Orissa High Court
Dr. Biswanath Murmu And Others vs State Of Orissa And Others on 30 January, 2001
Equivalent citations: AIR2001ORI76, AIR 2001 ORISSA 76, (2001) 91 CUT LT 436
JUDGMENT P.C. Naik, J.
1. Being desirous of obtaining Post Graduate degree, the petitioners who are graduate doctors had appeared at the Post Graduate (Medical) Selection 2001, Orissa which was held for selection of candidates for Post Graduate Course in the Government Medical Colleges of Orissa. Unfortunately petitioners 1, 3 and 4 did not qualify in the selection test. Petitioners 2 and 5 having qualified were called for counselling and thereafter taking into consideration their merit position, they were admitted to the P. G. course in General Surgery at the M.K.C.G. Medical College, Bethampur and S. C. B. Medical College, Cuttack respectively. However, being dissatisfied with the allotment of subjects and non-selection, the petitioners by this common petition have approached this Court for issuance of an appropriate writ, direction or order quashing clauses 13.2.1 and 13.2.4 of the Prospectus for Post Graduate (Medical) Selection-2001, Orissa (Annexure-2) and for a further direction to the opposite parties to -select the petitioners and others in- terms of the 'relevant clauses contained in the Prospectus for selection of candidates for Post Graduate Courses, 2000 (Annexute-1/c) and to maintain the percentage of quota between S. T. and S. C. and not to fill up the unfilled S. T. seats by any category of candidates other than S. T. unless eligible S. T. candidates are not available.
2. Before proceeding further, it will be relevant to refer to Clauses 13.1 to 13.4 relating to selection contained in the Prospectus of 2000 and Clauses 13.2.1 to 13.2.4 contained in the Prospectus. 2001 :
"
13. Selection.
13.1. Candidates shall be selected in order of merit from each category for admission.
13.2. In case of non-availability of eligible S.T. inservice candidates the seats shall be filled-up by eligible S. T. direct candidates and vice-versa (the same Rule shall mutatis mutandis be applicable to S. C. and Physically handicapped candidates).
13.3. In case of non-availability of eligible S. T. candidates (in-service and direct) the seats shall be filled-up by eligible S. C. candidates and vice-versa.
13.4. In case of non-availability of candidates against inservice general seats, the seat may be filled by direct general candidates.
13.5. xx xx 13.6. xx xx".
"13. Selection.
13.1. xx xx 13.2. Selection of S. T./S. C. candidates; -
13.2.1. In case of non-availability of eligible S. T. (in-service) candidates, the unfilled seats of their quota will be merged with S. C. (in-service) seats and the total seets thus derived shall be filled up by S. C. (in-service) candidates. 13.2.2. S. T. (in-service) and S. C. (in-service) candidates who have not taken admission at the previous stages, but reserved their option in written to exercise at this stage, are to be counselled for the unfilled reserved (in-service) seats of these two categories, strictly on the basis of "Inter-se Merit List (in-service)" of these two categories. 13.2.3. The unfilled S. T. (In-Service) and S. C. (in-service) seats, if any, shall be merged with S. T. (direct) and S. C. (direct) seats respectively. 132.4. In case of non-availability of eligible S.T. (direct) candidates, the unfilled seats will be marged with S. C. (direct) seats and the total seats thus derived shall be filled up by S. C. (direct) candidates. 13.2.5 to 13.2.7 xx xx".
It may be mentioned that relevant clauses relating to selection of candidates in 1998 and 1999 being similar to those contained in the Prospectus, 2000 are not quoted.
3. To begin with, it may be stated that the available seats in the Post Graduate Courses are filed up from three categories or sources, namely, All India quota; direct or institutional candidates; and inservice candidates or those serving under the Government, and for each category, fixed number of seats and subjects are ear-marked. In the seats meant for direct and inservice candidates, certain number of seats are reserved for different categories including S.T. and S.C. candidates. In the earlier years, as is the case put forward by the petitioners, the vacant S.C. inservice seats were filled up by eligible S.C. direct candidates and vice versa and the vacant inservice S.T. seats were filled up by direct S.T. candidates and vice versa. It is the case of the petitioners that departing from the earlier practice, the opposite parties in Clause 13.2.1 of the Prospectus for 2001 laid down that in case of non-availability of eligible S.T. (inservice) candidates, the unfilled seats of their quota will be merged with S C. (inservice) seats and the total seats thus derived shall be filled up by S.C. (inservice) candidates. Further in clause 13.2.3 it has been laid down that the unfilled S.T. (inservice) and S.C. (inservice) seats, if any, shall be merged with the S.T. (Direct) and S.C. (Direct) seats respectively.
