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IN THE HIGH COURT OF ORISSA AT CUTTACK
S.K. Panigrahi, J.
Sulata Mohapatra & Ors. – Appellants
Versus
Chief Secretary, Government of Odisha, Health And Family Welfare Department, Bhubaneswar & Ors. – Respondents
W.P.(C) Nos. 9301 and 15924 of 2022 (In the matter of applications under Articles 226 and 227 of the Constitution of India, 1950).
Decided On : 30-09-2022
Transfer Policy - Government Medical College Teachers - Notification No.22051 dated 30.08.2017 - Summary of Acts and Sections: The court discussed the 'Transfer and Posting Policy for the Government Medical College Teachers' issued by Department of Health and Family Welfare, Government of Odisha in Notification No.HFW- MEI-MISC-0021-2017. The court highlighted the discretionary power of the State Government to fill up vacancies selectively based on urgency and public exigencies, and the lack of right to claim anticipated vacancies. The court also emphasized the role of the State as a model employer and the need for trust and fairness in the treatment of employees.
Fact of the Case:
The petitioner, a Professor, challenged her place of posting at Government Medical College at Keonjhar instead of SCB Medical College and Hospital, Cuttack, citing her seniority and medical conditions of herself, her husband, and her mother. The authorities rejected her representation and directed her to appear before the Medical Board. She was subsequently promoted to the rank of Professor and posted to Keonjhar, leading to her filing a writ petition.
Finding of the Court:
The court found that the authorities did not err in not including other vacancies, including SCB Medical College and Hospital, at the time of counseling. The petitioner could not claim the anticipated vacancy of SCB Medical College and Hospital against the Transfer and Posting Policy. The court also concluded that the petitioner, having forgone her promotion, could not change her option to revert back to her position.
Issues: The issues considered by the court included whether the authorities erred in not including other vacancies at the time of counseling, whether the petitioner could claim the anticipated vacancy of SCB Medical College and Hospital, and whether the petitioner could change her option after forgoing her promotion.
Ratio Decidendi: The court emphasized the discretionary power of the State Government in filling up vacancies, the lack of right to claim anticipated vacancies, and the role of the State as a model employer. The court also highlighted the petitioner's voluntary decision to forgo her promotion and the absence of a legal right to insist on being posted at a particular place.
Final Decision: The court dismissed the writ petitions, finding that the authorities had not committed any illegality and had not run the counseling process in a discriminatory manner. The court expressed hope that the authorities would aid the petitioner in lessening her worries due to her medical condition and her family's health, and emphasized the need for trust and fairness in the treatment of employees.
JUDGMENT
Dr. S.K. Panigrahi, J. - In this aforementioned writ petition, the petitioner who has been promoted to the post of Professor by virtue of order dated 06.04.2022 of the Assistant Secretary to Government, Health and Family Welfare Department, has challenged the place of posting at Government Medical College at Keonjhar instead of allowing her to continue at SCB Medical College and Hospital, Cuttack. She contends that on account of her seniority within her cadre and the medical condition of her and her husband, the decision of the authorities is illegal, mala fide and violation of the transfer policy introduced by the Department of Health and Family Welfare, Government of Odisha.
2. Now, since the cause of action of both the aforementioned Writ Petitions are broadly similar, these are being taken up together and have been dealt with by this common judgment treating the W.P.(C) No.9301 of 2022 as the leading case.
I. FACTUAL MATRIX OF THE CASE:
3. The present writ petitioner was initially appointed as an Asst. Surgeon in Koraput on 30.09.1991 and after completing her Post Graduate in Physiology she was posted as Lecturer in Physiology at SCB Medical College & Hospital, Cuttack in the year 2003. Thereafter, she was promoted to the post of Associate Professor in the year 2006 and was transferred to VIMSAR Burla and served there. Therein, she suffered from PID (Prolapsed Intervertibral Disease) and CVI Grade-III (Chronic Venus Insufficient). Accordingly, the authority considered her representation and transferred her to SCB Medical College & Hospital, Cuttack and posted her as Associate Professor in Physiology on 01.12.2017.
4. Here and now, by virtue of notification No.22051 dated 30.08.2017, the Department of Health and Family Welfare issued guidelines for transfer/promotion of Faculties, Superintendents and Dean and Principals and procedure for counseling respectively.
5. A Departmental Promotion Committee (hereinafter 'DPC') was held on 06.01.2022 to consider the case of 22 Associate Professors who were eligible in different disciplines for promotion to the post of Professor in respect of Government Medical Colleges of the state including the post of Professor in Physiology.
6. In the list of 6 faculty members in the subject, 3 Associate Professors namely Dr. Sulata Mohapatra (petitioner), Dr. Minati Pattnaik, and Dr. Archana Mishra (petitioner in W.P.(C) No.15924 of 2022) were found suitable and were recommended by the DPC for promotion to the rank of Professor in the discipline of Physiology. The petitioner was placed at the top of the merit-cum-seniority list due to her experience and got to choose the posting first among the selected candidates.
7. The Director of Medical Education and Training, Odisha, Bhubaneswar (hereinafter 'DMET') vide its Office Letter No.2196, dated 21.02.2022 informed the petitioner and other candidates of the counseling for posting(s) on the promotional post of Professor along with the direction to submit their choice(s) by e-mail in order of preference amongst the list of colleges by 21.02.2022, 3.00 PM. The election of option was to be done positively, else the candidate would have no choice regarding place of posting and then it would be the prerogative of the higher authorities to take appropriate decision for the candidates' place of posting.
8. On the date of counseling, the petitioner as well as Dr. Minati Pattnaik were asked by the DMET vide letter No. 2196, dated 21.02.2022, to exercise their choice of posting in respect of:
(i). Govt. Medical College, Keonjhar.
(ii). Govt. Medical College, Sundargarh..
9. However, the petitioner made a representation to the Chief Secretary, Government of Odisha requesting him to allow her to continue in SCB Medical College & Hospital, Cuttack after her promotion to the post of Professor on the ground of her illness as well as the medical condition of her husband and her old mother who is suffering from chronic breast cancer.
The said authority after considering
The discretionary power of the State Government in filling up vacancies, the lack of right to claim anticipated vacancies, and the role of the State as a model employer were central legal principles ....
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