[Cites 21, Cited by 0]
Orissa High Court
Dr. Nihar Ranjan Biswal & Anr vs State Of Odisha & Ors. .... Opposite ... on 1 December, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 15074 of 2022
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Dr. Nihar Ranjan Biswal & Anr. .... Petitioners
-versus-
State of Odisha & Ors. .... Opposite Parties
W.P.(C) No. 9597 of 2022
Dr. Sambit Kumar Behera & Anr. .... Petitioners
-versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioners : Mr. B. Routray, Sr. Advocate
along with
Mr. J. Biswal, Advocate
(in W.P.(C) No. 15074 of 2022)
Mr. S.S. Das, Sr. Advocate
along with
Ms. S. Das, Advocate
(in W.P.(C) No. 9597 of 2022)
For Opp. Parties : Mr. M.R. Mohanty,
Addl. Govt. Advocate
Mr. P.K. Mohanty, Sr. Advocate
along with
Ms. K.T. Mudali, Advocate
(in Opp. Party No. 3 in W.P.(C) No. 15074 of 2022)
Mr. T. Patnaik, Advocate
(in Opp. Party No. 3 in W.P.(C) No. 9597 of 2022)
// 2 //
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
---------------------------------------------------------------------------------------
Date of Hearing: 23.09.2025 & Date of Judgment: 01.12.2025
---------------------------------------------------------------------------------------
Biraja Prasanna Satapathy, J.
Since both these writ petitions have been filed challenging the
process of the selection initiated vide Advertisement No. 20/2021-22
dtd.10.11.2021 so issued by the Odisha Public Service Commission (in
short Commission) for recruitment to the post of Asst. Professor (Super
Speciality) in Group-A under the Odisha Medical Education Service (in
short OMES) Cadre, both the matters were heard analogously and
disposed of by the present common order.
2. It is the main contention of the learned Sr. Counsels appearing for the
Parties in both the writ petitions that while issuing the impugned
advertisement vide Advertisement No. 20/2021-22 for the post in
question, since reservation has not been provided in terms of the
provisions contained under Rule 6 of the Odisha Medical Education
Service (Method of Recruitment and Condition of Service) Rules, 2021
(in short 2021 Rules), the selection process initiated pursuant to the
impugned advertisement is not sustainable in the eye of law and
// 3 //
requires interference of this Court. Rule 6 of the 2021 Rules reads as
follows:-
"6. Reservations.- Notwithstanding anything contained in
these rules reservations of vacancies or posts, as the case
may be, for-
(a) Scheduled Castes and Scheduled Tribes shall be made in
accordance with the provisions of the Odisha Reservation
of Vacancies in Posts and Services (for Scheduled Caste
and Scheduled Tribes) Act, 1975 and the rules made there
under; and
(b) SEBC, Women, Sports Persons, Ex- servicemen and
Persons with Disabilities shall be made in accordance
with the provisions made under such Act, Rules, Orders or
instructions issued in this respect by the Government, from
time to time."
3. It is contended that Petitioners in both these cases since belong to
reserve category and because of the nature of advertisement issued, no
reservation was provided for any of the candidates belonging to reserve
category and all the 19 posts so advertised were meant for UR
candidates, the process of selection so undertaken by the Commission is
vitiated.
3.1. It is also contended that pursuant to the interim order passed
initially vide order dtd.22.06.2022, further modified vide order
dtd.17.04.2023, two (2) posts in the discipline of Neurology and
// 4 //
Gastroenterology, Sl. Nos. 6 & 9 of the Advertisement were kept
reserved while permitting the Opp. Parties to proceed with the selection
process in respect of other disciplines.
3.2. It is also contended that appointment made pursuant to the
impugned advertisement was further held to be subject to final outcome
of the writ application. It is however contended that since in the
impugned advertisement, in respect of other disciplines, only one post
was advertised, there was no occasion to make reservation for reserve
category candidates as against those disciplines. However, since in the
discipline Urology, Neurology, Gastroenterology and Surgical
Gastroenterology, the post advertised was more than one, in view of the
provisions contained under Rule 6 of the 2021 Rules, required no. of
posts should have been kept reserved for reserve category candidates.
3.3. It is further contended that Petitioners as provided under Rule 4 of
the 2021 Rules were having the required eligibility criteria as against
the post of Asst. Professor in the discipline Neurology and
Gastroenterology. However, since there was no reservation provided for
reserve category candidates in respect of the discipline Neurology and
Gastroenterology, both the Petitioners were deprived to make their
// 5 //
applications and accordingly were deprived from getting the benefit of
appointment as against the said disciplines.
