BIMAL CHANDRA KAR v. STATE OF ORISSA — 1982 DIGILAW 195 (ORI)

JUDGMENT : R.N. Misra, C.J. - The Petitioner, an Associate Professor of Medicine in the employment of the State Government, filed this application under Article 226 of the Constitution on 18-10-1974 seeking the following reliefs: (a) For quashing the promotion of opposite party No. 2 as Professor of Medicine; (b) For a direction to opposite party No. 1 - State to treat the Petitioner as Professor with effect from 24-7-1970 when opposite party No. 2 was promoted as Professor; (c) For a direction to opposite party No. 1 to treat the Petitioner as Associate Professor with effect from 27-9-1968; (d) For quashing the gradation list published in Annexures 8-A and 8-B showing the Petitioner as junior to opposite party No. 2 in the ranks of Assistant Professor and Associate Professor: and (e) For quashing the order of regularisation of the promotion of opposite party No. 2 and for determining the seniority in the rank of Professor in Annexure-9. 2. The Petitioner had filed two earlier writ applications, being O.J.C. No. 1360/68 and O.J.C. No. 921 of 1970. In the first case, he had challenged the promotion of two other doctors who are not parties in this case, being Dr. A. Sarangi and Dr. S.C. Misra. The said writ application was disposed of on 22-6-1970. The Court held: In other words, it means that till such time as valid statutory rules are framed by Government to regulate these matter, the principle should be to take their total length of service as Assistant Professors into account in making ad hoc promotions, as otherwise, such promotions are likely to be made in an arbitrary or capricious manner. The ultimate direction in that writ application was: In the result, therefore, the order appointing Dr. S.C. Misra as Reader on ad hoc basis is quashed. All the three writ applications would succeed only to that extent. The prayer of each of the Petitioners in all the three writ applications in so far as it relates to challenging the validity of the ad hoc appointments of Dr. K.C. Misra and Dr. A. Sarangi as Readers is rejected. It will be open to Government to fill up the post of Reader to be rendered vacant by the reversion of Dr. S.C. Misra after taking into consideration that principle enunciated above. K.C. Misra and Dr. A. Sarangi as Readers is rejected. It will be open to Government to fill up the post of Reader to be rendered vacant by the reversion of Dr. S.C. Misra after taking into consideration that principle enunciated above. If, however, valid rules under Article 309 of the Constitution have since been made, to regulate inter se seniority and promotion to senior teaching posts, the promotions will have to be made in accordance therewith. For the first time, a set of Rules under Article 309 of the Constitution known as The Orissa Medical & Health Services (Promotion to Senior Teaching Posts in Medical Colleges) Rules, 1970 came into force with effect from 30-5-1970. Applying the provisions of these Rules, the Petitioner's seniority was disturbed and opposite party No. 2 and some either doctors were promoted to the rank of Reader in supersession of the Petitioner. Thereupon, the Petitioner filed the second writ application challenging the promotion of opposite party No. 2 and some other doctors as Readers. While that second application was pending, on 19-10-1970, opposite party No. 2 was promoted as Professor and when that application was being finally heard, the Rules which had come into force on May 38, 1970, and had been modified by another set of Rules in August, 1970 were replaced by the Orissa Medical & Health Services (Recruitment and Promotion to Teaching Posts in Medical Colleges) Rules, 1973. These Rules contemplated a different basis for fixation of seniority of persons promoted as Assistant Professors and in other higher ranks. The second writ application, was disposed of on 17-12-1973, and the Court held: It is not disputed that in making the promotions, the claim of the Petitioner had not been considered. An order of Government promoting a junior in supersession of a senior without considering the claim of the senior for promotion has to be quashed even though the promotion is a temporary one because it would then be a case of violation of the principle of equality of opportunity embodied in Article 16. An order of Government promoting a junior in supersession of a senior without considering the claim of the senior for promotion has to be quashed even though the promotion is a temporary one because it would then be a case of violation of the principle of equality of opportunity embodied in Article 16. Having regard, however, to the confusing state of affairs, prevailing in the department, as a result of inaction on the part of the Government to lay down rigid principles regarding fixation of inter se seniority, and the frequent changes made in the principles once enunciated, officers who have secured their promotion to higher cadres should not suffer, provided the Petitioner, who apparently has a just cause for grievance, but the consideration of the validity of which has necessarily to be postponed till matters dealt with in Rule 11 are finalised, can be promoted to the higher rank of Reader without disturbing those who have already been promoted as Readers. But if the Petitioner cannot be so promoted without reverting one who is now officiating as Reader, the position cannot be helped and the one who has been promoted last as Reader has to revert. We are conscious of the position that ordinarily it is opposite party No. 1 (State) who has the authority to promote the Petitioner and all that this Court would do is to ask opposite party No. 1 to consider the claim of the Petitioner for promotion. But as