DR. RUDRA DEO KUMAR Vs. STATE OF ODISHA

JUDGEMENT

(1.) This writ petition has been filed with a prayer for quashing Clause-F of the New Odisha Prospectus and Clause-2 of the Public Notice dated 03.10.2012 issued by the National Board of Examination and for a direction to the opposite parties to consider the petitioner for selection in the State Quota Merit List of Odisha.

(2.) Petitioner's case in a nut-shell is that National Eligibility-cum-Entrance Test (for short 'NEET-2013') is a qualifying-cum-ranking examination notified under the provisions of Postgraduate Medical Education Regulations, 2000 by the Medical Council of India with prior approval of Government of India. It is governed by the National Board of Examination (for short 'NBE') which came into existence in October, 2012 to conduct the Postgraduate Eligibility-Cum-Entrance Examination in order to select the candidates for the Postgraduate (Medical) seats for the year 2013-14. Since NEET-PG is the new mode of conducting entrance examination for prospective PG Medical/Dental candidates a lot of queries were put forward by candidates with regard to the actual parameters that are taken to prepare the All India Merit List (50% quota) and State Merit List (50% quota) in respective States. In reply to such queries of the candidates a public Notice dated 3rd October, 2012 (Annexure-2) was published by the NBE so as to clarify the position with regard to the basis on which the. All India Merit List and State Merit List shall be prepared. Petitioner's case is that as per the public Notice dated 3rd October, 2012 every candidate who takes the NEET-2013 will be awarded with one All India Rank and two State Ranks, i.e., one will be prepared in the basis of the State of Graduation and another on the basis of the domicile, i.e., the candidate must be a permanent resident of a State to be considered for selection in preparation of 50% quota of that State. Petitioner completed his BDS course from S.C.B. Dental College, Cuttack and in order to pursue higher studies in Dental filled up the application form to take the NEET-2013 for MDS and PG Diploma courses. NEET-2013 for PG Courses (Dental) was held on 13th of January, 2013 in which the petitioner secured an all India Rank of 1851 in the NEET-2013 issued by the All India Institute of Medical Science (for short, 'AIIMS') in consonance with the NEET-2013 (MDS and PG Diploma) Prospectus.

(3.) Mr. S.P. Mishra, learned Senior Advocate appearing for the petitioner submits that the petitioner while filling up the application form has duly filled up the domicile name as Bihar under Serial No. 9 of the application form and has also filled up the details of the qualifying examinations passed under Serial No. 16, which is form the Dental Wing of S.C.B. Medical College and Hospital, Cuttack. As against the choice of participating in All India/State as given under Serial No. 17 of the application form, the petitioner has indicated that he wants to participate in both the quota, i.e., All India and State so as to enable himself to be considered for selection in both the All India Merit list and State Merit List. Mr. Mishra further submitted that in accordance with and in compliance to the directives of the Hon'ble Supreme Court of India, AIIMS conducts the NEET for admission to Ministry of Health and Family Welfare/Dental Council of India recognized/approved/permitted seats of Dental Colleges for various Postgraduate Courses (MDS/PG Diploma). As per Clause-12(B) of the NEET-2013 Prospectus, the AIIMS also issues ranks to the participating candidates and prepares an All India Rank List and forwards the respective State ranks of those candidates to the Directorate of Medical Education of the State/Union Territory concerned for the purpose of allotment of seat by online counselling/personal appearance subject to the applicable law prevailing in the State/Union Territory. Mr. Mishra further submitted that none of the candidates appearing in the NEET-2013 (MDS/PG Diploma) has been issued with State Ranks (one on the basis of their State of Graduation and another on the basis of their domicile) by AIIMS and only one rank, i.e., the All India Rank has been provided to each of them and their State quota has been forwarded to the respective Directorates of Medical Education of those States for preparation of the State Merit Lists in accordance with the guidelines issued by the concerned authorities in that State for such allotment of seats in Postgraduate Medical/Dental in different Government Colleges. The Government of Odisha in Health and Family Welfare Department also issued guidelines for allotment of candidates for Postgraduate (Medical) courses in the Government Medical Colleges, Odisha vide Letter No. ME-II-M-25/20121610/H dated 27.05.2013 and those guidelines governed the selection of candidates into the State Quota for PG Medical/Dental courses, more particularly Clause-F, which deals with the category of students. The guidelines dated 27.05.2013 brought only those candidates within the purview of selection in the State Merit List who are permanent residents of Odisha irrespective of the fact that they completed their graduation outside Odisha. The guidelines dated 27.05.2013 were brought to the notice of the candidates much after the publication of the public notice dated 03.10.2012 vide (Annexure-2) and also after the examination held as well as after the results were declared. The same being contrary to the said public notice dated 03.10.2012, it amounts to change of Rule of Game in midway which is not permissible under law as was held by the Hon'ble Supreme Court in the case of Parmender Kumar and others v. State of Haryana and others, 2012 (1) SCC 177. The guidelines dated 27.05.2013 were not framed in accordance with and adherence to the ratio laid down by the Hon'ble Supreme Court in the case of Pradeep Jain v. Union of India and another, (1984) 3 SCC 654, wherein the Hon'ble Supreme Court categorically stressed on the constitutional necessity of giving preference to reservation based on institution over the residence requirement as institutional continuity is constitutionally and fundamentally more aligned with the Right to Equality, which is a fundamental right under the Constitution of India. Petitioner, in spite of having completed his BDS Course in S.C.B. Dental College, Cuttack was debarred from participating in the process of online registration for PG Medical/Dental Admission 2013-14 on account of the fact that he was not a permanent resident of Odisha. The process of online registration requires the candidates to have not only qualified in the NEET-PG 2013 Examination, but also they have to fulfil different criteria as per guidelines laid down by the Government of Odisha, i.e., such candidates must be permanent residents of Odisha. The State Merit List prepared by the PG Selection Committee, Odisha has been prepared on the basis of Clause-F of the Guidelines issued by the Government of Odisha vide its letter dated 27.05.2013 as a result of which the petitioner has not been considered in the process of such selection as he is not a permanent resident of Odisha. Such ousting of the petitioner on the ground of non-fulfilment of residence requirement is not only against the ratio laid down by the Hon'ble Supreme Court in the case of Pradeep Jain (supra) and other pronouncements that are followed the principles of institutional continuity and preference over residence requirement but is also contrary to the Public Notice dated 03.10.2012 and also establishes itself as a distinct case of negative discrimination in debarring the petitioner from opting for 50% of the State Quota seats that he is entitled to along with 50% of All India Quota seats. The guidelines framed by the opposite parties contravenes and invalidates the Statute on the Right of Equality and violative of Article 14 of the Constitution of India. The Policy or the Guidelines framed cannot withstand the interference of the Judiciary or sustain under the watchful eyes of law if such policies and guidelines are against public interest. In the present case, the petitioner is prejudiced for not being considered either in his place of residence or his place of institution as far as his selection in the State Merit list is concerned. Therefore, such guidelines framed by the opposite party-authorities are liable to be set aside and quashed. Right of Education is a fundamental right as held by the Hon'ble Supreme Court in Unni Krishnan, J.P. and others etc. etc. v. State of Andhra Pradesh and others etc. etc., AIR 1993 SC 2178. The Fundamental Right of the petitioner has been infringed by depriving him of studying in the State of Odisha when he is eligible for the same.