STATE OF ORISSA Vs. GOPAL CHANDRA RATH

JUDGEMENT

(1.) This appeal by the State of Orissa is directed against the judgment of the Orissa Administrative Tribunal, Bhubaneshwar in T. A. No. 451/87. By the impugned judgment the Tribunal having altered the seniority of the Junior teachers in the Department of Surgery, the same is being assailed inter alia on the ground that the Rule 8(2) (iii) cannot have any application for determining the inter se seniority between these junior teachers who were appointed in the year 1971 by a Selection Committee.

(2.) The brief facts, necessary for examining the point in issue, may be stated thus: The post of junior teacher is a teaching post attached to the Medical Colleges of the State, whereas, Assistant Surgeons are posts attached to different Government hospitals in the State. Between the period 1960 till June 1971 the doctors who were appointed as Assistant Surgeons through a process of selection by the Orissa Public Service Commission were also being posted as a junior teacher in any of the Medical Colleges. In June 1971, however, the State Government decided to fill up the post of junior teachers in the Medical College from amongst the Assistant Surgeons by process of selection to be selected by the Selection Committee. In the year 1973, a set of rules for recruitment and promotion to the various teaching posts in the Medical Colleges were framed under the Proviso to Article 309 of the Constitution, called the Orissa Medical Health Service (Recruitment and Promotion to the Teaching Posts in the Medical Colleges) Rules, 1973 (hereinafter referred to as "The Recruitment Rule of 1973"). Under the said Rules appointment to the post of junior teachers could be made through a Selection Board by recruitment from amongst the Assistant Surgeons with atleast one year experience in consultation with Public Service Commission. The inter se seniority of such junior teachers who were appointed on or after 1st December 1960 till the commencement of the Recruitment Rules of 1973 was to be determined in accordance with sub-rule (2) of Rule 8. In the aforesaid Recruitment Rules of 1973 the expression "Selection Committee" was defined in Rule 3(g) to mean the Selection Committee appointed by the State Government prior to the commencement of the Rules to select persons for appointment to the junior teaching post." Be it be stated that even prior to the Recruitment Rules of 1973, a set of rules were in vogue being framed in exercise of power under the Provision to Article 309 of the Constitution called the Orissa Medical Health Service (Promotion of Senior Teaching Posts in the Medical Colleges) Rules. 1970, to be referred to as "The Recruitment Rules of 1970". Though the aforesaid Rule of 1970 contained the method of promotion to the post of senior teaching post in the Medical Colleges, namely, the Assistant Professor. Associate Professor and Professor but it recognised the junior teachers as a cadre and provide for the criteria for determination of inter se seniority in the rank of junior teachers, same being that it shall be revoked with respect to the date of appointment to the junior teaching post in the speciality and in superspeciality. While the Gradation List of the Junior teachers prepared in accordance with the Recruitment Rule of 1973, was provisional and the same had not been finalised, the Recruitment Rules of 1973 was repealed and another set of Recruitment Rules were framed called the Orissa Medical Education Service (Recruitment) Rules. 1979, (hereinafter referred to as "The 1979 Recruitment Rules"). The definition of Selection Committee in Rule 3(g) of the 1979 Recruitment Rule was to the effect that Selection Committee appointed by the State Government from time to time in between the period from 1-12-1960 to 22-9-1973 to select persons for appointment to the junior teaching posts. Rule 8 of the 1979 Recruitment Rules provided for determination of inter se seniority of junior teachers. Sub-rule (2) of Rule 8 is the provision for determination of inter se seniority of junior teachers appointed on or after 1st December, 1960, till the date of commencement of the said Recruitment Rule. Clause (i) of the aforesaid sub-rule is to the effect that the seniority of junior teachers shall be reckoned from the date of their appointment to the junior teaching post. Under the Explanation the date of appointment must be deemed to be the date on which the notification relating to the appointment is issued by the Government in consolation with the Commission. Clause (ii) of the said sub-rule is to the effect that persons appointed on the same day as junior teachers in pursuance of the recommendations of the Selection Committee shall be given inter se seniority in accordance with the placement given by the Selection Committee. Clause (iii) of the said sub-rule provides the mode of determining inter se seniority of junior teachers other than those appointed in consolation with the Commission or the Selection Committee on the basis of their seniority in the rank of Assistant Surgeons in the State Medical and Health Service. Clause (iv) of the said sub-rule provides that those junior teachers who were appointed on or after 1st December 1960 in pursuance of the recommendations of the Commission, to be considered senior to those appointed in the same year without consulting the Commission, irrespective of the date of appointment.

(3.) In the case, in hand, we are really concerned with Clauses (ii) and (iii) of sub-rule (2) of Rule 8. For better appreciation of the point in issue sub-rule (2) of Rule 8 of the 1979 Recruitment Rules is extracted herein below in extenso :-