opposite party No. 1 has conceded that so far as merit is concerned, there is nothing to choose between The Petitioner and the opposite parties 2 to 9 and as in the circumstances explained, the Petitioner must provisionally be held to be senior to some of the opposite parties who have already been promoted, we allow this application and direct that the Petitioner be promoted forthwith to the rank of Reader. We would, however, make it clear that promotion of the Petitioner, now ordered, would be subject to adjustment after matters enumerated in Rule 11 of Annexure 6 are finalised and this judgment would not stand in the way of Government to give effect to the consequences arising out of final fixation of such seniority. This application, the third in the series, was then filed on 18-10-1974 for the reliefs already indicated. This application, the third in the series, was then filed on 18-10-1974 for the reliefs already indicated. When, it came for hearing before a Division Bench consisting of B.K. Ray and J.K. Mohanty, JJ., the learned Judges by an elaborate order 48 (1979) C.L.T. 158 considered the claim of the Petitioner at length and while interpreting the Rules of 1973 were confronted with an unreported decision of this Court in O.J.C. No. 2172 of 1975 where this Court had held: It is well settled that no statute shall be construed to have retrospective operation unless such construction appears very clearly in the terms of the statute or arises by necessary and distinct implication. The 1973 Rules were published by Government Notification dated 22-9-1973 and Rule 2 thereof provides that the Rules shall come into force at once. A plain reading of the Rules shows that they are prospective in operation and that they have retrospective effect only for the limited purposes of fixation of inter se seniority. Rule 9(2) deals with inter se seniority of Assistant Professors appointed on or after the 1st December, 1960 till the date of commencement of the Rules. This clearly indicates that wherever the rule-making authority intended the rule to have retrospective operation, it has expressly made so. Save and except Rule 9, there is no other provision to indicate that the Rules were made retrospective for the purpose of recruitment and promotion. It is common ground that the vacancy to which opposite party No. 4 was appointed occurred and the reference to the Public Service Commission was made at a time when the 1970 Rules were in force. The opposite party No. 4 was appointed on ad hoc basis on 19-7-1972 and the reference to the Public Service Commission was made, on 7-4-1973. The matter was pending with the Commission when the 1973 Rules came into force. It is true that concurrence of the Commission was communicated to the State Government after enforcement of the 1973 Rules. But the fact remains that the Commission was required to consider the eligibility of the candidate on the date when the vacancy arose and the ad hoc appointment was made. By the subsequent Government Order in Annexure 8, the appointment already made on 19-7-1972 was regularised and the regular appointment took effect from that date. But the fact remains that the Commission was required to consider the eligibility of the candidate on the date when the vacancy arose and the ad hoc appointment was made. By the subsequent Government Order in Annexure 8, the appointment already made on 19-7-1972 was regularised and the regular appointment took effect from that date. We accordingly hold that the appointment of opposite party No. 4 as Assistant Professor of T.B. & Chest Diseases was made under the provisions of 1970 Rules and not the 1973 Rules. The Court had therein further observed: Be that as it may, the legal position as discussed above leaves no doubt that the 1970 Rules held the field when the opposite party No. 4 was first appointed as Assistant Professor on 19-7-1972 and that the 1973 Rules are retrospective only for the limited purpose of fixation of seniority. The Division Bench dealing with the present writ application after extracting the same portion of the judgment said: We have given our anxious consideration to the above principles laid down in the above case decided by this Court. But with respect we could not persuade ourselves to subscribe to the view expressed in the aforesaid decision. If the above decision is accepted, the position would be that even though this Petitioner will be senior to opposite party No. 2 in the rank of Assistant Professor, that will not enure to his benefit in determining his eligibility for promotion to higher posts of Associate Professor and Professor. This position, it appears, is also not in conformity with the decision in O.J.C. No. 921/75. In our view, this cannot be the intention of the rule-making authority and there is nothing in 1973 Rules that the promotion already made prior to the coming into force of 1973 Rules cannot be disturbed. The purpose of making provision for re-fixation of seniority under the new rules will be wholly defeated if the result of re-fixation is not given effect to. The, earlier Division Bench case referred to above appears to hold a contrary view that one who becomes senior after re-fixation of seniority will not have the benefit of it because the rules do not specifically provide to have retrospective effect. The, earlier Division Bench case referred to above appears to hold a contrary view that one who becomes senior after re-fixation of seniority will not have the benefit of it because the rules do not specifically provide to have retrospective effect. According to us, the only object of the rule-making authority in making provision for re-fixation of seniority is to give the benefits of such re-fixation to one who is found to be entitled to it. In view of the Division Bench not agreeing with the decision in the unreported case, the matter has been referred to a larger Bench and that is how it is before the Full Bench. 