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2012 DIGILAW 514 (ORI)

Biranchi Narayan Mohapatra v. State of Odisha

2012-11-20

B.N.MAHAPATRA, V.GOPALA GOWDA

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JUDGMENT V. GOPALA GOWDA, C.J. : Petitioner is before this Court by filing a writ petition on 05.11.2012 seeking for issuance of a direction to the opposite parties to consider the petitioner under in-service category merit list to prepare as per the direction of the Hon’ble Supreme Court for admission into PG Medical Course for the year 2012 and accordingly counseling be made to him to fill up the seat of in-service candidate of PG Medical Course. 2.Strong reliance is placed by Mr. S.P. Mishra, learned Senior Advocate upon the judgment dated 11.04.2012 passed by this Court in W.A. No.78 of 2012, though he is not a party to the said proceeding in view of the aforesaid judgment the direction made to the authorities to treat the doctors who have been working in Public Sector Undertaking Hospitals both run by the Central Government and the State Government has to be treated as in-service candidates and they are entitled to be treated as in-service candidates and the merit list to be prepared and admit him to the PG Medical Course for the academic year 2012. It is stated by Mr. S.P. Mishra, learned Senior Advocate that the said judgment is not challenged by anybody and thereby it has attained finality. Therefore, the petitioner is entitled to avail the said benefit to be considered as in-service candidate in the merit list that is required to be prepared in terms of the order dated 30.10.2012 passed by the Hon’ble Supreme Court in Civil Appeal No.7724 of 2012. The said petition is opposed by the in-service candidates, Bhakta Charan Sahoo, son of Alekha Chandra Sahoo by filing affidavit and Dr. Mamata Samal, wife of Dillip Kumar Mallick by filing misc. case in the Court today, who are already in the in-service merit list of 2012 so also the in-service candidates of 2011 in Misc.Case No.18863 of 2012 also opposed the prayer of the petitioner. 3.In our considered view, having regard to the prayer made by the petitioner, whose prayer is opposed by both the in-service candidates of 2012 and 2011, are necessary and proper parties to the proceeding; therefore they are allowed to come on record and petitioner’s counsel is directed to serve copies of the writ petitions on their counsel and to amend the cause title of the brief suitably. 4.At the time of hearing this case, affidavit by intervenor-petitioner, Bhakta Chandra Sahoo is filed in the Court. In paragraph 5 of the said affidavit, it is stated that three petitioners vide W.P.(C) No.20922 of 2012 had approached this Court praying for being treated as in-service candidate on the basis of their service in PSU(s) controlled by Central Government. Accepting their case vide judgment dated 11.04.2012 rendered by this Court in W.A. No.78 of 2012, on 16.04.2012 another fresh merit list was published including the said three writ petitioners in the category of in-service candidates. In the said merit list dated 16.04.2012, petitioner’s name finds place at Serial No.1 under the category of direct candidates, and the revised list dated 16.04.2012 for in-service category changed/increased only to include the names of Dr. Abhay Kumar Ojha, Dr. Saroj Kumar Rout and Dr. Krishna Chandra Sahoo, who were petitioners in W.P.(C) No.20922 of 2012 and appellants in W.A. No.78 of 2012. It is further stated in the said affidavit that after delivery of judgment dated 11.04.2012 and publication of list dated 16.04.2012 he continued to enjoy the position of Srial No.1 rank under the direct candidates’ category. He did nothing to get his category changed to in-service by asserting before the authorities or Court that he has served in any PSU and entitled to the benefit of the judgment of this Court dated 11.04.2012 passed in W.A. No.78 of 2012. Therefore, his name need not be included in the revised merit list published and maintained by approaching at this stage. Thereafter, it is contended by Mr. R.K. Rath, learned Senior Advocate that the some candidates, who challenged the benefit of weightage clause granted by Odisha Government to the in-service candidates for serving in rural and tribal area before the Hon’ble Supreme Court in Civil Appeal Nos.5705-5706 of 2012 arising out of SLP (Civil) Nos.16201-16202 of 2012 and the Hon’ble Supreme Court found fault with treating the direct candidates as in-service candidates by extending the benefit of service weighage to them, excluding in-service candidates who got admission in the open category on the strength of weightage and allowed the Civil Appeal on 03.08.2012 with the following observations at paragraph 35 :- “... The State of Odisha, the Medical Council of India and respondents 1 to 4 are directed to take urgent steps to re-arrange the merit list and to fill up the seats of the direct category, excluding in-service candidates who got admission in the open category on the strength of weightage, within a period of one week from today and give admission to the open category candidates strictly on the basis of merit.” 