A single judge bench of the Orissa High Court comprising of Justice S.K. Panigrahi dismissed a writ petition regarding the request of the petitioner to continue as a professor in the medical college of her choice on account of a chronic illness. The court expounded that even though the cause was legitimate and the request must have been considered, the state is under no obligation to fill up the vacancies unless the relevant recruitment rules so indicate.
Facts:
The present writ petitioner was working as an Associate Professor at VIMSAR Burla Institute, however, due to being diagnosed with a chronic illness, the authorities transferred her to SCB Medical College, Cuttack. Later, a Departmental Promotion Committee (hereinafter “DPC”) was formed which recommended Dr. Sulata Mohapatra (petitioner), Dr. Minati Pattnaik, and Dr. Archana Mishra (petitioner in W.P.(C) No.15924 of 2022) for promotion to the rank of Professor. Due to her experience, the petitioner had the first option to choose her preference. The election of option was to be done positively, else the candidate would have no choice regarding place of posting and then it would be the prerogative of the higher authorities to take appropriate decision for the candidates’ place of posting.
On the date of counselling, the petitioner was asked to exercise her choice of posting in respect of two new medical colleges. However, the she made a representation to the Chief Secretary requesting him to allow her to continue in SCB Medical College, Cuttack after her promotion to the post of Professor on the ground of her illness as well as the medical condition of her husband and mother. Her request went in vain. Thereafter, she filed a Writ Petition bearing WP(C) No.5459 of 2022 with a prayer to quash the counselling letter. This Court disposed of the said writ petition with a direction to the Chief Secretary to consider her representation.
The Chief Secretary further rejected the claim of the petitioner and directed the petitioner to appear for special consideration. Finally, Dr. Sulata Mohapatra (Petitioner) as well as Dr. Minati Pattnaik were promoted to the rank of Professor and were posted to the two new colleges. The petitioner made a representation to the Addl. Chief Secretary, SCB Medical College to forgo the aforementioned promotion owing to her illness and the medical condition of her husband and mother. Thus, the Dean kept the relief order in abeyance. The present writ petitioners mainly assail the impugned order dated 21.02.2022 on the ground that it is arbitrary, discriminatory and illegal, for it is violative of the Transfer and Posting Policy for the Government Medical College Teachers issued by Department of Health and Family Welfare, Government of Odisha and the whole process smacks malafide.
Observations of the Court:
Relying on the case of Shankarsan Dash v. Union of India (1991)3 SCC 47, the court held that unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. Thus, in the instant case, there were no materials to warrant the conclusion that the action of the State Government has been discriminatory or malafide in not mentioning other available vacancies at the time of counselling.
Further relying on Jatindar Kumar v State of Punjab (1985) 1 SCC 122, the bench highlighted that the process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus. Thus, anticipated Vacancies in matters of appointment/promotion is as good as no vacancy at all; unless provisions contrary to it have been notified.
However, the Court took note of the medical condition of the petitioner and her family. Even though the medical board certificate had not supported the claims of the petitioner, the bench recommended the authorities to aid the petitioner in any way possible to lessen the petitioner’s worries and act as a model employer.
Decision:
The writ petitioners could not be granted any relief by way of a writ and the Writ Petitions were dismissed.
Case: Dr Sulata Mohapatra vs Chief Secretary
Citation: W.P.(C) Nos. 9301 and 15924 of 2022
Coram: Justice S.K. Panigrahi
Decided on: 30.09.2022
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