REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5705-5706 OF 2012
[Arising out of SLP (Civil) Nos. 16201-16202 of 2012]
Satyaprata Sahoo & Ors. . Appellants
Versus
State of Orissa & Ors. . Respondents
J U D G M E N T
K. S. RADHAKRISHNAN, J.
1. Leave granted.
2. The appellants, who have appeared in the Entrance Examination for
Post-Graduate (Medical) Selection 2012, Odisha are challenging the validity
of Clause 11.2 of the Prospectus for selection of candidates for Post-
Graduate (Medical) Courses in the Government Medical Colleges of Odisha for
the Academic Year, 2012, as violative of Article 14 of the Constitution of
India.
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3. The appellants appeared in the entrance examination as ‘direct
candidates’ (Open Category) and have qualified purely on merit for
admission to Post Graduate (Medical) Courses 2012 in the Government Medical
Colleges in Odisha. The Prospectus issued for Post-Graduate (Medical)
Selection, 2012, Odisha deals with the availability of the seats both in
the category of direct as well as in-service. Clause 4 of the Prospectus
gives the category-wise details of the seats for P.G. (Medical) Courses in
three Government Medical Colleges in Odisha for the Academic Year 2012.
For the category MD/MS Course, in-service category, 87 seats are available
and for direct category, 86 seats are available, totaling 173 seats.
Appellants, who fall under the category of direct candidates, as already
indicated, are aggrieved by Clause 11.2 of the Prospectus which stipulates
an additional weightage for candidates who are in employment of Government
of Odisha/Government of Odisha undertaking / Government of India Public
Undertaking located in Odisha and had worked in Rural/Tribal/Backward areas
while applying through the category of direct candidates. Additional
weightage of 10% of marks secured in the P.G. Entrance Examination per year
of completion of service in -Rural/Tribal/Backward areas, subject to the
maximum of 30% of marks secured in the entrance examination, in service to
be given to those candidates who apply through direct category.
4. Appellants submit that the above clause is wholly arbitrary,
discriminatory and goes contrary to the ratio laid down by this Court in
State of M.P. & Ors. V. Gopal D. Tirthani & Ors. (2003) 7 SCC 83 and Dr.
Snehelata Patnaik & Ors. V. State of Orissa & Ors. (1992) 2 SCC 26.
Appellants have also prayed for quashing the Medical Council of India (in
short ‘MCI’) Notification No. 51210 of 17.11.2009 providing weightage marks
to in-service candidates applying through the direct category, which
according to the appellants, is a clear encroachment and appropriation of
seats earmarked for the direct category candidates which has to be filled
up purely on merit, subject to rule of reservation. Appellants’ challenge
was repelled by the learned single Judge of the Orissa High Court as well
as the Division Bench. Hence, these appeals.
5. Shri Shyam Diwan, learned senior counsel appearing for the appellants
submits that providing additional weightage marks to in-service candidates
who had rendered service in -
Rural/Tribal/Backward areas while considering their applications for
admission through the direct candidate category amounts to making an
artificial differentiation between a homogenous class i.e. direct
candidates and in-service candidates. Learned senior counsel pointed out
that on account of additional weightage benefit given to the doctors who
have rendered less than five years of service in Rural/Tribal/Backward
areas both in Government of Odisha or Public Sector Undertakings owned by
the State Government, will be an advantageous position and that would
amount to drawing an artificial differentiation between a homogeneous class
i.e. direct candidates and in-service candidates and also within the in-
service candidates, which action would be hit by Article 14 of the
Constitution of India.
6. Learned senior counsel also pointed out that the same further amounts
to providing horizontal reservation within the seats meant for in-service
candidates. Learned senior counsel pointed out that the admission through
direct candidates route be made purely on merit on the basis of the common
entrance examination and not on the basis of the additional weightage
granted to a few doctors who -had the advantage of serving in
Rural/Tribal/Backward areas while in employment in Government of Orissa,
Public Sector Undertakings owned by the State Government.
7. Mrs. Indu Malhotra, learned senior counsel, also submitted that such
candidates can always come through the in-service category, a normal route
for admission to PG (Medical) Course. Learned senior counsel pointed out
that additional weightage is always available to them when they come
through the in-service category route, however, the same cannot be extended
to them while applying for admission as direct category candidates, lest
they may make an inroad into the direct category, which is arbitrary,
discriminatory and violative of Article 14 of the Constitution of India.
