Orissa High Court
Dr. Himansu Sekhar Sahoo vs State Of Odisha & Ors. --- Opp. Parties on 24 July, 2013
Author: C.Nagappan
Bench: C.Nagappan, Indrajit Mahanty
THE HIGH COURT OF ORISSA : CUTTACK W.P.(C) NOs. 12740, 12739, 12826, 12809, 13560, 13161, 16015 & 16016 of 2013 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------------- Dr. Himansu Sekhar Sahoo and others --- Petitioners in W.P.(C) No.12740 of 2013 Dr. Biswajeet Kar and others --- Petitioners in W.P.(C) No.12739 of 2013 Dr.Tanushree Mishra and others --- Petitioners in W.P.(C) No.12826 of 2013 Pradyumna Kanhor --- Petitioner in W.P.(C) No.12809 of 2013 Dr.Satyabrata Routray and others --- Petitioners in W.P.(C) No.13560 of 2013 Dr.Sitakanta Panda --- Petitioner in W.P.(C) No.13161 of 2013 Dr. Rajendra Das and another --- Petitioners in W.P.(C) No.16015 of 2013 Dr. Sangram Keshari Sahoo and another --- Petitioners in W.P.(C) No.16016 of 2013 -Versus- State of Odisha & Ors. --- Opp. Parties (in all the writ petitions) For Petitioners : M/s.R.K.Rath, Sr. Advocate S.K.Das & S.K.Mishra (in W.P.(C) No.12740 of 2013) 2 M/s. G.A.R.Dora, Sr. Advocate G.Rani Dora, J.K.Lenka & P.K.Behera (in W.P.(C) No.12739 of 2013) M/s. J.Patnaik, Sr. Advocate B.Mohanty, P.K.Pattnaik, S.Pattnaik, A.Pattnaik, R.P.Roy, B.S.Rajguru (in W.P.(C) No.12826 of 2013) Mr. Bhojaraj Seth (in W.P.(C) No.12809 of 2013) M/s. Dillip Kumar Mohapatra, A.Sahoo & N.Nayak ` (in W.P.(C) No.13560 of 2013) M/s. Sanjit Mohanty, Sr. Advocate U.K.Sahoo & S.C.Samantaray (in W.P.(C) No.13161 of 2013) M/s. Umesh Ch. Patnaik, A.Mishra & S.Patnaik (in W.P.(C) No.16015 of 2013) M/s. Avijit Mishra, S.Patnaik & S.Soren. (in W.P.(C) No.16016 of 2013) For Opp. Party No.1 : Mr.R.K.Mohapatra, Govt. Advocate For D.M.E.T. & M.C.I. : Mr.R.C.Mohanty For Intervenors : Mr. S.K.Padhi, Sr. Advocate & Mr.S.P.Mishra, Sr. Advocate. 3 PRESENT: THE HON'BLE CHIEF JUSTICE SHRI C.NAGAPPAN & THE HON'BLE SHRI JUSTICE INDRAJIT MAHANTY. Date of Hearing: 18.07.2013 Date of Judgment: 24.07.2013 ________________________________________________________________________ C.Nagappan, C.J. In this batch of writ petitions, the petitioners herein are the Doctors who have served under the State Government for more than "five years" and they seek to challenge the guidelines framed by the State Government for allotment of candidates for Post Graduate (Medical) Course, 2013 in Odisha, communicated under cover of letter dated 27.5.2013 and further seek to challenge the decision of the State Government to treat the Doctors who have served for "three years" under the "in-service category" for admission into Post Graduate (Medical) Course in the academic year 2013-14. 2. Learned counsel for the petitioners submits that the petitioners after completing of their M.B.B.S. degree registered themselves under the Orissa Medical Council as registered doctors and after they were selected by the Orissa Public Service Commission (OPSC) were appointed as Asst. Surgeons under the service of the State and have all completed five or more years of service under the State. It is stated on behalf of the petitioners that in exercise of the power under Section 33 of the Indian Medical Council Act, 1956, the Medical Counsel of India passed a regulation called "Post Graduation (Medical) Education Regulation 2000" which have been 4 amended from time to time and by amendment made by the Notification dated 21.12.2010, the Medical Council of India decided by way of regulation to hold a common National Eligibility cum Entrance examination for admission into the P.G. (Medical) Courses throughout the country each year. Such examination is called as the "National Eligibility cum Entrance Test (NEET) for Admission to P.G. (Medical) Courses". To conduct the aforesaid examination, the National Board of Examinations (NBE) was constituted and such common eligibility test was to be given effect to from the session 2013-14. 3. Pursuant to the aforesaid decision, the National Board of Examinations issued a "information bulletin" requiring eligible candidates to apply for admission into P.G. courses for the year 2013. The said bulletin stipulates the time schedule which requires the submission of application form through online registration between 4th October to 12th November, 2012 and the date of entrance examination was fixed from 23 rd November to 6th December 2012 and declaration of result was to be made by 31 st January, 2013. The most important clause in the Information Bulletin issued by the National Board of Examinations for our present purposes is at Clause-IV which is quoted hereunder. "The reservation of seats in medical colleges/institutions for respective categories shall be as per applicable laws prevailing in States/Union Territories. An all India merit list as well as State-wise merit list of the eligible candidates shall be prepared on the basis of marks obtained in National Eligibility-cum-Entrance Test and candidates shall be 5 admitted to Post Graduate courses from the said merit lists only. Provided that in determining the merit of candidates who are in service of Government/public authority, weightage in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in remote and/or difficult