Dr. Tapa Prakash Behera And vs State Of Odisha And Another
2023 Latest Caselaw 2280 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                           W.P.(C) No.6055 of 2023

        (This is an application under Article 226 and 227 of the
     Constitution of India)


       Dr. Tapa Prakash Behera and             ....            Petitioners
       others
                                -versus-

       State of Odisha and another             ....      Opposite Parties

           For Petitioners        :     M/s. B.S. Tripathy-1, A. Tripathy
                                                           and A. Sahoo

           For Opp. Parties       :                    Mr. R.N. Mishra,
                                           learned Addl. Govt. Advocate


                                      CORAM:

                    JUSTICE A.K. MOHAPATRA
                                 JUDGMENT

Date of hearing : 17.03.2023 | Date of Judgment : 21.03.2023

A.K. Mohapatra, J.

1. By filing the present writ application, the petitioners, who are Post

P.G. bond doctors in different disciplines and have been posted as Senior

Residents at SCB Medical College and Hospital, Cuttack. The Petitioner

Nos.1 to 8, who are Post P.G. doctors of 2018-2021 batch and after

completion of their Post Graduation have been posted in their respective

disciplines of Pathology, General Medicines, O&G, Psychiatric, // 2 //

Biochemistry, Radiodiagnosis & ENT at SCBMCH, Cuttack for the 2nd

year up to 30.06.2023 by Order No.16498 dated 27.07.2022. Pursuant to

the aforesaid order, the Petitioner Nos.1 to 8, have joined in their

respective posts by 30.07.2022 and have been continuing as such till

date. So far Petitioner Nos.9 to 14 are concerned, they are Post P.G.

Doctors of 2019-2022 batch and after successfully completing their Post

Graduation, have been posted in their respective disciplines at SCBMCH,

Cuttack for the 1st year up to 30.06.2023 by Order No.16503 dated

27.07.2022. Pursuant to the aforesaid order dated 27.07.2022, they have

joined in their respective posts by 30.07.2022 and have been continuing

as such till date.

3. Government of Odisha, Health and Family Welfare Department

through its Resolution No.3418 dated 03.02.2017 introduced a Policy for

execution of agreement in the shape of Bond with the objective to retain

the pass out Doctors(PG pass out Doctor) and to utilize their services in

the larger interest of the people of the State. As per the said bond

condition, such P.G. pass out doctors are required to execute bond with

an undertaking supported by an affidavit to serve under the Government

of Odisha for two years immediately after completion of P.G.

In view of the policy decision of the Government with regard to

accommodating P.G. pass out Doctors to strengthen Trauma Care // 3 //

Facilities in the State, a Notification No.25795 dated 16.10.2019 was

published and in which, it was decided that those P.G. pass out Doctors

shall be deployed for a period of two years as per bond condition by the

Government by creating Additional Senior Residents or Tutor posts in

Government Medical Colleges on rotation basis for a period of one year.

Furthermore, for such experiences in the concerned discipline, they are

entitled receive experience certificates as Senior Residents which is to be

issued by the Dean and Principal of the Medical/Dental Colleges where

they have worked.

4. While the petitioners were continuing to discharge their duties as

Senior Residents for the 1st year on rotation, the Opposite Party issued

Notification dated 16.12.2022 communicating the decision of the

Government for placement of Post PG Doctors to fulfill their Bond

Conditions on counseling basis. While this was so, the Director, ME&T

without resorting to counseling procedure and ignoring its own decision

which was communicated under Annexure-5, i.e. Order No.3196 dated

24.02.2023 decided with an undue haste to deploy the petitioners of

2018-21 batch and 2019-22 batch at GMCH, Kalahandi. Furthermore, it

has been pleaded in the writ application that notwithstanding the order

dated 24.02.2023, the deployment of the petitioner vide Order dated // 4 //

24.02.2023 has not been given effect to so far and the petitioners are

continuing at their present place of posting.

5. It has been stated in the writ application by the petitioners that the

Opposite Parties while passing the impugned order under Annexure-5

have completely ignored the policy decision under Annexures-1, 2 and 4.