5.The said judgment, on which strong reliance is placed, wherein direction given to State of Odisha, the Medical Council of India and respondents 1 to 4 were directed to take urgent steps to re-arrange the merit list and to fill up the seats of the direct category, excluding in-service candidates who got admission in the open category on the strength of weightage, within a period of one week from the date of passing of that judgment and to give admission to the open category candidates strictly on the basis of merit. 6.On the basis of the above judgment of the Hon’ble Supreme Court, the PG Medical Selection Committee prepared the ranking list in which petitioner finds place at Sl. No.72 and at that stage petitioner submitted Undertaking dated 09.08.2012 to the Convenor of PG Medical Selection Committee, 2012 requesting them to consider him as in-service category candidate as per the judgment of this Court in W.A. No.78 of 2012. The Undertaking dated 09.08.2012 is extracted hereunder :- “Undertaking As per the Direction of the Hon’ble Supreme Court in India Civil Appeal No.5705-5706/2012 a fresh merit list was prepared for the direct candidate on 07.08.2012 and I find place in the merit list and called to participate in the counseling today. I am PSU candidate and rendered my service for 9 years plus in rural/tribal areas. I am coming under In-Service category in adherence to the order passed by the Hon’ble High Court of Orissa W.A. No.78/2012 and Supreme Court of India Civil appeal No.5705-5706/2012. So I do not want to take admission in the direct category counseling. Hence, I do hereby undertake that, I will take my admission under the in-service category as per my merit list, when the in-service counseling will be conducted. Sd/- Dr. So I do not want to take admission in the direct category counseling. Hence, I do hereby undertake that, I will take my admission under the in-service category as per my merit list, when the in-service counseling will be conducted. Sd/- Dr. Biranchi Narayan Mohapatra Roll No.4286” 7.On the basis of the above Undertaking, the Convenor made the following endorsement :- “To be considered in in-service category as per Hon’ble High Court judgment arising out of W.A. No.78/2012 dated 11.04.2012, proceed through an counseling for in-service category of 2012 held in future.” Therefore, Mr. Rath, learned Senior Advocate submits that the petitioner, who never applied against the in-service quota and he had availed the benefit of enlisting himself as Sl. No.1 in the merit list of direct candidates, taken admission on 02.05.2012 in the Department of Radiology and continued as such till in-service candidates’ benefit was denied quashing the proviso to Clause 9(2)(d) of the MCI Regulations. The revised list was published on 16.04.2012 at the instance of some of the similarly placed in-service candidates he even did not avail the benefit of the aforesaid judgment and continued his status as Sl. No.1 rank as direct candidate for PG Course, and only after passing of judgment dated 30.10.2012 in the Civil Appeal No.7724 of 2012 by the Hon’ble Supreme Court he is seeking the relief to include his name in the list of in-service candidates for the academic year 2012 to get the benefit of the judgment passed by this Court in W.A. No.78 of 2012 contending that the same is applicable to him, which is not permissible in law as the petitioner proves himself as a fence sitter. A fence sitter is not entitled to the benefit as claimed by the petitioner at this length of time. 8.Mr. G.A.R. Dora, learned Senior Advocate submits that the petitioner’s prayer cannot be granted on the very same ground urged on behalf of intervenor-Bhakta Charan Sahoo and further submits that if the prayer of the petitioner is granted the in-service candidates who are the intervenors in Misc. Case No.18863 of 2012 and allowed to come on record as additional opposite parties, their rights will be affected adversely. So also, on the same ground, Mamata Samal, another intervenor, whose name finds place at Sl. No.47 of the revised provisional merit list for in-service candidates, also opposes the prayer of the petitioner. Case No.18863 of 2012 and allowed to come on record as additional opposite parties, their rights will be affected adversely. So also, on the same ground, Mamata Samal, another intervenor, whose name finds place at Sl. No.47 of the revised provisional merit list for in-service candidates, also opposes the prayer of the petitioner. 