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2013 DIGILAW 310 (ORI)

Rudra Deo Kumar v. State of Odisha

2013-08-19

B.N.MAHAPATRA

body2013
JUDGMENT B.N. MAHAPATRA, J. : This writ petition has been filed with a prayer for quashing Clause-F of the New Odisha Prospectus and Clause-2 of the Public Notice dated 03.10.2012 issued by the National Board of Examination and for a direction to the opposite parties to consider the petitioner for selection in the State Quota Merit List of Odisha. 2.Petitioner’s case in a nut-shell is that National Eligibility-cum-Entrance Test (for short ‘NEET-2013’) is a qualifying-cum-ranking examination notified under the provisions of Postgraduate Medical Education Regulations, 2000 by the Medical Council of India with prior approval of Government of India. It is governed by the National Board of Examination (for short ‘NBE’) which came into existence in October, 2012 to conduct the Postgraduate Eligibility-Cum-Entrance Examination in order to select the candidates for the Postgraduate (Medical) seats for the year 2013-14. Since NEET-PG is the new mode of conducting entrance examination for prospective PG Medical/Dental candidates a lot of queries were put forward by candidates with regard to the actual parameters that are taken to prepare the All India Merit List (50% quota) and State Merit List (50% quota) in respective States. In reply to such queries of the candidates a public Notice dated 3rd October, 2012 (Annexure-2) was published by the NBE so as to clarify the position with regard to the basis on which the All India Merit List and State Merit List shall be prepared. Petitioner’s case is that as per the public Notice dated 3rd October, 2012 every candidate who takes the NEET-2013 will be awarded with one All India Rank and two State Ranks, i.e., one will be prepared in the basis of the State of Graduation and another on the basis of the domicile, i.e., the candidate must be a permanent resident of a State to be considered for selection in preparation of 50% quota of that State. Petitioner completed his BDS course from S.C.B. Dental College, Cuttack and in order to pursue higher studies in Dental filled up the application form to take the NEET-2013 for MDS and PG Diploma courses. NEET-2013 for PG Courses (Dental) was held on 13th of January, 2013 in which the petitioner secured an all India Rank of 1851 in the NEET-2013 issued by the All India Institute of Medical Science (for short, ‘AIIMS’) in consonance with the NEET-2013 (MDS and PG Diploma) Prospectus. 3.Mr. NEET-2013 for PG Courses (Dental) was held on 13th of January, 2013 in which the petitioner secured an all India Rank of 1851 in the NEET-2013 issued by the All India Institute of Medical Science (for short, ‘AIIMS’) in consonance with the NEET-2013 (MDS and PG Diploma) Prospectus. 3.Mr. S.P. Mishra, learned Senior Advocate appearing for the petitioner submits that the petitioner while filling up the application form has duly filled up the domicile name as Bihar under Serial No.9 of the application form and has also filled up the details of the qualifying examinations passed under Serial No.16, which is form the Dental Wing of S.C.B. Medical College and Hospital, Cuttack. As against the choice of participating in All India/State as given under Serial No.17 of the application form, the petitioner has indicated that he wants to participate in both the quota, i.e., All India and State so as to enable himself to be considered for selection in both the All India Merit list and State Merit List. Mr. Mishra further submitted that in accordance with and in compliance to the directives of the Hon’ble Supreme Court of India, AIIMS conducts the NEET for admission to Ministry of Health and Family Welfare/Dental Council of India recognized/approved/permitted seats of Dental Colleges for various Postgraduate Courses (MDS/PG Diploma). As per Clause-12(B) of the NEET-2013 Prospectus, the AIIMS also issues ranks to the participating candidates and prepares an All India Rank List and forwards the respective State ranks of those candidates to the Directorate of Medical Education of the State/Union Territory concerned for the purpose of allotment of seat by online counseling/personal appearance subject to the applicable law prevailing in the State/Union Territory. Mr. Mishra further submitted that none of the candidates appearing in the NEET-2013 (MDS/PG Diploma) has been issued with State Ranks (one on the basis of their State of Graduation and another on the basis of their domicile) by AIIMS