Dr. Tribikram Debata vs State Of Odisha And Others
2023 Latest Caselaw 14126 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                     W.P.(C) No. 27118 of 2023 &
                      W.P.(C) No.23014 of 2023

Applications under Articles 226 & 227 of Constitution of India.
                             ----------------

W.P.(C) No. 27118 of 2023
Dr. Tribikram Debata                            .......     Petitioner

                        - Versus -

State of Odisha and others                      .......   Opp. Parties

W.P.(C) No. 23014 of 2023
Dr. Nimai Charan Mishra                         .......     Petitioner

                        - Versus -

State of Odisha and others                      .......   Opp. Parties

Advocate(s) appeared in this case:-
_________________________________________________________
   For Petitioners       : Ms. Pami Rath, Sr. Advocate with
                           M/s. S. Gumansingh, P. Mohanty &
                           J. Mohanty, Advocates.

   For Opp. Parties :     Mr. Saswat Das,
                          Addl. Government Advocate

                           M/s. S.K. Das, P.K. Behera & N. Jena,
                          Advocates.
                          [For O.P. No.4 in W.P.(C) No. 27118 of 2023]

                          Mr. P.K. Mohanty with
                          M/s. P. Mohanty, S.N. Dash, S.K. Sahu
                          & K.T. Mudali, Advocates.
                          [For OPSC in W.P.(C) No. 27118 of 2023]

                          Mr. A. Behera, Advocate
                          [For OPSC in W.P.(C) No. 23014 of 2023]
                          M/s. A. Mishra & S.K. Prajwal, Advocates
                          [For O.P. No.5 in W.P.(C) No. 23014 of 2023]
____________________________________________________________

                                                              Page 1 of 19
       CORAM:
           JUSTICE SASHIKANTA MISHRA

                              JUDGMENT

th 10 November, 2023

SASHIKANTA MISHRA, J.

Both these writ applications involve common

questions of fact and law and being heard together, are

disposed of by this common judgment.

2. The petitioner in W.P.(C) No. 27118 of 2023 has

filed this writ application with the following prayer:

"It is therefore prayed that this Hon'ble Court may graciously be pleased to admit this writ petition and issue Rule NISI calling upon the Opp. Parties to show cause and if they fail to show cause or show insufficient cause, then issue appropriate writ(s), order(s), direction(s) directing the Opp. Parties

a) To quash the impugned notification No. 6492/PSC dated 16.8.2023 at Annexure-12.

b) To quash the impugned notification No. 6494/PSC dated 16.8.2023 at Annexure-13.

c) Direct the OPs to consider the Petitioner against Advertisement No. 11 of 2018-19 dated 6.10.2018 at Annexure- 3 in pursuance to judgment dated 23.12.2022 at Annexure-6 and order dated 11.1.2023 at Annexure- 7, and appoint him to the post of Assistant Professor in the Discipline of Dentistry against the post of Oral Pathology and Microbiology. And may pass any other/further order(s), as this Hon'ble Court may deem fit in the interest of justice and equity."

The petitioner in W.P.(C) No. 23014 of 2023 has

filed this writ application with the following prayer:

"It is therefore prayed that this Hon'ble Court may graciously be pleased to admit this writ petition and issue Rule NISI calling upon the Opp. Parties to show cause and if they fail to show cause or show insufficient cause, then issue appropriate writ(s), order(s), direction(s) directing the Opp. Parties

a) To quash the impugned notification No. 5796/PSC dated 17.7.2023 at Annexure-11.

b) To quash the impugned notification No. 5794/PSC dated 17.7.2023 at Annexure-12.

c) Direct the OPs to consider the Petitioner against Advertisement No. 11 of 2018-19 dated 6.10.2018 at Annexure-2 in pursuance to judgment dated 23.12.2022 at Annexure-5 and order dated 11.1.2023 at Annexure-6, and appoint him to the post of Assistant Professor in the Discipline of Dentistry against the Dept. of Orthodontics.

And may pass any other/further order(s), as this Hon'ble Court may deem fit in the interest of justice and equity."

3. Heard Miss Pami Rath, learned Senior Counsel

with Mr. P Mohanty, learned counsel for the petitioners; Mr.

Saswat Das, learned Additional Government Advocate for the

State; Mr. P.K. Mohanty, learned Senior Counsel with Mr. P.

