Afr Dr. Sudha Sethy vs State Of Odisha And Others
2023 Latest Caselaw 1766 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                     WPC (OA) No. 2127 of 2019

       An application under Articles 226 and 227 of the
       Constitution of India.
                                 ------------------

AFR    Dr. Sudha Sethy                      ......       Petitioner

                                     -Versus-

       State of Odisha and Others              .......   Opp. Parties

       Advocate(s) appeared in this case:-
       ________________________________________________________

          For Petitioner    :        M/s. Biswabihari Mohanty,
                                     & Mr. L. Samal, Advocates.

         For Opp. Parties :          Mr. A.K. Pattnayak,
                                     Addl. Government Advocate,

                                 Mr. Subir Palit, Sr. Advocate
                                 with Ms. Pami Rath, Advocate
                                 [For O.P. No.7]
       _______________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA

                              JUDGMENT

th 24 February, 2023

SASHIKANTA MISHRA, J.

Feeling aggrieved by the purported non-

consideration of her case for grant of promotion to the

post of Associate Professor in the discipline of Clinical

Hematology in SCB Medical College and Hospital, Cuttack

by the authorities, the petitioner had approached the

erstwhile Odisha Administrative Tribunal, Principal

Bench, Bhubaneswar in O.A. No.2127 of 2019 seeking the

following relief:

"Under the above circumstances, it is humbly prayed that the Original Application may be allowed;

(a) This Hon'ble Tribunal may graciously be pleased to quash the impugned letters vide Memo No. 13825,13827 and 13828 issued on 06.06.2019 by the Health and Family Welfare Department as well as the notice of OPSC dated 11.07.2019 and consequential action taken thereof.

(b) This Hon'ble Tribunal may be pleased to quash the Advertisement No.15/2015-16 so far as the discipline of Clinical Hematology is concerned; and

(c) This Hon'ble Court may further be pleased to pass appropriate orders specifically giving a finding that no post of Asst. Professor other than the post created by letter dated 06.02.2011 as Asst. Professor in the discipline of Clinical Hematology occupied by the present applicant is existing prior to 18.12.2013 besides one post each in the rank of Professor and Associate Professor created and existing prior to 24.03.2008 and necessary direction may be made to Respondent to consider the case of the applicant for promotion to the rank of Associate Professor as per OMES Rules, 2013 which is in vogue.

(d) This Hon'ble Tribunal may be pleased to direct for an inquiry by an appropriate investigating agency into the entire matter and

(e) May pass any other order/orders as would be deemed fit and proper be issued."

Consequent upon abolition of the Tribunal, the said OA

was transferred to this Court and registered as the

present writ application.

2. It is necessary to mention at the outset that

facts relating to the case have been extensively pleaded

and argued by both sides. During pendency of the writ

application however, the main relief sought for by the

petitioner, i.e., promotion to the post of Associate

Professor having been granted by the concerned

authorities, a question was raised as to if any further

cause of action survives for being adjudicated in the case.

To such extent therefore, this Court deems it proper to

only refer to the relevant facts of the case in brief.

3. The case of the petitioner is that pursuant to

advertisement No. 8/2011-12 dated 26.10.2012 issued

by Odisha Public Service Commission (OPSC) and the

selection process conducted thereunder, she was selected

and recommended for appointment as Assistant Professor

on regular basis. Accordingly, by notification dated

04.01.2013, the Government in the Department of Health

and Family Welfare issued order of appointment in her

favor, pursuant to which she joined as such. It is stated

that in the discipline of Hematology of SCB Medical

College and Hospital, Cuttack the number of sanctioned

posts is, Professor- 1, Associate Professor-1 and Assistant

Professor-2. At the time of filing of the OA it was claimed

that one post of Associate Professor created vide

Notification dated 24.03.2008 was lying vacant. As per

Odisha Medical Education Service (Method of Recruitment

and Conditions of Service) Rules, 2013 ( in short '2013

Rules') enacted w.e.f. 20.12.2013 the appointment to the

post of Associate Professor shall be by way of promotion

from amongst Assistant Professors as per Rule-7(1) of the

said Rules. The further requirement for promotion is five

years of teaching experience but in super specialty

subjects like Clinical Hematology, such experience is fixed

at two years. The petitioner claims to have completed

more than eight years of teaching experience in both

specialty and super specialty disciplines besides authoring

10 international and 16 national level publications and as

such, she satisfies the eligibility criteria prescribed under

the Rules. Despite being the only available person in the

feeder grade however, no steps were taken by the

authorities to convene the DPC to fill up the post of

Associate Professor. While the matter stood thus, instead

of holding DPC the Department appointed one Dr. N.C.