Moreover, the Opposite Parties are well aware of the fact that the

petitioners are continuing in their 2nd year and 1st year rotation of Post

P.G. Bond Doctors and as such, they are likely to continue till 30.06.2023

as per Annexures-3 and 4, yet the aforesaid impugned order was passed

by the Opposite Parties which has caused prejudice and inconvenience to

the petitioners. Therefore, it has also been pleaded that the impugned

order under Annexure-6, so far it relates to the petitioners, is liable to be

quashed and the petitioners be permitted to continue at their present place

of posting till 30.06.2023.

6. Mr. Tripathy, learned counsel appearing for the petitioners

submitted that the impugned orders are illegal, arbitrary and the same are

outcome of highhandedness of the Opposite Parties-authorities. He

further contended that vide resolution dated 03.02.2017 under Annexure-

1, the State Government prepared and published a guideline by taking a

policy decision to the effect that after completion of the P.G. Course in

any Government Medical Colleges, the passed out P.G. Doctors from // 5 //

such Government Colleges have to serve in any health institution of the

State for two years. It has also been stipulated in the bond that after

completion of two years of service as per bond provision, the direct as

well as in-service doctors will be released from the bond condition. He

further contended that the impugned order dated 24.02.2023 under

Annexure-6 is nothing but a transfer order in the garb of deployment and

that the same is not permissible under the law, and moreover, as in the

event of transfer the petitioners are to get additional remuneration of

Rs.10,000/- and to avoid payment of such remuneration order at

Annexure-6 has been passed. He also submitted that the impugned order

under Annexure-6 is also contrary to the policy decision of the

Government under Annexures-1, 3 and 4.

7. Learned counsel for the petitioners further referring to the

resolution dated 16.10.2019 under Annexure-2 submitted that the

candidates after successful completion of P.G. study from the year 2020

were to be deployed in Medical Colleges as in a Specialist in the

periphery hospital of the State on rotation basis for a period of one year

each in Medical College and periphery. By drawing attention of this

Court to Annexure-2, he further contended that the DMET, Odisha

prepared a list of such candidates preferably in the month of July or

August when majority of P.G. students complete their P.G. Course with // 6 //

the help of Post P.G. placement committee. Similarly, by referring to

order dated 27.07.2022 under Annexure-3, learned counsel for the

petitioners also argued that the petitioners were deployed/posted to the

places/institution mentioned against the name of each one in the list till

30.06.2023 as per the condition of the bond and pursuant to the

resolution dated 16.10.2019 under Annexure-2. Accordingly, the

petitioners joined in duty by 30.07.2022. However, before completion of

one year period, the impugned order under Annexure-6 was passed on

24.02.2023 by deploying the petitioners as Senior Residents at GMCH,

Kalahandi for a period of one year. He further submitted that the

impugned order under Annexure-6 has been passed in violation of

Annexures-1, 2 and 4, as such the same is unsustainable in law.

8. Mr. Tripathy, learned counsel for the petitioner additionally

submitted that vide notification dated 16.12.2022 under Annexure-5, an

attempt has been made by the Government to unilaterally change bond

condition. He further submitted that vide notification dated 16.12.2022,

the Government took a policy decision with regard to principles to be

adopted for placement of Post P.G. Bond doctors to fulfill their bond

condition. As per the said policy decision, the placement of the Post PG

Bond doctors shall be made on counseling basis by taking into

consideration their needs. He further argued that while the order passing // 7 //

the impugned order under Annexure-6, the Opposite Parties have not

followed the policy decision vide notification dated 16.12.2022 under

Annexure-5. It was also alleged that before passing the

transfer/deployment order under Annexure-6, the Opposite Parties have

not taken resort to counseling process as has been prescribed in the

notification under Annexure-5. In such view of the matter, learned

counsel for the petitioners would further argue that since the impugned

order under Annexure-6 has been passed in violation of the Policy

decision under Annexure-5, therefore, the deployment / transfer order

under Annexure-6 is liable to be quashed as the same is unsustainable in

law.