Mohanty and Mr. A. Behera, learned counsel appearing for

OPSC; Mr. Sameer Kumar Das and Mr. A. Mishra, learned

counsel appearing for private opposite parties.

FACTS :

4. The petitioner in W.P.(C) No. 27118/2023 passed

Bachelor of Dental Surgery (BDS) from SCB Medical College

and Hospital, Cuttack in the year 2011 and PG also from the

said institution in 2016 in Oral Pathology and Microbiology.

The petitioner in W.P.(C) No. 23014/2023 passed BDS from

SCB Medical College and Hospital in the year 2010 and PG

from RADC, Calcutta in the year 2014 in the discipline of

Orthodontics & Dentofacial Orthopedics. The petitioners were

selected for Senior Resident-ship (SR) in the year 2017.

5. An advertisement was issued by Odisha Public

Service Commission (OPSC) being Advertisement No.11 of

2018/19 on 06.10.2018 inter alia for recruitment to one post

of Asst. Professor in the Department of Oral Pathology &

Microbiology and two posts in the Department of

Orthodontics. The last date for submission of applications

was 12.11.2018. Said advertisement indicated that the

selection of candidates for recruitment to the posts will be

made on the basis of Odisha Medical Education Service

(Method of Recruitment and Conditions of Service) Rules,

2013 (for short, 2013 Rules). Said advertisement further

provided the required academic qualification and teaching

experience in the discipline of Oral Pathology and

Microbiology as M.D.S. (Oral Pathology and Microbiology)

with 3 years teaching experience in the subject from a

recognized Medical College as Tutor or Senior Resident and

in the discipline of Orthodontics as M.D.S. (Orthodontics)

with 3 years teaching experience in the subject from a

recognized Medical College as Tutor or Senior Resident. The

petitioners applied pursuant to said advertisement within the

cut-off date. The advertisement, inasmuch as it laid down the

eligibility condition of 3 years teaching experience as Senior

Resident was challenged before this Court in a batch of writ

applications being W.P.(C) No.16048 of 2019 and batch

mainly on the ground that the said requirement under 2013

Rules was bad in law being contrary to the Medical Council of

India (MCI) Regulations. The batch of writ petitions was

disposed of by a common judgment passed by a coordinate

Bench of this Court on 23.12.2022. The points raised and

decided in the common judgment will be discussed in

extenso a little later. The petitioners had also filed original

application before the erstwhile Odisha Administrative

Tribunal which was transferred to this Court and registered

as WPC(OAC) No. 121 of 2019. The writ application was

disposed of by order dated 11.01.2023 in line with the

common judgment dated 23.12.2022. The petitioners were

called for written examination and verification of documents

but the results were not published because of the pending

litigations. According to the petitioners, the coordinate Bench

of this Court in the common judgment dtd.23.12.2022 has

held that the Odisha Medical Education Service (Method of

Recruitment and Conditions of Service) Rules, 2021 (for short

'2021 Rules') had been made applicable to the Advertisement

No. 11 of 2018-19 dated 06.10.2018 and therefore, their

names should have been published and declared as qualified.

However, the final result in respect of Dentistry discipline

was not published. The petitioners therefore, approached this

court in WP(C) No. 17968 of 2023 (filed by petitioner in

W.P.(C) No. 27118 of 2023) and W.P.(C) No.17992 of 2023

(filed by petitioner in W.P.(C) No. 23014 of 2023), which were

disposed of directing the OPSC to consider the

representations of the petitioners. By order dated 19.7.2023,

copy of which is enclosed as Annexure-11 of W.P.(C) No.

27118 of 2023 and by order dated 12.07.2023, copy of which

is enclosed as Annexure-10 of W.P.(C) No.23041 of 2023, the

representations of the petitioners were rejected and by

another notification issued on 16.08.2023 the opposite party

No.4 of W.P.(C) No. 27118 of 2023 was shown to have been

selected against the sole post of Oral Pathology &

Microbiology, copy of which is enclosed as Annexure-13.

Similarly, by notification issued on 17.07.2023 the opposite

party Nos.4 and 5 of W.P.(C) No. 23014 of 2023 were shown

to have been selected against the two posts of Orthodontics,

copy of which is enclosed as Annexure-11. Insofar as the

petitioners are concerned their representations were rejected

on the ground that they did not possess the required period

of Tutor/Senior Resident-ship in the concerned subject.

