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2016 DIGILAW 397 (ORI)

Jagannath Hati v. State of Odisha

2016-05-18

A.K.RATH

body2016
JUDGMENT : Dr.A.K.Rath, J. This petition challenges the advertisement issued by the Odisha Public Service Commission for recruitment to the posts of Assistant Professors in super speciality and speciality in different disciplines for Veer Surendra Sai Institute of Medical Sciences and Research, Burla, vide Annexure-3. Ancillary prayer is made for a direction to opposite parties 2 and 3 to hold recruitment to the posts of Assistant Professors in the said institute as per the Veer Surendra Sai Institute of Medical Sciences and Research Act. 2. This case has a chequered history. The Odisha Public Service Commission (hereinafter referred to as “the O.P.S.C.”) issued two advertisements for filling up posts of Assistant Professors in three medical colleges of the State, namely, S.C.B. Medical College and Hospital, Cuttack, M.K.C.G. Medical College and Hospital, Berhampur and V.S.S. Medical College and Hospital, Burla. The first advertisement was the advertisement no.4 of 2010-11 and the second advertisement was the advertisement no.8 of 2011-12. Sixty seven Original Applications were filed before the Odisha Administrative Tribunal (hereinafter referred to as “the Tribunal”) challenging, inter alia, the advertisements issued by the O.P.S.C. by the doctors, who had not gained three years of experience by that time. The learned Tribunal passed interim orders permitting the candidates to participate in the selection process with the conditions that result shall be kept in sealed cover. Those candidates, who were eligible as per the advertisements, had participated in the selection process. After selection, the selectees were appointed in their respective posts of Assistant Professors. By order dated 3.5.2013, the learned Tribunal set aside the advertisements holding that both the advertisements were not in conformity with the recruitment rules and guidelines of Medical Institutions Regulations 1998 and amended Regulations of 1998 upto 2010. Assailing the order dated 3.5.2013 passed by the learned Tribunal, the aggrieved persons filed thirteen writ applications before this Court. These writ applications were disposed of on 24.4.2015. The ordering portion of the said judgment is quoted hereunder:- “We further direct the State Government to make two requisitions to the Odisha Public Service Commission : (a) one for the selection of Assistant Professors confining the ineligible candidates selected and posted as Assistant Professor on ad hoc/contractual basis but in strict terms of the prevailing rules and the selection process be concluded within a period of two months from the date of communication of this direction. It is made here clear that in the event any such candidate gets selected in the process, his service as Assistant Professor on ad-hoc/contractual shall be reckoned for the purpose of seniority but notionally. (b) another requisition for selection of Assistant Professors for the rest of vacant posts making it open for all eligible candidates in the meanwhile but again in terms of the prevailing rules and this exercise shall also be concluded within a further period of two months after the conclusion of the first exercise”. 3. Aggrieved by and dissatisfied with the judgment of this Court, the aggrieved doctors filed Special Leave Petitions (SLP (C) Nos.17074-7075 of 2015) before the Hon’ble Apex Court. All the matters were heard together and by a common judgment dated 10.8.2015 in Civil Appeal Nos.6157-6158 of 2015, the Hon’ble Apex Court set aside the directions of this Court contained in the impugned judgment and issued the following directions:- “(1) The Commission shall fill up the posts which had arisen or fallen vacant prior to 18.12.2013 in accordance with Rules, 2009. (2) The posts which arose from 18.12.2013 onward will be filled up in accordance with Rules, 2013. (3) Advertisement shall be issued accordingly. (4) We make it clear that in both the kinds of advertisements, the Assistant Professor already working on ad hoc/contractual basis as well as others shall have right to apply and be considered for the post.” 4. Thereafter, the O.P.S.C. issued advertisement no.15 of 2015-16 on 23.11.2015, vide Annexure-4, to fill up the posts of Assistant