Orissa High Court
Dr. Diptimayee Pradhan vs State Of Odisha And on 19 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.28218 of 2023
Dr. Diptimayee Pradhan .... Petitioner
Mr. N.K. Sahu, Advocate
-versus-
State of Odisha and
Others .... Opposite Parties
Mr. S.K. Samal, AGA
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
19.10.2023
Order No.
06. 1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical) Mode.
2. Heard Mr. N.K. Sahu, learned counsel for the
petitioner and Mr. S.K. Samal, learned Addl. Govt.
Advocate for the State.
3. The present Writ Petition has been filed inter alia
with the following prayer:-
<It is, therefore, prayed that the Hon'ble Court
may be graciously pleased to:-
i) Admit the Writ Application.
ii) Call for records.
iii) Issue Rule NISI calling upon O.P. No.2 to show
cause as to why the name of the petitioner is not
enlisted to be considered for Departmental Promotion
to the post of Associate Professor, Anaesthesiology,
VIMSAR vide Notification dated 28.07.2023 under
Annexure-9.
// 2 //
And if the Opp. Parties do not show cause or show
insufficient cause then issue a writ in the nature of
mandamus directing the Opp. Party No.2 to consider
the name of the petitioner for promotion to the post of
Associate Professor in the department of
Anaesthesiology, VIMSAR, Burla in pursuance to the
Notification dated 28.07.2023 under Annexure-9 and
direct the O.P. No.3 to make necessary changes in the
gradation list against the name of the petitioner.=
4. It is contended that pursuant to the advertisement
issued in the year 2018, though the petitioner was
otherwise eligible to get the benefit of appointment as
against the post of Assistant Professor, in the discipline
Anaesthesiology in VSS Medical College, Burla, but when
she was not provided with such appointment, the matter
was challenged before this Court in W.P.C(OAC) No.1417
of 2018. This Court vide its judgment dated 13.09.2022
when held the petitioner eligible to get the benefit of
appointment and accordingly issued necessary directions
to the authorities of VSS Medical College, Burla, the
petitioner was provided with such appointment vide order
dated 05.11.2022 under Annexure-5 series.
4.1. It is contended that subsequent to her appointment
as against the post of Assistant Professor in the discipline
of Anaesthesiology vide order of appointment issued on
05.11.2022, petitioner joined in the said post on
17.12.2022. Subsequent to such appointment, petitioner
when made application before the Opp. Party No.3 to
place her in the final Gradation List for the year 2022
taking into account her continuance on deputation as an
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Assistant Professor w.e.f. 31.07.2019, the petitioner in
consideration of such request was placed at Serial No.2 of
the Gradation List, so published on 27.01.2023 under
Annexure-7 series. It is contended that the petitioner was
placed at Serial No.2 even though she was appointed in
the year 2022.
4.2. It is contended that even though the petitioner was
placed at Serial No.2 of the Gradation List of Asst.
Professor in the discipline of Anaesthesiology and 3
persons who were appointed in the year 2019 were placed
below her, but while issuing the impugned notification on
28.07.2023 for consideration of the claim of the eligible
Asst. Professor to get the benefit of Associate Professor,
the petitioner's name has been illegally omitted.
4.3. It is contended that since because of the fault of the
authority, petitioner could not get the benefit of
appointment when persons similarly situated were
appointed in the year 2019 and only in terms of the order
passed by this Court, petitioner was provided with such
appointment vide order dated 05.11.2022, petitioner's
seniority should have been counted from the date persons
similarly situated were appointed in the year 2019 in
terms of the advertisement issued in the year 2018.
