Dr. Sk. Fiyazul Haque vs State Of Odisha
2022 Latest Caselaw 5186 Ori

                ORISSA HIGH COURT: CUTTACK

                   W.P(C) NO. 24673 OF 2022
                              AND
                   W.P.(C) NO. 25184 OF 2022

      In the matter of applications under Articles 226 and 227
      of the Constitution of India.
                              ---------------

AFR In W.P.(C) No.24673 of 2022

Dr. Sk. Fiyazul Haque & Ors. ..... Petitioners

-Versus-

      State of Odisha                .....         Opp. Parties
      & Ors

For Petitioners : Mr. B. Routray, Sr. Advocate along with M/s. S.P. Nath, S.Routray, S. Sekhar, J. Biswal, A.K. Das and M. Panda, Advocates

For Opp. Parties : Mr. A.K. Mishra, Addl. Govt. Advocate [O.Ps.No.1 & 2]

Mr. R.C. Mohanty, Advocate [O.Ps. No. 3 & 4]

In W.P.(C) No.25184 of 2022

Dr. Nandita Barik ..... Petitioner

-Versus-

State of Odisha & Ors ..... Opp. Parties // 2 //

For Petitioner : M/s. S.K. Samal, S.P. Nath, S.Routray, S. Sekhar, J. Biswal, and A.K. Das, Advocates

For Opp. Parties : Mr. A.K. Mishra, Addl. Govt. Advocate [O.Ps.No.1 & 2]

Mr. R.C. Mohanty, Advocate [O.Ps. No. 3 & 4]

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE G. SATAPATHY

DECIDED ON : 28.09.2022

DR. B.R. SARANGI,J. The petitioners, by means of these two writ

petitions, seek direction to the opposite parties, more

particularly opposite parties no. 3 & 4, to award

additional weightage of marks for the period they have

served in V1 institution, i.e., Pandit Raghunath Murmu

Medical College and Hospital, Baripada (for short "PRM

MC, Baripada"), at the rate of 2.5% per year, as per Post-

Graduate (Medical) Selection Odisha Guidelines issued

for Counseling and Admission of candidates for Post-

Graduate (Medical) & Post-MBBS NBEMS Diploma // 3 //

Courses in Govt. and Private Medical Colleges of the

State 2022-23 under Annexure-3, and accordingly fix

their position in the merit list, within a reasonable time

to be stipulated by this Court.

2. Since the issue involved in both the writ

petitions is similar, they were heard together and are

disposed of by this common judgment.

3. For better appreciation, the factual matrix of

W.P.(C) No.24673 of 2022 is taken up for consideration.

3.1 The petitioners, having successfully completed

MBBS, are serving as Medical Officers under the State

Government. While they are continuing as such, the

Post- Graduate (Medical) Selection Odisha Guidelines for

Counseling and Admission of candidates for Post-

Graduate (Medical) & Post-MBBS NBEMS Diploma

Courses in Government and Private Medical Colleges of

the State 2022-23 were published in the month of June,

2022. The said guidelines were duly approved by the

Government of Odisha, Department of Health and Family

Welfare, vide Letter No.23601/H&F.W. dated // 4 //

15.10.2020. It was laid down in the said guidelines that

distribution of seats between in service and direct

candidates would be on 50:50 basis and the academic

session would be commenced from 1st May of each year

unless notified. The category of candidates eligible to

apply was prescribed under Clause-G of the guidelines.

Consequentially, on 15.01.2022, a notice was issued by

the National Board of Examination with regard to

holding of the National Eligibility-cum-Entrance Test -

Post Graduate (NEET) - PG-2022. In the said notice, it

was notified that the application forms would be

available from 15.01.2022 to 04.02.2022 and the

examination would be held on 12.03.2022 and the result

would be declared on 31.03.2022. Subsequently, vide

notification dated 04.02.2022, the programme for NEET-

PG-2022 was rescheduled, pursuant to the direction of

the Ministry of Health and Family Welfare. As per the

said notification, the date of submission of online

application forms was fixed from 15.01.2022 to

25.03.2022, the date for issuance of admit cards was

fixed to 16.05.2022, the date of examination was fixed to // 5 //

21.05.2022 and the date for declaration of result was

fixed to 20.06.2022.

