Orissa High Court
Dr. Bhupesh Kumar Nayak And Ors. vs Secretary, Health And Family Welfare ... on 15 May, 2004
Equivalent citations: 98(2004)CLT234
Author: P.K. Mohanty
Bench: P.K. Mohanty, P.K. Tripathy
JUDGMENT P.K. Mohanty, J.
1. In all these writ petitions, common question of law and identical facts being involved, on the prayer of the writ petitioners and on agreement of the learned counsel for the opposite parties, all the matters are heard analogous and are being disposed of by this common judgment.
2. Dr. Bhupesh Kumar Nayak, in W. P. (C) No. 1387 of 2004 and Dr. Sanat Kumar Pasupalak and another in W. P. (C) No. 1484 of 2004, have called in question the decision of the opposite parties in fixing 31st December, 2003 as the cut off date as eligibility for entrance test for Post Graduate Medical Course, 2004, they having completed internship after passing M. B. B. S. degree sometime in January, 2004, certificate for which is expected to be issued by 31st of March, 2004, as illegal, arbitrary and without any nexus and deprives the petitioners the right to undertake the P. G. Course, 2004.
3. Dr. Sarmishta Padhy in W. P. (C) No. 1688 of 2004 and Dr. Shakti Prasad Satapathy in W. P. (C) No. 2444 of 2004 have challenged the action of the opposite parties in not conducting any examination for filling up the seats for P. G. Medical Courses, 2003 and in publishing the prospectus for admission to the Post Graduate Medical Courses for the year 2004 as was done for the P. G. Examination, 1997-98 together on consecutive dates. They also challenge Clause 4 of the prospectus for the P. G. Medical Course, 2004 in reserving 75 seats for in-service candidates and only 67 for direct recruits as against 50% of the reservation for in-service candidates in terms of the direction of this Court.
4. Dr. Gautam Pattnaik, in W. P. (C) No. 1688 of 2004 and Dr. Indramani Mohanty in W. P. (C) No. 4237 of 2004 assail Clause 11.2 of the prospectus for admission to the Post Graduate Medical Courses, 2004 allowing 5% credit marks (weightage) over the marks secured by a candidate in the entrance examination in terms of Government G. O. No. 325-H dated 3rd of January, 1997. 5. Dr. Meenu Patel in W. P. (C) No. 4063 of 2004 and Dr. Sachidananda Nayak in W. P. (C) No. 4064 of 2004 call in question the decision of the opposite parties in not considering their cases against in-service quota, instead of considering them under direct quota on the ground that they have not served in a public sector undertaking of the Government of India located in Orissa and have not completed five years in Orissa by 31.12.2003, come within Clause 6.2.2. of the prospectus and have been deprived of being considered under the in-service quota on the flimsy ground that they have not submitted the sponsorship certificate along with their application for the entrance test.
6. Dr. Kailash Nath Shastry in W. P. (C) No. 4115 of 2004, however, challenge the action of the opposite parties in not considering his case as an in-service candidate under reserve physically handicapped candidate in terms of the prospectus for Post Graduate Medical Selection, 2004.
7. In such view of the matter, the questions that fall for consideration are as to :
(a) Whether 31st of December, 2003 fixed as the cut off date for eligibility of candidates for admission to the Post Graduate Courses stipulated in the prospectus for Post-Graduate Medical Selection, 2004 by the State Government is illegal and discriminatory having without any nexus to the purpose to be achieved;
(b) Whether Clause 11.2 of the prospectus allowing 5% (weightage) for doctors who have completed minimum three years of service in rural/tribal/backward areas in terms of Government G. O. No. 325-H dated 3rd of January, 1997 is per se discriminatory and unconstitutional and the State Government was incompetent to prescribe such credit in favour of the doctors serving in those areas;
(c) Whether in view of Clause in the prospectus, the action of the State Government in considering the cases of the doctors serving in public sector undertakings either in the State Government or the Union Government in absence of the sponsorship certificate being produced along with the application form, as direct candidates is sustainable in law; and
(d) Whether in view of Clause 4 of the prospectus reserving one seat for physically handicapped persons from the in-service doctors, non-consideration of the cases of the petitioner under that category is sustainable in law.