3. Before we go into the contentions advanced on behalf of the Petitioner, it is appropriate that we refer to certain objections raised on behalf of the opposite parties on the footing that the Petitioner cannot be permitted to claim such reliefs which were available to him on the earlier occasions; some he had claimed and they were not granted and others were available and yet not claimed. According to the opposite parties, no relief in respect of either category should now be granted to the Petitioner. We have already pointed out that in the first case no definite decision was taken in regard to the Petitioner's claims. On the other hand, the Court found that there were no statutory rules making provision for computation of seniority and remained satisfied by indicating that in the absence of rules to the contrary, length of service would be the measure of seniority. On the second occasion no definite decision also seems to have been taken though on the basis of the stand of the State that between the Petitioner and opposite party No. 2 that there was nothing to pick and choose and both were of equal merit, the Court directed the Petitioner to be promoted as Associate Professor subject to any adjustment warranted under the rules holding the field. If the Petitioner had claimed certain reliefs which were not examined, a plea of res judicata may not be really available and, the claim for the reliefs now asked may not be thrown out on such ground. Besides, the Petitioner's claim is one of seniority and for the appropriate computation of the present seniority, the service career becomes relevant and the past has got to be looked into. Besides, the Petitioner's claim is one of seniority and for the appropriate computation of the present seniority, the service career becomes relevant and the past has got to be looked into. While the Petitioner's second application was pending, opposite party No. 2 had been promoted as Professor. Challenge to professorship could not have been raised in the writ application when filed, such promotion being a subsequent event. It was open to the Petitioner to amend the reliefs claimed in the writ petition and include the challenge to promotion of opposite party No. 2 to professorship within the ambit of the writ application. But merely because such an amendment has not been prayed for and no attempt was made to bring the dispute relating to promotion of opposite party No. 2 to the post of Professor as a point of dispute in that pending application, it would not amount to either abandonment of a relief available or give rise to a plea of constructive res judicata as the cause of action in the matter of challenge to promotion for professorship was an event subsequent to the filing of the lis. So far as the second writ application is concerned, therefore, we do not agree with learned Additional Government Advocate that there would be any res judicata relating to this aspect of the matter. 4 We may now examine the correctness of the unreported decision in O.J.C. No. 2172/75. Challenge in that application was to the appointment of one Dr. Samantray as Assistant Professor of T.B. & Chest Diseases on the ground that the Petitioner Dr. Bhutia was senior to him. Dr. Bhutia had contended that under Rule 5(v) of the 1973 Rules, the period taken by a person holding a junior teaching post for obtaining Post-Graduate Degree was to be deducted for the purpose of calculating the period of teaching experience. He, therefore, contended that the period from 9-11-1966 to 17-4-1971 (Dr. Samantray having registered himself for Post-Graduate study on 9-11-1966 and the result thereof having been published on 17-4-1971) should be deducted for calculating the length of teaching experience of Dr. Samantray. Calculated that way, Dr. Samantray became qualified for appointment as Assistant Professor only on 17-4-1974. Applying the same 1973 Rules to the case of the Petitioner Dr. Bhutia, he maintained that he was eligible for such appointment on 31-12-19/3. Thus, Dr. Bhutia being senior to Dr. Samantray. Calculated that way, Dr. Samantray became qualified for appointment as Assistant Professor only on 17-4-1974. Applying the same 1973 Rules to the case of the Petitioner Dr. Bhutia, he maintained that he was eligible for such appointment on 31-12-19/3. Thus, Dr. Bhutia being senior to Dr. Samantray, his promotion as Assistant Professor had been claimed to be contrary to the Rules. Dr. Samantray as also the State had taken the stand that the 1973 Rules were not applicable and under Rule 4(ii) of the Rules or 1970, the teaching experience of a teacher was to be calculated taking a maximum period of 2 years for Post-Graduate study, and on that basis, Dr. Samantray was senior to Dr. Bhutia. On this set of facts, the Division Bench in its judgment in paragraph 4 stated: The main question for consideration is whether the appointment of opposite party No. 4 as Assistant Professor is governed by the 1970 Rules or the 1973 Rules. As already mentioned, the 1973 Rules came into force on 22-3-1973. Prior to that, the 1970 Rules were in force. The Petitioner's contention is that the 1973 Rules are retrospective in operation and are applicable the cases which though referred to the Public Service Commission prior to the enforcement of the Rules had not been finally disposed of. In support of this contention, reliance has been placed on Rule 9(2) of the 1973 Rules. The contention of the opposite parties, on the other hand, is that the 1973 Rules are prospective so far as the recruitment and promotion are concerned. In