JUDGMENT R. K. PATRA, J. — The bone of contention between the parties in this writ petition is whether there is one department consisting of Medical Oncology and Nuclear Medicine or there are two separate and different departments like “Medical Oncology” and “Nuclear Medicine” in the Acharya Harihar Regional Cancer Re¬search and Treatment Society, Cuttack (hereinafter referred to as “the Cancer Institute”). The petitioner asserts that there is only one and one department called Medical Oncology and Nuclear Medicine and there is no independent department such as “Nuclear Medicine” in the Cancer Institute. The consisting opposite par¬ties stoutly dispute the above claim. 2. The case of the petitioner is that the Government of Orissa in Health and Family Welfare Department letter No. 23630/H dated 6.7.1999 (Annexure-2) upgraded the post of lecturer, Nucle¬ar Medicine to that of Assistant Professor, Medical Oncology an Nuclear Medicine in the Cancer Institute with effect from 20.6.1994 and allowed notional promotion to him to the rank of Assistant Professor, Medical Oncology and Nuclear Medicine. Nine days thereafter, in supersession of the above,the Government issued letter No. 24887/H dated 16.7.1999 (Annexure-3) approving upgradation of the post of lecturer in Nuclear Medicine to that of Assistant Professor, Nuclear Medicine allowing notional promo¬tion to the rank of Assistant Professor, Nuclear Medicine with effect from 20.6.1994 to 28.3.1996. The validity of the Govern¬ment decision Communicated at Annexure-3 is the subject mater of challenge in this writ petition. 3. The State Government (opposite party No. 1) has filed counter affidavit affirmed by the Under Secretary to the Govern¬ment in Health and Family Welfare Department. Its case is that Medical Oncology and Nuclear Medicine are two different branches as per the guidelines prescribed by the Medical Council of India. The petitioner, who was working as lecturer, Radiotherapy in the Cancer Institute was appointed as lecturer, Nuclear Medicine by notification No. 1224 dated 14.5.1990 (Annexure-A/1).He exercised his option in writing to be permanently absorbed in the services of the Cancer Institute as lecturer in Nuclear Medicine (Annex¬ure-B/1). The Departmental Promotion Committee of the Cancer Institute recommended him for promotion to the post of Assistant Professor in Nuclear Medicine in its proceedings held on 30.6.1993 (Annexure-C/1). The further case of the State Govern¬ment is that seven posts including the post of the petitioner were recommended by the Sub-Committee for upgradation which was accepted by the Governing Body of the Cancer Institute. The further case of the State Govern¬ment is that seven posts including the post of the petitioner were recommended by the Sub-Committee for upgradation which was accepted by the Governing Body of the Cancer Institute. As the State Government did not accord approval for upgradation, two writ petitions bearing OJC No. 9550 of 1993 (filed by one Dr. Jugal Kishore Nanda) and OJC No. 9552 of 1993 (filed by the Doc¬tor’s Association of the Cancer Institute represented by the petitioner)were filed in this Court. By a common judgment dated 21.9.1994 this Court directed the State Government to reconsider its decision and accord approval to the upgradation of posts as per the recommendation of the Governing Body of the Cancer Insti¬tute. Because the State Government did not accord approval for the upgradation of the petitioner’s post, he filed writ petition (OJC No. 10223 of 1997) and this Court by order dated 7.5.1999 (Annexure-1) directed the State Government, that the petitioner’s case for upgradation be given effect to with effect from 20.6.1994. In the said order this Court never directed the Gov¬ernment to upgrade the post of the petitioner to that of Assist¬ant Professor in Medical Oncology and Nuclear Medicine. Neither the Departmental Promotion Committee nor the Governing Body of the Cancer Institute recommended to upgrade the post of the petitioner to Assistant Professor in Medical Oncology and Nuclear Medicine. The recommendation was for upgradation of the post to Assistant Professor in Nuclear Medicine only. In the circumstances, the Government decision communicated in department letter No. 23630/H dated 6.7.1999 (Annexure-2) was issued by mistake upgrading the petitioner’s post to that of Assistant Professor in Medical Oncology and Nuclear Medicine and when this mistake was discovered, the same was immediately rectified by issuing the impugned letter at Annexure-3. It is also pleaded in the counter affidavit that one Dr. Anupama Sasmal has been pro¬moted to the upgraded post of Assistant Professor, Medical Oncol¬ogy by the Cancer Institute’s order No. 2643 dated 18.8.1994 (Annexure-D/1) and she being not added as a party, the petition¬er’s writ petition is liable to be dismissed. It may be noted that the said Dr. Anupama Sasmal applied for intervention which was allowed by order dated 24.11.2000 and she is now opposite party No. 3 in the case. It may be noted that the said Dr. Anupama Sasmal applied for intervention which was allowed by order dated 24.11.2000 and she is now opposite party No. 3 in the case. The petitioner has filed rejoinder to the counter affidavit of the State Government and has enclosed a number of documents in support of his case that in the Cancer Institute there is one post in the department of Medical Oncology and Nuclear Medicine which he had been holding and the Government have rightly upgrad¬ed that post as per Annexure-2 and erroneously superseded it by Annexure-3. Opposite