and only one rank, i.e., the All India Rank has been provided to each of them and their State quota has been forwarded to the respective Directorates of Medical Education of those States for preparation of the State Merit Lists in accordance with the guidelines issued by the concerned authorities in that State for such allotment of seats in Postgraduate Medical/Dental in different Government Colleges. The Government of Odisha in Health and Family Welfare Department also issued guidelines for allotment of candidates for Postgraduate (Medical) courses in the Government Medical Colleges, Odisha vide Letter No.ME-II-M-25/2012 1610/H dated 27.05.2013 and those guidelines governed the selection of candidates into the State Quota for PG Medical/Dental courses, more particularly Clause-F, which deals with the category of students. The guidelines dated 27.05.2013 brought only those candidates within the purview of selection in the State Merit List who are permanent residents of Odisha irrespective of the fact that they completed their graduation outside Odisha. The guidelines dated 27.05.2013 were brought to the notice of the candidates much after the publication of the public notice dated 03.10.2012 vide (Annexure-2) and also after the examination held as well as after the results were declared. The same being contrary to the said public notice dated 03.10.2012, it amounts to change of Rule of Game in midway which is not permissible under law as was held by the Hon’ble Supreme Court in the case of Parmender Kumar and others v. State of Haryana and others, 2012 (1) SCC 177 . The guidelines dated 27.05.2013 were not framed in accordance with and adherence to the ratio laid down by the Hon’ble Supreme Court in the case of Pradeep Jain v. Union of India and another, (1984) 3 SCC 654 , wherein the Hon’ble Supreme Court categorically stressed on the constitutional necessity of giving preference to reservation based on institution over the residence requirement as institutional continuity is constitutionally and fundamentally more aligned with the Right to Equality, which is a fundamental right under the Constitution of India. Petitioner, in spite of having completed his BDS Course in S.C.B. Dental College, Cuttack was debarred from participating in the process of online registration for PG Medical/Dental Admission 2013-14 on account of the fact that he was not a permanent resident of Odisha. The process of online registration requires the candidates to have not only qualified in the NEET-PG 2013 Examination, but also they have to fulfill different criteria as per guidelines laid down by the Government of Odisha, i.e., such candidates must be permanent residents of Odisha. The process of online registration requires the candidates to have not only qualified in the NEET-PG 2013 Examination, but also they have to fulfill different criteria as per guidelines laid down by the Government of Odisha, i.e., such candidates must be permanent residents of Odisha. The State Merit List prepared by the PG Selection Committee, Odisha has been prepared on the basis of Clause-F of the Guidelines issued by the Government of Odisha vide its letter dated 27.05.2013 as a result of which the petitioner has not been considered in the process of such selection as he is not a permanent resident of Odisha. Such ousting of the petitioner on the ground of non-fulfillment of residence requirement is not only against the ratio laid down by the Hon’ble Supreme Court in the case of Pradeep Jain (supra) and other pronouncements that are followed the principles of institutional continuity and preference over residence requirement but is also contrary to the Public Notice dated 03.10.2012 and also establishes itself as a distinct case of negative discrimination in debarring the petitioner from opting for 50% of the State Quota seats that he is entitled to along with 50% of All India Quota seats. The guidelines framed by the opposite parties contravenes and invalidates the Statute on the Right of Equality and violative of Article 14 of the Constitution of India. The Policy or the Guidelines framed cannot withstand the interference of the Judiciary or sustain under the watchful eyes of law if such policies and guidelines are against public interest. In the present case, the petitioner is prejudiced for not being considered either in his place of residence or his place of institution as far as his selection in the State Merit list is concerned. Therefore, such guidelines framed by the opposite party-authorities are liable to be