Orissa High Court
Dr. Saroj Sekhar Rath & Ors vs State Of Odisha And Ors on 25 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.39032 of 2021
and
batch of Writ Petitions
(In the matter of applications under Articles 226 and 227 of the
Constitution of India, 1950).
In W.P.(C) No.39032 of 2021
Dr. Saroj Sekhar Rath & Ors. .... Petitioners
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Budhadev Routaray, Sr. Adv.
Mr. Sameer Ku. Das, Adv.
Mr. Avijeet Mishra, Adv.
-versus-
For Opp. Parties : Mr. Ashok Parija, AG
Mr. Saswat Das, AGA
Mr. R.C. Mohanty, Adv.
(for DMET)
Mr. P.K. Mohanty, Sr. Adv.
Mr. Sanjib Swain, Adv.
(for O.P.S.C.)
Miss. Pami Rath, Adv.
(for Intervener)
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CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-11.08.2022
DATE OF JUDGMENT:-25.08.2022
W.P.(C) Nos.39032 of 2021, 37161 of 2021, 37985 of 2021,
38150 of 2021, 365 of 2022 and 726 of 2022
Dr. S.K. Panigrahi, J.
1. The above-mentioned Writ Petitions pertain to similar questions of
law and facts, ergo; the batch of Writ Petitions were heard
together. This Court deems it appropriate to decide W.P.(C)
No.39032 of 2021 first and the outcome of the said Writ Petition
shall be applicable to the other similarly placed Writ Petitions.
I. Factual Matrix of the Case:
2. The present Writ Petitioners are serving as Assistant Professors in
various disciplines at Government Medical Colleges and Hospitals
across the State of Odisha. They possess requisite qualifications
and have been appointed on an ad-hoc/ contractual/ deputation
basis for a monthly remuneration of Rs.60,000/-.
3. In exercise of the powers conferred by the proviso to Article 309 of
the Constitution of India and in supersession of the Odisha
Medical Education Service (Method of Recruitment and Condition
of Service) Rules, 2013 and Odisha Medical Service and Training
Class-1 (Recruitment of the Senior and Junior Administrative Post)
1975, the Odisha Medical Education Service (Method of
Recruitment and Condition of Service) Rules, 2021 were
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introduced to regulate the service of the persons appointed to the
Odisha Medical Education Services.
4. The present Writ Petition(s) challenge the impugned
Advertisement No.19 of 2021-2022 dated 10.11.2021 for
recruitment to 381 posts of Assistant Professor (Broad Specialty) in
Group - A under the Odisha Medical Education Service cadre and
posting in Government MCHs of the State under the Health and
Family Welfare Department.
5. The present Writ Petitioners mainly assail the impugned
advertisement on the ground that their candidature should be
adjudged as per the Odisha Medical Education Service (Method of
Recruitment and Condition of Service) Rules, 2013 (hereinafter
referred to as "2013 Rules"), however, the Opp. Parties are
considering their candidatures according to Odisha Medical
Education Service (Method of Recruitment and Condition of
Service) Rules, 2021 (hereinafter referred to as "2021 Rules")
instead.
II. Petitioners' submissions:
6. Learned counsels for the Petitioners earnestly made the following
submissions in support of their contentions:
(i) Mr. Budhadeb Routray, Sr. Advocate appearing for one of the
Petitioners submits that Rule 4 of the 2013 Rules provided the
eligibility criteria for direct recruitment for the post of Assistant
Professor. The said eligibility criteria prescribed that the candidate
must possess three years of experience as a Sr. Resident from a
Medical Institution recognized by the MCI. Nevertheless, the 2021
Rules updated the aforementioned experience requirement to one
year. Furthermore, in previous advertisements, there was a
provision for career assessment whereby an additional weightage
of 3% of marks for each completed year of service (subject to a
maximum of 15% of marks) was being awarded to the in-service
ad hoc and contractual doctors. But, in the impugned
advertisement, no such allowance has been provided to the in-
service candidates, thereby rendering the period of service
provided by the Petitioners useless and putting them in a
disadvantageous position.