8. In order to appreciate the cases at hand in its proper perspective, a little background and the factual backdrop of the case is necessary to be considered. The State Government made an advertisement on 13.7.2003 and issued a prospectus for admission to the Post Graduate Medical Course, 2003 in the three Medical Colleges of Orissa, fixing minimum three years of service experience either on contractual service under the State Government or three years of experience under the Government within the State of Orissa by 31.3.2003 apart from other conditions as the minimum eligibility criteria for admission to the Post Graduate Medical Course which were challenged in a batch of writ petitions. A Division Bench of this Court in Dr. Subhash Singh and Ors. v. Convenor, P. G. Medical Selection, 2003 and Ors. and a batch of writ petitions, reported in 2003 OLR (II) 652 where one of us P. K. Mohanty, J. was a Member, held that any reservation in favour of the in-service candidates beyond 50% of the open seats is per se discriminatory and impermissible in law and, therefore, the decision of the State Government reserving all the 183 open seats in favour of the in-service candidates was quashed. The Court held that the State Government could legitimately reserve or set apart to a maximum limit of 50% of the Post Graduate (Medical) open seats in favour of in-service doctors and the balance has to be kept open for the non-service or private candidates and the admission has to be made on the basis of merit alone through a common entrance test for both categories. The Court in ultimate para - 22 of the judgment observed as under:
"In the result, we quash the decision of the State Government stipulating three years contractual service or service under the State Government as the minimum eligibility criteria and reservation of seats for in-service candidates beyond 50% of the open seats for Post Graduate Medical Course, 2003. The State Government is, therefore, free to formulate its policy accordingly in the prospectus and admit students keeping in view what has been stated in this judgment. We further direct that expeditious steps be taken for formulating the policy and criteria of admission and admissions to the Post Graduate Medical Course be done accordingly."
9. The State Government in terms of the aforesaid judgment appears to have formulated the policy and issued an advertisement in the daily newspaper for the present common entrance test for admission to the Post Graduate Medical Courses, 2004 and issued the prospectus for the same. The advertisement envisaged that the candidates who had submitted their applications and had received acknowledgment as per the earlier advertisement dated 17.7.2003 need not apply again, but the revised prospectus would be supplied to such candidates for reference on return of the old one without charging any extra amount. The advertisement also indicated that candidates who had completed five years of service by 31.12.2002 as per Clause 6.2 of the revised prospectus will be treated as in-service candidates and those who had applied and/or not applied earlier and completed five years of service by 31.3.2003, but had completed five years of service by 31.12.2003, would submit afresh service experience certificate. In terms of Clause 2.1., the academic session is to commence from 2.5.2004 unless otherwise notified and the applicants are required to fulfill the eligibility criteria by 31.12.2003 for the Session 2004. Clause 3 prescribes the duration of the course and Clause 5 of the prospectus prescribes the eligibility criteria of the candidates. Relevant portion of Clause 6 of the prospectus for the Post Graduate Medical Courses, 2004 is quoted hereunder :
"6. CATEGORY OF CANDIDATES :
6.1 A direct candidates is one who at the time of application :
6.1.1 Holds a Degree from a-Medical College recognized by the M. C. I. and has completed one year of Compulsory Rotating Housemanship/Internship in a Hospital recognized by Medical Council of India for the purpose by 31st December, 2003.
6.1.2 Is serving in Defence Service but posted in Orissa. He/ she must have worked for minimum 5 years in Orissa by 31st December, 2003. Only his/her Son/daughter/ spouse will be eligible to apply (Refer 5.2.4) 6.2. An in-service candidates is one who at the time of application.
6.2.1. Is in the employment in Government of Orissa and has completed 5 years of service in Orissa which includes all categories of employment like contractual/temporary/ ad hoc/regular by 31st December, 2003.
6.2.2. Is in the employment of Government of India and at the time of application is posted in Orissa in a Public Sector Undertaking of Government of India located in Orissa and has completed five years of service in Orissa by 31st December, 2003.
Note : In-service Medical Officers are advised to submit then applications along with the connected documents direct to the Convenor, P. G. (Medical) Selection Committee-2004 VSS Medical College, Burla under intimation to their Employers.
