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2016 DIGILAW 115 (ORI)

TARUN KUMAR PANDA v. STATE OF ODISHA

2016-02-09

B.RATH, I.MAHANTY

body2016
JUDGMENT : Biswanath Rath, J. - In filing the above writ petition, the petitioner has prayed for quashing of the common judgment dated 3.5.2013 passed by the State Administrative Tribunal, Cuttack Bench, Cuttack in the Original Application No. 3240 (C) of 2010 and 66 others vide Annexure-5 in so far as Original Application No. 2752(C) of 2012 at the instance of the above writ petitioner is concerned and further seeks direction to the opposite parties to appoint him in the post of Assistant Professor in the discipline of Ophthalmology. 2. Facts as reveal from the writ petition is that the petitioner acquired Post Graduation in Ophthalmology from Utkal University in the year 2003 and was appointed as an Assistant Surgeon by the State Government in November, 2003. Petitioner worked there till August, 2004. Thereafter, the petitioner worked as an Assistant Surgeon under the Superintendent of S.C.B. Medical College and Hospital from August, 2004 till May, 2009. Then the petitioner joined as a Senior Resident till June, 2012 and presently he is working as an Assistant Professor in the discipline of Ophthalmology in S.C.B. Medical College and Hospital, Cuttack on ad-hoc basis. Further case of the petitioner is that when he was discharging his duty as an Assistant Surgeon under the Superintendent of S.C.B. Medical College and Hospital, he was given to work and responsibility of a Tutor to teach the students in the concerned Medical College. On his asking for an experience certificate, he has been provided with an experience certificate of 5 years by the Superintendent of S.C.B. Medical College and Hospital, Cuttack on 5.2.2010 (Annexure-2). Petitioner next contended that the Advertisement No. 4 of 2010-11 inviting application for the post of Assistant Professor in different streams at Clause 4 compulsorily required a candidate must possesses a P.G. Degree in particular discipline and should have 3 years experience as a Tutor/Senior Resident. Petitioner claims that since he had 5 years experience as a Tutor/Senior Resident by the time of the Advertisement, rejection of his candidature was illegal and he ought to have been considered for the post and selected. It is thus alleged that the Tribunal ought to have considered the case of the petitioner independently but for the common judgment the wrong and illegal impugned judgment has been passed and the same is in clear non-consideration of the case of the petitioner. It is thus alleged that the Tribunal ought to have considered the case of the petitioner independently but for the common judgment the wrong and illegal impugned judgment has been passed and the same is in clear non-consideration of the case of the petitioner. Petitioner thus claimed that the judgment of the State Administrative Tribunal since wrong should be set aside and petitioner be given relief in the light of decision given in the case of Dr. Rajendra Kumar Panda v. State of Odisha and another in W.P.(C). No. 17757 of 2013 along with W.P.(C) No. 19998 of 2013 being common in nature. 3. Orissa Public Service Commission, the opposite party no. 3 by filing counter in O.A.No.2752(C) of 2012 contended that looking to the background involved in the case of the petitioner along with several others, particularly regarding teaching experience with all those candidates, opinion of Expert Committee was called for and the Expert Committee in its meeting on 3.8.2012 recommended that no one is eligible as they have no required qualification and/or teaching experience as on the last date of submission of applications in terms of Advertisement No. 4 of 2010-11. Since the issue as to whether Assistant Surgeons working in the Hospital Wing of Medical College Hospitals against vacant post of Lecturers/Assistant Professors amounts to teaching experience or not arose for many other disciplines as well as in different departments and Experts appeared to have different views, the Commission called for all the Departments to come to a conclusive decision. HOD's and Professors of 12 disciplines met again on 16.8.2012 and recommended that tenure of Assistant Surgeons working in Hospital Wing of Medical College Hospitals against vacant posts or Lecturer/Assistant Professor does not come to teaching experience and therefore the opposite party no. 3 contended that there is no illegality in excluding the petitioner from the purview of the interview and further in this view of the matter, there is no illegality in the judgment of the State Administrative Tribunal requiring any interference. 