When discrimination is glaring, the State cannot take recourse to inadvertence in its action resulting in discrimination: Orissa High Court

ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 42421 In the matter of an application under Articles 226 and 227 of the Constitution of India. Dr. Snehalata Mallick Versus State of Odisha and others Opp. Parties For Petitioner M s.J.K. Lenka B.K. Nayak and A.K. Sahoo For Opp. Parties: Mr. B. P. Tripathy Addl. Government Advocate P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI DR. B.R. SARANGI J. The petitioner who is at present working as Assistant Professor in the Department of O & G Pandit Raghunath Murmu Medical College and Hospital Baripada Mayurbhanj has filed this writ petition to quash the order dated 21.01.2021 at Annexure 6 passed by opposite party no.1 rejecting her representation for issuance of “No Objection Certificate” to appear in the interview for the post of faculty at All India Institute of Medical Sciences Bhubaneswar pursuant to advertisement No. AIIMS BBSR RECT. REG.FAC 2020 873 3406 dated 13.11.2020 on the ground of inadequacy of faculties in Government Medical Colleges. The factual matrix of the case in hand is the petitioner after completion of her Post Graduation in O & G was initially recruited as Assistant Surgeon pursuant to open advertisement made in the year 2006. Accordingly appointment order was issued in 2007 pursuant to which she joined in District Headquarter Hospital Kandhamal at Phulbani. she was continuing advertisement bearing no.10 of 2016 17 was issued by Odisha Public Service Commission inviting online the prospective candidates for recruitment to the post of Assistant Professor in different disciplines under the Odisha Medical Education Service cadre for posting in Government Medical Colleges in the State in the rank of Group A under Health and Family Welfare Department. The petitioner having requisite qualification and eligibility applied for the post of Assistant Professor and she came out successful in the written examination whereafter in February 2019 she joined as Assistant Professor in the Department of O & G Pandit Raghunath Murmu Medical College & Hospital Baripada Mayurbhanj and continuing as such till date. The Director AIIMS Bhubaneswar issued an advertisement on 13.11.2020 for recruitment of Faculty posts in various Departments of AIIMS Bhubaneswar on direct recruitment basis for the recruitment year 2020. The AIIMS Bhubaneswar is an Autonomous Institute of National importance and an apex health care institute being established by the Ministry of Health and Family Welfare Government of India under the Pradhan Mantri Swathya Surakhya Yojana with an aim of correcting regional imbalance in quality tertiary level health care in the country and attaining self sufficiency in Graduate Post Graduate and higher medical education and training. The petitioner belonging to S.T. category fulfilled all the eligibility criteria for being appointed in faculty post Group A) i.e. Asst. Professor in O & G and had applied in for the said post as per advertisement dated 13.11.2020. But as per Clause 19 of the advertisement the petitioner was to submit NOC from the present employer at the time of interview or as per the instructions issued from time to time. It was also clarified in the said advertisement that no candidate will be allowed to appear in the interview without NOC from his employer. Therefore the petitioner vide letter dated 25.11.2020 requested the Commissioner cum Secretary Health & Family Welfare Department for issuance of NOC and the Dean and Principal Pandit Raghunath Murmu Medical College and Hospital Baripada vide letter dated 02.12.2020 under Annexure 4 forwarded the same to the Director of Medical Education & Training for issuance of NOC to appear in the interview for recruitment in faculty post as per issued by AIIMS Bhubaneswar. The Director of Medical Education & Training Odisha vide letter dated 15.12.2020 under Annexure 5 requested the issuance of NOC favour of the petitioner. But opposite party no.1 vide letter dated 21.01.2021 under Annexure 6 intimated the Director of Medical Education & Training Odisha that the Government after careful consideration rejected application of the petitioner for grant of NOC taking into consideration the inadequacy of faculties in Government Medical Colleges. Hence this application. Dr. J.K. Lenka learned counsel the petitioner argued emphatically that non grant of “no objection certificate” to the petitioner to enable her to participate in the interview pursuant to the advertisement in Annexure 2 affects her fundamental rights inasmuch as depriving her from participating in the process of selection is arbitrary unreasonable and contrary to the provisions of law and more particularly is discriminatory one which violates Articles 14 and 16 of the Constitution of India. It is further contended that every person has a right to be considered for the choice post pursuant to the advertisement issued by the authority and such consideration cannot be denied by the employer by rejecting the application for issuance of NOC and that itself amounts to arbitrary exercise of power by the authority concerned. It is further contended that with the touchstone of the provisions contained under Articles 14 and 16 of the Constitution of India there shall be equal opportunity for all the citizens in the matter relating to employment or appointment to any post under the State and under Article 16(2) no citizen shall on the grounds of religion race caste sex deceit place of birth residents or any of them be ineligible for or discriminated against in respect of any employment or office under the