Dr. Ramachandra Barik ..… Petitioner -Versus- Union of India and others ….. Opp. Parties

ORISSA HIGH COURT: CUTTACK W.P.(C) No. 7418 OF 2019 In the matter of an application under Articles 226 and 227 of the Constitution of India. AFR Dr. Ramachandra Barik ..… Petitioner -Versus- Union of India and others ….. Opp. Parties For Petitioner : Mr. B. Routray, Sr. Advocate along with M/s S.D. Routray, A.K. Mohapatra, B. Panda, A.K.Mohapatra, T. Dash, S. Sarangi, A. Pati and B. Subudhi, Advocates For Opp. Parties : Mr. P.K. Parhi, Dy. Solicitor General of India along with Ms. B. Sahu, CGC [O.P. Nos. 1 to 3] P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND HONOURABLE MR. JUSTICE M.S. SAHOO Date of hearing and judgment :: 01.03.2023 DR. B.R. SARANGI, J. The petitioner, stating to be continuing as Associate Professor in the Department of Cardiology of All India Institute of Medical Science (AIIMS), Bhubaneswar, has filed this writ petition seeking to quash the order dated 27.03.2019 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 524 of 2018 under Annexure-6 and to issue direction to opposite parties no.1 to 3 to appoint the petitioner as Addl. Professor in the Department of Cardiology of AIIMS, Bhubaneswar, pursuant to the advertisement dated 07.03.2017. He further seeks to quash the decision of the 5th Meeting of the Governing Body of the AIIMS, Bhubaneswar dated 09.04.2019 taken in Agenda Item: GB-5/13, as the same was passed without complying the principles of natural justice. 2. The factual matrix of the case, in a nutshell, is that opposite party no.2-Governing Body of AIIMS, Bhubaneswar issued an advertisement on 07.03.2017 for filling up of one post of Addl. Professor in the Department of Cardiology for unreserved category. Pursuant to such advertisement, the petitioner offered his candidature along with opposite party no.5. In terms of such advertisement, interview was conducted and opposite party no.5 was selected, whereas the petitioner, who stood second in the merit list, was kept in the waiting list. Accordingly, offer of appointment was issued in favour of opposite party no.5 on 27.12.2017 enabling him to join in the post. 2.1 In the offer of appointment, referred to above, under clause-21 the opposite party no.5 was intimated as follows:- “21. If you are willing to accept the appointment on the above terms and conditions, you are requested to submit the following to the Director of this Institute immediately and in any case not later than 15 (fifteen) days from the date of issue of this letter, failing which this offer of appointment is liable to be treated as cancelled. (i) Acceptance of Offer of Appointment along with the terms and conditions as mentioned. (ii) Attestation Forms (4 copies enclosed)- duly filled in for verification of character and antecedents in case the same is not done by your present Employer, if already done, a certified copy of the same may be submitted. (iii) Copies of Self attested educational certificate starting Matriculation onwards and copy of Teaching/Research Experience Certificate establishing your eligibility for the post. The Teaching/Research Experiences Certificate should clearly state either of in Teaching of Research Experiences and its effective date and duration. (iv) To report for medical examination by the AIIMS, Bhubaneswar, Medical Board as applicable for obtaining Medical Fitness Certificate.” In adherence to the above, 15 days time was granted from the date of issuance of appointment letter to enable opposite party no.5 to join in the post otherwise the offer of appointment is liable to be treated as cancelled. After lapse of more than one month, opposite party no.2 addressed a letter to opposite party no.5 on 10.02.2018 stating therein that from the date of issue of offer of appointment no intimation was received from him and, therefore, he was further requested to send the acceptance of the offer within a period of one week, otherwise the offer of appointment would be treated as cancelled and offer of appointment to the wait listed candidate (present petitioner) will be issued. 2.2 Even though in the letter dated 10.02.2018, it was categorically stated that in the event of not giving acceptance of the offer within a period of one week, the same will be treated as cancelled, but opposite party no.5 on 06.03.2018 sent an E-mail to opposite party no.2 stating that he will accept the offer of appointment but he requires further six months joining time. In reply to the aforesaid E-mail dated 06.03.2018, opposite party no.2 wrote a letter to opposite party no.5 on 14.03.2018 that his date of joining has been extended till 25.05.2018 and accordingly he is requested to join on or before 25.05.2018 and it was also stated that no further extension for joining will be granted. 