Orissa High Court
Dr. Sthitapragyan Mishra vs State Of Odisha & Ors on 31 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.7956 of 2022
(In the matter of an application under Articles 226 and 227 of
the Constitution of India, 1950).
Dr. Sthitapragyan Mishra .... Petitioner
-versus-
State of Odisha & Ors. .... Opp. Parties
Advocates appeared in the case:
For Petitioner : Mr. Bishnu Prasad Pradhan,
Adv.
-versus-
For Opp. Parties : Mr. G.R. Mohapatra, ASC
(for O.P.1)
Mr. R.C. Mohanty, Adv.
(for O.Ps.2 & 3)
Mr. K.K. Swain, Adv.
(for O.P.4)
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-11.10.2022
DATE OF JUDGMENT:-31.01.2023
Dr. S.K. Panigrahi, J.
1. The Petitioner in the aforementioned Writ Petition has
challenged the order of posting of contractual Asst. Professor
(Biochemistry) dated 22.03.2022 issued by the Director of
pg. 1
Medical Education & Training, Odisha, (DMET) and final
merit list of Assistant Professor (Biochemistry) dated
21.03.2022, inter alia, on the ground that the Opp. Party No.4 is
not having one year teaching experience as TUTOR and
therefore she is not at all eligible to hold the post of Asst.
Professor (Biochemistry).
I. FACTUAL MATRIX OF THE CASE:
2. Bereft of unnecessary details, the brief facts giving rise to the
present writ application is that the present petitioner is
serving as Tutor at SCB Medical College & Hospital, Cuttack.
Opp. Party No.2 issued an advertisement dated 13.12.2021 for
filling of vacancies for the posts of Assistant Professor in
Government Medical colleges of the State. Eligible candidates
were invited to attend the walk-in interview for the post of
Assistant Professor in all Govt. medical colleges of the State
on contractual/deputation basis in view of MCI/NMC
urgency. Pursuant to Advertisement dated 13.12.2021 the
present petitioner applied for the post of Asst. Professor
(Biochemistry). Similarly, four other applicants submitted
their applications for the post of Asst. Professor
(Biochemistry).
3. As per the eligibility criteria fixed by the Opp. Party No.2 in
the advertisement dated 13.12.2021, a candidate must be a
citizen of India and he must possessed MD/MS/ DNB/DM/M
pg. 2
Ch or equivalent degree in the concerned discipline from any
MCI/NMC approved recognized permitted medical colleges
or any other academic qualification with such additional
teaching experience in the subject as may prescribed by the
MCI /NMC as per Teachers Eligibility Qualifications 1998
(latest amendments) of MCI / NMC, in force and OMES Rules,
2021. Candidates having DM / M Ch/ DNB / equivalent to
DM/M Ch, are not required any teaching experience. Further,
the candidates having M Sc (Medical Subjects) in Anatomy,
Physiology, Biochemistry, subjects will be considered if
sufficient candidate with PG decree / DNB are not available
and subject to the limitations as may be prescribed by
MCI/NMC from time to time. For the post of Asst. Professor, a
candidate must have possessed one year teaching experience
as per the Minimum Qualifications for Teachers in Medical
Institutions (Amendment) Regulations, 2019. In view of
Regulations, 2019 issued by the Medical Council of India, one
year teaching experience as SR/TUTOR in concerned subject is
mandatory. As per eligibility criteria fixed in the
Advertisement dated 13.12.2021, applicant must be a citizen
of India. He must possess MD/MS/ DNB / DM / M Ch or
equivalent degree in the concerned discipline. Further also he
must one year teaching experience in the concerned subject.
All candidates / Applicants were directed to submit the
pg. 3
documents with regard to "Teaching Experience" certificate
from the competent authority. Teaching experience of one
year is mandatory for the post of Asst. Professor.
4. After submissions of applications for the post of Asst.
Professor (Biochemistry), scrutiny was made. After scrutiny,
draft provisional merit list was prepared and the same was
published on 24.01.2022. From the said draft provisional merit
list dated 24.01.2022, it is evident that there were all together
five candidates for the post of Asst. Professor (Biochemistry).