8. Shri Krishnan Venugopal, learned senior counsel contesting on behalf
of the respondents, on the other hand, submitted that there is no
illegality in Clause 11.2 of the Prospectus which gives additional
weightage to in-service candidates who fall under the direct candidates
route, as well as third proviso added after clause 9(2)(d) of the Post
Graduate Medical Education (Amendment) -Regulations 2000 as amended by Post
Graduate Medical Education (Amendment) Regulation 2009 (Part II) vide
Notification dated 17.11.2009. Learned senior counsel pointed out that
classification of candidates as per Clause 6 and sub-clauses providing
weightage marks to such in-service candidates as per Clause 11.2 of the
Prospectus, cannot be termed as discrimination between direct and in-
service candidates and amongst the in-service candidates. Learned senior
counsel also pointed out that the weightage marks given to in-service
candidates who have rendered service in Rural/Tribal/Backward areas and
qualified in the entrance examination, cannot be termed as “horizontal
reservation” as it is only the weightage of marks given for rendering
service to the people in Rural/Tribal/Backward areas, in view of the law
laid down by this Court in Gopal D. Tirthani (supra).
9. Shri Kirti R. Mishra, learned senior counsel appearing on behalf of
the 4th respondent, submitted that the prospectus has been issued strictly
in accordance with the Notification No. 51210 dated 17.11.2009 issued by
the Medical Council of India, whereby additional weightage marks given as
an incentive for determining -the merit in the entrance examination passed
for P.G. admission. Learned senior counsel submitted that the weightage in
marks is given as an incentive at the rate of 10% of the marks obtained up
to maximum of 30% of the marks obtained for each year of service rendered
in remote or difficult areas. It was also pointed out that the additional
benefit is an incentive only and by awarding such an incentive, there is no
violation of Article 14 of the Constitution of India.
10. Learned counsel appearing for the MCI referred to the counter
affidavit filed on its behalf and submitted that the third proviso to
Regulation 9(2)(d) of the Post Graduation Regulation, 2000 (as amended)
does not provide for or contemplate any separate channel of entry for in
service candidates in admission to P.G. Degree Courses like that provided
for P.G. Diploma Courses. The proviso only provides that a weightage may
be given at the rate of 10% of the marks obtained for each year in service
in remote or difficult areas upto the maximum of 30% of the marks obtained
in the entrance examination and has secured minimum required -percentage of
marks for government service rendered in remote/difficult areas.
We heard counsels on either side at length.
11. Medical Council of India, in exercise of its powers conferred by
Section 33 read with Section 20 of the Indian Medical Council Act, 1956,
framed the Postgraduate Medical Education Regulations, 2000. Clause 9 of
the Regulations 2000 deals with the selection of the postgraduate students.
Clause 9(1) was substituted in terms of Notification published in the
Gazette of India on 20.10.2008 and the same now reads as follows:
“9(1)(a) Students for Post Graduate medical courses shall be
selected strictly on the basis of their Inter-se Academic Merit.
(b) 50% of the seats in Post Graduate Diploma Courses shall be
reserved for Medical Officers in the Government service, who have
served at least three years in remote and difficult areas. After
acquiring the PG Diploma, the Medical Officers shall serve for two
more years in remote and/or difficult areas.”
12. Clauses 9(1)(a) and 9(1)(b) when read together would indicate that
50% seats are earmarked for direct category candidates and -50% seats are
earmarked for in service category. Clause 9(1)(a) clearly states that
students for post graduate medical courses shall be selected strictly on
the basis of their inter-se academic merit and Rule 9(1)(b) states that 50%
of the seats stand reserved for in service candidates who have at least
three years service in remote and difficult areas.
13. The methodology to be adopted for determining academic merit is
provided in Clause 9(2), which is relevant for our purpose and hence
extracted hereunder:
“9(2) For determining the ‘Academic Merit’, the
University/Institution may adopt the following methodology:-
a. On the basis of merit as determined by a ‘competitive test’
conducted by the state government or by the competent
authority appointed by the state government or by the
university/group of universities in the same state; or
a. On the basis of merit as determined by a centralized
competitive test held at the national level; or
a. On the basis of the individual cumulative performance at the
first, second and third MBBS examinations provided admissions
are University wise. Or
a. Combination of (a) and (c)
Provided that wherever ‘Entrance Test’ for postgraduates
admission is held by a state government or a university or any other
authorized examining body, the minimum percentage of marks for
eligibility for admission to postgraduate medical course shall be 50
percent for general category candidates and 40 percent for the
candidates belonging to Scheduled Castes, Scheduled Tribes and Other
Backward Classes.
