DASARATHI MAHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS is an application, under Articles 226 and 227 of the Constitution praying to quash an order dated 11th September, 1968 reverting the petitioner as a Civil surgeon. The petitioner Dr. Dasarathi Mohapatra joined service under the State of orissa as an Assistant Surgeon and in due course was promoted to the rank of civil Surgeon. While working as Civil Surgeon he was temporarily promoted to the rank of Joint Director of Health Services on a provisional basis by order dated the 29th July, 1968 of the Government of Orissa in the Health and Family Planning department and by the said order Ms services were placed at the disposal of the labour, Employment and Housing Department for appointment as Administrative medical Officer, Employees' State Insurance Scheme. The order ran as follows : "dr. Dasarathi Mohapatra, Civil Surgeon at present Medical superintendent, T. B. Hospital, Puri, is temporarily appointed as a Joint director of Health Services on provisional basis for a period of six months with effect from the date of joining or till the appointment is made in consultation with the Orissa Public Service Commission or until further orders, whichever is earlier.

(2.) HIS services are placed at the disposal of the Labour, Fmployment and housing Department. Bhubaneswar for appointment as the administrative Medical Officer, Employees State Insurance Scheme vice dr. P. C. Mohanty appointed as the Director of Health and Family planning Services, Orissa. XXXXX (vide -- Notification No. IX. Med. XXIA-5/18 15798/h. dated July 29, 1968 of the Health and Family Planning Department ). " 2. It is not disputed that on the date the petitioner was promoted as Joint Director of Health Services, two other officers who were junior to him in the gradation list of Civil Surgeons, namely, Dr. I. P. Acharya and Dr. G. C. Mohanty were also promoted to the rank of Joint Directors of Health. The petitioner joined as administrative Medical Officer, Employee's State Insurance Scheme on 9-8-1968. In pursuance of the order of the Health Department placing the services of the petitioner at the disposal of the Labour Department, the latter Department on 19th august, 1968 issued an order appointing the petitioner temporarily until further orders as Administrative Medical Officer of the Employees State Insurance Scheme with effect from 9-8-1968 for a period not exceeding one month. On 11th Sept. 1968, the Government in the Health Department issued the impugned order reverting the petitioner to the rank of Civil Surgeon. It is necessary to reproduce the order in extenso for appreciation of the several contentions raised in this case. "government of Orissa Health and F. P. Department Notification Dated the 11th September, 1968. No. 19100/h. Dr. Iswari Prasad Acharya Joint Director of Health services, Family Planning is transferred and posted as Joint Director of health Services, Medical vice Dr. B. M. Nanda, retired. No. 19101/h. Dr. Natabar Mohanty, Civil Surgeon, Cuttack, is temporarily appointed as a Joint Director of Health Services on provisional basis for a period of six months with effect from the date of his joining or till the appointment is made in consultation with the Orissa public Service Commission or until further orders, whichever is earlier, and posted as Joint Director of Health Services, Family Planning vice Dr. Iswari Prasad Acharya transferred. No. 19102/h. Dr. Narayan Mohapatra, Civil Surgeon, Sambulpur is transferred, and posted as the Civil Surgeon, Cuttack vice Dr. Natabar mohanty appointed as a Joint Director of Health Services. No. 19103/h. Dr. Dasarathi Mohapatra, Joint Director of Health Services at present Administrative Medical Officer, Employees State Insurance scheme is reverted to the rank of Civil Surgeon with effect from the date of his relief from the Labour, Employment and Housing Department, and is posted as the Civil Surgeon, Sambalpur vice Dr. Narayan Mohapatra transferred. By order of the Governor D. P. Tripathy Secretary to Government. " the effect of this order was that while Dr. I. P. Acharya, and Dr. G. C. Mohanty who were juniors to the petitioner in the cadre of Civil Surgeons, and who simultaneously with the petitioner were promoted to the rank of Joint Directors, public Health were allowed to continue in the aforesaid higher cadre, the petitioner was not only reverted to the rank of Civil Surgeons but another officer Dr. Natabar mohanty who in the gradation list of Civil Surgeons is even junior to Sri G. C. Mohanty was freshly promoted to the rank of Joint Directors. It is contended by the petitioner that in the circumstances referred to above, his reversion to the rank of Civil Surgeon amounts to the imposition of penalty by way of reduction in the rank, and that as admittedly the procedure contemplated under article 311 has not been followed, the impugned order has to be struck down as illegal.

(3.) THE State of Orissa contends that as the petitioner had been promoted temporarily until further orders to the higher rank of Joint Director, Public Health he had no manner of right to hold the post and as in the higher rank he was found unsuitable, his reversion to his substantive post of Civil Surgeon does not carry with it any stigma and does not entail any penal consequences and as such cannot be construed as a penalty to attract the operation of Article 3il.