9. The present writ petition was listed for admission and interim

order on 06.03.2023. After hearing the learned counsel for the petitioners

as well as learned Additional Government Advocate for the State, this

Court as an interim measure in I.A. No.2648 of 2023, directed that the

petitioners shall not be relived from their present place of posting.

Further, the petitioners, who have already been relieved may be allowed

to continue in their present place of posting until further orders.

Thereafter, the learned Additional Government Advocate for the State

has filed a counter affidavit along with an Interlocutory Application for

vacation of interim order dated 06.03.2023. Since the counter affidavit // 8 //

has been filed, this Court thought it proper to take up the matter for final

hearing without wasting time in the hearing of the Interlocutory

Application for vacation of interim order filed by the learned Additional

Government Advocate.

10. In the counter affidavit filed on behalf of the Opposite Parties, it

has been stated that considering the short point involved in the present

writ petition, instead of giving reply para-wise, a general counter

affidavit has been filed answering the principal issue involved in the

present lis. While justifying the order passed by the Opposite parties

under Annexure-6, the counter affidavit narrates the background and

necessity of passing an order under Annexure-6. It has been stated in the

counter affidavit that the Government of Odisha in the Health and Family

Welfare Department in order to further boost the health care

infrastructure in the State has decided to establish a Government Medical

College and Hospital, Bhawanipatna, Kalahandi (in short "GMCH").

Pursuant to the aforesaid policy decision as well as in furtherance of the

"Minimum Requirements for Annual MBBS Admissions Regulations,

2020", the Government of Odisha vide order dated 14.07.2021 granted

sanction for the creation of requisite number of posts of Professor,

Associate Professor, Assistant Professor, Tutors and Senior Residents

etc. in various disciplines in the GMCH, Bhawanipatna, Kalahandi.

// 9 //

Thereafter, the State Government through Directorate of Medical

Education and Training, Odisha (in short "the DMET") approached the

National Medical Commission (in short "the NMC") on 08.08.2022 for

grant of "Letter of Permission" to open a Medical College with 100

medical seats for Kalahandi for the academic year 2023-24. Pursuant to

the aforesaid request, the NMC, had conducted an inspection on

14.02.2023 and after conducting such inspection vide letter dated

21.02.2023 addressed to the Dean/Principal, GMCH, Bhawanipatna,

Kalahandi, they have pointed out certain deficiencies. One of the

deficiencies as pointed out by the NMC is "84% deficiency in Resident

Doctors". The NMC further requested to submit the compliance report

within a period of seven days.

11. Mr. R.N. Mishra, learned Additional Government Advocate for the

State submitted that in compliance to the aforesaid deficiencies pointed

out by the NMC and keeping in view the urgency of compliance which

was required to be submitted within seven days and considering the fact

that the Opposite parties had limited time to submit the compliance and

to somehow get the letter of permission from the NMC, were left with no

other option but to pass the order dated 24.02.2023 under Annexure-6.

He further contended that the order dated 24.02.2023 was issued in

public interest and keeping in view the expediency to operationalise the // 10 //

GMCH, Bhawanipatna, Kalahandi. Mr. Mishra, learned Additional

Government Advocate further contended that the Opposite Parties while

passing the impugned order under Annexure-6 have not committed any

illegality at all. Moreover, he contended that the order under Annexure-6

is absolutely in public interest. Furthermore, by passing the impugned

order under Annexure-6, the Opposite parties have not violated the

conditions as envisaged in the bond under Annexure-1. He further

contended that the bond under Annexure-1 allows freedom to the

Opposite Parties to deploy the Post PG Bond Doctors in any health

institution of the State for two years.

12. Mr. Mishra, further emphatically argued that the condition in the

bond as per resolution under Annexure-1 is an absolute and

unconditional one. Condition No.1.c of the bond as has been provided

under Annexure-1 leaves no room for doubt that it is within the absolute

discretion of the Opposite Parties to retain the P.G. Pass out Doctors for a

period of two years and to deploy them in any of the health institution of

the State. However, the same is subject to a period of two years from the

date of the joining of the candidates.

