AMBUJA SATPATHY Vs. STATE OF ODISHA

JUDGEMENT

(1.) This application involves the following relief:-

(2.) The applicant-Petitioner through the above relief in one hand while claiming for quashing of the advertisement dtd. 11/10/2018 vide Annexure-17 (Advertisement No.12 of 2018-19), also sought for appointment in the post of Asst. Professor, Surgery in Speciality category depending on her result pursuant to the Advertisement No.15 of 2015-16 also in terms of the recommendation made in her favour by the competent authority and further with grant of all consequential and financial benefit from the date of appointment of others in terms of the aforesaid advertisement.

(3.) Short background involved in this case is that the cause of action in bringing such application appears to be as an outcome through the advertisement dtd. 11/10/2018 (Annexure-17) while not showing full compliance to the selected candidates for the post of Asst. Professor, Surgery in Group-'A' of the Odisha Medical Education Service hereinafter in short be reflected as 'O.M.E.S' pursuant to the Advertisement No.15 of 2015-16 read together with the numbers of corrigendum and illegally involving the posts for which the selection is already made in the next advertisement vide Annexure-1. Such action of the State Authorities is also claimed to be illegal as it was contrary to the direction of the Tribunal in O.A. No.4124(C) of 2016 where by the interim order dtd. 9/6/2016 involving P.P. No.282(C) of 2016 and O.A. No.2064(C) of 2016 the Tribunal clearly directed for keeping one post of Asst. Professor, Surgery under General Category vacant. Through the pleadings the Applicant-Petitioner discloses that pursuant to the direction of the High Court dtd. 4/7/2013 in W.P.(C) No.13721 of 2013 the Selection Committee recommended the name of the Applicant-Petitioner along with others for appointment in different disciplines and it is pursuant to which the applicant was appointed as Asst. Professor but on ad.hoc basis in M.K.C.G Medical College and Hospital, Berhampur in the discipline of Surgery and she is continuing as such. Proof of the same is filed herewith at Annexure-1. It is claimed that while the Applicant- Applicant-Petitioner was continuing as such, the respondents therein issued Advertisement No.15 of 2015-16 inviting applications from eligible candidates for recruitment to the post of Asst. Professor in different disciplines including that of Surgery discipline. The advertisement also made it clear that the selection therein shall be made as per the O.M.E.S (Methods of Recruitment and Condition of Service) Rules, 2009. So far as the discipline of Surgery is concerned; the advertisement contains fifteen numbers of post on that head and out of which three posts were reserved for S.T. (2 Male + 1 Woman), four posts were reserved for S.C. (3 Male + 1 Woman), eight posts were reserved for unreserved category (6 Male + 2 Women). For better appraisal the Applicant-Petitioner includes the advertisement at Annexure-2 requiring submission of application by 23/12/2015. The Applicant-Petitioner finding herself eligible applied for the post of Asst. Professor (Surgery) specifically meant for women in unreserved category vide Annexure-3. It is needless to mention here that prior to undertaking of the selection process the Odisha Public Service Commission hereinafter in short be reflected as 'O.P.S.C' issued a corrigendum involving Advertisement No.15 of 2015-16 bringing in a restriction to the recruitment to the post of Asst. Professors at S.C.B. Medical College and Hospital, Cuttack, MKCG Medical College and Hospital, Berhampur and S.C.B. Dentistry College, Cuttack. Accordingly a revised vacancy position for the post of Asst. Professors in Group 'A' of O.M.E.S in different disciplines was published. The Applicant-Petitioner specifically pleaded that so far as the vacancies in the discipline of Surgery under specific category were concerned; a total number of eight vacancies were advertised for recruitment in the O.M.E.S site, which indicates out of fifteen number of posts available in the discipline of Surgery only eight vacancies in such discipline were carved out and bifurcating the same the reservation is made as such; two posts for S.T., two posts for S.C. and four posts for unreserved candidates. It was also made clear that the application so submitted pursuant to the Advertisement No.15 of 2015-16 shall also be considered for the above noted vacancies at S.C.B. Medical College and Hospital, Cuttack, M.K.C.G Medical College and Hospital, Berhampur and S.C.B. Dentistry College, Cuttack. This corrigendum is found place at Annexure-4. It appears, simultaneously the OPSE brought out an Advertisement bearing No.17 of 2015-16 for recruitment to the post of Asst. Professor in Super Specialty and Specialty in different disciplines for Veer Surendra Sai Institute of Medical Science and Research hereinafter in short be reflected as 'VIMSAR'. The advertisement inviting further applications is at page 30 of the brief and the internal page 2 of the said