2.3 As opposite party no.5 did not join in the said post on or before 25.05.2018, the petitioner, on 25.06.2018, submitted a representation to opposite party no.2 stating that as other wait listed candidates in different departments of AIIMS have been issued with the offer of appointment and as opposite party no.5 is not joining the post, he may be allowed to join as Additional Professor in Cardiology Department. Again, on 03.07.2018, opposite party no.5 sent an E-mail to opposite party no.2 to extend the date of joining for another period of six months. 2.4 Since the petitioner was not allowed to join in the post, he filed O.A. No. 343 of 2018 before the Central Administrative Tribunal, Cuttack Bench, Cuttack, which was disposed of on 19.07.2018 directing opposite party no.1 to take a decision over the representation of the petitioner within a period of eight weeks. Thereafter, opposite party no.2, vide its letter dated 13.12.2018, as per the request of opposite party no.5 in its E-mail dated 03.07.2018, extended the date of joining to 26.12.2018. As such, on the very same day, i.e., 13.12.2018, opposite party no.1 rejected the representation of the petitioner stating that the request of the petitioner can be considered only in the eventuality of opposite party no.5 not taking up appointment. 2.5 Aggrieved by the aforesaid order, the petitioner again filed another O.A. No. 524 of 2018 before the Central Administrative Tribunal, Cuttack Bench, Cuttack, which was disposed by the tribunal, vide order dated 27.03.2019, without granting any relief to the petitioner. Challenging the said order dated 27.03.2019 the petitioner approached this Court by filing the present writ petition on 04.04.2019. But when the matter is pending adjudication and when opposite party no.5 did not join in the post, opposite party no.2 in its 5th Meeting of the Governing Body held on 09.04.2019 under the Agenda Item No.GB-05/13 decided to delete the name of the petitioner from the waiting list as more than one year has elapsed and, as such, the same was never communicated to the petitioner by opposite party no.2. Thus, in the present writ petition, besides the order dated 27.03.2019 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 524 of 2018, the petitioner has also challenged the decision of the 5th Governing Body Meeting of AIIMS, Bhubaneswar dated 09.04.2019 in relation to the Agenda Item No.GB-05/13. As such, while entertaining this writ petition, this Court, vide order dated 19.04.2019, passed interim order to the effect that there shall be status quo as on date with regard to appointment of Addl. Professor, Cardiology, AIIMS, Bhubaneswar. 3. Mr. S.D. Routray, learned counsel for the petitioner vehemently contended that pursuant to an advertisement issued by the AIIMS, Bhubaneswar for the post of Addl. Professor in the Department of Cardiology, opposite party no.5 was selected and issued with offer of appointment on 27.12.2017 specifying the condition stipulated in cluase-21 thereof, as quoted above. It is contended that as per clause-21 of the offer of appointment, after expiry of 15 days period, the offer of appointment so issued cannot have any force in the eye of law. But fact remains, even after expiry of one month period, although time was extended, the same was also not adhered to by opposite party no.5. Not only that, thereafter also from time to time the period of joining of opposite party no.5 was extended either by the authority suo motu or on the request of the opposite party no.5, instead of issuing offer letter to the petitioner, who stood second in the merit list and was entitled to get appointment as Addl. Professor, Cardiology, as was done in other departments of the AIIMS. Thereby, non- extension of such benefit to the petitioner is arbitrary, unreasonable and contrary to the provisions of law. It is further contended that even though validity of the merit list is for one year, but as the matter is sub-judice before this Court, the same cannot expire. It is further contended that the petitioner is entitled to get the benefit, as he stood second in the merit list and as the first person did not choose to join in the post despite several opportunities given to him. As such, opposite party no.5 has already left for USA and is no more interested to join in the post for which he was selected. To substantiate his contention, learned counsel for the petitioner has relied upon the judgment of the apex Court in the case of State of U.P. v. Ram Sawrup Saroj, (2000) 3 SCC 699. 