Clause 11 of the Prospectus speaks of the mode of evaluation of answer of entrance examination and under Clause- 11.2, it is stipulated that doctors who have completed minimum 3 years of service under rural/tribal/backward areas shall be awarded additional 5% credit marks over the marks secured by him/her in entrance examination as per G. E. O No. 325-H dated 3rd January, 1997 and for such benefit, a candidate has to produce a service certificate in the proforma (Appendix III-A) issued by the C. D. M. Os. Clause 12 prescribes the procedure for preparation of merit list. Clauses 11.2 and 12 are quoted hereunder for ready reference :
11.2 Doctors who have completed minimum of three years service in Rural/Tribal/Backward areas shall be awarded additional 5% credit marks over the marks secured by him/her in the Entrance Examination as per G. O. No. 325-H, dated 3rd January 1997. For this benefit the candidate has to produce a "Service Certificate" in the proforma (Appendix III-A) issued by the C. D. M. O. (s).
12. RESULTS:
12.1. Candidates securing 50% of total marks or more in case of general candidates and 40% in case of SC/ST candidates in the Entrance Examination shall be eligible for selection and a merit list shall be prepared of all the eligible candidates.
12.2. The following Merit lists shall be prepared and be published in the three Government Medical Colleges of Orissa and in the Office of the Director of Medical Education & Training, Orissa. The result will also be published in leading Newspapers - one English and one Oriya and also on Website (Web address will be notified in Newspapers). The result of the individual candidates will not be intimated by post.
12.2.1. For eligible in-service candidates, after adding the credit marks for serving in Rural/Tribal/Backward areas, if any, a "Common Merit List" with their rank number and separate "Merit List of Each Reserved Categories" with rank numbers shall be prepared.
12.2.2. For eligible Direct candidates after adding the credit marks for serving in Rural/Tribal/Backward areas, if any, a "Common Merit List" with their rank numbers and separate "Merit List of Each Reserved Categories" with rank numbers shall be prepared. 12.2.3. An "Inter-se Merit List" of eligible ST & SC candidates (for both in-service and direct candidates separately) with their rank number shall be prepared.
12.2.4. A "Common Inter-se Merit List" of eligible ST & SC candidates for both in-service and Direct candidates with their rank numbers shall be prepared.
12.1. While preparing merit lists, in case of two or more candidates securing equal marks the ranking, shall be decided in order of preference as under:
12.1.1. Candidates securing higher marks in Part - II of Entrance Examination.
12.1.2. If this is equal, the elder, according to the date of birth furnished, will get preference over the younger.
10. In the aforesaid factual backdrop of the case, we would now consider the case point-wise.
POINT NO. 4. Whether the change of cut off date of eligibility for admission to the Post Graduate Medical Course from 31.3.2003 as in the Prospectus for 2003 to 31.12.2003 in the revised Prospectus published in 2004 is per se discriminatory and thus illegal.
Sri Ashok Mohanty, learned Senior Advocate for the petitioners, contends that in the Prospectus issued by the State Government on 17th July, 2003 for admission to P. G. Medical Course, which was the subject matter of challenge in Dr. Subhas Singh's case (supra), 31st March, 2003 had been fixed as the cut off date of eligibility of a candidate and pursuant to the decision of the Court, the State Government having formulated the policy of admission and issued the Revised Prospectus, 2004, it could not have nor it was competent to change the cut off date from 31.3.2003 to 31.12.2003. According to the learned Senior Counsel, by such change, the ineligible candidates, who could not have sought for admission pursuant to the earlier Prospectus, have been made eligible thereby reducing the chances and prospects of the petitioners in getting the desired admissions to the subjects of their choice and as such, the decision is per se discriminatory and illegal. Contention is made that by change of the cut off date, the eligible candidates as on 31.3.2003 and persons eligible thereafter till 31.12.2004 have been clubbed together for no reasons only to favour such candidates.
11. The learned Addl. Government Advocate, on the other hand, submitted that pursuant to the direction of this Court in Dr. Subash Singh's case (supra), the Government had to formulate the policy of admission to the Post Graduate Medical Course and take steps for admission expeditiously, but by then, since the academic session 2003 had almost come to an end and there was no time to have the selection for admission to the session 2003, the Government decided to admit students for the session 2004, which was to commence from May, 2004 in view of the directives of the Apex Court and the Medical Council of India, by further relaxing the condition of pre-mandatory rural service to that of Post Mandatory Rural Service. It is further submitted that by extending the cut off date from 31.3.2003 to 31.12.2003, more than 800 students have become eligible for admission to undergo Post Graduate Medical Course. It is submitted that since the revised Prospectus was being issued in February, 2004, the candidates eligible as on 31st December, 2003 were considered eligible, for which such date was fixed as the cut off date which is reasonable and has nexus with the object of admission in 2004.