Professors in super speciality, speciality and dentistry in different disciplines for Government Medical Colleges. On 18.12.2015, a corrigendum to the said advertisement was issued indicating the vacancy position of the Assistant Professors in super speciality, speciality & dentistry in different disciplines of S.C.B. Medical College & Hospital, Cuttack and M.K.C.G. Medical College and Hospital, Berhampur and S.C.B. Dental College, Cuttack. The same was issued consequent upon formation of Veer Surendra Sai Institute of Medical Sciences & Research Act, 2014 (hereinafter referred to as “VIMSAR Act,2014”). The same was issued consequent upon formation of Veer Surendra Sai Institute of Medical Sciences & Research Act, 2014 (hereinafter referred to as “VIMSAR Act,2014”). Thereafter another advertisement was issued on 1.1.2016, vide Annexure-3, for recruitment to the posts of Assistant Professors in super speciality and speciality in different disciplines for Veer Surendra Sai Institute of Medical Sciences and Research, Burla (hereinafter referred to as ‘VIMSAR’) in pursuance of the order of the Hon’ble Apex Court dated 10.8.2015 in Civil Appeal Nos.6157-6158 of 2015 arising out of SLP (C) Nos.17074-17075 of 2015. The said advertisement is impugned in the present writ petition. 5. The advertisement is impugned on the ground that the State of Odisha promulgated VIMSAR Act, 2013 on 18.12.2013. By virtue of the said Act, the administration of the erstwhile V.S.S. Medical College and Hospital, Burla is vested with Veer Surendra Sai Institute of Medical Sciences & Research (VIMSAR). The management of the institute is vested with the governing body. The Director is the administrative head of the institute. The over all power and authority of VIMSAR is vested with the visitor i.e., His Excellency, the Governor of Odisha. The VIMSAR Act, 2013 was published in Odisha Extraordinary Gazette on 18th December, 2013. The same had undergone an amendment vide Odisha Act 6 of 2014. As per section 27 of the VIMSAR Act, 2013, the post of Assistant Professor has to be made through the selection committee headed by the Director. All the vacant posts of Assistant Professors in the institute have to be filled up by the procedure and manner prescribed under the VIMSAR Act. The aforesaid fact was not brought to the notice of the Hon’ble Apex Court for which direction was issued to the O.P.S.C. on 10.8.2015. 6. Pursuant to issuance of notice, a counter affidavit has been filed by opposite party no.1. It is stated that requisitions were made as per the order passed by the Hon’ble Apex Court on 10.8.2015 to fill up the vacant posts of Assistant Professors in three Government Medical Colleges. The Hon’ble Apex Court has categorically directed that the Commission shall fill up the posts which had arisen or fallen vacant prior to 18.12.2013 in accordance with Rules, 2009. Accordingly, by letter dated 29.8.2015, the O.P.S.C. requested to furnish the draft advertisement for recruitment of Assistant Professors in three Government Medical Colleges. The Hon’ble Apex Court has categorically directed that the Commission shall fill up the posts which had arisen or fallen vacant prior to 18.12.2013 in accordance with Rules, 2009. Accordingly, by letter dated 29.8.2015, the O.P.S.C. requested to furnish the draft advertisement for recruitment of Assistant Professors in three Government Medical Colleges. The vacancies of Assistant Professors in VIMSAR, Burla had arisen prior to 18.12.2013. The said vacancies of Assistant Professors are to be filled up as per the direction of the Hon’ble Apex Court in accordance with the Orissa Medical Education Service (Method of Recruitment and Conditions of Service) Rules, 2009 (hereinafter referred as “Rules, 2009”). The VIMSAR Act, 2014 came into force with effect from 1.1.2015. The vacancies created after 1.1.2015 will be filled up as per the VIMSAR Act, 2014 and the statute made thereunder. The factum of enactment of VIMSAR Act, 2014 had not been brought to the notice of Hon’ble Apex Court as there was no scope for the State Government to put forth the matter before the Hon’ble Apex Court at that time. Original Applications were filed before the learned Tribunal by 67 number of doctors challenging the advertisement No.4 of 201011 and advertisement no.8 of 2011-12 of O.P.S.C.. By order dated 3.5.2013, the