3.4. It is further contended that since post of Asst. Professor in OMES
cadre is a base level post, in terms of the provisions contained under
Sec. 3 of the Odisha Reservation of Vacancies Act, 1975, required
reservation should have been provided in the recruitment in question.
Sec. 3 of the Act reads as follows:-
"3. This Act shall apply to all appointments to the Posts
and Services under the State except-
(a) those meant for conducting or guiding or directing
research;
(b) those classified as scientific posts;
(c) tenure posts;
(d) those filled up on the basis of any contract;
(e) ex-cadre posts:
f) those which are filled up by transfer or deputation;
(g) those in purely temporary establishments, such as,
work-charged staff including daily-rated and monthly-
rated staff and such staff the duration of whose
appointment does not extend beyond the term of office of
the person making the appointment;
(h) temporary appointments of less than forty-five day's
duration;
// 6 //
(i) those in respect of which recruitment is made in
accordance with any provision contained in the
Constitution; and
(j) such other posts as the State Government may, from
time to time, by order, specify:
Provided that all orders made under clause (j) shall, as
soon as after they are made, be laid before the State
Legislature for a total period of fourteen days which may
be comprised in one or more sessions."
3.5. It is further contended that while issuing similar nature of
advertisement for recruitment as against the post of Asst. Professor in
various disciplines, AIIMS, Bhubaneswar vide the advertisement issued
under Annexure-5 provided for reservation in favour of reserve
category candidates. It is also contended that, in similar advertisement
issued by the Uttar Pradesh Public Service Commission vide
Advertisement issued under Annexure-6 series and by Rajasthan Public
Service Commission as against the post of Asst. Professor in various
disciplines, reservation was provided for reserve category candidates.
3.6. It is accordingly contended that taking into account the provisions
contained under Rule 6 of the 2021 Rules r.w. Sec. 3 of the 1975 Act
and the reservation principle followed by AIIMS, Bhubaneswar and by
Rajasthan and Uttar Pradesh Public Service Commission in similar
nature of advertisement issued under Annexure-5 & 6 series, Opp. Party
// 7 //
No. 3 while issuing the impugned advertisement should have made
provision for reserve category candidates. Since in the impugned
advertisement dt.10.11.2021, no reservation has been provided, the
process of selection in terms of the said advertisement stands vitiated.
3.7. In support of his aforesaid submission, learned Sr. Counsel
appearing for the Parties relied on a decision of the Hon'ble Apex Court
in the case of Fida Hussain & Ors. Vs. Moradabad Development
Authority & Anr., (2011) 12 SCC 615. Hon'ble Apex Court in Para 19
of the said judgment has held as follows:-
"19. In Director of Settlements v. M.R. Apparao [(2002) 4 SCC
638] this Court held: (SCC pp. 650-51, para 7)
"7. So far as the first question is concerned, Article 141 of the
Constitution unequivocally indicates that the law declared by the
Supreme Court shall be binding on all courts within the territory of
India. The aforesaid article empowers the Supreme Court to
declare the law. It is, therefore, an essential function of the Court
to interpret a legislation. The statements of the Court on matters
other than law like facts may have no binding force as the facts of
two cases may not be similar. But what is binding is the ratio of the
decision and not any finding of facts. It is the principle found out
upon a reading of a judgment as a whole, in the light of the
questions before the Court that forms the ratio and not any
particular word or sentence. ... A judgment of the Court has to be
read in the context of questions which arose for consideration in
the case in which the judgment was delivered. ... The law which
will be binding under Article 141 would, therefore, extend to all
// 8 //
observations of points raised and decided by the Court in a given
case."
4. Mr. M.R. Mohanty, learned Addl. Govt. Advocate on the other hand
while supporting the impugned advertisement made his submission
basing on the stand taken in the counter affidavit so filed by Opp. Party
No. 1. It is the main contention of the learned AGA that the recruitment
pursuant to the impugned advertisement being as against the post of
Asst. Professor (Super Speciality), claim of the Petitioners that required
posts should have been reserved for reserve category candidates is
untenable in the eye of law in view of the decision of the Hon'Ble Apex
Court in the case of Faculty Association of All India Institute of
Medical Sciences Vs. Union of India & Ors., (2013) 11 SCC 246.
