Orissa High Court
Dr. Ambuja Satpathy vs State Of Odisha & Anr on 11 October, 2022
A.F.R
ORISSA HIGH COURT : C U T T A C K
WPC(OAC) No.3172 of 2018
An application under Section 19 of
the Administrative Tribunal's Act, 1985
Dr. Ambuja Satpathy : Petitioner
-Versus-
State of Odisha & Anr. : Opposite Parties
For Petitioner : M/s. M.Ku. Mishra,
Mr. D.K. Patnaik,
J. Sahoo, S. Das
For Opposite Party No.1 : Mr. S. Mishra,
Addl. Standing Counsel
For Opposite Party No.2 : Mr. S.B. Jena
JUDGMENT
CORAM :
JUSTICE BISWANATH RATH
Date of hearing: 23.09.2022 :: Date of Judgment : 11.10.2022
1. This application involves the following relief:-
"Relief Sought for:
It is, therefore, humbly prayed that this Hon'ble Tribunal
may graciously be pleased to issue notice for show cause
and call for the records and on perusal of the causes shown
and upon insufficient causes shown be pleased to:
// 2 //
(i) quash the advertisement dtd.11.10.2018 under
annexure-17 so far as filling up the post of Asst.
Professor Surgery in Speciality Category is
concerned.
(ii) Direct the respondents to recommend the name of
the applicant in pursuance of the Advertisement
No.15 of 2015-16 and give the applicant
appointment in the post of Asst. Professor Surgery
in Speciality Category with all consequential and
financial benefits from the date of appointment of
others selected candidates in same discipline.
(iii) and may pass such other order / orders as deemed
just and proper.
And for this act of kindness, the applicant
shall as in duty bound ever pray."
2. The applicant-Petitioner through the above relief in one hand while
claiming for quashing of the advertisement dated 11.10.2018 vide
Annexure-17 (Advertisement No.12 of 2018-19), also sought for
appointment in the post of Asst. Professor, Surgery in Speciality category
depending on her result pursuant to the Advertisement No.15 of 2015-16
also in terms of the recommendation made in her favour by the competent
authority and further with grant of all consequential and financial benefit
from the date of appointment of others in terms of the aforesaid
advertisement.
3. Short background involved in this case is that the cause of action in
bringing such application appears to be as an outcome through the
advertisement dated 11.10.2018 (Annexure-17) while not showing full
compliance to the selected candidates for the post of Asst. Professor,
Surgery in Group-'A' of the Odisha Medical Education Service
hereinafter in short be reflected as 'O.M.E.S' pursuant to the
Advertisement No.15 of 2015-16 read together with the numbers of
corrigendum and illegally involving the posts for which the selection is
// 3 //
already made in the next advertisement vide Annexure-1. Such action of
the State Authorities is also claimed to be illegal as it was contrary to the
direction of the Tribunal in O.A. No.4124(C) of 2016 where by the
interim order dated 9.06.2016 involving P.P. No.282(C) of 2016 and O.A.
No.2064(C) of 2016 the Tribunal clearly directed for keeping one post of
Asst. Professor, Surgery under General Category vacant. Through the
pleadings the Applicant-Petitioner discloses that pursuant to the direction
of the High Court dated 4.07.2013 in W.P.(C) No.13721 of 2013 the
Selection Committee recommended the name of the Applicant-Petitioner
along with others for appointment in different disciplines and it is
pursuant to which the applicant was appointed as Asst. Professor but on
ad.hoc basis in M.K.C.G Medical College and Hospital, Berhampur in the
discipline of Surgery and she is continuing as such. Proof of the same is
filed herewith at Annexure-1. It is claimed that while the Applicant-
Applicant-Petitioner was continuing as such, the respondents therein
issued Advertisement No.15 of 2015-16 inviting applications from
eligible candidates for recruitment to the post of Asst. Professor in
different disciplines including that of Surgery discipline. The
advertisement also made it clear that the selection therein shall be made
as per the O.M.E.S (Methods of Recruitment and Condition of Service)
Rules, 2009. So far as the discipline of Surgery is concerned; the
advertisement contains fifteen numbers of post on that head and out of
which three posts were reserved for S.T. (2 Male + 1 Woman), four posts
were reserved for S.C. (3 Male + 1 Woman), eight posts were reserved
for unreserved category (6 Male + 2 Women). For better appraisal the
Applicant-Petitioner includes the advertisement at Annexure-2 requiring
submission of application by 23.12.2015. The Applicant-Petitioner
finding herself eligible applied for the post of Asst. Professor (Surgery)
// 4 //
specifically meant for women in unreserved category vide Annexure-3. It
is needless to mention here that prior to undertaking of the selection
process the Odisha Public Service Commission hereinafter in short be
reflected as 'O.P.S.C' issued a corrigendum involving Advertisement
No.15 of 2015-16 bringing in a restriction to the recruitment to the post of
Asst. Professors at S.C.B. Medical College & Hospital, Cuttack, MKCG
Medical College & Hospital, Berhampur and S.C.B. Dentistry College,
Cuttack. Accordingly a revised vacancy position for the post of Asst.