(ii) A matter similar to the present one was the subject matter of
challenge before the Supreme Court vide SLP (C) No.17074-17075
of 2015. The said Special Leave Petition was filed with respect to
the applicability of the Odisha Medical Education Service (Method
of Recruitment and Condition of Service) Rules, 2009 (hereinafter
referred to as "2009 Rules") against the applicability of the 2013
Rules. The Supreme Court vide its order dated 10.8.2015 altered
the final judgment and order dated 24.04.2015 passed in W.P.(C)
No.11985 of 2013 and judgment and order dated 03.06.2015 passed
in W.P.(C) No.9991 of 2015 by this Court. The directions of this
Court were as under:
"(a) one for the selection of Assistant Professors
confining the ineligible candidates selected and
posted as Assistant Professor on ad-hoc/contractual
basis but in strict terms of the prevailing rules and
the selection process be concluded within a period of
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two months from the date of communication of this
direction. It is made here clear that in the event any
such candidate gets selected in the process, his
service as Assistant Professor ad-hoc/contractual
shall be reckoned for the purpose of seniority but
notionally.
(b) another requisition for selection of Assistant
Professors for the rest of vacant posts making it
open for all eligible candidates in the meanwhile but
again in terms of the prevailing rules and this
exercise shall also be concluded within a further
period of two months after the conclusion of the first
exercise."
to
"(1) The Commission shall fill up the posts which
had arisen or fallen vacant prior to 18.12.2013 in
accordance with Rules, 2009.
(2) The posts which arose from 18.12.2013 onward
will be filled up in accordance with Rules, 2013.
(3) Advertisement shall be issued accordingly.
(4) We make it clear that in both the kinds of
advertisements, the Assistant Professor already
working on ad hoc / contractual basis as well as
others shall have right to apply and be considered
for the post."
To put it pithily, the Orissa Public Service Commission was
directed to fill up the posts which had arisen or fallen vacant
before 18.12.2013 (i.e. the date on which the 2013 Rules were
notified) per the 2009 Rules and vacancies for posts which arose
from 18.12.2013 onwards were directed to be filled up as per 2013
Rules. It is contended that the case of the present Petitioners is
identical to the facts and circumstances of the aforesaid order. It is
the specific case of the Petitioners is that the candidatures of the
Petitioners ought to have been considered vis-à-vis 2013 Rules
against the vacancies which arose or the posts which fell vacant till
25.02.2021, i.e. the date on which the 2021 Rules were notified.
(iii) The Petitioners are also aggrieved by the impugned advertisement
which has prescribed one year of post-PG Senior
Residentship/Tutorship as one of the eligibility criteria. Though
the Petitioners have the experience of three years of Senior
Residentship which was mandatory as per the 2013 Rules, freshers
who are juniors to the present Petitioners and are less experienced
than the Petitioners will also be equally considered for the
vacancies under the impugned advertisement. In consequence, the
prospects of the Petitioners will be seriously prejudiced due to
expansion of the scope of participation of the parties.
(iv) As most of the vacancies advertised in the impugned
advertisement arose before 25.02.2021, the said vacancies should
be filled up pursuant to the 2013 Rules and not the 2021 Rules.
(v) The Petitioners have been serving the Medical Colleges of the
State for the last six years on an ad-hoc basis and meanwhile, the
OPSC did not issue any advertisement for recruitment to the post
of Assistant Professors. It is the contention of the counsel for the
Petitioners that had any such advertisement been issued in the
said period, the candidature of the present Petitioners would have
been considered in terms of the 2013 Rules. Hence, the impugned
advertisement is discriminatory.
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(vi) The Opposite Parties have not restricted the advertisement to the
doctors who are working within the State but have invited
applications pan-India. In such case, the present Writ Petitioners
are likely to get affected if their candidature is put up against
outsiders. The Petitioners who carry substantial experience and
have been in service to the State throughout the pandemic will be
deprived of such lucrative opportunity.
(vii) Both Rule 23 of the 2013 Rules and 2021 Rules, allow the Opposite
Party Nos.1 and 2 to relax the eligibility criteria and provide for
additional weightage of marks to ad-hoc and contractual doctors
like the present Writ petitioners. Such powers have been exercised
in the previous instances and therefore, should also be considered
against present impugned advertisement.
