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2012 DIGILAW 188 (ORI)

Satyabrata Sahoo v. State of Orissa

2012-04-09

B.N.MAHAPATRA, V.GOPALA GOWDA

body2012
JUDGMENT V. GOPALA GOWDA, C.J. - Since common questions and identical facts are involved in these writ appeals, they are heard together and are being disposed of by this common judgment. 2. These appeals have been filed by the appellants who are direct candidates and have appeared Entrance Examination for Post-Graduate (Medical) Selection-2012, Odisha challenging the common judgment dated 23.03.2012 passed by the learned Single Judge in W.P.(C) Nos.909, 2204 and 850 of 2012, urging various facts and legal contentions. Further, they have prayed to set aside the impugned judgment by quashing the impugned notification challenged in the writ petition, issued by respondent No.2-Director of Medical Education and Training and opposite party No.3-Section Committee, P.G. (Medical) Selection Committee, 2012, represented through its Chairman, namely Director, Medical Education and Training, Khurda. 3. It is contended by the learned Senior counsel Mr. S.K. Padhi and Mr. B. Routray that Clause 11.2 of the Prospectus for Selection of Candidates for Post-Graduate (Medical) Courses in the Government Medical Colleges of Odisha for the academic year 2012 is not only illegal but also contrary to the law laid down by this Court in W.A. No.270 of 2011 disposed of on 06.05.2011 wherein this Court has followed the decision of the Hon'ble Supreme Court in the case of State of M.P. & others v. Gopal D. Tirthani and others, JT 2003 (6) SC 204 and Dr. Shehalata Pattnaik v. State of Orissa, (1992) 2 SCC 26 and also the law laid down by the Full Bench of this Court in the case of Salil Kumar Naik v. State of Orissa, AIR 1988 Orissa 196, 1988 (1) OLR 301. Shehalata Pattnaik v. State of Orissa, (1992) 2 SCC 26 and also the law laid down by the Full Bench of this Court in the case of Salil Kumar Naik v. State of Orissa, AIR 1988 Orissa 196, 1988 (1) OLR 301. Further in the said appeal, the appellants have prayed for quashing the similar notification i.e. MCI Notification No.51210 dated 17.11.2009 issued by opposite party Nos.2 and 3 providing weightage marks to the in-service candidates of the State Government who have qualified in Entrance Examination and have worked in remote tribal/backward area as per the list vide G.O. No.325/H dated 03.01.1997 shall be awarded additional weightage of 10% of marks secured in the P.G. Entrance Examination per year of combined service in Rural/Tribal/Backward areas subject to maximum of 30% of marks secured in the Entrance examination for the purpose of selection and allotment of seats in the P.G. (Medical) Course in the Government Medical Colleges of Orissa for the academic year 2012 which action of the respondent Nos.2 and 3 is a clear case of discrimination and violation of Article 14 of the Constitution of India. It is further contended that providing additional weightage marks to the in-service doctors who have rendered service in the above areas amounts to making an artificial differentiation between a homogenous class i.e. direct candidates. Discrimination between the in-service candidates who have been in the Government employment or public sector undertakings under the control of the State Government, who have less than 5 years of service though such candidates secured more marks in the P.G. Entrance Examination for non-completion of 5 years, of service in anyone of the areas as stipulated under Clause 11.2 of the said prospectus they will not be benefited, whereas the doctors who have completed five years of service they will get additional weightage of 30% marks will be added to the marks secured by the in-service candidates in the entrance examination. On account of, the additional weightage benefit given to the doctors, who have rendered less than five years of service in Rural/Tribal/Backward areas both in Government of Orissa or Public Sector undertakings owned by the State Government, will be in a better advantageous position and that would amount to drawing an artificial differentiation between a homogenus class i.e. direct candidates and in-service candidates and also within the in-service candidates which action of the above respondent Nos.2 and 3 would hit by Article 14, of the Constitution of India and would , further amounts to providing horizontal reservation within the seats meant for in-service candidates. Further, the Hon'ble Supreme Court in the aforesaid case State of M.P. and others v. Gopal D. Tirthani and Ors., has held that it amounts to horizontal reservation which is not permissible in the P.G. (Medical) Course by applying the decision of the Hon'ble Supreme Court in the case of State of Uttar Pradesh and Ors., v. Pradip Tandon and Ors., (1975) 1 SCC 267 . Earlier some of the direct candidates who had made application pursuant to Prospectus of 2011, approached this Court by filing a writ petition bearing W.P.