SAPAN KUMAR PALIT Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioner was appointed as Assistant Surgaon under the State Government with effect from 25-11- 1970. On 6-7-1977, after working as Assistant Surgaon for about seven years, he was sent on deputation for obtaining D. M. in Nephrology at Government cost and having duly qualified, with effect from 24-1-1979 he was appointed as a Junior Teacher (Clinical Tutor) in Medicine. Sometime thereafter, the Orissa Medical Education Service (Recruitment) Rules, 1979 (hereafter referred to as the 'Rules') came into force. In the meantime, there arose a vacancy in the post of Reader in Nephrology and petitioner represented that in view of his special qualifications, he should be so appointed. Government in the Health Department informed the petitioner that such appointment would amount to discrimination and, therefore, it would be desirable for the petitioner to come formally through the selection board as a junior teacher in Nephrology (see Annexure-4). Petitioner was not selected in the higher speciality by relying upon Rule 4. This writ application has, therefore, been filed for a direction to the opposite parties to consider the claim of the petitioner for the post of Junior Teacher (Registrar in Nephrology) and for a declaration that Rule 4(1) of the Rules was discriminatory, unconstitutional and ultra vires.

(2.) In paragraph 4 of the counter-affidavit, the main stand of the opposite parties has been taken. The averments therein are as follows :

(3.) We have, therefore, no other material before us excepting the consideration as to whether Rule 4 excludes persons like the petitioner from being considered for post for which it professes to apply. Undoubtedly, the post of Registrar is a Junior Teaching post as would appear from the definition of the term, occurring in Rule 3(e). That post has been defined to mean