Out of five candidates, present petitioner had secured total
69.22 marks and her serial Number was at serial No.1 and the
name of Opp. Party No.4 was at Serial No-5 even though she
had secured total 72.37 marks. Selection Committee had
observed in the remark column of serial No-5 that she is not
eligible because she is in the post PG Bond. Though the Serial
No-5 (Opp. Party No.4) had secured mark i.e. 72.37 marks but
she was found not eligible as she is in PG Bond. Amongst rest
four of the candidates, petitioner had secured highest mark
i.e. 69.22 marks.
5. As per the "procedure of selection" fixed in the advertisement
dated 13.12.2021, selection will be strictly on the basis of merit
list prepared on basis of career marks. Since the petitioner had
secured highest marks amongst four candidates, she was
pg. 4
hopeful that she would be selected as Asst. Professor
(Biochemistry) by the Selection Committee.
6. The Opp. Party No.2 found that some candidates have
procured Experience certificates from the Govt. medical
colleges and have furnished the same for selection of Asst.
Professor pursuant to Advertisement dated 13.12.2021.
Therefore, Opp. Party No.2 relying Government Resolution
No-11943/H dated 24.01.2021 and immediately wrote a letter
to the Dean and Principals of all three Government Medical
colleges indicating that "as the post PG Bond service period is
two years, a certificate for a part period of the Bond service
shall not be issued. Further, it was indicated that as per Govt.
Resolution No-11943/ H dated 21.04.2021 and notified that
post PG Bond Doctors in specialty are entitled for experience
certificate as Sr. Resident / Tutors as the case may be for a
period of one year in their respective specialties after
completion of two years Bond period. Accordingly, Opp.
Party No.2 requested for revocation of experience certificate
issued in favour of Post PG Bond service Doctors.
7. While matter stood thus, the Opp. Party No.3 instead of
issuing final merit list, had issued another provisional merit
list on 15.03.2022. In the said 2nd provisional merit list dated
15.03.2022, the Sl. No.5 candidate who was placed in the 1st
provisional merit list was declared as not eligible, her name
pg. 5
was declared as Sl. No.1. Name of the petitioner was at Sl.
No.2. All the candidates were requested to go through the
provisional merit list dated 15.03.2022 and submit their
grievance (if any on or before 18.03.2022 before 5 P.M. by
email). Petitioner was surprised and shocked to ascertain that
the Opp. Party No.4 who was declared as not eligible, has
become Sl. No.1. Finding no other alternatives, present
petitioner immediately submitted her grievance before the
Opp. Party No.2 on 17.03.2022 by e-mail and requested him to
consider her grievance petition in accordance with law.
8. A detailed grievance petition was submitted before the Opp.
Party No.2 on 17.03.2022 however, the authority without
considering the same has issued final merit list on 21.03.2022.
From the final merit list dated 21.03.2022, it is evident that the
2nd provisional merit list and final merit list are the same.
There is no change in Final Merit List. On being aggrieved of
the same, the petitioner has filed this writ petition.
II. PETITIONER'S SUBMISSIONS:
9. Learned counsel for the Petitioner earnestly made the
following submissions in support of her contentions:
10. The approach of the Opp. Party No.2 is not only illegal but
also contrary to settle position of law. Law is well settled that
submission of grievance petition is not an empty formality.
Once grievance petition is filed, the competent authority
pg. 6
should have dealt with all the points raised in the said
grievance petition before publication of the final merit list. In
the present case at hand, the petitioner had specifically
indicated in her grievance petition that the Opp. Party No.4 is
not at all eligible for the post of Asst. Professor due to lack of
one year teaching experience. Admittedly, the Opp. Party
No.4 is continuing as Tutor in post PG Bond and has not
completed two years. Therefore, she is not entitled to get one
year teaching experience certificate as SR/TUTOR. As per
Regulation, 2019, a candidate must have one year teaching
experience for the post of Asst. Professor. Prior to the present
selection, the candidates who were under post PG Bond,
experience certificate were not being issued to them before
completion of two years. In the present case, during scrutiny
the selection committee relying upon the Govt. Resolution
dated 21.04.2021, found that the Opp. Party No.4 is not
eligible as she is continuing in post PG Bond. Reasons best
known to the same authority, under what circumstances the
Opp. Party No.4 was declared as suitable/eligible for the post
of Asst. Professor. Opp. Party Nos.2 and 3 have ignored the
Government Resolution dated 21.04.2021 and have illegally
selected the Opp. Party No.4 for the post of Asst. professor.
