Orissa High Court
Afr Dr. Sudha Sethy vs State Of Odisha And Others ....... Opp. ... on 24 February, 2023
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OA) No. 2127 of 2019
An application under Articles 226 and 227 of the
Constitution of India.
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AFR Dr. Sudha Sethy ...... Petitioner
-Versus-
State of Odisha and Others ....... Opp. Parties
Advocate(s) appeared in this case:-
________________________________________________________
For Petitioner : M/s. Biswabihari Mohanty,
& Mr. L. Samal, Advocates.
For Opp. Parties : Mr. A.K. Pattnayak,
Addl. Government Advocate,
Mr. Subir Palit, Sr. Advocate
with Ms. Pami Rath, Advocate
[For O.P. No.7]
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
th 24 February, 2023 SASHIKANTA MISHRA, J.
Feeling aggrieved by the purported non-
consideration of her case for grant of promotion to the Page 1 of 13 post of Associate Professor in the discipline of Clinical Hematology in SCB Medical College and Hospital, Cuttack by the authorities, the petitioner had approached the erstwhile Odisha Administrative Tribunal, Principal Bench, Bhubaneswar in O.A. No.2127 of 2019 seeking the following relief:
"Under the above circumstances, it is humbly prayed that the Original Application may be allowed;
(a) This Hon'ble Tribunal may graciously be pleased to quash the impugned letters vide Memo No. 13825,13827 and 13828 issued on 06.06.2019 by the Health and Family Welfare Department as well as the notice of OPSC dated 11.07.2019 and consequential action taken thereof.
(b) This Hon'ble Tribunal may be pleased to quash the Advertisement No.15/2015-16 so far as the discipline of Clinical Hematology is concerned; and
(c) This Hon'ble Court may further be pleased to pass appropriate orders specifically giving a finding that no post of Asst. Professor other than the post created by letter dated 06.02.2011 as Asst. Professor in the discipline of Clinical Hematology occupied by the present applicant is existing prior to 18.12.2013 besides one post each in the rank of Professor and Associate Professor created and existing prior to 24.03.2008 and necessary direction may be made to Respondent to consider the case of the applicant for promotion to the rank of Associate Professor as per OMES Rules, 2013 which is in vogue.
(d) This Hon'ble Tribunal may be pleased to direct for an inquiry by an appropriate investigating agency into the entire matter and
(e) May pass any other order/orders as would be deemed fit and proper be issued."Page 2 of 13
Consequent upon abolition of the Tribunal, the said OA was transferred to this Court and registered as the present writ application.
2. It is necessary to mention at the outset that facts relating to the case have been extensively pleaded and argued by both sides. During pendency of the writ application however, the main relief sought for by the petitioner, i.e., promotion to the post of Associate Professor having been granted by the concerned authorities, a question was raised as to if any further cause of action survives for being adjudicated in the case. To such extent therefore, this Court deems it proper to only refer to the relevant facts of the case in brief.