12. The Prospectus for admission to the Post Graduate Medical Course 2003, which was the subject matter in Dr. Subash Singh's case, was published by the State Government on 17th July, 2003, but it was indicated that the course is to commence from 2nd May, unless otherwise notified which obviously mean that the course was to commence from May, 2003. Thus, keeping in view the commencement of the course in May, 2003, the date of eligibility of candidates for admission was fixed as 31st March, 2003. In fact, the Prospectus having been issued only on 17th July, 2003, the admission process has to be completed thereafter by September, 2003 and thus course could not have commenced earlier to that date. However, the Post Graduate course was only available to the in-service doctors serving under the State Government only without any scope of admission for fresh medical graduates or non-service doctors and therefore this Court in Dr. Subash Singh's case held that any reservation in favour of in-service candidates for admission to the Post Graduate Medical Course beyond 50% of the open seats is per se discriminatory and impermissible. The decision of the Government and the prospectus issued reserving all the 183 open seats in favour of in-service candidates was annulled and the State was directed to formulate a revised policy in accordance with the decision, issue the Prospectus and take steps for admission expeditiously. The judgment was rendered on 14th November, 2003.
13. The State Government appears to have formulated the admission policy and issued fresh advertisement for selection of candidates for Post Graduate Medical Course, 2004, which is impugned in these writ petitions making certain major changes apart from changing the principle for reservation for in-service doctors and confining it to 50% of the open seats with a common entrance examination.
14. In the aforesaid backdrop of the case we would consider the contentions raised in different writ petitions.
15. The contention of the learned Addl. Government Advocate for the State that since the academic session 2003 had almost come to an end the admissions were to be made for the session commencing 2004 only, the State Government took the decision to extend the cut off date from 31.3.2003 to 31.12.2003 and thereby accommodated about 800 more applicants aspirant for admission to the Post Graduate Course, cannot be accepted in toto. The State Government has taken a decision to have the post mandatory rural service instead of pre-mandatory rural service. The duration of Post Graduate Medical Course as per the Post Graduate Medical Education Regulation 2000 is of three years and the State Government in addition has imposed a condition of pre-mandatory rural service of one year in order to undertake the three years Post Graduate course. The contention of the State Government that since no time was left for admission to the Post Graduate Course 2003, the revised prospectus takes care of the eligible candidates of 31.3.2003 as well as eligible candidates of 31.12.2003 is misconceived, in view of the fact that the State Government itself has revised the premandatory rural service to that of post mandatory rural service and therefore there was no impediment for admitting two batches of students, the first batch with post mandatory rural service and the second with premandatory service.
16. In the scheme of admission formulated by the State Government, once a candidate is selected after due process for admission to the post graduate medical studies in the year 2003, he is to undergo the premandatory rural service for one year and joins the academic course of three years prescribed by the Medical council commencing from the session 2004. Similarly, when candidates are selected for the Post Graduate Medical course in due process of selection for the year 2004, they were required to go for pre-mandatory rural service of one year and thereafter on completion of that service, they are to join the academic course of three years commencing from 2005. If the State Government was of the opinion that for this batch of students, post-mandatory service would serve the purpose, then there was absolutely no impediment or any reason to club both the batches of eligible candidates together and hold a common entrance test for the academic course commencing from May, 2004. In the process of clubbing together of both the batches as rightly submitted by the petitioners, their prospect of selection is reduced and otherwise also they lost the seniority since these categories of petitioners are in-service candidates only. What the Government has done would have been acceptable, had the course and the curriculum conducted by the State Government would not have been a course of four years in effect, out of which one year is pre-mandatory service and the balance three years academic curriculum as prescribed by the Medical Council. But since practically it is a course spread over four years as above, the Government ought to have conducted two sets of examination one for 2003 batch, who could have gone for post-mandatory service as has been prescribed in the revised prospectus and the other batch eligible between 31st March, 2003 and 31st December, 2003 would have gone for pre-mandatory service, so that there would have been no over lapping of both the batches of students in taking up of the course. In such situation, extension of the cut off date to 31st December, 2003, accommodating a second batch of candidates in our considered opinion, has to be held as discriminatory.
