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2000 DIGILAW 47 (ORI)

Nishant Poddar v. State of Orissa

2000-01-28

L.MOHAPATRA, PRADIPTA RAY

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JUDGMENT L. MOHAPATRA, J. — The petitioner in this writ application challenges the intimation under Annexure-3 cancelling the call letters for counselling to take admission into the Post Graduate Course in medical college of the State. 2. The case of the petitioner is that the prospectus for selection of candidates for Post Graduate Course in Government medical colleges of Orissa along with application forms were published and made available for sale with effect from 3.8.1999. The petitioner purchased the form and submitted the same whereaf¬ter an admit card was issued to him with Roll No. 3466. The peti¬tioner appeared in the examination held on 29.8.1999 and on 9.10.1999 the results were declared and the petitioner was placed at Sl. No. 37 in the merit list. Vide letter dated 11.10.1999 the petitioner was directed to appear personally for counselling which is the subject matter of Annexure-2. Though the counselling was scheduled to be held on 27.10.1999 and 28.10.1999, the petitioner received a letter dated 14.10.1999 cancelling the call letter under Annexure-2. 3. Shri R. K. Rath, learned counsel appearing for the petitioner, submits that Clause 2 of the prospectus stipulates that the candidates are required to fulfil the eligibility re¬quirements by 31st March, 1999 for the session of 2000. He fur¬ther submits that the eligibility criteria as enumerated in the prospectus, i.e., from Clauses 6.1 to 6.8 are fulfilled by the petitioner, and that under Clause 6.8 candidates who are undergo¬ing M.D./M.S. Course in a particular subject in any of the medi¬cal institutions of Orissa shall not be eligible to apply for M.D./M.S.Course in the subsequent years. According to him, the call letter has been cancelled taking recourse to this clause, although the same does not apply to the petitioner. He further submits that this eligibility criterion as enumerated under Clause 6.8 has to be read with reference to Clause 2 as stated earlier and if it is so done, the petitioner was not undergoing M.D. or M.S. Course in any of the medical institutions of Orissa on the material date, i.e. 31st March, 1999 and accordingly he was eligible to apply. It is further submitted that Clause 6.8 debars a candidate undergoing M.D./M.S. Course to apply for admission in subsequent years, but in the present case the peti¬tioner was not undergoing M.D. or M.S. Course on 31st March, 1999 and moreover he had applied for the disputed Post Graduate Course in the same year in which he applied for All India P.G. Entrance Examination, 1999. 4. It is necessary to refer to relevant clauses of the prospectus in order to appreciate the arguments advanced by Shri Rath as well as the learned Additional Government Advocate. Clause 2 of the prospectus runs as follows : “2. COMMENCEMENT OF SESSION : The admission will be made once in a year. The academic session commences from 2nd May, 2000 unless otherwise notified. The candidates are required to fulfil the eligibility requirement by the 31st March, 1999 for the Session of 2000.” This clause clearly indicates that a candidate applying for admission into the Post Graduate Course for the Session 2000 has to fulfil all the eligibility requirements by 31st March, 1999. The eligibility criteria as mentioned in the prospectus contain several factors out of which Clause 6.8 is as follows : “6.8 Candidates who have completed M.D./M.S.Course or under¬going M.D./M.S. Course in a particular subject in any of the medical institutions of Orissa shall not be eligible to apply for M.D./M.S.Course in the subsequent years.” 5. It appears from the counter filed by opposite party No. 2 that the petitioner took admission into M.S. (ENT) Course at V.S.S. Medical College, Burla in the academic session starting from 2.5.1999 and the application for admission into Post Graduate Course for the Session 2000 was filed by the applicant on 13.8.1999. It is alleged that in column No. 13 of the application form the petitioner deliberately suppressed the fact that he was prosecuting M.S.Course and on the basis of the decla¬ration given by the petitioner he was allowed to take the entrance examination. After issuance of the call letter for counselling when it was detected that the petitioner was prosecuting M.S.Course in V.S.S. Medical College, Burla, the call letter was recalled/cancelled as he was not eligible to apply, in view of Clause 6.8 as indicated above. 6. After issuance of the call letter for counselling when it was detected that the petitioner was prosecuting M.S.Course in V.S.S. Medical College, Burla, the call letter was recalled/cancelled as he was not eligible to apply, in view of Clause 6.8 as indicated above. 