Case Note & Summary
The dispute arose from the creation of a post of Assistant Professor in Cardiology at S.C.B. Medical College Hospital, Cuttack by the State Government in April 1979. Dr. Urmila Kumari Swain was appointed by transfer to that post on 9 November 1979. Dr. S.L. Bajoria challenged that appointment in a writ petition, but the government withdrew the appointment and the petition was dismissed. Later, Dr. Mruthyunjaya Satpathy was appointed on 3 February 1983. Dr. Bajoria filed Writ Petition OJC No. 428 of 1983 seeking quashing of Dr. Satpathy's appointment and a direction that he be considered eligible for the post from 1979. The High Court held that under the 1970 Regulations, Dr. Bajoria was eligible in 1979, non-consideration was unjustified, and Dr. Satpathy was not eligible in 1979 though he was in 1983. However, the High Court specifically did not go into the validity of Dr. Satpathy's appointment and directed the State to reconsider Dr. Bajoria's promotion with retrospective effect from 9.11.1979 and grant service benefits if found fit. The State appealed. Supreme Court noted its direction to State to indicate if more than one post existed failed to get response; affidavits showed the sole post was occupied by Dr. Satpathy. The court held that since the High Court had declined to quash Dr. Satpathy's appointment and he continued to hold the post, no vacant post existed for considering Dr. Bajoria. The argument for Dr. Bajoria that the declaration of eligibility for 1979 entitled him to be considered against a vacancy of that year was rejected. The court observed that had Dr. Satpathy's appointment been quashed, he could have defended it by showing he had qualifications on his appointment date whereas Dr. Bajoria did not; but since it was not quashed, there was no vacancy. Therefore the High Court's direction was unworkable. Appeal allowed, direction set aside, no costs.
Headnote
A) Service Law - Promotion/Appointment - Vacancy and Non-Quashing of Incumbent's Appointment - 1970 Regulations - High Court directed the State to reconsider promotion of respondent doctor to Assistant Professor Cardiology with retrospective effect from 9.11.1979 without quashing the appointment of the incumbent doctor; affidavits showed the only post was occupied by the incumbent - Held that in absence of a declaration that the incumbent's appointment was illegal and since the High Court specifically declined to examine it, no vacant post existed for consideration, making the direction unworkable and appeal allowed.
Issue of Consideration
Whether the High Court's direction to reconsider promotion with retrospective effect was workable when the only post was occupied and the appointment of the incumbent was not quashed
Final Decision
The appeal is allowed. The direction given in the order of the High Court to consider the claim of Respondent No.1 (Dr. Bajoria) is set aside. No costs.
Law Points
- Judicial review of service promotion
- necessity of vacancy
- non-quashing of incumbent appointment
- unworkable direction
- eligibility declaration does not create post
- 1970 Regulations
Case Details
1994 LawText (SC) (09) 32
Appeal (civil) 4456 of 1986
K. Ramaswamy, N. Venkatachala
Sivasanker Lal Bajoria and Anr.
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Nature of Litigation
Service dispute concerning promotion to the post of Assistant Professor in Cardiology
Remedy Sought
In High Court, Dr. Bajoria sought quashing of appointment of Dr. Satpathy and direction to State to consider him eligible for appointment from 1979. In Supreme Court, State sought setting aside of High Court direction.
Filing Reason
State contended High Court direction was unworkable because no vacancy existed and appointment of Dr. Satpathy was not quashed
Previous Decisions
High Court allowed writ petition partly: declared Dr. Bajoria eligible for 1979 and directed reconsideration with retrospective effect; declined to quash Dr. Satpathy's appointment
Issues
Whether the High Court's direction to reconsider promotion with retrospective effect was workable when the only post was occupied and the appointment of the incumbent was not quashed
Whether absence of vacancy made the direction unenforceable despite declaration of eligibility in 1979
Submissions/Arguments
For respondent Dr. Bajoria: contended that because High Court declared him eligible in 1979 and Dr. Satpathy not eligible then, subsequent appointment should not stand in way of consideration against vacancy which existed in 1979.
For Dr. Satpathy: contended had his appointment been quashed, he could have argued he had necessary qualifications on appointment date when Dr. Bajoria did not, making appointment not illegal; but since appointment not quashed, no vacancy existed.
For State: direction to State to indicate if more than one post existed failed to get response; affidavits showed the sole post was occupied by Dr. Satpathy, so no vacant post for consideration.
Ratio Decidendi
Where a court directs consideration of promotion but does not quash the appointment of the incumbent holding the only available post, and there is no other vacancy, the direction is unworkable; eligibility declaration alone does not create a vacancy.
Judgment Excerpts
The fact that the High Court has specifically declined to go into the validity of the appointment of Dr. Satpathy, who is still holding that post, makes unavailable a vacant post for which the claim of Dr. Bajoria as per the directions of the High Court could be considered.
In the absence of a declaration that the appointment of Dr. Satpathy as on February 3, 1983 was illegal and when the High Court has specially declined to go into that question, there is no vacant post existing for consideration of the claim of Dr. Bajoria as per the directions given by the High Court.
The appeal is accordingly allowed. The direction given in the order of the High Court to consider the claim of Respondent No. l (Dr. Bajoria) is set aside. No costs.
Procedural History
State Government created post 19.4.1979; Dr. U.K. Swain appointed by transfer 9.11.1979; Dr. Bajoria challenged, but Government withdrew appointment and writ petition dismissed; Dr. Satpathy appointed 3.2.1983; Dr. Bajoria filed Writ Petition OJC No. 428 of 1983; High Court allowed 28.2.1986 directing reconsideration with retrospective effect; State filed special leave appeal; Supreme Court allowed appeal 6.9.1994.
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