Provided further that in Non-Governmental institutions fifty
percent of the total seats shall be filled by the competent authority
notified by the State Government and the remaining fifty percent by
the management(s) of the institution on the basis of Inter-se Academic
Merit.”
14. However, the following proviso was added after clause 9(2)(d) in
terms of Gazette Notification published on 17.11.2009 and the same reads as
follows:
“Further provided that in determining the merit and the entrance
test for postgraduate admission weightage in the marks may be given as
an incentive at the rate of 10% of the marks obtained for each year in
service in remote or difficult areas upto the maximum of 30% of the
marks obtained.”
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15. Above Clause 9, therefore, stipulates the methodology to be adopted
for determining the inter-se academic merit of candidates who fall under
direct category and of those candidates who ultimately fall under 50% seats
reserved for in-service candidates. Clause 9(1)(a) clearly stipulates that
students for postgraduate medical courses shall be selected strictly on the
basis of “inter-se academic merit”. The main controversy in this case is
whether the candidates from direct admission category has to be selected
strictly on the basis of their inter-se academic merit or whether it is
legal to dilute the merit to the extent as indicated in the third Proviso
to Clause 9(2)(d). Candidates who fall in the direct candidates category,
whether they are fresh from the college or serving elsewhere, either on
Government service or under public-sector undertakings, working in
rural/Tribal area or otherwise or doctors who are serving in private
hospitals or nursing homes etc. situate in remote or difficult area, all
fall in that direct category and all of them have to take a common entrance
examination and admission criteria is only comparative merit. When the
comparative merit is the only criteria in the open category, the question
is whether a weightage can be given exclusively to those candidates who are
in -service of State of Odisha/Government of Odisha undertaking, whether
contractual/temporary/ad-hoc/regular on the ground that they had worked in
rural/tribal/backward areas. It may be noted that 50% seats have already
been earmarked for such category of candidates which they can always claim
depending upon the inter-se merit after complying with other eligibility
criteria. Question is whether those in-service candidates can appropriate
seats from the open category where seats are only few.
16. Clause 11.2 in the Prospectus issued by the P.G. (Medical) Selection
Committee 2012, giving additional weightage to those in-service candidates,
reads as follows:
“11.2 Those in-service candidates who have qualified in the
Entrance Examination and worked in Rural/Tribal/Backward areas shall
be awarded an additional weightage of 10% of the marks secured in the
P.G. Entrance Examination per year of completion service (in
Rural/Tribal/Backward areas), subject to maximum of 30% of marks
secured in entrance examination, vide MCI Notification No.51210/
dt.17.11.2009 (In Form No.Appendix-III(A)).”
Candidates fall under the Direct Category is provided under Clause 6
of the Prospectus, which reads as follows:
“6. CATEGORY OF CANDIDATES:
6.1. A Direct Candidate is one who at the time of application:
6.1.1 Is son/daughter/spouse of a person who has served in Defence
Service for minimum of 5 years by 31st December, 2011.
6.1.2 Is either unemployed or in the employment of Government of
Odisha, but not completed five years of service which includes all
categories of employment like contractual/temporary/ad-hoc/regular by
31st December, 2011
6.1.3 in the employment of Govt. of Orissa Public Sector
Undertaking/Govt. of India Public Sector Undertaking located in
Odisha. The employer has to sponsor the candidates for entire period
& must submit the sponsorship certificate as in Appendix III.”
Clause 6.2 deals with In-service candidate which reads as follows:
“6.2 An In-service candidate is one who at the time of application:
6.2.1 Is in the employment of Government of Odisha and has completed
a length of 5 years of service which includes all categories of
employment like contractual/temporary/ ad-hoc/ regular by 31st
December, 2011, excluding at-a-stretch leave of any kind, of 30 days
or more. However, the maternity leave is exempted from this exclusion
and shall be counted towards the length of five years of service.
Note: In-service and Direct candidates in employment under Government
of Odisha at the time of application -
are advised to submit their applications along with the required
documents directly to the Convenor, P.G. (Medical) Selection Committee
– 2012, under intimation to their Employer. Copy of such intimation
is to be attached.”
