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PETITIONER: DR JAYANTA KUMAR DASH

       Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT05/04/1993

BENCH:

ACT:

HEADNOTE:

JUDGMENT:                            ORDER 1.An  advertisement  was  issued  by  the  Orissa  Public Service  Commission  inviting  applications  from  intending candidates  for appointment to some Junior  Teaching  posts. These posts were in the Orissa Medical Education Service, to which  the  recruitment is governed by  the  Orissa  Medical Education  Service (Recruitment) Rules, 1979.  The  relevant rule therein for the present purpose is Rule 4, as under: "4.   Appointment  of Junior Teacher.-  (1)  Appointment  to junior  teaching  posts  in the service  shall  be  made  by selection  from  amongst the Assistant  Surgeons  under  the State  Government or State Government Undertakings  with  at least  one  year’s  experience as such  through  the  Public Service  Commission  which  shall  invite  applications  and process them: Provided that the recruitment may also be made from  amongst the  junior teachers for the junior teaching posts,  in  any other  speciality  or  higher  speciality  subject  to   the condition  that  seniority in the new speciality  or  higher speciality, as the case may be, shall be determined from the date of appointment in the new discipline in accordance with the  placement given by the Commission and accepted  by  the Government. (2)No person shall be eligible to be appointed as a Junior Teacher unless he has acquired a post-graduate degree in the concerned  speciality  or  any other  equivalent  degree  or qualification prescribed by the Council. (3)In  selection of candidates, Commission shall give  due regard to the candidate’s academic attainments,  experience, aptitude and ability to teach. (4)If  candidates with the prescribed  qualifications  are not  available or appointment cannot be made in  the  manner prescribed  in  sub-rule (1), appointments may  be  made  by direct recruitment through the Commission, if necessary,  in relaxation of the prescribed qualifications." 2.   The advertisement was in terms of Rule 4. 3.   In  the  posts so advertised, there were  10  posts  in Category  II in the discipline of Dentistry, out of which  5 were  for  the  general candidates, the  remaining  5  being reserved for the Scheduled Castes and Scheduled Tribes.  The dispute in the present case relates only to the placement in order  of merit, of the candidates belonging to the  general category selected as a result of the above

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136 advertisement.  The appellants, Dr Jayanta Kumar Dash and Dr Indu  Bhusan  Kar, and Respondents 3, 4 and  5,  namely,  Dr Ramesh  Chandra  Das, Dr (Miss) Maunabati Mohapatra  and  Dr Saroj  Kumar  Sahu, were selected to these 5  posts  in  the general category.  In the select list prepared by the Orissa Public Service Commission, the name of Dr Ramesh Chandra Das was  not placed at Serial No. 1. Aggrieved by his  placement below  some of the other selected candidates, by the  Public Service   Commission,  Respondent  3,  Ramesh  Chandra   Das challenged   the  same  before  the  Orissa   Administrative Tribunal.  By the impugned order dated January 21, 1987, the Tribunal has upheld the claim of Dr Ramesh Chandra Das  that he was entitled to be placed at the top of the select  list, notwithstanding  his  lower  placement in  the  select  list prepared by the Orissa Public Service Commission.  Aggrieved by  this decision of the Tribunal, the appellants, who  were shown  above  Dr  Ramesh  Chandra Das  in  the  select  list prepared  by the Public Service Commission,  have  preferred this appeal by special leave. 4.Admittedly,  the  only  candidate  at  that   selection belonging  to the category of ’Assistant Surgeons under  the State  Government  or  State  Government  Undertakings’  was Respondent  3,  Dr Ramesh Chandra Das whose claim  has  been allowed by the Tribunal.  The other four candidates selected in  the general category were not In-Service candidates,  as was  Dr Ramesh Chandra Das; and they came to be selected  by direct recruitment in accordance with sub-rule (4) of Rule 4 while  the selection of Dr Ramesh Chandra Das, Respondent  3 alone  was  under sub-rule (1) of Rule 4. The  claim  of  Dr Ramesh  Chandra Das was based on the ground that  candidates who came in by direct recruitment under sub-rule (4) had  to be  placed below the candidates selected under sub-rule  (1) of Rule 4, since the question of selecting anyone under sub- rule  (4) arises, under the rules, only in  case  sufficient number  of  candidates  are not available  for  filling  the vacancies  according to sub-rule (1).  This  contention  has found favour with the Tribunal. 5.The submission of learned counsel for the appellants is that  even  though  the appellants came to  be  selected  by direct recruitment under sub-rule (4) of Rule (4), once that stage  was  reached on account of  the  non-availability  of suitable candidates for filling the advertised posts in  the manner  prescribed  in sub-rule (1), the  placement  in  the select  list finally prepared has to be in  accordance  with the  comparative merit of all the candidates selected  under subrules (1) and (4).  On this basis, it was submitted  that the preparation of the select list placing Dr Ramesh Chandra Das  below  the appellants, could not be  faulted.   We  are unable to accept this contention. 6.The  scheme  of  appointment  of  Junior  Teachers   in accordance  with  Rule 4 is clear.  It prescribes  that  the appointment to the Junior Teaching posts in the service  has to  be made in the first instance by selection from  amongst the  Assistant Surgeons in the State Government service  who possess the prescribed qualification.  If sufficient  number of  In-Service candidates are available and  found  suitable for  filling  all the vacancies, the stage of  sub-rule  (4) does  not reach for direct recruitment of any outsider  into that service.  This is evident, inter alia, from the opening words in sub-rule (4) itself which are:               "If    candidates    with    the    prescribed               qualifications    are   not    available    or               appointment  cannot  be  made  in  the  manner               prescribed in sub-rule (1)."

