Orissa High Court
Dr. Son Pattnaik vs State Of Odisha And Ors on 16 May, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) Nos.8065, 8844, 8873, 8905 & 9852 of 2022
(In the matter of applications under Articles 226 and 227
of the Constitution of India, 1950).
In W.P.(C) No.8065 of 2022
Dr. Son Pattnaik .... Petitioner
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Avijit Mishra, Adv.
-versus-
For Opp. Parties : Mr. S.K. Samal, AGA
(for O.P.1)
Mr. R.C. Mohanty, Adv.
(for O.P. No.2-DMET)
Ms. Pami Rath, Adv.
(for Interveners)
In W.P.(C) No.8844 of 2022
Dr. Sibangi Patnaik & Ors. .... Petitioners
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Avijit Mishra, Adv.
-versus-
For Opp. Parties : Mr. S.K. Samal, AGA
(for O.P.1)
Mr. R.C. Mohanty, Adv.
(for O.P. No.2-DMET)
Ms. Pami Rath, Adv.
(for Interveners)
W.P.(C) Nos.4154 & 4380 of 2022 Page 1 of 14
In W.P.(C) No.8873 of 2022
Dr. Sujata Sahoo & Ors. .... Petitioners
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Madan Sundar Behera,
Adv.
-versus-
For Opp. Parties : Mr. S.K. Samal, AGA
(for O.P.1)
Mr. R.C. Mohanty, Adv.
(for O.P. No.2-DMET)
Ms. Pami Rath, Adv.
(for Interveners)
In W.P.(C) No.8905 of 2022
Dr. Satya Ranjan Acharya & Ors. .... Petitioners
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Madan Sundar Behera,
Adv.
-versus-
For Opp. Parties : Mr. S.K. Samal, AGA
(for O.P.1)
Mr. R.C. Mohanty, Adv.
(for O.P. No.2-DMET)
Ms. Pami Rath, Adv.
(for Interveners)
W.P.(C) Nos.8065 of 2022 & bath of cases Page 2 of 14
In W.P.(C) No.9852 of 2022
Dr. Nihar Ranjan Mohanty & Ors. .... Petitioners
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case through Hybrid Mode:
For Petitioner : Mr. Pratik Dash, Adv.
-versus-
For Opp. Parties : Mr. S.K. Samal, AGA
(for O.P.1)
Mr. R.C. Mohanty, Adv.
(for O.P. No.2-DMET)
Ms. Pami Rath, Adv.
(for Interveners)
CORAM:
MR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-12.05.2022
DATE OF JUDGMENT:-16.05.2022
S.K. Panigrahi, J.
I. Factual background:
1. Doctors are at the core of our health system. For
decades, India has been struggling with a shortage with the
latest estimates suggesting that only 0.9 doctors are
available per 1000 population, which is far less than the
WHO is recommended minimum of 1/1000. The situation
is worse in rural areas which is home to 72% of India's
population but are served by only 40% of India's doctors.
Thepolicy with respect to the Bond Doctors have been
amended, relaxed, cancelled, and re-implemented at least
ten times since the inception of such policy in
1996.Subsequently, the Post- PG bond doctors also joined
the band wagon in order to rectify the issue of
misdistribution of doctors in the State.
2. At the ground level such doctors face myriad hurdles
impeding their motivation to serve in the rural areas. In
order to encourage such Doctors, after completion of their
Post-graduation, the serve as post PG bond service for 2
years, and in order to infuse fresh motivation, the State
Government have allowed to count such service towards
the teaching experience of 2 years as SR. The Director
Medical Education and Training, Odisha vide its notice
dated 17.03.2022 modified its Bond conditions as;
a. The Bond notification No.32988/H. dated
09.12.2021 shall be applicable retrospectively
from the year 2017.
b. The post P.G. Bond service of two years shall be
counted towards the teaching experience of two
years as SR.
3. The present Writs petitions raise the issue of allowing
the post PG bond doctors to participate in the selection
process of SR like the fresh PG candidates, despite the fact
that their service of two years shall be counted towards the
teaching experience of two years as SR as per the policy of
the Government.