III. Opposite Parties submissions:
7. Per contra, appearing for the State, the learned Advocate General,
Mr. A.K. Parija made the following submissions:
(i) The present Petitions are prima facie, liable to be dismissed as the
Petitioners have challenged the impugned advertisement only
after applying for the post of Assistant Professors under the said
advertisement. It was contended and vehemently submitted that
no challenge can lie to the terms and conditions stipulated in an
advertisement of such nature after the Petitioners have admittedly
participated in the said process and have in effect, accepted the
terms and conditions stipulated in the said advertisement.
Therefore, the continuous stand taken by the State is that the
present Writ Petitions are not maintainable.
(ii) The Petitioners are not aggrieved in any manner whatsoever as
none of their vested rights has been taken away by the impugned
advertisement, nor have they been rendered ineligible to apply for
the post of Assistant Professor as per the impugned
Advertisement. Accordingly, the Petitioners have no cause of
action to approach this Hon'ble Court under Article 226 of the
Constitution of India.
(iii) After the 2021 Rules came into force, no recruitment can be made
under the superseded Rule i.e. 2013 Rules, which are no longer in
existence after having been superseded/ repealed. Ergo, the
contention of the Petitioners that the vacancies which occurred
during the currency of 2013 Rules are to be filled by the said 2013
Rules is totally erroneous and completely unsustainable in law.
(iv) The 2021 Rules were promulgated and notified to ensure that the
said Rules were in line with the standards prescribed by the MCI,
NMC and DCI. The reduction in the years of experience of
working as Sr. Resident from three years to one year enlarges the
scope of participation for a greater number of candidates. It was
emphatically submitted that if a greater number of candidates
participate in the selection process, the State Govt. has a wider
scope to choose more suitable candidates. In such case, the
position of the Petitioners is in no way prejudiced by the 2021
Rules, whereunder the length of experience as Sr. Resident/Tutor
for appointment as an Assistant Professor has been reduced.
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(v) As per the 2013 Rules, the selection process of the candidates
involved both a written examination and an interview. There was
a provision to relax the applicability of a provision to ad-hoc/
contractual doctors but there was no specific relaxation of career
assessment as claimed by the petitioners. The 2021 Rules
prescribes that selection would now be made based on Written
examination and there is also no more scope/ provision for career
assessment. Furthermore, attention was also drawn to the
introduction of the Odisha Civil Services (method of conducting
physical standard measurement and physical efficiency test and
discontinuance of career assessment) 2021 Rules which came into
effect on 22.2.2021. Rule 4 of the aforementioned Rules states that
"Notwithstanding anything contained in any in any recruitment rules
regulating the method of recruitment in Civil Services and/or Civil Posts
in respect of different posts and services in the State Cadre and District
cadre of the State Government, there shall not be any career assessment at
the time of initial recruitment to fill up different posts of services.". In
view of this provision, which has an overriding effect on any other
rule regulating the method of recruitment of Civil Service/Civil
Post in the State, there can be no provision for selection on the
basis of career assessment at the time of recruitment. Hence, in
view of the above, the contention of the present Petitioners that
their candidature, if considered vis-à-vis the 2013 Rules, would
hold no advantage due to the provision of career assessment has
been done away with.
(vi) Furthermore, the reliance was placed on order dated 10.8.2015 of
the Supreme Court in SLP (C) No. 17074-17075 of 2015 is wholly
misconceived as the said order was passed in a particular context
and does not lay down any law pertaining to recruitment under a
particular rule during which the vacancies occurred instead of a
rule which prevailed at the time of the advertisement.
(vii) Firstly, in this Special Leave Petition, the Supreme Court did not
examine the applicability of the 2021 Rules vis-à-vis 2013 Rules
and as such the said final order and judgment cannot be applied to
the unique facts of the present case. Secondly, the Supreme Court
in a plethora of judgments has held that the recruitment for posts
should be made as per the Rules in force on the date of
consideration, i.e., the date of the impugned advertisement
wherein the vacancies arose shall be governed by the Rule
prevalent then.
