STATE OF ORISSA versus DR. SIVASANKER LAL BAJORIA AND ANR.

Citation: [1994] SUPP. 3 S.C.R. 188 · Decided: 06-09-1994 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
STATE OF ORISSA 
v. 
DR. SIV ASANKER LAL BAJORIA AND ANR. 
,, 
; 
' 
;, SEPTEMBER 6, 1994 
B 
[K. RAMASWAMY AND N. VENKATACHALA, JJ.] 
Service Law : 
Appointmen~Assistant Professor of Cardiology in a Medical Col-
C lege-Challenged by another person-High Court directed State to consider 
his claim-Only one post available-High Court's direction unworkable and 
hence set aside. 
The appellant State created a post of Assistant Professor in Cardiol-
ogy in S.C.B Medical College, Cuttack and appointed one 'U' to the post 
D on transfer. Respondent challenged the validity of the appointment by 
filing a Writ Petition before the High CourJ. However, the petition was 
dismissed since the Government withdrew the said appointment. Sub-
sequently, one 'S' was appointed to the said post and the respondent 
challenged the same before the High Court, which· directed the appellant 
E to consider the, claim of the respondent. 
Allowing the appeal, this Court 
HELD : 1. In the absence of a declaration that the appointment of 
'S' as on February 3, 1983 was illegal and when the High Court had 
. F 
specifically declined to go into that question, there is no vacant post 
existing for consideration of the claim of the respondent as per the 
directions given by the High Court. This situation makes the order of the 
High Court unworkable. (191-D] 
G. 
. 
2. This Court's direction io state whether there is more than one post 
of Asstt. Professor of Cardiology available for consideration of the claim of 
the respondent has failed to evoke the needed response. The affidavits filed 
make it to evoke the needed response. The affidavits filed make it clear that 
the existing post of Assistant Professor of Cardiology for which the 
respondent's claim for appointment is to be considered is the one already 
H occupied by 'S'. The fact that the High Court has specifically declined to go 
188 
.~ 
STATE OFORISSAv. DRS.L BAJORIA 
189 
into the validity of the appointment of 'S', who is still holding that post, A 
makes unavailable a vacant post for which the claim of the respondent as 
per the directions of the High Court could be considered. It cannot be said 
that in view of the declaration given by the High Court that the respondent 
was eligible for consideration for the post in the year 1979 when 'S' was not 
eligible to be considered, his subsequent appointment should not stand in B 
the way of consideration of the respondent's case for appointment to a 
vacancy which existed in the year 1979. [190-F-G-H; 191-A] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4456 of 
1986. 
c 
From the Judgment and Order dated 28.2.86 of the Orissa High 
Court in O.J.C. No. 428 of 1983. 
Rajinder Sachher, AK. Panda, N.K. Sharma and Sanjeev Das for the 
Appellant. 
Soli J. Sorabjee, P.N. Misra and AC. Pradhan for the Respondent 
in No. 1. 
Janaranjan Das for the Respondent No. 2. 
D 
Gagrat & Co. (N.P.) and K.K. Gupta (NP) for the Respondent in E 
No. 3. 
The following Order of the Court was delivered : 
This appeal by special leave arises from the Judgment of the Division 
Bench of the High Court of Orissa at Cuttack in OJC No. 428 of 1983, F 
dated February 28, 1986. 
The State Government in G.S. No. 15882.H, dated April 19, 1979 
created a post of Asstt. Professor in Cardiology in S.C.B. Medial College 
Hospital at Cuttack. Dr. Urmila Kumari Swain, who was an Assistant 
Professor in Paediatrics, was appointed by tranfer as Assistant Professor G 
of Cardiology by Order dated November 9, 1979. Dr. S.L. Bajoria chal-
lenged the validity of the said appointment by a separate Writ Petition filed 
in that regard. However, the Government since withdrew the said appoint-
ment itself, the Writ Petition came to be dismissed. Subsequently, when 
Dr. Mruthyunjaya Satpathy was appointed as Assistant Professor, Cardiol-
H 
190 
SUPREME COURT REPORTS [1994) SUPP. 3 S.C.R. 
A ogy on February 3, 1983, that appointment also . came to be challenged by 
Dr. Bajoria in the Writ Petition out of which the present appeal has arisen. 
Dr. Bajoria impleaded therein Dr. Satpathy as respondent No. 2 and the 
State as respondent No.1. The relief sought in that Writ Petition was for 
quashing the appointmenfof Dr. Mruthyunjaya Satpathy and for issuing a 
B direction to the St<!-te Government to consider him as eligible for appoint-
ment in that post from the year 1979. The High Court in the Judgment held 
that under 1970 Regulations Dr. Bajoria was eligible to be considered for 
promo

Excerpt shown. Read the full judgment & AI analysis in Lexace.