paragraph 7 of the judgment, the Division Bench came to the conclusion: Be that as it may, the legal position as discussed above leaves no doubt that the 1970 Rules held the field when the opposite party No. 4 was first appointed as Assistant Professor on 19-7-1972 and the 1973 Rules are retrospective only for the limited purpose of fixation of seniority. (We have repeated this small paragraph for convenience). There is no indication in the unreported judgment as to whether Rule 6-A of the 1973 Rules had been cited. That Rule runs thus: Nothing contained in Sub-rule (1) of Rule 5 or Sub-rule (1) of Rule 6, in so far as they relate to the Selection Board, shall apply to the cases pending before the Commission prior to die commencement of these Rules. That Rule runs thus: Nothing contained in Sub-rule (1) of Rule 5 or Sub-rule (1) of Rule 6, in so far as they relate to the Selection Board, shall apply to the cases pending before the Commission prior to die commencement of these Rules. Admittedly, the matter of promotion of Dr. Samantray was pending before the Commission when the 1973 Rules came into force and, therefore, in terms of Rule 6-A of the 1973 Rules, Rule 5(1) or Rule 6(1) thereof was not a applicable to the matter. Though reference was not made to Rule 6-A. the conclusion in the unreported decision that the 1970 Rules and not the 1973 Rules were to be applied is thus the correct position. Dealing with the unreported decision, the Division Bench in the instant case has observed that the 1973 Rules had not intended that promotions already made prior to the enforcement of the 1973 Rules would not be disturbed and the making of provision for refixation of seniority under the 1973 Rules would be wholly futile if the result of refixation was not to be given effect to. Law is fairly settled that it is open to the employer to make rules relating to fixation of seniority of its employees. The ordinary rule that seniority would be determined on the basis of length of service is thus subject to rules framed for its computation. When rules made under Article 309 are in the field, the normal rule does not operate if it is contrary to the statutory rules. Determination of inter se seniority is a computation ordinarily effective for the future and the scheme of the 1973 Rules does not indicate that the intention of the rule-making authority was to disturb accomplished situation. It is not connect to say that there would be no purpose in determining inter se seniority if effect has not to be given to it by disturbing promotions, reversions and the like. Computation of seniority has thus prospective application and not to undo events which have already happened. A rule with such intention would be perfectly valid and cannot be said to be without any purpose. Again, ordinarily, statutory rules are not to be construed to have retrospective operation and keeping the same in view, in the unreported case, the Division Bench was not prepared to disturb events which had already happened. A rule with such intention would be perfectly valid and cannot be said to be without any purpose. Again, ordinarily, statutory rules are not to be construed to have retrospective operation and keeping the same in view, in the unreported case, the Division Bench was not prepared to disturb events which had already happened. Government, as the author of the rules, have also taken the same stand, namely, they had not intended that rules to be retrospective. Keeping these aspects in view, we are inclined to agree that the Division Bench in the unreported decision had come to the correct conclusion. 5. The next aspect to be considered is whether the Petitioner is senior to opposite party No 2. In paragraphs 8 and 9 at pages 168 to 173 of the Reporter 48 (1979) C.L.T. 158) this aspect has been dealt with. The Division Bench has come to the conclusion that the Petitioner became eligible to be appointed as Assistant Professor on 2-12-1966 while opposite party No. 2 became so eligible on 5-12-1966. That is how the Division Bench has taken the view that the Petitioner was senior to opposite party No. 2. The reasonings for this conclusion in the words of the Division Bench are these: 9. Petitioner joined as junior teacher in Medicine on 9-12-1961 and obtained P.G. Degree on 2-12-1963. If the period of two years is to be deducted from 2-12-1963 according to Rule 5(2)(v), it will be 2-12-1961 by which date the Petitioner had not joined as junior teacher in Medicine, the date of joining being 9-12-1961. Similarly, if period of two years is added to 9-12-1961, which is the date of joining of the Petitioner, it will be 9-12-1963 which should be taken as the date of obtaining P.G. Degree by the Petitioner though he obtained P.G. Degree on 2-12-1963. So, this will lead to anomalies and to an absurd position. What Rule 5(2)(v) provides is that in calculating the period of teaching experience, the period taken by a person holding a junior teaching post for obtaining the post-graduate degree or diploma shall be deducted and it shall not be less than two years in case of P.G. Degree. So, this will lead to anomalies and to an absurd position. What Rule 5(2)(v) provides is that in calculating the period of teaching experience, the period taken by a person holding a junior teaching post for obtaining the post-graduate degree or diploma shall be deducted and it shall not be less than two years in case of P.G. Degree. According to this rule, a person holding a junior teaching post if he wants to obtain P.G. Degree while holding such post and yet wants to take advantage of his teaching experience the actual period so taken for obtaining P.G. Degree I is to be deducted from his teaching experience or a minimum period of two years shall be