(C) No.5778 of 2011 challenging the MCI Notification No.51210 dated 17.11.2009 on the ground that in the event the in-service candidates who have rendered less than five years of service will be allowed to get additional weightage as per said notification, it will amount to granting horizontal reservation in the seats meant for the direct candidates, which is not permissible in the eye of law. The learned Single Judge after hearing learned counsel for the parties was pleased to allow the said writ petition and quash the notification giving additional weightage to the in-service candidates, who have rendered less than five years of service on the ground that the same is contrary to law and in violation of Article 14 of the Constitution of India. Thereafter, a writ appeal bearing W.A. No.270 of 2011 was filed challenging the order of the learned Single Judge passed in W.P.(C) No.5778 of 2011, which was dismissed by a Division Bench order of this Court dated 06.05.2011 which was also the subject matter of SLP Nos. 16143-16145 of 2011 before the Hon'ble Supreme Court. The SLP was dismissed with a finding of fact stating that there is no merit. 16143-16145 of 2011 before the Hon'ble Supreme Court. The SLP was dismissed with a finding of fact stating that there is no merit. Despite, the said order similar notification is again issued by opposite party. Nos.2 and 3 which is bad in law and therefore, it is urged on behalf of the appellants that the same is liable to be quashed after setting aside the order of the learned Single Judge. 4. It is further submitted that the category of candidates has been defined under Clause 6 of the Prospectus for Selection of candidates for P.G. (Medical) Courses under Annexure-2, wherein it is clearly reveals that the direct candidates have categorized under, Clauses 6.1, 6.1.1 and 6.1.2 and 6.1.3. Insofar as in-service candidates are concerned, it has been provided in Clause 6.2.1. In the said prospectus, Clause 11.2 provides that those candidates who are in employment in Government of Odisha/Government of Odisha undertaking, (Both direct and, in-service) and, who have qualified in the Entrance Examination and, have worked in Rural/Tribal/Backward areas (as per the list vide G.O. No.325/H Dt. 03.01.1997) shall be awarded an additional weightage of 10% of the marks secured in the P.G. Entrance Examination per year of completion of service (in Rural/Tribal/Backward area-s), subject to maximum of 30% of marks secured in entrance examination, vide MCI Notification No.51210/ dt. 17.11.2009. 5. It further submitted that the learned Single Judge has ignored the judgment of the, Hon'ble Supreme Court in the cases of Gopal D. Tirthani and Dr. Shehalata Pattnaik (supra.) and the Full Bench decision of this Court in Salil Kumar Naik (supra) upon which strong reliance was placed by the appellants and has dismissed the writ petitions. Hence, the present appeals filed by the appellants seeking to set aside the impugned judgment dated 23.03.2012 passed by the learned Single Judge in W.P.(C) Nos.909, 2204 and 850 of 2012. 6. Mr. S.K. Padhi, learned Senior Advocate and Mr. Hence, the present appeals filed by the appellants seeking to set aside the impugned judgment dated 23.03.2012 passed by the learned Single Judge in W.P.(C) Nos.909, 2204 and 850 of 2012. 6. Mr. S.K. Padhi, learned Senior Advocate and Mr. B. Routray, learned Senior Advocate appearing on behalf of the appellants contended that the classification of direct and indirect candidates under the aforesaid clauses and providing additional weightage to the doctors who have rendered service in the Rural/Tribal/Backward areas not only amounts to discrimination between the in-service candidates who have not rendered five years of service in the said areas of the State of Odisha to get weightage marks upto 30% and also the direct candidates though 50% of seats are reserved against the direct candidates and more than 50% i.e. remaining 87 seats out of 173 which will be for in-service that will be more than direct candidates thereby they are discriminated. The doctors who fall within the same class by classifying them as direct and in service candidates providing additional weightage to the in-service doctors who have been working in the State Government and State owned Public Sector undertakings in the Rural/Tribal/Backward areas which notification has no nexus to the object sought to be achieved. Therefore, the notification is in violation of Article 14 of the Constitution of India as it discriminates the doctors who are in-service of the State Government and State owned public sector undertakings, who constitutes a homogenous class by themselves also direct candidates who are not in-service, therefore, the impugned notification is liable to quashed. 