Pratap Kumar Rath vs State of Orissa and Others

N. Prusty, J.—The petitioner, who was Respondent No. 3 in O.A. No. 1712 of 2002 pending before the Orissa Administrative Tribunal, Principal Bench, Bhubaneswar filed by one Susanta Kumar Das, has filed this present Writ Application challenging the Order dated 16.7.2004 passed in M.P. No. 1244 of 2003 filed by the State Government for obtaining leave to fill up the post of Professor in Surgery Department.

By Order dated 9.5.2003 the Tribunal directed as follows :

"If such a DPC meeting is held and if any of the respondents is promoted as Professor then his continuance in the post beyond 15.7.2003 shall be with the leave of the Tribunal."

Opposite Party No. 4 has mainly contested this case along with the State Government. The above Order dated 9.5.2003 was modified on an application filed by the State Government, that is, Misc. Case No. 1244 of 2003 by Order dated 16.7.2004 granting leave to the state to fill up the post of Professor in Surgery. The present petitioner was one of the beneficiaries of the aforesaid order dated 9.5.2003 being one of the respondents in the O.A. Hence this Writ Application at his instance.

The petitioner''s contention is that he is the senior most Assistant Professor in the Department of Surgery. Even though the petitioner along with Opposite Party No. 4 was selected by the Orissa Public Service Commission for appointment to the post of Lecturer in Surgery by Notification dated 10.9.1986 and the petitioner was promoted as Assistant Professor in September, 1992 and Opp. Party No. 4 was promoted in December, 1998 with retrospective effect from the date of promotion of the petitioner in September, 1992 the same is de hors the Rules since Opp. Party No. 4 was not fulfilling eligibility criteria to be selected and promoted to the post of Assistant Professor.

The admitted position in this case is that O.A. No. 1712 of 2002 was filed by one Susanta Kumar Das before the O.A.T. Principal Bench, Bhubaneswar claiming seniority over and above the present petitioner and Dr. S. K. Mohapatra (Respondents 3 and 4 respectively in the Tribunal) pursuant to the notification of the Government, he being the Scheduled Caste person. The interim order, which has been vacated by Order dated 16.7.2004 was passed on an application filed by the applicant therein, that is, Dr. S. K. Das. Dr. S. K. Das has not filed any application challenging the Order dated 16.7.2004 even though the earlier stay order granted in his favour was vacated/modified by the Tribunal in the impugned order.

(A) O.A. No. 2388 of 2001 filed by Dr. Pratap Kumar Rath (present petitioner) against the State of Orissa as well as Dr. Sribatsa Kumar Mohapatra (Opp. Party No. 4 herein) before the Orissa Administrative Tribunal, Principal Bench, Bhubaneswar wherein the applicant has challenged the promotion of Dr. Sribatsa Kumar Mohapatra to the post of Asst. Professor with retrospective effect placing him senior to the applicant. In the said case notice has already been issued but no counter has yet been filed.

(B) O.A. No. 2052 (C) of 2001 filed by Dr. S. K. Sahoo, Dr. Kailash Ch. Mohapatra, Dr. Brajamohan Mishra, Dr. Tej Kumar and Dr. Jagadananda Mishra against the State of Orissa, Director of Medical Education and Training, OPSC and Dr. Sribatsa Kumar Mohapatra (Opp. Party No. 4) before the OAT Cuttack Bench, Cuttack challenging promotion of Dr. S. K. Mohapatra to the post of Assistant Professor which is contrary to Rules 1979 and his consequential consideration made for promotion to the post of Associate Professor. In this case notice has been issued but no counter has been filed as yet.

(C) As already stated, earlier O.A. No. 1712 of 2002 filed by Dr. Susanta Kumar Das against the State of Orissa, OPSC Dr. Pratap Kumar Rath, Dr. Sribatsa Kumar Mohapatra and Dr. S. K. Sahoo before the Principal Bench, Bhubaneswar claiming seniority over and above Dr. P. K. Rath, Dr, Sribatsa Kumar Mohapatra and Dr. S. K. Sahu being a Scheduled Caste person, pursuant to the Government of Orissa Notification. In this case notice has been issued and an interim order has been passed on 9.5.2003. No counter has yet been filed by the State Government. The interim Order dated 9.5.2003 was vacated on 16.7.2004 and the same is under challenge in the present Writ Petition.