areas upto the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test, the remote and difficult areas shall be as defined by State Government/competent authority from time to time." 04. It is further averred by the petitioners that, the term "as per applicable laws prevailing in States" so far as Orissa is concerned, refers to the policy of the Orissa State Government followed from 1980 till 2012 whereby, the "in-service candidates" have been defined in Clause-6.2.1 of the prospectus for Selection of Candidates for Post-Graduate Courses in the Government Medical Colleges of Odisha-2012 as follows: "Is in the employment in Government of Odisha and has completed a length of 5 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. However the maternity leave is exempted from this exclusion and shall be counted towards the length of five years of service." Relying on the above, it is asserted on behalf of the petitioners that at the time of their application they had completed "five years" of service and therefore, they alone should be considered for admission into seats reserved for "in-service" candidates and no others. 05. In the light of the above, it is submitted that whereas the notice for holding of the National Eligibility cum Entrance Test was issued in the month of September 2012 and online registration was to be held between 4th 6 October, 2012 to 12th November, 2012 and examination was to be conducted by 23rd November and result were also to be declared by 31st January, 2013. The opposite party-State have sought at this belated stage to change the eligibility criteria by issuing the impugned guidelines under cover of letter dated 27.05.2013 by redefining the definition of "in-service candidates" and making such guidelines applicable for admission during the academic year 2013-14 which is as follows: "F.2. An "In-service candidate" is one who at the time of application:- Is in the regular employment in Government of Odisha/Govt. of Orissa Public Sector Undertakings/Govt. of India Public Sector Undertakings located in Odisha and has completed a length of 3 years of regular service including contractual, temporary, ad- hoc and has been duly selected by Govt./OPSC/PSU appointing authority, before 31st March 2013, 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." And also further issuing the following directions: "The Selection committee shall collect the detail State Quota seats for the academic year 2013-14 from the Principals of three Govt. Medical Colleges and Hi-Tech Medical College, Bhubaneswar and prepare the seat matrix for counseling. The reservation percentage should be strictly adhered to while preparing such merit list." 06. Learned counsels for the petitioners in the present batch of writ application while seeking to challenge the guidelines framed by Orissa as mentioned hereinabove and its communication to the DMET vide letter dated 27.5.2013, inter alia, submit that the said guidelines having been issued, much after the results have been declared, the same ought not to have been made applicable for admission in the year 2013. It is further 7 submitted that such a policy itself cannot and ought not to have given any retrospective operation. In this respect, reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Secretary, A.P.Public Service Commission v. B.Swapna and others, (2005) 4 SCC 154 which lays down the proposition that "once the process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play." For better appreciation, Paragraph-14 thereof is quoted herein below: "14. The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by learned counsel for Respondent 1 applicant it was the unamended rule which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only." Reliance was also placed on the judgment of the Hon'ble Supreme Court in the case of K.Manjusree v. State of Andhra Pradesh and another, (2008) 3 SCC 512, wherein the Hon'ble apex Court has laid down the law that "Therefore, introduction of requirement of minimum marks for interview, after the entire selection process (consisting of written 8 examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible." Reliance was also placed on the judgment of the Hon'ble Supreme Court in the case of Mohd. Raisul Islam and others v. Gokul Mohan Hazarika and others, (2010) 7 SCC 560. While deciding the question as to whether the amended rule would operate prospectively or retrospectively, the Hon'ble Supreme Court held that "the effect of amendment to rules on seniority of persons recruited in selection process initiated prior to amendment, the applicable rules are those on basis of which selection process was commenced." 07. The State, on the other hand, opposed the prayer made in the batch of writ applications and placed reliance on the counter affidavit filed on behalf of opposite parties 1, 2 and 3 and submitted that the Govt. of Orissa on 16.10.2012 has taken a "decision" regarding the criteria of admission to P.G. students appearing in the National Eligibility cum Entrance Test, 2013 and it was decided as follows: "That, the total P.G. seats in different disciplines of Medical Colleges of our State comes to 343 earlier, 50% of the seats were filled up through selection process conducted by State P.G. Council and the rest 50% State quota was filled up from among direct and in-service candidates on 50:50 ration basis. Now a common entrance test will be conducted by National Board of Examination leaving no scope for State authority to intervene. In the larger interest of State following provisions may be incorporated by NBE while finalizing the norms of selection process. 