11. Furthermore, only to accommodate the Opp. Party No.4, the
DMET, Odisha (Opp. Party No-2) has issued Notice on
pg. 7
17.03.2022 indicating therein that the post PG Bond service of
two years shall be counted towards the teaching experience of
two years as SR. Though the said notice was issued by the
Opp. Party No.2 on 17.03.2022, but the Opp. Party No.3 much
prior to said notice has placed the name of Opp. party No.4 as
at Serial No-1 in the second provisional merit list dated
15.03.2022. In the first provisional merit list, it was indicated
that the Opp. Party No.4 is not eligible but in the second
provisional merit list, the name of the Opp. party No.4 was at
Serial No.1. Nothing was indicated in the remark column of
second provisional list dtd.15.03.2022. Just only to
accommodate the Opp. Party No.4, notice dated 17.03.2022
was issued. On this ground alone publication of 2nd
provisional merit list as well as final merit list are not
sustainable in the eyes of law. Further it is submitted that
prior to the notice dated 17.03.2022 all the post PG Bond
Doctors before completion of two years were not eligible to
get one year experience certificate. For the first time and just
only to debar the petitioner from selection process of Asst.
Professor, the DMET, Odisha (Opp. Party No.2) has issued
Notice on 17.03.2022 indicating therein that post PG Bond
candidates are eligible to get teaching experience of two years
as SR. Such approach of the Opp. Party No.2 is not only illegal
but also malafide and contrary to law.
pg. 8
12. The law is well settled that Rule of game cannot be changed
after commencement of the game. In the present case, there
was no provision for issuance of one year experience
certificate before completion of post PG Bond period.
Advertisement was issued on 13.12.2021. By the time
advertisement was issued, there was no Govt. circular/
Notification/ Resolution for issuance of experience certificate
before completion of two years as post PG Bond Doctors. For
the first time on 17.03.2022, the DMET, Odisha (Opp. Party
No.2), just only to accommodate the Opp. Party No.4 has
issued Notice indicating that post PG Bond Doctors are
eligible to get two years teaching experience as SR. From the
aforesaid facts, it is very clear that the Opp. Party No.2 has
bypassed all the Government Notification / Circular /
Resolution and has the Opp. Party No.4 as an Asst. Professor
who is not at all eligible for the said post. That apart, Notice
dated 17.03.2022 is prospective in nature and said notice is not
applicable to the present selection. Therefore, procedure
adopted by the Opp. Parties are totally illegal and contrary to
settle position of law.
13. Moreover, no opportunity of personal hearing has been
provided to the petitioner before issuance of final merit list.
Admittedly, present petitioner submitted a grievance petition
on 17.03.2022 within the time limit fixed by the Opp. Party
pg. 9
No.2. Without considering the grievance petition
dtd.17.03.2022 in its proper prospective and without giving an
opportunity of personal hearing to the petitioner, has issued
the order of posting of Asst. Professor (Biochemistry) on
22.03.2022. After publication of final merit list, the present
petitioner had approached the Opp. Party No.2 to reconsider
her case once again in terms of Government Notification
dated 21.04.2021. However, the Opp. Party No.2 without
considering the same has hurriedly issued the order of
posting dated 22.03.2021. In such view of the matter
procedure adopted by the Opp. Party No.2 in selecting the
Opp. Party No.4 as Asst. Professor is totally illegal, arbitrary,
and malafide in the eyes of law.