State. Thereby every eligible person is entitled to apply for and to be considered of his claim for recruitment provided he satisfies the prescribed requisite qualification. Thereby rejection of the representation filed by the petitioner for grant of NOC by opposite party no.1 is in gross violation of the constitutional mandate as enshrined under Articles 14 and 16 of the Constitution of India therefore seeks for interference of this Court. Mr. B.P. Tripathy learned Addl. Government Advocate appearing for the State argued with vehemence justifying the order rejecting the representation for NOC filed by the petitioner. is contended representation for issuance of NOC which was received by the Department of Health & Family Welfare on 11.01.2021 on being forwarded by the Director of Medical Education and Training Odisha was examined with reference to the dearth of faculties in the Department of O & G Pandit Raghunath Murmu Medical College & Hospital Baripada and contended that out of total sanctioned strength of 30 nos. of Asst. Professors in O&G Discipline the man in position is only 17. Besides that one new medical college and hospital is going to start at Puri from the year 2021 and many new government medical colleges are in the pipeline. Thereby the State Government is duty bound to fill up the faculty posts in all the medical colleges and hospitals as per the NMC criteria. Therefore the opposite party no.1 is well justified in rejecting the representation submitted by the petitioner for grant of NOC even though the same was duly recommended to the Government by the Dean and Principal of Pandit Raghunath Murmu Medical College & Hospital Baripada and also the Director of Medical Education and Training Odisha Bhubaneswar and thereby no illegality or irregularity has been committed so as to cause interference by this Court in the present application. This Court heard Dr. J.K. Lenka learned counsel for the petitioner and Mr. B.P. Tripathy learned Addl. Government Advocate appearing for the State opposite parties by virtual mode and perused the record. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties this writ petition is being disposed of finally at the stage of The facts as delineated above are not in dispute. The substantial question consideration by this Court is whether the opposite party no.1 is well justified in rejecting the representation filed by the petitioner for issuance of NOC to enable her to appear in the interview pursuant to the advertisement issued by the AIIMS Bhubaneswar in Annexure 2 dated 13.12.2020. The same should be considered in the touchstone of reasonableness arbitrariness within the meaning of Articles 14 and 16 of the Constitution of India. As the facts are not in dispute and admittedly the petitioner belonged to ST category and continuing as Asst. Professor in Pandit Raghunath Murmu Medical College & Hospital Baripada in the district of Mayurbhanj pursuant to the advertisement issued by the AIIMS Bhubaneswar dated 13.12.2020 under Annexure 2 she applied for the post of Asst. Professor under S.T. category but before the interview conducted she had to produce an NOC to be granted by the present employer. In the present context Clause 19 of the advertisement being relevant is extracted hereunder: in Government “19. The applicants already service shall have to produce No Objection Certificate from their present employer at the time of Interview or as per the instructions issued from time to time. However they have to take prior permission from their employer while applying for the post. No candidate will be allowed to appear the interview without NOC from his employer.” Admittedly the petitioner is already in government service and therefore she has to produce NOC from the present employer at the time of interview or as per the instructions issued from time to time and she has to take prior permission from her employer while applying for the post and as such no candidate will be allowed to appear in the interview without NOC from the employer. To satisfy this requirement the petitioner submitted a representation to opposite party no.1 which was duly recommended by the Dean and Principal of Pandit Raghunath Murmu Medical College & Hospital Baripada Mayurbhanj and approved by the Director of Medical Education and Training Odisha Bhubaneswar which was placed before opposite party no.1 for grant of NOC. But such recommendation of the Dean and Principal of Pandit Raghunath Murmu Medical College & Hospital Baripada Mayurbhanj and approval made by the Director of Medical Education and Training Odisha Bhubaneswar has been rejected consideration inadequacy of faculties in the Government Medical Colleges. The reason which has been assigned in the claim of the petitioner is absolutely misconceived in view of the fact that every person has a desire to achieve his goal in life by participating in the process of selection conducted by the competent authority. Being a model employer the State Government cannot and should not stand on the way of a prospective candidate like the petitioner who wants to grow in future by creating obstacle in rejecting her representation to grant NOC which is mandatorily required for the purpose of appearing in the interview. On her participating in the interview whether the petitioner will come out successful or not that is still in embryonic stage. But depriving her from participating in the process of selection in not granting NOC amounts to causing death of foetus before it sees the light of day and no model employer should do that otherwise it will create havoc in the matter of Reasons for inadequacy of faculties if will be considered from other angle will be