(D) O.A. No. 2522(C) of 2003 filed by Dr. Braja Mohan Mishra, Dr. Tej Kumar and Dr. S. K. Sahu against the State of Orissa, Director of Medical Education and Training, OPSC and Dr. Sribatsa Kumar Mohapatra before the OAT, Cuttack Bench, Cuttack challenging the promotion of Dr. Sribatsa Kumar Mohapatra with retrospective effect over and above the applicants those who have been promoted earlier to him to the post of Assistant Professor and also claiming seniority over him. In this case, notice has been issued but no counter has. been filed by the State till date.

(E) O.A. No. 3432(C) of 2003 filed by Dr. Charan Panda against the State, Director of Medical Education and Training, OPSC and Dr. Sribatsa Kumar Mohapatra before the Cuttack Bench of the Tribunal claiming seniority over Dr. S. K. Mohapatra and this case was disposed of at the stage of admission on 29.1.2004.

(F) O.A. No. 1450 (C) of 2004 has been filed by Dr. Pratap Kumar Rath against the State of Orissa, Director of Medical Education and Training, OPSC and Dr. Sribatsa Kumar Mohapatra before the Cuttack Bench of the Tribunal challenging recommendation of the name of Opp. Party No, 4 to the post of Professor. In this case, notice has been issued but no counter has yet been filed by the State.

(G) O.A. No. 651 (C) of 2002 filed by Dr. S. K. Mohapatra (Opp. Party No. 4) against Dr. Jagmohan Mishra and Dr. Prasanna Kumar Debata claiming his seniority over them which is also pending for disposal before the Cuttack Bench.

As such the present petitioner, Dr. Pratap Kumar Rath has filed O.A. No. 2388 of 2001 challenging promotion of Dr. Sribatsa Kumar Mohapatra to the post of Assistant Professor with retrospective effect placing him senior to the applicant before the Principal Bench, Bhubaneswar and O.A. No. 1450 (C) of 2004 challenging recommendation of the name of Opp. Party No. 4 to the post of Professor before the Cuttack Bench. Both the cases are pending and no counter affidavit has yet been filed. All other O.As. have also been filed by the respective applicants challenging the order of promotion of Dr. S. K. Mohapatra to the post of Asst. Professor as well as claiming seniority over him. No interim relief has yet been granted in favour of the petitioner in his O.A. No. 1450(C) of 2004 and he has not filed any application challenging the order of the Tribunal in not considering his prayer for interim relief and adjourning the hearing of the prayer for interim relief.

Opp. Party No. 4 has filed his counter affidavit in this case, inter alia, stating therein that this Writ Petition is not maintainable and the relief sought for by the petitioner is not entertainable as the Writ Petitioner has no locus standi nor has any right to challenge the order of the tribunal for granting leave in favour of the Government to fill up the post of Professor in Surgery as per recommendation of the Departmental Promotion Committee and subsequent approval/ clearance of the OPSC for the said promotion and also since the order impugned was passed in O.A. No. 1712 of 2002 which has been filed by one Dr. S.K. Das claiming seniority over the present petitioner, Dr. S. K. Mohapatra (Opp. Party No. 4) and Dr. S. K. Sahoo as well as the original applicant in the O.A. (Dr. S. K. Das) has not challenged the impugned order before any forum. The Writ Petitioner was only a beneficiary of the order passed in the O.A. filed by Dr. S. K. Das. Since the earlier order passed in the case filed by Dr. S. K. Das was modified/vacated by the subsequent order, it was only Dr. S. K. Das who could have approached this Court for appropriate relief and a beneficiary of an earlier order cannot challenge the subsequent order vacating the earlier order without making the original applicant therein as party in this Writ Petition. In this Court gradation of the Surgery Department in teaching branch-dated 5.11.2004 was challenged and the same has already been rejected by this Court in the Order-dated 18.6.2004. In the said gradation list the present petitioner was at Sl. No. 6 and this Opp. Party No. 4 was at Sl. No. 5 and as such is above the petitioner. Since the petitioner has no approached this Court in clean hands and suppressed many material facts, is not entitled to any relief.

