DR. BIKASH CHANDRA NANDA Vs. STATE OF ODISHA

JUDGEMENT

(1.) The correctness of the order dated 3.2.2012 passed by the learned Single Judge in W.P.(C) Nos.33111 and 33202 of 2011 is under challenge in this appeal. Learned Single Judge after examining the claim of the writ petitioners-respondents 5 and 6 questioned the correctness of the prospectus particularly clause 11.2 thereof wherein additional weightage of marks has been stipulated which is contrary to the MCI guidelines issued vide notification dated 17.11.2009. Clause 3 of the notification stipulates as follows: The following proviso shall be added after clause 9(2)(d) of the Postgraduate Medical Education (Amendment) Regulations, 2000 as amended by "Postgraduate Medical Education (Amendment) Regulations, 2009" (Part II) :

(2.) It was contended that the same is incorporated as a clause in the prospectus but added direct candidates. It was further contended that the same is in contravention of the aforesaid guidelines of the MCI. Therefore, the contention was examined by the learned Single Judge with reference to the guidelines of the MCI and the prospectus which were challenged in the writ petition. Learned Single Judge by recording reasons, referring to the MCI guidelines and the eligibility criteria fixed in the prospectus, allowed the writ petition vide order impugned and directed the Opposite Party-respondents 1 to 4, DMET in particular, to issue corrigendum in terms of observation/direction at paragraph-11 thereof with reference to the eligibility criteria fixed in the prospectus. To become eligible to apply for P.G. admission, one must have passed M.B.B.S Degree examination from an institution recognised by MCI and must have completed Rotating Internship by 31.3.2010 whereas in case of direct candidates, the candidate is required to complete one year house man ship by 31.3.2012. In case of in service candidate, one has to complete five years of service which includes all categories of employment like contractual/temporary/ad hoc/regular by 31.12.2011. The writ petitioners contended that fixing up of two different categories of candidates is discriminatory. This aspect has been examined by the learned Single Judge, who accepted the case of the writ petitioners-respondent Nos.5 and 6 and directed the DMET for issuing corrigendum. The correctness of the same is questioned by some direct candidates in this appeal placing reliance that persons who have already completed MBBS Degree and/or doctors mentioned two categories of persons appearing in the PG Entrance Examination, namely, MBBS Degree and doctors who are in the final year Degree, the benefit has been given to them to complete their houseman ship by 31.3.2012 and in the case of doctors who have completed five years in Government service are entitled to compete for in-service seats only, as they are called in-service candidates. It is further contended that all doctors are entitled to the benefit of clause 11.2 weightage subject to maximum 30%. The consequence of the judgment in making the deadline provided under clause 5.3 to persons coming within the purview of clause 11.2 amounts to treating unequals as equals which hits Article 14 of the Constitution of India. It also amounts to varying the conditions of the prospectus in the mid way of selection. That is with reference to the houseman ship doctors, doctors who have MBBS course and includes as doctors embargo. As per clause 6.2.1. a direct candidate is one who at the time of application is in the employment under Government of Odisha and has completed a length of five years of service which includes all categories of employment like contractual/ temporary/ad hoc/regular by 31st December, 2011, excluding at-a-stretch leave of any kind, of 30 days or more. It is further submitted that the doctors who have no or less than five years of Government service, are entitled to compete for direct seats. Mrs. Pami Rath placed strong reliance upon the following decisions of the apex Court reported in 2008 (10) SCC 687 paras 16 and 17, 1997 (4) SCC 18 para 6 and 2007 (4) SCC 54 in support of her contention. The last date for considering the qualification should be last date of submission of form and not qualification acquired later. The prospectus has been given two dates and direction to the DMET to issue a corrigendum, accept the same, extend the said benefit to the doctors who have not completed five years as on 31.12.2011 is a clear case of discrimination. Learned Single Judge has not considered this important aspect of the matter. Therefore, it is contended that the impugned order is vitiated in law and further placed reliance upon clause 5.3 in the prospectus. It is contended that when a person under clause 5.3 apply then their respective principal gives an undertaking that the candidate's internship and MBBS would be completed by 31.3.2012. Persons availing benefit under clause 5.3 would not go back from their representation because then they would remain non doctors for all purpose and person without a MBBS degree. This important aspect of the matter has not been considered by the learned Single Judge. Further it is contended that candidates who have applied have all submitted details upto 31.12.2011. Persons who have not completed a year of service by 31.12.2011 but would completed it any time after 31.12.2011 and before 31.3.2012 would now be deemed to complete a year of service due to the extension of the date without any factual verification of the same. She further contended that in fact the said persons can easily apply for leave on the next day after the last date of submission of application and straight join PG course after availing benefit under clause 11.2. The opposite parties have no means to know the same. Therefore it is contended that the extension of time to the doctors who are in service is discriminatory vis-a-vis the appellants who have actually served for 365 days or more.

(3.) Learned counsel appearing for respondents 5 and 6 sought to justify the order contending that the order impugned is in conformity with the guidelines of the MCI and the claim and counter-claim of the parties have been examined by the learned Single Judge. It is further contended that the learned Single Judge has rightly directed the DMET for issuing the corrigendum. Therefore, the impugned order does not call for interference by this Court.