4. Mr. P.K. Parhi, learned Deputy Solicitor General of India appearing along with Ms. Babita Sahu, learned Central Government Counsel though admitted the factual position that pursuant to offer of appointment issued on 27.12.2017 prescribing 15 days time, opposite party no.5 did not choose to join, in spite of repeated extensions granted to him, but, however, contended that in the meantime one year validity period of the merit list having been expired, the relief sought by the petitioner cannot be granted, even though he stood second in the merit list. It is further contended that merely because the name of the petitioner finds place in the merit list, it does not give any right to the petitioner for appointment in the post. Thereby, the claim made by the petitioner cannot be sustained in the eye of law. It is further contended that the Board has already taken a decision not to give any appointment pursuant to the select list in question prepared by the authority. Thereby, the claim of the petitioner to get appointment as Addl. Professor in the Department of Cardiology of AIIMS, Bhubaneswar is not legally tenable in the eye of law. As such, the tribunal, by the order impugned, has rightly rejected the claim of the petitioner, which does not call for interference of this Court. Consequentially, dismissal of the writ petition is sought for. 5. This Court heard Mr. S.D. Routray, learned counsel appearing for the petitioner and Mr. P.K. Parhi, learned Deputy Solicitor General of India appearing along with Ms. Babita Sahu, learned Central Government Counsel appearing for the Union of India-opposite parties in hybrid mode and perused the pleadings exchanged between the parties. Even though notice was made sufficient as against opposite party no.5, but none entered appearance on behalf of the said opposite party. As the order of the tribunal is under challenge and it being a certiorari proceeding, with the consent of learned counsel for the parties the writ petition is being disposed of finally at the stage of admission. 6. There is no dispute with regard to the factual matrix, as discussed above. Therefore, the sole question which arises for consideration by this Court is that the petitioner, having stood second in the merit list and opposite party no.5, who stood first in the merit list, having not joined and the post having not filled up till date, can the benefit be extended to the petitioner for joining in the post advertised by the authority. 7. On perusal of the order impugned passed by the tribunal, it appears that the tribunal has observed that merely because the name of the petitioner finds place in the merit list, no right has been accrued in his favour for consideration and, as such, the tribunal relying upon the judgments of the apex Court in the cases of Bhupendranath Hazarika v. State of Assam, AIR 2013 SC 234; Ravi Yashwant Bhoir v. The Collector, District Raigad, AIR 2012 SC 1339; Dr. Pyare Lal Bhargava v. State of Rajasthan, 1979 (3) SLR 706; All India SC & ST Employees’ Assn. v. A. Arthur Jeen, (2001) 6 SCC 380; Punjab State Electricity Board v. Malkiat Singh, (2005) 9 SCC 22; Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637; and State of Bihar v. The Secretariat Assistant Successful and Examinees Union, 1986 and Ors., AIR 1994 SC 736, held that a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right to be appointed unless relevant service rule says to the contrary. There is no dispute at all with regard to the proposition of law, as discussed by the tribunal in the aforementioned cases. But fact remains, opposite party no.5, who stood first in the merit list, was issued with offer of appointment specifying clause-21 that he has to join within 15 days from the date of issuance of the letter, failing which the offer of appointment is liable to be treated as “cancelled” and even though such offer of appointment had been issued and received by opposite party no.5, but he did not choose to join within 15 days as prescribed. Thereby, on expiry of 15 days period, automatically the right which had been accrued, pursuant to offer of appointment, in favour of opposite party no.5, was forfeited. But fact remains, even after expiry of that period and after lapse of more than one month, request was made by the authority to opposite party no.5 to join in the said post. That means, the right which had already been forfeited on expiry of 15 days period revived. But in spite of such opportunity being given thrice to opposite partyno.5, he did not choose to join. Even though repeated extension of time was granted by the authority but opposite party no.5, instead of availing the same, has left for USA and the post is still lying vacant, the petitioner, who stood second in the merit list after duly selected and is otherwise entitled to join the post, has been deprived of the same on the ground that validity of the merit list, which is for one year, has expired. But fact remains, during pendency of the original application before the tribunal and the writ petition before this Court, where status quo order was passed, the right of the petitioner to get the benefit of appointment cannot be taken away, as similarly situated persons of the other departments of the AIIMS, Bhubaneswar, whose names were found place at sl.no.2 in the waiting list, have already been appointed. Therefore, no other legal impediment stands on the way of the opposite party- authorities to allow the petitioner to join the post of Addl. Professor in the Department of Cardiology pursuant to the selection made by the authority. 