According to the petitioners, the aforesaid two provisions are contradictory and need to be quashed. It has further submitted that marging of vacant S.T. inservice seats with the S.C. in-service seats will have the result of reducing the percentage of S.T. candidates to the medical courses which will be to their detriment. Accordingly, it was submitted that the opp. parties were not justified in departing from the previous practice whereunder the vacant S.T. inservice seats were to be filled up by S.T. direct candidates. Had the earlier practice been adopted, all the eleven (11) Vacant S.T. inservice seats would have been filled up by S.T. direct candidates as 22 (twenty two) of them had qualified.
Inviting the Attention of the Court to clause 13.2.4 of the Prospectus for 2001, it was submitted that eleven (11) seats were reserved for S. T. inservice and ten (10) seats were reserved for S. T. direct candidates. In all, twenty one (21) seats were available to S.T. candidates for both categories and accordingly, in terms clause-13.2.3, the unfilled S. T. inservice seats, which were admittedly eleven (11) in number, ought to have been merged with S. T. direct category and if that was done, the S. T. candidates including the petitioners would have been admitted and would have had better choice of subjects. Instead, as submitted by the petitioners, only nineteen (19) seats were offered to the S. T. direct candidates which was not proper.
4. Opposing the petition, it was submitted by the opp. parties 2 and 3 that the departure from the earlier practice relating to selection of candidates was on the basis of a conscious decision -- a policy decision of the Government, which was of the view that vacant inservice seats should, at the first instance, be filled up from inservice candidates and if that was not possible, the seats would go to the direct candidates. No doubt, in the earlier years, the relevant clauses provided that unfilled inservice S. T. and S. C. seats will merge with the unfilled S. T. and S. C. direct seats and vice versa. However, the Government was of the view that as a specified number of seats, i. e., ninety two (92) seats were reserved for inservice candidates and eighty eight (88) for direct candidates, initially efforts' should be made, as far as possible, to fill up the said seats from the respective available category. It was, therefore, decided that if the required number of S. T. candidates were not eligible, the vacant seats would be merged with the S. C. category and selection made and, even after this, if some seats remained unfilled, the available vacant seats category-wise and subject-wise would go to the direct S. T. and S. C, candidates, as the case may be. It was submitted that since no S. T. inservice candidates qualified, all the eleven (11) vacant seats were added to the inservice seats reserved for S. C. candidates which were seven in number. Thus, the reserved seats available to be filled up by the inservice reserved candidates (S. C) became eighteen. Three out of eighteen (18) seats were-filled up by S. C. inservice candidates leaving a balance of fifteen (15) unfilled seats which had to be reverted to the respective S. T. and S. C. quota. As two subjects available in the S. C. in-service candidates were opted for by the S. C. candidates after the seats were merged, nine subjects as against nine seats remained unfilled out of eleven (11) S. T. inservice seats and six seats with the respective subjects remained vacant out of seven S. C. inservice seats. Accordingly, in terms of clause 13.2.4 of the Prospectus of 2001. nine unfilled S T. inservice seats were added to the ten (10) S. T. direct seats and one unfilled S. C. inservice seat was added to the six (6) S. C. direct candidates quota. In this way, nineteen seats became available to be filled up by S. T. direct candidates and seven by S C. direct candidates. Accordingly, on the basis of the counselling, these seats were allotted to the meritorious candidates in the respective quota. Thus, according to the opp. parties, selection has been made strictly in accordance with the provisions laid down in the Prospectus of 2001.
5. As regards the contention of the petitioners that clause 13 2. 1 and clause 13. 2. 3 are contradictory, the reply is that it is not so. It was the submission that various sub-clauses of clause-13 lay down a scheme of selection and are to be read chronologically and not in isolation. It was also the submission that in view of clause 13, 1, candidates are to be selected on the basis of merit from each category in available subjects for admission though by counselling and that as there will be counselling first for S.T. inservice candidates to be followed by S. C. inservice, S. T. direct, S. C. direct. Physically handicapped inservice, Physically, handicapped direct, children of service/Ex. service personnel, general inservice and general direct candidates. If in the course of counselling, S. T. inservice candidates are not available, the unfilled seats are added to the S. C. inservice quota under clause 13. 2. 1 in which event, the S. C. candidates are free to opt or give their choice/preference for the subjects in S. T. inservice or S. C. inservice category.