(viii) The 2021 Rules were notified after a long gap of eight years from
the 2013 Rules in order to cope and comply with the latest
guidelines by the MCI, NMC and DCI pertaining to Teachers
Eligibility Qualifications in Medical Institutions. A dynamic set of
rules commensurate with these stipulations is necessary and
cannot be diluted in application for it would negatively affect the
Odisha Medical Education Service and flowing from the same,
would ultimately affect the citizens of the State.
8. Learned counsel for the intervener Ms. Pami Rath echoed similar
sentiments while adopting the submissions made by the learned
Advocate General.
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IV. Issues for consideration:
9. After having heard the learned counsels for both sides and the
counsel for the intervener, the following issues arise for
consideration before this Court:
A. Whether the impugned advertisement shall be governed
by the law prevailing on the date of the vacancies or the
law prevailing on the date of the impugned
advertisement?
B. Whether the application of 2021 Rules affects the rights of
the present Petitioners?
C. Whether the final order and judgment dated 10.8.2015 of
the Supreme Court in SLP (C) No. 7074-17075 of 2015 is
applicable to the present facts and circumstances?
D. Whether the present Petitioners have the right to claim
any additional weightage?
V. Issue A: Whether the impugned advertisement shall be governed
by the law prevailing on the date of the vacancies or the law
prevailing on the date of the impugned advertisement?
10. No vested rights accrue in favour of the present Petitioners against
the post(s) in contention merely on the basis of the existence of the
vacancy. They only have the right to apply and to be considered for
the post. In the present matter, the right to be considered arises
only when the impugned advertisement is issued. The Petitioners
have not been debarred to participate in response to the
advertisement.
11. The Supreme Court in State of Tripura and Ors. v. Nikhil Ranjan
Chakraborty and Ors.1 held that:
"9. The law is thus clear that a candidate has the
right to be considered in the light of the
existing rules, namely, "rules in force on the
date" the consideration takes place and that
there is no rule of absolute application that
vacancies must invariably be filled by the law
existing on the date when they arose. As against
the case of total exclusion and absolute deprivation
of a chance to be considered as in Deepak Agarwal
[Deepak Agarwal v. State of U.P., (2011) 6 SCC
725 : (2011) 2 SCC (L&S) 175] in the instant case
certain additional posts have been included in the
feeder cadre, thereby expanding the zone of
consideration. It is not as if the Writ Petitioners or
similarly situated candidates were totally excluded.
At best, they now had to compete with some
more candidates. In any case, since there was no
accrued right nor was there any mandate that
vacancies must be filled invariably by the law
existing on the date when the vacancy arose, the
State was well within its rights to stipulate that the
vacancies be filled in accordance with the Rules as
amended. Secondly, the process to amend the Rules
had also begun well before the Notification dated 24-
11-2011."
(Emphasis supplied)
12. In P. Mahendran v. State of Karnataka2, the Supreme Court
reiterated that:
1 (2017) 3 SCC 646
2 (1990) 1 SCC 411
12 of 26
"5. It is well settled rule of construction that every
statute or statutory Rule is prospective unless it is
expressly or by necessary implication made to have
retrospective effect. Unless there are words in the
statute or in the Rules showing the intention to
affect existing rights the Rule must be held to be
prospective. If a Rule is expressed in language
which is fairly capable of either interpretation it
ought to be construed as prospective only. In the
absence of any express provision, or necessary
intendment the rule cannot be given retrospective
effect except in matter of procedure. The amending
Rule of 1987 does not contain any express provision
giving the amendment retrospective effect nor there
is anything therein showing the necessary
intendment for enforcing the Rule with
retrospective effect. Since the amending Rule was
not retrospective, it could not adversely affect the
right of those candidates who were qualified for
selection and appointment on the date they applied
for the post, moreover, as the process of selection had
already commenced when the amending Rule came
into force. The amended Rule could not affect the
existing rights of those candidates who were being
considered for selection as they possessed the
requisite qualifications prescribed by the Rules
before its amendment moreover construction of
amending Rules should be made in a reasonable
manner to avoid unnecessary hardship to those who
have no control over the subject matter."
13. In NT Bevin Katta v. Karnataka Public Service Commission3, the
Supreme Court while dealing with the issue regarding
retrospective applicability of the amended Rules, declared:
3 (1990) 3 SCC 157
"11. There is yet another aspect of the question.