3.2. Pursuant to the re-scheduled notice, as

mentioned above, the petitioners submitted their online

applications under the in-service category and

accordingly they appeared in the examination held on

21.05.2022, pursuant to admit cards issued in their

favour, and the result was published on 01.06.2022

prior to the reschedule date, i.e., 20.06.2022. After the

result was published on 01.06.2022, the DMET suddenly

issued a corrigendum on 18.06.2022, wherein it was

indicated that the cutoff date for in-service category, as

mentioned in the Guidelines for Post Graduate (Medical)

and Post MBBS NBEMS Diploma Courses for the

Academic Session 2022-23 shall be read as 31.05.2022

instead of 31.03.2022. Challenging the said

corrigendum, petitioner no.1, along Dr. Manisha

Vidyabhasini, approached this Court by filing W.P.(C)

No.16772 of 2022 and this Court, after due adjudication,

vide judgment dated 30.08.2022, quashed the said

corrigendum dated 18.06.2022.

// 6 //

3.3 In the meantime, opposite party no.3 started

the process of filling up of the State quota seats for in-

service as well as direct category candidates. The revised

guidelines were uploaded in the web portal on

13.09.2022 and the online application was extended

from 14.09.2022. The petitioners applied under the in-

service quota in respect of the State quota seats as per

the schedule for the PG Medical Counseling and

Admission, Odisha, 2022-23. Counseling was scheduled

for online registration/application by candidates along

with online payment from 15.09.2022 (10 A.M.) to

29.09.2022 (11.55 P.M.) and for verification of original

documents at Old Auditorium SCB MCH, Cuttack from

17.09.2022 to 23.09.2022, excluding 18.09.2022, (10

A.M. to 5 P.M.). As per such schedule, the petitioners

applied under the in-service category, but while

selecting, on the web portal no additional weightage of

marks was given for PRM MCH, Baripada. When the

petitioners made query, the opposite parties stated that

PRM MCH, Baripada has been excluded from the list of

institutions for being awarded additional weightage of // 7 //

marks according to the vulnerability grade. Since the last

date of submitting the online application was scheduled

to 20.09.2022, the petitioners, having no other

alternative, submitted their applications, but no

additional weightage of marks was awarded to them at

the rate of 2.5% per each year. Thereby, when additional

weightage of marks was not given to the petitioners,

aggrieved thereby they have approached this Court by

filing these writ petitions.

4. Mr. S. Routray, learned counsel appearing for

the petitioners contended that in the guidelines issued

under Annexure-3 it was clearly stated that the areas,

which were included in the existing V1 V2 V3 or V4

category list, would be allowed additional weightage, as

provided in the list appended thereto. It is further

contended that the guidelines issued for previous

academic years, i.e., 2020-21 and 2021-22, the newly

constructed Medical Colleges BB MC, Bolangir, SLN MC,

Koraput and PRM MC, Baripada have been included in

the V1 category and, as such, the petitioners are eligible

to get additional weightage @ 2.5% for each year, i.e., // 8 //

2.5% x 3= 7.5%, but the same has not been awarded to

them. The guidelines under Annexure-3 having been

approved by the State Government on 15.10.2020 and

the PRM MC, Baripada having been included in the V1

category, the opposite parties are duty bound to award

additional weightage of marks in respect of PRM MC,

Baripada. It is further contended that the subject-matter

of challenge involved in this case was before this Court

in W.P.(C) No. 2380 of 2022 wherein the opposite parties

had not awarded additional weightage of 2.5% marks for

each year in respect of BB MC, Bolangir and a

Coordinate Bench of this Court, vide order dated

02.02.2022, allowed the said writ petition directing the

opposite parties to prepare a fresh merit list by giving

weightage of 7.5% to each of the petitioners in terms of

the corrigendum issued. Thereby, non-awarding of

additional weightage at the rate 2.5% for the each year to

the petitioners, which they are otherwise entitled to get

as per guidelines, the action of the authorities is

arbitrary, unreasonable, contrary to the provision of law

and violates Article 14 of the Constitution of India.