1. Even if a common test is conducted, 50% of the total seats need to be filled up from among the permanent natives of Odisha. 9 2. The system of percentage need to be converted to percentile should be lowered so as to fill up all the State seats by the native of Odisha. 3. The regular OPSC sponsored candidates having three years of service experience including the period of contractual/adhoc service may be considered as an in-service candidate. 4. The seats reserved for in-service candidates need to be filled up from among the in-service candidates only. 5. The State will prepare its own merit list from among the selected candidates by allowing additional weightage of 10%, 20% & 30% to in-service doctors serving in Remote/Tribal/backward area for a period of one, two and three years respectively and accordingly the State Govt. has send a letter to the Secretary, Ministry of Health and Family Welfare, Govt. of India, Nirmal Bhawan, New Deli regarding National Eligibility cum Entrance Test for P.G. students in the selection process to safeguard the interest of the State." The regular OPSC sponsored candidates having three years of service experience including the period of contractual/adhoc service may be considered as "in-service" candidate and in support of this, placed reliance on Annexures-A/3 and B/3 respectively. It is further contended that once the Medical Council of India decided to hold the National Eligibility cum Entrance Test, several writ applications came to be filed before the Apex Court. The Hon'ble Supreme Court on 13th December, 2012, while adjourning the matter for further hearing, allowed the respective entrance examination which had already been notified to be held. As a consequence of this, National Eligibility cum Entrance Test was conducted. It is further submitted that while the State has not challenged the Notification of the Medical Council of India dated 27.12.2010 notifying the National Eligibility cum Entrance Test (NEET) for admission into Post Graduate Medical 10 Course, on receipt of the orders of the Hon'ble Supreme Court dated 13.12.2012 intimated the National Board of Examination to conduct entrance test for P.G. (Medical) Course for the State of Orissa and further that the counseling would be conducted by P.G. (Medical) Selection Committee. In Paragraph-20 of the counter affidavit, relevant portion is stated as follows: "xx xx The DMET, Odisha had moved the file for approval of the guidelines for admission to P.G. Courses on 11.04.2012 which was finally decided on 29.04.2013 by the Government regarding the conditions/eligibility etc. for admission to the course, wherein it was decided that 3 years continuous service will be taken for consideration instead of five years for in-service doctors and the said decision of the Government was communicated along with the guideline to the DMET, Odisha on 27.05.2013. xx xx" 08. It is also pertinent to mention herein that, in the course of hearing of this case, it was brought to our notice that Hon'ble Supreme Court had finally disposed of the batch of writ applications by quashing the Regulation introducing the National Eligibility Entrance Test (NEET) vide judgment dated 18.7.2013. 09. In the light of the aforesaid circumstances, learned counsel for the State has appended various documents including note-sheets which clearly indicates that the various suggestions were being considered by the State Government, in the respective Ministries regarding redefining the eligibility criteria for various reasons (including the fact that the challenge pending before the 11 Hon'ble Supreme Court although various recommendations had been made) but it ultimately culminated in a decision only on 21.5.2013 (erroneously noted as 21.5.2012) when Hon'ble Chief Minister signed in the said file and communicated the said decision to the DMET, Odisha under cover of letter dated 27.5.2013. 10. Learned counsel for the intervenors, on the other hand, vehemently contended that in the present facts and circumstances of the case, there is neither any necessity nor any justification to interfere with the impugned guideline framed by the State of Odisha. As would be available from the counter affidavit of the State since in the past, the seats reserved for "in-service candidates" by the State of Odisha were going unfilled and remained vacant and since adequate number of eligible candidates having 5 years of work experience in the State were not being found, as a consequence a number of seats were being left vacant which was thereafter being given to the "direct candidates" and, therefore, no impediment is caused to the petitioners who claims to have 5 years or more experience. 