8. In Ram Sawrup Saroj (supra), the apex Court in paragraph-8 held as under:- “At the hearing the learned Counsel for the State of Uttar Pradesh raised mainly two contentions. Firstly, it was submitted that the select list having been prepared in November, 1996 had ceased to be valid on expiry of one year from the date of preparation thereof and an appointment from such list could not now be directed. Reliance has been placed on several circulars issued by the State of Uttar Pradesh from time to time laying down the validity of a select list for appointment to State services at one year. Second plea raised on behalf of the appellant is that the respondent had filed the writ petition by impleading only the State of Uttar Pradesh and U.P. Public Service Commission as respondents before the High Court but had omitted to implead the High Court of Uttar Pradesh as a party in the writ petition; as such no binding direction could be issued as in the matter of judicial appointments the State Government is not free to act of its own unless and until the High Court recommends an appointment or concurs in any proposal made by the State Government.” 9. While answering the first question, in paragraph-10 of the aforesaid judgment, the apex Court held as follows:- “Similarly, the plea that a list of selected candidates for appointment to the State services remains valid for a period of one year only is primarily a question depending on facts and yet the plea was not raised before the High Court. Secondly, we find that the select list was finalised in the month of November, 1996 and the writ petition was filed by the respondent in the month of October, 1997, i.e., before the expiry of one year from the date of the list. Merely because a period of one year has elapsed during the pendency of litigation, we cannot decline to grant the relief to which the respondent has been found entitled to by the High Court ” 10. There is no dispute that the petitioner has been bonafidely prosecuting his case before the tribunal as well as this Court. Therefore, on the plea of expiry of one year validity period of the merit list, the petitioner cannot be denied the benefit of getting appointment in the post of Addl. Professor in the Department of Cardiology of AIIMS, Bhubaneswar. If the conduct of the opposite party no.5 is taken into consideration, the same is tell tale in view of the fact that time and again steps had been taken on behalf of opposite party no.2 to grant extension of time to enable opposite party no.5 to join, which was not adhered to. But the tribunal, while passing the order impugned, has lost sight of these aspects and proceeded on the basis of the select list and stated that merely because the name of the petitioner placed in the merit list does not create any right in his favour, which itself is erroneous, in view of the fact and law, as discussed above. More so, if similarly situated persons have already been granted the benefit of joining against the vacant posts, pursuant to the selection made, the petitioner should not have been discriminated by the very same authority. But opposite party no.2 with all anxiety passed a resolution on 09.04.2019 in its 5th G.B. Meeting under Agenda Item: GB-05/13 rejecting the claim of the petitioner without giving him any opportunity of hearing, which cannot be sustained in the eye of law, as the same is in gross violation of the principles of natural justice. 11. Considering the facts and law, as discussed above, this Court is of the considered view that the order dated 27.03.2019 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 524 of 2018 refusing to allow him to join and continue as Addl. Professor in the Department of Cardiology of AIIMS, Bhubaneswar, pursuant to advertisement dated 07.03.2017, as well as the decision dated 09.04.2019 taken in the 5th Governing Body Meeting in Agenda Item: GB-05/13, cannot be sustained in the eye of law and the same are liable to be quashed and are hereby quashed. The opposite party no.2 is directed to give appointment to the petitioner against the post of Addl. Professor in the Department of Cardiology of AIIMS, Bhubaneswar, as he stood second in the merit list and opposite party no.5, who stood first in the select list, did not choose to join in the said post. The entire exercise shall be completed within a period of 15 days from the date of production of certified copy of the judgment. 12. In the result, the writ petition is allowed. However, there shall be no order as to cost. M.S. SAHOO, J. I agree. …………….………….. DR. B.R. SARANGI, JUDGE …………….………….. M.S. SAHOO, JUDGE Orissa High Court, Cuttack The 1st March, 2023, Ashok/GDS