ORDER
1. Heard further argument from the Learned Counsel for the Petitioners in each of the Writ Petitions and also reply submitted by Learned Advocate General on behalf of the State, reply by Mr. R.C. Mohanty Learned Counsel on behalf of the Medical Council of India, reply by Mr. Rabi Narayan Acharya, Learned advocate on behalf of the Post-Graduate (Medical) Selection Committee and argument by Sri Rajat Kumar Rath, Learned Senior Advocate representing the interest of the interveners and reply from Learned Counsel appearing for the Petitioners, and all the Writ Petitions are disposed of in the following manner.
2. On consent of the parties, analogous hearing of all the cases is made, because the dispute is relating to different norms fixed by the Government in the Prospectus in respect of the admission to the Post-Graduate (Medical) Course and this common Judgment shall abide the result in all the cases.
3. Petitioner, in W.P.(C) No. 978 of 2007, is working under Swami Bibekananda National Institute of Rehabilitation Training and Research at Olatpur, Cuttack, a Govt. of India Undertaking, under the Ministry of Social Justice and Employment. Similarly, Petitioner, in W.P.(C) No. 31 of 2007, is a doctor working under the Orissa Mining Corporation Ltd., a Govt of Orissa Undertaking. They challenge to the Prospectus and particularly to Clause - 6.2, in which the 'in-service' candidates have been defined by eliminating the in service candidates from Public Sector Undertakings, both of the Central Government and the State Government.
In W.P.(C) Nos. 2845, 2003 and 3326, all of 2007 Petitioners have challenged to debarring the in-service candidates in not providing them 5% weightage marks even if they have rendered three years of service in KBK/tribal/backward areas. They also challenge to grant of 10% weightage marks benefit in favour of in-service candidates in exclusion to the direct candidates as per Clause 11.2 read with Clause 12 of the Prospectus.
In W.P.(C) Nos. 2845, 2003, 2206, 2950, 3326, 3389, 3667, 3668, 4013, 4014, 4015, 4016, 4017, 4018 and 4164 all of 2007 Petitioners have complained of not holding the test and Counseling for admission into 2006 P.G. (Medical) Course for in-service candidates with the prayer to make provision for their Counseling and admission separately than from the 2007 batch.
In W.P.(C) No. 3805 of 2007 Petitioner has complained of not providing him 10% weightage - marks notwithstanding the fact that he worked as a Medical Officer on contractual basis and also subsequently on regular basis for a period over five years and six months, i.e., from 23.04.1999 to 10.03.2005. He claims for relevant benefit.
In W.P.(C) No. 3544 of 2007 Petitioner states that she was holding the rank at serial No. 306 of the Merit List of 2005, admission was granted up to serial No. 304 and even if serial No. 305 declined to take admission, she was not considered for Counseling and admission. Accordingly she prays to adjust her in the 2007 course.
In W.P.(C) No. 3596 of 2007 Petitioner's contention is that he is student belonging to physically handicapped category. That ate gory of candidates are entitled to 3% seat reservation and thereby four seats are available to be filled up by candidates belonging to such category, but in Clause 14 of the Prospectus and particularly in Clause 14.3.1 it has been provided that the quota for the physically handicapped in-service candidate, if not available, to be filled up by in-service candidates from general category and that provision is contrary to Section 39 of the Persons With Disabilities (Equal Opportunities, Protection of fights and Full Participation) Act, 1995 (in short 'Disabilities Act 1995')
4. In view of urgency of the matters, as projected by all the parties, and interim protection having been granted for proceeding with the Counseling but not to admit any student, and that the parties to the proceeding agreed that procedure should not be insisted on addition of necessary party and relating to filing of counter affidavit in each case by the common Opposite Party members appearing in each of the Writ Petitions, it was agreed by the parties that the counter affidavit filed in one case be permitted to be read as the counter in other cases (in which a counter has not been filed). In course of submission, Petitioners and the Opposite Parties and the interveners adhered to that understanding and accordingly we considered pleadings of he parties and conducted the analogous hearing.