11. It is further contended that the notification of the Medical Council of India and the bulletin issued by the National Board of Examination refers to "applicable laws prevailing in the State" and there being no law prevailing in the State of Odisha, no infraction thereof can be pleaded. At the very best, a prevailing practice or 12 convention existed and such prevailing practice or convention cannot take the place of "existing law" as stipulated in NBE's instructions. 12. It is submitted on behalf of the intervenor that in the present facts situation of the case, the NBE did not issue any prospectus and only issued instructions, pursuant to which all applicants made their applications online. Therefore, in terms of the directions issued by the NBE, the petitioners as well as intervenor (who have completed "three years of work experience") appeared at the same examination. It is submitted that in the present case, there is no change of rules of the game after the game has begun, since the State had not framed any guideline or policy for admission for the year 2013. While the NBE conducted the examination, the State was at liberty to frame its guidelines, prior to selection of candidates for admission (counseling) and in the present case, the counseling is yet to be made for admission into P.G. Degree course for 2013. The guidelines of the State impugned herein would govern selection to be made after framing of the guidelines and, therefore, the case laws cited by the petitioners relating to change of the rules of the game after the process of selection had begun, has no application. It is averred that in the present case, in the absence of any guidelines or policy of the State, all applicants i.e. the petitioners as well as opposite parties appeared in the self-same entrance exam and, therefore, their names finds mention in the merit list. But since 13 counseling is yet to be conducted the issue of the impugned guidelines by the State, prior to counseling, cannot make the said guidelines retrospective in operation as alleged but prospective, since the counseling was yet to be conducted. 13. Having heard the learned counsel for the petitioners, learned counsel for the State as well as the leaned counsel for the intervenors, we are of the considered view that the main issue that arises for consideration in the present case is, as to whether the impugned guidelines framed by the State of Odisha and communicated to the DMET on 27.5.2013 can be permitted to govern admissions into P.G. Degree courses for "in-service candidates" for the year 2013. 14. In this respect, it would be important to take note of the stand of the State as contained in the counter affidavit and in particular, Paragraph-6 in which it is stated that the State Government was facing problems as the in-service Doctors having minimum five years service were not sufficiently available and even if available were not qualifying at the entrance examination for which reason the State Government decided to reduce the period of service in the eligibility of "in-service candidates" from five years to three years. While this reason apparently forms the basis for the change of policy of the State Government, while we find the reason behind such decision to be germane and in the interest of the State, yet, the 14 question remains as to whether such policy could cover admission for the academic year 2013-14 or not? 15. While the impugned guidelines in Clause F-2 defines that "an in-service candidate is one who at the time of application", is in the regular employment in Government of Odisha. Similarly, in Clause F-1 which defines that "a direct candidate is one at the time of application. 16. Since applications had been called for by the NBE between 4th October 2012 to 12th November, 2012 i.e. before midnight of 12th November 2012, the law prevailing at the time of submission of application would alone be relevant and no subsequent law or policy. Although it is contended by the State that the State was contemplating amendment to the eligibility criteria of "in-service candidates" from five years to three years in the counter affidavit in Paragraph-21, the stand of the State is unambiguous and clear. We can do no better than to extract Paragraph-20 of the counter affidavit of the State which is as follows: "20. That, the State Government had not issued any guideline for allotment of candidates for Post Graduate (Medical) courses in the Govt. Medical Colleges of Odisha as the NEET (Post Graduate) for MD/MS/Post Graduate Diploma Courses 2013 admission sessions which was challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court order dated 13.12.2012 in which the Hon'ble Supreme Court had given liberty to hold the examination and directed not to declare the results. The State Government though had taken a policy decision to hold 15 to the counseling only was able to issue the Guideline on 27.05.2013 after the order dated 13.05.2013 was passed wherein the Hon'ble Supreme Court had lifted the bar imposed on 13.12.2012 and allowed the results already conducted to be declared to enable the students to take advantage of the same for the current year. But the decision was taken by the Government, regarding the guidelines for admission counseling for admission to the