7. It is further submitted that the learned Single Judge has failed to appreciate the fact that the classification drawn under Clause 6 of the Prospectus, 2012 in between the candidates who have completed more than five years of service and less than five years of service and direct candidates is unreasonable and it has no nexus with the object sought to be achieved. In absence of Regulations framed by the Medical Council of India in exercise of its power conferred under Section 33 of the MCI Act, 1956, Clause 6 of the Prospectus 2012 referred to supra regarding classification of direct and in-service candidates and further classification of in-service candidates under Clause 11.2 providing weightage marks to the doctors who have worked in the Rural/Tribal/Backward areas is hit by Article 14 of the Constitution of India and it is a clear case of artificial discrimination between the direct, in-service candidates and candidates within the in-service. It is urged that this important legal aspect of the matter has not been examined by the learned Single Judge, while dismissing the writ petitions. Therefore, learned Senior counsel for the appellants pray to allow the appeals and set aside the impugned judgment dated 23.03.2012 passed by the learned Single Judge and quash the notification as prayed for in the writ petitions. 8. Mr. R.K. Mohapatra, learned Government Advocate appearing for respondent No.1 and Mr. R.C. Mohanty, learned Counsel appearing for respondent Nos.2 and 5 sought to justify issuance of the notification placing strong reliance upon the very same judgment of the Hon'ble Supreme Court in the case of State of M.P. and others v. Gopal D. Tirthani (supra), wherein in the said judgment at paragraph 34, the Hon'ble Supreme Court after placing reliance upon the decision in the case of State of Uttar Pradesh and Ors. v. Pradip Tandon and Ors., (1975) 1 SCC 267 held that reservation in favour of people in 'hill areas' was held to be constitutionally valid as they are socially and educationally backward classes of citizens. Reservation in favour of 'rural areas' was found difficult to accept as it was sought to be justified on the test of poverty as a determining factors of social backwardness. It is submitted that in view of the law laid down in Pradip Tandon's case (supra), assigning of weightage for service rendered by the doctors in the rural/tribal areas do not at all affect in any manner the candidates in open category/direct candidates. The weightage marks to be awarded would have the effect of altering the order of merit only as amongst the candidates entering through the exclusive channel of admissions meant for in-service candidates within the overall service quota. The weightage marks to be awarded would have the effect of altering the order of merit only as amongst the candidates entering through the exclusive channel of admissions meant for in-service candidates within the overall service quota. Further placing reliance in the said judgement in sub-para (4) of paragraph 37 submits that weightage benefit to the in-service candidates is permissible in law. Concluding arguments, Mr. Mohanty, learned Counsel for P.G. (Medical Selection Committee and MCI prays for dismissal of the writ appeals. 9. On the rival, factual and legal contentions advanced by the learned counsel on behalf of the parties, the following points arise for consideration by this Court :- (i) Whether the impugned judgment dated 23.03.2012 passed by the learned Single Judge in W.P.(C) No.909, 2204 and 850 of 2012 is vitiated in law which requires interference of this Court. (ii) What order ? 10. Our answer to point No.(i) is in negative for the following reasons: The contention urged on behalf of the appellants that no Regulations has been framed by the MCI in exercise of power under Section 33 of the MCI Act, 1956 with regard to classification of, direct and in-service candidates and to award weightage marks to the in-service candidates who have been working in the Rural/Tribal/Backward areas is not factually correct. Mr. Mohanty, learned counsel for P.G. (Medical) Selection Committee and MCI has rightly placed reliance upon the Regulations namely, "Postgraduate Medical Education Regulations, 2000" which was published in Part-III, Section 4 of the Gazette of India on 7th October, 2000. Referring to clause 3 of the MCI notification dated 17th November, 2009, it is stated that the following proviso shall be added after clause 9(2)(d) of the Postgraduate Medical Education (Amendment) Regulation, 2000 as amended by "Postgraduate Medical Education (Amendment) Regulations, 2009 (Part II). The First proviso of clause 9(2)(d) of the Regulation provides for the 'Entrance Test' for PG Admission that will be held by the State Government or any authorized examining body. By notification dated 17.11.2009 under Clause 3 it is stated thus :. "3. The First proviso of clause 9(2)(d) of the Regulation provides for the 'Entrance Test' for PG Admission that will be held by the State Government or any authorized examining body. By notification dated 17.11.2009 under Clause 3 it is stated thus :. "3. The following proviso shall be added after clause 9(2)(d) of the Postgraduate Medical Education (Amendment) Regulation, 2000 as amended by "Postgraduate Medical Education (Amendment) Regulations, 2009 (Part II) : Further provide that in determining the merit and the entrance test for postgraduate admission weightage in the marks may be given as an incentive at the rate of 10% of the marks obtained for each year in service in remote or difficult areas upto the maximum of 30% of the marks obtained." 