3. The case of the petitioner is that pursuant to advertisement No. 8/2011-12 dated 26.10.2012 issued by Odisha Public Service Commission (OPSC) and the selection process conducted thereunder, she was selected and recommended for appointment as Assistant Professor on regular basis. Accordingly, by notification dated 04.01.2013, the Government in the Department of Health Page 3 of 13 and Family Welfare issued order of appointment in her favor, pursuant to which she joined as such. It is stated that in the discipline of Hematology of SCB Medical College and Hospital, Cuttack the number of sanctioned posts is, Professor- 1, Associate Professor-1 and Assistant Professor-2. At the time of filing of the OA it was claimed that one post of Associate Professor created vide Notification dated 24.03.2008 was lying vacant. As per Odisha Medical Education Service (Method of Recruitment and Conditions of Service) Rules, 2013 ( in short '2013 Rules') enacted w.e.f. 20.12.2013 the appointment to the post of Associate Professor shall be by way of promotion from amongst Assistant Professors as per Rule-7(1) of the said Rules. The further requirement for promotion is five years of teaching experience but in super specialty subjects like Clinical Hematology, such experience is fixed at two years. The petitioner claims to have completed more than eight years of teaching experience in both specialty and super specialty disciplines besides authoring 10 international and 16 national level publications and as Page 4 of 13 such, she satisfies the eligibility criteria prescribed under the Rules. Despite being the only available person in the feeder grade however, no steps were taken by the authorities to convene the DPC to fill up the post of Associate Professor. While the matter stood thus, instead of holding DPC the Department appointed one Dr. N.C. Pattnaik as Associate Professor on 27.04.2017 on contractual basis ignoring the case of the petitioner. The petitioner therefore, approached the Odisha Administrative Tribunal in O.A. No.1480 of 2017, which was disposed of by order dated 12.09.2017 directing the Government to consider the case of the petitioner for promotion within three months. Pursuant to such order, the Government, vide order dated 06.10.2017 held that in the DPC meeting held on 20.03.2017 under the Chairmanship of Chief Secretary, Odisha, since it was decided to give priority to filling up the newly created posts for the new Medical Colleges for obtaining letter of permission for first batch admission in the said Colleges, the DPC for the discipline of Clinical Hematology and Page 5 of 13 other disciplines was not finalized by the committee and that the DPC for the said discipline would be held in the next meeting to be held very shortly and further that the representation for promotion of the petitioner will be considered in the next DPC meeting.
While the matter stood thus, the Government issued corrigendum on 06.06.2019 to the effect that the adhoc posting of Dr. Rajeeb Nayak (Opp. Party No.7) against the vacant post of Associate Professor as per Notification dated 15.07.2013 is to be read as against the vacant post of Assistant Professor for all purposes. On the same day, by another letter it was stated that there is one vacant post of Assistant Professor continuing from 24.03.2008 and therefore, steps were to be taken to conduct interview to fill up the said post. Again on the same day by another letter, the Government clarified that there is one vacant post of Assistant Professor. According to the petitioner, these communications are entirely contrary to facts and law and were issued only to circumvent the order passed by the Apex Court in Civil Page 6 of 13 Appeal No.6157-6158 of 2015. Since the Apex Court held that the posts falling vacant prior to 18.12.2013 shall be filled up in accordance with 2009 Rules and those arising after such date shall be filled up in accordance with 2013 Rules, the authorities deliberately issued the communications to show the vacancy in one post of Assistant Professor as existing from 24.03.2008 onwards. Thus, the appointment of opposite party No.7 against the said vacant post despite his ineligibility as per the Rules, is entirely illegal. Basically on such facts, the petitioner has claimed the relief as mentioned above.
4. Though multiple counter affidavits have been filed by the opposite parties refuting the facts averred in the writ application, it would be relevant to note that this Court was informed through a memo filed by the State that in the meantime the petitioner has been promoted to the post of Associate Professor by order dated 06.07.2022. Subsequently, the petitioner also brought the said fact on record by means of an application for amendment. Be it noted here that the application for amendment has been Page 7 of 13 rejected as per order passed separately today, but fact remains that the factum of grant of promotion to the petitioner during pendency of the writ application is now on record. The parties were therefore, directed to confine their submissions with regard to maintainability of the writ application in view of the development as above.
5. Heard Mr. B.B. Mohanty, learned counsel for the petitioner; Mr. A.K. Pattnaik, learned Addl. Government Advocate for opposite party Nos. 1 to 5 and Mr. S. Palit, learned Senior counsel with Ms. Pami Rath for opposite party No.7.
6. Mr. A.K. Pattnaik, learned State Counsel submits that the cause of action for which the OA/ writ application was filed, no longer survives for adjudication. The petitioner's grievance was non-consideration of her case for promotion, which has already been granted by the authorities. The writ application therefore, deserves to be dismissed on such score alone.
7. Mr. S. Palit has also made similar submissions with the addition that the petitioner having Page 8 of 13 accepted the promotion granted to her during pendency of the application without any protest, she cannot also challenge the order of promotion on the ground that the same should have been granted to her with effect from 2017, which she entitled to do by seeking amendment of the writ application.