Where advertisement is issued inviting
applications for direct recruitment to a category of
posts, and the advertisement expressly states that
selection shall be made in accordance with the
existing rules or government orders, and if it
further indicates the extent of reservations in
favour of various categories, the selection of
candidates in such a case must be made in
accordance with the then existing Rules and
government orders. Candidates who apply and
undergo Written or viva voice test acquire vested
right for being considered for selection in
accordance with the terms and conditions
contained in the advertisement, unless the
advertisement itself indicates a contrary intention.
Generally, a candidate has right to be considered
in accordance with the terms and conditions set
out in the advertisement as his right crystallises
on the date of publication of advertisement;
however he has no absolute right in the matter. If
the recruitment Rules are amended retrospectively
during the pendency of selection, in that event
selection must be held in accordance with the
amended Rules. Whether the Rules have
retrospective effect or not, primarily depends upon
the language of the Rules and its construction to
ascertain the legislative intent. The legislative
intent is ascertained either by express provision or
by necessary implication; if the amended Rules are
not retrospective in nature the selection must be
regulated in accordance with the rules and orders
which were in force on the date of advertisement.
Determination of this question largely depends on
the facts of each case having regard to the terms
and conditions set out in the advertisement and
the relevant rules and orders. Lest there be any
confusion, we would like to make it clear that a
14 of 26
candidate on making application for a post
pursuant to an advertisement does not acquire any
vested right for selection, but if he is eligible and is
otherwise qualified in accordance with the relevant
rules and the terms contained in the
advertisement, he does acquire a vested right for
being considered for selection in accordance with
the rules as they existed on the date of
advertisement. He cannot be deprived of that
limited right on the amendment of rules during the
pendency of selection unless the amended rules are
retrospective in nature."
14. The Supreme Court in State of H.P and Ors. v. Raj Kumar and
Ors.4, was pleased to consider the following issue and hold that:
"11. The real question is whether the vacancies
which arose prior to the promulgation of the new
rules are to be filed only as per the old rules and not
as per the amended rules ?...
xxx
70. A review of the fifteen cases that have
distinguished Rangaiah would demonstrate that
this Court has been consistently carving out
exceptions to the broad proposition formulated in
Rangaiah. The findings in these judgments that
have a direct bearing on the proposition formulated
by Rangaiah are as under:
1. There is no rule of universal application that
vacancies must be necessarily filled on the basis of
the law which existed on the date when they arose,
Rangaiah's case must be understood in the context
of the rules involved therein.
2. It is now a settled proposition of law that a
candidate has a right to be considered in the light of
the existed rules, which implies the "rule in force"
as on the date consideration takes place. The right to
4 2022 SCC Online SC 680
be considered for promotion occurs on the date of
consideration of the eligible candidates.
3. The Government is entitled to take a
conscious policy decision not to fill up the
vacancies arising prior to the amendment of
the rules. The employee does not acquire any
vested right to being considered for promotion
in accordance with the repealed rules in view
of the policy decision taken by the
Government. There is no obligation for the
Government to make appointments as per the old
rules in the event of restructuring of the cadre is
intended for efficient working of the unit. The only
requirement is that the policy decisions of the
Government must be fair and reasonable and must
be justified on the touchstone of Article-14.
4. The principle in Rangaiah need not be applied
merely because posts were created, as it is not
obligatory for the appointing authority to fill up the
posts immediately.
5. When there is no statutory duty cast upon the
State to consider appointments to vacancies that
existed prior to the amendment, the State cannot be
directed to consider the case."
(Emphasis Supplied)
15. Furthermore, the High Court of Rajasthan in Anil Kumar Sharma
v. Rajasthan High Court5has held that:
"11. It is well settled that the eligibility
qualification for recruitment to the post shall be
governed by the rules existing as on the date of the
issuance of the advertisement inviting applications
and the amendment in the rules if any, unless it is
expressly or by necessary implication made to have
retrospective effect shall always be construed
prospective in nature."
