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2016 DIGILAW 853 (ORI)

Dillip Kumar Mohanty v. State of Orissa

2016-09-22

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : VINEET SARAN, J. Dispute in the present petition is with regard to admission to Superspeciality (DM & M.Ch.) courses. For admission to such courses in S.C.B. Medical College, Cuttack, process had been initiated and prospectus was issued giving the information and guidelines. As per the same, the counseling for such admission was to be done on 22.7.2016 and 23.7.2016 and selected candidates were to report for provisional admission before the Convener on 26.7.2016, and were to join the institution between 1.8.2016 to 6.8.2016. Eight seats in the said college, as provided in the Prospectus, were filled up, in which the petitioner was not selected. Subsequently, the State of Odisha had accorded permission for two additional Superspeciality seats in Cardiology, for which the matter was taken up by the Court in Special Leave to Appeal no. 19633/2016, I.A. No. 25 of 2015 (W.P.(C) No. 76 of 2015), and the Court permitted admission against two direct seats in DM & M.Ch. in Cardiology at MKCG Medical College, Berhampur for the academic session 2016-17 to be effected within one week from the date of the order which was on 8.9.2016. The seats were thus to be filled up within one week from the said date, which was to be according to the prospectus issued for filling the seats in SCB Medical College. 2. Pursuant to the said order dated 8.9.2016 of the Court, notice for counseling was issued by the Convener, Superspeciality Selection Committee 2016-17 consisting of specialist, as was constituted in terms of the Prospectus. In terms of the said notice dated 9.9.2016, the extended spot counseling for admission to the above two seats was scheduled to be held on 14.9.2016 and it was provided that the merit listed candidates for DM courses 2016 could participate in the counseling. Out of the two additional seats, one seat was meant for ‘in-service’ candidate and the other seat was for ‘direct’ candidate. The petitioner was an applicant as a direct candidate. In the said notice, it was also provided that “the selected candidates who have not taken any previous admission shall have to deposit the original CLC and original Bank Draft of Rs. 45,520/- drawn in favour of ‘Convener, Superspeciality Selection’ payable at Cuttack”. 3. The admitted facts are that five candidates including the petitioner had appeared for counseling on 14.9.2016. In the said notice, it was also provided that “the selected candidates who have not taken any previous admission shall have to deposit the original CLC and original Bank Draft of Rs. 45,520/- drawn in favour of ‘Convener, Superspeciality Selection’ payable at Cuttack”. 3. The admitted facts are that five candidates including the petitioner had appeared for counseling on 14.9.2016. They were placed at Rank 8, 11, 14, 16 and 34 in the merit list. The candidate at Rank 8 in the merit list was an ‘in-service’ candidate, but declined to take admission. Thus, when the only candidate from ‘in-service’ declined to take admission, the said seat fell in the quota of ‘direct’ candidate. The candidate at Rank 11 appeared and was given admission. The petitioner, who was placed at Rank 14 was considered for admission, but since he did not fulfill the criteria of producing the original College Leaving Certificate (CLC) and the bank draft of Rs. 45,520/-, was declined admission. The next candidate, who was at Rank 16 in the order of merit, also declined to take admission and thus, the candidate who was at Rank 34 in the order of merit (opp. party no.5) was offered admission and since he fulfilled the requisite conditions, he was granted admission. 4. In such circumstances, the petitioner, having been denied admission, filed this writ petition with the prayer that the order selecting opposite party no.5 for admission to Superspeciality (DM Cardiology) Courses for the year 2016-17 be quashed and the petitioner be allotted the said seat. 5. We have heard Mr. P.K. Sahoo, learned counsel for the petitioner; as well as Mr. B.P. Pradhan, learned Addl. Government Advocate appearing for State-opposite parties 1 and 2; and Mr. R.C. Mohanty, learned counsel appearing for opposite party nos. 3 and 4 i.e. Convener, Superspciality Selection Committee 2016-17 and the Medical Council of India. No notice was issued to opposite party no.5. Time was granted to Mr. B.P. Pradhan, learned Addl. Government Advocate and Mr. Mohanty to obtain instruction, which they have received and with the consent of the parties, the writ petition is disposed of at the admission stage. 6. The submission of Mr. No notice was issued to opposite party no.5. Time was granted to Mr. B.P. Pradhan, learned Addl. Government Advocate and Mr. Mohanty to obtain instruction, which they have received and with the consent of the parties, the writ petition is disposed of at the admission stage. 