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2017 DIGILAW 178 (ORI)

Sagar Mahapatra v. State of Odisha

2017-02-16

B.R.SARANGI, VINEET SARAN

body2017
JUDGMENT VINEET SARAN, C.J. - This writ petition has been filed by the petitioner, who is a doctor working in a Primary Health Centre (PHC), with the following prayer: “Under the facts and circumstances, the petitioner therefore prays that Your Lordships would be graciously pleased to issue RULE NISI as to why, i) the Opp.Parties shall not be directed to include the area P.H.C.(n) Gangapur under CHC Belaguntha in the district of Ganjam in the impugned list under Annexure-3 in order to compute the additional weightage (sic) as provided under the Clause G-2 and H of the guidelines under Annexure-2, ii) another revised list including the place of posting of the petitioner i.e., P.H.C.(N) Gangapur under CHC Belaguntha in the district of Ganjam shall not be published, iii) the action of the Opp.Parties shall not be declared as arbitrary and illegal, And pass any other order/orders which this Hon’ble Court may deem fit and proper” 2. The brief facts of the case are that the petitioner was selected and appointed as “Assistant Surgeon Class-I” on 15.04.2012. He was, thereafter, on 11.04.2013, engaged as “Consultant Physician” at PHC (N), Gangapur under CHC, Belaguntha in the district of Ganjam. The petitioner was, vide office order dated 20.04.2013, directed to report before the Medical Officer, CHC, Gangapur, where he continued up to 30.03.2016. Thereafter, he joined at CHC, Gumma in the district of Gajapati. While he was continuing as Assistant Surgeon in Class-I Junior on ad hoc basis at PHC (N), Gangapur under CHC, Belaguntha in the district of Ganjam, he came across guidelines published for Post Graduate (Medical) Courses in the Medical Colleges of Odisha for the academic session 2015-16. 3. The above guidelines were framed by opposite party no.1 consequent upon the decision of the Government to take candidates from the merit list of AIPGMEE-15 for admission to MD/MS courses in the State quota seats in the academic session 2015-16. As per Clause-H of the guidelines, additional weightage was to be be awarded only to those inservice category candidates who are in employment in Government of Odisha/Government of Odisha Undertaking/ Government of India Undertaking and have qualified in the Entrance Examination and have worked in rural/tribal/backward areas (as per the list annexed thereto). As per Clause-H of the guidelines, additional weightage was to be be awarded only to those inservice category candidates who are in employment in Government of Odisha/Government of Odisha Undertaking/ Government of India Undertaking and have qualified in the Entrance Examination and have worked in rural/tribal/backward areas (as per the list annexed thereto). Such candidates were to be awarded an additional weightage of 10% of the marks secured in the P.G. Entrance Examination per year of completion of service in above areas, subject to maximum of 30% of marks secured in the entrance examination. 4. In the list of rural/tribal/backward areas, the petitioner’s place of posting, i.e., PHC (N) Gangapur under CHC, Bellaguntha in the district of Ganjam, had not been included, though subsequently the CHC available in the nearby place in the same district had been included. Therefore, the petitioner claims that the service rendered in PHC (N) Gangapur under CHC, Bellaguntha in the district of Ganjam should be taken into consideration for giving additional weightage for admission to the PG Medical Course by the authority concerned. 5. Mr. A. Patnaik, learned counsel for the petitioner contended that the service rendered by the petitioner at PHC (N) Gangapur under CHC, Bellaguntha in the district of Ganjam should be taken into consideration by granting additional weightage for admission to PG Course in the year 2017-18, as the adjacent CHC has been included in the list prepared by the State Government. Non-inclusion of PHC (N) Gangapur under CHC, Bellaguntha in the district of Ganjam, which stands at par with the similarly situated nearby CHC of the very same district, i.e., Ganjam, and non-extension of benefit of additional weightage to the petitioner amounts to discriminatory, arbitrary and unreasonable action of the opposite parties. 