Hon'ble Apex Court in the case of Faculty Association of AIIMS in
Para 2 and 22 to 25 has held as follows:-
"2. Although the matter is now before a Bench of five Judges,
the terms of reference are not very clear. From what we have
been able to gather from the pleadings and the judgment
[Faculty Assn. of Aiims v. Union of India, (2002) 63 DRJ 807]
of the Division Bench of the High Court, the question to be
considered is whether reservation was inapplicable to speciality
and superspeciality faculty posts in the All India Institute of
Medical Sciences (hereinafter referred to as "Aiims"). Faced
with the decisions of this Court in Indra Sawhney v. Union of
India [1992 Supp (3) SCC 215 : 1992 SCC (L&S) Supp 482 :
(1992) 22 ATC 384] ; Jagadish Saran v. Union of India [(1980)
// 9 //
2 SCC 768 : (1980) 2 SCR 831] and Pradeep Jain v. Union of
India [(1984) 3 SCC 654 : (1984) 3 SCR 942] wherein
reservation in admission to speciality and super speciality
courses was disallowed, the Division Bench of the High Court
confined itself to the limited issue, namely, whether reservation
policy was inapplicable for making appointments to the entry
level faculty post of Assistant Professor and to super speciality
posts and also whether the resolutions adopted by Aiims on 11-
1-1983 and 27-5-1994 were liable to be struck down.
xxx xxx xxx
22. Although the matter has been argued at some length, the
main issue raised regarding reservation at the super speciality
level has already been considered in Indra Sawhney case [Indra
Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC
(L&S) Supp 1 : (1992) 22 ATC 385] by a nine-Judge Bench of
this Court. Having regard to such decision, we are not inclined
to take any view other than the view expressed by the nine-Judge
Bench on the issue. Apart from the decisions rendered by this
Court in Jagadish Saran case [(1980) 2 SCC 768 : (1980) 2
SCR 831] and Pradeep Jain case [(1984) 3 SCC 654 : (1984) 3
SCR 942] , the issue also fell for consideration in Preeti
Srivastava case [(1999) 7 SCC 120] which was also decided by
a Bench of five Judges. While in Jagadish Saran case [(1980) 2
SCC 768 : (1980) 2 SCR 831] and in Pradeep Jain case [(1984)
3 SCC 654 : (1984) 3 SCR 942] it was categorically held that
there could be no compromise with merit at the super speciality
stage, the same sentiments were also expressed in Preeti
Srivastava case [(1999) 7 SCC 120] as well.
23. In Preeti Srivastava case [(1999) 7 SCC 120] , the
Constitution Bench had an occasion to consider Regulation 27
of the Post Graduate Institute of Medical Education and
// 10 //
Research, Chandigarh Regulations, 1967, whereby 20% of seats
in every course of study in the institute was to be reserved for
candidates belonging to the Scheduled Castes, Scheduled Tribes
or other categories of persons, in accordance with the general
rules of the Central Government promulgated from time to time.
The Constitution Bench came to the conclusion that Regulation
27 could not have any application at the highest level of super
speciality as this would defeat the very object of imparting the
best possible training to selected meritorious candidates, who
could contribute to the advancement of knowledge in the field of
medical research and its applications. Their Lordships
ultimately went on to hold that there could not be any type of
relaxation at the super speciality level.
24. In para 836 of the judgment in Indra Sawhney case [Indra
Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC
(L&S) Supp 1 : (1992) 22 ATC 385] , it was observed that while
the relevance and significance of merit at the stage of initial
recruitment cannot be ignored, it cannot also be ignored that the
same idea of reservation implies selection of a less meritorious
person. It was also observed that at the same time such a price
would have to be paid if the constitutional promise of social
justice was to be redeemed. However, after making such
suggestions, a note of caution was introduced in the very next
paragraph in the light of Article 15 of the Constitution. A
distinction was, however, made with regard to the provisions of
Article 16 and it was held that Article 335 would be relevant
and it would not be permissible not to prescribe any minimum
standard at all. Of course, the said observation was made in the
context of admission to medical colleges and reference was also
made to the decision in State of M.P. v. Nivedita Jain [(1981) 4
SCC 296] , where admission to medical courses was regulated
by an entrance test. It was held that in the matter of appointment
// 11 //
of medical officers, the Government or the Public Service
Commission would not be entitled to say that there would not be
minimum qualifying marks for Scheduled Castes/Scheduled
Tribes candidates while prescribing a minimum for others. In
the very next paragraph, the nine-Judge Bench while discussing
the provisions of Article 335 also observed that there were
certain services and posts where either on account of the nature
of duties attached to them or the level in the hierarchy at which
they stood, merit alone counts. In such situations, it cannot be
advised to provide for reservations. In the paragraph following,
the position was made even more clear when Their Lordships
observed that they were of the opinion that in certain services in
respect of certain posts, application of rule of reservation may
not be advisable in regard to various technical posts including
posts in super speciality in medicine, engineering and other
scientific and technical posts.