6. Clause 2 of the prospectus clearly indicates that a candidate must fulfil all the eligibility requirements by 31st March, 1999 for the Session 2000 and Clause 6.8 is one of the eligibility criteria, as is evident from the prospectus. Admit¬tedly the petitioner was not prosecuting M.S. or M.D.Course in any subject in any of the medical institutions of Orissa on 31st March, 1999 and therefore, he was eligible to apply. Though we are of the view that the petitioner should have explained that in the application form, we cannot regard such non-disclosure as suppression of any material fact as the eligibility criteria were to be satisfied with reference to 31st March, 1999 and he was not prosecuting M.D. or M.S. Course on 31st March,1999. We are of the view that Clause 6.8 of the prospectus has to be read conjointly with Clause 2. Therefore, the petitioner was eligible to apply for M.D./M.S. Course as on 31st March, 1999. 7. The learned counsel for the State submits that the corri¬gendum under Annexure-5 shows that the intention of the P.G. Selection Committee was to introduce Clause 6.8 as an independent clause. Paragraph 4 of the said corrigendum runs as follows : “4. A new Clause 15.5 will be added in both prospectus 1998 and 1999 as : Candidates who have completed MD/MS course or undergoing MD/MS course in a particular subject in any of the Medical Insti¬tutions of Orissa shall not be eligible to apply for MD/MS course in the subsequent years.” We do not find any force in the contention as the said clause has been introduced in the prospectus as one of the eligi¬bility criteria. 7. The learned counsel for petitioner has relied upon a decision reported in AIR 1999 Supreme Court 943 : Utkal Universi¬ty v. Dr. Nrusingha Charan Sarangi. In the said case, Dr. Nrusingha Charan Sarangi was one of the candidates for the post of Lecturer in Oriya and one of the points raised was that after expiry of the last date for submitting applications and before the interview he had acquired D. Litt Degree. Nrusingha Charan Sarangi. In the said case, Dr. Nrusingha Charan Sarangi was one of the candidates for the post of Lecturer in Oriya and one of the points raised was that after expiry of the last date for submitting applications and before the interview he had acquired D. Litt Degree. However, no marks had been awarded to him by the Selection Committee for obtaining D. Litt. Degree. Though the case had not been decided on this question, however, their Lordships were of the view that since on the date of application the concerned Lecturer had not acquired the D. Litt. Degree, the same could not have been considered by the Selection Committee. Though this decision is not directly on the point, but it indicates that eligibility is to be considered with reference to the date specified for the purpose or with reference to last date for submitting application, where no separate date has been prescribed. 8. The learned Additional Government Advocate strenuously argued that the whole purpose of introduction of the clause was that persons who are prosecuting M.S. or M.D. Course in any of the medical institutions of the State should not be allowed to again take admission in subsequent years. Since admittedly the petitioner is prosecuting M.S.Course in ENT in V.S.S. Medical College, Burla, the said clause should be applied and the petitioner should not be allowed to take admission again in the P.G.Course. We are unable to agree with the contention of the learned Additional Government Advocate, in view of the reasons indicated earlier. 9. The further question that arises is that the petitioner having secured 37th position in the merit list, whether he should be allowed to have a choice of his subject at this stage when the counselling is already over and students are prosecuting their studies. As it appears from the order dated 26.10.1999, the Hon’ble Vacation Judge in Misc. Case No. 12231 of 1999 had di¬rected that the selection for the Post Graduate Course in medical colleges of Orissa for the year 2000 shall be subject to the result of the writ application. Shri Rath, learned counsel ap¬pearing for the petitioner, drawing our attention to Clause 13.6 of the prospectus submits that a subject of choice may be avail¬able as vacant All India Reserve Seats shall be allotted to direct general candidates. Shri Rath, learned counsel ap¬pearing for the petitioner, drawing our attention to Clause 13.6 of the prospectus submits that a subject of choice may be avail¬able as vacant All India Reserve Seats shall be allotted to direct general candidates. We, accordingly, allow the writ appli¬cation and direct the Convenor, P.G.Selection Committee-2000-cum-Principal, VSS Medical College, Burla, to call the petitioner for counselling and admit him as per the subject of his choice keeping in mind his position in the merit list, if such a seat in the subject chosen by him is available either under the State quota or All India quota. PRADIPTA RAY, J. I agree. Petition allowed.