Pattnaik as Associate Professor on 27.04.2017 on

contractual basis ignoring the case of the petitioner. The

petitioner therefore, approached the Odisha

Administrative Tribunal in O.A. No.1480 of 2017, which

was disposed of by order dated 12.09.2017 directing the

Government to consider the case of the petitioner for

promotion within three months. Pursuant to such order,

the Government, vide order dated 06.10.2017 held that in

the DPC meeting held on 20.03.2017 under the

Chairmanship of Chief Secretary, Odisha, since it was

decided to give priority to filling up the newly created

posts for the new Medical Colleges for obtaining letter of

permission for first batch admission in the said Colleges,

the DPC for the discipline of Clinical Hematology and

other disciplines was not finalized by the committee and

that the DPC for the said discipline would be held in the

next meeting to be held very shortly and further that the

representation for promotion of the petitioner will be

considered in the next DPC meeting.

While the matter stood thus, the Government

issued corrigendum on 06.06.2019 to the effect that the

adhoc posting of Dr. Rajeeb Nayak (Opp. Party No.7)

against the vacant post of Associate Professor as per

Notification dated 15.07.2013 is to be read as against the

vacant post of Assistant Professor for all purposes. On the

same day, by another letter it was stated that there is one

vacant post of Assistant Professor continuing from

24.03.2008 and therefore, steps were to be taken to

conduct interview to fill up the said post. Again on the

same day by another letter, the Government clarified that

there is one vacant post of Assistant Professor. According

to the petitioner, these communications are entirely

contrary to facts and law and were issued only to

circumvent the order passed by the Apex Court in Civil

Appeal No.6157-6158 of 2015. Since the Apex Court held

that the posts falling vacant prior to 18.12.2013 shall be

filled up in accordance with 2009 Rules and those arising

after such date shall be filled up in accordance with 2013

Rules, the authorities deliberately issued the

communications to show the vacancy in one post of

Assistant Professor as existing from 24.03.2008 onwards.

Thus, the appointment of opposite party No.7 against the

said vacant post despite his ineligibility as per the Rules,

is entirely illegal. Basically on such facts, the petitioner

has claimed the relief as mentioned above.

4. Though multiple counter affidavits have been

filed by the opposite parties refuting the facts averred in

the writ application, it would be relevant to note that this

Court was informed through a memo filed by the State

that in the meantime the petitioner has been promoted to

the post of Associate Professor by order dated 06.07.2022.

Subsequently, the petitioner also brought the said fact on

record by means of an application for amendment. Be it

noted here that the application for amendment has been

rejected as per order passed separately today, but fact

remains that the factum of grant of promotion to the

petitioner during pendency of the writ application is now

on record. The parties were therefore, directed to confine

their submissions with regard to maintainability of the

writ application in view of the development as above.

5. Heard Mr. B.B. Mohanty, learned counsel for

the petitioner; Mr. A.K. Pattnaik, learned Addl.

Government Advocate for opposite party Nos. 1 to 5 and

Mr. S. Palit, learned Senior counsel with Ms. Pami Rath

for opposite party No.7.

6. Mr. A.K. Pattnaik, learned State Counsel

submits that the cause of action for which the OA/ writ

application was filed, no longer survives for adjudication.

The petitioner's grievance was non-consideration of her

case for promotion, which has already been granted by the

authorities. The writ application therefore, deserves to be

dismissed on such score alone.

7. Mr. S. Palit has also made similar

submissions with the addition that the petitioner having

accepted the promotion granted to her during pendency of

the application without any protest, she cannot also

challenge the order of promotion on the ground that the

same should have been granted to her with effect from

2017, which she entitled to do by seeking amendment of

the writ application.