17. The next question that arises for consideration in view of our above finding is as to what would be the course open now to resolve the anomalous situation. The State Government has already conducted a common entrance test for eligible candidates as on 31.12.2003 and the academic session 2004 is commencing from May, 2004 and therefore for the batch of students to be admitted for the year 2004, the cut off date could legitimately be fixed as 31st December, 2003.
In such situation, we direct the Convener, Post Graduate Medical Selection, 2004 as under:
(a) The Convener, Post Graduate Medical Selection, 2004 shall draw two separate merit list for admission to the Post Graduate Medical Course, one for applicants in response to the Prospectus, 2003 and the other for applicants pursuant to the Revised Prospectus, 2004. The first merit list shall comprise of eligible candidates from amongst the applicants, who were eligible as on 31.3.2003 and had applied in response to the advertisement and Prospectus for admission to the Post Graduate Medical Course, 2003 and the second for those who have applied for admission in response to the Revised Prospectus, 2004 being eligible as on 31st December, 2003 in order of their merit, according to the marks secured by them in the entrance test and found eligible. The aforesaid two lists of eligible applicants shall be prepared strictly in order of merit in accordance with the marks secured in the entrance test and in terms of Revised Prospectus, 2004.
(b) There shall be two separate sets of counselling, one in respect of candidates, who had obtained eligibility as on 31st March, 2003 and applied in terms of Prospectus for Post Graduate Medical Admission, 2003 and the other in respect of candidates who have eligibility as on 31st December, 2003 pursuant to the Revised Prospectus, 2004. The first list shall be for first batch of students and the second for the second batch and the admissions shall be made according to batches as under.
(c) The persons selected for admission to 2003 batch shall undertake the academic course of three years duration commencing from May, 2004 and shall be required to take the post-mandatory rural service in terms of the revised prospectus.
(d) The candidates selected for the second batch of students for 2004 shall undergo the pre-mandatory rural service and join the academic course commencing May, 2005.
In the above process there will be no over-lapping of two batches of students nor there would be any need for increase of seats since the intake capacity for the year 2004 and for the year 2005 shall remain unaltered. The selection for admission of the year 2005 in the next year also shall not be affected since the candidates selected during the year 2005 in terms of the Government Policy and the Prospectus earlier are to go for pre-mandatory rural service and accordingly have to undertake the rural service during the first year i.e. 2005 and would be eligible to join the academic course of three years duration commencing May, 2006 only. The above arrangement has been contemplated keeping in view that any other process, would have the effect of loosing a large number of Post Graduate qualified doctors, whose services could be utilized by the State for manning the health programme specially in the rural sectors and the first batch of students should not suffer for none of their fault but because of the illegalities committed by the authorities while issuing the Prospectus for 2003.
18. POINTS - B & C :
Whether 5% weightage of marks allowed in favour of in-service doctors, who have completed minimum 3 years of service in rural/tribal/ backward areas under Clause 11.2 of the Prospectus in terms of Government Order (G. O.) No. 325-H dated 3rd January, 1997 is per se discriminatory and unconstitutional and whether in view of Clause 11.2 of the Prospectus, the action of the State Government in considering the cases of Doctors serving in Public Sector Undertaking either under the State Government or under the Union of India in absence of the Sponsorship certificate being produced along with the application form or otherwise as direct candidate is sustainable in law.
The learned counsel for the petitioners submits that award of additional 5% of marks for service rendered in the rural/tribal/backward areas in favour of in-service doctors is discriminatory and unconstitutional being violative of Article 14 of the Constitution. It is his contention that a doctor serving under the Government has no choice of his posting, either in the rural or in the urban areas and has to serve wherever he is posted. He is also not asked for his option for posting in any particular place of choice and as such, only because a doctor has been posted and had the opportunity to serve in any rural, tribal or backward areas, he cannot be given advantage of 5% of weightage of mark in the matter of admission to undergo a Post Graduate Course. The learned counsel has relied on the Full Bench judgment of this Court in Sushil Kumar Nayak v. State of Orissa, 1988 (1) OLR 301, Dr. Dillip Kumar Das v. State of Orissa and Ors., 2002 (2) OLR 25 and the decision of the apex Court in Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad and others; (1986) 3 SCC 727 and Dr. Narayan Sharma v. Dr. Pankar Kumar Lehkar, (2000) 1 SCC 267, and Dr. Jagadish Ch. Saran and Ors. v. Union of India and Ors.; AIR 1984 SC 820, wherein, according to the learned counsel, the apex Court has laid down the ratio that dominant consideration for admission being merit alone, the rural service experience of the candidates had no nexus to the object of selection of the meritorious, for which prescription of weightage to the extent of 15% was held constitutionally impermissible. The contention raised by the learned counsel relying on the decisions referred to above cannot be accepted in view of the recent decision of the apex Court, which has taken note of and considered the earlier decisions, concerning reservation and or weightage for service rendered in rural areas for specified durations.