5 2021 SCC OnLine Raj 570
16 of 26
16. From the above-cited authorities, there is no incertitude in the fact
that the applications of all candidates, including the present
Petitioners, submitted for consideration under the terms of the
impugned advertisement, shall be decided pursuant to the
relevant rules in force at the time of issuance of the advertisement,
i.e., the 2021 Rules.
VI. Issue B: Whether the application of 2021 Rules affects the rights
of the present Petitioners?
17. The 2013 Rules required the candidate to have a mandatorily
senior residentship experience of three years or more to offer his
candidature for the post of Assistant Professor. Under the 2021
Rules, this particular eligibility criterion for direct recruitment of
Assistant Professor was altered. Now, it requires that the
candidate must have acquired a post-graduate degree in the
concerned Broad Specialty/Super Specialty or any other equivalent
degree or qualification prescribed by the Medical Council of India
/DCI from time to time. The Medical Council of India also
recommends a one-year senior residentship experience rather than
three years of senior residentship experience for direct recruitment
to the post of Assistant Professor.
18. In this manner, the 2021 Rules have only opened the gates of
competition which enables more candidates to participate in the
selection process. It is therefore clear, that the Petitioners have not
been left high and dry, discriminated against, or made ineligible
for the selection against the advertised posts. They have the right
to be considered and have, in fact, exercised such right and
participated in the selection process. Their performance in the
written test shall now decide the outcome of their participation.
The interests of the Petitioners has, quite evidently, not been
compromised in any manner. They are eligible to throw their name
in the hat and compete with other candidates for the post of
Assistant Professors pursuant to the impugned advertisement.
VII. Issue C: Whether the final order and judgment dated 10.8.2015 of
the Supreme Court in SLP (C) No.17074-17075 of 2015 is
applicable to the present facts and circumstances?
19. In order to fully appreciate this particular issue, this Court
considers it apposite to reproduce certain paragraphs of the
aforementioned final order and judgment. The same are
reproduced as follows:
"...Having regard to the nature of order which we
propose to pass, does not require us to set the factual
matrix in detail. ...
xxx
Under the Rules, 2009, the Commission had issued
two advertisements for filling up the post of Assistant
Professor. The first advertisement was Advertisement
No. 04 of 2010-2011 dated 17.08.2010 and the second
advertisement was Advertisement No. 08 of 2011-
2012 dated 09.12.2011.
These advertisements were challenged before the State
Administrative Tribunal (hereinafter referred to as
'Tribunal') by some of the persons as they had not
gained three years of experience by that time. In all,
67 original applications were filed challenging those
18 of 26
advertisements. Interim orders were passed by the
Tribunal permitting such candidates also to
participate in the selection process with the condition
that their result would be kept in a sealed cover. ...
xxx
The Tribunal ultimately passed orders dated
03.05.2013 setting aside the advertisements holding
that both the advertisements were not in conformity
with the recruitment rules and guidelines of Medical
Council of India, 1998. Against this order dated
03.05.2013 rendered by the Tribunal, aggrieved
persons filed Writ petitions in the High Court of
Orissa. The High Court decided these Writ petitions
vide its judgment dated 24.04.2015.
It would be pertinent to point out at this stage that
Rules 2009 were repealed and were substituted by
Odisha Medical Education Service (Method of
Recruitment and conditions of Service 2013 Rules
(hereinafter referred to as Rules 2013) which came
into effect from 18.12.2013. This has been done to
bring the Rules in consonance with the norms set by
Medical Council of India.
Reverting back to the judgment dated 20.04.2015 of
the High Court, we may mention that the High
Court, while deciding the Writ petitions filed against
the orders of the Tribunal, took note of all the
aforesaid developments. By its judgment, it has set
aside the decision dated 03.05.2013 of the Tribunal.
However, insofar as filling up of the post is
concerned, following directions were given to the
Commission: -
"(a) one for the selection of Assistant Professors
confining the ineligible candidates selected and
posted as Assistant Professor on ad-hoc/contractual
basis but in strict terms of the prevailing rules and
the selection process be concluded within a period of
two months from the date of communication of this
direction. It is made here clear that in the event any
such candidate gets selected in the process, his service
as Assistant Professor ad-hoc/contractual shall be
reckoned for the purpose of seniority but notionally.