5. Before dealing with the points raised and the contentions made in furtherance of their respective cases by the Petitioners and the counter argument of the Opposite Parties and the interveners, we note her that date-chart and written note of submissions have been file by some of the parties together with list of citations. However, at the time of argument only following decisions were pressed to service.
(1) Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. : [1986]1SCR855 :
While considering correctness of the decision of the High Court in relation to recruitment to Subordinate Civil Courts Ministerial Staff and the law which was to be followed in respect of such recruitment, Hon'ble Apex Court held that,
In the circumstances having regard to the lacuna created by the non-repromulgation of Rule 11 of the 1947 Rules it has to be held that there was no effective substitution of the 1950 Rules brought about by the 1969 Amending Rules. The 1950 Rules should therefore be held to be operating even in the year 1981. Hence the examinations held according to them cannot be held to be bad.
(Paragraph-21)
22. We do not agree with the view of the High Court that the 1950 Rules have been repealed by the 1975 Rules insofar as the Subordinate Civil Courts are concerned. It is true that Rule 20 of the 1975 Rules clearly stated that the 1950 Rules had been repealed. But the 1975 Rules did not apply to the subordinate Courts under the control and superintendence of the High Court. Hence the 1950 Rules insofar as they applied to the subordinate Courts continued to be in force. The finding of the High Court on this question is erroneous and is liable to be set aside.
23. Moreover, this is a case where the Petitioner in the Writ Petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realized that he would not succeed in the examination. The High Court it elf has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination.
(2) Madan Lal and Ors. v. State of Jammu and Kashmir and Ors. : [1995]1SCR908 :
In this case, the process of selection of Munsifs in the State of Jammu Kashmir was under challenge on several grounds. The contention was relating to patent illegality in the viva-voce test conducted by the Commission. In that context, while taking note of participation of the Petitioners in the process of selection, their Lordships held that:
9. Therefore the result of the interview test on merits cannot be successfully challenged by a candidate who take a chance to get selected at the said interview and who ultimate finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a Court of appeal and try to re-assess the relative merit of the concerned candidates who had been assessed at the oral interview nor can the Petitioner successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to Judge the relative merits of the candidates who were orally interviewed in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground hat the assessment was not proper or justified as the would be the function of an Appellate body and we are certainly not acting as a Court of appeal over the assessment made by such an expert committee.
(3) Chandra Prakash Tiwari and Ors. v. Shakuntala Shukla and Ors. : [2002]3SCR948 :
In this case, their Lordships, while in seisin of the dispute relating to the promotion of the police officers in the State of Uttar Pradesh in 1997, reiterated the principle in the case of am Prakash Shukla (supra) and Madan Lal and Ors. (supra) and held that-
34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seems to be well settled that in the event a candidate, appears at the interview and participates therein, only because the result of the interview is not 'palatable' to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process.
(4) K.H. Siraj v. High Court of Kerala and Ors. : AIR2006SC2339 :
The dispute was relating to recruitment to Kerala Judicial Service. Learned Single Judge of Kerala High Court found illegality in the process of selection vis-a-vis the case of the Writ Petitioners. The Appellate Court set aside that order, the matter was threadbare examined by the Hon'ble Apex Court and consequentially the appeal in the Apex Court was dismissed. In paragraph-75 of the Judgment, their Lordships have be pleased to reiterate the ratio in the case of Madan Lal and Ors. (supra) and have held that, 'the Appellants/Petitioners having participated in the interview, in this background, it is not open to the Appellants/Petitioners to turn round thereafter when they failed at the interview and contended that the provision of minimum marks for the interview was not proper.'
5) Dr. Ajay Pradhan v. State of Madhya Pradesh and Ors. : AIR1988SC1875 :
It was held in the case that-
8 It follow that if a seat falls vacant for any reason, namely, that the candidate selected in order of merit does not joint the PG course in MD/MS in a medical college or by reason of his death or otherwise, and due to inaction on the part of the authorities the seat is not filled up in the academic year to which it pertains, there is question of the vacancy being carried forward to the next academic year.