11. Therefore, providing additional weightage to the in-service candidates who will be working in the areas referred to in the above said Regulation is very much incorporated in the Regulations and on the basis of the same, the respondent Nos.2 and 3 have classified the doctors as direct candidates and in-service candidates under Clauses 6.1., 6.1.1., 6.1.2 and 6.1.3 and 6.2 & 6.2.1 respectively. Clause 11.2 of the Prospectus 2012 is with regard to additional weightage marks to be awarded in favour of such in-service candidates which is in conformity with the Clause 9(2)(d) and Clause 3 of the Notification dated 17.11.2009 (part-II) pursuant to the Post-graduate Medical Education (Amendment) Regulations, 2009 (part-II). Therefore, arguments advanced by learned Senior Advocates appearing on behalf of the appellants is wholly untenable in law. Further, the said additional weightage benefit is not creating any discrimination between the doctors of either in-service or direct category candidates nor amounts to horizontal reservation as contended by the learned Senior Counsel on behalf of the appellants. The object of Clause 11.2 in the Prospectus is to see that the doctors who are working in the Rural/Tribal/Backward areas and have been rendering medical services and medical help to the residents of those areas as well as to the weaker sections of the society, who are socially and economically disadvantaged persons, are given additional weightage for rendering their services in those areas. Therefore, incorporation of clause 11.2 in the Prospectus, 2012 by respondent Nos.2 and 3 regarding to award additional weightage marks in favour of in-service candidates who have fulfilled the criteria as provided under Clause 11.2 of the Prospectus cannot be termed as horizontal reservation as it is rightly held by the Hon'ble Supreme Court in the case of State of M.P. and others. v. Gopal D. Tirthani (supra), wherein at paragraph 34 with reference to State of U.P. and others v. Pradip Tandon (supra), it is stated that reservation in favour of people in 'hill areas' held to be constitutionally valid. Paragraph 34 in the case of State of M.P. and others. v. Gopal D. Tirthani (supra), is extracted below: - "34. In Pradip Tandon's case reservation in favour of people in "hill areas" and Uttarakhand was held to be constitutionally valid as they were socially and educationally backward classes of citizens. Reservation in favour of "rural areas" was found difficult to accept as it was sought to be justified on the test of poverty as the determining factor of social backwardness. The Court observed that rural element does not make a class by itself because it could not be accepted that the rural people are necessarily poor or socially and educationally backward just as the urban people are not necessarily rich. We may hasten to observe that what was being dealt with in Pradip Tandon case was a reservation and not a weightage. The case at hand presents an entirely different scenario. Firstly, it is a case of post-graduation within the State and not an all-India quota. Secondly, it is not a case of reservation, but one of only assigning weightage for service rendered in rural/tribal areas. Thirdly, on the view of the law we have taken hereinabove, the assigning, of weightage for service rendered in rural/tribal areas does not at all affect in any manner the candidates in open category. The weightage would have the effect of altering the order of merit only as amongst the candidates entering through the exclusive channel of admissions meant for in-service candidates within the overall service quota. The statistics set out in the earlier part of the judgment provide ample justification for such weightage being assigned. The weightage would have the effect of altering the order of merit only as amongst the candidates entering through the exclusive channel of admissions meant for in-service candidates within the overall service quota. The statistics set out in the earlier part of the judgment provide ample justification for such weightage being assigned. We find merit and much substance in the submission of the learned Advocate-General for the State of Madhya Pradesh that Assistant Surgeons (i.e. medical graduates entering the State services) are not temperamentally inclined to go to and live in villages so as to make available their services to the rural population; they have a temptation for staying in cities on account of better condition, better facilities and better quality of life available not only to them but also to their family members as also better educational facilities in elite schools which are to be found only in cities. In-service doctors being told in advance and knowing that by rendering service in rural/tribal areas they can capture better prospectus