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2015 DIGILAW 277 (ORI)

Rajendra Kumar Panda v. State of Odisha

2015-04-24

BISWANATH RATH, I.MAHANTY

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JUDGMENT : Biswanath Rath, J. In filing the above two writ petitions, the respective petitioners have prayed for quashing of the common judgment dated 3.5.2013 passed by the learned State Administrative Tribunal, Cuttack Bench, Cuttack in the Original Application No.3240(C) of 2010 and 66 others vide Annexures-12 and 10 in the respective cases in so far as Original Application No.3308 of 2012 and Original Application No.3215 of 2012 at the instance of the above two writ petitioners and further for quashing of the rejection of their candidature by the Orissa Public Service Commission in its Notice No.7699 dated 15.9.2012 as appearing at Annexures-6 and 7 in the respective in the respective writ petitions. The impugned orders being common in both the cases and facts involved and the relief sought for also being common, both the cases are heard together and disposed of by this common judgment. 2. Fact as reveal from W.P.(C) No.17757 of 2013 is that in this case the petitioner acquired M.B.B.S. Degree from V.S.S. Medical College, Burla in the year 1992. The petitioner was appointed as an Assistant Surgeon by the State Government on 8.9.1993 and was concurred by the Orissa Public Service Commission. Petitioner became successful in the entrance examination for admission into the Post Graduate Course in the year 2002 in the category of in-service candidate. The petitioner completed one year pre-Post Graduate mandatory service where after the petitioner joined 3 years Post Graduate Course in Pharmacology on 1.1.2003 and completed P.G. Course successfully on 31.10.2006. On his completion of Post Graduate studies, the petitioner was posted in the S.C.B. Medical College, Cuttack against the vacant post of Lecturer in the Department of Pharmacology by virtue of Government Order dated 9.3.2007 to which post the petitioner joined on 16.3.2007. The petitioner continued as such till 14.5.2009 and from 15.5.2009 the petitioner was continuing as a Tutor in the Department of the Pharmacology in the S.C.B. Medical College by another Government order dated 11.5.2009 till he had applied against advertisement no.04 of 2010-11. The petitioner submitted that Pharmacology is a para-clinical subject and his basic job was to teach M.B.B.S. and B.D.S. students and he meets the educational qualification criteria fixed for the purpose of selection to the post of Assistant Professor. The petitioner submitted that Pharmacology is a para-clinical subject and his basic job was to teach M.B.B.S. and B.D.S. students and he meets the educational qualification criteria fixed for the purpose of selection to the post of Assistant Professor. Similarly, so far as the petitioner in W.P.(C) No.19998 of 2013 is concerned, in this case, the petitioner passed his Post Graduation course i.e. M.D. in Pharmacology in the year 2006 being duly selected by the Orissa Public Service Commission, the petitioner in the writ petition was appointed as an Assistant Surgeon in Orissa Medical Service Cadre vide order dated 13.2.2004. While the matter stood thus, the petitioner was selected for prosecuting Post Graduate Course in Pharmacology and upon completion of his Post Graduation in Pharmacology, the petitioner was allowed to continue as a Tutor in the V.S.S. Medical College, Burla on 22.8.2007 up to 15.5.2009. On his transfer to S.C.B. Medical College, Cuttack, the petitioner was again allowed to continue as a Tutor in the S.C.B. Medical College, Cuttack from 16.5.2009 till 2011 and thus claims that he too meets the educational qualification required for the purpose of selection as Assistant Professor. 3. The case of both the petitioners’ in their respective writ petition is that while both of them were continuing as such, the Orissa Public Service Commission made an advertisement bearing Advertisement No.04 of 2010-11 seeking applications from the intending candidates in the matter of recruitment to the post of Assistant Professors in Group-A of Orissa Medical Education Service under Health & Family Welfare Department. The last date for receipt of the application from the intending applicants was by 5.00 P.M. of 4.10.2010 which was subsequently extended to 12.10.2010 by way of a corrigendum. The further case of the petitioners in both the writ petitions is that Pharmacology discipline appeared at Sl.No.21 of the said advertisement showing total number of vacancies as 5 inclusive of 1 Scheduled Tribe, 1 Scheduled Caste and 3 Un-Reserved category. Both the writ petitioners contended that since both the petitioners were qualified enough to apply as against the post of Assistant Professor pursuant to the said advertisement, obtained the teaching experience certificate in their favour as appearing at Annexures-9 and 2 in the respective writ petitions. Both the