SUNIL KUMAR KAR Vs. STATE OF ODISHA

JUDGEMENT

(1.) THIS writ petition has been filed with a prayer to direct opposite party No.1-State of Odisha, represented by the Secretary in the Department of Health & Family Welfare, Bhubaneswar and opposite party No.2-Convenor, P.G. Medical/Dental Counseling Committee, SCB Dental College & Hospital, Cuttack to include the petitioner in the "In-Service" category in the counseling for selection to the Post Graduate Medical Admission, 2013.

(2.) PETITIONER 's case in a nut-shell is that he after passing M.B.B.S. Examination in December, 2004 was engaged as Asst. Surgeon on contractual basis vide order No. 7506 dated 14.03.2007 of the Health and Family Welfare Department, Government of Odisha on a consolidated remuneration of Rs.12,000/- per month. Subsequently, vide Order No. 1524 dated 04.06.2007, Order No.2822 dated 16.08.2010 and Order No.3381 dated 21.09.2010 from the office of the C.D.M.O., Sonepur and Order No. 23363/H dated 21.09.2010 from H and F.W. Department, Government of Odisha, the petitioner continued to work as Asst. Surgeon (Contractual) at Mursundhi and later on as Consultant Physician at CHC, Biramaraharajpur, Sonepur and presently he is working as Medical Officer (Ad hoc) at CHC, Biramaharajpur, Sonepur. While working as such on contractual basis, the petitioner applied for appointment as Ad hoc Doctor pursuant to a notification of the Government, wherein he was selected by the Government, and thus, the petitioner, whose name appeared at Sl. No.25 of the list of selected candidates as per Notification No.23363/H/dated 21.09.2010 of opposite party No.1, joined on 27.09.2010 forenoon being posted at CHC, Biramaharajpur under Sonepur district. While the matter stood thus, advertisement for the National Eligibility-cum-Entrance Test P.G. 2013 came up which conducts entrance examination and assigns relative merit rankings basing on which the admission to Post Graduate Medical course is done. The rank is a single one irrespective of "Direct" or "In-Service". The petitioner applied for the said test and qualified in the examination. He was assigned All India Rank No. 21981 and State Rank No. 654. The petitioner was required to deposit Rs.1,000/- to register his name afresh for admission. The petitioner filled up the application form (e-registration) for admission to P.G. (Medical/Dental) courses for the session 2013-14 giving all the service experience claiming in-service category which is governed by the Guidelines for allotment of candidates for Post Graduate (Medical) Courses in the Government Medical Colleges of Odisha. On 11.07.2013 on verification of the documents, the Convenor considered the case of the petitioner and found him eligible as in-service candidate. However, on 26.07.2013 the petitioner's name found place in the common merit list of P.G. Medical, 2013 as direct candidate instead of in-service candidate. Without assigning any reason, petitioner has been considered as direct candidate in spite of the fact that the present petitioner has service experience of more than five years.

(3.) MR . Purohit further submitted that Hon'ble Supreme Court has held that the criteria of 2012 for in-service candidate would prevail as per which the petitioner is squarely covered under 'in-service' category. However, the web-site notified only on 26.7.2013, i.e., Friday after-noon denying the 'in-service" status to the petitioner considered him in the 'Direct' category. Thus, the cause of action arose on Friday evening and the petitioner filed the present writ petition on 29.7.2013. Hence, there is absolutely no delay on the part of the petitioner in approaching this Court. Opp. party no.2 had designed the schedule of admission in such a way that it left absolutely no scope for an aggrieved person to seek remedy. This Court has earlier allowed a candidate to take admission as "in-service" candidate in the identical situation vide order dated 24.7.2013 in W.P.(c) No. 16266 of 2013 who obtained 1420 in State Rank. Thus, the petitioner is entitled to the same relief whose rank No. is 654 in the State. There is no wrong in claiming such a remedy. Wrong must not be left remediless and right not to be left un-enforced. In support of his contention, Mr. Purohit relied upon the judgments of Hon'ble Supreme Court in the cases of Dhannalal v. Kalawatibai and others, 2002(6) SCC 16 and Rameshwarlal v. Municipal Council, Tonk and others, 1996 (6) SCC 100. Opp. party nos. 2 to 5 taking the plea of restriction imposed by the Hon'ble Supreme Court to complete the admission by 31st July, 2013 left the aggrieved person to continue to suffer for the wrong committed by them. Each order pertains to its own fact. Each fact deserves separate and independent consideration and requires modulation of relief befitting to the case that is why the judiciary is being manned by thinking of Hon'ble Judges without being backed by earlier decision and not by computer who can dispense better equal justice. The Hon'ble Supreme Court has not restricted the power vested under Article 226 of the Constitution of India and not a single judgment of the Hon'ble Supreme Court is there which can put an absolute bar even after the injustice and illegalities perpetrated by the State. No judgment protects a wrong action and the wrong doer cannot be given advantage of his own wrong. Opp. parties 2 and 5 have wrongfully denied the petitioner to avail the in-service benefits. Placing reliance on a judgment of Andhra Pradesh High Court in W.P.(C) No.20041 of 2012, Mr. Purohit submitted that while deciding an identical issue the Hon'ble Andhra Pradesh High Court granted relief of compensation of Rs.4.00 lakhs and a seat in the next year P.G. The vacant seat of All India quota if would be surrendered in that event, the petitioner may be given a seat in M.S (Orthopedics).