P.G. course, 2013. The DMET, Odisha had moved the file for approval of the guidelines for admission to P.G. courses on 11.04.2012 which was finally decided on 29.04.2013 by the Government regarding the conditions/eligibility etc. for admission to the course, where in it was decided that 3 years continuous service will be taken for consideration instead of five years for inservice doctors and the said decision of the Government was communicated along with the guideline to the DMET, Odisha on 27.05.2013 in continuation to the earlier letter of the Government which was issued to DMET by the Government. xx xx" 17. The aforesaid stand of the State in its counter affidavit that the change of guideline was finally decided on 29.4.2013 is clearly erroneous. From the documents appended to the counter affidavit filed by the State under Annexure-F/2, it shows that on 29.4.2013 the Minister of Health and Family Welfare signed on the note-sheet and thereafter the same was placed before the Hon'ble Chief Minister, Odisha who signed on 21.5.2013 (erroneously noted as 21.5.2012) and communicated only on 27.5.2013 to the DMET. Therefore, until 27.5.2013, it cannot be said that any decision by the State had been taken. 18. In this respect, it is important to refer to the judgment of this Court in the case of Bishnu Charan Mohanty v. State of Orissa and others, AIR 1973 ORISSA 199, where this High Court after 16 referring to various leading judgments of the Hon'ble Apex Court dealt with the scope of Article 166(3) of the Constitution of India and concluded that while Article 163(3) of the Constitution lays down that "until such an order reaches the person concerned, it does not attain any finality. It is open to Government even to recall a letter sent to another office before it reaches the person concerned. When, however, the order is communicated to the person concerned, the order becomes final." Therefore, the decision of the State Government though signed by the Hon'ble Minister on 29.4.2013, was approved by the Hon'ble Chief Minister on 21.5.2013 and communicated to the person concerned i.e. DMET, Odisha on 27.5.2013 and, therefore, the date 27.5.2013 has to be held the date on which the order was given effect to. Much prior thereto applications had been called for, examination had been held and results had also been declared. The law that was applicable to the State of Odisha, on the date of applications were made prior to midnight of 12.12.2012 and such law and/or policy prevailing at that time alone will govern the matter of admission for PG (Degree) Course for the year 2013. We are further of the considered view that even though the impugned guideline have been issued by the State prior to the counseling for the year 2013, yet, the selection process having already commenced on the date of application i.e. 12.11.2012, the 17 law/policy/guideline as it prevailed on the last date of application would govern the case at hand. 19. Taking into consideration of the judgments of the Hon'ble Supreme Court in the case of Secretary, A.P.Public Service Commission (supra), K.Manjusree (supra) and Mohd. Raisul Islam and others (supra), it is well settled principle of law that once the process of selection has started, the prescribed selection criteria cannot be changed and further that, introducing of any change into eligibility criteria after the selection process has commenced, would amount to changing the game after the game has been played. It is also further well settled that in the present case, the selection process commenced from 12th November, 2012 (i.e. the last date of making online application) and therefore, any requirement/selection has to be made on the basis of the process/ policy/law existing on the said date. We are of the further considered view that while the State is at liberty to change its policy and we are not required to comment upon the justifiability and reasonability of such a change of policy. We are of the view that the impugned guidelines/policy would operate only prospectively i.e. from 27.5.2013 for future examinations that may be conducted but insofar as admission of P.G.(Medical) Course for "in- service candidates are concerned for the year 2013, Clause-F-2 of the impugned guidelines cannot be made to apply to such admissions 18 into the seats reserved for "in-service candidates" for the year 2013-14. 20. Accordingly, all the writ petitions are allowed with directions to the opposite parties 1, 2 and 3 to only consider the candidates having five years service experience, as "in-service candidates" for admission into P.G. (Medical) Course 2013 and consequently, we declare that Clause-F-2 of the impugned guidelines dated 27.5.2013 shall not apply for admission of "in-service candidates" for P.G. (Medical) Courses for the year 2013. Since the Hon'ble Supreme Court has directed conclusion of counseling on or before 31st July, 2013, we direct opposite parties to act forthwith and complete the admission process within the period as directed by the Hon'ble Supreme Court. Sd/- .......................... C.Nagappan, C.J. I.Mahanty, J.
I agree.
Sd/-
........................ I.Mahanty, J.
ORISSA HIGH COURT, CUTTACK 24th July, 2013/RKS