Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 347 (ORI)

Shanti Sudha Sahu v. State of Odisha

2017-03-30

K.R.MOHAPATRA, VINEET SARAN

body2017
JUDGMENT : VINEET SARAN, J. The dispute in both the writ petitions relates to admission in Postgraduate Dental Courses in S.C.B. Dental College and Hospital, Cuttack for the academic session 2016-17. Hence, both the writ petitions are heard and disposed of analogously. 2. Writ Petition bearing W.P.(C) No.9208 of 2016 has been filed by Dr.Shanti Sudha Sahu, who was a candidate for admission to the Postgraduate (Dental) Courses in SCB Dental College and Hospital, Cuttack for the academic year 2016-17 under Unreserved category as direct candidate. Having secured 437 rank in all India merit list, she was declared eligible for both Unreserved and OBC category. She ranked 4th (fourth) in the provisional common merit list of candidates for (State Quota) MDS Courses, 2016-17 (direct). Likewise in Writ Petition bearing W.P.(C) No.6248 of 2016 has been filed by Dr.Gathani Dash, who was also a candidate for the aforesaid courses having secured 436 rank in all India common merit list and was ranked 5th in the common merit list of the State Quota. In the common merit list, she was found eligible to take admission against Unreserved seats. Needless to mention here that both the candidates have more than 50% of marks in the entrance examination. 3. Opposite party No.6 (in both the writ petitions), namely, Dr.Rashmita Majhi, is an in-service candidate from SC category. Having secured more than 40% of marks she was found eligible to take admission in the aforesaid Postgraduate (Dental) Courses and ranked 139 under category and her overall rank was 2463. She was the only in-service candidate in the provisional merit list of candidates for (State Quota) MDS courses for the year 2016-17 and belonged to SC category. After publication of Guidelines for admission of candidates for Postgraduate (Dental) Courses in SCB Dental College & Hospital, Cuttack for the year 2016-17 under Annexure-2 (for short ‘the Guidelines’), which is approved by the Department of Health & Family Welfare, Government of Odisha, the Director of Medical Education and Training, Odisha-opposite party No.2 published notice (Annexure-3). The relevant extract of such notice is reproduced below for our consideration: “Eligible candidates for State Quota seats as per existing State guidelines are allowed to participate in the counseling. As per DCI guidelines, the qualifying marks in entrance examination AIPGDEE 2016 shall be General50%, SC/ST-40%. There is no reservation under OBC Category in the State.” 4. The relevant extract of such notice is reproduced below for our consideration: “Eligible candidates for State Quota seats as per existing State guidelines are allowed to participate in the counseling. As per DCI guidelines, the qualifying marks in entrance examination AIPGDEE 2016 shall be General50%, SC/ST-40%. There is no reservation under OBC Category in the State.” 4. The admitted position is that there were six seats to be filled up in the SCB Dental College and Hospital, Cuttack for the said course under the State quota, out of which three were to be filled up from among the direct candidates and three from in-service candidates. It is also not disputed that out of the three direct candidate vacancies, one was reserved for ‘Scheduled Tribe’ category and other two for ‘Unreserved’ category. All the three seats for in-service candidates were of ‘Unreserved’ category. The further undisputed position is that the candidates are to be selected in the order of merit, for both in-service and direct categories, from the merit list prepared by the “All India Post Graduate Dental Entrance Examination for Admission to MDS Courses-2016”. The Guidelines also provides that in case of non-availability of candidates against in-service seats, the seats shall be filled up by direct candidate and vice versa. 5. In the present case, the candidates for direct category were available and all the three seats of direct category were duly filled up, i.e., two from amongst the Unreserved category and one from ST category. The controversy in the present writ petitions is with regard to filling up of seats of the in-service category, which seats were all earmarked for Unreserved category. The other admitted position is that the eligibility for admission for PG Dental courses is minimum 50% of marks in the entrance examination for general category candidates and 40% for the candidates belonging to SC and ST categories. The only in-service candidate available was the opposite party No.6, who belongs to SC category and had secured 43.2% in the admission test. The petitioners in these writ petitions had secured more than 50% marks and were eligible for selection as general category candidate for the seats meant for direct candidates. 6. The only in-service candidate available was the opposite party No.6, who belongs to SC category and had secured 43.2% in the admission test. The petitioners in these writ petitions had secured more than 50% marks and were eligible for selection as general category candidate for the seats meant for direct candidates. 