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2015 DIGILAW 334 (ORI)

Sarat Chandran Jayasingh v. State of Orissa

2015-05-13

BISWANATH RATH, I.MAHANTY

body2015
JUDGMENT : Biswanath Rath, J. In filing the above writ petition, the petitioner while assailing the order dated 3.5.2013 passed by the learned State Administrative Tribunal, Cuttack Bench, Cuttack in the Original Application No.3240(C) of 2010 so far it relates to Original Application No.2049 (C) of 2011 has also sought for a direction to the opposite parities declaring the result of the petitioner’s interview dated 13.9.2012 treating the petitioner eligible for the post of Assistant Professor in Surgical Gastroenterology with all consequential service and financial benefits. 2. The fact as revealed from this writ petition is that the petitioner has obtained MBBS Degree then M.S. Degree in Surgery and Long Term Training in G.I. Surgery in Surgical Gastroenterology in All India Institute of Medical Science, New Delhi from 1.3.2004 to 28.2.2006 in the Department of G.I. Surgery being sponsored by Government of Orissa. The petitioner has also obtained Diploma in Minimal Access Surgery (Laparoscopic) from Worth Association of Laparoscopic Surgeons in the year 2006. By Order No.7819 dated 13.3.2006 issued by Government of Orissa, Health & Family Welfare Department, the petitioner was posted as an Assistant Surgeon against the vacant post of Lecturer in Surgical Gastroenterology in the S.C.B. Medical College & Hospital, Cuttack and he is continuing as such till date. It is contended by the petitioner that while the matter stood thus, he had come across the advertisement issued by the Orissa Public Service Commission vide Advertisement No.04 of 2010-11 for recruitment to the post of Assistant Professor in Group ‘A’ in the Orissa Medical Education Service Cadre in different disciplines including both the Speciality and super Speciality. Coming to know of the advertisement, since the petitioner was eligible to apply, looking to the eligibility criteria for the post of Surgical Gastroenterology (two posts earmarked i.e. one for S.T and other one for unreserved category), obtained experience certificate from the institutional head of Surgical Gastroenterology, S.C.B. Medical College & Hospital, Cuttack on 22.9.2010 (Annexure-4) and then applied for the post of Surgical Gastroenterology. The petitioner next contended that since the petitioner was found eligible in all respect, he was issued with a call letter to attend the interview to be conducted by the Orissa Public Service Commission by letter dated 5.9.2012 as against Roll No.3 and was directed to appear at the interview on 13.9.2012. The petitioner next contended that since the petitioner was found eligible in all respect, he was issued with a call letter to attend the interview to be conducted by the Orissa Public Service Commission by letter dated 5.9.2012 as against Roll No.3 and was directed to appear at the interview on 13.9.2012. Petitioner alleged that it is at this point of time, the petitioner was held to be ineligible from the point of view of requirements of Advertisement No,04 of 2010-11.In the meanwhile, pursuant to an advertisement by the Department of Health & Family Welfare following the interim direction of this Court dated 4.7.2013 in W.P.(C) No.13721 of 2013, the petitioner attended the interview for the post of Assistant Professor temporarily. Being found successful, the petitioner by notification dated 23.12.2013 was appointed as Assistant Professor on temporary basis in Surgical Gastroenterology category in the S.C.B. Medical College & Hospital, Cuttack, which was however, subject to the result of the writ petition in W.P.(C) Nos.13721, 13722, 13724, 13726, 13727, 11717, 14770, 11460 of 2013 and O.A.No.1478(C) of 2013. The petitioner joined the post by submitting a joining report on 23.12.2013. Finding no progress in the interview attended by the petitioner at the end of the Orissa Public Service commission, the petitioner was constrained to file Original Application No.2049(C) of 2011 seeking appropriate direction in the matter of his appointment in the post of Assistant Professor. It is the further case of the petitioner that while the matter stood thus, the other applicant for the post of Assistant Professor, Surgical Gastroenterology, preferred Original Application No.3245(C) of 2012 by arraying the present petitioner as opposite party no.5 challenging therein the decision of the Orissa Public Service Commission allowing the petitioner to participate in the interview. The Tribunal while deciding the Original Application No.3240(C) of 2010 and 66 other cases including the case involving the present petitioner i.e. Original Application No.2049 (C) of 2011 while holding both the advertisements i.e. Advertisement No.04 of 2010-11 and Advertisement No.08 of 2011-12 as bad, inter alia, sets aside the entire selection process and directed the Government to go for necessary amendment in the concerned regulation and thereafter to go for selecting the candidates. The petitioner contended that he was very much satisfying the educational qualification as well as other eligibility conditions which were also in consonance with the Medical Council of India Act as well as Orissa Medical Education Service Rules, 2009. Petitioner had the experience for being considered for the post. There has been illegal ouster of the petitioner from the interview. The petitioner also contended that his case since was not standing in par with the Original Application No.3240(C) of 2010 and several other cases heard together, the Tribunal ought to have given an independent consideration to the petitioner’s case. 3. 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 the writ petitioner 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 particular discipline 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, 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 petitioner bearing Roll No.3 though appeared in the interview and also had joined from March, 2006 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 is proper but the judgment of the learned Tribunal being based on such complete information cannot also be found faulted with. 4. State Government though represented through their Additional Government Advocate made oral submission in the line of submissions made by the Orissa Public Service Commission. 4. State Government though represented through their Additional Government Advocate made oral submission in the line of submissions made by the Orissa Public Service Commission. However, submitted that the State also challenged the judgment of the Tribunal in O.A. 3240(C) of 2010 vide W.P.(C) No.1771/2015 and succeeded in its attempt and contended that in view of judgment of this court vide W.P.