25. We cannot take a different view, even though it has been
suggested that such an observation was not binding, being
obiter in nature. We cannot ascribe to such a view since the very
concept of reservation implies mediocrity and we will have to
take note of the caution indicated in Indra Sawhney case [Indra
Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC
(L&S) Supp 1 : (1992) 22 ATC 385] . While reiterating the
views expressed by the nine-Judge Bench in Indra Sawhney case
[Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 :
1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] , we dispose of
the two civil appeals in the light of the said views, which were
also expressed in Jagadish Saran case [(1980) 2 SCC 768 :
(1980) 2 SCR 831] , Pradeep Jain case [(1984) 3 SCC 654 :
(1984) 3 SCR 942] , Preeti Srivastava case [(1999) 7 SCC 120]
. We impress upon the Central and State Governments to take
appropriate steps in accordance with the views expressed in
// 12 //
Indra Sawhney case [Indra Sawhney v. Union of India, 1992
Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC
385] and in this case, as also the other decisions referred to
above, keeping in mind the provisions of Article 335 of the
Constitution."
4.1. It is also contended that the post in question being a Super
Speciality post in the rank of Asst. Professor, reservation is not required
to be made in view of the decision of the Hon'ble Apex Court in the
case of Indra Sawhney Vs. Union of India, (1992) Supp. (3) SCC 217.
Hon'ble Apex Court in Para 838 of the said Judgment has
"838. While on Article 335, we are of the opinion that there are
certain services and positions where either on account of the
nature of duties attached to them or the level (in the hierarchy)
at which they obtain, merit as explained hereinabove, alone
counts. In such situations, it may not be advisable to provide for
reservations. For example, technical posts in research and
development organizations/departments/institutions, in
specialities and super-specialities in medicine, engineering and
other such courses in physical sciences and mathematics, in
defence services and in the establishments connected therewith.
Similarly, in the case of posts at the higher echelons e.g.,
Professors (in Education), Pilots in Indian Airlines and Air
India, Scientists and Technicians in nuclear and space
application, provision for reservation would not be advisable."
4.2. It is further contended that Hon'ble Apex Court in the case of
Preeti Srivastav (Dr.) & Anr. Vs. State of M.P. & Ors., (1999) 7 SCC
120 also clearly held that there cannot be any reservation at the level of
// 13 //
super specialization. Hon'ble Apex Court in Para 23, 25, 26 & 62 of the
said judgment has held as follows:-
"23. This Court has repeatedly said that at the level of super
specialisation there cannot be any reservation because any
dilution of merit at this level would adversely affect the national
goal of having the best possible people at the highest levels of
professional and educational training. At the level of a super
speciality, something more than a mere professional competence
as a doctor is required. A super specialist acquires expert
knowledge in his speciality and is expected to possess
exceptional competence and skill in his chosen field, where he
may even make an original contribution in the form of new
innovative techniques or new knowledge to fight diseases. It is in
the public interest that we promote these skills. Such high
degrees of skill and expert knowledge in highly specialised
areas, however, cannot be acquired by anyone or everyone. For
example, specialised sophisticated knowledge and skill and
ability to make right choices of treatment in critical medical
conditions and even the ability to innovate and devise new lines
of treatment in critical situations, requires high levels of
intelligent understanding of medical knowledge or skill and a
high ability to learn from technical literature and from
experience. These high abilities are also required for absorbing
highly specialised knowledge which is being imparted at this
level. It is for this reason that it would be detrimental to the
national interest to have reservations at this stage.
Opportunities for such training are few and it is in the national
interest that these are made available to those who can profit
from them the most viz. the best brains in the country,
irrespective of the class to which they belong.