13. Referring to the counter affidavit, learned Additional Government

Advocate contended that to fill up the post which have been created vide

order dated 14.07.2021 as per Annexure-R/1, the Health and Family // 11 //

Welfare Department, Government of Odisha through DMET, Odisha has

already initiated steps on 14.03.2023 to advertise the recruitment of

Senior Residents/Tutors in Government Medical Colleges and Hospital,

Bhawanipatna, Kalahandi. In this regard, he further contended that the

Opposite Parties are serious and taking timely steps to ensure that the

vacant posts of Senior Residents/Tutors GMCH at Kalahandi shall be

filled up by following open-recruitment procedure by 30.06.2023.

14. So far as petitioners are concerned, learned Additional

Government Advocate submitted that as per resolution of the Health and

Family Welfare Department dated 16.10.2019 read with bond conditions

under Annexure-1 at the bond executed by the petitioners for a period of

two years, deployment / posting of Post of P.G. Doctors during bond

period is being regulated on the basis of the bond conditions and as such

out of two years they are required to serve one year each on a

Government Medical College and Hospital and periphery hospitals.

Therefore, since the bond period of the petitioner nos.1 to 8 would come

to an end on 01.07.2023 and the petitioner nos.9 to 14 likely be revised

again before 30.06.2023, no serious prejudice would be caused to the

petitioners. Additionally, it was also contended by learned Additional

Government Advocate that the temporary posting of the petitioners at

GMCH, Bhawanipatna, Kalahandi is in larger public interest and in // 12 //

compliance to the deficiencies pointed out by NMC. Moreover, the NMC

team is expected to visit the GMCH, Bhawanipatna, Kalahandi any time

soon. In such view of the matter, it was contended by learned Additional

Government Advocate for the State that any interference by this Court

with the post/deployment order under Annexure-6 would cause serious

prejudice to the interest of the public at large and over-whelming public

interest and aspiration of the people living in around Bhawanipatna in

operationalizing of the GMCH at the earliest would be seriously affected.

15. Next, learned Additional Government Advocate submitted that the

deployment order under Annexure-6 has been passed strictly

inconsonance with the bond conditions and the terms and conditions

stipulated in various resolutions of the H & FW Department, Government

of Odisha. In course of his argument, learned Additional Government

Advocate referred to the conditions of the bond as envisaged in

Annexure-1. He further led emphasis on the words "Any health

institution of the State" for a period of "for two years". Accordingly,

he further contended that the words used in the bond as is evident under

Annexure-1 cannot be given a limited or restricted interpretation to only

mean one Medical College over-looking the importance of other Medical

Colleges run by Government and ignoring the public interest involved in

it. As such, it was argued that the order under Annexure-6 has been // 13 //

passed in terms of the condition contained in the bond consciously

executed by the petitioners with the Government. Further referring to

resolution dated 21.04.2021, learned Additional Government Advocate

would argue that in Post P.G. Doctors could be posted at any Medical

Colleges of the State Government temporarily to meet the exigency. He

also referred to the following paragraphs of resolution dated 21.04.2021,

it has been extracted hereunder:-

".....The Senior Residents and the post PG Bond doctors posted in a Medical College can be allowed to work in other Medical Colleges temporarily in exigency but shall not appear before MCI/NMC during assessment in the deputed Medical College...."

16. Mr. Mishra, learned Additional Government Advocate further

argued that by issuing order under Annexure-6 by deploying the

petitioners GMCH, Bhawanipatna, Kalahandi, the Opposite Parties have

not violated any of the resolution of the Government including under

Annexures-1, 2 and 5. So far resolution dated 03.02.2017 under

Annexure-1 is concerned, it is argued that the same applies to the

Government to deploy Post P.G. Bond doctors at any health institution of

the Government for two years. Similarly, referring to resolution dated

16.10.2019, it was contended that there is no mandate for Post P.G. Bond

doctors to undergo /attend Trauma Care Facility duty. Moreover, since

Trauma Care Facilities is available at GMCH, Bhawanipatna, Kalahandi, // 14 //

the petitioners can very well undergo/attend Trauma Care Facilities duty

at the said institution and the DMET, Odisha has been authorized by the

Government to issue experience certificate to such Post P.G. Bond

doctors. As such, there is no violation of resolution dated 16.10.2019.