III. SUBMISSIONS OF OPPOSITE PARTY NO.4:
14. Per contra, learned counsel for the Opp. Party No.4 intently
made the following submissions:
15. The writ application filed by the petitioner is not maintainable
in this as she had already participated in the selection process
and when she was not selected she had filed this writ
application challenging the selection and appointment of
opposite party No.4, which is not permissible in law as per
the decision of the Apex Court. Therefore, on that score alone
the present writ application filed by the petitioner is not
maintainable and is liable to be dismissed. Besides that since
pg. 10
the petitioner has suppressed material facts and has not
approached this Court with clean hands she is not entitled to
get any relief.
16. The opposite party No.4 has fulfilled the eligibility conditions
enumerated in the said advertisement dated 13.12.2021 and as
she was serving as a Tutor being a direct candidate in the
Department of Biochemistry in S.C.B. Medical College and
Hospital, Cuttack with effect from 03.11.2020, she produced
experience certificate for the purpose of applying for the post
of Assistant Professor (Biochemistry).
17. When the provisional merit list was published on 24.01.2022,
the opposite party No.4 stood at Sl. No.1 in the said selection
test secured 72.37 marks whereas the petitioner has secured
69.22 marks. Due to post P.G. Bond the opposite party No.4
was not found eligible to be appointed as an Assistant
Professor (Biochemistry) which is evident from the remarks
made in the extreme right hand column of the provisional
merit list. The opposite party No.4 being aggrieved by such
remarks, made a representation through online wherein she
relied upon the resolution dated 09.12.2021 issued by the
Government of Odisha, Health and Family Welfare
Department which was in vogue at the relevant time as the
said resolution dated 09.12.2021 has superseded all
resolutions/ orders/ executive instructions/guidelines issued
pg. 11
for the purpose. The said resolution dated 09.12.2021 was very
much in force at the time of issuance of the advertisement
which was made on 13.12.2021. As per the said resolution
dated 09.12.2021 more particularly as per Clause-1 (f) wherein
it has been categorically provided that participation in
selection process for residency / contractual / regular faculties
for Medical Colleges inside the State of Odisha under the
State Government or PSU shall be allowed and the certificates
shall be released. Clause-1 (g) of the resolution dated
09.12.2021. Further, it provides that any service or training
after PG (Senior Resident / Tutor / Faculty in Medical Colleges
/ Medical Officer in PSUs or other departments) inside State
under the State Government shall be counted towards post
PG Bond service. Since the aforesaid resolution dated
09.12.2021 was subsisting at the time of issuance of the
advertisement dated 13.12.2021, the post P.G. Bond Service of
the opposite party No.4 has been counted towards service and
for that purpose Experience Certificate was issued in her
favour on 23.12.2021 by the Dean and Principal of S.C.B.
Medical College and Hospital, Cuttack, which is evident from
Annexure-C/4.
18. After notification of second provisional merit list, the
Director, Medical Education and Training, Odisha,
Bhubaneswar invited the objections from the candidates.
pg. 12
Accordingly, the present petitioner filed her objection on
17.03.2022 under Annexure-6 of writ application. After going
through the objections/grievances received to the provisional
merit list dated 15.03.2022, the Grievances were examined by
the Committee. It is relevant to mention here that the
objections/ grievances petition dated 17.03.2022 of the
petitioner was also examined by the Committee and at last the
final merit list was published on 21.03.2022, wherein the
present Opp. Party No.4 stood first in Biochemistry
Department as total career mark and on the other hand the
name of 5 she secured 72.37% present petitioner was found
place at Serial No.2 in the said final merit list as she secured
69.22% of marks which is less percentage of mark than the
Opp. Party No.4. Accordingly the appointment letter was
issued on 22.03.2022 in favour of the present Opp. Party No.4
along with other selected candidates of different
Departments.
19. Admittedly, when the opposite party No.4 stood first in the
selection test having secured 72.37 marks and in terms of
resolution dated 09.12.2021 issued by the Government of
Odisha in Health and Family Welfare Department, her post
P.G. Bond service was taken into account, there is no illegality
in her selection and rightly she was selected and given
appointment as Assistant Professor (Biochemistry) in S.C.B.
pg. 13
Medical College and Hospital, Cuttack and she has already
joined the said post on 25.03.2022.
IV. COURT'S REASONING AND ANALYSIS:
20. Heard the parties and after perusing the documents it is clear
that the entire case of the Opp. Party No.4 is that her P.G.