Being thus aggrieved, the petitioners have approached this

court seeking the aforementioned relief(s).

6. The private opposite parties have filed a counter

challenging the maintainability of the writ application firstly,

on the ground of res judicata and secondly, on the ground

that the petitioners having knowingly participated in the

selection process cannot be permitted to challenge the same

after becoming unsuccessful therein. On merits it is

contended that the common judgment passed by the

coordinate Bench has not allowed the prayer of the

petitioners therein but categorically held that the petitioners

had not challenged the selection process in time but had

done so eight months after its conclusion. The coordinate

Bench further directed the government to only consider

relaxation of the age of the petitioners in case they apply

against future advertisements to be issued as per the 2021

Rules in which the 3 year Senior Resident-ship requirement

has been done away with.

SUBMISSIONS:

7. A preliminary objection has been raised on behalf

of the State as well as the private opposite parties that the

writ applications are hit by the principle of res judicata

inasmuch as both the petitioners had admittedly filed an

original application before the erstwhile Odisha

Administrative Tribunal which was transferred to this Court

and registered as WPC(OAC) No.121 of 2019 on the self-same

cause of action but the same was disposed of by order passed

on 11.01.2023 in terms of the common judgment passed in

the batch of cases wherein the Court took note of the fact

that having participated in the selection process, the

candidates cannot question the procedure adopted therein.

In this regard Miss Pami Rath would argue that the present

writ applications are on a different cause of action inasmuch

as the rejection of the representations submitted by the

petitioners are under challenge and the impugned orders of

rejection were passed subsequent to the disposal of

WPC(OAC) No. 121 of 2019.

8. Mr. Saswat Das, learned State Counsel and Mr.

Sameer Kumar Das, learned counsel appearing for the

private opposite party have both argued that regardless of the

rejection of the petitioners' representations, the principle

remains the same inasmuch as they having not challenged

the selection process at the relevant time but willfully

participated therein, are estopped from challenging the same.

Their earlier case was rejected on the same ground. So what

they could not obtain directly in the earlier writ applications,

they want to get the same indirectly in the form of the

present writ applications. According to Mr. Das, such a

course cannot be countenanced in law. Mr. Das has relied

upon the judgment of the Supreme Court rendered in the

case of Institution of Mechanical Engineers (India) v.

State of Punjab, reported in (2019) 16 SCC 95: AIR 2019 SC

3882 in this context.

9. On the other hand, Miss Rath has relied upon the

judgment of the Supreme Court in the case of Dr. (Major)

Meeta Sahai v. State of Bihar, reported in (2019) 20 SCC 17

to contend that a candidate, by agreeing to participate in

selection process only accepts the prescribed procedure and

not the illegality in it. In the instant case the authorities

concerned have violated the regulations of the Dental Council

of India (DCI) by prescribing the eligibility condition in

question over and above the same, which is illegal. Therefore,

notwithstanding the participation of the petitioners in the

selection process, they are still entitled to challenge the same

in view of the apparent illegality involved in the selection

process.

FINDINGS:

10. As regards the question of application of the

principle of res judicata, it would be apposite to refer to the

judgment passed in the earlier writ application, i.e., WPC (OAC)

No.121 of 2019. A reading of Paragraph-3 of the judgment

dtd.11.01.2023 passed by the coordinate Bench of this Court

reveals that the petitioners had challenged the Advertisement

No.11 of 2018-19 as also Rule 4(1) of the 2013 Rules as being

contrary to MCI Regulations. Observing that similar aspect

had already been dealt with and adjudicated in the common

judgment passed in the batch of writ applications on

23.12.2022, the coordinate Bench deemed it proper to

dispose of the writ application in the following manner:

"7. In view of aforesaid judgment dated 23.12.2022 passed in W.P.(C) No.16048 of 2019 and batch of cases, this Writ Petition is partly allowed to the extent of allowing the Petitioners to participate in the recruitment process for selection of teaching staff under different branches of Dental studies in the SCB Dental College, Cuttack in which the Petitioners are eligible to apply under Odisha Medical Education Service (Method of Recruitment and Conditions of Service) Rules, 2021."