// 14 //
xxx xxx xxx
25. The speciality and super speciality courses in Medicine also
entail on-hand experience of treating or operating on patients in
the attached teaching hospitals. Those undergoing these
programmes are expected to occupy posts in the teaching
hospitals or discharge duties attached to such posts. The
elements of Article 335, therefore, colour the selection of
candidates for these courses and the rules framed for this
purpose.
26. In the premises the special provisions for SC/ST candidates
-- whether reservations or lower qualifying marks -- at the
speciality level have to be minimal. There cannot, however, be
any such special provisions at the level of super specialities.
xxx xxx xxx
62. In the premises, we agree with the reasoning and conclusion
in Dr. Sadhna Devi v. State of U.P. [(1997) 3 SCC 90] and we
overrule the reasoning and conclusions in Ajay Kumar Singh v.
State of Bihar [(1994) 4 SCC 401] and Post Graduate Institute
of Medical Education & Research v. K.L. Narasimhan [(1997) 6
SCC 283 : 1997 SCC (L&S) 1449] . To conclude:
1. We have not examined the question whether reservations are
permissible at the postgraduate level of medical education.
2. A common entrance examination envisaged under the
regulations framed by the Medical Council of India for
postgraduate medical education requires fixing of minimum
qualifying marks for passing the examination since it is not a
mere screening test.
3. Whether lower minimum qualifying marks for the reserved
category candidates can be prescribed at the postgraduate level
// 15 //
of medical education is a question which must be decided by the
Medical Council of India since it affects the standards of
postgraduate medical education. Even if minimum qualifying
marks can be lowered for the reserved category candidates,
there cannot be a wide disparity between the minimum
qualifying marks for the reserved category candidates and the
minimum qualifying marks for the general category candidates
at this level. The percentage of 20% for the reserved category
and 45% for the general category is not permissible under
Article 15(4), the same being unreasonable at the postgraduate
level and contrary to the public interest.
4. At the level of admission to the super speciality courses, no
special provisions are permissible, they being contrary to the
national interest. Merit alone can be the basis of selection."
4.3. Learned Addl. Govt. Advocate also relied on various decisions of
the Hon'ble Apex Court in the case of Jagadish Saran (Dr) vs. Union
of India, (1980) 2 SCC 768, Pradeep Jain Vs. Union of India, (1984)
3 SCC 654, Christian Medical College Vellore Assn. Vs. Union of
India, (2020) 8 SCC 705, Neil Aurelio Nunes (OBC Reservation) Vs.
Union of India, (2022) 4 SCC 1, Mohan Bir Singh Chawla Vs.
Punjab University, (1997) 2 SCC 171, K. Duraisamy Vs. State of T.N.,
(2001) 2 SCC 538.
4.4. It is also contended that since the posts so advertised are Super
Speciality post and not a post belonging to Broad Speciality, a
clarification was issued by the Govt. in the Health & Family Welfare
// 16 //
Department on 21.06.2021, wherein it was fairly indicated that as per
the Supreme Court's order in Civil Appeal No. 4500 of 2002 with Civil
Appeal No. 5119 of 2002 decided on 18.07.2013, no reservation is
applicable for recruitment for the post of Asst. Professor in Super
Speciality discipline vide Annexure-R/1. It is accordingly contended
that in view of the clarification issued by the Govt. -Opp. Party No. 1
on 21.06.2021 vide Annexure-R/1, while issuing the impugned
advertisement, no reservation was made for the candidates belonging to
reserve category.
4.5. It is also contended that while issuing similar advertisement vide
Advertisement No. 12 of 2018-19 under Annexure-R/2, no reservation
was made as against the post of Asst. Professor in Super Speciality.
Relying on the aforesaid decisions of the Hon'ble Apex Court and the
clarification issued under Annexure-R/1, learned Addl. Govt. Advocate
contended that no illegality or irregularity has been committed by the
Opp. Parties in not providing reservation in the impugned advertisement
issued by the Commission vide Advertisement No. 20/2021-22 issued
on 10.11.2021.
5. To the submission made by the learned Addl. Govt. Advocate,
learned Sr. Counsels appearing for the Petitioners made further
// 17 //
submissions contending inter alia that the word Broad-Speciality and
Super-Speciality has been defined under Rule 2(v) & (vi) of the 2021
Rules and the same reads as follows:-
"2(v) "Broad-Speciality" means any of the subjects which
may be declared as a Broad-Speciality bythe MCI or NMC
or DCI from time to time;
(vi) "Super-Speciality" means any of the subjects of
Medicines, Surgery or Dentistry as may be declared by
MCI or NMC or DCI from time to time;"
5.1. Since by the time the Advertisement was issued on 10.11.2021,
vide notification dtd.25.02.2021, OMES (Method of Recruitment &
Conditions of Service) Rules, 2021 was already notified, in view of the
provisions contained under Rule 6 of the said Rules, even if the post is a
Super Speciality post, reservation is required to be made.