Professors in Group 'A' of O.M.E.S in different disciplines was
published. The Applicant-Petitioner specifically pleaded that so far as the
vacancies in the discipline of Surgery under specific category were
concerned; a total number of eight vacancies were advertised for
recruitment in the O.M.E.S site, which indicates out of fifteen number of
posts available in the discipline of Surgery only eight vacancies in such
discipline were carved out and bifurcating the same the reservation is
made as such; two posts for S.T., two posts for S.C. and four posts for
unreserved candidates. It was also made clear that the application so
submitted pursuant to the Advertisement No.15 of 2015-16 shall also be
considered for the above noted vacancies at S.C.B. Medical College &
Hospital, Cuttack, M.K.C.G Medical College & Hospital, Berhampur and
S.C.B. Dentistry College, Cuttack. This corrigendum is found place at
Annexure-4. It appears, simultaneously the OPSE brought out an
Advertisement bearing No.17 of 2015-16 for recruitment to the post of
Asst. Professor in Super Specialty and Specialty in different disciplines
for Veer Surendra Sai Institute of Medical Science and Research
hereinafter in short be reflected as 'VIMSAR'. The advertisement
inviting further applications is at page 30 of the brief and the internal
page 2 of the said advertisement shows, the balance seven vacancies in
// 5 //
the Surgery stream has been assigned to VIMSAR. Through this
advertisement the reservation was segregated as one post to S.C. category
and the balance six posts to unreserved category including three women
and the application was required to be submitted by 30.01.2016 as
appearing at Annexure-5. Applicant-Petitioner here being aggrieved for
not providing reservation to women candidates in un-reserved category
from out of four posts meant for Surgery stream in the corrigendum
relating to the Advertisement No.15 of 2015-16 filed O.A. No.147(C) of
2016 before the State Administrative Tribunal seeking a direction therein
to the Respondent No.2 to provide the reservation of two posts for women
candidates in the Un-reserved category in terms of the Women
Reservation Rules, 1994. It is claimed that the Tribunal while issuing
notice on 19.05.2016, in the interim directed, any appointment in the post
of Asst. Professor in the discipline of Surgery will be subject to the result
of the O.A. In the meantime the O.P.S.C. issued second corrigendum
involving Advertisement No.15 of 2015-16 vide notice No.635 dated
3.02.2016 by modifying the vacancy position in respect of seven
disciplines including the discipline of Surgery. It is claimed through this
corrigendum that so far as the Surgery discipline is concerned; out of total
eight vacancies in Surgery discipline two were reserved for S.C. category,
two were reserved for S.T. category and four posts were reserved for Un-
reserved category. This time in the Un-reserved category it was
segregated to three men and one woman. By this corrigendum the last
date for submission of the application in respect of the modified
vacancies through Online mode was extended till 17.02.2016. The 2nd
corrigendum is filed herewith at Annexure-6. In the meantime there is
issuing of 3rd corrigendum involving the Advertisement No.15 of 2015-16
vide notice No.3231 dated 25.05.2016 again carving out the vacancies in
// 6 //
the Surgery stream and out of total eight vacancies two were reserved for
S.T., one was reserved for S.C. and out of five un-reserved vacancies two
were reserved for women. Here the date of submission of the application
was again extended to 25.06.2016 vide Annexure-7 keeping reserve
consideration of application already submitted involving the
Advertisement No.15 of 2015-16. After all these developments taken
place considering the suitability of the Applicant-Petitioner to at least
appear in the interview on 22.08.2016 the Applicant-Petitioner was issued
with a call letter vide Annexure-8 to remain present at viva-voce test in
the Office of the Commission, as she was already provisionally selected
to appear in the viva voce test vide Annexure-8. After completion of the
viva voce test involving all the selected candidates a list was published by
the O.P.S.C in their notice dated 21.09.2016 bringing out two separate
select list i.e. one pursuant to the Advertisement No.15 of 2015-16 meant
for O.M.E.S and the other one pursuant to the Advertisement No.17 of
2015-16 though exclusively meant for VIMSAR, but inadvertently
indicating both for O.M.E.S. The notice dated 21.09.2016 is filed at
Annexure-9. It is needless to mention here that though the Advertisement
No.17 of 2015-16 was meant for VIMSAR, after publication of the result
by the O.P.S.E it appears, the Government in Health and Family Welfare
Department brought two separate notifications; one dated 31.10.2016 at
Annexure-11 (series) at page 39 of the brief involving the select list of
seven candidates in Surgery wing meant for VIMSAR for appointment in
the post of Asst. Professor, Surgery also indicating the women candidate
Dr. Sucheta Panigrahi at Sl.No.1 and Dr. Ambuja Satapathy the present
the Petitioner also in Un-reserved category at Sl.No.3 and the other
notification dated 3.11.2016 brought out by the Government in Health &
Family Welfare Department under the O.M.E.S appointment was for
// 7 //
M.K.C.G Medical College & Hospital, Berhampur and S.C.B. Medical
College & Hospital, Cuttack, where Dr. Sucheta Panigrahi again shown to
be the only woman candidate under the Un-reserved category at Sl.No.4
was directed to be posted in M.K.C.G. Medical College & Hospital,
Berhampur under O.M.E.S. recruitment. The notification dated
31.10.2016 had no conditional attachment about pendency of any case,
whereas in the notification dated 3.11.2016 at page 42 of the brief the
appointment was directed to be made subject to the outcome in pending
P.P. No.282(C) of 2016 filed by Dr. Swarupa Nanda Mallick & Anr. and
O.A. No.2064(C) of 2016 filed by Dr. Amar Kumar Behera. It appears, in
the meantime the present Applicant-Petitioner filed O.A. No.4124(C) of
2016 challenging non-consideration of her case for appointment in S.C.B.
Medical College & Hospital, Cuttack, which could not be taken up on
account of interim order passed in O.A. No.2064(C) of 2016 and P.P.