17. Clauses 6.1, 6.2 and 11.2, quoted above, clearly recognize two
categories of candidates i.e. “direct” and “in-service”. “Direct” is a
very wide category (open category) where students for P.G. Medical Courses
shall be selected strictly on the basis of inter-se academic merit, as
determined by a competitive test and in-service is a restricted category of
candidates who are in service of the State Government/State owned
undertakings. The details of the availability of seats are provided in
Clause 4 of the prospectus which is as follows:
“Category-wise Distribution of Seats
|Category |Unreserved | | | | | |Total |
|MD/MS | | | | | | | |
|Course | | | | | | | |
| | |ST(12%) |SC(8%) |PH(3%) |Defence(3%) |Greencard | |
| | | | | | |(5%) | |
|In-servic|62 |10 |7 |3 |0 |5 |87 |
|e | | | | | | | |
|Direct |59 |11 |7 |2 |3 |4 |86 |
|Total |121 |21 |14 |5 |3 |9 |173 |
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18. Seats in the direct category are also reserved for members of SC/ST
communities and also to those SC/ST candidates migrated from their state of
origin subject to certain conditions. Clause 6.4 reserves seats for
children or spouse of service/Ex-service personnel (Defence). Clause 6.5
states that seats are reserved for physically handicapped candidates also
subject to rules governing them. In other words, several reserved
candidates have also to be accommodated in the 50% Open Category. 50%
seats ear marked for the in-service candidates is kept intact, for which in-
service candidates can always aspire and if they satisfy the condition of
rural/Tribal service, they will definitely get weightage.
19. Now by virtue of third proviso to Clause 9(2)(d) and clause 11.2 of
the Prospectus candidates who fall under the in-service category are given
a weightage through which they can make an in-road into the direct
candidates category while retaining their rights to get admission for P.G.
Course through in-service category. Appellants lament that already 66%
reservation is there in the State for P.G. Admissions, including all
reservations and only 34% seats are available for direct unreserved
category on merit and if third -proviso to Clause 9(2)(d) of the M.C.I.
Regulation and Clause 11.2 of the Prospectus are given effect to then
those seats would be occupied by the in-service candidates large in number
and candidates who comes strictly on the basis of merit through the
competitive examination will have to stand out.
20. This Court in Gopal D. Tirthani (supra) upheld the allocation of 20%
seats for in-service candidates and held that weightage can be given to in-
service candidates for their having rendered specified number of years of
service in rural/tribal areas which is not hit by Article 14 of the
Constitution of India. This Court held that allocation of 20% of seats in
Post Graduation in the University of Madhya Pradesh for in-service
candidate is not a reservation, it is a separate and exclusive channel of
entry or source of admission, validity thereof cannot be determined on the
constitutional principles applicable to communal reservations. Having so
said, the Court held as follows:
“33. ………Firstly, it is a case of post-graduation 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 area does not at all affect in any
manner the candidates in open category. …………..”
21. Therefore, in Tirthani case, it has been categorically held that it
is permissible to assign a reasonable weightage to services rendered in
rural/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 the pre-PG test by securing the minimum qualifying marks
as prescribed by the Medical Council of India. Regulation 9 framed by the
Medical Council of India was also noticed by this Court so also the
existence of two categories: (1) direct category (open category) candidates
and (2) in-service category candidates. Weightage given for rendering
service in rural/tribal areas, so far as in-service candidates, was upheld
noticing that the assigning of weightage for service rendered in
rural/tribal areas would not affect in any manner the candidates in open
category.
22. We may, in this connection, refer to few earlier judgments in the
matter of giving weightage to in-service candidates although those
decisions were also considered in Tirthani case. In State of -U.P. and
Others. v. Pradip Tandon and Others. (1975) 1 SCC 267, reservation in
favour of people in “hill areas” and Uttarakhand 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. This Court held that
rural element did not make a class by itself because it could not be
accepted that the rural people were necessarily poor or socially and
educationally backward just as the urban people were not necessarily rich.