5.2. It is also contended that as per Rule 3 of the 2021 Rules, as against
the Teaching Posts so provided under Rule 3(a), post of Asst. Professor
being at the lowest rank, in view of the provisions contained under Sec.
3 of 1975 Act, reservation was required to be provided for reserve
category candidates. Rule 3(a) of the Rules reads as follows:-
"3(a) Teaching Posts-
(i) Professor
(ii) Associate Professor
// 18 //
(iii) Assistant Professor
5.3. It is further contended that the aforesaid 2021 Rules having been
framed in terms of the provisions contained under Art.309 of the
Constitution of India and in supersession of the 2013 Rules, the
clarification issued under Annexure-R/1 cannot be made applicable on
the face of the provisions contained under Rule 3(a), which is a
statutory Rule.
5.4. It is further contended that reliance placed by the learned State
Counsel to the decisions in the case of Faculty Association of AIIMS
as well as Preeti Srivastav as cited (supra) cannot be made applicable to
the facts of the present case as in those cases no ratio has been decided
and the matter was left upon for the Central Govt. and State Govt. to
take appropriate step in accordance with the views expressed in the case
of Indra Sawhney as cited (supra).
5.5. It is contended that since in terms of the decision of the Hon'ble
Apex court in the case of Faculty Association of AIIMS, no step has
been taken by the State of Odisha by debarring reserve category
candidates to participate in the selection process for super Speciality
discipline, the decisions in those cases are not applicable to the facts of
the present case. Hon'ble Apex Court in the case of Faculty
Association of AIIMS in Para 17 to 19 has held as follows:-
// 19 //
"17. Appearing for the institute, Mr Mehmood Pracha, learned
advocate contended that people from Backward Classes and the
Scheduled Castes and the Scheduled Tribes were often
discriminated against and even in spite of having excellent
qualities, they were not provided with sufficient opportunities to
come up to the standards, as contemplated by the various
medical colleges and, in particular, the All India Institute of
Medical Sciences, which is an institution of national
importance. Mr Pracha urged that although reservation at all
different levels of the institute had been introduced, for quite
some time, there is no available data to indicate that there has
been any deterioration in the quality of medical services being
provided in Aiims. On the other hand, Aiims was one of the most
sought after medical institute, not only for promotion and
research work, but also for the purpose of medical education.
18. Taking a leaf out of Hindu mythology, Mr Pracha drew an
analogy from the story of Eklavya and Arjun in the
Mahabharata. While Arjun belonged to the princely class,
Eklavya was a tribal boy, who without actual training or
guidance from any teacher, by his own efforts, excelled in the
art of archery. The famous Dronacharya was Arjun's teacher in
archery and Eklavya had acquired the skills that he had by
merely watching Dronacharya guiding Arjun. However, when it
came to an archery competition, Dronacharya, who was more
or less certain that, if allowed an opportunity, Eklavya would
possibly beat Arjun, requested Eklavya that if he really loved
and respected him, he should give his right thumb as
gurudakshina to his master. Eklavya dutifully obeyed the person
he had chosen as his master and was thus prevented from
competing in the competition which Arjun won. Mr Pracha
submitted that simply because Eklavya was a tribal boy he was
denied the opportunity of competing with Arjun, despite his
// 20 //
brilliance and excellence. Mr Pracha submitted that there are
many more Eklavyas in today's society, who, if not suppressed
and given a chance, would possibly even outshine those
belonging to the higher echelons of society.
19. Mr Pracha strongly supported the concept of reservation at
all stages, including at the super speciality stage. He urged that
at the entry level for recruitment to the faculty posts, which were
all treated as super speciality disciplines after the postgraduate
course, a member of the Backward Classes had to sit for an
examination with others without any separate weightage given
for reservation. It is only after having passed the written
examination along with other candidates, was a member of the
Backward Classes appointed in a teaching post on the basis of
reservation. Mr Pracha submitted that this was done only with
the intention of giving such a candidate an opportunity of
reaching the level of his other fellow faculty members. Mr
Pracha submitted that a little support was intended to help
people from the backward communities to make their presence
felt in academia, so as to encourage others similarly situated.
