DR. ABHAY KUMAR OJHA Vs. STATE OF ODISHA

JUDGEMENT

(1.) Appellants, who are serving as Senior Medical Officers under different Public Sector Undertakings (for short, 'PSUs') of the Central Government as well as the joint venture of both Central Government and State Government, who have applied for the Postgraduate Medical Course for the academic year 2012, have challenged the Clauses, particularly Clauses 6.2 and 6.2.1 of the Prospectus of Postgraduate (Medical) Selection for exclusion of their applications under the in-service category. They have completed five years of service under the Public Sector Undertakings owned by the Central Government. The action of the PG (Medical) Selection Committee in framing the above clauses in the Prospectus is contrary to the law laid down on the legal question involved in this case and the same is violative of fundamental right guaranteed under Article 14 of the Constitution of India. They have approached this Court by filing the Writ Petition bearing W.P.(C) No.32976 of 2011 disposed of on 15.02.2012 seeking for the relief for declaration of Clause 6.2 and additional weightage marks as per Clause 11.2 of the Prospectus of PG (Medical) Selection, 2012 as illegal and invalid; and further to issue a writ of mandamus to the Committee to accept the applications of the appellants as against in-service seats and treat them as in-service candidates at par with the doctors serving under the State Government in the matter of PG (Medical) Selection and to give weightage marks as provided under Clause 11.2 in addition to the marks secured by them in entrance examination by treating them as in-service candidates under Clause-6.2 of the Prospectus, 2012 and prepare the ranking list for admission to the P.G. (Medical) Course, since the exclusion of the appellants-doctors, who are working under the Public Sector Undertakings run by Central Government are classified as direct candidates but not in-service candidates and not extending additional weightage marks benefit to them under Clause 11.2. The learned Single Judge has dismissed the writ petition by passing the impugned order applying the ratio of the Division Bench Judgment of this Court in the case of Dr. Deepak Kumar Singh v. Convenor, PG Medical Selection Committee, SCB Medical College, Cuttack and Others., reported in 103 (2007) CLT 724, even without considering the observations made by another Coordinate Bench in the case of Dr. Jagannath Behera and Others v. State of Orissa represented by the Secretary to Government of Orissa in the Department of Health and Family Welfare and Others, reported in 1989 (II) OLR 185, which decision has been followed in another subsequent Division Bench Judgement of this Court reported in the case of Dr. Sri Kumar Mohanty and Others v. State of Orissa, represented by the Secretary, Health and Family Welfare Department, Govt, of Orissa, Bhubaneswar and Others., 1991 (I) OLR 142, without referring to the observation made in the above two Division Bench judgments made by this Court following the latter judgment in the case of Dr. Deepak Kumar Singh's case (supra) dismissing the writ petition. In the case of Dr. Jagannath Behera and Others case, after referring to the judgment of the Hon'ble Supreme Court, in the case of Kumari N. Vasundara v. The State of Mysore and another, AIR 1971 SC 1439, wherein the Hon'ble Supreme Court held that the State has the power to formulate the policy with reasonable foresight a just scheme of classification for imparting medical education to the available candidates which would serve the object and purpose of providing broad-based medical aid to the people of the State and to provide medical education to those who are best suited for such education and dismissed the Writ Petition after making observation that the Medical Council of India prescribed three years PG Course which indicated 50% of the seats available to the State Government which shall be allotted for selection of candidates through All India Entrance Examination and the rest 50% seats shall be available to the direct and in-service candidates who belong to the State. The correctness of the said order of the learned Single Judge is challenged in this Appeal urging following grounds :-

(2.) Mr. Pradeep Kumar Sahoo, learned counsel appearing for the appellants, placed strong reliance upon the judgment of this Court in Dr. Jagannath Behera and Others' case supra and a batch of cases referred to supra, wherein the Division Bench of this Court has decided the case holding that the action of the State Government in excluding the doctors serving under the PSUs controlled by the State Government making them another distinction within the in-service quota has no reasonable nexus with the object sought to be achieved and hence the same is violative of Article 14 of the Constitution. The said case was carried on to the Hon'ble Supreme Court in SLP. The Hon'ble Supreme Court directed the State Government to give admission to those petitioners under the in-service quota who came out successful as per their performance in the entrance examination considering them as in-service category and thereafter the State Government has not contested the case and admitted those doctors accordingly in the P.G. Medical (Course). That decision has been followed in the case of Dr. Sri Kumar Mohanty and Others' case supra, wherein the other Coordinate Division Bench of this Court again considered the same question and answered the issue positively in favour of the doctors who were working in the PSU of State Government. The Division Bench in the said case, referred to different judgments of the Hon'ble Supreme Court including the case of Dr. Jagannath Behera and Others of this Court referred to supra and held that omitting the doctors serving under the PSUs from the category of in-service doctors is violative of Article 14 of the Constitution after haying discussed the in-service quota additional weightage benefit provided by the State Government. It was held in the said case that there was no overlapping of the two categories since seats have been allotted for direct category and in-service category separately which are two different channels of entry to the PG (Medical) Course although the examination is the same. It was further held that permissible strength of reservation, which is within the domain of the State Government, the State Government can not debar doctors who are working in the PSUs from the in-service category by classifying the doctors who are working under the State Government or PSUs owned by the State as in-service candidates and excluding the doctors who are working in the PSUs which are under the control of Central Government, the same creates unreasonable classification of the same class of doctors and the same has no-nexus with the object of classification and not reasonable which is impermissible in law.

(3.) Further, the learned Single Judge has not noticed the relevant fact, viz., the State Government in its PG Medical Prospectus included the doctors serving under the PSUs till the year 2005 and in the year 2006 there was no examination conducted for PG Medical Course. Only in the year 2007, publishing the prospectus, a definition of in-service candidate was incorporated and the doctors, who are working with the PSUs controlled by the Central Government, were excluded from the in-service category. Though they have completed five years of service and fulfilled all other conditions for being treated as in-service category, which action of the PG Selection Committee is contrary to the law laid down by this Court. Hence, it is contended on behalf of the appellants that the learned Single Judge placing reliance upon the decision of this Court in the case of Dr. Deepak Kumar Singh supra and dismissing the writ petition of the appellants is not tenable in law for the reason that in the said case the earlier aforesaid two Division Bench judgments of this Court decided on the similar legal questions were not considered. Therefore, the judgment in the case of Dr. Deepak Kumar Singh supra should not have been applied and the judgment of the Hon'ble Supreme Court in Kumari N. Vasundara's case referred to supra upon which reliance placed is also not applicable to the fact situation; therefore, requested this Court to set aside the impugned order and grant the relief to the appellants as prayed in the writ petition.