(b) another requisition for selection of Assistant
Professors for the rest of vacant posts making it open
for all eligible candidates in the meanwhile but again
in terms of the prevailing rules and this exercise shall
also be concluded within a further period of two
months after the conclusion of the first exercise."
xxx
In these appeals, challenge is primarily to this
methodology of making the selections.
The appellants are working as Tutors and Senior
Residents. Some are even working as Assistant
Professors in private colleges and therefore, fulfill the
eligibility conditions for recruitment to the post of
Assistant Professors. Grievance of all these appellants
is that the High Court could not have given
preferential treatment to the ad hoc/ contractual
Assistant Professors by allowing their selections in
the first instance to the exclusion of second category.
They have referred to Rule 4 of the Rules which has
already been reproduced above.
To this extent, the grievance of the appellants before
us appears to be justified. ...
xxx
Having said so, there is another issue which needs to
be highlighted at this stage. As pointed out above,
Rules, 2009, held the field till Rules, 2013, came into
force with effect from 18.12.2013. We are informed
that there are 346 posts of Assistant Professors which
need to be filled up. Many of these posts relate to the
period prior to 18.12.2013 when Rules, 2009, were in
force. There is one fundamental change which has
been brought about by the new Rules. Whereas, as
per the earlier Rules, posts were to be filled up only
through the process of interview, under the new
Rules, the selection process consists of Written
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examination as well as interview. Therefore, those
vacancies which relate to the period prior to
18.12.2013 could be filled up in accordance with
2009, Rules, only in respect of which no such
Written test would be required and eligibility shall
have to be determined in accordance with Rules,
2009.
Keeping in view the aforesaid position in mind, we
set aside the final directions contained in the
impugned judgment and substitute the same with the
following directions: -
(1) The Commission shall fill up the posts which had
arisen or fallen vacant prior to 18.12.2013 in
accordance with Rules, 2009.
(2) The posts which arose from 18.12.2013 onward
will be filled up in accordance with Rules, 2013.
(3) Advertisement shall be issued accordingly.
(4) We make it clear that in both the kinds of
advertisements, the Assistant Professor already
working on ad hoc / contractual basis as well as
others shall have right to apply and be considered for
the post."
20. A perusal of the abovementioned final order and judgment
showcases that the findings rendered therein are concerned with
the specific contentions of the Petitioners of that particular case
and are not of the broad general nature of laying down the law.
The litigation pertaining to the advertisements continued from
2011 onwards and was finally decided in 2015, during which
time the 2013 Rules had come into force.
21. The initial challenge to the advertisement before the learned
Administrative Tribunal was not with regards to the
applicability of Rules, 2009 vis-à-vis 2013 Rules as the 2013 Rules
had not even come into existence at that point. The direction of
the Hon'ble Supreme Court was, therefore, a step beyond what
was prayed for by the original Petitioners to avoid any room for
confusion in an extended sequence of litigation. It was a
direction passed to meet the exigency of the matter at hand at
that point of time. In fact, the amendment to the directions of the
High Court which were made by the Supreme Court in the
aforementioned order appears to be a one-time arrangement
which directs the OPSC to allow all candidates to participate in
the recruitment process for the vacancies arising in posts before
18.12.2013 without any special preference to ad-hoc/ contractual
doctors and thereafter, the recruitment process would be as per
the 2013 Rules. The Supreme Court consciously and judiciously
made this arrangement keeping in mind that the said
advertisements revoked by the Tribunal had started a selection
process which was not completed because of the direction to
keep the results under sealed covers and in the meanwhile a
new law had come into force. In the instant case at hand, no
such situation has arisen which would prompt this Court to
invoke any similar one-time arrangement.
22. Thus, it is quite clear that the decision of the Supreme Court is
suited to the peculiar facts and circumstances of that case and
any reliance placed on it would be thoroughly misconceived.
VIII. Issue D: Whether the present Petitioners have the right to claim
any additional weightage?