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137 7.in  substance,  if the stage of invoking  sub-rule  (4) reaches  in a given case, for want of sufficient  number  of suitable  In-Service candidates, it is only after the  first part of the process of selection is complete by  recruitment of  those  found  suitable for  appointment  to  the  Junior Teaching  posts  in the manner prescribed in  sub-rule  (1). This  itself  makes  it  clear, that  the  second  stage  of selection  at  which sub-rule (4) is invoked, is  after  the first  stage of selection in the manner prescribed  in  sub- rule  (1)  is over.  The question of  comparing  the  direct recruits  selected in accordance with sub-rule (4)  for  the purpose of determining their order of merit vis-a-vis  those candidates  found  suitable  and  appointed  in  the  manner prescribed  under  sub-rule  (1) does not  arise.   This  is obvious  from  the  fact that  the  candidates  selected  in accordance with sub-rules (1) and   (4)   belong   to    two different categories. 8.Learned counsel for the appellants then placed reliance on  sub-rule (3) to contend that the Commission is  required to  compare the merits of all candidates selected  according to sub-rules (1) and (4) and place them in order of merit on a   comparative  basis.   We  are  unable  to  accept   this contention.   Sub-rule (3), apart from its placement in  the various sub-rules of Rule 4 preceding sub-rule (4)  therein, is clearly intended to regulate the selection of  candidates in  the manner prescribed in sub-rule (1).  In other  words, sub-rules  (1)  to (3) deal with the appointment  to  Junior Teaching posts of the In-Service candidates, and then  comes sub-rule  (4)  which enables the filling  of  the  remaining vacancies  by  direct  recruitment, if  necessary,  even  in relaxation  of the prescribed rules.  Learned  counsel  also attempted to seek support from the provision for  relaxation of  the prescribed qualifications provided in sub-rule  (4). It  is sufficient to say that this provision for  relaxation of  the  prescribed qualifications is not relevant  for  the present purpose, and comes in only if the direct recruitment becomes  necessary  on account of  the  non-availability  of sufficient  number  of suitable candidates  with  prescribed qualifications  for  appointment to be made  in  the  manner prescribed  in  sub-rule (1).  There is, thus, no  merit  in this contention. 9.   Consequently, the appeal is dismissed. 10. No costs. 138