set aside and quashed. Right of Education is a fundamental right as held by the Hon’ble Supreme Court in Unni Krishnan, J.P. and others etc. etc. v. State of Andhra Pradesh and others etc. etc., AIR 1993 SC 2178 . The Fundamental Right of the petitioner has been infringed by depriving him of studying in the State of Odisha when he is eligible for the same. 4.Mr. etc. v. State of Andhra Pradesh and others etc. etc., AIR 1993 SC 2178 . The Fundamental Right of the petitioner has been infringed by depriving him of studying in the State of Odisha when he is eligible for the same. 4.Mr. R.C. Mohanty, learned counsel appearing for opposite party No.6-Member, Convenor (Medical)/Dental Selection Committee-2013 submits that the petitioner’s All India Rank is 1851 and he is eligible for an un-reserved and OBC seat. Referring to paragraph 21 of the judgment of the Hon’ble Supreme Court in Pradeep Jain’s case (supra) Mr. Mohanty submitted that all the admissions shall be based on merit because the object must be select meritorious students from within the source or sources. Since in the meantime, in all the States 50% of the total seats available in P.G. (Medical and Dental) Courses are earmarked for the All India Quota where no restriction is provided to appear on domicile basis and candidates of All States can compete and if qualified, can choose any State for admission to P.G. Medical and Dental Courses as per the rank in the Merit List. For the first time in 2013, the NEET has conducted the Common Entrance Test for admission to the Post Graduate Dental and Medical Courses. NEET-PG is the eligibility-cum-ranking examination prescribed as single entrance examination for various MD/MS in P.G. Diploma courses in Medical and Dental. On 16.05.2013, the result of the NEET PG was announced. The petitioner has not submitted application form for counseling into P.G. Medical/Dental Courses for the session 2013-14 for which the Merit List was published on 26.07.2013 consisting of 19 candidates and the name of the petitioner does not find place in the said merit list. 5.Mr. Mohanty further submitted that last year some of the candidates who were not permanent residents of Odisha but they had prosecuted their MBBS courses in Odisha, had claimed that they are entitled to appear in the P.G. (Medical) Selection-2012. In the Prospectus of 2010, the eligibility criteria as per Clause 5.3 was that, a candidate who has passed MBBS examination from an institution recognized by Medical Council of India and must have completed the MBBS degree in any one of the three Government Medical Colleges of Odisha can sit in the examination. In the Prospectus of 2010, the eligibility criteria as per Clause 5.3 was that, a candidate who has passed MBBS examination from an institution recognized by Medical Council of India and must have completed the MBBS degree in any one of the three Government Medical Colleges of Odisha can sit in the examination. But in the Prospectus of 2011 and 2012, there was no such provision available, for which those petitioners had prayed for an interim direction which was considered by this Court on 18.01.2012 and disposed of the Misc.Case with the observation that since this is a policy decision taken by the State Government, this Court was not inclined to grant interim order in favour of the petitioners as there was no bar for them to appear and compete the examination and get the All India Quota Seats. In the Writ Petitions filed by 5 numbers of candidates, they had challenged the said interim order dated 18.01.2012 passed in W.P.(C) Nos.953 of 2012, 955 of 2012, 1095 of 2012, 1094 of 2012 and 1093 of 2012 in W.A. Nos. 21, 22, 23 and 24 of 2012 with a prayer to admit them in the Post Graduate (Medical) Examination 2012 which was going to be held on 22.01.2012 and to set aside the impugned order by allowing the Appeals and granting interim prayer made in the Misc. Case filed in the Writ Petition. The Division Bench of this Court dismissed the Writ Appeals being devoid of merit. It is submitted that in view of the observation of the Hon’ble Supreme Court in paragraph 21 of the decision in the case of Pradeep Jain (supra) and the decision taken by the MCI giving 50% seats to be filed up as All India Quota and the rest of 50% to be filled up as State Quota is not contrary to the principle laid down in Pradeep Jain’s case (supra). Rather, the outer limit has come down to 50% from 70%. It is submitted that even if the petitioner’s case is entertained in the State Quota, then also his rank in the merit list is much below the candidates who were given admission against 3 direct quota seats of the State Quota and therefore he cannot be admitted under the State Quota. It is submitted that even if the petitioner’s case is entertained in the State Quota, then also his rank in the merit list is much below the candidates who were given admission against 3 direct quota seats of the State Quota and therefore he cannot be admitted under the State Quota. The admission to MDS course/seat earmarked for 2013 has been completed as per the judgment of this Court dated 24.07.2013 passed in W.P.