Orissa High Court
Dr.Minakshi Mishra vs State Of Odisha And Others .... Opposite ... on 5 February, 2024
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.493 of 2024
(This is an application under Article 226 and 227 of the Constitution
of India)
Dr.Minakshi Mishra .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
For Petitioner : Ms. Suvalaxxmi Devi, Advocate
For Opp. Parties : Mr. N.K.Praharaj, A.G.A
Additional Govt. Advocate
JUDGMENT
Date of hearing : 05.02.2024 Date of Judgment : 05.02.2024 A.K. Mohapatra, J.
1. The present Writ Petition has been filed by the Petitioner, who has successfully completed her Senior Resident course from the AIIMS, Bhubaneswar in the year 2019-2022 after completing her M.D. (Radiotherapy) from the S.C.B.Medical College and Hospital, Cuttack, with a prayer to quash the order dated 18.01.2024 under Annexure-7, issued by the Opposite Party No.1 and further for a direction to the said Opposite Party to accept the Petitioner's resignation and issue a No Objection Certificate (NOC) and Discharge/Relieve Certificate in favour of the Petitioner in terms of her application dated 07.10.2023, 27.12.2023 and 09.01.2024 at // 2 // Annexure-3,5 & 6 respectively, thereby enabling the Petitioner to join at AIIMS, Patna in the post of Assistant Professor, Department of Radiotherapy.
2. The factual background leading to the filing of the Writ Petition, in short, is that the Petitioner successfully completed her M.D. (Radiotherapy) in the year 2019. Thereafter, the Petitioner was appointed as Leave Training Reserve Medical Officer (LTRMO) at District H.Qrs Hospital, Nayagarh pursuant to the order dated 31.01.2023. While the Petitioner was continuing as such, she came across an advertisement dated 11.09.2023 issued by AIIMS, Patna, Opposite Party No.4 for recruitment to the posts of faculty in various departments at AIIMS, Patna on direct recruitment basis under Annexure-2 to the Writ Petition. Pursuant to such advertisement, the Petitioner applied for the post of Assistant Professor (Radiotherapy). Since the application of the Petitioner was accepted and she was called to attend the interview, she applied for No Objection Certificate from Opposite Party No.1 to 3 on 07.10.2023 under Annexure-3. It is pertinent to mention that as per the interview call letter of the AIIMS, Patna dated 01.11.2023 the interview was scheduled to take on 9.11.2023. On 09.11.2023, the Petitioner appeared in the interview at AIIMS, Patna with an undertaking that she will submit her No Objection Certificate at the time of appointment in the event the Petitioner is selected in such interview since the same has not been issued by the competent authority.
3. While the mater stood thus, finally the Petitioner was selected for appointment at AIIMS, Patna and vide letter dated 21.12.2023, the Petitioner has been directed to accept the offer of appointment // 3 // within one month and submit Discharge/Relieve Certificate from her employer at the time of joining. Pursuant to the aforesaid offer of appointment vide letter dated 21.12.2023 under Annexure-4, the Petitioner tendered her resignation and once again applied to the Opposite Party No.1 for issuance of NOC and Relieve/Discharge Certificate on 27.12.2023. Since no action was taken on her letter for issuance of a No Objection Certificate and Relieve/Discharge Certificate and no communication whatsoever was received from Opposite Party Nos. 1 to Opposite Party No.3 with regard to acceptance of her resignation, the Petitioner submitted a reminder to the Opposite Parties on 09.01.2024, under Annexure-6 to the Writ Petition. Despite such reminder, no final decision has been taken to relieve the Petitioner enabling her to join in her new place of posting pursuant to the offer letter dated 21.12.2023. Being aggrieved by the inaction of the Opposite Parties, the Petitioner has approached this Court by filing the present Writ Petition.
