STATE OF ORISSAversusDR. SIVASANKER LAL BAJORIA AND ANR.

 A                          STATE OF ORISSA
                                   v.
                 DR. SIVASANKER 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]

     .     2. This Court's direction io state whether there is more than one post
G. 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.

     From the Judgment and Order dated 28.2.86 of the Orissa High
                                                                                c
Court in O.J.C. No. 428 of 1983.

     Rajinder Sachher, AK. Panda, N.K. Sharma and Sanjeev Das for the
Appellant.
                                                                                D
     Soli J. Sorabjee, P.N. Misra and AC. Pradhan for the Respondent
in No. 1.

         Janaranjan Das for the Respondent No. 2.

         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

B
     quashing the appointmenfof Dr. Mruthyunjaya Satpathy and for issuing a
     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
     promotion in the post of Asst. Professor in which Dr. U.K. Swain had been
     appointed and non-consideration of his case for appointment was unjus-
     tified. It also held that in the year 1979 Dr. M. Satpathy was not eligible
 C   for appointment as Asstt. Professor in Cardiology though he was eligible
     for such appointment in the year 1983. It also held that it was unnecessary
     to go into the appointment of Dr. Satpathy as an Asstt. Professor. Accord-
     ingly, direction was given as under:

                 "In the result, we would direct opposite party No. 1 the State
D            to re-consider the question of promotion of the petitioner to the
             post of Assistant Professor of Cardiology with retrospective effect
             from 9.11,1979 and to allow all service benefits to him in case he
             is found fit for promotion to such post, expeditiously."

E This order came to be challenged in this appeal by. the State.
           Though arguments are sought to be addressed to support the order
     under appeal, no need arises to consider them, for the simple reason that
     this Court's direction to state whether there is more than one post of Asstt.
·F   Professor of Cardiology available for consideration of the claim of the
     appellant has failed to evoke the needed response. The affidavits filed
     make it clear that the existing post of Assistant Professor of Cardiology for
     which the appellant's claim for appointment is to be considered is the one
     already occupied by Dr. Satpathy. The fact that the High Court has
     specifically declined to go into the validity of the appointment of Dr.
G    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. However, it is sought to be contended by Shri Soli J.
     Sorabjee, the learned senior council for Dr. Bajoria that in view of the
     declaration given by the Hjgh Court that Dr. Bajoria was eligible for
H    consideration for the post in the year 1979 when' Dr. U .K. Swain was
                  STAIB OFORISSAv. DRS.L BAJORIA                          191    '.   1
                                                                                          '




appointed and when Dr. Satpathy was not eligible to be considered, his A
subsequent appointment should not stand in the way of consideration of
Dr. Bajoria's cas~ for appointment to a vacancy which existed in the year
1979. We find no force in the contention.

       It is rightly contended by the learned counsel for Dr. Satpathy that
had his appointment been quashed, it would have been open to him to              B
contend that on the date when he was appointed, he had the necessary
qualifications while as on that date Dr. Bajoria was not having such
qualification and therefore, his appointment would not be illegal and
remained unassailable. When the appointment of Dr. Satpathy was not
quashed, he could have no grievance and that, therefore, is no vacancy           C
existing in the post of Assii)tant Professor, Cardiology in the said college
for which appellant's claim for appointment could be considered as
directed by the High Court.

      Hence, in the absenee of a declaration that the appointment of Dr.
Satpathy as on February 3, 1983 was illegal and when the High Court has          D
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. This situation makes the order of the High Court unwork-
able. Accordingly, no need arises to· consider the argument made in sup-
port of the order under appeal.
                                                                                 E
       The appeal is accordingly allowed. The direction given in the order
of the High Court to consider the claim of ~espondent No.1 (Dr. Bajoria)
is set aside. No costs.

G.N.                                                        Appeal allowed.