deducted. This situation will only arise where less than two years have been taken to obtain P.G. Degree while holding a junior teaching post and two years of teaching experience is there to the credit of the person as junior teacher. In the case of opposite party No. 2, he has taken more than two years for obtaining P.G. Degree. The date of registration of opposite party No. 2 for the P.G. Degree is 7-11-1960 and the date of obtaining P.G. Degree is 18-11-1964. He was holding a teaching post during that time and so the period taken for obtaining P.G. Degree being excluded, the deemed date of his appointment has been correctly determined as 5-12-1966. Opposite party No. 2 has obtained advantage of his teaching experience prior to obtaining P.G. Degree which experience has been added to his total teaching experience, otherwise his deemed date of appointment would have been 18-4-1967. But in the case of Petitioner, he was not a junior teacher prior to 9-12-1961 and between 9-12-1961 and 2-12-1963, he obtained P.G. Degree. He has not completed two years of teaching experience as junior teacher when he obtained P.G. Degree. So, in his case, deduction of two years does not arise. But in the case of Petitioner, he was not a junior teacher prior to 9-12-1961 and between 9-12-1961 and 2-12-1963, he obtained P.G. Degree. He has not completed two years of teaching experience as junior teacher when he obtained P.G. Degree. So, in his case, deduction of two years does not arise. What has been done in the case of Petitioner is that, in order to arrive at 9-12-1966 as the deemed date of eligibility and deemed date of appointment as Assistant Professor five years has been added to 9-12-1961, i.e. of which two years have been added to 9-12-1961 (which is the date of joining) under Rule 5(2)(v) proviso and then another three years have been added under Rule 5(2)(ii) which is absolutely arbitrary illegal and is not in compliance with the Rules. The matter can be best illustrated by an example. 'A' is appointed as Junior Teacher on 5-4-1975. Prior to his appointment, he registered himself for the P.G. Degree and obtained P.G. Degree on 10-4-1975. If the interpretation of opposite parties of the rules is accepted, five years shall be added to 5-4-1975 and his date of eligibility will be 5-4-1980, i.e. by adding two years as Junior Teacher (though he has served as Junior Teacher only for 5 years prior to obtaining P.G. Degree, and three years after obtaining P.G. Degree, though, in fact, he becomes eligible on 10-4-1978 on which date he completes three years of teaching experience after obtaining P.G. Degree as per Rule 5(2)(ii). This win lead to an absurd position if the interpretation of opposite parties is accepted. The Petitioner after obtaining P.G. Degree on 2-12-1963 became eligible to be appointed as Assistant Professor on 2-12-1966 under Rule 5(2)(ii) which was correctly determined in Annexure 5. xx xx xx The relevant rule is on relating to computation of seniority. Whether less or more time is taken for obtaining the Post-Graduate Degree, the rule uniformly prescribes for a deduction of two years. The statutory rule is not under challenge before the Court. For the purpose of uniformity and with a view to making it convenient to compute seniority, the rule-making authority has prescribed a uniform period of deduction. The normal time to be taken for a Post-Graduate Degree is also 2 years. Therefore, the statutory rule requires deduction of 2 years. The statutory rule is not under challenge before the Court. For the purpose of uniformity and with a view to making it convenient to compute seniority, the rule-making authority has prescribed a uniform period of deduction. The normal time to be taken for a Post-Graduate Degree is also 2 years. Therefore, the statutory rule requires deduction of 2 years. When the rule prescribes that the minimum period of 2 years shall be deducted and the two-years period is not an arbitrary fixation, there is no justification to overlook the rule and introduce a provision different from what the statutory rule prescribes. Acceptance of the stand taken by the opposite parties seems to be more reasonable, and a uniform period of 2 years as required by the proviso has to be deducted in the matter of calculation because the Proviso requires: Provided that the said period shall not be less than two years in the case of Post-Graduate Degree The Petitioner registered himself on 13-2-1962 for Post-Graduate Degree and the results were published on 2-12-1963 The Division Bench proceeded on the basis that if 2 years were to be deducted from 2.12.1963 it worked out to 2-12-1961. By then the Petitioner was not a junior teacher. They also found that if 2 years were added to 9-12-1961, it came to 9-12-1963. But a week before, the Petitioner had already obtained the Post-Graduate Degree. The proviso lays down a uniform rule. In the same way, if a person has taken more than 2 years to have the Post-Graduate Decree, only 2 years are deducted, where a person may have taken a few days short of 2 years, he would not be entitled to any special consideration and a net period of 2 years only has to be deducted. If that be done, in the instant case the Petitioner would be junior to the opposite party No. 2. 