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CASE NO.:

Appeal (civil) 8039 of 2003

PETITIONER:

Satchidananda Mishra

RESPONDENT:

State of Orissa & Ors.

DATE OF JUDGMENT: 17/09/2004

BENCH:

Y.K. Sabharwal & D.M. Dharmadhikari

JUDGMENT:

J U D G M E N T

[With CA Nos.8058, 8059, 8061-8062, 8063, 8064, 8065, 8066, of 2003,

Contempt Petition (C) No.419 of 2002, CA Nos.8060 of 2003, 3015-16 of

2004 and SLP (C) Nos.13861-862 of 2004]

Y.K. Sabharwal, J.

The present appeal by special leave is directed against the judgment dated

6th August, 2001 passed by the Orissa High Court declining to set aside order of

Orissa Administrative Tribunal whereby Orissa Medical Education Service

(Appointment of Junior Teachers Validation) Act, 1993 (for short, ’the Validating

Act’) has been declared as ultra vires the Constitution of India. The factual

background which gives rise to the present controversy is narrated as follows.

On 24th September, 1973, the Orissa Medical Health Services (Recruitment

and Promotion to Teaching Posts in the Medical Colleges) Rules, 1973

(hereinafter referred to as the ’1973 Rules’) were framed under proviso to Article

309 of the Constitution. These Rules provided that appointment to the posts of

Junior Teachers shall be made through a Selection Board by recruitment from

amongst the Assistant Surgeons with at least one year’s experience as such, in

consultation with the Orissa Public Service Commission (hereinafter referred to as

’OPSC’). Rule 3(f) defined ’Selection Board’ to mean a Selection Board

appointed by the State Government to select persons for appointment to the Junior

or Senior teaching posts and shall consist of the Principals of Medical Colleges in

the State and such others as may be nominated by the Government. The 1973

Rules came to be repealed by another set of Rules dated 13th August, 1979 made

under proviso to Article 309 of the Constitution, called ’The Orissa Medical

Education Service (Recruitment) Rules, 1979 (for short, ’1979 Rules’). Under

these Rules, vide sub-rule (2) of Rule 4, minimum qualification of postgraduate

degree in the concerned specialty or any other equivalent degree or qualification as

prescribed by the Council was provided for appointment of Junior Teachers. Rule

3(f) provided that Selection Board was to be constituted with member of the

OPSC as its Chairman. The Secretary to Government in the Health and Family

Welfare Department, DHET and Principals of the Medical Colleges were to be its

members. On 20th September, 1979, the Director of Medical Education and

Training (DMET) issued advertisement-inviting applications from eligible

candidates for appointment as Junior Teachers in various disciplines/specialties.

The Selection Board as per 1979 was, however, never constituted. According to

Government, as many posts of Junior Teachers remained vacant for long time, the

Chief Minister passed orders on 27th January, 1980 to fill up those posts by ad hoc

appointments without constituting a Selection Board under 1979 Rules. Despite

1973 Rules having been repealed, the Selection Board appointed on 3rd August,

1979 under the repealed Rules was allowed to make the selections. After

obtaining orders of the Chief Minister on 4th August, 1980, orders were issued by

the State Government to the selected candidates appointing them as Junior

Teachers on ad hoc basis. Some appointments were also made on 11th November,

1980. In all, 49 candidates came to be appointed as Junior Teachers on ad hoc

basis by the Government. On 9th February, 1982, the recommendations of the

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Selection Board constituted under the 1973 Rules, were referred to the OPSC

along with the entire list of 145 candidates who had applied for the post pursuant

to the advertisement dated 20th September, 1979. The OPSC refused to concur

with the ad hoc appointments of these 49 Junior Teachers. This led to th