4. The centrality of the issue revolves around the fact that
the Director of Medical Education and Training, Odisha
floated an advertisement dated 16.03.2022 inviting
candidates for filling up the posts of Senior
Residents/Tutors in Govt. Medical colleges and Hospitals of
the State. Accordingly, the eligible candidates were invited
for walk-in interview for the said selection of the posts of
Senior Residents (SRs) and Tutors in different disciplines of
the Government Medical Colleges. However, in the said
advertisement, there is a specific instruction inscribed
limiting the candidates who are continuing as post-PG
bond services to participate in the interview process since
they are entitled for teaching experience certificates as SR
for 2 years for the period of post PG bond service against
minimum requirement for Assistant Professor only one year
as Senior Resident as per TEQ of NMC.
5. Prior to 2017, there was no such bond service doctor for
which there was little scope for getting teaching experience
certificate as SR except for participating in the selection
process of SR. Since there were only three Medical Colleges
in the state, the scope for selection of S.R. was further
squeezed. In the meanwhile, the state Govt has opened
eight Medical Colleges for which the appointment of senior
residents is required as per the regulations of Medical
Council of India/NMC and at the same time Asst.
Professors are also required which the projected demand
for the SRs also expanded with maximum age limit is 45
years as recommended by MCI/NMC.
6. The petitioners have completed their post-Graduation in
the year 2021 and they are serving 2 years Post- PG Bond
service doctors under the state government and as per the
government notification dated 17.03.2022, the post -PG
bond service of 2 years shall be counted towards the
teaching experience of 2 years as SR. Accordingly, this is
mirrored in the advertisement in terms of eligibility
and qualification for Senior Residents/Tutors:
"(4.1) For the post of Senior Resident (non
academic) in Clinical Departments (Speciality)
the candidate must possess
MD/MS/MDS/DNB or any equivalent degree in
concerned discipline applied for or as
prescribed by MC/NMC/DCI in "minimum
qualifications for Teachers in Medical
Institutions Regulations, 1998 notified for
amended from time to time in force (NB. The
MDS qualification is required for S.R. in dental
stream)"
The clause 4.5 of the said advertisement, further
eligibility reverberates as under:-
"4.5.1 the candidate must be a citizen of India
4.5.2 the candidate must not be continuing or
have completed the tenure as Senior Resident
/Tutor in any MCI/NMC/DCI permitted/
approved/ recognized Institute.
4.5.3 The candidate whose service as Senior
Resident/Tutor has been terminated by any
govt. medical dental college in the state for
whatsoever reason will not be considered for
reengagement."
7. The PG qualified Doctors who have completed their PG
course prior to 2017, are unable to compete with the
younger doctors insofar as their career marking is
concerned and hence will not be able to be selected to
undergo SRship. In order to encourage and give
opportunity to such doctors to do SR, the advertisement
was issued on 16.03.2022 for filling up the post of Senior
Residents/Tutors in medical colleges and Hospitals of the
state. In the said advertisement it is specifically mentioned
that for the post of Senior Residents (non-academic). The
post PG doctors are entitled for teaching experience
certificate as SR for 2 years and hence shall not apply. The
said negative enforcement was quite inelastic in nature and
precisely restricted the scope of the petitioners to
participate in the selection process.
8. The petitioners herein have invoked the Writ jurisdiction
of this Court seeking a direction from this Court to allow
them to participate in the process of selection for the posts
of Senior Resident in their respective disciplines pursuant
to advertisement/ Annexure-8 and if they are selected, they
will be allowed to complete the tenure of senior Resident-
ship in their respective field. Initially, this court allowed the
petitioners to participate in the selection process as per
schedule in their respective discipline vide interim order
dated 05.04.2022 passed in I.A. No.4168 of 2022 arising
out of W.P.(C) No.8065 of 2022, order dated 07.04.2022
passed in I.A. No.4611 of 2022 arising out of W.P.(C)
No.8873 and order dated 07.04.2022 passed in I.A.
No.4589 of 2022 arising out of W.P.(C) No.8844 of 2022.
Since many aspects of the issue was not properly placed
before this court especially the nature of counselling and
the specific bar in the advertisement dated 16.03.2022 for
debarring the petitioners to participate in the selection
process which eventualized in passing of the interim orders
dated 05.04.2022 and 07.04.2022 allowing the petitioners
to participate in the selection process. It was with the
intervention of the intervention Applicants and the OP
No.2/DMET, certain aspects of the matter which were
hitherto hazy, it was further got crystallized and this Court
passed another order dated 13.04.2022 passed in I.A.