What was being dealt with in Pradip Tandon case was a reservation and not a
weightage. Later in Dinesh Kumar (Dr.) (II) v. Motilal Nehru Medical
College (1986) 3 SCC 727, the two-Judges Bench examined a scheme of
examination for admission to postgraduate courses suggested by the
Government of India stipulating a weightage equivalent to 15 per cent of
the total marks obtained by a student at the All-India Entrance
Examination, being given if he had put in a minimum of 3 years of rural
service. In that case, of course, this Court observed that it was
eminently desirable that some incentive should be given to the doctors to
go to the rural -areas because there was concentration of doctors in the
urban areas and the rural areas appeared to be neglected. The observation
made in Dinesh Kumar case was considered by three-Judges Bench of this
Court in Dr. Snehelata Patnaik (supra) and this Court opined that the
authorities might well consider giving weightage upto maximum of 5 per cent
of marks in favour of in-service candidates who had done rural service for
five years or more, the determination of which have to be made by the
authorities.
23. We have referred to the above mentioned judgments only to indicate
the fact that this Court in various judgments has acknowledged the fact
that weightage could be given for doctors who have rendered service in
rural/tribal areas but that weightage is available only in in-service
category, to which 50% seats for PG admission has already been earmarked.
The question is whether, on the strength of that weightage, can they
encroach upon the open category, i.e direct admission category. We are of
the view that such encroachment or inroad or appropriation of seats
earmarked for open category candidates (direct admission category) would
-definitely affect the candidates who compete strictly on the basis of the
merit.
24. The purpose and object for giving weightage to in-service candidates
who have rendered rural/tribal service is laudable and their interest has
been taken care of by the Medical Council of India as well as the
prospectus issued for admission to the various medical colleges in State of
Odisha but they have to come through the proper channel i.e. the channel
exclusively earmarked for in-service candidates and not through the channel
earmarked for candidates in the open category. The in-service candidates
are also free to compete through the open category just like any other who
fall under that category. Further, it is also relevant to note those who
get admission in post graduate courses through the open category have to
execute a bond stating that they would serve rural/tribal areas after
completion of their post-graduation. In fact, weightage is given to those
candidates who have rendered service in rural/tribal areas when they
compete for admission to PG (Medical) Courses in in-service category for
whom 50% seats are earmarked.
25. We also find another fallacy in Clause 11.2 read with Clause 6.2.1 of
the prospectus. Clause 6.2.1 of the prospectus says in-service candidate
is one who at the time of application is in the employment in Government of
Odisha and has completed a length of 5 years of service which include all
categories of employment like contractual/temporary/ad-hoc/regular by 31st
December 2011. Therefore, a doctor who is doing rural service on contract
or on temporary basis or on ad hoc basis by 31st December 2011 will also
get the benefit. At the same time, the candidates who pass out MBBS either
in regular service or in contractual / temporary/ ad hoc in a private
hospital even though serving in a remote/tribal areas would not get that
benefit even though those doctors are also rendering the same service.
Every doctor who goes out of medical college after MBBS would not get an
opportunity to serve in a rural/ tribal area by way of
contractual/temporary/ad-hoc or regular service offered by the State of
Odisha or a public sector. Few may fall in that category for various
reasons and they get an advantage and those who get that advantage of
course can, claim weightage when they are being considered in the in-
service category.
26. We notice that the seats earmarked for the open category by way of
merit are few in number and encroachment by the in-service candidates into
that open category would violate clause 9(1)(a) of the MCI regulations,
which says students for PG medical courses shall be selected strictly on
the basis of the inter se academic merit i.e. on the basis of the merit
determined by the competent test. Direct category or open category is a
homogeneous class which consists of all categories of candidates who are
fresh from college, who have rendered service after MBBS in Government or
private hospitals in remote and difficult areas like hilly areas, tribal
and rural areas and so on. All of them have to complete on merit being in
the direct candidate category, subject to rules of reservation and
eligibility. But there can be no encroachment from one category to
another. Candidates of in-service category cannot encroach upon the open
category, so also vice-versa.
27. We find, except State of Odisha and, to some extent, State of Tamil
Nadu, none of the other States in India, has incorporated such a clause in
any of their prospectus for admission to the graduate medical courses and
students who fall under the open -category in those States are, therefore,
not affected by such weightage.
28. Medical Council of India in the counter affidavit raised some
objections for giving admissions beyond the sanctioned admission capacity.
Reference was made to Section 10A of the MCI Act which provides that
admissions can be made by Medical Colleges only within sanctioned capacity
for which permission under Section 10A/recognition under Section 11(2) has
been granted. This Court in State of Punjab and Others v. Renuka Singla
and Others (1994) 1 SCC 175 held that the High Court or the Supreme Court
cannot be generous or liberal in issuing such directions which in substance
amount to directing the authorities concerned to violate their own
statutory rules and regulations, in respect of admissions of students.