6. The submission of Mr. P.K. Sahoo, learned counsel for the petitioner is that though the condition was stipulated in the notice dated 9.9.2016 for counseling that the candidate was to deposit the original College Leaving Certificate (CLC) and the bank draft at the time of counseling, but the same was only directory and not mandatory. It is contended that the counseling was for selection, and not for admission, as clause 13.3 of the Prospectus provided that the selected candidate will be required to deposit College Leaving Certificate and the conduct certificate at the time of admission. According to the petitioner, after the selection was made, the petitioner was to be given opportunity to produce the said College Leaving Certificate, as well as bank draft, at the time of admission and not at the time of counseling when the selection was to be made. Learned counsel for the petitioner has submitted that Clause 9.1 of the prospectus provides that admission would be made by showing the allotment letter in the college and by paying requisite fees and shall abide by all the instructions as contained in the prospectus. His contention, thus, is that after the counseling was over, if the petitioner was selected for admission, admission was to be given by the college only after production of the CLC and the bank draft, which was to be produced before the college where he was to be given admission, on the date and time when the admission was to be made. To substantiate his contention he relied upon the judgments in Dolly Chhanda v. Chairman, JEE and others, AIR 2004 SC 5043 , Asha v. Pt. B.D. Sharma University of Health Science & Ors., AIR 2012 SC 3396 , Snehalata Jagati v. Convenor, PG (Medical/Dental) Selection Committee, Odisha and others, 2014(Supp.-I) OLR-866. 7. Mr. B.P. Pradhan, learned Addl. Government Advocate appearing for the State-opposite parties has submitted that after counseling, on selection, provisional admission was also to be made by the Convener, as has been provided in para 1.2 of the prospectus which deals with reporting for provisional admission before the Convener. 7. Mr. B.P. Pradhan, learned Addl. Government Advocate appearing for the State-opposite parties has submitted that after counseling, on selection, provisional admission was also to be made by the Convener, as has been provided in para 1.2 of the prospectus which deals with reporting for provisional admission before the Convener. It is also contended that since admission was to be made by the Convener, thus in the prospectus as well as the notice dated 9.9.2016, it was provided that besides the original CLC, the bank draft of Rs. 45520/- prepared in favour of ‘Convener, Superspeciality Selection’ and not the college which was assigned to the candidate, was to be provided by the candidate then only. He has thus submitted that the admission was to be granted at the time of counseling itself by the Convener, and only the joining was to be made at the institution, after the admission was granted. 8. Learned Addl. Government Advocate has also submitted that once the petitioner had appeared in the selection process and was aware of the conditions laid down in the prospectus as well as the notice dated 9.9.2016, he cannot be permitted to turn around and say that the conditions laid down therein were not applicable. 9. Mr. R.C. Mohanty, learned counsel appearing for the Convener and the Medical Council of India (opposite parties no. 3 and 4) has submitted that the condition of producing the original College Leaving Certificate, as well as bank daft in favour of the Convener, was mandatory and was provided for, both in the prospectus as well as the subsequent notice dated 9.9.2016. Learned counsel has relied on two Division Bench decisions of this Court (Dr. Susant Moharana and others v. Convener, P.G. (Medical) Selection Committee, 2005, 101 (2006) CLT 625 and Dr. Sunanda Priyadarshini Mohanty v. State of Orissa, W.P.(C) No. 12476 of 2014 disposed of on 07.08.2014), which according to him are directly on the point, wherein it has been held that CLC would be the document required to be produced at the time of counseling itself before the Convener. 10. Government of Odisha issued a Prospectus for admission to Superspeciality courses in DM & M.Ch. at S.C.B. Medical College, Cuttack for the year 2016-17. The Prospectus itself indicates that it also applies for the seats of DM & M.Ch. 10. Government of Odisha issued a Prospectus for admission to Superspeciality courses in DM & M.Ch. at S.C.B. Medical College, Cuttack for the year 2016-17. The Prospectus itself indicates that it also applies for the seats of DM & M.Ch. courses, which were available consequentially in any Governmental Medical College of the State for the year 2016-17 and it is valid up to the academic session 2019-20. The relevant parts of the prospectus required for adjudication of the case in hand are extracted hereunder: “1. GENERAL INFORMATIONS:- 1.1 Applications are invited from Post Graduate Doctors for admission to Superspeciality Courses in DM & M.Ch. The Selection of candidates is to be conducted by Superspeciality Selection committee 2016-17. The committee will consist of the following members. 1. Director Medical Education & Training Chairman 2. HOD, Cardiology, SCB MCH”, CTC Member 3. HOD, Paediatric Surgery, SCB MC, CTC Member 4. HOD, Nephrology, SCB MC, CTC Member 5. HOD, Urology, SCB MCH, CTC Member Convener 6. Joint Director, DMET, Odisha Coordinator” “1.2 Tentative important dates for 2016-17 sessions would be as follows which is subject to change as per the circumstances : xx xx xx xx Reporting for provisional admission before convener 26.07.2016(Tue)” xx xx xx xx “9. ADMISSION OF CANDIDATES:- 9.1. Admission will be made by showing the allotment letter in the College and by paying requisite fees and shall abide by all the instructions as contained in the prospectus during prosecution of their study.” “13. MISCELLANEOUS :- 13.3 A selected candidate shall be required to deposit college leaving certificate and conduct certificate at the time of admission and non production shall debar the candidate for admission.” 