In support of his contention Mr. R. K. Rath, Learned Counsel for Opp. Party No. 4 has cited good number of decisions, those are Cotton Corporation of India Limited Vs. United Industrial Bank Limited and Others, , The State of Orissa Vs. Madan Gopal Rungta, , AIR 2002 SC 2459 wherein it has been held that every interim order is granted in aid of or as ancillary to the main relief sought for. The Learned Counsel submits that since the interim order granted in this case has nothing to do with the relief sought for in the Original Application, the present Writ Application should not be entertained.

Learned Counsel further relies on the decisions of M/s. Gujarat Bottling Co. Ltd. and others Vs. Coca Cola Company and others, and S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, and submits that the promotion to the rank of Professor of Surgery which is a very important post and merely because the petitioner feels that he may succeed one day is not a ground to grant the same. A post should not be kept vacant. If the petitioner succeeds he will get all his benefits.

On the conduct of the petitioner that he has not come to the Court in clean hands, Mr. Rath cited decision reported in Delhi Development Authority Vs. Skiper Construction Company (P) Ltd. and another, and Municipal Corporation of Delhi Vs. Kamla Devi and another, .

In support of his contention that in service matter stay is never granted as the party can get the relief if he finally succeeds, in this regard, he cites decisions reported in Rana Randhir Singh and Others Vs. State of U.P. and Others, (Paras 11, 12, 13 and 14) and Public Services Tribunal Bar Association Vs. State of U.P. and Another, (Para 40).

Mr. B. R. Sarangi, Learned Counsel appearing for the petitioner in his final reply to the above contentions made by the Learned Counsel for Opp. Party No. 4 submits that Opp. Party No. 4 was not eligible to hold the post of Asst. Professor since he has less than three year''s teaching experience as a Lecturer after obtaining P.G. Degree in the concerned specialty or higher specialty. The petitioner was promoted to the said post de hors the Rules having no eligibility criteria of teaching experience of three years because by the time he went on foreign assignment service, he has only two years four months nineteen days teaching experience. He had rendered private service between the period 8.6.1996 and 4.12.1996 in Janakidas Kapoor Hospital for which a disciplinary proceeding has been initiated against him and the same is pending disposal. Learned Counsel for the petitioner further submits that although ordinarily a Court cannot sit as an Appellate Authority over the decision of the Departmental Promotion Committee, the decision of the Selection Committee can be interfered with only on the grounds of illegality or material irregularity and if the recommendation is made de hors the Rules. The Writ Petition cannot be rejected on the ground of maintainability due to non-joinder of parties, since when a Government employee challenges the action of the State Government and the relief so claimed against the Government is not against the individual, failure to implead all affected employees would not make petition unmaintainable. He further submits that this Court has jurisdiction to entertain the Writ Application under Articles 226 and 227 of the Constitution of India including the interim order after the judgment of the Apex Court dated 18.3.1997.

In support of his contentions, Learned Counsel has relied upon the decisions of the Supreme Court reported in B. Prabhakar Rao and Others Vs. State of Andhra Pradesh and Others, wherein it has been held that a Writ Petition by a Government employee challenging the Government action and ordinance relief claimed against the Government and not against the individual failure to implead all affected employees would not make the petition unmaintainable. The High Court has also jurisdiction to entertain the Writ Petition under Articles 226 and 227 of the Constitution against all the decisions including the interim order after the judgment of the Apex Court dated 18.3.1997 L. Chandra Kumar Vs. Union of India and others, and 1998 (1) ATT (CHH) 223 (Para 4) (Miss Anjali Chose v. State of Orissa). The other decisions cited by him relating to the Rules made under the proviso to Article 309 of the Constitution are legislative in character. Where Statute prescribes a thing to be done in a particular manner, it has to be done in the same manner. The Rules require for necessary experience as mandatory requirement and warranted insistence of the same. The Court cannot sit as an Appellate Authority over the decision of the DPC. The decision of the Selection Committee can be interfered with only on a limited ground such as material irregularity and illegality. The ad hoc service prior to regular appointment cannot be counted.