writ petitioners contended that since both the petitioners were qualified enough to apply as against the post of Assistant Professor pursuant to the said advertisement, obtained the teaching experience certificate in their favour as appearing at Annexures-9 and 2 in the respective writ petitions. It is contended by both the petitioners that the teaching experience certificate submitted by the petitioners clearly indicated that both of them had pre-requisite teaching experience in Pharmacology in their respective area of working. Hence both of them applied for the post of Assistant Professor against the Advertisement No.04 of 2010-11. Both of them were also called to attend the interview on 28.8.2010 following the call letters in respect of them vide Annexure-5 in the first writ petition. Petitioners in both the writ petitions next contended that both of them were surprised to receive Notice No.7699/ P.S.C. Dt.15.9.2012 at Annexures-6 and 7 in the respective writ petitions indicating therein that both the petitioners also were applicants for the post of Assistant Professor in Group-‘A’ in Pharmacology even though were provisionally called for interview but subsequently found ineligible as per the terms of the Advertisement No.04 of 2010-11. Being surprised with the above action of the Orissa Public Service Commission, both the petitioners moved the Orissa Administrative Tribunal, Cuttack Bench, Cuttack. The petitioner in first writ petition filed Original Application No.3308(C) of 2012 whereas the petitioner in the second writ petition filed Original Application No.3215(C) of 2012. The petitioners next contended that the above two Original Applications though not connected with the other 65 Original Applications filed in the Orissa Administrative Tribunal, Cuttack Bench, Cuttack being aggrieved by some other action of the Orissa Public Service Commission and the State yet both these Original Applications were heard together along with Original Application No.3240(C) of 2010 and others and decided by a common judgment dated 3.5.2013 of the Orissa Administrative Tribunal, Cuttack Bench, Cuttack. The main judgment having been passed in Original Application No.3240(C) of 2010 where these two Original Applications appeared at Sl.No.67 and Sl.No.60 respectively in the said judgment. The main judgment having been passed in Original Application No.3240(C) of 2010 where these two Original Applications appeared at Sl.No.67 and Sl.No.60 respectively in the said judgment. The learned Tribunal by passing the common judgment along with other Original Applications held that the Advertisement No.04 of 2010-11 along with subsequent Advertisement No.8 of 2011-12 are not in conformity with the prescribed qualification for appointment of Assistant Professor and as has been prescribed by the Medical Council of India and thereby while quashing both the advertisements by the said common judgment further directed the respondent nos.1 and 2, the State Authorities, therein upon getting necessary amendments as directed therein, shall issue fresh advertisement for recruitment for the post of Assistant Professor in the three Medical Colleges afresh. The petitioners in the respective cases contended that the petitioners in both the cases very much satisfied the eligibility criteria for recruitment to the post of Assistant Professor, Pharmacology keeping in view the provisions contained in the Orissa Medical Education Service (Method of Recruitment and Condition of Service) Rule, 2009, the advertisement also being in consonance with the said Rule, their applications were very much valid. The petitioners further contended that in spite of their having a clear case in the Original Applications and the justification in the rejoinder filed following the counter affidavit by the Orissa Public Service Commission, surprisingly the learned Tribunal instead of trying their case independently as these two cases stood completely different, treated the cases to be common along with other several Original Applications taken together and decided the matter vide the common judgment at Annexure-12. The petitioners further contended that there was no illegality in the advertisement No.04 of 201011 in so far as their Original Application No.3308(C) of 2012 and Original Application No.3215(C) of 2012 respectively are concerned. Therefore, the petitioners claimed that the order of the learned Tribunal setting aside the Advertisement No.04 of 2010-11 is not only bad but also bad being contrary to the direction of this Court dated 25.7.2012 in W.P.(C) No.14220 of 2006. 4. Per contra, Sri P.K.Mohanty, learned senior counsel appearing for the Orissa Public Service Commission, opposite party no.2 in both the writ petitions contended that it had a clear case before the learned Tribunal justifying ineligibility of both the writ petitioners so far it relates to the experience criteria in Advertisement No.04 of 2010-11. 