6. Mr. B.Bhuyan, learned Addl. Government Advocate appearing for the State-opposite parties strenuously urged that the benefit of enlistment of areas under rural/tribal/backward list is being done by the State Government taking different parameters into account and the petitioner’s place of service, i.e., PHC (N) Gangapur under CHC, Bellaguntha in the district of Ganjam having not been included in the list, the benefit of Clause-H of the guidelines cannot be extended to him. Furthermore, the enlistment has got prospective application and cannot have any retrospective effect. Therefore, the claim made by the petitioner cannot sustain in the eye of law. 7. Mr. Furthermore, the enlistment has got prospective application and cannot have any retrospective effect. Therefore, the claim made by the petitioner cannot sustain in the eye of law. 7. Mr. R.C. Mohanty, learned counsel appearing for opposite party no.2 vehemently urged that the benefit of additional weightage to the petitioner cannot be extended, as the petitioner has not worked in any rural/tribal/backward area as per the list prepared by the State Government. In view of the order passed by the Division Bench of this Court in WP(C) No.11399 of 2014 (Dr. Lingaraj Hansda v. State of Odisha), a list of rural/tribal/ backward areas has been prepared by the State Government, after consultation with the Chief District Medical Officer, as well as Dean and Principals of Government Medical Colleges, and after thorough scrutinisation it has been decided that doctors working in remote or difficult areas on the basis of vulnerability, grading of vulnerability has been done. The same criteria and grading are considered for assessing the remoteness and difficultness for consideration for award of additional weightage while determining the merit. The area in which the petitioner was rendering service, i.e., PHC (N) Gangapur under CHC, Bellaguntha in the district of Ganjam having not been notified earlier nor in subsequent list prepared in consonance with the direction given by a Division Bench of this Court in Dr. Lingaraj Hansda (supra), the benefit is not admissible to the petitioner. As such, the claim made, that the benefit should be extended retrospectively, cannot be granted, being not sustainable in the eye of law. His specific submission is that, the benefit to be extended to the in-service doctors, being a policy decision of the Government, the Court cannot interfere with the same, unless it is considered to be unreasonable or arbitrary. 8. Mr. R.K. Rath, learned Senior Counsel appearing along with Mr. S.K. Das, learned counsel for the intervenor petitioner, whose application for intervention has not been allowed, assisted the Court supporting the contention raised by the State-opposite parties. 9. Considering the contention raised by learned counsel for the parties, as the pleadings have been exchanged amongst them, the matter is disposed of at the stage of admission on perusal of the records available. 10. 9. Considering the contention raised by learned counsel for the parties, as the pleadings have been exchanged amongst them, the matter is disposed of at the stage of admission on perusal of the records available. 10. In course of hearing, a query being made by the Court, learned counsel for the petitioner could not be able to produce any material to indicate as to how he is entitled to the benefit of additional weightage, stipulated in the guidelines formulated by the State Government. For being given the benefit under any particular scheme or policy, it is for the petitioner to satisfy the Court that the case of the petitioner falls within the ambit of such scheme/policy of the Government. In absence of the petitioner having produced any such scheme/policy of the Government under which the PHC, in which the petitioner is working, could be declared to be in a backward/rural/tribal area, the prayer made in this petition does not deserve to be granted. 11. In Maharashtra S.B.O.S. v. Paritosh, AIR 1984 SC 1543 : (1984) 4 SCC 27 , the apex Court held: “The Court should not examine merits and demerits of the policy laid down by the Rule-making Body, as the Court’s power of scrutiny is limited to the question as to whether the Regulations fall within the scope of Regulation-making power.” 12. In K. Narayanan v. State of Karnataka, (1994) Supp (I) SCC 44, the apex Court observed: “A policy decision taken by the Government is not liable to interference, unless the Court is satisfied that the rule-making authority has acted arbitrarily or in violation of fundamental rights guaranteed under Article 14 and 16.” 13. In State of U.P. V. U.P. University Colleges Pensioners Association, AIR 1994 SC 2311 : (1994) 2 SCC 729 , the apex Court ruled: “Policy decision is not subject to judicial review unless it is unreasonable or against public interest.” 14. The above being the law laid down by the apex Court, applying the same to the present context, this Court would not be inclined to interfere with the policy decision of the State Government, unless firstly, the same is placed before us, and secondly, it is found that the same is absolutely arbitrary and unreasonable. 15. The writ petition is accordingly dismissed. No order to cost. Petition dismissed.