party No. 3 (Dr. Anupama Sasmal) has filed a sepa¬rate counter affidavit. Her case is that she joined the State Government service as an Assistant Surgeon and by the Department order No. 1690 dated 16.1.1998 (Annexure-A/3) she was appointed as a lecturer in Medical Oncology on deputation in the Cancer Institute. After the Cancer Institute was converted and regis¬tered as Society under the Registration Act, it issued advertise¬ment inviting applications from eligible candidates for the post of lecturer in Medical Oncology. Pursuant to the said advertise¬ment, she (opposite party No. 3) appeared before the Selection Committee and after being selected came to be appointed by the notification dated 14.5.1990 (Annexure-B/3) as lecturer in Medi¬cal Oncology. She joined the said post on 18.9.1990. In the same order (Annexure-B/3), the petitioner, who was working as lectur¬er, Radiotherapy in the Cancer Institute under the Health and Family Welfare Department was appointed as lecturer, Nuclear Medicine. While she (opposite party no. 3) was so continuing, the post of lecturer in Medical Oncology was upgraded by the State Government to the post of Assistant Professor in Medical Oncology and the post of lecturer in Medical Oncology was abolished. She was promoted to the upgraded post of Assistant Professor, Medical Oncology by order No. 2643 dated 18.8.1994 (Annexure-C/3). On account of retirement of one Dr. Annapurna Rout, who was the Head of the Department of Medical Oncology the said post fell vacant and she (opposite party No. 3) was directed to work as In-charge Professor of Medical Oncology-cum-Head of the Department in addition to her own duty from 1.12.1996 as per order no 3717 dated 30.11.1996 (Annexure-D/3). On account of retirement of one Dr. Annapurna Rout, who was the Head of the Department of Medical Oncology the said post fell vacant and she (opposite party No. 3) was directed to work as In-charge Professor of Medical Oncology-cum-Head of the Department in addition to her own duty from 1.12.1996 as per order no 3717 dated 30.11.1996 (Annexure-D/3). In the year 1996, the post of lecturer of Nuclear Medicine in the Cancer Institute was upgraded to that of Assistant Professor and as a consequence the post of lecturer of Nuclear Medicine was abolished. Accordingly, the petitioner was allowed to hold the post of Assistant Professor on 29.3.1996 by order No. 1014 dated 29.3.1996 (Annexure-E/3) and has been continuing as such. His prayer to upgrade the post of lecturer in Nuclear Medicine to that of Assistant Professor with effect from 23.5.1994 was rejected by the State Government letter No. 36425/H dated 6.9.1996. The further stand of opposite party No. 3 in her counter affidavit is that the petitioner belongs to Nuclear Medicine which is a separate discipline from that of Medical Oncology in which she has been working. This is evident from the order No. 2636 dated 17.8.1999 issued by the Chairman of the Governing Body of the Cancer Institute. The petitioner has filed rejoinder to the counter of the opposite party No. 3 disputing her stand. The Director of Cancer Institute (opposite party No. 2) has filed counter affidavit stating that the Nuclear Medicine and Medical Oncology are distinctly two separate departments as per the M.C.I. guidelines and the Government have clarified this position in their letter No. 40175/H dated 28.10.1999 (Annexure-C/2). Opposite party No. 3 is the lone doctor in the Medical Oncology discipline and has been working as Assistant Professor and Head of the Department in the said discipline since 1996. On the other hand, the petitioner was initially appointed as lecturer, Nuclear Medicine and was promoted to the post of As¬sistant Professor, Nuclear Medicine. The petitioner, therefore, does not have any right to claim berth in a different discipline i.e, Medicine Oncology. Therefore, the claim of seniority made by him in the Medical Oncology Department is baseless and he cannot get promotion in the Medical Oncology Department. The petitioner has also filed rejoinder to the said counter affidavit of opposite party No.2. He has also filed further affidavit. Therefore, the claim of seniority made by him in the Medical Oncology Department is baseless and he cannot get promotion in the Medical Oncology Department. The petitioner has also filed rejoinder to the said counter affidavit of opposite party No.2. He has also filed further affidavit. The opposite party No. 3 has filed counters to the rejoinders of the petitioner. The Government have also filed additional affidavit on 25.4.2001 affirmed by the Under Secretary of the De¬partment. 4. In course of hearing of this case, this Court directed by order dated 6.2.2002 requiring the Director of Cancer Insti¬tute to file affidavit indicating whether there are two Heads of Departments in respect of Nuclear Medicine and Medical Oncology or there is one Head of the Department for both the disciplines mentioned above. Pursuant to the above direction, the Director has filed an additional affidavit on 13.2.2002 stating that Medi¬cal Oncology and Nuclear Medicine are distinctly two separate and independent departments. Opposite party No. 3 is the Assistant Professor, Medical Oncology and she is the Head of the Department of the Medical Oncology Department, whereas petitioner is the Assistant Professor, Nuclear Medicine and he is the Head of the Department of Nuclear Medicine. Both the disciplines being two different and separate subjects, they cannot be clubbed together. 