9.Having regard to the rival legal contentions urged by the parties, following points would fall for consideration of this Court. (i)Whether the petitioner is entitled, at this length of time to be included in the merit list of in-service candidates for the 2012 academic year pursuant to direction passed by the Hon’ble Supreme Court in Civil Appeal No.7724 of 2012/ (ii)What order ? 10.Both the questions are required to be answered together against the petitioner for the following reasons. The undisputed facts are that the petitioner has applied to the PG Medical Course in the direct quota for the academic year 2012-13; accordingly his name was published in the list of direct quota candidates at Sl. No.1 rank. He got admitted himself on 02.05.2012 under PG Medical Course in Radio-diagnostic Discipline of S.C.B. Medical College and Hospital, Cuttack, till the order passed by the Hon’ble Supreme Court in C.A. No.5705-5706 of 2012, wherein the benefit which was granted to the direct candidates under Clause 11.2 of the Prospectus issued for admission to the Post Graduate Medical Examination, 2012 as in-service candidates read with proviso to Clause 9(2)(d) of the MCI Regulations for weightage benefit has held that such benefit could not have been extended in favour of the direct candidates pursuant to which petitioner’s ranking came down to Sl. No.72 as the said order of the Hon’ble Supreme Court was implemented by the PG Selection Committee by publishing new list dated 07.08.2012 and conducting fresh counseling on 09.08.2012 for direct category candidates only. Even at that stage the petitioner did not approach to include his name in the list of in-service candidates. Only on 13.08.2012, he approached this Court by filing W.P.(C) No.14722 of 2012 after the counseling is over on 09.08.2012. In that Writ Petition, this Court has said that since similar matters were pending before the Hon’ble Supreme Court, he was required to get himself impleaded in those similar matters. But he has promoted himself to approach this Court by filing the present writ petition on 05.11.2012. In that Writ Petition, this Court has said that since similar matters were pending before the Hon’ble Supreme Court, he was required to get himself impleaded in those similar matters. But he has promoted himself to approach this Court by filing the present writ petition on 05.11.2012. 11.The fact remains that till 09.08.2012 the petitioner has not availed the benefit of judgment dated 11.04.2012 rendered by this Court in W.A. No.78 of 2012. On the other hand, he availed the ranking of Sl. No.1 in the merit list of direct candidates. It is rightly pointed out by Mr. R.K. Rath, learned Senior Advocate that the petitioner is a fence sitter. Apart from the said reason, direction in the W.A. No.78 of 2012 was not general and the petitioner was never a party and never wanted to have the benefit of being included as in-service candidate. For this reason also, the petitioner cannot seek relief as has been prayed in this Writ Petition. 12.Further, the Hon’ble Supreme Court in paragraph 5 of the order dated 30.11.2012 passed in Civil Appeal No.7724 of 2012 has made it very clear that merit ranking list of 45 in-service candidates of 2012 academic year shall be drawn up first and seat will be allotted to them according to their merit and there afterwards, if for any reason, any seat or seats are left over after accommodating those in-service candidates of 2012 those seats shall be made available to in-service candidates of 2011 purely on their merit(s). In view of the said direction, petitioner, the candidate who got admitted from the direct quota merit list cannot seek the relief as prayed for in this writ petition and such relief cannot be granted as the same would be contrary to the order of the Hon’ble Supreme Court for the reasons stated supra. 13.The Writ petition fails, accordingly the same is dismissed. Petition dismissed.