6. Mr. Rath for the Petitioner has maintained that the Petitioner was senior to opposite party No. 2 on the basis of what has been found by the Division Bench in the referring judgment (See page 173 of the Reporter). It is maintained that once the Petitioner was senior under the previous rules, that seniority would not be disturbed and the new rules cannot prejudice the Petitioner's position. It is maintained that once the Petitioner was senior under the previous rules, that seniority would not be disturbed and the new rules cannot prejudice the Petitioner's position. We have already found that, the basis for holding that the Petitioner was senior to opposite party No. 2 is not correct. There is no necessity to reiterate what we have already said. Law is fairly settled that it is open to the State Government to make provision in statutory rules regulating seniority with retrospective effect and a rule, consequence whereof is displacement of inter se seniority, would not be bad. In fact, that must have been the consideration when this Court, while disposing of the first writ application in 1970, did not go into the question and left it to be decided by the 1970 Rules. Again, while disposing of the second writ application, the Court did not undertake that exercise and left it to be determined under the 1973 Rules. 7. There is yet another aspect which must be dealt with before the submissions are examined. Opposite party No. 2 was promoted as Professor as early as 1970. He has already completed more than 12 years of service as Professor. Mr. Rath for the Petitioner has claimed that the Petitioner wall directed to be promoted as Reader forthwith in the judgment of this Court in O.J.C. No. 921 of 1970, but the question of, seniority was not decided and it was left to be done in terms of the Rules of 1973. This Court indicated that till seniority was finally decided under the Rules, the Petitioner should be deemed to be senior. Therefore, the Petitioner should have been, it is contended, promoted as Professor and should have continued to be shown on that footing in the gradation list both of Readers as also Professors. He has again contended that there is no question of delay and laches and in support of this aspect of his contention he has relied on the observations of the Division Bench in this case in paragraphs 5, 6 and 7 of the referring order. He has again contended that there is no question of delay and laches and in support of this aspect of his contention he has relied on the observations of the Division Bench in this case in paragraphs 5, 6 and 7 of the referring order. At page 168 of the Reporter, the Division Bench has come to the conclusion: In view of the above observation of the Court, when in the gradation list of Associate Professors and Professors of Medicine, Annexure 5, circulated on 16-3-1974, the Petitioner did not find his name, he has come up with this writ applicatIon for appropriate reliefs. There is considerable force in the aforesaid contention of Mr. Rath and we hold that there is no laches or delay in filing the writ application in the facts and circumstances of the case. This aspect has to be considered from two view points; firstly, with reference to the Petitioner, whether there are laches, and secondly, with reference to opposite party No. 2, whether, after he has worked for more than 12 years as Professor, he should be dislodged even if the Petitioner be senior to him. As we have already pointed out, the Petitioner has been before this Court thrice. His first litigation began in the year 1968 and was disposed of on 22.6-1970. The second application was filed on 18-9-1970 and was disposed of on 17-12-1973. This application was filed on 18-10-1974. He has thus been before this Court for almost 14 years now. So far as he is concerned, in the special circumstances which have been taken into account by the Division Bench in order of reference, possibly there may not be much room to hold that there has been negligence or laches. We cannot, however, overlook the feature that opposite party No. 2 obtained promotion as Professor in the normal course as early as 1970. To allow his promotion to be called in question now would certainly work out great hardship and prejudice to him. He is already 57 years old and has hardly a year's service left when under the rules applicable to him he will superannuate. If at this juncture he is disturbed, it would certainly work out undue hardship to him. To allow his promotion to be called in question now would certainly work out great hardship and prejudice to him. He is already 57 years old and has hardly a year's service left when under the rules applicable to him he will superannuate. If at this juncture he is disturbed, it would certainly work out undue hardship to him. We do not think, that promotion should be permitted to be assailed in the year 1982, when more than 12 years have elapsed since opposite party No. 2 was promoted as Professor. It is true that the Petitioner has been systematically attempting to obtain relief and ordinarily for delay in disposal of the lis, the aggrieved party should not suffer. But when equities are under consideration, the position of both sides must be kept in view. There is no case of collusion, manipulation or malafide of the opposite party No. 2 in the matter of his promotion as Professor. We think that it would be sound exercise of discretion that the promotion of the opposite party No. 2 should not be disturbed as it would be wholly inequitable to dislodge him from professorship at this stage. 