Vidhya Dhar Sharma vs G.B. Patnaik and Others

We have heard the learned counsel for the parties.

By order dated 22nd September, 2000, the petitioner herein was directed to be appointed to the post of Medical Officer to which he had been selected, it was further ordered that the letter of appointment should be issued within six weeks from that day.

When the letter of appointment was not issued, a registered A/D legal notice dated 18th November, 2000 was sent to the respondents. The notice was sent to the Chief Secretary and two other officers. Not having received any response, the present petition for taking appropriate action against the respondents was filed. In response to the petition, affidavits of G. B. Patnaik, IAS, Secretary, Medical Education and G. D. Tripathi, IAS, Director, Ayurvedic and Unani Services, have been filed. Though in paragraph 2 of the affidavit of G. B. Patnaik an unconditional apology is purported to be tendered, it is stated that the charge has been purged, inasmuch as a letter of appointment has been issued to the petitioner. A reading of the affidavit discloses that even though G. B. Patnaik was a Secretary in the Department in September 2000, the matter was not brought to his notice till November, 2000 when the legal notice was received. A further explanation given by him is that the dealing assistant was repatriated to the parent Department and no action was then taken. It is then stated that the file was taken up again, office memorandum was prepared and vetted and the Minister gave his approval on 19th February, 2001. Appointment letter dated 19th February, 2001 was then issued.

It is pertinent to notice that it is on 2nd February, 2001 that notice in this contempt petition was issued. Action has been taken by the respondents only pursuant to the notice having been issued. We are quite convinced that but for this notice being issued nothing would have been done by the respondents. As is evident from the fact that they did not even have the courtesy or responding to the lawyer''s notice dated 18th November, 2000 or applying to this Court for extension of time. It is only the pain and fear of being punished for contempt that seems to have persuaded them to take action and complying with the direction of this Court.

Had our order been complied with, the letter of appointment would normally have been issued by about 8th November, 2000. It is from that date that the petitioner would have been entitled to seniority and salary in terms of our order dated 22nd September, 2000. The delay in issuing the appointment letter has caused prejudice to the petitioner as well.

The selection of the petitioner was made pursuant to an advertisement of the State of U. P. wherein they have proposed to recruit 1400 doctors on ad hoc and temporary basis. It was in that selection that the petitioner was selected but appointment not given. It is true that the petitioner cannot be given permanent appointment because his selection was for one year or pending selection of the regular candidates by the Public Service Commission. In the office memorandum now issued on 19th February, 2001, it is stated that the appointment of the petitioner is for a period of one year or until a candidate selected by the Public Service Commission is available whichever is earlier. We see no justification for the expression "whichever is earlier" and direct that the petitioner''s appointment will continue as long as persons junior to him are allowed to continue pending selection of a regular candidate by the Public Service Commission. In other words, the temporary and ad hoc services of the petitioner will continue till a regularly selected candidate is appointed and/or till the services of all those junior to him are terminated. His seniority for the purpose of termination will now, in the changed circumstances, count from the date of his initial selection as a Medical Officer. The petitioner will also be entitled to salary with effect from 8th November, 2000 and arrears will be paid within four weeks from today.

While absolving respondents Nos. 2 and 3, we dispose of these contempt petitions by directing respondent No. 1 to pay ` 5,000/- as costs. The costs be paid within two weeks from today.