Technical education, including medical education, requires infrastructure
to cope with the requirement of giving proper education to the students,
who are admitted. Taking into consideration, the infrastructure,
equipment, staff, the limit of the number of admissions is fixed either by
the Medical council of India.
29. Further, in Medical Council of India v. State of Karnataka (1998) 6
SCC 131, this Court held the number of students admitted cannot be over and
above that fixed by the Medical Council as per the Regulations and that
seats in medical colleges cannot be increased indiscriminately without
regard to proper infrastructure as per the Regulations of the Medical
Council.
30. In Mriduldhar (Minor) and another v. Union of Indiaand Others (2005)
2 SCC 65, this Court held as follows:
“Having regard to the professional courses into consideration,
it deserves to be emphasized that all concerned including Governments,
State and Central both, MCI/DCI, colleges, new or old, students,
Boards, universities, examining authorities etc. are required to
strictly adhere to time schedule wherever provided for; there should
not be mid-stream admission; admission should not be in excess of
sanctioned intake capacity or in excess of quota of any one, whether
Stare or Management. The carrying forward of any unfilled seats of one
academic year to next academic year is also not permissible.”
31. It is unnecessary to multiply the judgment rendered by this Court, on
this point, the question is how to mould the reliefs, especially when we
cannot, in the facts and circumstance of the -case, direct the State of
Odisha and the Medical Council of India to increase the seats so as to
accommodate the appellants. Seats which are legitimately due to the
appellants are being occupied by the candidates from in-service category.
32. Contention was raised by learned counsel, appearing for some of the
in-service candidates who got admission that they shall not be displaced
since they have already left their jobs from the State Government service
or the State owned undertakings after having got admission for P.G.
(Medical) Course. But, going by the stand taken by MCI and on the basis of
the decided cases of this Court, it would not be possible to increase the
seats, however, candidates who are meritorious should get admission.
33. Contention was raised that all the affected candidates were not made
parties to the writ petition and, therefore, without hearing them, no
orders shall be passed against them thereby depriving them of their seats.
Learned counsel for the appellants has stated that they had approached the
High Court of Orissa on 13.01.2012 i.e soon after the prospectus was issued
and the declaration of the provisional merit list took place on 10.04.2012
subsequent to the -filing of the writ petition. Learned Single Judge
rendered the judgment before the results were declared on 23.03.2012 and
the Division Bench dismissed the appeal on 09.04.2012. The first
counseling was conducted between 21.04.2012 to 23.04.2012. Since the
appellants had approached the court on 13.01.2012 and the matter was sub
judice before a court of law and this proceeding is only a continuation of
the writ petition filed by them on 13.01.2012, we are, of the view, that
the admissions given to the in-service candidates necessarily would be
subject to the outcome of the petitions pending before the court of law.
Therefore, in our view, non-impleadment of few of those candidates in these
proceedings would not affect the legitimate claim raised by the appellants.
34. Learned counsel appearing for the contesting respondents submitted
that they are undergoing studies from May 2012 onwards and, at this
distance of time, if they are displaced, that will cause serious injustice
to them since they have already left the government service/public sector
undertakings for joining the post graduate course. In view of the stand
taken by the Medical Council -of India that seats for post-graduate courses
cannot be increased, we are inclined to give a direction to the State of
Odisha or their undertakings to take back the in-service candidates into
their service and permit them to serve in the rural/tribal areas so that
they can compete through the category of in-service candidates in the 50%
seats earmarked for them for admission to the post-graduate course.
35. We are, therefore, inclined to allow this appeal and set aside the
judgment of the Division Bench as well as learned Single Judge by quashing
the proviso to clause 9(2)(d) of the MCI regulations to the extend
indicated above as well as clause 11.2 of the prospectus issued for
admission to the Post Graduate Medical Examination 2012 in the State of
Odisha. The State of Odisha, the Medical Council of India and respondents 1
to 4 are directed to take urgent steps to re-arrange the merit list and to
fill up the seats of the direct category, excluding in-service candidates
who got admission in the open category on the strength of weightage, within
a period of one week from today and give admission to the open category
candidates strictly on the basis of merit.
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36. Appeals are allowed and the judgments of the High Court are set aside
accordingly.
………………………………..J
(K.S. Radhakrishnan)
………………………………..J.
(Dipak Misra)
New Delhi,
August 3, 2012