11. From the aforesaid, it is clear that admission to the Superspeciality courses in DM & M.Ch. for the session 2016-17 shall be made through a process of selection which shall be conducted by a committee constituted under clause 1.1. The candidates, who shall be selected, shall report for provisional admission before convener on the date fixed as per clause 1.2 and shall deposit the College Leaving Certificate and conduct certificate at the time of admission and non-production thereof shall debar the candidates for admission as per clause-13.3. However, admission will be made by showing the allotment letter in the college and by paying the requisite fees and shall abide by all the instructions, as contained in the prospectus, during prosecution of their study. 12. However, admission will be made by showing the allotment letter in the college and by paying the requisite fees and shall abide by all the instructions, as contained in the prospectus, during prosecution of their study. 12. Admittedly, the admission to the Superspeciality courses in DM & M.Ch. at S.C.B. Medical college in respect of 8 seats had already been made. But, subsequently, by virtue of the order passed by the Court in I.A. No. 25 of 2015 (filed by Health and FW Department, Govt. of Odisha) arising out of W.P.(C) No. 76 of 2015, in case of Ashish Ranjan & Ors. V. Union of India and Ors., admission against the two permitted seats in DM Cardiology at MKCG Medical College, Berhampur for the academic session 2016-17 was to be undertaken. As per direction of the apex Court, vide order dated 08.09.2016, counseling was to be effected within a week therefrom and seats were to be filled up accordingly. Subsequently, Annexure-5, the notice dated 09.09.2016 was issued indicating that the selected candidates who had not taken any previous admission would have to deposit the original CLC and original Bank Draft of Rs.45,520/-drawn in favour of “Convener, Superspeciality Selection”, payable at Cuttack and for the said purpose the date was fixed to 14.09.2016. Undisputedly, the petitioner appeared before the selection committee for counseling on the date fixed, but he did not deposit the original CLC and original Bank Draft of Rs.45,520/-, as required pursuant to notice of counseling dated 09.09.2016. Furthermore, as per clause-1.2 the petitioner had reported for provisional admission before the convener, but at the time of reporting for provisional admission before the convener, he had not deposited the original CLC and original Bank Draft of the required amount. Therefore, having failed to deposit the same, the petitioner has been declined to admit into the college due to non-fulfillment of the requirement of the conditions stipulated in the notice of counseling dated 09.09.2016 under Annexure-5, read with clause 13.3 and clause 1.2 of the Prospectus. 13. Much emphasis has been laid on clause 9.1 of the prospectus by the learned counsel for the petitioner wherein it has been stated that the admission will be made by showing allotment letter in college. 13. Much emphasis has been laid on clause 9.1 of the prospectus by the learned counsel for the petitioner wherein it has been stated that the admission will be made by showing allotment letter in college. Since conditions have been stipulated in the notice for counseling vis-à-vis clause 13.3 read with clause 1.2 of the prospectus putting a mandate on the petitioner to deposit the original CLC before the convener, while reporting for provisional admission, non-production of the same shall debar the candidate for admission, and applying the same the petitioner has been debarred from taking admission. As such, though the petitioner states that he wanted to give an undertaking to produce the original CLC within a stipulated time, but due to the time fixed by the apex Court that admission was to be completed within a week the same could not have been accepted by the convener. In any case, that question does not arise at this stage, because the conditions stipulated in the prospectus vis-à-vis the notice for counseling that the candidate has to deposit the original CLC at the time of reporting for provisional admission into the course, the petitioner having not deposited the same, this Court cannot not find any fault with the authority in denying admission to the petitioner in Superspeciality Course in DM and M.Ch. at MKCG College, Berhampur. 14. Dolli Chhanda (supra), which has been relied upon by the learned counsel for the petitioner, is a case wherein admission to M.B.B.S. Course claimed against a seat reserved for children/widow of personnel of armed/paramilitary forces, killed/disabled in action, was rejected at first counseling on the ground that certificate issued to the petitioner therein by Zilla Sainik Board did not satisfy requirement of reserved category. On rectification of the mistake, the petitioner therein produced fresh and correct certificate at second stage of counseling. At that stage, non-consideration of her candidature and giving admission to candidates securing lower rank than her, the Court considered it unjust and illegal and deprecated the highly technical and rigid attitude of the authority and consequently, directed to give admission to the said candidate in any one of the State Medical Colleges. The Court further held that rigid principle should not be applied as it pertains in domain of procedure. The Court further held that rigid principle should not be applied as it pertains in domain of procedure. Similarly, in Asha (supra), which has been relied upon by the learned counsel for the petitioner, admission to the medical