4. Per contra, Sri P.K.Mohanty, learned senior counsel appearing for the Orissa Public Service Commission, opposite party no.2 in both the writ petitions contended that it had a clear case before the learned Tribunal justifying ineligibility of both the writ petitioners so far it relates to the experience criteria in Advertisement No.04 of 2010-11. It has a common case before the learned Tribunal that prior to fixing of the date of interview of different disciplines including the discipline of Pharmacology advertised therein, the Commission decided to invite the experts from Government Medical Colleges to advise regarding eligibility of candidates of various disciplines on account of multifarious nature of service. At the initial stage, the Committee in its meeting held on 3.8.2012 had recommended Roll Nos.1, 7 and 10 which includes both the writ petitioners are eligible as per the terms of the advertisement, but for the purpose of teaching experience, since experts appeared to have different views, the Commission called for all Departments to come to a conclusive decision. The H.O.Ds and Professors of 12 disciplines met again on 16.8.2012 and recommended that the tenure of Assistant Surgeons working in the hospital wing of Medical College Hospitals against vacant post of Lecturers /Assistant Professor does not amount to teaching experience and it is on the basis of such unanimous recommendation the Commission, accepted the same and found the present petitioners bearing Roll Nos.7 and 10 though appeared in the interview and also had joined from May, 2009 to work as Tutor but lack mandatory teaching experience. In the above premises, the learned senior counsel appearing for Orissa Public Service Commission contended that not only the decision of the Orissa Public Service Commission vide Annexure-6 in the first writ petition and also appearing in Annexure-7 in the second writ petition are proper but the judgment of the learned Tribunal being based on such complete information cannot also be found faulted with. 5. State Government though represented through their Advocate General neither filed any counter in the Tribunal nor any counter in this Court and on the other hand made oral submission in the line of submission made by the Orissa Public Service Commission. 6. 5. State Government though represented through their Advocate General neither filed any counter in the Tribunal nor any counter in this Court and on the other hand made oral submission in the line of submission made by the Orissa Public Service Commission. 6. Coming back to the advertisement No.04 of 2010-11 particularly with regard to the educational qualification for making application by different candidates in different disciplines available vide Annexure-2 in the first writ petition and also appearing at Annexure-3 in the second writ petition reads as follows: xx xxxxxx “4. EDUCATIONAL QUALIFICATION: A candidate must have obtained Post-Graduate degree i.e. M.D./M.S./M.D.S./Medical M.Sc. as may be in the concerned speciality or D.M./M.Ch. in the higher speciality or any other equivalent degree or qualification prescribed and recognized by the Medical Council of India. Besides the candidates must have obtained 3(three) years experience as a Tutor/Senior Resident from a recognized Medical Institution after obtaining D.M./M.Ch./Post Graduate qualification in the said discipline. xx xxxxxx xx xxxxxx Provided that, in case of non availability of candidate with medical degree in the discipline of Anatomy, Physiology, Pharmacology and Microbiology, non-medical teachers may be appointed to the extent of 30% of the total number of posts and in the discipline of Biochemistry non-medical teachers may be appointed to the extent of 50% of the total number of posts. Provided further that, the recruitment may also be made from amongst the Assistant Professors in any other speciality or higher speciality subject to the condition that seniority in the speciality as the case may be, shall be determined from the date of appointment in the new discipline in accordance with the placement given by the Commission and accepted by the Government.” xx xxxx 7. So far as the factual position in relation to passing out M.B.B.S. by both the petitioners is similar. Passing out Post Graduation and their documents in support of their experience particularly, the experience certificates having not been disputed by the opposite parties in the Tribunal nor in this Court, the factual position involved in both the writ petitions remained unchallenged, therefore, need not be repeated here. There is also no denial to the fact that both the cases are covered by the Orissa Medical Education Service Rules, 2009 read with Medical Council of India guidelines, 1998. There is also no denial to the fact that both the cases are covered by the Orissa Medical Education Service Rules, 2009 read with Medical Council of India guidelines, 1998. So far as the eligibility criteria prescribed for the post of Assistant Professor is concerned, the