No.282(C) of 2016, there the Tribunal appears to have passed the order
on 11.11.2016 thereby directing for maintenance of status quo in respect
of the position of the applicant as on 11.11.2016. In the meantime in
another development through W.P.(C) No.5525 of 2016 this High Court
by the order dated 18.04.2016 as an interim measure directed, the
Applicant-Petitioner therein Dr. Amar Kumar Behera shall continue in
the post of Asst. Professor (Adhoc.) in the Department of Surgery in
VIMSAR till the next date. In the meantime the Applicant-Petitioner who
was found to be selected pursuant to the Advertisement No.17 of 2015-
16, while foregoing her appointment in VIMSAR, was constrained to
bring this litigation with specific plea that Dr. Sucheta Panigrahi though
selected under both the notifications dated 31.10.2016 & 3.11.2016 for
VIMSAR as well as M.K.C.G, opted to continue as per the notification
dated 31.10.2016 in VIMSAR, thus abandoned her posting pursuant to
// 8 //
the appointment notification dated 3.11.2016 in M.K.C.G Medical
College & Hospital, Berhampur. The Applicant-Petitioner thus claimed
that since the O.M.E.S advertisement continued through the
Advertisement No.15 of 2015-16 read together with the 2nd & 3rd
corrigendum clearly making two reservation for women out of five in Un-
reserved category, once Dr. Sucheta Panigrahi the only women candidate
selected in the Un-reserved category in the Surgery stream and the
Applicant-Petitioner Dr. Ambuja Satapathy having stood in number one
in the wait list in Surgery stream, she automatically deserves to be posted
at M.K.C.G Medical College & Hospital, Berhampur. Applicant-
Petitioner further pleaded that in the meantime during pendency of O.A.
No.4124(C) of 2016 the Government in Health & Family Welfare
Department under the premises of large number of vacancies requested
the O.P.S.C to recommend the names of eligible wait listed candidates on
the basis of the Advertisement No.15 of 2015-16 for being appointed in
the S.C.B. Medical College & Hospital, Cuttack and M.K.C.G Medical
College & Hospital, Berhampur in order of their merit. The same is at
Annexure-13(series) more particularly at page 44 of the brief. Pursuant to
the above request, it appears, the O.P.S.C. vide its notice No.6047 dated
17.10.2017 recommended the names of 11 candidates in order of merit
for their appointment against the post of Asst. Professor in all the seven
disciplines and the list contains the name of the present Applicant-
Petitioner at Sl. No.7 a candidate in Surgery stream under Un-reserved
female category and one Dr. Sworupa Nanda Mallick a S.C. candidate but
selected under Un-reserved. Applicant-Petitioner has the further pleading
that while the matter stood thus one Dr. Uma Prasad Padhy moved O.A.
No.1796(C) of 2016 a candidate in Neurology stream again involving the
Advertisement No.15 of 2015-16 for not being appointed against such
// 9 //
vacancies in spite of foregoing to such posts by the selected candidates.
This O.A. is finally disposed of by the order vide Annexure-14 thereby
directing for engagement of Dr. Uma Prasad Padhy as against the
vacancies under Neurology stream pursuant to the Advertisement No.15
of 2015-16. For such direction of the Tribunal the O.P.S.C recommended
the name of Dr. Uma Prasad Padhy to have been recruited as against the
post of Asst. Professor, Neurology in Group 'A' of O.M.E.S pursuant to
the Advertisement No.15 of 2015-16 vide Annexure-15. In the meantime
there has been circulation of a communication dated 6th September, 2017
clearly communicating therein that there has been declining by Dr.
Sucheta Panigrahi to join at M.K.C.G Medical College & Hospital,
Berhampur as against her selection as Asst. Professor on regular basis in
Surgery stream involving the Advertisement No.15 of 2015-16 as
appearing at Annexure-16. While the matter stood thus the Applicant-
Petitioner here claims that for Dr. Amar Kumar Behera filed O.A.
No.2064 (C) of 2016 & W.P.(C) No.5525 of 2016 joining as Asst.
Professor, Surgery at M.K.C.G Medical College & Hospital, Berhampur,
there has been two clear vacancies in the post of Asst. Professor, Surgery
in Un-reserved category. Applicant-Petitioner while claiming that Dr.
Amar Kumar Behera since is a male candidate, he cannot be considered
in female candidate vacancy in Un-reserved category, thus claims that
there is no reason for not providing appointment to her as she remains to
be the only women candidate and not only selected in the selection
process but also secured the position next to the eight selected candidates
and the only women selected candidate in Surgery stream. For there are
two clear vacancies in the eight vacancies in the Surgery stream, the
Applicant-Petitioner claims that looking to her position in the select list
there should have been automatic positioning of her pursuant to the
// 10 //
Advertisement No.15 of 2015-16. Applicant-Petitioner alleges that even
after the requisition of the State Government for sending the name of the
next selected candidates in the waitlist and even after sending of her name
by the O.P.S.C vide Notice No.6047 dated 10.10.2017 at page 45 and for
no posting of her, there is great level of injustice created to the Applicant-
Petitioner.
4. The Applicant-Petitioner next pleaded that instead of working out
on the restructuring of the select list looking to the allotment of seats
taken together with the Advertisement No.15 of 2015-16 read with 2nd &
3rd corrigendum respectively, there was requirement of only repositioning
of the candidates in the event some candidates in the select list choose not
to join even after selection. The Applicant-Petitioner also pleaded that
instead of working-out in terms of the condition in the Advertisement
No.15 of 2015-16 the authority went on for another advertisement dated
11.10.2018 under the pretext of merger of vacancies after completion of
the process initiated through the Advertisement No.15 of 2015-16 &
Advertisement No.17 of 2015-16. The Applicant-Petitioner here claims
that there is already involvement of a clear vacancy and undisputedly for
Dr. Sucheta Panigrahi did not join in M.K.C.G Medical College &
Hospital, Berhampur and not only that depending on above non-joining
there has even been recommendation of the name of the Applicant-
Petitioner in the Surgery stream. The Applicant-Petitioner thus claims
that the Advertisement dated 11.10.2018 should not have included the
vacancies considered in the process of Advertisement No.15 of 2015-16
and Advertisement No.17 of 2015-16 and so long as the process
involving the above advertisements are fully completed, there should not
have been any further advertisement.