(C) No.17757 of 2013 and W.P. (C) No.19998 of 2013 petitioner’s case needs to be considered. 5. 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-5 in the writ petition reads as follows: xx xx xx xx “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 xx xx xx xx xx xx xx Provided that, in case of non availability of candidate with medical degree in the discipline of Anatomy, Physiology, Pharmacology and Micro-biology, 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 xx xx xx 6. So far as the factual position in relation to passing out M.B.B.S. by the petitioner remains unopposed, passing out Post Graduation and the documents in support of his experience remain unopposed by the opposite parties in the Tribunal and in this Court also, the factual position involved in the writ petition remained unchallenged, therefore, need not be traversed here. So far as the factual position in relation to passing out M.B.B.S. by the petitioner remains unopposed, passing out Post Graduation and the documents in support of his experience remain unopposed by the opposite parties in the Tribunal and in this Court also, the factual position involved in the writ petition remained unchallenged, therefore, need not be traversed here. There is also no denial to the fact that the case at hand is 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 the 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. 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. xx xx 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. Besides the above, there was also a further scope to the Assistant Professor in any other speciality or higher speciality subject to the condition that the 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. 7. Now coming back to the case at hand in view of the undisputed factual position with regard to the petitioner’s joining as an Assistant Surgeon against the vacant post of Lecturer, re-designated subsequently as Assistant Professor in the Department of Surgical Gastroenterology, S.C.B. Medical College and Hospital, Cuttack with effect from 21.3.2006 and that he was continuing as such as Assistant Professor again on the date of obtaining the experience certificate, the petitioner acquired three years experience as a Tutor/Lecturer. The petitioner had teaching experience of more than the required period which is also being established through the experience certificate filed by the petitioner as appearing at Annexure-4 to the writ petition and he was very much eligible in terms of the advertisement issued by the Orissa Public Service Commission bearing Advertisement No.04 of 2010-11. The petitioner had teaching experience of more than the required period which is also being established through the experience certificate filed by the petitioner as appearing at Annexure-4 to the writ petition and he was very much eligible in terms of the advertisement issued by the Orissa Public Service Commission bearing Advertisement No.04 of 2010-11. So far as the opinion of the expert committee dated 16.8.2012 being relied by the counsel for the Orissa Public Service Commission in the Tribunal also taken support in this Court appears to be sole basis for their justifying the decision of the learned Tribunal is concerned, this Court in dealing with this aspect in W.P.(C) No.17757 of 2013 along with W.P.(C) no.19998 of 2013 by its judgment dated 24.4.2015 has already come to hold that there has been wrong interpretation of the opinion of the Expert Committee of the Orissa Public Service Commission. Since the petitioner was functioning as against the vacant post of Lecturer, which post subsequently got re-designated as Assistant Professor with effect from 21.3.2006 and was continuing as such on 22.9.2010, he very much meet educational qualification as required under the advertisements as well as under the Orissa Medical Education Service Rules, 2009 and there was no illegality in asking the petitioner to attend the interview. In this view of the matter, finding the petitioner’s ineligible subsequently is wholly erroneous. Similarly in deciding the validity of the judgment passed by the Orissa Administrative Tribunal in Original Application No.3240(C) of 2010, this Court in its judgment in W.P.(C) No.11958 of 2013 decided along with other 12 writ petitions has already set aside the judgment of the Tribunal in Original Application No.3240 (C) of 2010 as a consequence of which and in view of what has been stated herein above, this Court also quash the judgment of the Tribunal in Original Application No.2049(C) of 2011. In doing so, this Court also further observes that the case of the present petitioner involved in Original Application No.2049(C) of 2011 was altogether different than the Original Application No.3240(C) of 2011 and as such this case ought to have been decided by the Tribunal independently. In doing so, this Court also further observes that the case of the present petitioner involved in Original Application No.2049(C) of 2011 was altogether different than the Original Application No.3240(C) of 2011 and as such this case ought to have been decided by the Tribunal independently. 8 During course of hearing, it has been brought to the notice of this Court by the petitioner that in the meanwhile pursuant to fresh advertisement following the interim direction of this Court in W.P.(C) No.13721 of 2013, the petitioner has already been recruited as a Temporary Assistant Professor and is being placed accordingly as Assistant Professor in the department of Surgical Gastroenterology in the S.C.B. Medical College & Hospital, Cuttack and is continuing as such till date. 9. Under the circumstances and in view of the findings arrived hereinabove, this Court while setting aside the order of the learned Tribunal vide Annexure-8 in Original Application No.2049(C) of 2011, allows the Original Application and thereby also set aside the impugned orders vide Annexures-8 in the above writ petition so far it relates to the present petitioner and since the petitioner in the writ petition has already attended the interview and is found eligible as per the terms of the advertisement No.04 of 2010-11, we direct the Orissa Public Service Commission to declare his result and act accordingly. It be made here clear that if the petitioner has succeeded in the interview pursuant to advertisement No.04 of 2010-11, he be treated to have been selected pursuant to Advertisement No.04 of 2010-11 and be posted as Assistant Professor forthwith but with all consequential service benefits in par with the candidates already selected and posted pursuant to Advertisement No.04 of 2010-11. 10. In the result, the writ petition succeeds. However, there shall be no order as to cost.