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23. This Court's attention was also drawn to the Odisha Civil
Services (Method of Conducting Physical Standard
Measurement and Physical Efficiency Test and Discontinuance
of Career Assessment) Rules, 2021 promulgated by the
Department of General Administration and Public Grievances
by virtue of Notification dated 22.02.2021 under Article 309 of
the Constitution of India. Rule 4 and Rule 5 of the aforesaid
rules are quoted herein:
"4. Career Assessment to be discontinued -
Notwithstanding anything contained in any
recruitment rules regulating the method of
recruitment in Civil Services and/or Civil Posts in
respect of different posts and services in the State
cadre and District cadre of the State
Government, there shall not be any career
assessment at the time of initial recruitment to fill
up different posts and services."
5. Overriding Effect - The provisions of these rules
shall have overriding effect on all the recruitment
rules or executive instructions or order issued by
the Administrative Departments governing the
method of recruitment procedure"
24. The above-stated Rules framed by the Department under
proviso to Article 309 of the Constitution of India override
different recruitment rules made by different departments
whereby career assessment was one of the criteria for
selection. Hence, the contention of the present Writ Petitioners
that they are entitled to the benefit of career assessment as
envisaged under Rules 2013 is misconceived.
25. It was further brought to this Court's notice that the averment
made by the present Petitioners concerning an additional
weightage of 3% of marks for each completed year of service
(subject to a maximum of 15% of marks) being awarded to in-
service candidates in previous advertisements is also erroneous.
The advertisement relied upon by the Petitioners, at Annexure-
7, relates to the recruitment of Assistant Surgeons working in
periphery hospitals under the Odisha Health and Medical
Services cadre and is not for the recruitment of Assistant
Professors under the OMES Rules. It is stated that no additional
weightage was given to the in-service Assistant Professors
under the 2013 Rules and therefore, the question of giving any
additional weightage as career assessment to the present Writ
Petitioners at this point of time under the impugned
advertisement, does not arise at all.
IX. Conclusion:
26. As such, the impugned advertisement is legal, fair and in
consonance with the 2021 Rules. The Opposite Parties have not
committed any illegality, nor have they promulgated the
impugned advertisement in a manner which renders it
discriminatory against anyone or in discordance with the
statutory provisions, the constitution or the present position of
law.
27. It is also trite in law that a candidate who has participated in the
selection process, upon being unsuccessful, cannot turn around
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and challenge the advertisement for the selection. This position
of law has been time and again reiterated by the Supreme Court
in Madan Lal v. State of J.K.6, Ranjan Kumar v. State of Bihar7,
Anupal Singh v. State of U.P.8, Vijay Seyal v. State of Punjab9
and Dr. G. Sarana v. University of Lucknow10, Dhananjay
Malik v. State of Uttaranchal11, wherein it was held that having
participated in the selection process without any demur, the
respondent-Writ Petitioners are estopped from complaining that
the selection process was not in accordance with the Rules and
that if they thought that the advertisement and selection process
were not in accordance with the Rules, they should have
challenged the advertisement and selection process without
participating in the selection process.
28. Needless to say, the persons who participated in the selection
process after having accepted the terms and conditions of the
selection, cannot challenge the said process subsequently.
29. The scope of judicial review when examining a policy of the
Government is to check whether it violates the fundamental
rights of the citizens or is opposed to the provisions of the
Constitution, or opposed to any statutory provision or
manifestly arbitrary. Courts cannot interfere with policy either
6 (1995) 3 SCC 486
7 (2014) 16 SCC 187
8(2020) 2 SCC 1731
9 (2003) 9 SCC 401
10 (1976) 3 SCC 585
11(2008) 4 SCC 171
on the ground that it is erroneous or on the ground that a better,
fairer or wiser alternative is available. Legality of the policy, and
not the wisdom or soundness of the policy, is the subject of
judicial review. In this case, the aforementioned policy is free of
the vices mentioned above. Ergo, the Court does not find it
appropriate to intrude outside of its sacred line of its duty.
30. In light of the aforesaid discussion and having regard to the
present position of law, this Court is inclined to iterate that the
Petitioners cannot be granted any relief by way of a Writ and the
present Writ Petitions are liable to be dismissed.
31. Accordingly, all the Writ Petitions are dismissed.
( Dr. S.K. Panigrahi )
Judge
Orissa High Court, Cuttack,
Dated the 25th of August, 2022/B. Jhankar
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