(C) No. 12740 of 2013 and the order dated 30.07.2013 of the Hon’ble Supreme Court passed in SLP (C) No.24238 of 2013. Concluding his argument, Mr. Mohanty submitted that the present Writ Petition is liable to be dismissed. 6.On the rival contentions of the parties, the question that falls for consideration by this Court is as to whether in the facts and circumstances of the case, the relief prayed for by the petitioner in this writ petition can be granted. ? 7.It is not in dispute that admission to MDS course/seats earmarked as State Quota seats for 2013 has in the meantime been completed on 30.07.2013. There cannot be admission after cut-off date as fixed by the Hon’ble Supreme Court. The Hon’ble Supreme Court in the case of Mridul Dhar (minor) and another (supra) held that the time scheduled has to be strictly adhered to by all concerned, including Government, State and Central both MCI/DOCI, College, new or old, student, Boards, Universities, Examining Authorities, etc. It is also held that no mid-stream admission is to be there and no admission in excess of sanctioned intake capacity or in excess of quota of any one, whether State or Management is to be made. It was further held that carry forward of any unfilled seats of one academic year to next academic year was also not permissible. 8.In Manas Ranjan Behera (supra) it was held that time schedule prescribed has to be strictly followed as has been decided in the cases of Mridul Dhar (supra) and Fiza Choudhury’ (supra). The Hon’ble Supreme Court also held that a medical seat has life only for the year it falls and that too only till the cut-off date fixed to complete the admission is over. 9.The law declared by the Hon’ble Supreme Court and directions given by it are binding on every Court of the Country and the High Courts are unexceptionally bound by them. 9.The law declared by the Hon’ble Supreme Court and directions given by it are binding on every Court of the Country and the High Courts are unexceptionally bound by them. 10.The Hon’ble Gujarat High Court in the case of State of Gujarat v. Gordhandas Keshavji Gandhi and others, AIR 1962 Guj. 128 held that a decision of the Supreme Court is binding on all the High Courts. By Article 141 of the Constitution of India, it is laid down that the law declared, by the Supreme Court shall be binding on all Courts within the territory of India. 11.The Hon’ble Bombay High Court in the case of Amruta Babaji Mozar v. Kondabai, deceased by her heirs Babai Laxman Mandhare etc and another, AIR 1994 Bombay-293 held that the law declared by the Supreme Court is no doubt of paramount precedence and is binding on all the Courts notwithstanding any decision to the contrary of the High Court to which a Court may be subordinate. This would have been the position even without Article 141 of the Constitution because of the precedent-oriented system of judicial administration received by us from the Britishers and followed by us with utmost devotional rigidity. 12.The Hon’ble Karnataka High Court in the case of M/s. Oriental Insurance Co. Ltd. Smt. Salma and others, AIR 2008 Kant. 106 held that it is well settled that even obiter dicta made in the decision of the Supreme Court is binding upon High Court and High Court is not competent to interpret the decision of the Supreme Court. 13.In view of the above settled legal propositions, this Court cannot issue any direction to the opposite parties to give admission to the petitioner after cut-off date fixed by the Hon’ble Supreme Court. 