Disposed

Dr.Pratap Kumar Rath v. State of Odisha

Orissa HC10 Aug 2020WP(C)/15728/2020

Case brief

AI extract

What is this about?

This court disposed of a writ petition seeking pre-fixation of a petitioner's promotion date and consequential pensionary benefits. The court directed the government to decide the technically clear recommendation on its merits within two months, reserving its own view on the merits.

What did the court decide?

Directed the opposite parties to decide the recommendation to pre-fix petitioner's promotion date from 03.07.2003 within two months, granting consequential benefits if approved.

Dr.Pratap Kumar Rath Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2020)

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W.P.(C) No. 15728 of 2020

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10.08.2020 Due to outbreak of COVID-19, this matter is taken up through Video Conferencing.

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Heard Mr.S.Rath, learned counsel for the petitioner and Mr.Bibhu Prasad Tripathy, learned Additional Government Advocate appearing for the State-opposite parties.

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Petitioner, in this writ petition, prays for a direction to opposite parties, more particularly, the Secretary to Government in Health and Family Welfare Department (OP No.1) to pre-fix his date of promotion as 03.07.2003 when his junior namely, Dr.Rasananda Mangual (OP No.3) was promoted to the post of Professor in the Department of Surgery along with all consequential as well as pensionary benefits.

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Mr.Rath, learned counsel for the petitioner submits that the petitioner was appointed as an Assistant Surgeon under Odisha Medical and Health Services Cadre vide H & FW Department Notification No.27908/H dated 31.03.1981 on the recommendation of the Odisha Public Service Commission, Cuttack (for short, ‘OPSC’). While working as such, the petitioner was appointed as a Junior Teacher in Surgery under Odisha Medical Education Services Cadre (for short OMES) being recommended by OPSC, vide H & FW Department Notification No.30413/H dated 10.09.1986.

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Subsequently, vide Order No.32423/H dated 18.09.1992 of the State Government in the Health and Family Welfare Department, Odisha, the petitioner was promoted to the post of Asst. Professor. The opposite party No.3-Dr.Mangual was also promoted to the said cadre subsequent to the petitioner. As such the petitioner was placed at Sl. No.7 in the gradation list whereas Dr.Mangual (OP No.3) was placed at Sl. No.8. However, basing upon the GA Department Resolution No.10237/Gen dated 20.03.2002, the seniority of Asst. Professor in the Department of Surgery was re-fixed and the petitioner was placed below Dr.Mangual in the gradation list vide H&FW Department Order No.14934/H dated 23.04.2002. Being aggrieved, Dr.Purna Chandra Mohapatra along with others including the petitioner moved the Hon’ble Supreme Court in W.P.(C) No.340 of 2002 assailing the said Government Order and refixing the seniority and finding a prima facie case, Hon’ble Supreme Court, vide order dated 11.07.2002 directed to maintain status quo with regard to seniority list. However, Dr.Mangual was promoted to the cadre of Professor in Surgery, vide H & FW Department Order No.20592/H dated 03.07.2003 in which, it was made clear that the promotion would be subject to the result of W.P.(C) No.340 of 2002. Subsequently, the petitioner was also promoted to the

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cadre of Professor by the H & FW Department Order No.13543/H dated 17.05.2007.

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4.1 The GA Department Resolution dated 20.03.2002 was quashed by this Court, vide order dated 24.12.2010 in W.P.(C) No.6781 of 2008 and W.P.(C) No.17375 of 2009. Accordingly, seniority of the petitioner in the gradation list of Asst. Professor of Surgery prepared pursuant to office order dated 23.04.2001 of the F & HW Department, was restored and the petitioner became senior to Dr.Mangual in the cadre of Asst. Professor in the Department of Surgery. Basing upon the said gradation list under Annexure1, a draft gradation list of OMES Cadre was published by the H & FW Department, vide order No.7202/H dated 11.03.2014 (Annexure-7) inviting objections, wherein the petitioner was placed at Sl. No.4 and Dr.Mangual (OP No.3) was placed at Sl.No.5.