4. Learned counsel for the Petitioner submitted that there is no bar in law either in accepting the resignation of the Petitioner or in issuing the relieve certificate in favour of the Petitioner thereby enabling her to join in her new post of Assistant Professor in the department of Radiotherapy at AIIMS, Patna. She further contended that the Petitioner has not executed any bond with the Government and as such she is under no legal obligation to continue under Government of Odisha. She further contended that while she was doing her M.D. in (Radio Therapy) she was selected pursuant to an advertisement issued by the OPSC and accordingly she was posted as Leave Training Reserve Medical Officer in the OMHS cadre at District H.Qrs. Hospital, Nayagarh pursuant to order dated // 4 // 27.02.2023. In the year 2017 while continuing as Medical Officer, the Petitioner was selected for Senior Residentship at AIIMS, Bhubaneswar. She further contended that the Petitioner applied for a study leave to pursue her Senior Residentship and accordingly the Opposite Parties permitted her to join and undergo Senior Residentship at AIIMS, Bhubaneswar. Accordingly, the Petitioner continued as a Senior Resident from 2019-2022. After successful completion of her Senior Resident course, the Petitioner rejoined at District H.Qrs Hospital, Nayagarh on 30.01.2023 as Medical Officer, LTRMO under OMHS cadre.
5. While continuing as Medical Officer, LTRMO at District H.Qrs Hospital, Nayagarh, the Petitioner came across an advertisement issued by the AIIMS, Patna for recruitment to the posts of faculty in various departments at AIIMS, under the PMSSY scheme under Annexure-2 to the Writ Petition. The aforesaid advertisement under Annexure-2, in Clause 2(xii) provides for a No Objection Certificate from the present employer (in case of candidates working in Government/Semi or Quashi Government, Government enterprises or Government funded autonomous institutions). Further Clause - 7 of the Advertisement under Annexure-2 provides that all the original documents/certificates will be verified at the time of interview.
6. Since obtaining a No Objection Certificate from the employer is a mandatory requirement as per Advertisement under Annexurre-2, the Petitioner applied for a No Objection Certificate to enable her to appear in the interview on 07.10.2023. Such application was duly forwarded by the CDM&PHO, Nayagarh to the Opposite Party No.2.
// 5 // Learned counsel for the Petitioner at this juncture contended that although she has applied for NOC on 07.10.2023 she did not get any reply from the Opposite Parties, therefore, presuming that the Opposite Parties have no objection to her appearing in the interview, the Petitioner appeared in the interview on 09.11.2023. In the Interview, the Petitioner submitted an undertaking that she shall submit a No Objection Certificate at the time of joining, if selected in such interview.
7. Learned counsel for the Petitioner further contended that the Petitioner was selected by the Opposite Party no.4 on the basis of the merit and performance of the Petitioner in the interview mentioned hereinabove. Accordingly, she was allowed time to shall accept the offer of appointment within a month from the date of issuance of such letter. Further, referring to Annexure-4, learned counsel for the Petitioner submitted that Clause 8(2) of such offer letter provides that the Petitioner shall submit a Discharge/Relieve Certificate from the employer and as per Clause-16 of the said letter, the Petitioner is to submit her acceptance to the offer of appointment within one month from the date of issuance of such letter dated 21.12.2023. Since the Petitioner did not get any NOC from the Opposite Parties, the Petitioner, after receiving the offer of appointment under Annexure-4 dated 21.12.2023, tendered her resignation to Opposite Party Nos. 1 to 3 along with a request for issuance of NOC and Relieve/Discharge Certificate.
8. Since no such NOC and Relieve/Discharge Certificate was issued in favour of the Petitioner, the Petitioner has approached this Court for a direction to the opposite Parties to release such NOC and // 6 // Relieve/Discharge Certificate. Learned counsel for the Petitioner also contended that there is no bar in law in issuing such NOC and Relieve/Discharge Certificate in favour of the Petitioner. She further contended that in the event it is found that the Petitioner has received any stipend/remuneration from the Govt. of Odisha while undergoing senior Residentship at AIIMS, Bhubaneswar, then the Petitioner is ready and willing to refund the same to the Government of India.
9. Learned Additional Government Advocate on the other hand contended that in view of the Finance Department Resolution, the Petitioner is required to serve for at least about five years after completion of her PG course in Radiotherapy. Learned Additional Government Advocate, on instruction vide letter dated 30.01.2024, submitted that the Petitioner was appointed under OMHS cadre vide Department Notification dated 18.08.2017 and she has been allowed to complete her three years P.G.course. After completion of her P.G. study she has also been allowed to pursue Post Doctoral Fellowship course at AIIMS, Bhubaneswar. He further contended that the Petitioner has completed three years of senior Residentship at AIIMS, Bhubaneswar and thereafter she joined under the Opposite Party No.1 on 30.01.2023 and has been continuing as Medical Officer, District H.Qrs Hospital, Nayagarh since 24.07.2023.