advertisement shows, the balance seven vacancies in the Surgery stream has been assigned to VIMSAR. Through this advertisement the reservation was segregated as one post to S.C. category and the balance six posts to unreserved category including three women and the application was required to be submitted by 30/1/2016 as appearing at Annexure-5. Applicant-Petitioner here being aggrieved for not providing reservation to women candidates in un-reserved category from out of four posts meant for Surgery stream in the corrigendum relating to the Advertisement No.15 of 2015-16 filed O.A. No.147(C) of 2016 before the State Administrative Tribunal seeking a direction therein to the Respondent No.2 to provide the reservation of two posts for women candidates in the Un-reserved category in terms of the Women Reservation Rules, 1994. It is claimed that the Tribunal while issuing notice on 19/5/2016, in the interim directed, any appointment in the post of Asst. Professor in the discipline of Surgery will be subject to the result of the O.A. In the meantime the O.P.S.C. issued second corrigendum involving Advertisement No.15 of 2015-16 vide notice No.635 dtd. 3/2/2016 by modifying the vacancy position in respect of seven disciplines including the discipline of Surgery. It is claimed through this corrigendum that so far as the Surgery discipline is concerned; out of total eight vacancies in Surgery discipline two were reserved for S.C. category, two were reserved for S.T. category and four posts were reserved for Un- reserved category. This time in the Un-reserved category it was segregated to three men and one woman. By this corrigendum the last date for submission of the application in respect of the modified vacancies through Online mode was extended till 17/2/2016. The 2nd corrigendum is filed herewith at Annexure-6. In the meantime there is issuing of 3rd corrigendum involving the Advertisement No.15 of 2015-16 vide notice No.3231 dtd. 25/5/2016 again carving out the vacancies in the Surgery stream and out of total eight vacancies two were reserved for S.T., one was reserved for S.C. and out of five un-reserved vacancies two were reserved for women. Here the date of submission of the application was again extended to 25/6/2016 vide Annexure-7 keeping reserve consideration of application already submitted involving the Advertisement No.15 of 2015-16. After all these developments taken place considering the suitability of the Applicant-Petitioner to at least appear in the interview on 22/8/2016 the Applicant-Petitioner was issued with a call letter vide Annexure-8 to remain present at viva-voce test in the Office of the Commission, as she was already provisionally selected to appear in the viva voce test vide Annexure-8. After completion of the viva voce test involving all the selected candidates a list was published by the O.P.S.C in their notice dtd. 21/9/2016 bringing out two separate select list i.e. one pursuant to the Advertisement No.15 of 2015-16 meant for O.M.E.S and the other one pursuant to the Advertisement No.17 of 2015-16 though exclusively meant for VIMSAR, but inadvertently indicating both for O.M.E.S. The notice dtd. 21/9/2016 is filed at Annexure-9. It is needless to mention here that though the Advertisement No.17 of 2015-16 was meant for VIMSAR, after publication of the result by the O.P.S.E it appears, the Government in Health and Family Welfare Department brought two separate notifications; one dtd. 31/10/2016 at Annexure-11 (series) at page 39 of the brief involving the select list of seven candidates in Surgery wing meant for VIMSAR for appointment in the post of Asst. Professor, Surgery also indicating the women candidate Dr. Sucheta Panigrahi at Sl.No.1 and Dr. Ambuja Satapathy the present the Petitioner also in Un-reserved category at Sl.No.3 and the other notification dtd. 3/11/2016 brought out by the Government in Health and Family Welfare Department under the O.M.E.S appointment was for M.K.C.G Medical College and Hospital, Berhampur and S.C.B. Medical College and Hospital, Cuttack, where Dr. Sucheta Panigrahi again shown to be the only woman candidate under the Un-reserved category at Sl.No.4 was directed to be posted in M.K.C.G. Medical College and Hospital, Berhampur under O.M.E.S. recruitment. The notification dtd. 31/10/2016 had no conditional attachment about pendency of any case, whereas in the notification dtd. 3/11/2016 at page 42 of the brief the appointment was directed to be made subject to the outcome in pending P.P. No.282(C) of 2016 filed by Dr. Swarupa Nanda Mallick and Anr. and O.A. No.2064(C) of 2016 filed by Dr. Amar Kumar Behera. It appears, in the meantime the present Applicant-Petitioner filed O.A. No.4124(C) of 2016 challenging non-consideration of her case for appointment in S.C.B. Medical College and Hospital, Cuttack, which could not be taken up on account of interim order passed in O.A. No.2064(C) of 2016 and P.P. No.282(C) of 2016, there the Tribunal appears to have passed the order on 11/11/2016 thereby directing for maintenance of status quo in respect of the position of the applicant as on 11/11/2016. In the meantime in another development through W.P.