Admittedly, a number of O.As. are filed by the respectively parties as stated in above paragraphs which are pending before the Orissa Administrative Tribunal without a counter affidavit being filed by the State Government in which the respective applicant has either (a) challenged the seniority of Sribatsa Kumar Mohapatra Opp. Party No. 4 above them, (b) his promotion to the post of Assistant Professor with retrospective effect or (c) his consequential promotion to the post of Associate Professor when his initial promotion to the post of Assistant Professor is under challenge, or (d) recommendation of his name to the post of Professor when his initial appointment to the post of Asst. Professor as well as Associate Professor is under challenge. The Tribunal is yet to take a decision in all these matters as well as on all the contentions/issues raised by the Learned Counsels for the respective parties and in view of the above at this stage we are not inclined to express any opinion on the merits of the case or discuss anything in this regard.

While issuing notice on 5.10.2004 as an interim measure, this Court directed that the Order dated 16.7.2004 passed by the Orissa Administrative Tribunal in O.A. No. 1712 of 2002 impugned in this proceeding directing for promotion of Opp. Party No. 4 to the post of Professor, Department of Surgery shall remain stayed till the next date. On the next date, that is, 15.10.2004 a direction has been issued that the interim Order dated 5.10.2004 shall continue till next date. It is stated by the Learned Counsel for the State that the recommendation of the Departmental Promotion Committee is valid for one year and Mr. R. K. Rath Learned Counsel for Opp. Party No. 4 stated that one-year will lapse in the month of October, 2004. Accordingly, we made it clear that "during the pendency of the Writ Application the validity of the Departmental Promotion Committee shall remain in force and shall not lapse".

Considering the submissions made by the Learned Counsel for the respective parties and after going through the records as well as decisions cited by the Learned Counsels for the respective parties, we are of the considered view that there is some force in Mr. Rath''s argument with regard to the maintainability of this case at the instance of the present petitioner since he was not the original applicant in O.A. No. 1712 of 2002 and filed this Writ Application without making the applicant in the aforesaid O.A. a party in this case and he was only a beneficiary of the interim order passed in the case being one of the respondents. But taking into account all the available materials and keeping in view the issues raised in all the pending O.As. at this stage, before all these cases are disposed of, it will not be appropriate to discuss anything on the merits of the contentions raised by the Learned Counsel for the parties. Further, considering the gravity of the situation and in the facts and circumstances of the case, while exercising jurisdiction under Article 226 of the Constitution of India, equity and fair play have also to be taken into consideration before rejecting or accepting the contentions raised by the Learned Counsel for the respective parties on the point of law alone. In the present facts and circumstances of the case, we are of the opinion that to set all the issues at rest and to avoid all future complications in the matter, it would be just and proper to direct the Tribunal to dispose of all the pending O.As filed by the respective parties/petitioners therein within a short period and till then no appointment should be made to the post of Professor in Surgery.

In view of the observations made above, the Orissa Administrative Tribunal is directed to take up all the Original Applications, that is, O.As 2388/2001, 2052 (C)/2001, 1712/2002, 2522(C)/2003 and 1450(C)/2004 for hearing together and direct the respective parties to file their reply within a period of two weeks from the date of receipt of this order and to file re-joinder, if any, within a period of one week thereafter and finally to hear the matter by fixing a suitable date either at Cuttack or at Bhubaneswar within a period of two weeks thereafter and dispose of the aforesaid O.As within a period of two weeks from the date of commencement of the hearing. All the respective parties are directed to co-operate in the matter. As has been directed in the interim Order dated 5.10.2004 as well as 15.10.2004 the recommendation of the Departmental Promotion Committee shall remain in force till the above Original Applications are disposed of by the Tribunal and the promotion of Opp. Party No. 4 to the post of Professor in Surgery Department shall also remain stayed till final disposal of the Original Applications.

The Writ Application is accordingly disposed of with the aforesaid observations/directions. There shall be no order as to costs.

B.P. Das, J.

I agree.