10. Learned Additional Government Advocate, further referring to instructions dated 30.01.2024, submitted that the NOC applied for by the Petitioner has been rejected by the Department vide letter No.1473, dated 18.01.2024. In such view of the matter, learned Additional Government Advocate submitted that the very appearance of the Petitioner before the Board of Opposite Party No.4 is illegal.
// 7 // Therefore, the same does not confer any right on the Petitioner to leave the Government service and join the Opposite Party No.4 institution. With regard to the grant of NOC, learned Additional Government Advocate submitted that the department vide its letter dated 18.01.2024 has taken a decision following the principle decided in the Department Proceeding dated 22.12.2020, that no NOC shall be granted to the Medical Officers who have applied for appointment in the Government institutions outside the State.
11. Learned Additional Government Advocate also contended that although the Petitioner was initially appointed in the Periphery cadre of Health Service of Government of Odisha in the year 2017, from the beginning of her career she was allowed to pursue her higher study till January, 2023 after which she joined at District H.Qrs. Hospital, Nayagarh. He further contended that the Govt. of Odisha was of the view that her higher study will be useful in providing better health care facilities to the people of State of Odisha. However, after fulfillment of her dream of higher study, the Petitioner has taken a decision to join as Assistant Professor in AIIMS, Patna. In the aforesaid background, learned Additional Government Advocate submitted that in the event the Petitioner is granted NOC and Relieve/Discharge Certificate the same would not be in the greater interest of the residents of the State of Odisha.
12. During the pendency of the present Writ Petition and pursuant to the direction of this Court, the learned Additional Government Advocate obtained instructions from the Opposite Parties. The instruction provided to the learned Additional Government Advocate vide letter dated 02.02.2024 by the Opp. Parties reveals that, as per // 8 // the Finance Department Memo dated 20.02.1996, after completion of higher study, an Officer has to provide a minimum of five years of service under the State Government. The said instruction further reveals that the Petitioner, while pursuing her higher study has blocked a post of Medical Officer in OMHS cadre, exclusively for her own benefit, without rendering any service to the State under OMHS cadre. The instruction dated 02.02.2024 also reveal that the Petitioner should have applied for resignation through proper channel with detailed service particulars for consideration, and that the resignation of the Petitioner from Government service will be placed before the Government for consideration after receipt of detailed proposal along with her original Service Book/pending dues if any.
13. Learned Additional Government Advocate further referring to the Finance Department Memo dated 20.02.1996, submitted that the Finance Department, Government of Odisha has taken a policy decision which has been circulated amongst all the Departments of the Government. The Memo dated 20.02.1996 provides that Government servants undergoing study leave/higher study on leave due and admissible are required to execute a Bond which ensures proper utilization of their service, on return from such study leave, for a period of five years under the State Government. To fulfill the aforesaid objective of the policy decision, the Finance Department vide Memo dated 20.02.1996 provided that each Government servant going on study leave/higher study has to execute a bond before they are relieved to undergo study leave/higher study, which is due and admissible.
14. It also provides that the blank space in the bond relating to // 9 // the amount to be recovered, should be filled up with double the sum that is likely to be expended in respect of the higher study of a candidate. The Bonds are required to be compulsorily registered at the expense of the candidates. Learned Additional Government Advocate, although relies upon the memo of Finance Department, is unable to produce any document that the Petitioner has ever executed any bond as provided by the Government of Odisha vide Memo dated 20.02.1996. Upon a specific query being put by this Court, learned Additional Government Advocate submitted that steps have been taken to trace out whether the Petitioner has executed any bond when she had gone for such higher study. Be that as it may, no such document was ever produced before this Court, although the matter was adjourned on several dates. Under such circumstances this Court is bound to presume that no such bond exists which has been executed by the Petitioner.