// 9 //

5. Pursuant to notice issued, opposite parties no.

3 and 4 entered appearance through learned counsel Mr.

R.C. Mohanty and filed counter affidavit contending that

the claim of the petitioners for award of additional

weightage of marks at the rate of 2.5% for each year of

service they have rendered in V1 institution, i.e., Pandit

Raghunath Murmu College and Hospital, Baripada for

pursing Medical Course as per the Guidelines issued for

Post Graduation (Medical) Selection, Odisha and to fix

the position of the petitioners accordingly, cannot

sustain in the eye of law, in view of the fact that as per

the provisions contained in the guidelines the terms and

conditions of the guidelines will remain valid until

further orders and that the Government reserves the

right to change any of the clauses as per need, as and

when required. As such, the Director, Medical Education

and Training (DMET), Odisha has been authorized to

change constitution of the committee, schedule dates or

any other changes as per requirement with intimation to

the Government. Thereby, power has been vested with

the DMET, Odisha to change the conditions, as and // 10 //

when required, and pursuant to such authorization, the

DMET, Odisha issued Annexure-A/4 dated 18.06.2022

with regard to the changes in the approved PG (Medical)

and PG (Dental) admission guidelines/prospectus for the

academic session 2022-23. In Paragraph-9 of the

counter affidavit it has been specifically mentioned that

necessary steps by the DMET, Odisha were taken with

regard to method of counseling for Post-MBBS Diploma

and to the provision of additional weightage. Accordingly,

necessary changes in the approved PG (Medical) and PG

(Dental) admission guidelines/prospectus were made for

the academic session 2022-23. It is also contended that

District Headquarters Hospital, Baripada was not

included as a remote area and on up-gradation to PMR

MC, Baripada it is not coming under the zone of

consideration of the vulnerability for award of additional

weightage and, as such, the said institution was not

included in the list appended to the guidelines for award

of additional weightage. Thereby, the claim of the

petitioners for award of additional weightage @ 2.5%

marks per year of service rendered by them does not // 11 //

arise and consequentially seeks for dismissal of the writ

petition.

6. This Court heard Mr. S. Routray, learned

counsel appearing for the petitioners and Mr. R.C.

Mohanty, learned counsel appearing for opposite parties

no.3 and 4 in hybrid mode. Since the guidelines under

Annexure-3 are under challenge and the matter relates

to opposite party no.4, who is answerable, there is no

need for hearing other opposite parties. The opposite

party no.4 has filed counter affidavit after serving a copy

thereof on the learned counsel for the petitioner.

Therefore, pleadings having been exchanged between the

parties, with the consent of learned counsel for the

parties, the writ petition is being disposed of finally at

the stage of admission.

7. The Post-Graduate (Medical) Selection Odisha

Guidelines for Counseling and Admission of Candidates

for Post-Graduate (Medical) & Post-MBBS NBEMS

Diploma Courses in Govt. and Private Medical Colleges // 12 //

of the State 2022-23 clearly states under Annexure-B as

follows:

"List of institutions and their vulnerability grade for awarding additional weightage for pursuing PG medical course in stage of Odisha.

(Additional weightage @ 2.5, 5%, 7.5% and 10% per year of service in institutions of vulnerability grade V1, V2, V3 and V4 respectfully shall be allowed) The area of newly established or upcoming Medical Colleges which were established or will be established by upgrading the DHH after 21.03.2016, and are included in 10% per year category list but not included in the existing V1 V2 V3 or V4 category list, shall be included in V1 category.

Such areas if already included in the existing V1 V2 V3 or V4 category list shall be allowed for additional weightage as it is in the list."