(6) Dr. Dillip Kumar Das and Ors. v. State of Orissa and Ors. 2002 (II) OLR 25:
A batch of Writ Petitions were filed challenging to the resolution of the Govt. of Orissa dated 31.08.2001 in Health and Family Welfare Department and the Prospectus for admission to P.G. (Medical) Course, 2002 in the Government Medical Colleges of Orissa. In that case, on making a reference to the case of Dr. Narayan Sharma and Anr. v. Dr. Pankaj Kr. Lehkat and Ors. : AIR2000SC72 , certain parameters were fixed in paragraph-10 as per sub-paragraphs, (a) to (g). Clause (d) therein provides for not giving any weightage of marks for rural posting and Clause (f) therein provides that merit and merit,alone is the criteria for the higher specialized studies.
(7) Medical Council of India v. Madhu Singh and Ors. : [2002]SUPP2SCR228 :
This case was cited in support of the contention that the following guidelines was provided paragraph - 23 of the Judgment and that has been adhered to by the Medical Council of India and the State in relation to conducting the test for admission to the P.G. (Medical) Course. Paragraph - 23 reads as hereunder:
23. There is, however, a necessity for specifically providing the time schedule for, the course and fixing the period during which admissions can take place, making it clear that no admission can be granted after the scheduled date, which essentially should be the date for commencement of the course.
In conclusion
(i) there is No. scope for admitting students midstream as that could be against the very spirit of statutes governing medical education; (ii) even if seats are unfilled, that cannot be a ground for making mid-session admissions;
(iii) there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year;
(iv) MCI shall ensure that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date for admission;
(v) different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, Counseling and the like have to be completed within the specified time;
(vi) no variation of the schedule so far as admissions are concered shall be allowed;
(vii) in case of any deviation by the institution concerned, action as prescribed shall be taken by MCI.
(8) State of M.P. and Ors. v. Gopal D. Tirthani and Ors. : AIR2003SC2952 :
In this case the dispute was relating to admission to Medical Colleges in P.G. Course. Inter alia, the question of providing quota for in-service candidates and also providing weightage of service in rural and tribal areas came up for consideration and, after considering all the relevant decisions including the case of Dr. Narayan Sharma : AIR2000SC72 , Hon'ble Supreme Court held that, 'reservation for the in-service candidates and providing weightage for rural service is legal and valid. Their Lordships observed in paragraph-33 of the Judgment that, 'We hasten to add that while recasting and reframing the rules, the State Government shall take care to see that the weightage assigned is reasonable and is worked out on a rational basis.
(9) Mohini Jain (Miss) v. State of Karnataka and Ors. : [1992]3SCR658 and Unni Krishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors. : [1993]1SCR594 :
These cases are relied on to emphasize on the contention that right to education is a fundamental right.
(10) Dr. Bhupesh Ku. Nayak v. Secretary, Health and Family Welfare Deptt. and Ors. 2004 (Supp.) OLR 587:
A batch of Writ Petitions were disposed of by the Division Bench of this Court, in which one of us, i.e., Hon'ble Justice P.K. Tripathy was a member. The dispute was relating to confusion and anomalies created by the State Government for carrying out admission to the 2003 P.G. (Medical) Course and 2004 P.G. (Medical) Course. To give a solution to the problem, decision was made to make two separate batches of selection for the year 2003 and 2004 and to start their courses one after the other.
(11) D.S. Rashmi Ranjan and Ors. v. Chairman J.E.E. 2004 and Ors. 2005 (Supp.) OLR 528:
In this batch of cases, the dispute was relating to refusal for admission to the M.B.B.S. Course by providing reservation of 3% seats to persons under disability in accordance with the provision in Disabilities Act, 1995. Their Lordships held that the provision in Section 39 should be applied in letter and spirit.