Finally, with regard to notification dated 16.12.2022 under Annexure-5,

it was emphatically submitted by learned Additional Government

Advocate that the same is not applicable to the petitioners as in view of

the terms of the said notification, the same will be applicable to the Post

P.G. doctors who will be completing P.G. Education in the year 2023 and

thereafter. As such the allegation that the policy decision under

Annexures-1, 2 and 5 have been flouted by the Opposite Parties, is

absolutely baseless and completely misconceived.

17. With regard to the contentions raised by leaned counsel for the

petitioners that this Court has passed interim order protecting the

petitioner in W.P.(C) No.2367 of 2022 and W.P.(C) No.10 of 2023 and

that such interim order is still in operation, it was contended by learned

Additional Government Advocate that such cases are clearly

distinguishable from the facts and circumstances involved in the present

writ application. He further submitted that none of the above cases

involve the over-whelming public interest of operationalizing Medical

College as involved in the present writ application.

// 15 //

18. Having heard learned counsel appearing for the petitioners as well

as learned Additional Government Advocate for State-Opposite Parties

and upon careful perusal of the pleading submitted by the respective

parties, and upon consideration of the contentions raised by learned

counsels, this Court is of the prima facie view that the issue involved in

the present writ application is as to whether the petitioners, who are Post

P.G. doctors, could be posted at different Medical Colleges by the

Opposite Parties as has been done in respect of the petitioner under

Annexure-6 to the writ application? In reply to the said question, this

Court deems it proper to examine the conditions contained in the bond

executed by the petitioners with the Government. The background facts

for execution of such bonds, has already been narrated hereinabove.

Therefore, the same need not be repeated here. Moreover, the petitioners

have not disputed the execution of the bond as well as the terms and

conditions contained in the bond. Hence, the relationship between the

Government and the petitioners is to be assessed taking into

consideration the conditions in the bond, which is evident from

Annexure-1.

19. On cursory look at the conditions contained in Annexure-1, this

Court observes that the condition No.1.c of the bond provides that after

completion of the P.G. Course in any Government Medical College, the // 16 //

pass out P.G. Doctors are required to serve "in any health institution in

the State for a period of two years". Moreover, the resolution under

Annexure-1 further provides that after completion of two years of service

as per the bond provision, the Post P.G. doctors will be released of the

bond condition. On a plain reading of the aforesaid condition in the bond,

this Court is of the considered view that there is no ambiguity and the

same does not leave any room for interpretation with regard to the fact

that after completion of the P.G. course in any of the Government

Medical Colleges, pass out doctors like the petitioners are required to

serve for a period beyond two years under the State Government in any

health institution of the State. Further language employed in the bond

does not restrict the number of health institutions where the petitioners

can be deployed during the aforesaid bond period of two years. In such

view of the matter, this Court has no hesitation in coming to a conclusion

that the Opposite Parties are well aware of their authority to deploy the

petitioners or similarly placed doctors in any of the Government Medical

Colleges as has been done in the present case during the aforesaid bond

period.

20. So far the background of the present case is concerned, the

decision of the Opposite Parties in deploying the petitioner at GMCH,

Bhawanipatna, Kalahandi is justified considering the public interest // 17 //

involved in operationalising the GMCH, Bhawanipatna, Kalahandi. For

the said purpose, the Opposite Parties were required to engage adequate

number of doctors as per the applicable rules to get the certificate from

the NMC to operationalize the Government Medical Colleges and to

obtain the much desired, permission from the NMC to open 100 seated

Medical College in the district of Kalahandi. Since the NMC had pointed

out certain deficiencies with regard to deployment of Senior

Residents/Tutors, the Opposite Parties in compliance to the said

deficiencies have taken a decision to temporarily deploy/transfer the

petitioners to GMCH at Kalahandi so that they will get the required

permission from the NMC to start the Medical College, which is in larger

public interest. As such, this Court is of the considered view that the

Opposite Parties while passing order under Annexure-6 pending regular

recruitment of Senior Residents/Tutors, which has already been

advertised and the process is on to recruit regular doctors in such posts.