No.4760 of 2022 arising out of W.P.(C) No.8065 of 2022
directing the OP No.2 /DMET to not to appoint any SR till
the final disposal of this Writ Petition.
II. Submissions of Petitioners:
9. Learned Counsel for the petitioners, Mr. Avijit Mishra
submitted that even though the petitioners are entitled to
teaching experience certificate as SR for 2 years for the
period of post PG bond service, they cannot be denied to
participate in the process of selection for the post of Senior
Residents and Tutors conducted by the state following the
due process of selection as the so-called teaching
experience certificates which are being promised to be
issued to the petitioners have been challenged by different
candidates before this Court on the ground that teaching
experience issued by state to the candidates working in
medical institutions other than Medical colleges are not
correct from legal stand point and that will not be accepted
by MCI/NMC as a full-fledged SR and the same are
pending before this Court.
10. He further submitted that the petitioners, at present,
have not completed 1 years of their post PG bond services
and they have not yet been issued with experience
certificate. Added to this, there is an inherent apprehension
of taking risks in this unchartered or new territories of the
so-called gift SRship. In fact, they cannot deny the
petitioners to participate in the process of selection for the
post of Senior Resident/Tutor which is conducted through
a proper process of selection.
11. It is further submitted that the petitioners who are
continuing in post-PG bond services do not have or have
been offered the job responsibilities of the Junior Residents
(JR) & Senior Residents (SR)/Tutors as has been
mentioned in schedule-A of the said resolution/Guidelines)
dated 13.12.2018 and for which Clause-4.5. of the
impugned advertisement is not at all applicable to the
petitioners.
12. He further stressed that the teaching experience of 2
years as Senior Resident as has been promised by the
government to the petitioners is not acceptable as per the
MCI/NMC norms as the same is being issued working in
medical institutions other than medical colleges and even
the petitioners who are continuing in medical colleges are
working for a full tenure of one year as they have been
directed to work in trauma centers and medical college on
rotation basis. Hence, above justification amply justifies for
the Op No.2/DMET for ratification of the claim of the
petitioners in allowing participation in the regular process
of selection for the posts of Senior Residents even though
they are being issued with teaching experience certificate
after completion of 2 years post PG bond service.
13. The Petitioners do not have any friction on the issue of
notifying the post PG bond service period will be counted
towards teaching experience as Senior Resident but the
same cannot be a rationale to deny the petitioners to
participate in the regular process of selection for the post of
Senior Resident and to fetch a better and valid teaching
experience certificate after serving in the said
post/department which would help in shining their future
career.
III. Submissions of DMET
14. Learned Counsel for the DMET, Mr. Rajani Ch.
Mohanty, submits that the petitioners, who are already
eligible for SR certificate for two years, do not need any
more certificates. Hence, the reason for praying to
participate the selection for the purpose of the same
certificate which they are anyway acquiring is well known
to them. It seems by entering into the recruitment mode for
selection of SR, which is meant for freshcandidates or
candidates sans any such SR certificate; want to compete
only because they want a change in placement other than
place of posting under post PG bond service. In such view
of the matter, facts and reasons indicated above for the
greater interest of state and to allow more candidates to
have the experience certificate of one year, instead of
allowing the same candidates to do SR repeatedly is just a
colossal waste educational resources of the State. Hence
the instant writ petition is liable to be dismissed being
devoid of merit.
IV. Submissions of the Interveners:
15. Learned Counsel for the Intervention Applicants, Ms.
Pami Rath who is representing some of the doctors who
after completion of PG in their respective streams have
applied for the post of SR in response to the advertisement
which is open for all including them as they areeligible.On
7.4.2022 counseling was held and a merit list was drawn
and reflected in the notice board at the counseling center.
The present interveners awaken to know from the notice
that the present Writ has been filed and the petitioners
though expressly prohibited to participate in response to
the advertisement, they have been allowed to participate
vide the interim orders dated 05.04.2022 and 07.04.2022
passed by this Court.
16. It is further contended that the Writ Petitioners are a
distinct group hence the tone and tenor of the
advertisement dated 16.3.2022 has specifically refused to
accommodate their aspirations for SR as they are smoothly
fetching a SR certificate without undergoing any selection
process. The State has floated the present advertisement
for SR for, making it available for those Doctors who have
had neither the benefit of such post PG based SR certificate
nor have been able to get SR Post prior to this recruitment.
