Afr Government Of Orissa vs Dr. Urmila Kumari Devi
2022 Latest Caselaw 5301 Ori

                   ORISSA HIGH COURT: CUTTACK

                         W.P(C) NO. 14989 OF 2010

        In the matter of an application under Articles 226 and
        227 of the Constitution of India.
                               ---------------

AFR Government of Orissa ..... Petitioner

-Versus-

Dr. Urmila Kumari Devi ..... Opp. Parties & Anr.

            For Petitioner    :    Mr. A.K. Mishra,
                                   Addl. Govt. Advocate


            For Opp. Parties :     M/s. S. Swain, D.P. Mishra
                                   and M. Pagal, Advocates
                                   [O.P.No.1]


        P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE G. SATAPATHY

DECIDED ON : 10.10.2022

DR. B.R. SARANGI,J. The Government of Orissa through its

Commissioner-cum-Secretary, Health and Family

Welfare Department, has filed this writ petition seeking // 2 //

to quash the order dated 13.04.2009 passed in O.A

No.1295 of 1998, by which the Odisha Administrative

Tribunal, Bhubaneswar, has disposed of the said O.A.

directing the petitioner to issue appointment order in

favour of opposite party no.1 in the post of Demonstrator

in the Drabyaguna discipline, in pursuance of the merit

list dated 30.09.2007, and the entire exercise shall be

completed within a period of three months from the date

of receipt of the copy of the order.

2. The factual matrix of the case, in brief, is that

opposite party no.1 was initially appointed as Ayurvedic

Medical Officer under the State Service during the year

1992. While continuing as such, she represented to

DIM&H(O), Bhubaneswar to utilize her higher

qualification in the interest of teaching in Ayurvedic

Colleges, as she was a Post Graduate Degree Holder.

Considering her grievance, DIM&H(O) deployed her

temporarily at Gopabandhu Ayurveda Mahavidyalaya,

Puri and assigned her duty to assist in teaching as

Demonstrator in the discipline of Dravyaguna vide // 3 //

DIM&H(O) Order No.7756 dated.13.06.95. In the said

order it was categorically mentioned that such posting of

opposite party no.1 to impart teaching was a temporary

arrangement and she would not claim her appointment

to the post of Demonstrator as a matter of right.

2.1 An advertisement was published on

05.08.1997 by DIM&H(O) for filling up of 7 vacant posts

of Demonstrator in different teaching disciplines of

Government Ayurvedic Colleges of the State, out of which

2/3rd of the vacancies were to be filled up from service.,

i.e., from among the Ayurvedic Medical Officers of

Government of Orissa prescribing no age limit for them.

So far as Dravyaguna discipline is concerned, two

vacancies were advertised to be filled up. The opposite

party no.1, being a P.G. holder, had applied for the post

of Demonstrator in Dravyaguna discipline.

2.2 In order to select suitable candidates to the

post of Demonstrator of Government Ayurvedic Colleges

of the State, a Selection Board was constituted by the

Government of Orissa in Health & Family Welfare // 4 //

Department, vide Resolution No. 26485/H, dated

29.07.1989. So as to make the selection, prominent

expert members of different teaching subjects were

nominated by the Government vide G.O. No. 1723/H,

dated 26.01.1997. The criteria for selection of

Demonstrator were also decided vide G.O. No.26898/H

dated 02.08.1989.

2.3 Before conducting interview, the Selection

Board examined the applications of the candidates and

accordingly a programme was drawn up to call for the

candidates for attending the interview on 28.09.1997

and 29.09.1997. As regards filling up of 2 vacant posts

in the Dravyaguna discipline, total 6 eligible candidates

including opposite party no.1 had applied. All of them

were intimated to appear the interview as per

programme. All the six candidates belonging to

Drvayaguna discipline attended the interview on

28.09.1997 and 29.09.1997. As per the advertisement,

2/3rd vacanccies were required to be filed up from among

the in-service candidates and balance 1/3rd vacancies // 5 //

were to be filled up from eligible direct candidates

pursuant to criteria fixed by the Government as per

G.O.No.32670/H dated 19.09.1992. Out of six

candidates of Dravyaguna discipline, 4 were in-service

Ayurvedic Doctors and 2 were direct candidates. On

performance of those six candidates in the interview, the

Board prepared a merit list containing the names of

three candidates, out of which one direct and one in-

service were enlisted against two vacant posts, and one

in-service candidate was in the waiting list. The said

select list was published in the notice board on

30.09.1997.