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4.2 In the aforesaid backdrop, the petitioner submitted a representation dated 19.09.2018 to the Director, Medical Education and Training, Odisha (OP No.2) to pre-fix the date of promotion of the petitioner from 03.07.2003, when Dr.Mangual was promoted to the cadre of Professor in the Department of Surgery. Since the petitioner was all along discharging the duties and responsibilities of Professor, he also prayed for differential salary as well as all consequential service benefits consequent upon such pre-fixation and protection of his seniority.

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4.3 Upon receipt of such representation, opposite party No.2, vide his letter No.9764 dated 25.07.2019 (Annexure-8), recommended the case of the petitioner to the Government for pre-fixing the date of promotion to the post of Professor in Surgery with effect from 03.07.2003, on which date his junior Dr.Mangual got promotion to the post of Professor of Surgery. However, the opposite party No.1, who was in seisin of the matter, has not taken any decision on such recommendation of opposite party No.2, as yet. Hence, the petitioner finding no other alternative has filed this writ petition.

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4.4 Mr.Rath, learned counsel for the petitioner further submitted that due to the faulty resolution of the GA Department, the petitioner was made to suffer and was denuded of his legitimate service benefits. The gradation list (Annexure-1) of Asst. Professor of Surgery reveals that the petitioner was senior to Dr.Mangual (OP No.3) Although the inter se seniority was subsequently changed, but pursuant to the order of this Court quashing faulty resolution of the GA Department dated 20.03.2002, the seniority as per the gradation list of Asst. Professors as at Annexure-1 has already been restored. As such, the petitioner is entitled to be promoted to the cadre of Professor with effect from the date, when his immediate junior got promotion. Learned counsel for the petitioner further submits that the petitioner was eligible and suitable

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to be promoted to the cadre of Professor in the year 2002 as there was existing vacancy in the said cadre in the Department of Surgery and the petitioner had teaching experience of 10 years and he was fulfilling all other eligibility criterion, as well. Hence, he prayed for the aforesaid relief.

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4.5 In the meantime, the petitioner has been retired from service on attaining the age of superannuation. Therefore, he prays that consequent upon pre-fixation of the seniority of the petitioner, all consequential, financial as well as pensionary benefits may be extended to the petitioner forthwith.

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Mr.Tripathy, learned Additional Government Advocate, on the other hand, submits that the matter relates to inter se seniority between the petitioner and opposite party No.3. Since both the petitioner and opposite party No.3 are already superannuated, the authorities may be directed to consider the case of the petitioner on its own merit; if necessary giving opportunity of hearing to the parties concerned. 6. Taking into consideration the nature of grievance made in this writ petition, this Court does not feel it necessary to keep this matter pending by issuing notice in the matter requiring response from the opposite parties. As such, the writ petition is disposed of at the stage of admission.

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In above view of the matter, this Court without expressing any opinion on the merits of the case of the petitioner, directs the opposite party No.1 to take a decision on the recommendation dated 25.07.2019 (Annexure-8) of the opposite party No.2-Director, Medical Education & Training, Odisha, Bhubaneswar on its own merit, as expeditiously as possible, preferably within a period of two months from the date of receipt of an authenticated copy of this order downloaded from the website of this Court, which shall be treated at par with certified copy in the manner prescribed in this Court’s Notice No.4587 dated 25.03.2020.

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7.1 Needless to mention that if necessary the authority may extend opportunity of hearing to the parties concerned, while taking a decision on the recommendation of the opposite party No.2, as aforesaid. It is further made clear that if opposite party No.1 takes a decision to pre-fix the date of promotion of the petitioner then all consequential benefits including the pensionary benefit shall be granted in favour of the petitioner forthwith.

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………………………..

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K.R.Mohapatra, J.

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ss J.

Dr.Pratap Kumar Rath v. State of Odisha

Case brief

What is this about?

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Dr.Pratap Kumar Rath v. State of Odisha

Case brief

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