// 11 //
5. The Applicant-Petitioner in the above background of the matter
claims that the case involves working out of an existing right of a selected
candidate and the role of the competent authority is in clear violation of
Article 14 & 16 of the Constitution of India.
6. In the above background of the matter Mr. Mishra, learned Senior
Advocate appearing on behalf of the Petitioner claimed that this Court
ought to interfere in the Advertisement No.12 of 2018-19 and again for
the whole background of the matter there should be a mandamus directing
the competent authority to appoint the present Applicant-Petitioner as a
selected candidate in women category in Surgery Speciality Stream
pursuant to the Advertisement No.15 of 2015-16 and also by providing
consequential benefits.
7. Mr. Mishra, learned senior Advocate appearing on behalf of the
Petitioner on the basis of the above plea also attempted to take support of
decision of this Court as well as the Hon'ble Apex Court such as in the
case of Sarojkanta Mohapatra and Ors. Vrs. State of Orissa and Ors. as
reported in 2015 (II) OLR, 367 and in the case of Gujarat State Dy.
Executive Engineers' Association Vrs. State of Gujarat and Others as
reported in 1994 Supp. (2) SCC 591.
8. In his opposition Mr. S. Mishra, learned State Counsel for the
Opposite Party No.1 taking this Court to the counter plea of Opposite
Party No.1 while not disputing the facts and the intention borne through
the Advertisement No.15 of 2015-16 as well as the Advertisement No.17
of 2015-16 and development through the 1st, 2nd & 3rd corrigendum,
contended that for the interim direction issued by the Tribunal in O.A.
No.2064(C) of 2016 thereby directing for keeping one post of Asst.
Professor, Surgery under general category vacant, one post in Un-
reserved category has not been recommended by the O.P.S.C. Thus Mr.
// 12 //
S. Mishra, learned State Counsel contended that there is a justified reason
in not recommending the name of Dr. Ambuja Satapathy by the O.P.S.C.
involving the Advertisement No.15 of 2015-16, resulting no possibility of
issuing an appointment order in her favour either at S.C.B. Medical
College & Hospital, Cuttack or M.K.C.G Medical College and Hospital,
Berhampur. It is further contended by Mr. S. Mishra, learned State
Counsel that in the meantime on requisitioning of the State Government,
the O.P.S.C, however, recommended the names of the 11 waitlisted
candidates in seven different disciplines including the name of the
Petitioner in Surgery Specialty stream. However for the subsequent
development in response to the communication of the Health & Family
Welfare Department dated 12.09.2017, the O.P.S.C was requested to
recommend the names of eligible waitlisted candidates on the basis of the
Advertisement No.15 of 2015-16 for S.C.B. Medical College & Hospital,
Cuttack and M.K.C.G Medical College and Hospital, Berhampur and
accordingly the O.P.S.C. by its Notice No.6047/P.S.C. dated 17.10.2017
recommended the names of 11 waitlisted candidates in seven streams
including that of the Petitioner, but in further development vide its letter
dated 12.01.2018 the O.P.S.C. withdrew its Notice No.6047/P.S.C dated
17.10.2017 involving recommendation of Petitioner automatically got
dropped. Mr. S. Mishra, learned State Counsel thus contended that since
the letter withdrawing the recommendation of the O.P.S.C. dated
17.10.2017 has not been challenged any further, the recommendation
through the letter dated 12.01.2018 has attended its finality and therefore
there cannot be revisiting to the earlier situation.
9. Mr. S. Mishra, learned State Counsel further on the premises that in
the meantime there has already been a fresh Advertisement bearing No.12
of 2018-19 (Annexure-17), submitted that for the development already
// 13 //
taken place through such advertisement there is no possibility of
reopening of the selection file pursuant to the Advertisement No.15 of
2015-16. Mr. S. Mishra, learned State Counsel apart from agitating all the
grounds raised in the counter affidavit of the Opposite Party No.1 also
took this Court to the following decisions to satisfy the case of the State
involved herein:-
(1) In the case of Dr. M.C. Bindal Vrs. R.C. Singh and Ors. :
(1989) 1 SCC 136 (2) In the case of Vinodan T. and Ors. Vrs. University
of Calicut and Ors. : (2002) 4 SCC 726 (3) In the case of H.S. Vankani
and Ors. Vrs. State of Gujarat and Ors. : (2010) 4 SCC 301 (4) In the
case of Mohd. Rashid Vrs. Director, Local Bodies, New Secretariat and
Ors. : (2020) 2 SCC 582.