4. There is no denial by any of the opposite parties to the above factual background of the case. During course of fresh hearing, Sri Routray, learned Senior Counsel appearing for the petitioner submitted that the case of the petitioner is squarely covered by the judgment of this Court already rendered in W.P.(C) No. 17757 of 2013 and W.P.(C). 4. There is no denial by any of the opposite parties to the above factual background of the case. During course of fresh hearing, Sri Routray, learned Senior Counsel appearing for the petitioner submitted that the case of the petitioner is squarely covered by the judgment of this Court already rendered in W.P.(C) No. 17757 of 2013 and W.P.(C). No. 19998 of 2013 as decided by this Court and referred by the learned Senior Counsel for the petitioner. Perused the judgment dated 24.4.2015 rendered by this Court in W.P.(C).No.17757 of 2013 and W.P.(C).No.19998 of 2013. This Court after thread bare discussion on the particular issue right from paragraph-6 to paragraph-8 has come to a conclusive opinion that the petitioners therein did possess the required experience and there was wrong reading of the opinion of Expert Committee by the Orissa Public Service Commission itself and consequently allowed consideration of the case of the petitioners therein for the purpose of selection. This Court finds that the case of the present petitioner so far it relates to teaching experience is concerned, is squarely covered by the said judgment. 5. Now coming to the relief part involved in W.P.(C) No. 17757 of 2013 and W.P.(C). No. 19998 of 2013 is concerned, this Court observes that petitioner in clear language in paragraph-11 of the writ petition indicated that in the short listing of candidates for interview, Orissa Public Service Commission did not include the petitioner. Similarly in paragraph-12 again indicated that his name was also missing in the notice dated 18.08.2012. Then in paragraph-15 the petitioner again pleaded that the opposite party no. 3 in an illegal and arbitrary manner did not call him for interview for which he had preferred O.A. No. 2752 (C) of 2012 to direct the Orissa Public Service Commission to call the petitioner to attend the interview. But from the counter of the opposite party no. 3 filed in the State Administrative Tribunal, the opposite party no. 3 in an illegal and arbitrary manner did not call him for interview for which he had preferred O.A. No. 2752 (C) of 2012 to direct the Orissa Public Service Commission to call the petitioner to attend the interview. But from the counter of the opposite party no. 3 filed in the State Administrative Tribunal, the opposite party no. 3 even though in paragraph-4 of the counter indicated that the petitioner's case was dropped following the decision/recommendation of the Expert Committee and as such he was not invited by the Orissa Public Service Commission to appear in the interview for the post of Assistant Professor in Ophthalmology against Advertisement No. 4 of 2010-11 but in paragraph-6 of the very same counter taken a contrary stand to the effect that pursuant to interim order dated 22.08.2012 of the State Administrative Tribunal, the petitioner was allowed to appear in the interview on 12.09.2012 and his marks and other records have been kept in sealed cover. It is in this view of the clear stand of the Orissa Public Service Commission, this Court finds the relief claimed by the petitioner also squarely covered by the direction of this Court contained in W.P.(C) No. 17757 of 2013 and W.P.(C). No. 19998 of 2013 and consequently while setting aside the order of Tribunal in O.A. No. 3240 (C) of 2010 so far it relates to O.A. No. 2752 (C) of 2012 and while allowing the O.A. No. 2752(C) of 2012, directs the Orissa Public Service Commission that since the petitioner had the required teaching experience in the event he was allowed to face the interview and his result is kept in sealed cover, the sealed cover be opened, declare his result and act accordingly. It is also made clear that in the event petitioner has succeed in the interview he is to be posted as Asst. Professor forthwith but with all consequential service benefits in par with the candidates selected and posted pursuant to Advertisement No. 4 of 2010-11. 6. In the result, the writ petition succeeds, however subject to observations made herein above. There is no order as to cost. I Mahanty, J. - I agree: Final Result : Allowed