Mr Pracha also relied on the decision of this Court in Indra
Sawhney case [Indra Sawhney v. Union of India, 1992 Supp (3)
SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] , in
support of his contention that members of the Scheduled Castes
and Scheduled Tribes and Other Backward Classes were not
adequately represented and for the said purpose a certain
amount of reservation was necessary so that they could compete
with others and excel in academics. Strongly supporting the
policy adopted by the Institute, Mr Pracha submitted that the
civil appeal filed by the Faculty of Association of Aiims was
liable to be dismissed."
// 21 //
5.6. It is also contended that, since no ratio has been decided in the case
of Faculty Association, AIIMS as well as Preeti Srivastav as cited
(supra) and ratio being the essence of the judgment, the same is
required to be understood in the context of the relevant facts of the case.
In support of his submission, learned Sr. Counsels relied on a decision
of the Hon'ble Apex Court in the case of Dr. Shah Faesal & ors. Vs.
Union of India & Ors., (2020) 4 SCC 1. Hon'ble Apex Court in Para
25 of the said Judgment has held as follows:-
"25. In this line, further enquiry requires us to examine, to
what extent does a ruling of coordinate Bench bind the
subsequent Bench. A judgment of this Court can be
distinguished into two parts: ratio decidendi and the
obiter dictum. The ratio is the basic essence of the
judgment, and the same must be understood in the context
of the relevant facts of the case. The principle difference
between the ratio of a case, and the obiter, has been
elucidated by a three-Judge Bench decision of this Court
in Union of India v. Dhanwanti Devi (1996) 6 SCC 44,
wherein this Court held that:
"9. ....The It is not everything said by a Judge while giving
judgment that constitutes a precedent. The only thing in a
Judge's decision binding a party is the principle upon
which the case is decided and for this reason it is
important to analyse a decision and isolate from it the
ratio decidendi A decision is only an authority for what it
actually decides. concrete decision alone is binding
between the parties to it, but it is the abstract ratio
// 22 //
decidendi, ascertained on a consideration of the judgment
in relation to the subject-matter of the decision, which
alone has the force of law and which, when it is clear what
it was, is binding. It is only the principle laid down in the
judgment that is binding law under Article 141 of the
Constitution.""
5.7. It is also contended that in view of the provisions contained under
Art. 335 of the Constitution of India and provisions contained under
Para 5 of 2021 Rules, reservation was required to be provided for
reserve category candidates and the same having not been followed in
the impugned advertisement, the same requires interference of this
Court.
6. To the submission made by the learned Sr. Counsels appearing for
the Petitioners, learned Addl. Govt. Advocate contended that as per the
MCI norm, Assistant Professor in Super Speciality comes under Level
12 and Assistant Professor in Broad Speciality comes under Level 11.
Since in the impugned advertisement the post carries the scale of pay of
Level 12, the post cannot be treated as the base level post or in the
lowest of the rank against teaching post so provided under Rule 3(a) of
the 2021 Rules.
6.1. It is further contended that after coming into force of the Teacher
Eligibility Qualification in Medical Institutions, Regulation 2022 so
// 23 //
issued by the National Medical Commission, posts of Senior Resident
(Medical Post Graduates) Iniquitous Non-Medical Post Graduates are
the base level post and Asst. Professor with Super Speciality is not a
base level post.
6.2. It is also contended that as provided under Regulation 5(2) of the
2022 Regulation, eligibility for being designated as Post Graduate
Guide in Super Specialties, a teacher in Medical College or Institution
having a total of 3 years of teaching experience as Asst. Professor and
above, after obtaining super Speciality degree in the concerned super
Speciality subject, shall be recognized as post graduate guide in the
super Speciality subject, provided the Department has been
recognized/permitted for conducting super Speciality courses in that
subject.
6.3. It is also contended that as reflected in Table 3-B of Regulation 6 of
the 2022 Regulation, with regard to appointment of faculty on
promotion in super Specialities (DN/MCH), post of Senior Resident is
the base level post and not the post of Asst. Professor in Super
Speciality post. Table 3-B providing the appointment and promotion in
Super Specialities, contained various posts starting from Professor to
Senior Resident. It is accordingly contended that since post of Asst.