Finally, this Court found no fault in the action of the Opposite Parties in

issuing the deployment order under Annexure-6. In such view of the

matter, this Court is not inclined to interfere with the order under

Annexure-6.

21. However, it is also equally important to reiterate here that the

Opposite Parties are also equally bound by the terms and conditions of // 18 //

the bond, which has been executed with the petitioners. Therefore, they

are also directed to act strictly in accordance with terms and conditions

provided in the bond. Therefore, the Opposite Parties are directed that

under no circumstances, the period of deployment of the petitioners shall

exceed the bond period or shall be extended in violation of the

resolutions issued by the Government in this regard. It is further directed

that the petitioner Nos.1 to 8 be released from Government service,

unless they want otherwise on completion of bond period w.e.f

30.06.2023, and so far petitioner Nos.9 to 14 are concerned their cases

may be reviewed on or before 30.06.2023 keeping in view the

Government resolutions applicable to them. It is further directed that the

petitioner Nos.9 to 14 shall also be released after completion of bond

period of two years.

22. Further taking into consideration the submissions made by learned

counsel for the petitioners that the doctors, who are posted at Kalahandi

be paid the additional allowances as is being paid to other government

servants, this Court on careful consideration of the submissions made by

learned counsel for the respective parties, also directs that the Opposite

Parties shall consider payment of additional allowances/transfer

allowances as is due and admissible to regular Doctors/Government

employees on their posting in Kalahandi district.

// 19 //

23. Furthermore, it was brought to the notice of this Court that despite

the order under Annexure-6, the petitioners are still continuing at their

present place of posting. Moreover, by virtue of the interim order dated

06.03.2023, the petitioners were protected by the interim order passed by

this Court. Many things were argued by either side with regard to the

relieve from service of the petitioners. However, this Court directs that

the relieve orders, if any, issued earlier shall be cancelled and fresh

relieve orders shall be issued by the Opposite Parties. If the petitioners

are continuing at their present place of posting then the same shall be

treated as on duty at the present place of posting.

24. Before parting finally, this Court would like to observe that the

Opposite Parties are required to be more serious and act with promptitude

when it comes to taking any policy decision in the Health Sector of the

State. In the present case, it was observed that although a decision was

taken way back on 14.07.2021, granting sanction for creation of requisite

number of posts Professors, Associate Professors, Assistant Professors,

Tutors, Senior Residents etc. in GMCH, Bhawanipata, Kalahandi, no

steps whatsoever was taken to see that such posts are filled up by

selecting and recruiting eligible doctors to such posts. It is further

observed that when the NMC visited and submitted its report by showing

discrepancies, the Opposite Parties woke up from a deep slumber and // 20 //

hastily took a decision to transfer Senior Residents from SCB Medical

College and Hospital, Cuttack to GMCH, Kalahandi. Such a hasty

decision is bound to cause disruption and affect the functioning at the

SCB Medical College and Hospital, Cuttack which is undoubtedly the

leading hospital of the State having very large foot fall every day.

Moreover, the last minute deployment and steps for recruitment through

advertisement from open market creates a very poor image of the State

Government and the steps taken in the present case is no less than the

desperate attempts made by private medical colleges to get approval /

permission from MCI/NMC. This Court would not have made this

observation had it not been pertaining to the health care sector of the

State. Therefore, the Opposite Parties-authorities, particularly, the

Opposite Party No.1 is expected to be more careful in future in such type

of matters.

25. With the aforesaid observation/direction, the writ petition stands

disposed of.

( A.K. Mohapatra ) Judge

Orissa High Court, Cuttack The 21st of March, 2023/ Jagabandhu.