course was under consideration, where the appellant pleaded that her name was not called for counseling, though she was present. After knowing that less meritorious candidates have been admitted, she immediately raised claim before authorities, but the same was ignored. Her representation was also not considered. Consequently, she filed writ application without any delay stating that she was arbitrarily denied admission to the course. The Court held that the appellant having arbitrarily denied admission, she was entitled only to relief of admission in that current academic session. In Snehalata Jagati (supra), on which reliance has been placed by the learned counsel for the petitioner, admission to P.G. (Medical) course was denied to the petitioner in the second round of counseling for non-production of CLC and not allowing 24 hours time to produce CLC before cut off date. Learned Single Judge of this Court held no fault lies on the part of petitioner, as neither the State Guidelines for allotment of candidates for P.G. (Medical) course in Govt. Medical Colleges nor Regulation and Guidelines for MCI, nor the information of NEET for Admission to P.G. Courses prescribed such pre-condition to produce CLC to participate in first round and/or second round counseling, and action of the opposite parties was unjust and unfair and applying the principle of Asha (supra) laid down by the apex Court, directed for admission to the petitioner. The factual matrix involved in the cases referred to above are totally different from that of the case in hand, inasmuch as, as per the prospectus clause 13.3 read with notice for counseling date 09.09.2016 in Annexure-5, which specifically mandates for deposit of original CLC at the time of counseling for provisional admission as per clause 1.2 of the prospectus itself. 15. Similar question had come up for consideration in Dr. 15. Similar question had come up for consideration in Dr. Susant Moharana (supra), where this Court has categorically held that as per clause 5.6, 5.7 and 5.8 of the prospectus, candidates who have either completed some P.G. Course in any subject or candidates who have already taken admission under the All India Quota/State Quota or applicants who have taken admission in P.G. Medical Course in any of the three Medical Colleges of Orissa or have not joined or have discontinued after joining shall not be eligible to apply afresh. The College Leaving Certificate, therefore, would be an important document, which will decide the eligibility of the candidate as to whether he had already undertaken P.G. Course earlier. In addition, not only in the Prospectus the petitioners therein were required to produce the College Leaving Certificate in original but also in the call letter itself they were asked and reminded to produce the College Leaving Certificate/Transfer Certificate issued by the institution last attended with a cause in that no undertaking in any form in compliance to the requirement of production of documents will be entertained in any circumstance. Therefore, non-production of CLC on the date of counseling and admission to the college would deprive the petitioners of their right to admission, even though they have been duly selected. In Dr. Sunanda Priyadarshini Mohanty (supra) relying upon the clauses of the prospectus where it had been specifically mentioned that “under no circumstances a candidate can be admitted without college leaving certificate (CLC)” and non-production of the CLC at the time of counseling for admission into the course, the Division Bench of this Court held that the authorities were justified in not allowing the petitioner therein to participate in the fourth and final round counseling held on 07.07.2014 for non-production of CLC and dismissed the application. The author of this judgment was the author of Snehalata Jagati (supra), who considered sitting in singly. He distinguished the Snehalata Jagati (supra) with Dr. Sunanda Priyadarshini Mohanty (supra) in paragraph 11 of the said judgment. 16. Applying the ratio of Dr. Susant Moharana (supra) and Dr. The author of this judgment was the author of Snehalata Jagati (supra), who considered sitting in singly. He distinguished the Snehalata Jagati (supra) with Dr. Sunanda Priyadarshini Mohanty (supra) in paragraph 11 of the said judgment. 16. Applying the ratio of Dr. Susant Moharana (supra) and Dr. Sunita Priyadarshini Mohanty (supra) to the present context, there is no iota of dispute that when the prospectus stipulates a condition for admission to the course for depositing of original CLC at the time of counseling, non-deposit of the same is contrary to the clause 13.3 read with notice for counseling dated 09.09.2016. We may have sympathy for the petitioner as he was higher in merit than opposite party no.5, who has been given admission in the Superspeciality course, and, even though he wanted to, but was unable to get admission. However, in view of the mandatory condition having not been fulfilled by the petitioner as has been held by two Division Bench decisions of this Court, we are of the opinion that the relief prayed for in this writ petition does not deserve to be granted. 17. Having heard learned counsel for the parties and considering the facts and circumstances of the case, we are of the opinion that provision of College Leaving Certificate as well as of the bank draft to be produced at the time of counseling on 14.9.2016 was mandatory, and the petitioner having not produced the same, would not be entitled to admission. 18. The writ petition, accordingly, stands dismissed.