10. Reading through all the above decisions and more particularly the
decision in the case of Dr. M.C. Bindal (supra) Mr. S. Mishra, learned
State Counsel attempted to submit that the Hon'ble Apex Court in the
said decision has already held that the Public Service Commission is
competent to cancel the recommendation and there is no scope for the
High Court to entertain any such aspect involving such issue. Through the
decision in the case of Vinodan T. and Others (supra) Mr. Mishra,
learned State Counsel on the settled position of law therein submitted that
the person selected for a post do not thereby acquire a right to be
appointed to such posts and also contended that for there is issuance of
further advertisement the waitlist has lost its force and thus an attempt is
made to take support of the observation of the Hon'ble apex Court in
paragraph Nos.12 & 13 therein. Mr. S. Mishra, learned State Counsel
next taking this Court to the case of H.S. Vankani and Ors. (supra)
contended that for the Hon'ble apex Court categorically held that once the
aspect of seniority is already settled, it is decisive and if unsettled, it is
// 14 //
bound to generate bitterness, resentment and hostility amongst the
employees and attempted to take reliance of the observation of the
Hon'ble Apex Court through paragraph no.38 therein. Referring to the
decision in the case of Mohd. Rashid (supra) Mr. S. Mishra, learned
State Counsel reiterated that there is a clear judgment of the Hon'ble apex
Court observing that mere participation of a candidate in the selection
process and even upon being placed in the merit list does not create a
right in such candidate.
11. Mr. S.B. Jena, learned counsel for the O.P.S.C-Opposite Party
No.2 taking this Court to the counter affidavit of the Opposite Party No.2
attempted to establish the reason of withdrawal of the recommendation
based on a direction of the State Government. While not disputing to the
fact that since Dr. Sucheta Panigrahi dropped herself, Dr. Ambuja
Satapathy was the next immediate candidate available in Surgery stream
under Un-reserved women category and there was no difficulty in
accommodating her the movement Dr. Sucheta Panigrahi opted not to
join as per the O.M.E.S Advertisement No.15 of 2015-16, Mr. S.B. Jena,
learned counsel further submitted that it is only after finding that
Dr. Sucheta Panigrahi is not willing to join under O.M.E.S advertisement,
the O.P.S.C was all through ready to send the name of Dr. Ambuja
Satapathy, but it is not known; as to why the Government did not take
any step to replace Dr. Sucheta Panigrahi at the relevant point of time.
Mr. S.B. Jena, learned counsel also contended that once the select list is
drawn in an interview held by the O.P.S.C. the select list is already
dispatched to the concerned Department. Mr. Jena, learned counsel in the
circumstance contended that it cannot be construed even that the
concerned Department was unaware of the next possible selected
candidate against the vacancy arose for not joining of Dr. Sucheta
// 15 //
Panigrahi. Mr. S.B. Jena, learned Counsel for the O.P.S.C-Opposite Party
No.2 concluded his submission saying that the O.P.S.C. being the
examining authority has no role in appointment affairs, which comes
under the clear domain of the Health & Family Welfare Department and
thus requested this Court for passing direction in according with law.
12. From the factual submission and the counter submission of the
parties this Court finds, there is no dispute that the Petitioner was
continuing as an Ad.hoc Asst. Professor since 2013. It is at this stage of
the matter, it appears, there has been floating of Advertisement No.15 of
2015-16. It appears, through page 22 under the vacancies 'II' the
advertisement discloses the following vacancy position :-
Sl. Name of the No. of vacancies reserved for Un- Total
No. Discipline S.T. S.C. S.E.B.C Reserved Vacancies
(1) (2) (3) (4) (5) (6) (7)
20 Surgery 3(w-1) 4(w-1) 0 8(w-2) 15(w-4)
13. The first corrigendum vide Annexure-4 was issued bringing down
the vacancies position in Surgery wing after bifurcating seven such seats
to VIMSAR. The vacancies position under the O.M.E.S as published
therein reads as follows:-
Sl. Name of the No. of vacancies reserved for Un- Total
No. Discipline S.T. S.C. S.E.B.C Reserved Vacancies
(1) (2) (3) (4) (5) (6) (7)
14. It be stated here that the Advertisement No.17 of 2015-16 was
specifically meant for VIMSAR and Sl.No.19 therein reflects the vacancy
position in the Surgery stream and the requirement was for all total 7,
which included one S.C. and out of balance six Un-reserved category
three were reserved for women. From the 2nd Corrigendum dated
3.02.2016 vide Annmexure-6 it appears, there has been further
// 16 //
development to the vacancy position in Surgery stream and the vacancy
position at Sl.No.6 therein reads as follows:-
Sl. Name of the No. of vacancies reserved for Un- Total
No. Discipline S.T. S.C. S.E.B.C Reserved Vacancies
(1) (2) (3) (4) (5) (6) (7)
6 Surgery 2 2 0 4(w-1) 8(w-1)
15. There is also a 3rd corrigendum on the Advertisement No.15 of
2015-16 vide Annexure-7. At this time there was a change in the
reservation position in Medicine and Surgery. The vacancy position at
Sl.No.2 involving Surgery stream therein reads as follows:-
Sl. Name of the No. of vacancies reserved for Un- Total
No. Discipline S.T. S.C. S.E.B.C Reserved Vacancies
(1) (2) (3) (4) (5) (6) (7)
2 Surgery 2 1 0 5(w-2) 8(w-2)
16. It is here taking into consideration the appointment notification
dated 3.11.2016 prepared by the Government depending on the select list
at Annexure-11 (series), this Court finds, the same runs as follows :-
"Government of Odisha
Health & Family Welfare Department
***
NOTIFICATION
No.23208/H., Dated the 03-11-2016
HFW-MEI-AP-0032-2016
On the recommendation of the Odisha Public Service Commission, the
following candidtes are appointed temporarily as Assistant Professor in the
discipline of Surgery in the scale of pay of Rs. 15,600/- to 39,100/- with AGP of
Rs.8,000/- per month with other allowances as admissible from time to time on
probation for a period of one year from the date of their actual joining the post or
until further orders subject to the outcome of PP No-282(C)/2016 filed by Dr.
