Dr. Bikash Ranjan Acharya Vs State of Odisha

2) Director of Health Services, Odisha, Heads of Department Building, Bhubaneswar. 3) Chief District Medical Officer & Public Health Officer, Khurda

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..... Opposite Parties

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Represented By Adv. – Mr. M.R. Patra, ASC

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CORAM:

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THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA

ORDER

11.02.2025

Order No.

1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

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Heard Mr. Budhadev Routray, learned Senior Counsel appearing for the Petitioner as well as learned counsel for the State-Opposite Parties. Perused the writ petition as well as the documents annexed thereto.

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Present writ petition has been filed by the Petitioner with a

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prayer for a direction to the Opposite Parties No.1 and 2 to issue posting order in his favour in terms of the option exercised by him in the counseling process conducted by Opposite Party No.2 pursuant to the notice dated 01.06.2024, i.e. at C.H.C., Salipur, Cuttack and for a further direction to the Opposite Parties No.1 and 2 to release the salary of the Petitioner, which is pending since 04.05.2024, within a stipulated period of time.

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Learned Senior Counsel appearing for the Petitioner, at the outset, contended that as per the guidelines of the Health & Family Welfare Department, Government of Odisha dated 16.10.2019, the doctors, who have completed their P.G., are to be deployed for two years, as per their bond condition, in a Medical College or in a Specialist post in the periphery hospitals of the State on rotation basis for a period of one year duration each in the Medical College and in the Periphery. Accordingly, the Opposite Party No.2 issued the notice dated 01.06.2024 indicating therein the last date of counseling as 10.06.2024 in respect of Medical Officers of the OMHS cadre and OMS (Dental Surgeon) cadre. Pursuant to the said notification, the Petitioner participated in the counseling (1^st counseling on 10.06.2024).

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Learned Senior Counsel appearing for the Petitioner further categorically submitted that during the 1^st counseling, the Petitioner opted for his posting to be at C.H.C., Salipur, Cuttack. He further contended that despite the Petitioner having opted for posting at C.H.C., Salipur during the 1^st counseling, while

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exercising his option along with other similarly situated candidates, the Opposite Party No.2 instead of allocating the Petitioner to the post that was opted by him and as has been done in the case of other similarly situated candidates, summoned the Petitioner again to participate in another counseling process. Thereafter, pursuant to the 2^nd notice, the Petitioner again appeared in the 2^nd counseling held on 09.10.2024.

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He further contended that since the Petitioner was given an impression that there is no vacancy at C.H.C., Salipur and was requested to give another option, the Petitioner opted for his posting at C.H.C., Banpur, Khurda as his second choice. Accordingly, the Petitioner was allotted to C.H.C., Banpur, Khurda and a posting order was issued on 19.10.2024. Pursuant to the aforesaid posting order, the Petitioner made an attempt to join at his new place of posting. However, the Opposite Party No.3 communicated to Opposite Party No.1 that there is no vacancy at C.H.C., Banpur, Khordha vide his letter dated 21.10.2024. While this was the position, learned Senior Counsel appearing for the Petitioner further contended that the Petitioner was again posted as Dental Surgeon against a vacant post at C.H.C., Tangi vide order dated 20.01.2025. Being aggrieved by such posting order dated 20.01.2025, the Petitioner has approached this Court by filing the present writ petition.

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Learned Senior Counsel appearing for the Petitioner further contended that although the Petitioner had exercised his option at the 1^st counseling for being posted at C.H.C., Salipur,

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where there was a vacant post of Dental Surgeon, however, the Petitioner was again summoned to appear in the 2^nd counseling. During 2^nd counseling, the Petitioner was given an impression that there is no vacancy at C.H.C., Salipur. As such, the Petitioner gave an alternative option, i.e. at C.H.C., Banpur. Later on, at the time of his joining at C.H.C., Banapur the Petitioner came to learn that there is no post of Dental Surgeon lying vacant at C.H.C., Banpur. He further contended that although there was a post of Dental Surgeon lying vacant at C.H.C., Salipur, however, the same was not intimated to the Petitioner. In fact, the learned Senior Counsel emphatically argued that the post of Dental Surgeon at C.H.C., Salipur is still lying vacant. In the aforesaid factual background, learned Senior Counsel appearing for the Petitioner contended that the conduct of the Opposite Parties in the present case is clearly discriminatory and arbitrary. As such, the same is unsustainable in the eye of law.

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Mr. Routray further contended that similarly situated candidates, who have opted for the posting pursuant to the option sought for from them, they have been posted at their desired place of posting. However, in the case of the Petitioner, the Opposite Parties have deviated from the established principle and the Petitioner has not been given the posting which he had opted during the 1^st counseling. Finally, learned Senior Counsel appearing for the Petitioner contended that the conduct of the Opposite Parties in the present case is grossly illegal, arbitrary and discriminatory in nature. As such, the impugned order dated

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24.01.2025, posting the Petitioner at C.H.C., Tangi, is absolutely illegal and, as such, the same is liable to be quashed.