2.4 The selection procedure was received by Govt.

vide G.O. No. 14447/H dated 14.04.1998 and after

reviewing the same, it was directed by Government to fill

up 6 posts of Demonstrators out of seven posts

advertised for different disciplines (except one post

Prasutitantra and Kaumarbhritya discipline), after

thorough revision of the merit list in accordance with

Govt. instruction communicated in G.O. No.31472 dated // 6 //

15.09.89. Thereafter, the Government decided to award

marks for the performance of the candidates in their

academic career beginning from Matriculation to Post

Graduate degree and weightage marks for the experience

of in-service doctors in the total marks for the interview

for the post of Demonstrator. Accordingly, the DIM&H(O)

was instructed to prepare a fresh merit list by awarding

career marks of all candidates with the marks they

obtained in the interview and submit the same for

approval of the Government vide G.O. No. 18688/H

dated 22.05.1998.

2.5 In order to award career marks of candidates,

the Government decided to award 90% marks for career

and 10% marks for viva voce test for Ayurvedic doctors

in the criteria vide G.O. No.31471/H dated 15.09.1989

and in G.O. No.26898/H dated 02.08.1989 for selection

of Demonstrators, which were followed by the Selection

Board. As the Selection Board had awarded career marks

for only degree qualification of the candidates, the

Government instructed to award career marks of the // 7 //

candidates beginning from Matriculation to the P.G.

Degree qualifications and weightage mark for experience

of in-service doctors vide G.O. No.18688/H dated

22.05.1998. Since opposite party no.1 stood second in

the merit list and one post was already filled up and

subsequently one post was abolished, she was not given

appointment even though two posts were advertised.

Thereby, she approached the Tribunal by filing O.A.

No.1295 of 1998.

2.6 The Tribunal, on careful examination of the

rival submissions of the parties and the pleadings

available on record, disposed of the said O.A. directing

the petitioner to issue appointment order in favour of

opposite party no.1 to the post of Demonstrator in the

Drabyaguna discipline, in pursuance of the merit list

dated 30.09.2007, and the entire exercise shall be

completed within a period of three months from the date

of receipt of the copy of the order, which is the subject

matter of challenge before this Court.

// 8 //

3. Mr. A.K. Mishra, learned Additional

Government Advocate appearing for the petitioner

contended that even though two posts were advertised in

the discipline of Dravyaguna, but subsequently one post

was abolished. As a result, even though opposite party

no.1 stood second in the merit list, she could not be

appointed. Thereby, the Tribunal has committed gross

error apparent on the face of the records by issuing

direction to the petitioner to give appointment to

opposite party no.1 against the second post, as she

stood second position in the merit list.

4. Mr. S. Swain, learned counsel appearing for

opposite party no.1 contended that admittedly opposite

party no.1 participated in the selection process as an in-

service candidate and stood second position in the merit

list. Since two posts were advertised, she has a right to

claim to be appointed against the second post in the

discipline of Dravyaguna. Thereby, the Tribunal has not

committed any error, by directing the petitioner to give

appointment to opposite party no.1, so as to cause // 9 //

interference of this Court at this stage. It is further

contended that at present opposite party no.1 is

continuing as Medical Officer and being an in-service

candidate in the event she is given appointment she will

be benefited financially and, thereby, he seeks for

dismissal of the writ petition.