6. In such situation, where the only in-service candidate available was the opposite party No.6 (who is of SC category), she was selected for admission against the seats meant for general category, on the ground that she was eligible for admission having secured 43.2% marks (which is more than 40% marks). Challenging the said admission of the opposite party No.6, these two writ petitions have been filed by two direct candidates belonging to Unreserved category, who had secured more than 50% marks and claim that they were eligible for being considered for the seats, which has been allotted to opposite party No. 6, who was ineligible for consideration for the seat meant for Unreserved category candidates. 7. We heard Mr. Saswat Das, learned counsel for the petitioners, learned Addl. Government Advocate appearing for the opposite parties 1, 2 and 4; Mr. R.C. Mohanty, learned counsel for opposite party No.3-PG (Dental) Counseling & Admission Committee; Mr. S.K. Sarangi, learned counsel for the opposite party no. 5-Dental Council of India; and Mr. K.P. Mishra, learned counsel for private opposite party No.6-Dr.Rasmita Majhi. Pleadings between the contesting parties have been exchanged and with consent of learned counsel for the parties, these writ petitions are being disposed of at the admission stage. 8. There being no dispute with regard to the position that when the in-service candidates for the in-service category seats are not available, the said seats can be allotted to, and filled up by direct candidates, the only point for consideration in the present writ petitions is as to whether a candidate belonging to reserved category (SC in the present case) can be admitted to a general category seat, when she may be qualified and eligible for admission to a SC seat by having secured over 40% marks, but has secured less than 50% marks, which is the qualifying percentage of marks required for Unreserved category candidates. This question is pertinent because three seats meant for in-service candidates were all for Unreserved category and not reserved category. 9. This question is pertinent because three seats meant for in-service candidates were all for Unreserved category and not reserved category. 9. Perusal of the merit list, which is the source for grant of admission under State quota and had been prepared by the ‘All India Post Graduate Dental Entrance Examination for Admission to MDS Courses-2016’, would go to show that the petitioner-Dr. Shanti Sudha Sahu, was found ‘eligible for Unreserved and O.B.C. seats’ and the other petitioner-Dr. Gathani Dash, was found ‘eligible for Unreserved seat’, whereas the opposite party No.6-Rashmita Majhi, was found ‘eligible for S.C. seats only’. 10. As per the Dental Council of India Revised MDS Course Regulations, 2007, framed under Section 20 of the Dentists Act, 1948, the percentage of marks for eligibility for admission to Post Graduate Dental Course shall be 40% for the candidates belonging to Scheduled Castes and Scheduled Tribes. The submission of learned counsel for opposite party No.6 is that since the opposite party No.6 was found eligible for admission as S.C. and S.T. candidate, as she had secured more than 40% marks, she has rightly been given admission under in-service quota. The said submission has been reiterated by Sri R.C. Mohanty, as well as Sri S.K. Sarangi, learned counsel for other opposite parties. 11. What is to be considered by us is as to whether opposite party No.6 was eligible for the Unreserved seat or not. For appreciation of arguments raised by learned counsel for the parties, we feel it appropriate to deal with relevant provisions of the Guidelines for admission of candidates for PG (Dental) Courses in SCB Dental College and Hospital, Cuttack as well as the relevant provisions of ‘Dental Council of India Revised MDS Course Regulations, 2007’. “6. CATEGORY OF CANDIDATES: 6.1 A Direct Candidate is one who at the time of application: 6.1.1 Is son/daughter/spouse of a person who has served in Defence Service and stationed in Odisha for minim of 5 years by 31st MAR 2016. 6.1.2 Is either unemployed or in the employment of Government of Odisha/Public Sector Undertakings of Govt. of Odisha or Govt. of India located in Odisha, but not completed three years of service which includes all categories of employment like contractual/ temporary/ad-hoc/regular by 31st MAR 2016. 6.2 An In-service candidate is one who at the time of application: 6.21 Is under employment in Government of Odisha/Public Sector Undertakings of Govt. of Odisha or Govt. of India located in Odisha, but not completed three years of service which includes all categories of employment like contractual/ temporary/ad-hoc/regular by 31st MAR 2016. 