Bond Service period has been counted towards teaching
experience as S.R. and this fact has been disputed by the
petitioner.
21. The Opp. Party No.4 joined in her Post P.G. Bond Service as
Tutor in the Department of Biochemistry, S.C.B. Medical
College & Hospital, Cuttack on 03.11.2020. As per
Government Resolution dated 09.12.2021 (Annexure-E/4),
post PG Bond service is for two years.
22. Clause 1 (c) of Government Notification dated 09.12.2021
provides that after completion of PG, candidates shall have to
serve in any health institution of the State for two years.
Clause 1 (d) provides that after completion of two years of
service as per bond provision, the direct as well as in service
doctors will be released from Bond condition. Clause (1) of
said Notification provides that candidates leaving the course
before completion of the course leading to lapse of a seat shall
be liable for monetary penalty of Rs,10 lakhs and the amount
of stipend / salary received by the date of such leaving the
course. Clause-2 (d) of the said Notification provides that
pg. 14
after completion of course the copy of Bond shall be
transmitted to DHS and DMET, Odisha for reference during
placement.
23. From the aforesaid clauses, it is very clear that the period of
post PG Bond service is two years. Resolution dated
09.12.2021 does not suggest about issuance of teaching
experience as S.R. However, as rightly contended by the
petitioner, there is no circular or guidelines for issuance of
Teaching Experience Certificate before completion of two
years PG Bond service. The Opp. Party No.4 is relying upon
clause 1 (f) & 1 (g) of Govt. Resolution dated 09.12.2021. She
has contended that the PG Bond service period should be
counted towards teaching experience. As she has not
completed two years in post PG Bond Service period, she is
not entitled to get teaching experience as S.R for two years or
one year.
24. The Opp. Party No.4 is relying upon certificate dated
23.12.2021 issued by the Dean & Principal, S.C.B., Medical
College & Hospital, Cuttack. The petitioner has contended
that Certificate dated 23.12.2021 issued by the Dean -Cum-
Principal, S.C.B., Medical College is a continuity certificate
and said certificate cannot be treated as Teaching Experience
Certificate as S.R. No.4 joined as Tutor in the Department of
Biochemistry, S.C.B, Medical College & Hospital, Cuttack on
pg. 15
03.11.2020. A bare reading of certificate dated 23.12.2021
reveals that Opp. Party No.4 was working as Tutor since
dated 03.11.2020. Therefore, the said certificate cannot be
considered and treated as Teaching Experience Certificate as
S.R.
25. Additionally, the said certificate was issued for the purpose of
applying for the post of Asst. Professor in respect of OPSC
Advertisement No-19/2021-22. Teaching Experience
Certificate has not been issued by the Dean & Principal S.C.B
Medical College & Hospital, Cuttack for the purpose of
applying for the post of Asst. Professor in respect of
Advertisement dated 13.12.2021 which is mandatory as per
Clause-6 (f) (ix) of the Advertisement. In the present case at
hand, the Opp. Party No.4 has not submitted Teaching
Experience Certificate as SR interns of Clause 6 (f) (ix) of the
Advertisement.
26. In the present case at hand, advertisement for selection to the
post of Asst. Professor was issued on 13.12.2021. During the
midst of selection, the Director Medical Education & Training,
Odisha, has issued notice dated 17.03.2022 indicating that
Govt. Notification dated 09.12.2021 shall be applicable
retrospectively from the year 2017. Further it was indicated
that the post PG Bond service of two years shall be counted
towards the teaching experience of two years as S.R. Opp.
pg. 16
Party Nos.1 & 2 have taken specific stand that in terms of
Resolution dated 09.12.2021 and Notice dated 17.03.2022,
Opp. Party No.4 has been selected as Asst. Professor
(Biochemistry).
27. The Notice dated 17.03.2022 issued by the DMET reveals that
after completion of Post PG Bond service of two years,
candidates are entitled to get teaching experience of two years
as S.R. Neither notice dated 17.03.2022 nor Government
Resolution dated 09.12.2021 indicate that before completion of
two years in post PG Bond service, candidates are entitled to
get Teaching Experience Certificate as S.R. However, this kind
of notice in the midst of the selection process is not
permissible.