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Learned Additional Standing Counsel appearing for the State-Opposite Parties, on the other hand, relying upon the instruction dated 11.02.2025 of the Additional Secretary to Government of Odisha, Health & Family Welfare Department, contended that 104 numbers of Medical Officers/Dental Surgeons participated in the counseling held on 20.07.2024. Out of which, 39 nos. of Medical Officers/Dental Surgeons joined in the Department after completion of their Post PG Bond/PG/SR/Tutor and 95 Medical Officers participated in the two counseling processes. He further contended that since some of the Medical Officers/Dental Surgeons could not be adjusted/posted, according to the option exercised by them in the 1^st counseling, a 2^nd counseling process was conducted.

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Learned Additional Standing Counsel further submitted that the option exercised by the Petitioner in the 1^st counseling process was not indicated in the re-counseling held on 09.10.2024 by the DHS, Odisha. Therefore, the Petitioner was asked to exercise his option once again during the 2^nd counseling. Accordingly, on the basis of the option exercised by him, the Petitioner was posted at C.H.C., Banpur as Dental Surgeon. With regard to re-posting of the Petitioner at C.H.C., Tangi, learned counsel for the State submitted that the same is an internal matter of the Government with regard to proper placement of the doctors at different C.H.Cs. run by the

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Government. Therefore, the order posting the Petitioner as Dental Surgeon at C.H.C. Tangi does not call for any interference by this Court.

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On a specific question being asked by this Court with regard to the vacancy of the post of Dental Surgeon at C.H.C., Salipur, learned counsel for the State, referring to the instruction of the Additional Secretary to Government of Odisha, Health & Family Welfare Department, submitted that the post of Dental Surgeon at C.H.C., Salipur is lying vacant. Finally, learned counsel for the State submitted that on the basis of the option exercised by the Petitioner, no right is conferred on the Petitioner to claim a particular posting. On such grounds, learned counsel for the State submitted that the present writ petition is devoid of merit and, accordingly, the same should be dismissed.

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Having heard the learned counsels appearing for the respective parties and on a careful examination of the writ petition as well as the documents annexed thereto, further on a careful consideration of the submissions made, this Court observes that there is no dispute with regard to the fact that the post of Dental Surgeon was lying vacant at C.H.C., Salipur when the 1^st counseling was conducted on 10.06.2024. Thus, the Petitioner had rightly exercised his option pursuant to the notice of the State Government dated 01.06.2024 wherein the Petitioner appeared for counseling along with many other candidates. Although the other candidates who had appeared in the

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counseling, have been given their posting as per the option exercised by them, similar principle has not been followed in the case of the present Petitioner as he was not given the posting at C.H.C., Salipur despite the post of Dental Surgeon lying vacant there.

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Moreover, the Petitioner appeared in the second counseling process held on 09.10.2024 under a wrong impression that the post at C.H.C., Salipur is not available to be filled up. At this point, it is pertinent to mention that there is nothing on record to indicate that the Petitioner was given an intimation that the post of Dental Surgeon at C.H.C., Salipur, Cuttack was lying vacant at the time the 2^nd counseling took place. Therefore, this Court has every reason to believe that the Petitioner has exercised his 2^nd option under the impression that there was no vacancy at C.H.C., Salipur and, accordingly, he had opted for C.H.C., Banpur. Even then the Petitioner was not posted as per the 2^nd option exercised by him. Instead the Petitioner was eventually posted at C.H.C., Tangi, which post had not been opted for by the Petitioner. This Court further believes that had the fact of a vacancy in the post of Dental Surgeon at C.H.C., Salipur been brought to the notice of the Petitioner before the 2^nd counseling, then the Petitioner would not have exercised the alternate/ 2^nd option at the 2^nd counseling held on 09.10.2024. Moreover, providing a 2^nd option would not have been in conformity with the guidelines contained in notice dated 01.06.2024. Thus, this Court is of the view that the Petitioner should have been posted as a Dental Surgeon at

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C.H.C., Salipur, Cuttack considering the fact that the said post was lying vacant during the process of both the counseling. In fact, this Court is also given to understand that the same post is also lying vacant at the moment.

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Considering the submissions made by the learned counsels appearing for the respective parties and further keeping in view the factual background of the present case and on a careful analysis of the materials placed before this Court, this Court deems it proper to dispose of the writ petition at the stage of admission by quashing the appointment letters dated 20.01.2025 and 24.01.2025 respectively in respect of the posting of the present Petitioner at C.H.C., Tangi under Annexures-21 & 22 respectively. Further, the Opposite Parties are directed to reconsider their decision and in the event the post of Dental Surgeon is still lying vacant at C.H.C., Salipur, the Petitioner be posted as a Dental Surgeon at C.H.C., Salipur pursuant to the 1^st option exercised by the Petitioner treating the 2^nd option as null and void.

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Accordingly, it is directed that the Opposite Parties on receiving a copy of this order, shall take immediate steps and post the Petitioner against the vacant post of Dental Surgeon at C.H.C., Saliur within two weeks from the date of receipt of a copy of this order.

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Further, keeping in view the fact that the Petitioner was not able to join at C.H.C., Banpur despite the order of posting and keeping in view the fact that there was no vacancy at

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C.H.C., Banpur and that non-joining of the Petitioner is not attributable to any fault on the part of the Petitioner, the Opposite Parties shall consider the case of the Petitioner for payment of his arrear salary, if any, within a period of four weeks from the date of communication of a copy of this order.

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