(12) Krishna Priya Ganguly etc. etc. v. University of Lucknow and Ors. etc. : [1984]1SCR302 :
In this case, certain Writ Petitions were entertained by the Allahabad High Court, which were filed by unsuccessful candidates of Medicine Courses, by ignoring relaxation or dispensing with statutory rules and Govt. Orders and giving ex parte directions for admission of candidates, the Hon'ble Supreme Court inter alia observed that:. The High Court under Article 226 cannot ignore the rule framed by the Admissions Committee nor can it device it's own criteria for admission. It is a matter for decision of the academic body. In the academic body makes the marks obtained in M.B.B.S. Examination the criteria, admission has to be made by such criteria. Where the academic body applies the rules in a bonafide manner to all the candidates equally the High Court has no jurisdiction to interfere with the internal working of the Academic Institutions. The High Court can neither relax or rewrite the rules nor grant admission to a per son, who is appreciable below the required merit on ground of his having a diploma.
6. We take up each category of cases one after the other and take into account the relevant citations noted above.
7. Dr. N. Singh, Petitioner in W.P.(C) No. 3544 of 2007 claims for compensatory adjustment in the P.G. (Medical) Course-2007 because of non-providing her an admission in the vacant seat in the year 2005 course. In view of the ratio in the case of Dr. Ajay Pradhan (supra), the case of the Petitioner is without any merit and accordingly dismissed. However, we reiterate the observation made in the said citations by directing the authorities to take into account any existing vacancy and to fill up that vacancy by giving admission to the eligible candidate in accordance with law so that a seat does not go waste on the face of the Government spending so much of money for undertaking an continuing the P.G. (Medical) Course.
8. In W.P.(C) No. 3596 of 2007, Dr. Raj Kishor Patra Petitioner claims for the benefit said to be going in his favour from Section 39 of the Disabilities Act, 1995. We may note here that, in the above Context, the ratio in the case of D.S. Rashmi Ranjan (supra) is not admissible for the following facts and circumstances. 119 seats are assigned to the Medical Colleges in the State of orissa for undertaking the P.G. course as per the orders of the Medical Council of India. 50% of such seats have been reserved for in service candidates whereas 50% for the direct candidates. In Clause 14 of the Prospectus of 2007 it has been provided as follow:
14. SELECTION OF CANIDATES:
14.1 Candidates shall be selected in order of merit from each category : Dr. admission by Counseling and the order of Counselling shall be ST (in-service), SC (in-service), S(Direct), SC (Direct), PH (in-service), PH (direct), Children for Service/Ex-service Personnel (Direct), General (in-service), General (Direct) candidates.
14.2 Selection of ST/SC candidates:
14.2.1 In case of no availability of eligible ST (in-service) candidates, the unfilled seats of their quota will be merged with SC (Inservice) seats and the total seats thus derived shall be filled-up by SC (Inservice) candidates.
14.2.2 The unfilled ST (in-service) and SC (in-service) seats if any, shall be merged with the ST (Direct) and SC (Direct) seats respectively.
14.2.3 In case of non-availability of ST (Direct) candidates, the unfilled seats will be merged with SC (Direct) seats and the total seats thus derived shall be filled up by SC (Direct) candidates.
14.2.4 The seats of SC & ST (in-service and direct) candidates if left unfilled/vacant shall be filled up by Genera category (in-service and direct) candidates respectively (in-service and direct).
14.3 Selection of Physically Handicapped Candidates
14.3.1 If eligible physical handicapped candidates (in-service and direct) are not available, the seats shall be filled up by General (in-service) and General (Direct) candidates respectively.
14.4 Selection of Candidates Under quota of Children/Spouse of Service/Ex-service personnel:
9. The above quoted provision indicates that on each category of reservation, i.e., in-service candidates and direct candidates, there is reservation for Scheduled Castes, Scheduled Tribes and Physically Handicapped persons and the percentage therein have been assigned appropriately. Claim of the Petitioner is that when a physically handicapped doctor from the in-service category is not available, then that seat should be allotted to a direct candidate belonging to the disabled category. Such a contention cannot be entertained and also that is not the mandate of law in Section 39 so as to de-reserve in-service quota to be converted to General category. Under such circumstance, we do not find any illegality or violation of the principle of Article 14 or 16 of the Constitution of India or Section 39 of the Disabilities Act, 1995. For such reasons, the claim of the Petitioner is devoid of merit and accordingly W.P.(C) No. 3596 of 2007 is dismissed.
