paediatrics) or MD (Pathology) with 2 years Speciial Training in Clinical Haematology from the institution recognized by the MCI shall be eligible.
It is further humbly submitted that the petitioner applied for the post of Assistant Professor having the qualification of MD in Pathology and submitting documents in support of experience/special training of 2 years acquired in clinical Haematology.
It is to state here that the OPSC (Opp. Party No.5) while taking up the case of the petitioner for consideration sought for clarification vide Letter No.2357, dated 07.04.2021 regarding the genuineness of the Training certificates in favour of the petitioner. In this connection the OPSC was communicated vide office Letter No.3675 dt. 13.04.2021 alongwith letter dated 17.04.2015 of the MCI wherein the committee decided to recommend to the Central Government to disapprove the scheme for starting of DM (Clinical Haematology) course at SCB Medical College, Cuttack under Utkal University, Bhubaneswar for // 17 // the academic year 2015-16 as none of the faculty members have Super Speciality qualification or certificate of Special Training for 2 years from a recognized institution. Their training certificate issued at Local Level have already been rejected by the Council at the time of last Assessment.
It is further humbly that the OPSC rejected the candidature of the petitioner for the post of Assistant Professor considering the report of the MCI, which are evident from Annexure-A/5 and Annexure-B/5 respectively to the counter affidavit filed by OPSC (Opp. Party.No.5)."
11. Similarly, opposite party no.5 in paragraphs-5 and 6 of the counter affidavit has pleaded as follows:
"5. That, the averments made in Paragraphs 2 to 10 & 12 of the writ petition need no further reply.
6. That, in reply to the averments made in paragraphs-11 to 13 of the writ petition, it is humbly submitted that the petitioner had submitted Special Training Certificate in Clinical Haematology, issued by the Authority for the period from 31.08.2016 to 19.12.2016 and from 27.01.2017 to 28.12.2018. The last date of submission of online application form was 12.11.2018. The Commission sought for clarification from Dean & Principal, SCBMCH, Cuttack regarding genuineness of his Special Training Certificate. After clarification received from Dean & Principal, SCB Medical College, Cuttack, regarding genuineness of his Special Training Certificate, the Commission considered his Special Training Certificate is not genuine one as per MCI letter, which was enclosed by Dean & Principal, SCBMCH, Cuttack, vide their letter No.3675, dt. 13.04.2021. A copy of letter of MCI is annexed herewith as Annexure-B/5."
12. On the basis of pleadings available on record, it is made clear that the petitioner has produced the certificate of special training in Clinical Haematology // 18 // issued by the competent authority for the period from 31.08.2016 to 19.12.2016 and from 27.01.2017 to 28.12.2018. The last date of submission of online application form was 13.12.2018. Therefore, even if 15 days period is excluded, i.e., from 13.12.2018 to 28.12.2018, the petitioner satisfies the requirement of 2 years of special training experience in Clinical Haematology subject. But the Commission, vide letter dated 07.04.2021, sought clarification from the Dean & Principal, SCB Medical College & Hospital regarding genuineness of special training certificate. In response to same, the Dean & Principal, SCB Medical College & Hospital communicated vide letter dated 13.04.2021, annexing therewith letter dated 17.04.2015 issued by the Deputy Secretary (Admn.), Medical Council of India, New Delhi, regarding genuineness of special training certificate in Clinical Haematology, wherein it is stated that the Postgraduate Medical Education Committee considered the assessment report and decided to recommend to the Central Govt. to disapprove the scheme for starting of DM (Clinical Haematology) course at SCB Medical College, // 19 // Cuttack under Utkal University and none of the Faculty members had Super Specialty qualification or certificate of special training for 2 years from a recognized institution.