In view of aforementioned provisions, PRM MC, Baripada

is coming under the second category since it was

included in the existing V1 category for the guidelines

issued for academic sessions 2020-21 and 2021-22. As

such, the newly constructed Medical Colleges, namely,

BB MC, Bolangir, SLN MC, Koraput and PRM MC,

Baripada have been included in the V1 category and in

the present guidelines, it has been clearly mentioned

that the areas which were included in the existing V1 V2 // 13 //

V3 or V4 category shall be allowed additional weightage

and admittedly the institution, which is situated in the

Baripada Block, was included in the V1 category in the

previous academic years, i.e., 2020-21 and 2021-22. The

vulnerability of the said institution having been notified

and the in-service doctors passed from the said

institutions, having been awarded 2.5% additional

weightage of marks, have already got PG admission in

the previous academic session, therefore, the said

benefit cannot be denied to the petitioners. Furthermore,

when the entrance test has already held, by issuing

corrigendum dated 18.06.2022, the claim of the

petitioners cannot be frustrated and, as such, the action

of the opposite parties is grossly hit by principle of

estoppels. Reason being, on the basis of guidelines

issued by the Government, the petitioners applied for

admission to Post Graduate Course and on due scrutiny

they were permitted to appear in the entrance test and

thereafter the result was published. Thus, the State

authorities are estopped from changing their own // 14 //

guidelines to the detriment of the petitioners, as the

same is hit by the principle of estoppels.

8. This question has already been considered by

this Court in Dr. Manisha Vidyabhasini v. State of

Odisha & Ors (W.P.(C) No.16772 of 2022, disposed of

on 30.08.2022) and after elaborate discussion made

thereon, this Court quashed the corrigendum notice for

PG Guidelines 2022-23 issued on 18.06.2022 with

regard to change of cutoff date from 31.03.2022 to

31.05.2022, as the same was issued after the

examination was over. Applying the said principle to the

present context, this Court is of the considered view that

if the opposite parties are willing to change their own

terms and conditions, they could have done it much

before the issuance of the advertisement or before the

examination started. Once the applications have been

entertained and scrutinized and the petitioners have

been permitted to appear in the examination and the

result has been published, the authorities cannot

change the rule of game after the game was played,

which is clearly impermissible.

// 15 //

9. In Black's Law Dictionary, 7th Edn. at page

570, 'estoppel' has been defined to mean a bar that

prevents one from asserting a claim or right that

contradicts what one has said or done before or what has

been legally established as true.

10. In B.L. Sreedhar v. K.M. Munireddy,

(2003) 2 SCC 355, the apex Court held that 'Estoppe',

commeth of a French work 'estoupe' from whence the

English word stopped and it is called an 'estoppel', or

conclusion, because a man's owne act or acceptance

stoppeth or closeth up his mouth to allege or plead the

truth [Stroud's Judicial Dictionary, 4th Edn., page. 943].

It is further held that 'Estoppel' is based on

the maxim allegans contraria non est audiendus (a

person is not to be heard to allege the contrary), and is

that species of presumption 'juries et et jure' (absolute or

conclusive or irrebuttable presumption), where the fact

presumed is taken to be true, not as against all the

world, but against a particular party, and that only by // 16 //

reason of some act done, it is in truth a kind of

agrumentum ad hominem.

11. In Mahindra and Mahindra Ltd. v. Union of

India, (1979) 2 SCC 529, the apex Court held that

'estoppel' can arise only if a party to a proceeding has

altered his position on the faith of a representation or

promise made by another.

12. In the case of H.R. Basavaraj v. Canara

Bank, (2010) 12 SCC 458, the apex Court while dealing

with the general word, 'estoppel' stated that 'estoppel is a

principle applicable when one person induces another or

intentionally causes the other person to believe

something to be true and to act upon such belief as to

change his/ her position. In such a case, the former

shall be estopped from going back on the word given. The

principle of estoppel is only applicable in cases where the

other party has changed his positions relying upon the

representation thereby made.

13. In Secretary, A.P.Public Service

Commission v. B.Swapna and others, (2005) 4 SCC // 17 //

154, the apex Court 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. In Paragraph-14 of the said

Judgment, the apex Court ruled as follows:-

"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."

14. In K.Manjusree v. State of Andhra Pradesh

and another, (2008) 3 SCC 512, the apex Court laid

down the law that introduction of requirement of

minimum marks for interview, after the entire selection

process (consisting of written examination and interview) // 18 //

was completed, would amount to changing the rules of

the game after the game was played which is clearly

impermissible.