8. With effect from 13-8-1979, a new set of Rules, known as The Orissa Medical Education Service (Recruitment) Rules 1979, have come into force after repealing the 1973 Rules. These Rules, so far as the question of fixing of inter se seniority is concerned under Rule 8(2) in respect of junior teachers; under Rule 9(2) in respect of Assistant Professors and under Rule 10(2) in respect of Associate Professors and Professors, have retrospective effect, having been deemed to have taken effect from 1st December, 1960. The Petitioner joined service under Government on 9-12-1961. Therefore, his entire service is to be dealt with under these Rules for the purpose of seniority. Mr. Rath had contended that the Petitioner's claim to seniority over opposite party No. 2 should have been decided before 1979 and merely because there has been negligence on the part of the State Government to do so, the Petitioner's case should not be allowed to be governed under the Rules of 1979 to his prejudice. Mr. Rath had contended that the Petitioner's claim to seniority over opposite party No. 2 should have been decided before 1979 and merely because there has been negligence on the part of the State Government to do so, the Petitioner's case should not be allowed to be governed under the Rules of 1979 to his prejudice. As we find, the Rules of 1979 are pervasive and purport to reopen matters for fixation of seniority afresh at all levels, Rule 9(2) of the 1979 Rules prescribes that inter se seniority of Assistant Professors appointed on or after 1st December, 1960 till the date of commencement of the 1979 Rules should be determined in consultation with the Commission according to the principles indicated therein. Rule 10(2) also provides that inter se seniority of Associate Professors and Professors after 1st December, 1960, till the date of commencement of the 1979 Rules should be determined in consultation with the Commission according to the principles indicated therein. Rule 13 requires the State Government to publish gradation lists duly reflecting seniority determined in accordance with Rules. The ambit of the 1979 Rules thus seems to be wide and Government have contemplated that seniority of those to whom the Rules apply will have to be refixed in terms of the Rules. That is why, the Rules have been expressly made retrospective from 1960 to authorise review of the question of seniority on the basis of principles indicated in the Rules. Since vires of the Rules are not under challenge in this application, we do not think, there would be any justification to deal with the Petitioner s matter without reference to the Rules, nor would it be appropriate that we take upon ourselves the task of deciding the question of fixing inter se seniority when a statutory machinery has been provided for it. It is useful to refer to Rule 14 of the 1979 Rules which provides: Notwithstanding anything contained in these rules, if any teacher becomes entitled to promotion by operation of Sub-rule (2) of Rule 8, Sub-rule (2) of Rule 9 or Sub-rule (2) of Rule 10, as the case may be the same shall, subject to his being considered suitable for promotion according to these rules, be given to him, but he shall not be entitled to any consequential financial benefits for the period preceding the date of publication of these rules in the gazette. We are inclined to agree with the submission of the opposite parties that the Petitioner's claim should be considered within the ambit of the 1979 Rules. On the earlier occasion, Government had come forward with a clear affidavit that the performance of the Petitioner and opposite party No. 2 was equally balanced. Relying on this feature, the Court had directed the Petitioner to be promoted to the post of Reader (Associate Professor). Though the record before us does not contain a reiteration of that position relating to the performance of the Petitioner as Associate Professor, we find that the Petitioner has been very much prejudiced by the frequent change of the rules. Though under the 1973 Rules the Petitioner could have derived certain advantages, the same have been denied to him by repeal of the Rules. The injustice which has been done to the Petitioner can, to a considerable extent, be met, if he is promoted as Professor. 9. Taking an overall picture of the matter, we think, it is appropriate that the Petitioner be promoted as a Professor at the earliest opportunity, preferably within 3 months from now. The Petitioner at present would be about 52 years of age and has still six years to go before superannuation would become due. In consideration of the fact that opposite party No. 2 is senior to him both in age as also in the totality of service under the State, the dispute between the parties should come to an end. A long-drawn litigation between the employee and the employer ordinarily does not benefit either. 10. We are told that the gradation list under the 1979 Rules is being finalised and as and when the same is available, the scheme under the 1979 Rules will operate. A long-drawn litigation between the employee and the employer ordinarily does not benefit either. 10. We are told that the gradation list under the 1979 Rules is being finalised and as and when the same is available, the scheme under the 1979 Rules will operate. When the gradation list is prepared and the Petitioner's inter se seniority is fixed, he might be found to have been eligible for promotion from an earlier date. Then Rule 14 of the 1979 Rules may be called into play. We do not propose to express any view so far as those aspects are concerned. The only relief which the Petitioner should get in this writ application, therefore, is a direction to the State Government that he be promoted as a Professor within the period indicated above, and even if there be no vacancy immediately, the State Government should take appropriate steps to accommodate the Petitioner. We have already indicated why we have come to this conclusion. 