Minimum Qualifications for the Teachers in Medical Institutions Regulation, 1998 as published in Part-III Section 4 of the Gazette of India dated 5.12.1998 reads as follows: (i) Requisite recognized postgraduate qualification in the subject. (ii) Three years teaching experience in the subject in a recognized medical college as Resident/Registrar/Demonstrator/Tutor. Subsequently, the Medical Council of India vide notification dated 3.11.2010 amended be Minimum Qualifications for Teachers in Medical Institutions Regulations 1998. The amending provisions read as follows:- “(iii) In the “Minimum Qualifications for Teachers in Medical Institutions Regulations 1998” in Table I under the heading “REQUIREMENTS OF ACADEMIC QUALIFICATIONS, teaching and research experience’, AS AMENDED VIDE NOTIFICATIONS DATED 21.7.2009, 28.10.2009 AND 15.12.2009, THE ‘Teaching Experience’ against the post of ‘Assistant Professor/Lecturer’, for all the specialities, shall be substituted as under” (i) For the candidates possessing MD/MS Degree from M.C.I. recognized medical college. Three years teaching experience, in the subject as Resident/Registrar/Demonstrator/ Tutor in a recognized medical college either during the post-graduation course or after obtaining post graduate degree in the subject.” (Emphasis supplied) Similarly, Rule 4 of the Orissa Medical Education Service Rules, 2009 prescribes the eligibility criteria for appointment to the post of Assistant Professor reads as follows: - “4. Eligibility criteria for the post of Assistant Professor: (1) Selection shall be made through the Odisha Public Service Commission, from amongst the Tutors and Senior Residents having P.G. Degree in the same discipline with three years experience as such. Provided that, the recruitment may also be made from amongst the Assistant Professors in any other Speciality or Higher Speciality subject to the condition that seniority in the Speciality or Higher Speciality, as the case may be, shall be determined from the date of appointment in the new discipline in accordance with the placement given by the Commission and accepted by the Government. xxxx xx xx Reading of the above provisions together with the educational qualification, as prescribed in the Advertisement No.04 of 2010-11, the requirement, as stated hereinabove, stands parallel and this Court does not find any ambiguity in the same. xxxx xx xx Reading of the above provisions together with the educational qualification, as prescribed in the Advertisement No.04 of 2010-11, the requirement, as stated hereinabove, stands parallel and this Court does not find any ambiguity in the same. The basic requirement being a candidate having post Graduate Degree in a particular stream to have three years experience as a Tutor/Resident/Registrar/ Demonstrator from a recognized Medical Institution is the paramount consideration. 8. Now, coming back to the case at hand, in view of the undisputed factual position with regard to both petitioners joining in the particular medical colleges after clearing their post graduation, both of them not only continued as Tutor in the department of Pharmacology but have also got the teaching experience of more than the required period. Both these petitioners have also been granted with teaching experience certificate as available at Annexures-10 and 2 in the respective writ petitions both of which were very much available with the Orissa Public Service Commission being accompanied with their applications for the post against advertisement No.04 of 2010-11. Both these petitioners have also been granted with teaching experience certificate as available at Annexures-10 and 2 in the respective writ petitions both of which were very much available with the Orissa Public Service Commission being accompanied with their applications for the post against advertisement No.04 of 2010-11. So far as the opinion of the experts dated 16.8.2012 being relied by the counsel for the Orissa Public Service Commission appears to be the sole basis of their justifying the decision of the learned Tribunal is concerned, perusal of the said report as available at Annexure-11 at page 85 in the first writ petition, this Court finds two discrepancies in the said report; firstly, since the Commission desired a further opinion of the H.O.Ds and Professors in the matter of teaching experience concerning the different applicants though it had engaged itself in the matter of 12 persons, but no person from the Department of Pharmacology did appear there and secondly for which no opinion concerning both the petitioners could comeforth from the opinion of the expert committee dated 16.8.2012 the opinion of the expert committee regarding a person working in the hospital as Assistant Surgeon posted in the Department does not amount to teaching experience and as such Assistant Surgeon posted in the department cannot be considered to have possessed teaching experience neither sound well nor has anything to