attributable to the State authority and no other person. Instead of going for regular recruitment to the posts which are available by following due recruitment process in accordance with law the State Government is taking a novel stand by increasing the age of superannuation of the doctors in the State. As is revealed the past experience the age of superannuation of the doctors in the State which was earlier fixed to 58 years was enhanced to 60 years and thereafter to 62 years and now it is 65 years. At present it is being contemplated to enhance their age to 70 years which has also been objected to by the beneficiaries who are in service through their associations. By enhancing their age of superannuation it creates a blockage on the entry into service by the newly qualified persons those who are eligible to be considered for getting an appointment by following due process of law. In other angle also if it will be taken into consideration the Government is also facing ruination by of superannuation of the higher grade officers by curtailing the lower grade posts and not filling up the same by following due procedure of law. For example at the remuneration which is paid to a Professor two Asst. Professors can get appointment in the base level post which could have mitigated the inadequacy of faculties in the department itself. More so it would have given encouragement to the youngsters to work vigorously and to cater to the needs of the public at large and by this process the State would have been benefited and the situation which the State is facing would not have been As a welfare State the State of Odisha has an obligation to encourage its citizens to do much better in their life time for the interest of the public at large. Rejection of the representation of the petitioner for NOC even though recommended by the competent authority by the State Government on the plea of inadequacy of faculties in the Government Medical Colleges cannot have any justification. More particularly in a matter where a candidate wants improvement in his life by appearing in interview that cannot be taken away in such a slipshod manner which amounts to arbitrary and unreasonable exercise of power being volatile of Articles 14 and 16 of the Constitution of India. The petitioner has specifically pleaded in paragraph 10 of the writ petition to the following effect: “10. That one Dr Manas Ranjan Das while working as Associate Professor Department of Surgery SCB Medical College & Hospital Cuttack had applied for the post of Professor of Surgery in AIIMS. Even if there is acute shortage inadequacy of faculties the Govt. issued NOC in his favour during 2017 18 and he was subsequently and appointed as Professor AIIMS Bhubaneswar. In not giving NOC to the petitioner is illegal arbitrary and discriminatory being violative of Articles 14 and 16 of the Constitution.” Even though a counter affidavit has been filed by opposite party no.1 there is no specific denial to such pleadings of the petitioner. Thereby opposite party no.1 has admitted such position. If permission has been accorded in respect of a similarly situated candidate to participate in the process of interview enabling him to get selected and appointed as Professor similar benefit cannot be denied to the petitioner on the ground of inadequacy of faculties. The situation which was prevailing at the time when the candidate had applied i.e. during 2017 18 the same situation is also prevailing now. Thereby the action of opposite party no.1 is discriminatory one which violates Article 14 of the constitution of India. In Stroud’s Dictionary of Law Vol.1 Page 695 the word “discrimination” has been defined to mean the difference in treatment of two or more persons or In Dictionary of Political Science Joseph Dunner 1965 Page 148 it has been defined discrimination is an act of depriving an individual or a group of equality of opportunity. In Narmada Bachao Andolanv. State of Madhya Pradesh AIR 2011 SC 1989 the apex Court explained the phrase “discrimination” observing as follows: Madhu Kishwar v. State of Bihar AIR 1996 SC 1864:1996 AIR SCW 2178:5 SCC 125 it has been held by Supreme Court that instance of discrimination does not necessarily fall within the ambit of Article 14 of the Constitution.” Development and Investment Corporation v. Subhas Sindhi Co operative Housing Society Jaipur AIR 2013 SC 1226 the apex Court examined the scope of discrimination. A party seeking relief on the ground of discrimination must take appropriate pleadings lay down the factual foundation and must provide details of the comparable cases so that the court may reach a conclusion whether the authorities have actually discriminated against that party and whether there is in fact any justification for discrimination assessing the facts of both sets of cases together. In Video Electronics Pvt. Ltd. v. State of Punjab AIR 1990 SC 820 the apex Court held that discrimination means an unjust an unfair action in favour of one and against another. It involves an element of intentional and purposeful differentiation and further an element of unfavourable bias an unfair classification. Discrimination under Article 14 of the Constitution must be conscious and not accidental discrimination arises from oversight which the State is ready to rectify. This view has also been taken by the apex Court in Kathi Raning Rawat v. State of Saurashtra AIR 1952 SC 123. In Vishundas Hundumal v. State of Madhya Pradesh AIR 1981 SC 1636 the apex Court held that when discrimination is glaring the State cannot take recourse to inadvertence in its action resulting in discrimination. In a case where denial of equal protection is complained of and the