5. This Court heard Mr. A.K. Mishra, learned

Additional Government Advocate appearing for the

petitioner and Mr. S. Swain, learned counsel appearing

for opposite party no.1 in hybrid mode. Pleadings have

been exchanged between the parties and with the

consent of learned counsel for the parties, the writ

petition is being disposed of finally at the stage of

admission.

6. On careful appraisal of the materials available

on record, including the judgment impugned herein, this

Court finds that pursuant to an advertisement issued on

05.08.1997 for filling up of 7 vacant posts of

Demonstrator in different teaching disciplines of

Government Ayurvedic Colleges of the State, opposite // 10 //

party no.1, being a P.G. holder, had applied for the post

of Demonstrator in Dravyaguna discipline, for which two

posts were advertised. As per advertisement, 2/3rd of the

vacancies were to be filled up from the Service, i.e., from

amongst the Ayurvedic Medical Officers of Government of

Orissa prescribing no age limit for them. As regards

filling up of 2 vacant posts in the Dravyaguna discipline,

total 6 eligible candidates, including opposite party no.1,

had applied. All of them were intimated to appear at the

interview as per the programme. All six candidates

belonged to Drvayaguna discipline attended the interview

on 28.09.1997 and 29.09.1997. As per the

advertisement, 2/3rd vacancies were required to be filed

up from among the in-service candidates and balance

1/3rd vacancies were to be filled up from eligible direct

candidates pursuant to criteria fixed by the Government.

Accordingly, the Selection Board prepared a merit list,

wherein the name of opposite party no.1 was found place

at serial no.2. But fact remains, after issuance of

advertisement, one post in respect of Dravyaguna

discipline was abolished by the State Government.

// 11 //

Thereby, only one post was filled up pursuant to such

advertisement. Consequentially, opposite party no.2

could not get appointment, as she was in second position

in the merit list.

7. In M. Ramanatha Pillai v. State of Kerala,

(1973) 2 SCC 650: AIR 1973 SC 2674, the apex Court

has laid down the following principles in relation to

abolition of post:-

"(1) The power to abolish the posts is not derived from the doctrine of pleasure as embodied in Art. 310 of the of the Constitution of India but is an inherent power of the Government.

(2) A simple abolition of post leading to termination of service of Government employees does not attract the provisions of Art. 311.

(3) Abolition of post does not violate Art.19(1)(f) and Art.31 of the Constitution.

(4) Abolition of posts does not violate Art. 14 of the Constitution when it is not shown that employees similarly situated have been allowed to remain in service.

(5) Doctrine of estoppel is not applicable against the State while acting in public or sovereign capacity except where it is necessary to prevent a fraud or manifest injustice.

// 12 //

(6) Whether an employee who was holding the abolished post should be offered any other employment in the State is a matter of policy decision of the Government and the employee cannot claim alternative post as of right."

8. In S.S. Dhanoa v. Union of India, 1991 (3)

SCC 567: AIR 1991 SC 1745, the apex Court held that

the State has unfettered power to create posts and so

also the power to reduce or abolish them.

9. The above being the settled position of law, the

order impugned passed by the Tribunal directing the

petitioner to give appointment to opposite party no.1

cannot sustain in the eye of law. As such, the post of

Lecturer has to be filled up by way of direct recruitment

to be conducted by OPSC. Therefore, the claim made by

opposite party no.1 to give her appointment pursuant to

advertisement cannot sustain in the eye of law.

10. In the above view of the matter, the Tribunal

has committed gross error by directing the petitioner to

give appointment to opposite party no.1.

Consequentially, the order dated 13.04.2009 passed by // 13 //

the Odisha Administrative Tribunal, Bhubaneswar in

O.A No.1295 of 1998 cannot sustain in the eye of law.

Accordingly, the same is liable to be quashed and is

hereby quashed.

11. The writ petition is thus allowed. However,

there shall be no order as to costs.

                                             (DR. B.R. SARANGI)
                                                   JUDGE


G. SATAPATHY, J.              I agree.

                                              (G. SATAPATHY)
                                                   JUDGE



        Orissa High Court, Cuttack
        The 10th October, 2022, Alok