5. Before deliving into the merit of the case, we may briefly indicate as to how the Cancer Institute has come to be established. At a particular point of time in the State of Orissa there was no separate institute for treatment of cancer. There was, however, a wing in the S.C.B. Medical College and Hospital, Cuttack where patient suffering from that dreaded disease were being treated till 1981 when the State Government decided to create a separate institute for treatment of cancer only. There¬after, Acharya Harihar Regional Cancer Centre was established and was registered under the Societies Registration Act, 1860 on 24.4.1984 and the employees serving in the Cancer wing of S.C.B. Medical College and Hospital were taken to the Acharya Harihar Regional Cancer Centre by way of deputation and subsequently regularised.It is an autonomous body and has framed a set of bye-laws for its governance. In the meantime, Acharya Harihar Region¬al Cancer Centre has been renamed as Acharya Harihar Regional Centre for Cancer Research and Treatment Society. 6. In the meantime, Acharya Harihar Region¬al Cancer Centre has been renamed as Acharya Harihar Regional Centre for Cancer Research and Treatment Society. 6. The essential question for decision is whether in the Cancer Institute one post has been created for Medical Oncology and Nuclear Medicine or to separate posts; one for Medical Oncol¬ogy and another for Nuclear Medicine. In other words, whether two separate posts-one for Medical Oncology and another for Nuclear Medicine were created or only one post was created keeping both the disciplines as one unit. It is the submission of the contest¬ing opposite parties that in the guidelines prescribed by the Medical Council of India, Medical Oncology and Nuclear Medicine are two different disciplines different from each other. In our considered opinion, in medical science both of them may be two different disciplines, but it cannot help us in any manner to resolve the controversy. Medical Council of India has no role to play with regard to creation of departments or posts in any Medical College except it has the authority to prescribe the eligibility criteria or qualification for the post/grade. The right to create posts lies with the Governing Body of the Cancer Institute. Clause-17 of Chapter-III of the Bye-laws provides that the Governing Body with the recommendation of the Executive Committee shall have the authority to create or upgrade any post as it may deem necessary subject to the approval of the State Government. Therefore, in order to get hang of the issue, we have to examine the orders/resolutions creating the post of Assistant Professor in respect of the concerned disciplines. By Government order No. 23630 dated 6.7.1999 (Annexure-2) the Government informed the Director, Cancer Institute giving its approval to the upgradation of the post of lecturer, Nuclear Medicine to that of Assistant Professor, Medical Oncology and Nuclear Medicine with effect from 20.6.1994. The Government in letter No. 13903 dated 29.3.2000 (Annexure-16) made query from Director, Cancer Institute to know as to whether there is any record in existence of unified department of Nuclear Medicine and Medical Oncology and if not, to inform about the date and year of creation of two separate departments. The Director in his letter No. 1284 dated 4.4.2000 (Annexure-16/1) replied that there is no order creating two departments i.e. Nuclear Medicine and Medical Oncology. Paragraph-3 of the said letter is extracted hereunder : “There is no record for unified Deptt. The Director in his letter No. 1284 dated 4.4.2000 (Annexure-16/1) replied that there is no order creating two departments i.e. Nuclear Medicine and Medical Oncology. Paragraph-3 of the said letter is extracted hereunder : “There is no record for unified Deptt. of Nuclear Medicine and Medical Oncology.However, as per the advertisement made as per Govt. Letter No. 30170/H dt. 29/08/88, Nuclear Medicine and Medical Oncology has been reflected in one Deptt. The eligibility criteria and selection of Lecturer has been done as per M.C.I. rules (copy enclosed). There is no order regarding creation of two Deptt. i.e. Nuclear Medicine and Medical Oncology.” The aforesaid reply of the Director, Cancer Institute practically clinches the issue. Besides this, in the Annual report 1996-97 of the Cancer Institute it was mentioned as follows : “The present Medical Oncology Department has started pri¬marily as a “Chemotherapy Section” in 1983 with only two part-time doctors and four beds. Subsequently in 1987 it was expanded to the Medical Oncology Department which includes “Nuclear Medi¬cine” and experimental Oncology sections. The bed strength had been increased to twelve. Research on newer drug and revised protocols have been conducted along with the International Oncol¬ogy study groups, which results in improved patient care and sur¬vival. This year facilities for platelet transfusion have been arranged through IGH. Rourkela and efforts are being made to pur¬chase a cell separator”. (Emphasis laid) In the circumstances, we are inclined to hold that the Governing Body of the Cancer Institute never created two separate posts; one for Medical Oncology and another for Nuclear Medicine nor there is any Government order giving approval for creation of posts. 7. In view of what has been stated above, the Government order contained in letter No. 24887/H dated 16.7.1999 at Annex¬ure-3 is hereby quashed. Consequently, the order contained in letter No. 23630/H dated 6.7.1999 at Annexure-2 stands restored. In the result, the writ petition is allowed. No. costs. CH. P. K. MISRA, J. I agree. Petition allowed.