learned Tribunal quashed both the advertisements. The said order was challenged by the State Government as well as other petitioners before this Court. The judgment passed by this Court was challenged before the Hon’ble Apex Court. By order dated 10.8.2015, the Hon’ble Apex Court set aside the final direction of this Court. Accordingly, two requisitions had been made to O.P.S.C. for filling up the posts of Government Medical Colleges i.e., SCB Medical College and Hospital at Cuttack, M.K.C.G. Medical College and Hospital at Berhampur and VIMSAR, Burla, keeping in view the status of VIMSAR, Burla. VIMSAR Act came into force with effect from 1.1.2015. The Veer Surendra Sai Medical College and Hospital, Burla has been renamed as Veer Surendra Sai Institute of Medical Sciences and Research with effect from 1.1.2015. In order to fill up the huge number of posts of Assistant Professors, Director, VIMSAR, Burla had requested to fill up the same through O.P.S.C. as per the previous practice as the status has not yet been notified. The requisition for recruitment of Assistant Professors for VIMSAR, Burla has been made pursuant to the orders of the Hon’ble Apex Court. In order to fill up the huge number of posts of Assistant Professors, Director, VIMSAR, Burla had requested to fill up the same through O.P.S.C. as per the previous practice as the status has not yet been notified. The requisition for recruitment of Assistant Professors for VIMSAR, Burla has been made pursuant to the orders of the Hon’ble Apex Court. Separate requisitions had been made to O.P.S.C. for VIMSAR, Burla as the VIMSAR Act, 2014 is already in force and for other two colleges i.e., S.C.B. Medical College and Hospital, Cuttack and M.K.C.G. Medical College and Hospital, Berhampur for recruitment of Assistant Professors in speciality, dentistry and super speciality subjects. The recruitment is made for base level posts i.e., Assistant Professor for VIMSAR, Burla. 7. The intervenors have also filed a counter affidavit taking the similar stand. 8. Mr.Das, learned counsel for the petitioners submitted that the petitioners are post graduates in different disciplines. Most of them have three years of teaching experience as Sr. Residents and as such they are eligible for appointment as Assistant Professors. The petitioners, who are continuing as Sr. Residents, shall be eligible for the said posts, if an advertisement is issued under the VIMSAR Act. The petitioners had been debarred from appearing in the selection for the posts of Assistant Professors lying vacant in VIMSAR, Burla. He further submitted that after coming into force of the VIMSAR Act, 2013, status of the college ceased to be a Government Medical College. Therefore the O.P.S.C. has no jurisdiction to hold the recruitment test for the post of Assistant Professors in VIMSAR. The O.P.S.C. is a constitutional body constituted for the purpose to hold recruitment for the civil post under the State Government. The post of Assistant Professor in VIMSAR is not a civil post. The State Government have not passed any special legislation authorizing the O.P.S.C. to hold recruitment to the posts of Assistant Professors in VIMSAR. Therefore the impugned advertisement is in clear violation of the Article 320 and 321 of the Constitution. He further submitted that the State Government had not brought the VIMSAR Act, 2014 to the notice of the Hon’ble Apex Court for which the Hon’ble Apex Court issued directions to the O.P.S.C.. Elaborating his submissions, he further submitted that VIMSAR Act, 2014 came into force with effect from 1.1.2015. He further submitted that the State Government had not brought the VIMSAR Act, 2014 to the notice of the Hon’ble Apex Court for which the Hon’ble Apex Court issued directions to the O.P.S.C.. Elaborating his submissions, he further submitted that VIMSAR Act, 2014 came into force with effect from 1.1.2015. The judgments of the High Court and the Hon’ble Apex Court were delivered on 24.4.2015 and 10.8.2015. The same amounts to suppression of fact. To buttress his submissions, he cited judgment of the Hon’ble Apex Court in the case of State of U.P. Vrs. Synthetics and Chemicals Ltd., (1991) 4 SCC, 139 on the principle of per incurrium. 