of earning higher professional qualifications, and consequently eligibility for promotion, acts as a motivating factor and provides incentive to young in-service, doctors to opt for service in rural/tribal areas. In the set-up of health services in the State of Madhya Pradesh and the geographical distribution of population, no fault can be found with the principle of assigning weightage to the service rendered in rural/tribal areas while finalizing the merit list of successful in-service candidates for admission to PG courses of studies. Had it been a reservation, considerations would have differed. There is no specific challenge to the quantum of weightage and in the absence of any material being available on record we cannot find fault with the rule of weightage as framed. 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." 12. Therefore, the weightage marks to be added for those in-service doctors who have rendered service in the Rural/Tribal/Backward areas and qualified in the Entrance Examination cannot be termed as horizontal reservation as it is only the weightage of marks given for rendering service to the people of Rural/Tribal/Backward areas in view of the law laid down by the Apex Court in the case of State of M.P. and others. v. Gopal D. Tirthani (supra) in sub-para (4) of paragraph 37 which is extracted hereunder : "It is permissible to assign a reasonable weightage for service rendered in rural/tribal areas by in-service candidates for the purpose of determining inter se merit within the class of in-service candidates who have qualified in the pre-PG test by securing the minimum qualifying marks as prescribed by the Medical Council of India." 13. In view of the law laid down by the Hon'ble Supreme Court in State of M.P. and others, v: Gopal D. Tirthani (supra), the grounds urged in the writ appeals that classification of candidates and providing weightage marks under Clause 11.2 of the Prospectus is in violation of Article 14 of the Constitution is wholly untenable in law. Therefore, classification of the candidates as per Clause 6 and sub-clauses referred to supra, providing weightage marks to such in-service candidates as per clause 11.2 of the Prospectus 2012 for selection of Post-Graduate (Medical) Courses in the Government Medical Colleges of Orissa cannot be termed as discrimination between the direct and in-service candidates and among the in-service candidates. Apart from this, the learned Single Judge has rightly rejected the writ petitions. The view taken and the findings recorded by the learned Single Judge in the impugned judgment is in conformity with the Regulations and the judgment of the Hon'ble Supreme Court in the case of State of M.P. and others v. Gopal D. Tirthani (supra), upon which Mr. Mohanty, learned counsel on behalf of respondent Nos.2 to 5 has rightly placed reliance. Therefore, the decisions of the Hon'ble Supreme Court referred to supra upon which Mr. Routray and Mr. Padhi, learned Senior Advocates have relied upon in support of the case of the appellants, have no application to the facts situation and the writ appeals are liable to be rejected. 14. The reliance placed upon the order dated 06.05.2011 passed by the Division Bench of this Court in W.A. No.270 of 2011 cannot be applied to the facts situation as the subsequent notice issued by the Convenor, P.G. (Medical) Selection Committee, 2011 was published in the daily Odia Newspaper "The Samaja" on 07.03.2011 after the examination was conducted on 23.01.2011 and before declaration of result of the said examination. Therefore, the learned Single Judge was of the view that the weightage benefit as stated in the said notice dated 07.03.2011 cannot be extended to the in-service candidates as the admission process shall go on the basis of the criteria stipulated in the Prospectus 2011. Further, paragraphs 34 and 37(4) of the judgment of tile Hon'ble Supreme Court in the case of State of M.P. and others v. Gopal D. Tirthani (supra) were not noticed by this Court in the above Writ Appeal order which provides reservation for the P.G. Medical Selection and weightage benefit can be extended in favour of the in-service candidates who have been working in the Rural/Tribal/Backward areas. Therefore, the decision of the Hon'ble Supreme Court in the case of State of M.P. and others v. Gopal D. Tirthani (supra) supports the case of the respondents. 15. In view above, we don't find any good reason to interfere with the judgment dated 23.03.2012 passed by the learned Single Judge in W.P.(C) Nos.909, 2204 and 850 and 2012. Accordingly this Court affirms the impugned judgment of the learned Single Judge. 16. The writ appeals are dismissed being devoid of merit. 17. Since, we dismiss the appeals bearing W.A. Nos.120 and 121 of 2012 affirming the order of the learned Single Judge, we don't find any good reason to proceed further in the contempt proceedings. 18. The contempt proceedings bearing CONTC No.174 of 2012 arising out of W.A. Nos.270, 271 and 278 of 2011 is dropped accordingly. Appeal dismissed.