8. Mr. B. B. Mohanty contends that the entire case of the petitioner is not only non-consideration of her case for promotion as per assurance given to her by order dated 06.07.2017 but also the action of the authorities in falsely presenting the vacancy position in the grade of Assistant Professor only to favour opposite party No.7. According to Mr. Mohanty, such action of the authorities would affect her future promotion prospect and therefore, a definite cause of action still survives for adjudication notwithstanding grant of promotion to her in the meantime.
9. In order to appreciate the rival contentions as noted above, it would be proper to refer to the original relief climbed in the writ application which has already Page 9 of 13 been quoted hereinbefore. Under clause (a) the petitioner prays to quash the letters under Memo Nos.13825, 13827 and 13828, all dated 06.06.2019 issued by the Department as well as the notice dated 11.07.2019 issued by OPSC. From a perusal of the aforesaid communications and notice enclosed as Annexure 28 series, it is evident that the Government clarified that firstly, Dr. Rajeeb Nayak (opposite party No.7) was appointed against the vacant post of Assistant Professor and secondly, it was clarified that one post of Assistant Professor was lying vacant since 24.03.2008. The impugned notice dated 11.07.2019 issued by OPSC was for holding interview to fill up the post of Assistant Professor. In this regard it is to be noted that the petitioner was appointed as an Assistant Professor substantively on 04.01.2013. Therefore, it is not understood as to how these communications can affect her adversely as is being claimed. Same is the case with relief claimed as at clause (b) i.e., to quash the advertisement No. 15/2015-16 (Annexure-7). The said advertisement, as is evident, is to fill up the vacant post of Page 10 of 13 Assistant Professor. The petitioner is no way affected by the said advertisement in view of her appointment as Assistant Professor w.e.f. 04.01.2013 on regular basis.
10. Reference to the above has been made keeping in view the submission made by learned counsel for the petitioner that this would affect her future promotion. Undoubtedly, as per the Rules, the next promotional post for the petitioner at the time of filing the O.A./Writ Petition was that of Associate Professor, to which she has already been promoted. Therefore, the submissions made on behalf of the petitioner must be understood in this context. This takes the Court to the relief claimed at clause (c), which is, (i) to give a finding that no post of Assistant Professor other than the one created by letter dated 06.02.2011 existed prior to 18.12.2013 and (ii) to direct the authorities to consider the case of the petitioner for promotion to the rank of Associate Professor as per Rules 2013. The petitioner, as already stated, was promoted to the post of Associate Page 11 of 13 Professor by order dated 06.07.2022, copy of which is enclosed as Annexure-31/A series.
Having regard to the above, the purported grievance of the petitioner as regards the date of vacancy of each of the two posts of Assistant Professor occupied by herself and opposite party No.7 becomes entirely academic. It is not as if opposite party No.7 has been promoted as Associate Professor ahead of her.
So even assuming for the sake of argument only that the post of Assistant Professor which the petitioner had occupied since 04.01.2013 was created by letter dated 06.02.2011 and that the one occupied by opposite party No.7 was against the vacancy existing since 24.03.2008, it would now hardly make any difference. Since, it is the petitioner and not opposite party no.7 who has been promoted to the next level. This would also not be material for further promotion to the level of Professor as the date of creation of posts at the base level would have hardly any relevance at that time. As regards the date of appointment also the petitioner was appointed on Page 12 of 13 04.01.2013 on regular basis, while opposite party No.7 was appointed on 15.07.2013 on contractual basis and on 24.07.2019 on a regular basis. Thus, there is no way by which the petitioner can be justifiedly aggrieved. Presently, the factual position is, one available post of Associate Professor has been filled up by the petitioner. Therefore, the main relief claimed by the petitioner has been granted by the authorities.
11. Thus, from a conspectus of the analysis and discussion made hereinbefore, this Court is of the considered view that the petitioner having been granted promotion to the post of Associate Professor during pendency of the writ application, no cause of action survives for adjudication in the present case.
12. Resultantly, the writ petition is dismissed.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 24th February, 2023/ A.K. Rana Page 13 of 13