denial flows from such action and has a direct impact on the fundamental rights of the complainant a constructive approach to remove the discrimination by putting the complainant in the same position as others enjoying favourable treatment by inadvertence of the State authorities is required. In State of Uttar Pradesh v. Dayanand Chakrawarty AIR 2013 SC 3066 while referring to Prem Chand Somchand Shah v. Union of India 2 SCC 48 the apex Court held as follows: “8. As regards the right to equality guaranteed under Article 14 the position is well settled that the said right ensures equality amongst equals and its aim is to protect persons similarly placed against discriminatory treatment. It means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Conversely discrimination may result if persons dissimilarly situate are treated equally. Even amongst persons similarly situate differential treatment would be permissible between one class and the other. In that event is necessary that the differential treatment should be founded on an intelligible differentia which that are distinguishes persons or grouped together from others left out of the ground and that differentia must have a rational relation to the object sought to be achieved by the statute in question.” Applying the law laid down by the apex Court as mentioned supra to the present context this Court is of the considered view that action of the State opposite party no.1 is not only in gross violation of Article 14 of the Constitution of India but also arbitrary unreasonable and discriminatory. Thereby the order dated 21.01.2021 in Annexure 6 rejecting the representation filed by the petitioner seeking NOC to appear in the interview for faculty at AIIMS Bhubaneswar pursuant to advertisement issued on 13.11.2020 cannot sustain in the eye of law and is liable to be quashed and accordingly quashed. Opposite party no.1 is directed to issue necessary NOC in favour of the petitioner to enable her to appear in the interview for the post of faculty at AIIMS Bhubaneswar pursuant to advertisement issued on 13.11.2020 in Annexure 2 in terms of Clause 19 within a period of seven days from the date of receipt of the judgment without creating any hindrance thereof. The writ petition is allowed. However there shall be no order as to costs. DR. B.R.SARANGI Orissa High Court Cuttack The 12th February 2021 Alok GDS 

Summary: The State cannot use inadvertence in its actions which result in prejudice when prejudice is blatant. In the case of a complaint against denying equal protection and the denial of such actions and of a direct effect on the plaintiff’s fundamental rights, a constructive approach is necessary to remove discrimination by placing the complainant in a position to be favoured by state authorities inadvertent treatment. The judgment was passed by The High Court of Orissa in the case of Snehalata Mallick Vs the State of Odisha and Ors. [W.P.(C) NO. 4242 of 2021] by Single Bench consisting of Hon’ble Shri Justice B.R.Sarangi. The facts of the case are that the petitioner, who is at present working as Assistant Professor in the Department of O &amp; G, Pandit Raghunath Murmu Medical College and Hospital, has filed this writ petition to quash the order passed by the opposite party and rejecting her representation for issuance of “No Objection Certificate” (NOC) to appear in the interview for the post of faculty at All India Institute of Medical Sciences (AIIMS), Bhubaneswar. Learned counsel for the petitioner argued emphatically that non-grant of “no objection certificate” to the petitioner to enable her to participate in the interview pursuant to the advertisement issued in Annexure affects her fundamental rights, inasmuch as, depriving her of participating in the process of selection is arbitrary, unreasonable and contrary to the provisions of law and, more particularly, is discriminatory one which violates Articles 14 and 16 of the Constitution of India. It is further contended that every person has a right to be considered for the choice post, pursuant to the advertisement issued by the authority and such consideration cannot be denied by the employer by rejecting the application for issuance of NOC and that itself amounts to arbitrary exercise of power by the authority concerned. Learned counsel for the respondent argued with vehemence by justifying the order rejecting the representation for NOC filed by the petitioner. It is contended that the representation for issuance of NOC, which was received by the Department of Health &amp; Family Welfare on the due date, on being forwarded by the Director of Medical Education and Training, was examined with reference to the dearth of faculties in the Department and contended that out of total sanctioned strength of 30 Professors in O&amp;G Discipline, the man in position is only 17. Therefore, the opposite party is well justified in rejecting the representation submitted by the petitioner for grant of NOC. Thereby, no illegality or irregularity has been committed so as to cause interference by this Court in the present application. While relying on the case of Rajasthan State Industrial Development and Investment Corporation v. Subhas Sindhi Co-operative Housing Society Jaipur, the apex Court examined the scope of discrimination. “A party seeking relief on the ground of discrimination must take appropriate pleadings, lay down the factual foundation and must provide details of the comparable cases, so that the court may reach a conclusion, whether the authorities have actually discriminated against that party; and whether there is in fact any justification for discrimination, assessing the facts of both sets of cases together.