11. Thus essentially, there was no adjudication as

such in respect of the specific challenge to the advertisement

and the rule in question but the earlier decision (in the

common judgment) was reiterated. It thus becomes

imperative to refer to the common judgment, which

incidentally both parties are relying upon heavily. It is seen

that the challenge in the said writ applications was also to

the eligibility condition of 3 years Senior Resident-ship as

being contrary to the DCI Regulations. So, prima facie,

whatever was decided therein remains binding for all

concerned and to such extent, the petitioners cannot re-

agitate the issue. After analyzing the facts and law, the

coordinate Bench held as follows:

"28. Coming to the case at hand, the date of the impugned advertisement is on 02.11.2018 and the impugned advertisement for application is available in the Website from 13.11.2018 to 12.12.2018 till 11.59 PM. The present writ petition has been filed on 22.08.2019 (more than 8 months after) which is much after the selection process is over. The petitioner knew very well that the eligibility criteria of direct recruitment of Assistant Professor is quoted (supra) corresponding to Rule 4(1) of Odisha Medical Education Service (Method of Recruitment and Conditions of Service) Rules, 2013 and participated in the selection process. They could have challenged the conditions of the advertisement terming is unconstitutional or it is contrary to the spirit of guidelines prescribed by the Dental Council of India.

29. Even the Petitioners herein have never challenged the impugned Rule 4 (1) of Odisha Medical Education Service (Method of Recruitment and Conditions of Service) Rules, 2013 which is said to be against their interest. In such view of the matter, the selection process which has already been over and candidates, who have met the conditions stipulated in the above rules, have been duly selected cannot be disturbed at this stage. Moreover, they are eligible under the OMES Rules prevalent then." (Emphasis supplied)

12. According to Miss Rath, notwithstanding the above

observations, the coordinate Bench still granted relief in the

following manner:

30. Since the Petitioners have long been waiting for the fruit of this litigation and are eligible under the new Rules, this Court is of the view that the Petitioners can be allowed to face the recruitment test made under the Odisha Medical Education Service (Method of Recruitment and Conditions of Service) Rules, 2021. The State Government shall take steps

to allow the Petitioners to participate in the recruitment test conducted by the OPSC with relaxation of age, in case they are overaged.

31. In view of the above, all the Writ Petitions are partly allowed to the extent of allowing the Petitioners to participate in the recruitment process for selection of teaching staff under different branches of Dental studies in the SCB Dental College, Cuttack in which the Petitioners are eligible to apply under Odisha Medical Education Service (Method of Recruitment and Conditions of Service) Rules, 2021."

13. This Court fails to comprehend as to how the

afore-quoted observations would enure to the benefit of the

petitioners as claimed in the present writ applications.

Plainly understood, what was referred to in the afore-quoted

paragraphs of the common judgment was obviously to the

recruitment process to be undertaken in future. Had the

Court intended to grant the relief claimed, it could have

allowed the writ applications by directing the authorities to

appoint the petitioners as per Advertisement No. 11 but it

was not done so. The observations in paragraphs-28 and 29

of the common judgment particularly, the highlighted ones

are highly significant in this context more so as the judgment

has gone unchallenged. However, looking at the possibility

that the petitioners may become over-aged for future

recruitments, the coordinate Bench only allowed them to

participate therein by relaxing the age limit, if so required.

There is no specific finding that the eligibility condition of 3

years Senior Resident-ship is bad in law being contrary to the

DCI Regulations or that the new Rules (2021 Rules) would be

applicable to the recruitment process already concluded long

since pursuant to Advertisement No. 11.

14. This effectively seals the fate of the petitioners as

nothing remains to be adjudicated in this respect that is, the

legality or otherwise of Rule-4 of the 2013 Rules. The ratio of

Dr. (Major) Meeta Sahai (supra) relied upon by Miss Rath

would therefore not apply to facts of this case since there is

nothing to show that the rule in question or the relevant

Clause in the advertisement was illegal. The grievance raised

in such respect earlier has already been addressed in the

order passed in the common judgment. Said order has not

been challenged in the higher forum. Hence, the petitioners

cannot re-agitate the issue in the present writ application,

that too in the garb of questioning the correctness of the

rejection of their representations. It would tantamount to

doing something indirectly which could not be done directly

as held in the case of Institution of Mechanical

Engineering (supra).