15. In Mohd. Raisul Islam v. Gokul Mohan

Hazarika, (2010) 7 SCC 560, the apex Court while

deciding the question as to whether the amended rule

would operate prospectively or retrospectively, held "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."

16. In A.A. Calton v. The Director of Education,

AIR 1983 SC 1143, the apex Court held that law as it

stood at the point of time when the process of selection

commenced will be the law according to which the

selection has to be completed.

Similar view has also been taken by the apex

Court in P. Mahendran v. State of Karnataka, AIR

1990 SC 405.

// 19 //

17. Therefore, the guidelines issued under

Annexure-3, basing on which the process of selection

was commenced, is the principle, according to which the

selection has to be completed.

18. Similar view has also been taken by this Court

in the matter of recruitment of Ad hoc Additional District

Judges under the Orissa Judicial Service (Special

Scheme) Rules, 2001, in pursuance of the advertisement

issued by the High Court of Judicature, Orissa, Cuttack

by Advertisement No. 1 of 2003, in Mrs. Madhumita

Das v. State of Orissa, 100 (2005) CLT 465.

19. In the judgment rendered in the case of Dr.

Smrutisudha Pattnaik v. Acharya Harihar Regional

Cancer Centre, 2017 (1) ILR CUT-1077, of which one of

us (Dr. Justice B.R. Sarangi) was the author, similar

view was also taken by holding that the action

challenged being arbitrary, unreasonable and hit by the

principle "once game is played the rule of game cannot

be changed in the midst".

// 20 //

20. It appears that similar question had come up

for consideration before this Court in Aviram Panda V.

State of Odisha. (W.P.(C) No.2380 of 2022, disposed of

on 02.02.2022), wherein Mr. R.C. Mohanty, learned

counsel appearing for opposite parties had raised similar

contention as is raised herein, but the Coordinate Bench

of this Court repelled the contention raised by Mr.

Mohanty and issued direction in paragraphs-6 & 7 to

the following effect:

"6. The net result is that the cases of both the Petitioners shall be once again considered by the said Selection Committee and they shall be given weightage of 7.5% each in terms of the corrigendum issued. A fresh merit list shall be prepared and released today itself.

7. The Selection Committee be informed of this order by Mr. Mohanty, learned counsel for the Opposite Party Nos.2 to 4 immediately for them to take appropriate action without waiting for the downloaded copy of the order which in any case will be made available before 5 pm".

21. Considering the factual and legal aspects, as

discussed above, this Court is of the considered view

that the petitioners are entitled to get additional

weightage at the rate of 2.5% per year, as claimed by

them, pursuant to guidelines under Annexure-3 issued // 21 //

by the Government. It is brought to the notice of this

Court that in W.P.(C) No.24673 of 2022 petitioner no.1

has rendered 1143 days, petitioner no.2 has rendered

1096 days, petitioner no.3 has rendered 1100 days and

petitioner no.4 has rendered 1098 days in service and

the petitioner in W.P.(C) No.25184 of 2022 has rendered

865 days in service. Thereby, additional weightage at the

rate of 2.5% per year has to be calculated and requisite

percentage of additional weightage has to be extended to

each of the petitioners. Consequentially, this Court

directs the selection committee to extend the requisite

percentage of additional weightage strictly adhering to

the guidelines under Annexure-3 issued by the

Government, without being influenced by any

subsequent guidelines promulgated by the State after

examination is over. Needless to say, the entire exercise

shall be done, by giving the petitioners opportunity to

participate in the process of selection, as expeditiously

as possible, without waiting for the downloaded copy of

the judgment, on the basis of communication of the

verdict of this case to be made in course of the day by // 22 //

Mr. R.C. Mohanty, learned counsel appearing for

opposite parties no.3 & 4.

22. In the result, both the writ petitions are

allowed. However, there shall be no order as to costs.

                                             (DR. B.R. SARANGI)
                                                   JUDGE


G. SATAPATHY, J.             I agree.


                                              (G. SATAPATHY)
                                                   JUDGE



        Orissa High Court, Cuttack
        The 28th September, 2022, Alok