In a recent decision, in State of Madhya Pradesh and Ors. v. Gopal D. Tirthani and Ors., (2003) 7 SCC 83, the Apex Court, while dealing with a case of similar nature like the present writ petitions, after taking note and explaining several decisions rendered by it, have laid down that it is permissible to assign a reasonable weightage to services, rendered in rural or tribal areas by the in-service candidates for the purpose of determining inter-se merit within the class of in-service candidates, who have qualified in Pre-P. G. test by securing the minimum qualifying marks as prescribed by the Medical Council of India. The apex Court at Paragraph 33 of the judgment observed.
33. In Pradip Tandon's case reservation in favour of people in "hill areas" and Uttarkhand was held to be constitutionally valid as they were socially and educationally backward classes of citizens. Reservation in favour of "rural areas" was found difficult to accept as it was sought to be justified on the test of poverty as the determining factor of social backwardness. The Court observed that rural element does not make a class by itself because it could not be accepted that the rural people are necessarily poor or socially and educationally backward just as the urban people are not necessarily rich. We may hasten to observe that what was being dealt with Pradip Tandon case was a reservation and not a weightage. The case at hand presents an entirely different scenario. Firstly, it is a case of postgraduation within the State and not an all India quota. Secondly, it is not a case of reservation, but one of only assigning weightage for service rendered in rural/tribal areas. Thirdly, on the view of the law we have taken hereinabove, the assigning of weightage for service rendered in rural/tribal areas does not all affect in any manner the candidates in open category. The weightage would have the effect of altering the order of merits only as amongst the candidates entering through the exclusive channel of admissions meant for in-service candidates within the overall service quota. The statistics set out in the earlier part of the judgment provide ample justification or such weightage being assigned. We find merit and much substance in the submission of the learned Advocate General for the State of Madhya Pradesh that Assistant Surgeons (i.e. medical graduates entering the State services) are not temperamentally inclined to got to and live in villages so as to make available their services to the rural populations; they have a temptation for staying in cities on account of better conditions, better facilities and better quality of life available not only to them but also to their family members as also better educational facilities in elite schools which are to be found only in citis. In-service doctors being told in advance and knowing that by rendering service in rural/tribal areas they can capture better prospects of earning higher professional qualifications, and consequently eligibility for promotion, acts as a motivating factor and provides incentive to young in-service doctors to opt for service in rural/tribal areas. In the set up of health services in the State of Madhya Pradesh and the geographical distribution of population, no fault can be found with the principle of assigning weightage to the service rendered in rural/ tribal areas while finalizing the merit list of successful in-service candidates for admission to P. G. courses of studies. Had it been a reservation, considerations would have differed. There is no specific challenge to the quantum of weightage and in the absence of any material being available on record we cannot find fault with the rule of weightage as framed. We hasten to add that while recasting and reframing the rules, the State Government shall take care to see that the weightage assigned is reasonable and is worked out on a rational basis."
In Dr. Snehalata Patnaik v. State of Orissa, (1992) 2 SCC 26, a Bench of three learned Judges, while observing that the observations made in Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad in (1986) 3 SCC 727 by the division Bench that no weightage should be given to a candidate for rural service rendered by him so far admission to post graduate course are concerned, does not constitute the ratio of the decision. The apex Court observed thus in Dr. Snehalata Patnaik's case :
"2. In our opinion, this observation certainly does not constitute the ratio of the decision. The decision is in no way dependent upon these observations. Moreover, those observations are in connection with all India selection and do not have equal force when applied to selection from a single State. These observations, however, suggest that the weightage to be given must be the bare minimum required to meet the situation. In these circumstances, we are of the view that the authorities might well consider giving weightage up to a maximum of 5% of marks in favour of in-service candidates who have done rural service for five years or more. The actual percentage would certainly have to be left to the-authorities. We also clarify that these suggestion in any way confer any legal right on in-service students who have done rural service nor do the suggestions have any application to the selection of the students up to the end of this year."
