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2012 DIGILAW 425 (ORI)

Susanta Kumar Behera v. State of Orissa

2012-09-24

B.K.NAYAK, B.P.DAS

body2012
JUDGMENT B.K. NAYAK, J. : In this writ application the petitioners pray for quashing the advertisement dated 23.06.2011 under Annexure-3 and for directing the opposite parties to continue the petitioners contractual employment as Clinical tutor till the vacancies are filled up by way of regular recruitment by the Orissa Public Service Commission (in short ‘the OPSC’). 2.Admittedly, the petitioners have acquired BDS degrees from recognised Institutions. In pursuance to the advertisement dated 08.05.2008 (Annexure-1) issued by the Government of Orissa, Deparmtent of Health and Family Welfare, the petitioners made applications, faced interview and being selected got appointed as Clinical Tutors for different subjects on contractual basis as per appointment orders dated 10.07.2008/26.11.2008 (Annexure-2 series). As per the appointment orders, the appointment is purely contractual in nature for a period of one year with consolidated pay of Rs.15,000/- per month, extendable to three years or till the post is filled up by the OPSC on regular basis, whichever is earlier. It is also stipulated that the appointment is purely on temporary basis and terminable at any time without assigning any reason thereof. Admittedly, the petitioners’ appointment was extended from year to year up to three years, which came to an end on 9th July, 2011 and thereafter. Shortly before the contractual engagement of the petitioners came to an end, opposite party No.3 issued an advertisement on 23.06.2011 (Annexure-3) for filling up eight posts of Senior Resident/Clinical Tutor in different Disciplines at S.C.B. Dental College and Hospital, Cuttack. As per the advertisement, applications were invited from MDS/BDS Degree holders with a stipulation that the candidates with MDS qualification shall be given preference. It is also stipulated that the engagement will be on yearly basis for a maximum period of three years subject to satisfactory performance. 3.It is the contention of the learned counsel for the petitioners that since the petitioners are continuing in the posts of Clinical Tutor, they should not be substituted by another set of contractual employees and that they should be permitted to continue in the post of Clinical Tutor till the OPSC makes recruitment on regular basis. It is further contended that if the authorities proposed to fill up the posts on contractual basis, there is no justification to disengage the present petitioners and again employ another new set of persons on contractual basis, as such action would be arbitrary and unreasonable. It is further contended that if the authorities proposed to fill up the posts on contractual basis, there is no justification to disengage the present petitioners and again employ another new set of persons on contractual basis, as such action would be arbitrary and unreasonable. A further stand is taken by the petitioners in their rejoinder affidavit is that by virtue of Section 20 of the Dentists Act, 1948, the Dental Council of India have revised BDS Course Regulation, 2007 which envisages various guidelines and the procedure for filling up posts in the various disciplines of ‘Dentistry’. Under the Regulations, the minimum staff pattern has been prescribed according to which, for under-graduate Dental studies for 50 Admissions, there shall be 30 Lecturers/Tutors out of which 25% shall be MDS and 75% BDS and, therefore, for 22 posts out of 30 the minimum qualification is BDS. It is submitted that since the S.C.B. Dental College and Hospital have decided to have student strength of 50, even if eight MDS candidates are taken, still 22 posts will be available for BDS candidates. It is also stated that due to non-compliance of the defects pointed out by the Dental Council of India for the year 2010-11 the student strength of the Institution was again reduced to 20, but thereafter the State Government took steps for compliance of defects, inter alia relating to appointment of adequate number of staff as required under the Regulations pointed out by the Dental Council of India. It is also stated that as against the required strength of 30 Lecturers/Tutors, there are only 10 out of which 7 are the present petitioners. 4.In the counter affidavit filed by the opposite party Nos.1 to 3, it is stated that the petitioners were selected and engaged as Tutors on contractual basis for which they submitted their undertakings (Annexure-B/3 series). The contractual and temporary nature of engagement has been specifically accepted by the petitioners and, therefore, they cannot claim better right than the terms of the contract/undertakings. It is further stated that the posts of Clinical Tutor/Senior Resident/Tutor/Demonstrator/Registrar are all analogous in nature and their job charts are equal so far as the Medical College/Dental College is concerned. All these posts are contractual in nature on an yearly basis extendable for maximum period of three years. It is further stated that the posts of Clinical Tutor/Senior Resident/Tutor/Demonstrator/Registrar are all analogous in nature and their job charts are equal so far as the Medical College/Dental College is concerned. All these posts are contractual in nature on an yearly basis extendable for maximum period of three years. This concept was introduced by the Government vide Resolution No.6457/H dated 04.03.2008 (Annexure-A/3) for restructuring the Medical Education Service cadre as per the need of Medical Council of India and Dental Council of India. As per the OMES Cadre Rules, 2009, base level teaching post of lecturer has been changed to Assistant Professor. Clause-7 of the said Rule stipulates for three years of Residentship/Tutorship along with Post Graduate degree as the eligibility criteria for appointment to the post of Assistant Professor. Therefore, there is no scope for filling up the post of lecturer any more by the OPSC. The petitioners, being BDS degree holders, are not eligible for the post of Assistant Professor as per the Rules. 