28. It has been well established by a catena of judgements that it
was not permissible for the employer to change the rule of the
game after the selection process is commenced even if the
employer is entitled for prescribing a higher qualification or a
stringent test than prescribed under the rules. The Supreme
Court has considered the issue involved herein in great detail
in Ramesh Kumar v. High Court of Delhi & Anr.1, and held as
under:
"11. In Shri Durgacharan Misra v. State of
Orissa & Ors.2, this Court considered the Orissa
AIR 2010 SC 3714
AIR1987 SC 2267
pg. 17
Judicial Service Rules which did not provide for
prescribing the minimum cut-off marks in interview
for the purpose of selection. This Court held that in
absence of the enabling provision for fixation of
minimum marks in interview would amount to
amending the Rules itself. While deciding the said
case, the Court placed reliance upon its earlier
judgments in B.S. Yadav & Ors. v. State of
Haryana & Ors.3, P.K. Ramachandra Iyer &
Ors. v. Union of India & Ors.4 and Umesh
Chandra Shukla v. Union of India & Ors.5
wherein it had been held that there was no "inherent
jurisdiction" of the Selection Committee/Authority
to lay down such norms for selection in addition to
the procedure prescribed by the Rules. Selection is to
be made giving strict adherence to the statutory
provisions and if such power i.e. "inherent
jurisdiction" is claimed, it has to be explicit and
cannot be read by necessary implication for the
obvious reason that such deviation from the Rules is
likely to cause irreparable and irreversible harm.
12. Similarly, in K. Manjusree v. State of A.P.6,
this Court held that selection criteria has to be
adopted and declared at the time of commencement
of the recruitment process. The rules of the game
cannot be changed after the game is over. The
competent authority, if the statutory rules do not
restrain, is fully competent to prescribe the
minimum qualifying marks for written examination
as well as for interview. But such prescription must
be done at the time of initiation of selection process.
AIR 1981 SC 561
AIR 1984 SC 541
AIR 1985 SC 1351
AIR 2008 SC 1470
pg. 18
Change of criteria of selection in the midst of
selection process is not permissible.
13. Thus, the law on the issue can be summarised to
the effect that in case the statutory rules prescribe a
particular mode of selection, it has to be given strict
adherence accordingly. In case, no procedure is
prescribed by the rules and there is no other
impediment in law, the competent authority while
laying down the norms for selection may prescribe
for the tests and further specify the minimum
benchmarks for written test as well as for viva voce."
29. In Himani Malhotra v. High Court of Delhi7, the Supreme
Court has held that it was not permissible for the employer to
change the criteria of selection in the midst of selection
process. The Supreme Court held as follows:
"9. From the proposition of law laid down by this
Court in the above mentioned case it is evident that
previous procedure was not to have any minimum
marks for vive-voce. Therefore, prescribing
minimum marks for vive-voce was not permissible at
all after written test was conducted. There is no
manner of doubt that the authority making rules
regulating the selection can prescribe by rules the
minimum marks both for written examination and
vive-voce, but if minimum marks are not prescribed
for vive-voce before the commencement of selection
process, the authority concerned, cannot either
during the selection process or after the selection
process add an additional requirement/qualification
that the candidate should also secure minimum
marks in the interview. Therefore, this Court is of
AIR 2008 SC 2103
pg. 19
the opinion that prescription of minimum marks by
the respondent at viva-voce, test was illegal."
30. In light of the aforesaid discussion and having regard to the
present position of law, this Court is of the opinion that order
of posting of contractual Asst. Professor (Biochemistry)
dtd.22.03.2022 issued by the Director of Medical Education &
Training, Odisha, (DMET) and final merit list of Assistant
Professor (Biochemistry) dated 21.03.2022 should be quashed.
This Writ Petition is hereby allowed.
31. The Writ Petition is disposed of being allowed.
( Dr. S.K. Panigrahi )
Judge
Orissa High Court, Cuttack,
Dated the 31st Jan., 2023/B. Jhankar
pg. 20