In the case at hand, it appears that the Government of Orissa in Health and Family Welfare Department in their letter No. 325/H. dated 3.1.1997, which is the basis for providing Clause 11.2 of the present Prospectus had decided that a candidate who has worked as Medical Officer for a period of 3 years or more in any rural/ tribal/backward area, listed in Annexure-A therein shall be entitled to get 5% of marks added to his qualifying marks. The letter of the Government addressed to the Director of Medical Education and Training, Orissa dated 3.1.1997 may be quoted hereunder for clarity :
"Government of Orissa Health and Family Welfare Department No. M. B. II - IXM - 74/92 (Pt) 325/H. dated 3.1.1 997 From, Dr. C. R. Das, Addl. Secretary to Government.
To The Director of Medical Education and Training, Orissa.
Sub : Selection of in-service candidates for admission into P. G. Courses against the in-service quota- Fixation of criteria thereof.
Sir, I am directed to say that the reluctance of doctors to join in the posts available in the rural areas as well as in the tribal or backward areas has been causing serious concerns for the Government. A package programme is under preparation to link service benefit with service in tribal areas and remote rural areas, so that it would create an impetus for the doctors to serve in those deprived areas. One such strategy is to link the service in such areas with admission to P. G. Courses.
Government have, therefore, been pleased to decide that the following provision shall be brought about in the matter of selection of candidates for admission into the post Graduate courses in the three medical colleges of the State against the in-service quota from the next years.
A candidate who has worked as Medical Officer for a period of 3 years or more in any rural area/tribal area/backward area listed in Annexure 'A' shall be entitled to get 5% of marks added to his qualifying marks. The exact period spent by the Medical Officer in the aforesaid areas shall be based on the certificate issued by the concerned Chief District Medical Officer. Leave in excess of one month in a year shall not be taken into account."
Government have further been pleased to decide that the aforesaid provision would be applicable to the Medical Officers under Government of Orissa alone and not to the Medical Officers under Government of India or Public Sector undertakings under Government of Orissa and Government of India.
You are requested to please ensure implementation of the above decision and incorporate it in the relevant clause of the prospectus for the coming year.
yours faithfully Sd. 3.1.1997 Addl. Secretary to Government"
The aforesaid decision of the State Government to provide weightage for rural services appears to be in consonance with the observation of the apex Court in the case of Dr. Snehalata Pattnaik (supra).
In such view of the matter, the contention of the learned counsel that no weightage can be given in favour of in-service candidates rendering services in rural/tribal/backward areas in the matter of admission to the P. G. course, which is per see discriminatory has to be rejected. We uphold the prescription of a weightage of 5% of marks in favour of the in-service doctors who have rendered three years of service in rural/tribal/backward areas as provided in Clause-11.2 of the Prospectus. However, in view of the Government Circular quoted herein before in last but two paragraph, the weightage, would be applicable to the Medical Officers under the Government of Orissa alone. The use of the word Doctors who have completed minimum of three years of service in Clause 11.2 of the Prospectus therefore would obviously be confined to the doctors served underline Government of Orissa alone and not to the Medical Officers' serving under Government of India or Public Sector Undertaking under Government of Orissa and Government of India. The interpretation of Clause - 11.2 of the prospectus made by the learned Addl. Government Advocate that doctors now serving elsewhere than under the State Government, who at any point of time have rendered such service of three years in such area are also eligible to the concession or weightage is contrary to the terms of the G.O. No. 325/H dated 3.1.1997 quoted herein before, which otherwise is the basis of providing weightage of marks in clause 11.2 of the Prospectus, has to be rejected.