6. In the case at hand, it was submitted that the eleven vacant S. T. inservice seats were added to the seven S C. inservice seats making a total of eighteen (18). In case, eighteen S. C. inservice candidates had qualified or were found eligible, all would have been admitted. However, only three candidates qualified and they were given admission as per their option to the available subjects. Thus, fifteen seats still remained vacant. Accordingly, in view of clause 13. 2. 3, nine S. T. inservice seats were merged with the S. T. direct and six S. C. inservice seats were merged with seven S. C. direct seats. It was, thus, submitted that there is no contradiction in the two clauses referred to above and that on the contrary, the different clauses lay down a scheme as to how unfilled S. T. and S. C. seats are to be filled up.
7. The opposite parties admitted that earlier the procedure for selection of S. T. and S. C. candidates regarding unfilled seats was different but it was submitted that the said procedure was departed because the Government was of the opinion that as far as possible, the seats reserved for inservice candidates should be filled up by them at the first instance and only when this was not possible, should they go to the general candidates ? This was so because, the inservice candidates, as the nomenclature indicates, are employees of the State Government and are rendering service all over the State and it was felt that they should be able to obtain a higher qualification which would ultimately be for the benefit and larger interest of the people of the State,
8. Since the vacant seats of S. T. inservice were merged with the S. C. inservice seats for want of eligible S. T. inservice candidates, it follows that along with the seats all the available subjects (which were meant for S. T. inservice candidates) would be available to the S. C. inservice candidates opted for two subjects which were meant for S. T. inservice candidates. As all the available seats along with the available subjects after merger would not be filled up by the S. C. inservice candidates, they naturally reverted to the S. T. inservice quota for being merged with S. T. direct and S. C. direct seats in view of clause 13. 2. 3 of the Prospectus, 2001. Thus, as two S. C. inservice candidates had opted for the subjects which were available for S.T. inservice candidates, only nine (9) S. T. inservice seats with respective subjects were available to be merged with S. T, direct category with the result that only nine subjects were available out of these reserved seats for S. T. inservice candidates. Therefore, the action of the opp. parties cannot be said to be mala fide or illegal
9. It is no doubt true that the relevant provisions contained in clause 13 relating to selection could have been more happily and appropriately worded and. in fact, the authority should see that they are so done to avoid a type of controversy which has crept up this year.
From a reading of different sub-clauses of clause 13, it does appear that it bays down a scheme regarding filling up and transfer of vacant seats and on a careful reading of the relevant clause and its sub-clauses, the Court is of the view that the inter pretation and consequent action of the authorities in filling up the reserved seats in the manner they did cannot be said to be arbitrary or illegal. The same is proper.
10. The petitioners also assail the action of the opp. parties on the ground that it is in the violation of the petitioners' right guaranteed under Article 14, 15(1), 15(4), 16(1), 16(4) and 16(4A) of the Constitution of India and, as such, needs to be quashed. The contention is mentioned to be rejected. The petitioners have failed to point out anything which would go to show that the petitioners' right of equality under Article 14 of the Constitution has been violated. The reference to Article 15(1) is also mis-conceived as the petitioners have failed to point out as to how they have been discriminated against on the ground of religion, race, caste, creed or birth or any one of them.
11. As regards the reference to Article 15(4) it may be mentioned that the reservation which has been extended to the students belonging to the S.C. and S.T. communities is itself for their advancement and every effort has been made by the authorities to ensure that the seats reserved for S.T. and S.C. candidates are filled by the candidates belonging to those communities. But, it is only when required number of qualified candidates of those communities are not there, the seats are transferred from the quota to the other. Further, it is only when even after the merger of the seats of one category to the other, (S.T. to S.C. or vice versa) qualified number of candidates of those categories are not available, the vacant seats go to the general candidates in terms of clause 13.2.7 because it would be unwise to keep seats in these institutions vacant. There is nothing discriminatory in the course adopted by the opp, parties.
Likewise, the reference to Article 16 which relates to equality of opportunity in the matter of public employment is fallacious, as admittedly admission to P.G. courses cannot under any stretch of imagination be termed as 'employment'. Thus, the provisions contained in the Prospectus clearly indicate that every effort is being made by the authorities to see that the seats that are reserved for S.T. and S.C. categories, whether inservice or direct, are filled up by the candidates belonging to those categories and, as observed in the earlier part of the judgment, it is only when these candidates are not available, the unfilled seats go to the general categoy. Therefore, the contention of the petitioners that the provisions of clause 13 being to their detriment needs to be quashed, is liable to be and is hereby rejected. Likewise, the contention that the said clause 13, as it stands, has a result of reducing the seats meant for the reserved categories, also cannot be accepted.
12. In the result, the writ petition fails and is dismissed but without any order as to costs.
13. Writ petition dismissed.