4.4. In support of his submission Mr. Sahu, learned
counsel for the petitioner relied on the decision of the
Hon'ble Apex Court reported in (2008) 1 SCC 720 and
// 4 //
another decision reported in (1996) 8 SCC 637, Hon'ble
Apex Court in the case reported in 1996 SCC in Para-3
has held as follows:-
<3. It is contended by the learned
counsel for the petitioners that since the inter se
seniority as Assistant Engineers was left open
in the order, the directions given by the Tribunal
to consider the case as Executive Engineer and
determine his seniority on the basis of
promotion, is not valid in law. We find no force
in the contention. Once he is found to be eligible
according to the rules, then his seniority is
required to be determined as per the procedure
prescribed in the rules in vogue. It is further
contended that the fifth respondent was not
qualified since he had not completed 8 years of
required service. The Tribunal has recorded a
finding that two years period is relaxable in the
case of the reserved candidates. The inter se
seniority as Assistant Executive Engineer is
required to be determined, he joined service in
1981 and, therefore, he did not have the
requisite service. We find no force in the
contention. Since he was selected by direct
recruitment, he is entitled to be appointed
according to rule. His appointment was delayed
for no fault of his and he came to be appointed
in 1981, he is, therefore, entitled to the ranking
given in the select list and appointment made
accordingly. Under these circumstances, we do
not find any illegality in the order.=
Similarly Hon'ble Apex Court in the case reported in
2008 SCC in para-11 held has as follows:-
<11. It may be noted that the respondent was
offered appointment vide letter dated 5.7.1983
which is after 1-7-1983 from which the eligibility
was to be counted. Hence, it is the department
which is to be blamed for sending the letter
offering appointment after 1-7-1983. In fact, some
of the candidates who were junior to the
respondent were issued letters offering
appointment prior to 1-7-1983. Hence it was the
department which is to be blamed for this.
Moreover, in view of the office memorandums of
// 5 //
the Department of Personnel and Training dated
18.03.1988 and 19-7-1989 the respondent was
also to be considered, otherwise a very
incongruous situation would arise, namely, that
the junior will be considered for promotion but the
senior will not.=
4.5. Making all such submissions Mr. Sahu, learned
counsel for the Petitioner contended that the petitioner
should have been treated as an Assistant Professor from
the date persons similarly situated were appointed in the
year 2019. Because of admitted latches on the part of the
authority, the petitioner has now been deprived to get the
benefit of promotion to the rank of Associate Professor
and her name has been omitted in the impugned notice
dated 28.07.2023, so issued under Annexure-9.
5. Mr. Samal, learned Addl. Govt. Advocate on the
other hand contended that pursuant to the order passed
by this Court though the petitioner was appointed as
against the post of Assistant Professor vide order dated
05.11.2022, it is never the claim of the petitioner to get
the benefit of Seniority from the date persons similarly
situated were appointed in the year 2019 in terms of the
advertisement issued in the year 2018.
5.1. It is further contended that considering the
grievance raised by the petitioner vide Annexure-8 series,
the petitioner though was placed above the 2019
appointees in the Gradation List published under
Annexure-7 series, but since the petitioner does not have
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required 4 years teaching experience as against the post
of Assistant Professor, her name has been rightly omitted
vide notice issued under Annexure-9. It is also contended
that the petitioner has never raised such a claim to get
the benefit of retrospective Seniority from the year 2019
when persons similarly situated were so appointed.
6. Having heard learned counsel for the parties and
after going through the materials available on record, it is
found that though pursuant to the order passed by this
Court on 13.09.2022 in W.P.C(OAC) No.1417 of 2018,
petitioner was provided with appointment as against the
post of Assistant Professor vide order dated 05.11.2022
under Annexure-5 series, but no where it is the claim of
the petitioner that her appointment should be treated
from a retrospective date i.e. from the date of persons
similarly situated were appointed in the year 2019. In
view of such admitted position, this Court while disposing
the Writ Petition permits the petitioner to make an
appropriate application claiming the benefit of
retrospective seniority. It is observed that if any such
application is moved by the petitioner before O.P. No.3
within a period of 2 weeks from the date of receipt of this
order, Opp. Party No.3 shall take a lawful decision on the
same, within a further period of 4 weeks. It is observed
that while taking such a decision, the relevancy and effect
of the decisions as cited supra be taken into
consideration. Petitioner is directed to produce a copy of
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this order along with the citations so relied on by her
before Opp. Party No.3 for compliance of the direction.
7. The Writ Petition is accordingly disposed of.
(Biraja Prasanna Satapathy)
Judge
Basudev
Digitally Signed
Signed by: BASUDEV SWAIN
Reason: Authentication of order
Location: High Court of Orissa, Cuttack
Date: 21-Oct-2023 09:37:57