Swarupa Nanda Mallick & another and OA No-2064(C) / 2016 filed by Dr. Amar
Kumar Behera before the Hon'ble OAT, Cuttack Bench, Cuttack.
On such appointment, they are posted to the Medical Institutions as
mentioned below against the vacant posts of Assistant Professor in the discipline of
Surgery.
Name of the
Sl. Name of the Correspondence
Category Medical College
No. Doctor Address
to which posted
1 Dr. Subhabrata Das UR S/o.-Purusottam Das, MKCG Medical
// 17 //
Vijay Vihar 4th Lane, College,
Berhampur, Ganjam, Berhampur
Odisha-760004
2 Dr. Sarada UR Plot No-4773/9, SCB Medical
Prasanna Sahoo Chakeisiani, Rasulgarh, College, Cuttack
Bhubaneswar, Khurda,
Odisha-751010
3 Dr. Niranjan UR Qr. No-3R/15, MKCG MKCG Medical
Sahoo Medical Campus, College,
Berhampur, Ganjam, Berhampur
Odisha-760004
4 Dr. Sucheta UR Qr.No-D14, Doctors MKCG Medical
Panigrahi Colony, Burla, P.O- College,
Burla, Sambalpur, Berhampur
Odisha-768017
5 Dr. Haladhar ST Kathagola Sahi, Near SCB Medical
Naik Good Luck Hospital, College, Cuttack
Mangalabag, Cuttack,
Odisha-753001
6 Dr. Dhirendra ST Qr.No-3R/39, Doctors MKCG Medical
Nath Soren Colony, VSS Medical College,
College, Burla, Berhampur. He is
Sambalpur, Odisha- deployed to work
768017 at VIMSAR, Burla
7 Dr. Amar SC Krishna Kunj MKCG Medical
Kumar Behera Apartment, Flt No-204, College,
Bhoi Nagar, Road-8, Berhampur. He is
Unit-9, Bhubaneswar, deployed to work
Khurda, Odisha-751022 at VIMSAR, Burla
This Court here finds surprise in the preparation of such list as after
the 3rd corrigendum. The select list should have contained in the minimum
two women candidates, whereas this list contained one woman candidate
in Un-reserved category at Sl.No.4. Otherwise also if Dr. Sucheta
Panigrahi at Sl.No.4 did not join, this position at Sl.No.4 should have been
taken over by Dr. Ambuja Satapathy-the present Petitioner being the next
eligible women candidate already available.
17. Undisputedly the Advertisement No.15 of 2015-16 after
introduction of 3rd corrigendum, total seat in Surgery Speciality stream
remained at 8 including 5 Un-reserved with 2 women.
Considering the rival contentions of the parties, this Court here
finds, as per the notification dated 3.11.2016 at page 42 of the brief Dr.
Sucheta Panigrahi was the only women candidate in the select list in the
// 18 //
discipline of Surgery and for Dr. Sucheta Panigrahi having dropped
herself and declined to join under the O.M.E.S appointment, there is clear
vacancy in Surgery Speciality stream under the O.M.E.S recruitment.
This Court thus observes, Dr. Sucheta Panigrahi admittedly having joined
at VIMSAR pursuant to the Notification dated 31.10.2016 in the same
recruitment process, was not available to be appointed under the O.M.E.S
recruitment and for there is clear vacancy in the women Un-reserved
category Dr. Ambuja Satapathy being the next immediate women
candidate in the Un-reserved category in Surgery Speciality stream is
found to have already been selected, there was no room for keeping Dr.
Ambuja Satapathy away from being appointed. On Dr. Sucheta Panigrahi
declining to join under the O.M.E.S., there should have been automatic
induction of the Petitioner considering that she was the only woman
selected candidate in line of selection. This Court finds, the action of the
public authority in the above contingency not only appears to be arbitrary
but also unconstitutional.
18. In the above circumstance, this Court finds, vacancy being created
pursuant to non-joining of Dr. Sucheta Panigrahi should not have been
included in the Advertisement bearing No.12 of 2018-19. This Court here
finds, in entertaining the matter involved herein the Tribunal vide its
order dated 20.12.2018 had passed the following interim direction
"List this matter after six weeks.
Learned Standing Counsel is directed to obtain
instruction regarding action taken in pursuance to
notification as at Annexure-13 series. Till instruction is
received one post of Asst. Professor in Speciality category
of Surgery as advertised at Annexure- 17 at Sl.No. 19 shall
not be filled up without leave of the Tribunal."
It appears, the above interim order is operating till now leaving no
impediment in accommodating the present Petitioner in such vacancy.
// 19 //
19. This Court here takes into account the fact that O.A. No.147(C) of
2016 was filed by the present Applicant-Petitioner finding no reservation
for women in the Un-reserved Surgery stream. The Tribunal by its interim
order dated 19.05.2016 directed; any appointment in the post of Asst.
Professor in the discipline of Surgery will be subject to the result of the
O.A. The second corrigendum brought on 3.02.2016 bearing No.635 vide
Annexure-6 indicated four Un-reserved seats including one women. The
third corrigendum dated 25.05.2016 bearing No.3231 vide Annexure-7
indicated five Un-reserved seats taking out one post from S.C. category in
the Surgery wing and out of five Un-reserved seats two posts were
reserved for women making total vacancies in the Surgery stream to 8.
Since 3rd corrigendum brought two women posts in Un-reserved category,
this appears to have resolved the issue in O.A. No.147(C) of 2016 making
the said O.A. infructuous as the issue therein is no more surviving.