do with the petitioners case as this opinion had nothing to do with the case at hand, for the reason of undisputed case by both the petitioners that after their completion of the Post Graduation, both of them were engaged against vacant post of Lecturers and both of them were functioning as Tutors not only that both of them did produce their experience certificate from their respective HODs and experience certificate given at the instance of both the petitioners also clearly disclose that both the petitioners were taking theory and practical classes of Pharmacology of M.B.B.S. and B.D.S. students. Both of them were also actively participating in the Seminar Journal reading and discussion with Post Graduate students to which there was absolutely no denial by either the State or the Orissa Public Service Commission. Both of them were also actively participating in the Seminar Journal reading and discussion with Post Graduate students to which there was absolutely no denial by either the State or the Orissa Public Service Commission. Thus, here it can be safely said that the Orissa Public Service Commission not only misread the opinion of the expert committee which had the application in the case of Assistant Surgeons functioning in the departments but also wrongly applied the same in the case of both the writ petitioners, who undisputedly were functioning as Tutors discharging their duty in teaching the M.B.B.S and B.D.S. students. Therefore, we are of the conclusive view that the petitioners in both the writ petitions were in possession of required experience were accordingly very much eligible and therefore, the rejection of the case of the petitioners in both the writ petitions by the Orissa Public Service Commission in their notice dated 15.9.2012 vide Annexures-6 and 7 in the respective cases are bad in law and consequently we set aside both the orders vide Annexures-6 and 7 in the respective writ petitions. 9. Now coming to the judgment rendered by the learned Tribunal in Original Application No.3240(C) of 2010, the judgment from the cause title indicates that the Original Applications in respect of these petitioners are at Sl.Nos.67 and 60 respectively. The entire reading of the judgment nowhere discussed the case of the present two writ petitioners. Since the case of the present writ petitioners stood altogether on different footing and not similar to those of other 65 Original Applications, the learned Tribunal should have taken care in either dealing with the case independently or at least discussing the case of these two writ petitioners and decided the matter giving a finding in relation to these cases thereon. There is absolutely no discussion on the rejection of candidature by Orissa Public Service Commission in respect of these two petitioners vide Annexures-6 and 7 in the respective writ petitions. The judgment of learned State Administrative Tribunal so far it relates to Original Application No.3308 (C) of 2012 and Original Application No.3215 (C) of 2012 are wholly mechanical and resulted in non-application of mind. The judgment of learned State Administrative Tribunal so far it relates to Original Application No.3308 (C) of 2012 and Original Application No.3215 (C) of 2012 are wholly mechanical and resulted in non-application of mind. This Court in its judgment in W.P.(C) No.11958 of 2013 along with 12 other writ petitions has already set aside the judgment of the Tribunal in Original Application No.3240(C) of 2010 as a consequence of which this Court while quashing the judgment of the Administrative Tribunal in Original Application No.3240(C)of 2010 allows both Original Application No.3308 (C) of 2012 and Original Application No.3215 (C) of 2012. 10. Under the circumstances and in view of the findings arrived hereinabove, this Court while setting aside the order of the learned Tribunal vide Annexures-10 and 12 in the respective writ petitions so far it relates to Original Application No.3308(C) of 2012 and Original Application No.3215 (C) of 2012, allows both the Original Applications and thereby also set aside the impugned orders vide Annexures-6 and 7 in the above writ petitions concerning both the writ petitioners and since the petitioners in both the writ petitions have already attended the interview and are found eligible as per the terms of the advertisement No.04 of 2010-11, we direct the Orissa Public Service Commission to declare their results and act accordingly. It be made here clear that if the petitioners’ in both the writ petitions have succeeded in their interview pursuant to advertisement No.04 of 2010-11 both of them be treated to have been selected pursuant to Advertisement No.04 of 2010-11 be posted as Assistant Professors forthwith but with all consequential service benefits in par with the candidates already selected and posted pursuant to Advertisement No.04 of 2010-11. 11. In the result, both the writ petitions succeed. However, there shall be no order as to cost.