19. The learned counsel for the petitioners submitted that in the original Prospectus 2003 under Clause 5.3 a stipulation was made that the applicant must have service experience and under Clauses 5.3.1 and 5.3.2, the applicant was required to have three years of service experience in shape of contractual under Government of Orissa by 31st March, 2003 or must have three years of Government service experience within the State of Orissa by 31st March, 2003. Under clause 7.7, it was stipulated that Sponsorship certificate is to be produced at the time of admission and as such fresh service experience certificate was sought for from the candidates who did not fulfill the eligibility criteria under the revised prospects and not for persons who were already eligible under earlier prospectus. It is argued that the petitioners being not required to furnish sponsorship certificate at the time of making application under the old prospectus and in terms of the Prospectus 2004, persons who have applied pursuant to the earlier prospectus being not required to apply afresh, the question of furnishing sponsorship certificate at the time of application or later in terms of revised prospectus did not arise. The petitioner having not furnished sponsorship certificate, he has been rightly considered against seats for direct candidates. The contention that his choice for selection of faculty would have been better, had he been considered as an in-service candidate, is of no avail.
The learned Addl. Government Advocate, however, submits that as per the advertisement, the candidates those who have submitted their applications pursuant to the earlier advertisement dated 17.7.2003 were not required to apply again, but the eligibility criteria including reservation and production of documents are as per the revised prospectus and they were required to furnish the sponsorship letter along with the application in accordance with Clause 6.2.2. It appears from the note under Clause 6 of the Prospectus that in-service medical officers were advised to submit their application along with the connected contract with the Convener P. G. Medical Selection Committee, 2004 under intimation to their employer.
In the advertisement for selection of candidates for P. G. Medical Course, 2004, it has been clarified that the candidates who have submitted their applications and have received acknowledgment card need not apply again but revised prospectus would be supplied to such candidates for reference on return to the old one without charging any extra amount at the sale counter. It has also been stipulated that the candidates who-have completed 5 years of service by 31.2.2003 as per-Clause 3.2 of the revised prospectus will be treated as in-service candidates. Those who had applied and not completed 5 years of service on 31.3.2003 and are completing 5 years of service experience shall submit their experience certificate by Regd. Post/Speed Post quoting their reference number. The petitioners do not alleged that they have not obtained or received the revised prospectus. They also do not alleged that in the revised prospectus, there was no requirement for production of the sponsorship certificate along with the application form to be eligible for consideration in the in-service quota. The purpose of supplying a revised prospectus to the applicants who have already applied obviously can be with a view to apprising such candidates the changes in the policy and necessary compliance of the requirements.
In such view of the matter, if the petitioners in spite of receipt of the revised prospectus do not comply with it and furnish the sponsorship certificate and on that count they are treated as fresh candidates, such action of the authorities cannot be faulted. In such view of the matter, we do not find any fault or illegality in the action of the opp. parties in treating the petitioners to be fresh candidates in absence of the sponsorship certificate.
20. POINT-D :
Whether in view of Clause 4 of the Prospectus reserving one seat for physically handicapped persons from in-service doctors, non-consideration of the case of the petitioner under such category is sustainable ?
The learned counsel for the petitioner submitted that in spite of Clause 4 of the prospectus of marks for the purpose of determining inter se merit for choice of subject.
The question therefore for consideration is, as to whether in terms of the prospectus, the additional marks are to be added to whatever mark one obtain in the competitive admission test to make up even the qualifying mark or only a candidate who qualifies in the pre-admission test is only eligible to the additional benefit under the Physically Handicapped reserve quota in terms of the Clause 11.2. Doctors who have completed minimum three years service in Rural/Tribal/Backward areas shall be awarded addition of 5% of marks secured by him in the entrance/pre-admission test. Clause 11.2 of the Prospectus has to be read conjointly with Clauses 12.2.1 and 12.2.2 to determine the question. A conjoint reading of the aforesaid provisions, makes it clear that only eligible candidates can be given advantage of addition of weightage while preparing the merit list and not for the purpose of determining eligibility. The contention of the learned counsel for the petitioners therefore fails and accordingly, rejected.
In the result, the writ petitions are disposed of in terms of the observations and directions made in the foregoing paragraphs. The opposite parties, the State and the Convener, Post Graduate Medical Selection shall work out the directions, prepare the merit list separately for two batches, conduct counselling and select students for Post Graduate Medical Courses in different disciplines expeditiously in accordance with the directions made in this judgment and start the course in accordance with the directives of the Medical Council of India within the stipulated time.
P.K. Tripathy, J.
21. I agree.