6.2 An In-service candidate is one who at the time of application: 6.21 Is under employment in Government of Odisha/Public Sector Undertakings of Govt. of Odisha or Govt. of India located in Odisha and has completed a length of three years of service which includes all categories of employment like contractual/temporary /ad-hoc/regular by 31st MAR 2016, excluding at a stretch leave of any kind of 30 days or more. However the maternity leave is exempted from this exclusion and shall be counted towards the length of three years of service. Note: In-service and Direct candidates in employment under Government of Odisha/PSU, are advised to apply within intimation to their Employer. Copy of such intimation is to be submitted.” Regulation-9 thereof deals with method of selection of candidates, which reads as follows: “9. METHOD OF SELECTION OF CANDIDATES 9.1 Candidates belonging to both direct and in-service category shall be selected through an Entrance Examination i.e. AIPGDEE 2016. 9.2 Candidates shall be selected in order of merit (in-service & Direct). In case of non-availability of candidates against In-service seats, the seats shall be filled up by Direct candidates and vice-versa. 9.3 Unfilled “All India Seats”, if any, will be filled up as per the decision of the selection committee on the spot of counseling.” The provisions relating to selection of PG students as set out under the ‘Dental Council of India Revised MDS Course Regulations, 2007’ reads as follows:- “SELECTION OF POSTGRADUATE STUDENTS: (1) Students for postgraduate dental courses (MDS) shall be selected strictly on the basis of their academic merit. (2) For determining the academic merit, the university/institution may adopt any one of the following procedures both for P.G. Diploma and MDS degree courses: (i) On the basis of merit as determined by a competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the University/group of universities in the same state; or (ii) On the basis of merit as determined by a centralized competitive test held at the national level; or (iii) On the basis of the individual cumulative performance at the first, second, third & Final B.D.S. examinations, if such examinations have been passed from the same university; or (iv) Combination of (i) and (iii); Provided that wherever entrance test for Postgraduate admissions is held by a State Government or a university or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate Dental courses shall be 50% for general category candidates and 40% for the candidates belonging to Scheduled Castes and Scheduled Tribes. Provided further that in non-Governmental institutions fifty percent of the total seats shall be filled by the competent authority and the remaining fifty percent, by the management of the institution on the basis of merit.” (Emphasis supplied) 12. Opposite Party No.6 being a candidate of SC category and has been found ‘eligible for SC seats only’, could be accommodated against the seat reserved for SC category for which she was found eligible. From perusal of the ‘Eligibility Criteria of candidates’ provided in the Guidelines of 2016-17 and the Regulation 9(1) and (2) of the 2007 Regulations, we are of the opinion that if the opposite party No.6 was to be accommodated against Unreserved category seat, the same could have been done only if she had secured minimum 50% marks required for being eligible for admission into PG Dental Courses under Unreserved category. No doubt it is true that opposite party No.6 was the only in-service candidate available, but it is noteworthy that all the three seats meant for in-service candidates were for Unreserved category candidates. Admittedly, the qualification or eligibility meant for admission to Unreserved category seats, which was minimum 50% marks, would be applicable for all Unreserved category seats, whether under direct or in-service quota. Admittedly, the qualification or eligibility meant for admission to Unreserved category seats, which was minimum 50% marks, would be applicable for all Unreserved category seats, whether under direct or in-service quota. Since the opposite party No.6 has secured less than 50% marks, she could not be selected or be eligible for admission to the Unreserved category seat. As such, we are of the view that the order granting admission to the opposite party No.6 to the Unreserved in-service seat, deserves to be quashed as she did not fulfill the eligibility criteria for admission to such seat. Accordingly, we allow both the writ petitions to the extent that the admission granted to opposite party No.6 in the Unreserved category of in-service candidate (even though she had not secured the requisites percentage of marks meant for general category candidate), is quashed. The opposite parties shall fill up the said seat, in accordance with law, after holding a fresh counseling from amongst the candidates found eligible in the light of the observations/directions made hereinabove. 13. It is submitted by Mr. K.P. Mishra, learned counsel appearing for opposite party No.6 that in the meantime, opposite party No.6 has already completed one year in the Postgraduate Dental course. It may however be stated, that the said admission granted was subject to the outcome of the writ petitions. As such, we would not be inclined to pass any orders on the basis of the opposite party No.6 having been a student in the College for over a year.