14.Otherwise also the petitioner is not entitled to get a seat in the MDS Course. Undisputedly, the petitioner appeared in National Eligibility-cum-Entrance Test-2013 in response to the Bulletin issued by National Board of Education for the MDS course. All India Institute of Medical Science has prepared the MDS Merit List according to rank obtained by the candidates qualified in NEET-MDS-2013. Petitioner’s All India Rank is 1851 and he was eligible for un-reserved and OBC seats. On 16.05.2013, the result of the NEET PG was announced. All India Institute of Medical Science has prepared the MDS Merit List according to rank obtained by the candidates qualified in NEET-MDS-2013. Petitioner’s All India Rank is 1851 and he was eligible for un-reserved and OBC seats. On 16.05.2013, the result of the NEET PG was announced. Rank of the petitioner in the merit list is much below the candidates who have been given admission against three direct quota seats of the State Quota. The chart showing the names of the direct candidates having their All India Ranks and who have passed out from S.C.B. Medical College and Hospital as stated in the Written Notes of Submissions filed by opposite party No.6 is extracted below : Sl.No. Specialist Type All India Rank Category Rank College from which passed BDS 1 Dr. Rosalina Rout- Pedodontics       Direct 158 General (UR) 3 SCB Dental College & Hospital 2 Radheshyam Prasashta Samantaray- Prosthodontics  Direct 180 General (UR) 4 -do- 3 Dr. Purnendu Bhushan-Oral Pathology  Direct 264 General (UR) 5 -do- Apart from the above, one candidate namely, Dr. Pradyumna Kumar Orhodontics having All India Rank 4057 was given admission as general un-reserved candidate under the in-service quota. Thus, three candidates who have taken admission as direct candidates, are graduated from S.C.B. Dental College and Hospital, Cuttack and are permanent residents of State of Odisha and ranked higher than the petitioner. Even if the stand of the petitioner is accepted that the State Government Guideline (Annexure-3) providing that a candidate in order to be eligible for prosecuting P.G. course must be a permanent resident of Odisha is erroneous, on the facts of the case ultimately, it is clear that the petitioner would not get seat because the candidates who have got seats are ranked higher than the petitioner and they are graduated from S.C.B. Dental College and Hospital, Cuttack. 15.The Guidelines for allotment of seats to candidates for the PG (Medical) courses in the Government Medical Colleges of Odisha under Annexure-3 and public notice dated 03.10.2012 issued by the National Board of Examinations are presently in force. Mere declaration of the correctness or otherwise of the Clause-F of the Guidelines and Clause-2 of the notice dated 03.10.2012 issued by the National Board of Examinations without any consequential effect qua petitioner would merely be an exercise in futility and would not result in any enforceable right. Mere declaration of the correctness or otherwise of the Clause-F of the Guidelines and Clause-2 of the notice dated 03.10.2012 issued by the National Board of Examinations without any consequential effect qua petitioner would merely be an exercise in futility and would not result in any enforceable right. This is so because no relief can be granted to the petitioner at present juncture of time based on the decision relating to correctness or otherwise of Clause-F of the State Guidelines and Clause-2 of the notice dated 03.10.2012 issued by the National Board of Examinations. 16.In Dr. N.C. Singhal v. Union of India and others, AIR 1980 SC 1255 while examining the case of the promotion the apex Court came to the conclusion that even if the directions earlier made are struck down, the appellant could not get any post vacated by them. Therefore, entertaining such a petition at the behest of the petitioner is not permissible. 17.In Khalid Hussain (Minor) v. Commissioner and Secretary to Government of Tamil Nadu, Health Department, Madras and others, AIR 1987 SC 2074 ; the Supreme Court examined a case regarding the wrong admission in M.BB.S., which had been challenged by the petitioner and the Court came to the conclusion that even if admitted candidate is ousted, the petitioner could not be given admission. Thus, the writ petition could not be entertained. The Court held as under : “........ the Court ought not to, in the facts and circumstances of the case, exercise its discretionary powers under Article 226 of the Constitution at the instance of the petitioner who was not entitled to any relief.” 18.In view of the above, there is no need to go into the merit of the case with regard to correctness or otherwise of Clause-F of the State Guidelines and Clause-2 of the notice dated 03.10.2012 issued by the National Board of Examinations. 19.For the reasons stated above, no relief can be granted as prayed for in the writ petition. Accordingly, the same is dismissed. Petition dismissed.