The State has benevolently allowed the post PG students a
SR experience certificate, without competing with other
doctors for regular SR post. They are being given SR
certificate for the period served under the government.
17. It is further submitted that due to the participation of
the petitioners and allowing appointment to the petitioners,
will greatly prejudice the Interveners in terms their career
interest. She further contended that the orders dated
05.04.2022 and 07.04.2022 which were passed by this
Court was due to impoverished presentation of proper facts
by the petitioner. The nature of counseling and the specific
bar in the advertisement dated 16.03.2022 has not been
brought to the notice of this Court resulting in passing of
the interim orders dated 05.04.2022 and 07.04.2022.
Accordingly, the selection proceeded, the present writ
petitioners would be joining as SR snatching away the
rights of other candidates who either did not get their place
of choice or no post at all because of the participation of
these otherwise ineligible candidates.
V. Analysis and Reasoning:
18. Heard learned Counsel for the parties. The
submissions of the petitioners contending that even though
the petitioners are entitled for teaching experience
certificate as SR for 2 years for the period of post-PG bond
service, they cannot be denied to participate in the process
of selection for the post of Senior Residents and Tutors has
little force. In fact, the Writ Petitioners are a distinct group
and are not entitled to be considered pursuant to the
advertisement dated 16.3.2022 as they are already going to
get SR Certificate. The State has floated the present
advertisement for SR, for making it available for those
Doctors who have had neither the benefit of such post-PG
based SR certificate nor have been able to get SR Post prior
to this recruitment. The State has benevolently allowed the
post PG students a SR experience certificate, without any
competition with others doctors for regular SR post.
19. The argument of equality before law in terms of
allowing the petitioners in the selection process cannot be
raised in the facts of instant case as equality before the
law, means that amongst equals should be equal and
equally administered and that like should be treated alike.
The principle of equality does not mean that every law
must have universal application to all the persons who are
not by nature, attainment or circumstances in the same
position. The varying needs of different classes of persons
require different treatment. In order to pass the test for
permissible classification two conditions must be fulfilled,
namely: (1) the classification must be founded on an
intelligible differentia which distinguishes persons or
things that are grouped together from others left out of the
group, and (2) the differentia must have a rational nexus
with the object sought to be achieved by the statute in
question. Hence, the contention of equality in getting the
opportunity for competing with other candidates even after
they are on the verge of fetching SR certificate due to their
current posting, is quite illogical and against the tenor of
equality.
20. Such position of law has been succinctly echoed by
the Supreme Court in State of West Bengal v. Anwar Ali
Sarkar1,wherein it was held that there must be some
rational nexus between the basis of classification and the
object intended to be achieved. The expression "intelligible
differentia" means difference capable of being understood
as enunciated. In other words, classification must have a
rational nexus with the object sought to be achieved by the
statute in question. The state government has the power to
give designation of SR and the petitioners are going to be
armed with such a certificate hence the advertisement has
rightly debarred them from participating in the Selection
process of SR which will likely to unnecessarily corner the
share of the fresh non-PG bond doctor candidates.
VI. Conclusion and Order:
21. The aspirational trajectory of the petitioners are worth
appreciating but considering the stipulations in the
advertisement and post-PG based SR certificate to be
offered to them during their current postings, fails to
convince this Court for granting any relief. This Court
appreciates their service to the people and fire in the belly
1952 AIR 75
to strive high in their vocation. However, in view of the
discussion made hereinabove, the Opposite Party No.2/
DMET to redraw the merit list of the selected SRs by
excluding the petitioners and publish the result within
three days from receipt of the copy of this order.
Accordingly, the earlier order dated 05.04.2022 passed in
I.A. No.4168 of 2022 arising out of W.P.(C) No.8065 of
2022, order dated 07.04.2022 passed in I.A. No.4589 of
2022 arising out of W.P.(C) No.8844 of 2022 and order
dated 07.04.2022 passed in I.A. No.4611 of 2022 arising
out of W.P.(C) No.8873 of 2022 are vacated and the Writ
Petitions are dismissed.
22. All the aforesaid Writ Petitions are, accordingly,
disposed of as dismissed.
23. Consequently all the pending I.As. are disposed of.
( S.K. Panigrahi )
Judge
Orissa High Court, Cuttack,
Dated the 16th of May, 2022/B. Jhankar