// 24 //
Professor (Super Speciality) is not a base level post and the post of
Senior Resident is a base level post, provisions contained under Sec. 3
of the 1975 Act is not applicable as claimed by the learned Sr. Counsel
appearing for the Petitioners.
6.4. It is also contended that as provided in Table 4.A(ii), the discipline
Medical Gastroenterology and Neurology comes under Medical Super
Speciality Department.
6.5. A further submission was also made that in the meantime pursuant
to the impugned advertisement the post in different disciplines, save
and except the discipline Gastroenterology and Neurology have already
been filled up. It is accordingly contended that since the selection
process in respect of other disciplines has already been completed with
appointment of the recommended candidates, it will cause prejudice to
the selected and appointed candidates in other disciplines, if the relief as
claimed in both the writ petitions will be allowed.
6.6. It is also contended that none of the selectees recommended and
appointed in other disciplines since are Party to the writ petition, their
selection and appointment cannot be interfered with, unless they are
given an opportunity of hearing. It is accordingly contended that the
// 25 //
challenge made to the impugned advertisement with the prayer as made
is not entertainable and the writ petitions are liable for dismissal.
7. I have heard Mr. B. Routray, learned Sr. Counsel and Mr. S.S. Das,
learned Sr. Counsel appearing for the Petitioners and Mr. M.R.
Mohanty, learned Addl. Govt. Advocate appearing for the Opp. Parties.
On the consent of the Parties and with due exchange of pleadings, the
matter was heard and disposed of at the stage of admission.
8. Having heard learned counsel appearing for the Parties and
considering the submissions made, this Court finds that recruitment to
the post of Asst. Professor (Super Speciality) was issued by the
Commission vide Advertisement No. 20 of 2021-22 on 10.11.2021.
Both the writ petitions have been filed challenging the advertisement
inter alia on the ground that in terms of the provisions contained under
Rule 6 of the 2021 Rules r.w. Sec. 3 of the 1975 Act, since no
reservation has been provided in respect of the discipline Neurology
and Gastroenterology, Sl. No. 6 & 9 of the Advertisement, the process
of selection initiated in respect of those two disciplines is not
sustainable in the eye of law. Rule 6 of the Rules no doubt provides for
reservation of vacancies for post to be filled up in OMES cadre. As
provided under Rule 3 of the Rules, the teaching post in the service
// 26 //
cadre comprises of three (3) posts and the post of Asst. Professor is the
base level post in the said cadre.
8.1. Therefore, in terms of the provisions contained under Rule 6 r.w.
Rule 3(a) of the 2021 Rules and Sec. 3 of the 1975 Act, necessary
reservation should have been provided for reserve category candidates
in the impugned advertisement. However, in view of the decision of the
Hon'ble Apex Court in the case of Indra Sawhney followed in the case
of Preeti Srivastav and Faculty Association of AIIMS as cited supra,
since the recruitment is as against the post of Asst. Professor in Super
Speciality and in terms of the decision of the Hon'ble Apex Court in the
case of Faculty Association of AIIMS, neither the Central Govt. nor
the State Govt. have taken appropriate step, taking into account the
view expressed in the case of Indra Sawhney, it is the view of this
Court that in absence of any such step being taken by the State, while
filling up the post of Asst. Professor in Super Speciality discipline,
reservation cannot be made.
8.2. It is also found that pursuant to the impugned advertisement, the
post in other disciplines have already been filled up and none of the
appointees are Party to the writ petition and in absence of them, their
selection and appointment cannot be interfered with.
// 27 //
8.3. Since in terms of the decision in the case of Indra Sawhney so
followed in Preeti Srivastav and Faculty Association of AIIMS as
cited (supra), no step has been taken by the State as to whether
reservation can be followed against recruitment to the post of Asst.
Professor in Super Speciality, it is the view of this Court that no
illegality or irregularity has been committed by the Opp. Parties while
issuing the impugned advertisement. Accordingly, this Court is not
inclined to interfere with the recruitment process so undertaken by the
Commission pursuant to the advertisement issued vide Advertisement
No. 20/2021-22 on 10.11.2021. Consequentially, both the writ petitions
fail and dismissed accordingly. The interim order passed earlier stands
vacated.
(BIRAJA PRASANNA SATAPATHY)
Judge
Orissa High Court, Cuttack
Dated the 1st December, 2025/Sneha
Location: High Court of Orissa, Cuttack