9. Learned Advocate General submitted that the Hon’ble Apex Court directed the O.P.S.C. to fill up the posts which had arisen or fallen vacant prior to 18.12.2013 in accordance with Rules, 2009. The posts which arose from 18.12.2013 onward will be filled up in accordance with Rules, 2013. The Hon’ble Apex Court further directed to issue advertisement. The Assistant Professors already working on ad hoc/contractual basis as well as others shall have right to apply and be considered for the post. After disposal of the writ applications, the Special Secretary, O.P.S.C., wrote a letter to the Commissioner-cum-Secretary to Government of Odisha, Health and Family Welfare Department regarding recruitment to the posts of Assistant Professors in different disciplines in Group-A of Odisha Medical Education Services under Health & Family Welfare Department. The Director, VIMSAR, Burla had also written a letter dated 8.12.2015, vide Annexure-C/1 that the Government in Health & Family Welfare Department should take step for filling up of the vacant posts which were the subject matter of dispute as per the Rules, 2009 and Rules, 2013 by O.P.S.C. The O.P.S.C. in compliance of the order passed by the Hon’ble Apex Court issued advertisement. In the meantime, the process of filling up of the posts of Assistant Professors in S.C.B. Medical College and Hospital, Cuttack and M.K.C.G. Medical College and Hospital, Berhermpur is over as per the advertisement issued in consonance with the direction issued by the Hon’ble Apex Court. In view of the interim order dated 23.2.2016 passed by the Court in this writ petition, the recruitment process of VIMSAR has not been undertaken. There is nothing in the advertisement issued by the O.P.S.C. to fill up the posts of Assistant Professors in VIMSAR. In view of the interim order dated 23.2.2016 passed by the Court in this writ petition, the recruitment process of VIMSAR has not been undertaken. There is nothing in the advertisement issued by the O.P.S.C. to fill up the posts of Assistant Professors in VIMSAR. He further submitted that the posts in respect of which vacancies arose when Rules, 2009 were in vogue will be filled up in accordance with the said rule; whereas those posts which fell vacant after coming into force of the Rules, 2013 will be filled up as per the procedure laid down in Rules, 2013. He further submitted that the decision of the Hon’ble Apex Court is the law of land under Article 141 of the Constitution. It is impermissible for this Court to overrule the decision of the Hon’ble Apex Court on the ground that the Hon’ble Apex Court has laid down the legal position without considering the other points. The same is not only a matter of discipline but is a mandate in the constitution. 10. Mr.Rath, learned Senior Advocate for the Intervenors supported the submissions advanced by the learned Advocate General. 11. From the facts narrated in the preceding paragraphs, it is evident that challenging the earlier advertisements several original applications were filed before the learned Tribunal. Aggrieved by and dissatisfied with the order of the learned Tribunal, the writ applications were filed before this Court. Thereafter Special Leave Petitions were filed before the Hon’ble Apex Court. All the matters were heard together and by a common judgment dated 10.8.2015, the Hon’ble Apex Court set aside the directions of this Court and issued directions as enumerated in paragraph-3 above. 12. In view of the directions issued by the Hon’ble Apex Court to the O.P.S.C. to fill up the posts, which had arisen and fallen vacant prior to 18.12.2013 in accordance with Rules, 2009 and the posts which arose from 18.12.2013 onward will be filled up in accordance with Rules, 2013, there is a little scope of this Court to issue any further direction. Any order passed by this Court will tantamount to overreaching the order passed by the Hon’ble Apex Court, which is clearly impermissible. Nothing prevents the petitioners from approaching the Hon’ble Apex Court for redressal of their grievances. 13. Any order passed by this Court will tantamount to overreaching the order passed by the Hon’ble Apex Court, which is clearly impermissible. Nothing prevents the petitioners from approaching the Hon’ble Apex Court for redressal of their grievances. 13. On taking a holistic view of the matter, this Court is of the considered opinion that the writ petition, sans merit, deserves dismissal. Accordingly, the same is dismissed.