5.The Orissa Medical Education Service (Method of Recruitment and Conditions of Service) Rules, 2009 (in short ‘the OMES Rules’) have been framed under the proviso to Article 309 of the Constitution of India with effect from 11th February, 2009. The service comprises of teaching posts of professor, Associate Professor and Assistant Professor as per Rule 3. As per Rule 4 the eligibility criteria for the post of Assistant Professor is minimum three years experience as Tutor/Senior Resident with a Post-Graduate degree in the concerned discipline and the recruitment shall be made by the Orissa Public Service Commission. Dentistry is one of the ‘speciality’ subjects as per Clause (x) of Rule 2 of the Rules, but it is not included within the scope of ‘higher speciality’ as defined in Clause (iv) of Rule 2, “Council” has been defined in Clause (ii) of Rule 2 only referring to the Medical Council of India constituted under the Indian Medical Council Act, 1956 and it does not refer to the Dental Council of India. However, it is the stand of the Government that they are following the OMES Rule, 2009 for the purpose of selection and recruitment to the Medical Education Service. A further Resolution bearing No.13192/H dated 01.05.2009 has been issued by the Government in the Department of Health and Family Welfare prescribing procedure for selection to the post of Tutors/Senior Residents. However, it is the stand of the Government that they are following the OMES Rule, 2009 for the purpose of selection and recruitment to the Medical Education Service. A further Resolution bearing No.13192/H dated 01.05.2009 has been issued by the Government in the Department of Health and Family Welfare prescribing procedure for selection to the post of Tutors/Senior Residents. Clause-4 of the said Resolution stipulates that the period of appointment/engagement of Senior Residents/Tutors will be purely temporary on yearly basis for a maximum period of three years subject to satisfactory performance. Clause-3 of the said Resolution dealing with Method of Selection speaks of career marking in MBBS Examination, +2 Science Examination and 10th Class Examination. It does not prescribe for giving any weightage to BDS examination for selection of Senior Residents/Tutors in the Dental College and Hospital. However, it is the stand of the opposite parties that the nature of engagement/appointment of Tutor is purely contractual and temporary on yearly basis, which is extendable maximum up to three years. 6.The advertisement under Annexure-3 which is under challenge in this writ application stipulates that candidates having MDS qualification will be preferred, though both MDS and BDS candidates are eligible to apply. Admittedly, the petitioners have filed fresh application for engagement as per the advertisement under Annexure-3. In view of the stand of the opposite parties that only Tutors having three years of experience as such with MDS degree are eligible to apply for the post of Assistant Professor, we see no reason to take exception to the stipulation that MDS candidates will be given preference for the eight number of posts advertised under Annexure-3. It is the stand of the petitioners themselves that out of required strength of 30 Senior Residents/Tutors, eight posts are reserved for candidates having MDS qualification, which is 25% of the total strength. There is nothing on record to show that more than eight number or any number of MDS candidates are already continuing in existing posts. In the circumstances, no direction can be given to the opposite parties to allow the petitioners to continue beyond the maximum contractual period of three years. There is nothing on record to show that more than eight number or any number of MDS candidates are already continuing in existing posts. In the circumstances, no direction can be given to the opposite parties to allow the petitioners to continue beyond the maximum contractual period of three years. 7.The Constitution Bench of the Supreme Court in the case of Secretary, State of Karnataka and others v. Umadevi and others; AIR 2006 SC 1806 has laid down that Casual labour/Temporary employee cannot claim any right to regularisation or permanence and it should be presumed that temporary, contractual, casual, daily-wage or ad hoc employees have accepted the employment fully knowing the nature and consequence flowing from it. This dictum will be equally applicable to contractual and temporary employees, who claim continuance beyond the contractual period of engagement like the petitioners. The petitioner’s contractual engagement being for a maximum period of three years, it automatically ceases on expiry of the said period and the petitioners cannot claim any right to continue beyond that period. 8.The contention of the petitioners that unless the opposite parties fill up all the 30 posts of Senior Residents/Tutors, they will loss approval of the Dental Council of India for continuing with 50 admissions is of no consequence, as that is not the subject matter of consideration in this writ application, nor the opposite parties can be issued with a mandamus to fill up all 30 posts, the choice for which is within the discretion of the opposite parties, who may face the consequence of withdrawal of approval of the Dental Council of India for 50 admissions in the Institutions. 9.Accordingly, we find no merit in this writ application, which is hereby dismissed. No costs. All interim orders stand vacated. 10.In view of the dismissal of the writ application, there is no necessity of passing any order in the intervention application (Misc. Case No.12606 of 2012), which accordingly stands disposed of. B.P. DAS, J.I agree. Application dismissed.