8. Mr. B. B. Mohanty contends that the entire

case of the petitioner is not only non-consideration of her

case for promotion as per assurance given to her by order

dated 06.07.2017 but also the action of the authorities in

falsely presenting the vacancy position in the grade of

Assistant Professor only to favour opposite party No.7.

According to Mr. Mohanty, such action of the authorities

would affect her future promotion prospect and therefore,

a definite cause of action still survives for adjudication

notwithstanding grant of promotion to her in the

meantime.

9. In order to appreciate the rival contentions as

noted above, it would be proper to refer to the original

relief climbed in the writ application which has already

been quoted hereinbefore. Under clause (a) the petitioner

prays to quash the letters under Memo Nos.13825, 13827

and 13828, all dated 06.06.2019 issued by the

Department as well as the notice dated 11.07.2019 issued

by OPSC. From a perusal of the aforesaid communications

and notice enclosed as Annexure 28 series, it is evident

that the Government clarified that firstly, Dr. Rajeeb

Nayak (opposite party No.7) was appointed against the

vacant post of Assistant Professor and secondly, it was

clarified that one post of Assistant Professor was lying

vacant since 24.03.2008. The impugned notice dated

11.07.2019 issued by OPSC was for holding interview to

fill up the post of Assistant Professor. In this regard it is to

be noted that the petitioner was appointed as an Assistant

Professor substantively on 04.01.2013. Therefore, it is not

understood as to how these communications can affect

her adversely as is being claimed. Same is the case with

relief claimed as at clause (b) i.e., to quash the

advertisement No. 15/2015-16 (Annexure-7). The said

advertisement, as is evident, is to fill up the vacant post of

Assistant Professor. The petitioner is no way affected by

the said advertisement in view of her appointment as

Assistant Professor w.e.f. 04.01.2013 on regular basis.

10. Reference to the above has been made

keeping in view the submission made by learned counsel

for the petitioner that this would affect her future

promotion. Undoubtedly, as per the Rules, the next

promotional post for the petitioner at the time of filing the

O.A./Writ Petition was that of Associate Professor, to

which she has already been promoted. Therefore, the

submissions made on behalf of the petitioner must be

understood in this context. This takes the Court to the

relief claimed at clause (c), which is, (i) to give a finding

that no post of Assistant Professor other than the one

created by letter dated 06.02.2011 existed prior to

18.12.2013 and (ii) to direct the authorities to consider

the case of the petitioner for promotion to the rank of

Associate Professor as per Rules 2013. The petitioner, as

already stated, was promoted to the post of Associate

Professor by order dated 06.07.2022, copy of which is

enclosed as Annexure-31/A series.

Having regard to the above, the purported

grievance of the petitioner as regards the date of vacancy

of each of the two posts of Assistant Professor occupied by

herself and opposite party No.7 becomes entirely

academic. It is not as if opposite party No.7 has been

promoted as Associate Professor ahead of her.

So even assuming for the sake of argument

only that the post of Assistant Professor which the

petitioner had occupied since 04.01.2013 was created by

letter dated 06.02.2011 and that the one occupied by

opposite party No.7 was against the vacancy existing since

24.03.2008, it would now hardly make any difference.

Since, it is the petitioner and not opposite party no.7 who

has been promoted to the next level. This would also not

be material for further promotion to the level of Professor

as the date of creation of posts at the base level would

have hardly any relevance at that time. As regards the

date of appointment also the petitioner was appointed on

04.01.2013 on regular basis, while opposite party No.7

was appointed on 15.07.2013 on contractual basis and on

24.07.2019 on a regular basis. Thus, there is no way by

which the petitioner can be justifiedly aggrieved.

Presently, the factual position is, one available post of

Associate Professor has been filled up by the petitioner.

Therefore, the main relief claimed by the petitioner has

been granted by the authorities.

11. Thus, from a conspectus of the analysis and

discussion made hereinbefore, this Court is of the

considered view that the petitioner having been granted

promotion to the post of Associate Professor during

pendency of the writ application, no cause of action

survives for adjudication in the present case.

12. Resultantly, the writ petition is dismissed.

...............................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 24th February, 2023/ A.K. Rana