10. As noted earlier, in most of the Writ Petitions there has been a claim for Counseling separately for the doctors who had acquired qualification for admission in the year 2006. In that context, notwithstanding the contention and the counter of the Government providing suggestion and the exclusions in the Judgments in the case of Dr. Bhupesh Ku. Nayak (supra), we find that the batch of in-service candidates of 2006 were deprived of the process of selection and admission. But then in view of the guidelines provided by the Apex Court in the case of Medical Council of India v. Madhu Singh (supra) and the follow up action taken by the Medical Council of India, which is evident from the Prospectus 2005 as well as 2007, a dead line was fixed for application for entrance examination in each of the years. This batch of Writ Petitioners or any other eligible candidates of the year 2006 did not agitate against the inaction of the State Government and at this belated stage their grievance cannot be ventilated in view of the above noted ratio in the case of Madhu Singh (supra). For the said reason, we are not in a position to grant any relief to them. However, the State Govt. may consider this aspect for formulating any policy to provide any relief in their favour in future.
11. In W.P.(C) No. 31 of 2007 and W.P.(C) No. 978 of 2007 claims have been made for following the Prospectus of 2005 by including the doctors working in the Public Sector Undertakings of the Central Govt. as well as State Govt. to benefit the in-service candidates. In that respect, contention of the respective Petitioners is that they adhered to the parameter of 'rural service' and simply because of their employment under Public Sector Undertakings, the State Government cannot discriminate them. Discrimination is a term, which can be attributed if persons equally situated are treated differently. The doctors serving under the State Government and the doctor serving under the Public Sector undertakings are not under the same terms of employment with same service benefits. The doctors under the Public Sector undertakings are not within the control of the State Government. Their position to compete as a direct candidate therefore cannot be found to be an act of discrimination. Under such circumstance, unless the State Government formulates a policy in their favour, while exercising the jurisdiction under article 226 of the Constitution, we do not feel it proper to impose a policy, which does not appear reasonable to the government. For the reasons indicated above, we do not find any illegality in the Prospectus in omitting the doctors from the Public Sector Undertaking, to be in-service candidates.
Accordingly, both the Writ Petitions are dismissed.
12. Challenge has been made in several Writ Petitions (as noted above) as against grant of 10% weightage to the in-service doctors who have rendered service of five years or more and out of that they have rendered service in KBK/tribal/rural areas minimum for a period of three years, and in case of other doctors appearing as the direct candidates weightage of 5% marks if they have served in the KBK/tribal/rural areas, as per Clause 11.2 of the Prospectus which was subsequently corrected as per the Corrigendum (Annexure-1 in W.P.(C) No. 2003 of 2007). In view of the ratio in the case of State of M.P. and Ors. v. Gopal D. Tirthani (supra), grant of such weightage is neither illegal nor unjustified. Therefore, the other decision cited in that respect cannot be followed in view of the rules on precedent.
13. It is claimed by some of the in-service candidates who have rendered service of five years or three years in rural/tribal/KBK areas but not in the merit list that they should be provided wit that weightage of 10% and 5% marks and in that event their marks would enhance. One such specific case is the Writ Petition filed by Dr. P.K. Dey (W.P.(C) No. 3805 of 2007. Similarly claim has also been made by doctors in other Writ Petitions i.e., W.P.(C) Nos. 2845 of 2007 and 3326 of 2007. The additional percentage of 10% and 5% marks are provided to the selected candidates and not the candidates in general who are in-service on the date of application. Under such circumstance, the claim in that respect by the Petitioners is impermissible under the existing policy and the Prospectus. In that respect also we do not find any illegality in fixing the norms in the Prospectus.
14. For the reasons stated above, we do not find any merit in any of the Writ Petitions so as to interfere with the Counseling or admission to the P.G. (Medical) Course as per the merit list prepared and, accordingly all the Writ Petitions are dismissed. Under the given facts and circumstances, We do not award any cost.
In view of disposal of all the Writ Petitions, the interim order of stay passed In 05.04.2007 stands vacated.