(C) No.5525 of 2016 this High Court by the order dtd. 18/4/2016 as an interim measure directed, the Applicant-Petitioner therein Dr. Amar Kumar Behera shall continue in the post of Asst. Professor (Adhoc.) in the Department of Surgery in VIMSAR till the next date. In the meantime the Applicant-Petitioner who was found to be selected pursuant to the Advertisement No.17 of 2015- 16, while foregoing her appointment in VIMSAR, was constrained to bring this litigation with specific plea that Dr. Sucheta Panigrahi though selected under both the notifications dtd. 31/10/2016 and 3/11/2016 for VIMSAR as well as M.K.C.G, opted to continue as per the notification dtd. 31/10/2016 in VIMSAR, thus abandoned her posting pursuant to the appointment notification dtd. 3/11/2016 in M.K.C.G Medical College and Hospital, Berhampur. The Applicant-Petitioner thus claimed that since the O.M.E.S advertisement continued through the Advertisement No.15 of 2015-16 read together with the 2nd and 3rd corrigendum clearly making two reservation for women out of five in Un- reserved category, once Dr. Sucheta Panigrahi the only women candidate selected in the Un-reserved category in the Surgery stream and the Applicant-Petitioner Dr. Ambuja Satapathy having stood in number one in the wait list in Surgery stream, she automatically deserves to be posted at M.K.C.G Medical College and Hospital, Berhampur. Applicant- Petitioner further pleaded that in the meantime during pendency of O.A. No.4124(C) of 2016 the Government in Health and Family Welfare Department under the premises of large number of vacancies requested the O.P.S.C to recommend the names of eligible wait listed candidates on the basis of the Advertisement No.15 of 2015-16 for being appointed in the S.C.B. Medical College and Hospital, Cuttack and M.K.C.G Medical College and Hospital, Berhampur in order of their merit. The same is at Annexure-13(series) more particularly at page 44 of the brief. Pursuant to the above request, it appears, the O.P.S.C. vide its notice No.6047 dtd. 17/10/2017 recommended the names of 11 candidates in order of merit for their appointment against the post of Asst. Professor in all the seven disciplines and the list contains the name of the present Applicant- Petitioner at Sl. No.7 a candidate in Surgery stream under Un-reserved female category and one Dr. Sworupa Nanda Mallick a S.C. candidate but selected under Un-reserved. Applicant-Petitioner has the further pleading that while the matter stood thus one Dr. Uma Prasad Padhy moved O.A. No.1796(C) of 2016 a candidate in Neurology stream again involving the Advertisement No.15 of 2015-16 for not being appointed against such vacancies in spite of foregoing to such posts by the selected candidates. This O.A. is finally disposed of by the order vide Annexure-14 thereby directing for engagement of Dr. Uma Prasad Padhy as against the vacancies under Neurology stream pursuant to the Advertisement No.15 of 2015-16. For such direction of the Tribunal the O.P.S.C recommended the name of Dr. Uma Prasad Padhy to have been recruited as against the post of Asst. Professor, Neurology in Group 'A' of O.M.E.S pursuant to the Advertisement No.15 of 2015-16 vide Annexure-15. In the meantime there has been circulation of a communication dtd. 6/9/2017 clearly communicating therein that there has been declining by Dr. Sucheta Panigrahi to join at M.K.C.G Medical College and Hospital, Berhampur as against her selection as Asst. Professor on regular basis in Surgery stream involving the Advertisement No.15 of 2015-16 as appearing at Annexure-16. While the matter stood thus the Applicant- Petitioner here claims that for Dr. Amar Kumar Behera filed O.A. No.2064 (C) of 2016 and W.P.(C) No.5525 of 2016 joining as Asst. Professor, Surgery at M.K.C.G Medical College and Hospital, Berhampur, there has been two clear vacancies in the post of Asst. Professor, Surgery in Un-reserved category. Applicant-Petitioner while claiming that Dr. Amar Kumar Behera since is a male candidate, he cannot be considered in female candidate vacancy in Un-reserved category, thus claims that there is no reason for not providing appointment to her as she remains to be the only women candidate and not only selected in the selection process but also secured the position next to the eight selected candidates and the only women selected candidate in Surgery stream. For there are two clear vacancies in the eight vacancies in the Surgery stream, the Applicant-Petitioner claims that looking to her position in the select list there should have been automatic positioning of her pursuant to the Advertisement No.15 of 2015-16. Applicant-Petitioner alleges that even after the requisition of the State Government for sending the name of the next selected candidates in the waitlist and even after sending of her name by the O.P.S.C vide Notice No.6047 dtd. 10/10/2017 at page 45 and for no posting of her, there is great level of injustice created to the Applicant- Petitioner.