20. This Court finds, since there involves a direction for not filling of
one post under the Surgery stream for the pendency of some O.As, the
appointment finally made only involving seven candidates and in the
above appointment list Dr. Sucheta Panigrahi was placed at Sl.No.4 and
for her opting to join at VIMSAR pursuant to appointment notification
dated 31.10.2016, there remained a clear vacancy in Sl.No.4 in Un-
reserved women category for M.K.C.G Medical College & Hospital,
Berhampur. This Court here takes into account the position of Dr.
Ambuja Satapathy in Un-reserved female category meant for the Surgery
stream as per the recommendation dated 17.10.2017 of O.P.S.C. This
recommendation makes it clear that Dr. Ambuja Satapathy was the only
eligible candidate available in Un-reserved female category meant for
Surgery stream. Thus Dr. Sucheta Panigrahi since dropped herself, this
position would have been maintained by Dr. Ambuja Satapathy, which is
// 20 //
an automatic process and in the process there was no question of showing
name of Dr. Ambuja Satapathy was in waitlist maintained by the O.P.S.C.
This Court here finds, there is failure of further exercise by the State as
well as by the O.P.S.C in revisiting to the selection position amongst the
candidates in Surgery stream after Dr. Sucheta Panigrahi drops herself.
This Court at the cost of repetition makes it clear that after Dr. Sucheta
Panigrahi dropped herself, there was automatic elevation of Dr. Ambuja
Satapathy being the next only selected women candidate.
21. This Court now proceeds to deal with the decisions cited by the
respective parties as follows:-
(A) This Court going through the decision in the case of Dr. M.C.
Bindal (supra) finds, this decision involves cancellation / withdrawal of a
provisional recommendation on finding some lacunas involving the
candidates in the essential qualification. This is not the case at hand.
Therefore this decision has no application to the case at hand.
(B) Similarly going through the decision in the case of Vinodant T.
and Others (supra), this Court finds, there is clear difference in the fact
position involved therein. Though the Hon'ble Apex Court through the
above decision held that the persons merely selected for a post did not
thereby acquire a right to be appointed to such post as well, but however,
also came to observe in paragraph 14 therein that even if a vacancy exists,
it is open to the authority concerned to decide howmany appointment
should be made and in that peculiar circumstance the Hon'ble Apex Court
even went to the extent that the selected candidates have a right to compel
such authority to work in a manner. Above decision rather supports the
claim of the Applicant-Petitioner.
// 21 //
(C) This Court going through the decision in Mohd. Rashid (supra),
finds, through this decision the issue involved therein was taken care of in
paragraph no.2 therein, which reads as follows:-
"2. The candidates who were initially
appointed as Lower Division Clerks and promoted as
Upper Division Clerks / Head Clerks invoked the
jurisdiction of the Central Administrative Tribunal (for
short, "the Tribunal") challenging Advertisement No.3
of 2013 dated 12-9-2013 whereby, the respondents set
in process to fill up the posts advertised by way of
direct recruitment. The argument was that the
Recruitment Regulations for the post of Administrative
Officer / Assistant Assessors and Collector in North,
Sought and East Delhi Municipal Corporations, 2013
(for short, "the Recruitment Rules") contemplate that
the vacancies for the posts in question are to be filled
up by promotion failing which by direct recruitment. It
was thus alleged that without resorting to promotion
by convening meeting of the Departmental Promotion
Committee (for short "DPC"), the alternative process
of direct recruitment cannot be resorted to."
Reading the above it appears, there involves an issue of without
resorting to women promotion by convening meeting of the Departmental
Promotion Committee. The alternative process of direct recruitment
cannot be resorted to. In paragraph no.14 therein answering to such issue
the Hon'ble apex Court came to observe as follows :-
"14. Since the selection process has not been
completed and keeping in view the mandate of
statutory rules, we find that the appellants have no
right to dispute the action of the municipal bodies to
fill up the posts either by way of promotion or by
deputation as such posts are being filled up in terms of
mandate of the Rules. It is always open to the
municipal bodies to fill up the vacant posts by way of
direct recruitment after the posts by way of promotion
and/or deputation quota are not filled up either on the
basis of recruitment process already initiated or to be
initiated afresh."
// 22 //
Reading the issues involved therein and the decision of the Hon'ble
apex Court this Court finds, the case involved therein is completely
different to the case involved herein. Thus this decision has no
application to the case at hand at all.
(D) Keeping in view the submissions and counter submissions of the
parties this Court came across a decision in the case of Shankarsan Dash
V. Union of India, reported in (1991) 3 SCC 47 and finds, the
Constitution Bench of the Hon'ble Apex Court through paragraph no.7
therein came to observe as follows:-
"7. It is not correct to say that if a number of
vacancies are notified for appointment and adequate
number of candidates are found fit, the successful
candidates acquire an indefeasible right to be appointed
which cannot be legitimately denied. Ordinarily the
notification merely amounts to an invitation to qualified
candidates to apply for recruitment and on their selection
they do not acquire any right to the post. Unless the
relevant recruitment rules so indicate, the State is under
no legal duty to fill up all or any of the vacancies.
However, it does not mean that the State has the licence
of acting in an arbitrary manner. The decision not to fill
up the vacancies has to be taken bona fide for appropriate
reasons. And if the vacancies or any of them are filled up,
the State is bound to respect the comparative merit of the
candidtes, as reflected at the recruitment test, and no
discrimination can be permitted. This correct position has
been consistently followed by this Court, and we do not
find any discordant note in the decisions in State of
Haryana v. Subash Chander Marwaha; Neelima
Shangala v. State of Haryana or Jatinder Kumar v. State
of Punjab."
