Gauhati High Court
Dr. Putul Mahanta vs The State Of Assam And 4 Ors on 31 March, 2022
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
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GAHC010058362022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2102/2022
DR. PUTUL MAHANTA
S/O- KARUNAKAR MAHANTA, R/O- HOUSE NO. 1, KARMABIR BORDOLOI
PATH, WIRELESS, DISPUR, GUWAHATI-781006, DIST.- KAMRUP(M), ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM, DISPUR, GUWAHATI-781006.
2:THE PRINCIPAL SECRETARY
GOVERNMENT OF ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR
GUWAHATI-781006.
3:THE COMMISSIONER AND SECRETARY
GOVERNMENT OF ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR
GUWAHATI-781006.
4:THE DIRECTOR OF MEDICAL EDUCATION
ASSAM
SIXMILE
KHANAPARA
GUWAHATI-781022.
5:THE ALL-INDIA INSTITUTE OF MEDICAL SCIENCES
GUWAHATI
REPRESENTED BY THE DIRECTOR
AIIMS
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BHUBANESWAR (MENTOR INSTITUTE) SILBHARAL
CHANGSARI
DIST. KAMRUP
ASSAM-781030
Advocate for the Petitioner : MR. B D KONWAR SR. ADV.
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 31.03.2022
1. Heard Mr. B. D. Konwar, learned senior counsel assisted by Ms. D. Brahma, learned counsel for the petitioner. Also heard Mr. B. Gogoi, learned counsel for the respondent nos.1 to 4.
2. The petitioner, who is serving as Professor and Head of Department of Forensic Medicine & Toxicology in the Assam Medical College, is aggrieved by the cancellation of the No Objection Certificate (NOC), on the basis of which the petitioner was to take part in the selection process for filling up the post of Additional Professor in Forensic Medicine & Toxicology Department in the All India Institute of Medical Sciences (AIIMS), Guwahati.
3. The petitioner's case is that the petitioner has submitted his application for appointment to the vacant post of Additional Professor, Department of Forensic Medicine & Toxicology in All India Institute of Medical Sciences (AIIMS), Guwahati in pursuant to the advertisement dated 05.10.2021.
4. Clause 19 of the advertisement required the applicants already in Govt. service to produce No Objection Certificate (NOC) from their present employer at the time of interview or as per instructions issued from time to time. They were also required to take prior permission from their employer while applying for the post and no candidate could be allowed Page No.# 3/5 to appear in the interview without an NOC being issued from employer.
5. The petitioner thereafter submitted an application dated 10.10.2021 to the Commissioner & Secretary to the Govt. of Assam, Health and Family Welfare Department (B) for issuance of No Objection Certificate to apply and appear in the interview for the post of Additional Professor, Department of Forensic Medicine & Toxicology at AIIMS, Guwahati.
The Joint Secretary to the Govt. of Assam, Health and Family Welfare Department thereafter issued a letter dated 12.11.2021, stating that the Govt. in the Health and Family Welfare Department had no objection in respect of the petitioner applying for the post of Additional Professor, Department of Forensic Medicine & Toxicology in AIIMS, Guwahati , subject to the condition that in the event of being selected for the post, the petitioner would resign from the present post.
6. The petitioner thereafter, submitted an online and offline application on 30.11.2021.
The AIIMS, Guwahati thereafter issued a notification dated 21.02.2022 which showed the list of provisionally eligible candidates. The petitioner's name is reflected as one of the candidates for the post of Additional Professor, Department of Forensic Medicine & Toxicology.
7. The Commissioner & Secretary to the Govt. of Assam, Health and Family Welfare Department thereafter issued the impugned letter dated 11.03.2022, wherein it is stated that the No Objection Certificate granted to the petitioner stood cancelled and that the Govt. regretted its inability to grant No Objection Certificate as per Rule 26 (xi) of the Assam Medical Education Service Rule (As amended in 2022), hereinafter referred to as the Amended Rules.
The amendment of Rule 26 as provided in the Amended Rules is reproduced below as follows:
"Amendment of Rule 26: 11 In the principal Rules, in rule 26, after clause Page No.# 4/5
(ix), the following new clause (x) and (xi) shall be inserted, namely "(x) The acceptance by the Government for resignation/voluntary retirement by a member of the service shall be dependent upon the need of the larger public interest.
(xi) The acceptance of the No-Objection Certificate for applying to any post, be it directly under Central Government or any State Government or any other organisation/authority established by the Central or State Government or any other organisation shall be considered only if patient care or academic services at such institute/college where a member of service is so serving, are not affected and shall be dependent upon the need of the larger public interest."
8. The petitioner's case is that the Amended Rules have not come into force till date as they have not been published in the official Gazette as required under Rule 1 (2) of the Amended Rules. Further, the Amended Rule can only have prospective effect.
9. The petitioner's counsel further submits that the AIIMS, Guwahati has issued another notification dated 21.03.2022, which is the revised list of provisional eligible candidates and the petitioner's name is amongst three candidates for the vacant post of Additional Professor, Department of Forensic Medicine & Toxicology. He submits that the State Govt. should not stand in the way of a candidate who wants to grow and in any event, the service of the petitioner would be there for the people of the State, even though it might be from a different hospital. He submits that various decisions have been passed by various High Courts, wherein the State Govt. being a model employer should not be allowed to stand in the way of a person, who desires to do better in life for the interest of the public.
10. Issue notice, returnable in three weeks.
11. Mr. B. Gogoi, learned counsel accepts notice on behalf of respondent nos. 1 to 4.
12. The petitioner to take steps for service of notice upon respondent no. 5 by registered post with A/D within two days.
13. List the matter on 25.04.2022.
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14. On considering the issue raised in the present writ petition, this Court is of the view that the petitioner should not be prevented from taking part in the selection process to be held for the post of Additional Professor, Department of Forensic Medicine & Toxicology of AIIMS, Guwahati. Accordingly, the petitioner is allowed to take part in the selection process as indicated above, subject to the condition that the final result for the said two posts should not be published without the permission of the Court. Consequently, the impugned letter dated 11.03.2022, in so far as it relates to the petitioner is suspended till further orders.
JUDGE Comparing Assistant