15. This leaves the Court only to decide whether the

rejection of the representations of the petitioners, vide

Annexure-11 in W.P.(C) No. 27118 of 2023 and Annexure-10

in W.P.(C) No. 23014 of 2023 is legally justified.

16. As already stated, the petitioners submitted

representations to the Secretary, OPSC on 03.05.2023 with

request to publish the result of the recruitment for the post

of Asst. Professor in the discipline of Oral Pathology &

Microbiology and Orthodontics. Since no action was taken,

the petitioners approached this Court in W.P.(C) No.17968 of

2023 and W.P.(C) No.17992 of 2023. The said writ petitions

were disposed of by order dated 06.06.2023 by a coordinate

Bench of this Court directing the Secretary, OPSC to take a

decision on the representations of the petitioners within a

month. The representations of the petitioners were thereafter

considered by the Secretary, OPSC and by order dated

19.07.2023 and 12.07.2023, same were rejected on the

ground that the petitioners do not have three years Senior

Resident-ship experience in the concerned discipline. By

notices published on 16.08.2023(Annexure-13 of W.P.(C)

No.27118 of 2023) and on 17.07.2023 (Annexure-12 of

W.P.(C) No.23014 of 2023), the candidature of candidates

including the petitioners was intimated as having been

rejected on the ground mentioned against each. In so far as

the petitioners are concerned, the ground of rejection is

stated to be absence of required period of experience as

SR/Tutor in the concerned subjects.

17. There is no dispute that the Advertisement No.11

of 2018-19 was published in terms of the 2013 Rules, Rule-

4(1) of which provides that the candidate must have

completed three years Senior Resident-ship for being eligible.

As already stated, neither the clause in the advertisement nor

the Rule was ever challenged. It is also true that in the 2021

Rules, the requirement of three years Senior Resident-ship

has been done away with but then the 2021 Rules cannot be

made applicable to the recruitment process initiated

pursuant to advertisement No. 11 and concluded much prior

to coming into force of the said Rules. It is admitted that the

petitioners were selected for Senior Resident-ship on

26.03.2017 and completed the same on 27.07.2020. Thus, as

on 12.11.2018, which is the cutoff date for consideration of

eligibility condition as per Advertisement No. 11, the

petitioners did not have the required three years Senior

Resident-ship experience. This Court is therefore, of the view

that their candidature was rightly rejected.

18. Miss P. Rath made a feeble attempt to argue at the

end that the requirement of three years Senior Resident-ship

in the 'subject' is otherwise arbitrary because as per the 2013

Rules, Dentistry is only one subject in any Medical College

throughout Odisha. In so far as other Medical Colleges of the

State are concerned there is no sub-classification for Senior

Resident-ship under the broad discipline of Dentistry like

Oral Pathology & Microbiology and Orthodontics etc. Such

sub-classification is available only in SCB Medical College.

Since the petitioners' candidature was rejected because they

did not have three years experience as Senior Resident-ship

as also for not having such experience in Oral Pathology &

Microbiology and Orthodontics, this would result in serious

discrimination as only candidates from SCB Medical College

alone would be considered eligible. The authorities should

have therefore, taken into consideration the above aspect to

hold that Senior Resident-ship in Dentistry is the

requirement and not the sub-classifications thereunder.

19. This Court is not impressed with the argument as

above for the reason that the petitioners admittedly did not

possess the required three years experience as on the cutoff

date and therefore, the question raised as regards the sub-

classification under Dentistry discipline etc. are rendered

purely academic in nature. In the absence of the

fundamental requirement of three years experience of the

petitioners this Court would refrain from indulging in any

such academic exercise.

20. Thus, from a conspectus of the analysis of facts

and law involved, this Court is of the view that firstly, the

writ petition is not maintainable either on facts or on law.

Even assuming for the sake of argument only that it is

maintainable, then also the petitioners have failed to make

out a case for interference with the impugned order by this

Court for the reasons indicated hereinbefore.

21. In the result, the writ petitions fail and are

therefore, dismissed but in the circumstances, without any

cost.

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

Sashikanta Mishra, Judge

Orissa High Court, Cuttack.

The 10th November, 2023/ A.K. Rana, P.A.

Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Reason: Authentication Location: High Court of Orissa, Cuttack