13. The reference, which has been made in letter dated 13.04.2021, of the letter dated 17.04.2015 issued by the Medical Council of India has no application to the present case, because it is a correspondence between the Medical Council of India and the Secretary to the Government of India, Ministry of Health & Family Welfare, New Delhi, which specifically relates to starting of DM (Clinical Haematology) course at SCB Medical College, Cuttack under Utkal University, Bhubaneswar u/s 10 A of the IMC Act, 1956. The decision, which was sent by the Post Graduate Medical Education Committee intimating in clause-1 that none of the faculty members had Super Specialty Qualification or Certificate of Special Training for 2 years from a Recognized Institution was for the year 2015-16. That has nothing to do with the present issue, because after that the petitioner has got special training in Clinical Haematology and the Head of the Department of // 20 // Clinical Haematology having found his competency issued the said certificate, which is evident from Annexure-5 series. It is stated in the special training certificate granted on 10.01.2017 by Dr. R.K. Nayak, Assistant Professor, Deptt. of Clinical Haematology, SCB, Medical College & Hospital, Cuttack that the petitioner, after finishing his daily duties, regularly comes to the Department of Clinical Haematology from 05.09.2016 to 19.12.2016. Apart from the same, he was issued with special training certificate on 27.11.2018 stating therein that w.e.f 27.01.2017 till 27.11.2018 he has received special training in Clinical Haematology. If computation is made, the petitioner has undergone special training of 2 years and thus satisfies the requirement of eligibility criteria as per Para-4(b) of the advertisement. The petitioner, having appeared in the written examination and declared qualified, his application cannot and should not have been rejected on the ground that he has not acquired requisite training experience. That itself is utter non-application of mind by the authority and, as such, rejection of his candidature made // 21 // by invoking sub-para (k) of Para-8 of the advertisement cannot sustain in the eye of law.
14. From the pleadings mentioned above, it appears that so far as acquisition of training experience is concerned, in paragraph-5 of the counter affidavit filed by opposite party no.5, it has been specifically mentioned that the averments made in paragraphs-2 to 10 and 12 of the writ petition need no further reply. Similarly, opposite party no.3 in paragraph-8 of the counter affidavit has specifically mentioned that in respect of the averments made in paragraphs-6 to 10 of the writ petition he has no comment to offer. Therefore, the pleadings made in the writ petition in paragraphs-6 to 10 have not been denied by the opposite parties, save and except paragraph-11, as has been clarified above.
15. In Ramesh Chandra (supra), the apex Court, while considering the eligibility condition and qualification and experience in a recruitment process of the Medical Colleges, held that in an alternative qualification and not the only qualification which a candidate must possess and // 22 // the person possessing "M.S./F.R.C.S.... with two years' special training" is also eligible. As such, it is also held in paragraph-9 of the said judgment, in view of certificate issued by Dr. Verma, Head of the Neurosurgical Unit and the other material on record, that Dr. Choudhary did have "special training" in Neurosurgery for two years. Relying upon the aforementioned judgment of the apex Court, if the same principle is applied to the present case, Dr. R.K. Nayak, Asst. Professor and by Dr. R.K. Jena, Professor & HOD, both of Dept. of Clinical Haematology, SCB Medical College & Hospital, Cuttack are competent to issue such certificates specifying the special training qualification and that cannot be brushed aside declaring the petitioner ineligible in a slipshod manner on the flimsy ground of having no special training qualification. More so, the order impugned does not specify which of the qualification, the petitioner does not have so as to declare him ineligible. If the HoD of the Clinical Haematology, during the service period of the petitioner in the department, has given certificate that the petitioner possessed special training experience, his application should not have been rejected // 23 // on the ground that he had no requisite qualification. More so, no reason has been assigned in Annexure-9 dated 28.04.2021, save and except indicating "not having required qualification". In absence of any specific reason assigned in the order dated 28.04.2021 under Annexure-9, subsequent explanation given in the counter affidavit filed by opposite party no.5 cannot sustain in the eye of law in view of judgment of the apex Court in Gordhandas Bhanji & Mahinder Singh Gill (supra). Otherwise also, when the petitioner submitted his application pursuant to advertisement, necessary documents, which have been shown as Annexure-5 series, having been scrutinized and found in order, the petitioner was allowed to appear in the written examination and after having declared qualified, he was called upon for verification of documents. At that stage, rejection of his application on the ground that he was not having required qualification as per Para-4(b) of the advertisement for recruitment to the post of Assistant Professor, Clinical Haematology (Super Speciality) cannot sustain in the eye of law.
