SATICHIDANANDA MISHRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The present appeal by special leave is directed against the judgment dated 6th August, 2001 passed by the Orissa High Court declining to set aside order of Orissa Administrative Tribunal whereby Orissa Medical Education Service (Appointment of Junior Teachers Validation) Act, 1993 (for short, 'the Validating Act') has been declared as ultra vires the Constitution of India. The factual background which gives rise to the present controversy is narrated as follows.

(2.) On 24th September, 1973, the Orissa Medical Health Services (Recruitment and Promotion to Teaching Posts in the Medical Colleges) Rules, 1973 (hereinafter referred to as the '1973 Rules') were framed under proviso to Article 309 of the Constitution. These Rules provided that appointment to the posts of Junior Teachers shall be made through a Selection Board by recruitment from amongst the Assistant Surgeons with at least one year's experience as such, in consultation with the Orissa Public Service Commission (hereinafter referred to as 'OPSC'). Rule 3(f) defined 'Selection Board' to mean a Selection Board appointed by the State Government to select persons for appointment to the Junior or Senior teaching posts and shall consist of the Principals of Medical Colleges in the State and such others as may be nominated by the Government. The 1973 Rules came to be repealed by another set of Rules dated 13th August, 1979 made under proviso to Article 309 of the Constitution, called 'the Orissa Medical Education Service (Recruitment) Rules, 1979 (for short, '1979 Rules'). Under these Rules, vide-sub-rule (2) of Rule 4, minimum qualification of postgraduate degree in the concerned speciality or any other equivalent degree or qualification as prescribed by the Council was provided for appointment of Junior Teachers. Rule 3(f) provided that Selection Board was to be constituted with member of the OPSC as its Chairman. The Secretary to Government in the Health and Family Welfare Department, DHET and Principals of the Medical Colleges were to be its members. On 20th September, 1979 the Director of Medical Education and Training (DMET) issued advertisement - inviting applications from eligible candidates for appointment as Junior Teachers in various disciplines/ specialities. The Selection Board as per 1979 was, however, never constituted. According to Government, as many posts of Junior Teachers, remained vacant for long time, the Chief Minister passed orders on 27th January, 1980 to fill up those posts by ad hoc appointments without constituting a Selection Board under 1979 Rules. Despite 1973 Rules having been repealed, the Selection Board appointed on 3rd August, 1979 under the repealed Rules was allowed to make the selections. After obtaining orders of the Chief Minister on 4th August, 1980, orders were issued by the State Government to the selected candidates appointing them as Junior Teachers on ad hoc basis. Some appointments were also made on 11th November, 1980. In all, 49 candidates came to be appointed as Junior Teachers on ad hoc basis by the Government. On 9th February, 1982 the recommendations of the Selection Board constituted under the 1973 Rules, were referred to the OPSC along with the entire list of 145 candidates who had applied for the post pursuant to the advertisement dated 20th September, 1979. The OPSC refused to concur with the ad hoc appointments of these 49 Junior Teachers. This led to the enactment of the Validating Act by which all the 49 Junior teachers appointed on ad hoc basis by the Government were deemed to have been validly and regularly appointed in the service from the date of their appointment as such.

(3.) The Administrative Tribunal by its order dated 30th November, 1998 declared the Validating Act ultra vires and inoperative. The decision of the Tribunal has been upheld by the Division Bench of the Orissa High Court by the impugned judgment.