This Court finds, the above decision through (1991) 3 SCC 47 has
clear application to the case at hand.
(E) Similarly considering the decisions referred to by Mr. M.Ku.
Mishra, learned Senior Advocate appearing on behalf of the Petitioner,
// 23 //
this Court from the decision in the case of Sarojkanta Mohapatra & Ors.
Vs. State of Orissa & Ors. 2015 (II) OLR 367 finds, considering a further
advertisement in the valid period of waitlist including clear vacancies of
particular advertisement, this Court held, the action of the public
authority in the circumstance was arbitrary. This Court in the above
decision taken support of through the case of R.S. Mittal Vs. Union of
India 1995 (1) SCC 444 and in the case of A.P. Aggarwal V.
Government of National Capital Territory of Delhi and Anr. as reported
in AIR (2000) S.C. 205. Both the decisions deprecate the action of the
public authority for ignoring the select list remaining valid and also held,
resorting to fresh selection in the above situation as bad. This Court,
accordingly, in disposal of the case involving Sarojkanta Mohapatra &
Ors. (Supra) directed the public authority involved therein to provide
appointment to the persons already there in the select list against the post
already advertised in such selection process.
(F) This Court taking into account another decision in the case of
Gujurat State Dy. Executive Engineers' Association V. State of Gujarat
And Ors. as reported in 1994 Supp. (2) SCC 591, finds, the Hon'ble
apex Court through the above decision came to decide the period for
which the waiting list can remain operative. In paragraph no.8 therein the
Hon'ble Apex Court held as follows :-
"8.Coming to the next issue, the first question is what is
a waiting list?; can it be treated as a source of recruitment from
which candidates may be drawn as and when necessary?; and
lastly how long can it operate? These are some important
questions which do arise as a result of direction issued by the
High Court. A waiting list prepared in service matters by the
competent authority is a list of eligible and qualified candidates
who in order of merit are placed below the last selected
candidate. How it should operate and what is its nature may be
governed by the rules. Usually it is linked with the selection or
examination for which it is prepared. For instance, if an
// 24 //
examination is held say for selecting 10 candidates for 1990 and
the competent authority prepares a waiting list then it is in
respect of those 10 seats only for which selection or
competition was held. Reason for it is that whenever selection is
held, except where it is for single post, it is normally held by
taking into account not only the number of vacancies existing
on the date when advertisement is issued or applications are
invited but even those which are likely to arise in future within
one year or so due to retirement etc. It is more so where
selections are held regularly by the Commission. Such lists are
prepared either under the rules or even otherwise mainly to
ensure that the working in the office does not suffer if the
selected candidates do not join for one or the other reason or the
next selection or examination is not held soon. A candidate in
the waiting list in the order of merit has a right to claim that he
may be appointed if one or the other selected candidate does not
join. But once the selected candidates join and no vacancy
arises due to resignation etc. or for any other reason within the
period the list is to operate under the rules or within reasonable
period where no specific period is provided then candidate from
the waiting list has no right to claim appointment to any future
vacancy which may arise unless the selection was held for it.
He has no vested right except to the limited extent, indicated
above, or when the appointing authority acts arbitrarily and
makes appointment from the waiting list by picking and
choosing for extraneous reasons."
Through the above decision of the Hon'ble Apex Court, this Court
here observes, when the case taken note hereinabove involves validity of
a waiting list, the case at hand involves there should be a desired step, in
the event one of the selected candidate in particular stream declines to
join and when the next candidate in such stream is also a selected one.
This Court here observes, once a selected panel is drawn up for the
O.M.E.S., the same should be maintained till expiry of the valid period.
22. In the above background of the matter, this Court in disposal of this
application involved while allowing the Petition issues the following
directions :- (1) For the definite vacancies created in Surgery stream
specifically in Un-reserved women category for no showing of interest by
Dr. Sucheta Panigrahi, Dr. Ambuja Satapathy being the next selected
// 25 //
women candidate in terms of the Advertisement No.15 of 2015-16 should
be treated to have been appointed along with all such appointees in terms
of the appointment pursuant to the notification dated 3.11.2016 and
necessary formal order of appointment is directed to be issued in favour
of Dr. Ambuja Satapathy at least within a period of ten days hence. (2)
This Court also directs for placing Dr. Ambuja Satapathy in appropriate
place along with rest persons appointed vide appointment notification
dated 3.11.2016 and her seniority will also be maintained accordingly. (3)
So far as the financial benefit and fitment of the Applicant-Petitioner is
concerned; the same will be made as per the fitment enjoyed by the other
persons pursuant to the appointment notification dated 3.11.2016. (4) So
far as arrear of the Petitioner is concerned; it will be treated notionally.
(5) Result involving the Advertisement No.12 of 2018-19 in Surgery
Speciality Stream, if not declared as yet, the same be declared except in
respect of one post in Un-reserved Surgery stream as inclusion of such
post in the next advertisement was illegal and directed to be filled up as
against the Advertisement No.15 of 2015-16.
23. The WPC(OAC) succeeds. For compelling the Applicant-Petitioner
to bring such litigation to get justice and for her suffering all through, this
Court quantifies the litigation cost to be paid to the Applicant-Petitioner
at Rs.10,000/- (rupees ten thousand) only, which be paid by the Opposite
Party No.1 to the Applicant-Petitioner also at least within a period of ten
days hence.
(Biswanath Rath)
Judge
Orissa High Court, Cuttack.
The 11th day of October, 2022//
Ayaskanta Jena,
Senior Stenographer