// 24 //
16. Opposite party no.5-OPSC, while conducting the examination of Assistant Professor in Clinical Haematology, in response to advertisement no.8 of 2011- 12, selected one Dr. Sudha Sethy, even though she did not have special training experience of two years and fell short of one month seven days against the prescribed two years and in its finding accepted her special training experience holding that Dr. Sethy reached the prescribed qualification and rejection of her candidature will have ramification of not having an Assistant Professor in the Medical College of Haematology Department, SCB Medical College & Hospital, Cuttack which will be detrimental to public service, which information the petitioner has received under RTI Act and placed on record as Annexure-16 series. The said decision of the OPSC was challenged before this Court in W.P.(C) No.19114 of 2013, W.P.(C) No.29101 of 2013 and W.P.(C) No.5063 of 2013, which have been disposed of on 24.04.2015 and have been confirmed by the apex Court in SLP (C) No.23875 of 2015 vide order dated 17.08.2015 under Annexure-15 series and Dr. Sudha Sethy was accordingly appointed as an // 25 // Asst. Professor in Clinical Haematology since she had got special training certificate in addition to her duty in Pathology Department.
17. Applying the ratio decided in the case Dr. Sudha Sethy to the case at hand, the present petitioner stands on a better footing than her. In the present case, even OPSC has admitted that up to the final date of submission of online application, i.e., 13.12.2018, the petitioner possessed the special training experience of 1 year 10 months and 16 days. Despite representation dated 28.04.2021 submitted by the petitioner, opposite party no.5 failed to discharge its statutory functions and obligations and adopted a discriminatory attitude so far as the petitioner is concerned. But, so far as Dr. Rajib Kumar Nayak is concerned, OPSC has selected and recommended his case for appointment as an Assistant Professor in Clinical Haematology in Group-A, as per OMES Rules, 2013, pursuant to advertisement no.15 of 2015-16 annexed as Annexure-13 series and thus it is unfair and unreasonable to say that Dr. Rajib Kumar Nayak, who had // 26 // issued special training certificates in favour of the petitioner for the periods from 05.09.2016 to 19.12.2016 and from 27.01.2017 to 27.12.2018, are not genuine and involve ambiguity in view of the communication of opposite party no.3 dated 13.04.2021. If opposite party no.5 is silent about the genuineness of special training certificate of the petitioner, Annexure-B/5 has no application to the petitioner's case. Thereby, the opposite parties have resorted to such pleas just to deprive the legitimate claim of the petitioner to be appointed as Assistant Professor in the department of Clinical Haematology under Rules, 2013.
18. In Dr. Bikash Kumar Pattanayak (supra), this Court, considering the case of similarly situated persons, held that since his application was considered eligible and he was permitted to sit in the examination, rejection of his candidature was illegal, and accordingly quashed the order of rejection and directed the OPSC to take further course of action by recommending his name to the Government for giving him appointment against one of the // 27 // available vacancies, since out of total posts of 3278, only 1403 selected candidates had been recommended by the OPSC to the State.
19. In the present case, though one post was advertised, three candidates offered their candidature. Out of them, application of one candidate was rejected and out of the remaining two, the petitioner only appeared in the written examination and declared qualified, but, thereafter, his candidature was rejected.
20. Therefore, by applying the ratio decided in Dr. Bikash Kumar Pattanayak (supra) to the present case, this Court is of the considered view that since one post for unreserved category was advertised and the petitioner, having satisfied the requirement appeared in the written examination and declared qualified, his name should have been recommended to the State for giving him appointment as Assistant Professor in the Department of Clinical Haematology (Super Speciality), pursuant to advertisement no.11 of 2017-18. Therefore, while quashing Annexure-9, this Court directs opposite party // 28 // no.5 to recommend the name of the petitioner to the State for giving him appointment as Assistant Professor in the Department of Clinical Haematology. The entire exercise shall be done within a period of two months from the date of communication of this judgment.
21. Accordingly, the writ petition is allowed. However, there shall be no order as to costs.
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DR. B.R. SARANGI, JUDGE Orissa High Court, Cuttack The 25th November, 2021, Alok