15. Having heard the learned counsels appearing for both the sides, on a careful examination of their submissions as well as materials on record, this Court, is of the prima facie view that there exists no difference of opinion with regard to factual aspect of the matter. The only dispute that is required to be adjudicated by this Court in the present case, is with regard to any prohibition/bar in any Act or Rules in granting NOC or in accepting the resignation of the Petitioner. With regard to grant of NOC, this Court observes that although the Petitioner applied for NOC much prior to the date of interview, however, no communication whatsoever was made from the side of the opposite Parties prior to the date of interview i.e. 09.11.2023. Since no communication was received from the Opposite Parties, the Petitioner, had valid reasons to presume that the Opposite // 10 // Parties have no objection to her appearing in the interview to be conducted by Opposite Party No.4, and accordingly she appeared in the interview conducted by the Board and was finally selected for appointment.
16. Thereafter, application seeking NOC was rejected subsequently, i.e. on 18.1.2024, during the pendency of the Writ Petition before this Court. In the aforesaid factual scenario, this Court is of the considered view that the Petitioner has not committed any illegality in appearing before the Interview Board as she had reason to believe that the Government has no objection to issue NOC for appearing before the Interview Board of Opposite Party No.4. This Court at this juncture would like to observe that the Opposite Party No.1 shall do well to come out with a policy decision under which any application seeking grant of NOC shall be considered and rejected within a period of two weeks from the date of such application, failing which it would be presumed that the Government has no objection to the grant of such NOC. The Government being a model employer cannot sit over such applications indefinitely. Therefore, this Court feels that there should be a mechanism under which the application for grant of NOC is to be considered and, an immediate and prompt decision shall be taken on such application so that the Government employee would be able to know the view of the employer well before the interview/appointment/joining. In the aforesaid factual backdrop this Court has no hesitation in coming to a conclusion that the Petitioner has not committed any illegality in appearing before the interview Board as the Opposite Parties have failed to take a decision intimating their view to the Petitioner well // 11 // before the interview.
17. So far the second question of acceptance of resignation letter is concerned, this Court found that the same is governed under the Service Rules. In such view of the mater, it is further observed that such resignation letter tendered by the Government servant is required to be considered under the relevant Service Rules as expeditiously as possible preferably within a time limit to be fixed by the Government. Here also this Court would like to observe that the Government, being a model employer, is not expected to sit over such resignation letter indefinitely. Once a resignation letter is received by the competent authority, the same shall be acted upon immediately either by rejecting the same or by accepting such resignation letter. In the event the same is accepted, consequential steps are also required to be taken in a time bound manner.
18. The Government being an employer has no right to sit over the application of the Government servant indefinitely thereby allowing the fate of such applicant to remain in a state of limbo. While making the aforesaid observation this Court is also conscious of the fact that there exists an obligation on the part of the Government servant to the effect that while they were permitted to go on leave for higher study, they cannot retain any salary or part of the salary or stipend, as the case may be, for the period for which they have not worked for the Government. This is more so when the money that is being paid to the Government servants is being paid from the public exchequer. Therefore, the Government servants have no right to retain such money if they have not rendered their service to the Government and at the same time they decide to quit the job. In such view of the // 12 // matter, this Court is also of the view that the Government has every right to recover the stipend or any other monetary benefit paid to the Government servants during the aforesaid study leave period if the Government servant has not worked for the aforesaid period and has severed the employee and employer relationship with the Government immediately after returning from such study leave.
19. In view of the aforesaid analysis of the legal as well as the factual position, this court deems it proper to dispose of the Writ Petition by directing the Opposite Party no.1 to grant No Objection Certificate and a discharge/release certificate to the Petitioner, as has been prayed for, within a period of one week from the date of production of certified copy of this order. Further, it is also directed that the resignation tendered by the Petitioner be considered in accordance with the provisions contained in the relevant Service Rules applicable to the Petitioner, within a period of two months from the date of issuance of NOC.
20. The aforesaid directions are also subject to verification of the fact that the Petitioner has not executed any bond pursuant to Finance Department Memo dated 20.02.1996. In the event it is found that the Petitioner has in fact executed a bond, then this order shall stand revoked automatically.
21. With the aforesaid observation/direction the Writ Petition stands allowed. However, there shall be no order as to cost.
( A.K. Mohapatra ) Judge Orissa High Court, Cuttack The 5th of February, 2024/RKS Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 08-Feb-2024 19:25:19