11. Before we part with this case, we must bring a very alarming aspect to the notice of the State. Several considerations go to make Government service attractive and citizens prefer employment under the State to private employment or even employment under Corporations though conditions of service in private employments may be lucrative. Guarantees available to a public servant, security of tenure, broad base of the service and the impersonal nature thereof and the like are considerations which normally account for preference for Government service. Traditionally, governmental transactions enjoy a special credit and that applies equally to employment under the State. As already pointed out, until 1970 there were no statutory rules regulating service conditions of doctors in the employment of the State and the field was covered by Administrative Instructions. The first set of Rules came into force with effect from 30-5-1970. These underwent amendment with effect from 8-8-1970. The 1973 Rules in supersession of the previous Rules came into operation from 22-9-1973. The 1973 Rules were amended with effect from 15-4-1974. The 1973 Rules with their amendments were replaced by the 1979 Rules with effect from 13-8-1979. Thus, within a period of about 9 years, 3 complete sets of Rules and 2 sets of amendments have operated in the field. The frequency with which the rules have been changed has certainly created confusion. The 1973 Rules with their amendments were replaced by the 1979 Rules with effect from 13-8-1979. Thus, within a period of about 9 years, 3 complete sets of Rules and 2 sets of amendments have operated in the field. The frequency with which the rules have been changed has certainly created confusion. Some of the provisions have been radically different and a new base has been provided under the different sets of rules regarding fixation of seniority. Seniority which ordinarily once determined is supposed to continue for the entire service career of incumbents has been disturbed. The rules have been made retrospective so far as the question of seniority inter se is concerned. Therefore, even when seniority has once been determined, it has again become disputed and has ultimately been disturbed. Seniority has an important bearing in service career and service benefits to a considerable extent depend upon seniority. If attempt be made to disturb the same frequently, a chaotic situation is bound to prevail. These must have been known to the State; yet on 5 occasions in 9 years the same matter has been differently provided for. Uncertainty has been introduced without any justification. Security of service is a feature which is directly connected with efficiency of the service. When security is disturbed, efficiency is bound to be reduced. Several employees would be busy representing to the employer or to be before the court litigating against the employer. This certainly is not a happy feature and is not a situation congenial either to the interest of the State or to that of the employees. We hope, such an unfortunate situation would not be allowed to creep in either into this service or into the other fields of employment under the State. While we concede that the State has the power to do so, rules should be framed with due deliberation and once framed should be allowed to hold the field for a substantially long period so that everyone would be aware of the rules, know his position and work out his rights under them. 12. We make no order for costs. J.K. Mohanty, J. 13. 12. We make no order for costs. J.K. Mohanty, J. 13. I agree with the view expressed by the Hon'ble the Chief Justice that the Petitioner be promoted as a Professor at the earliest opportunity, preferably within three months from now and that opposite party No. 2, who has been continuing as Professor of Medicine since more than 12 years, shall not be disturbed and also with the observation made in paragraph 11 of the judgment. R.C. Patnaik, J. 14. While agreeing with My Lord Chief Justice and J.K. Mohanty, J. that the writ application should be disposed of in the manner indicated and entirely associating myself with the observations made in paragraph-11 of the Judgment, I make a few observations to give expression to my distress. 15. In a welfare State like ours, the State is an ideal employer. It sets examples by its conduct for others to emulate and follow. Can this be said about the Health Department of the State from the manner the doctors serving in the medical colleges have been treated. With a view to setting the standard and clearing the confusion a set of rules were framed in 1970. These rules were amended in a few months and got supplanted in 1973. In 1973 the rules themselves underwent an amendment within a short while and were superseded by the 1979 rules. Each new set of rules has topsy turvied the position of doctors in regard to their seniority and prospects for promotion. For more than a decade they have been left in a state of flux. It seems, as if frequent changes in the service conditions have been made keeping certain persons in view and not with the object of effectuating any policy or in the interest of the service. One is distressed to note the sad plight of the doctors like the Petitioner. A disgruntled service is an inefficient service and cannot be expected to deliver the goods. The doctors serving in the medical colleges, a vital sector in the State administration to whose care health and lives of citizens have been entrusted, have not been dealt with in a manner an ideal employer is expected to do. I may not go that far with Hamlet when he exclaimed. The doctors serving in the medical colleges, a vital sector in the State administration to whose care health and lives of citizens have been entrusted, have not been dealt with in a manner an ideal employer is expected to do. I may not go that far with Hamlet when he exclaimed. Something is rotten in the State of Denmark in regard to the Health Department of the State, but I would not be far from truth if I say all is not well with it. The tact that the seniority lists of doctors serving in the medical colleges have not been finalised for about 12 years last is sad indeed and tells its own tale.