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2009 Supreme(Ori) 749
IN THE HIGH COURT OF ORISSA
M.M. Das, J.
DR. ASISH PATNAIK AND OTHERS - APPELLANT
Versus
STATE OF ORISSA AND OTHERS - RESPONDENT
Decided On : 20-05-2009
Acceptance of terms and participation in an examination precludes challenging the legality of the circular or information brochure. Eligibility for additional weightage is based on actual service in specified areas.
Headnote:
Additional Weightage - Medical Courses Admission - Orissa Medical Services Recruitment Rules, 1941 - Clause-11.2 of the Information Brochure - G.O. No. 36644/H. dt. 12.12.2006 - Circular dated 3.1.1997
Fact of the Case:
Petitioners sought additional weightage for ranking in the entrance examination for admission to Post Graduate (Medical) Courses, 2009, based on their service in tribal/backward areas. They also requested modification of a circular to include PHC areas as tribal areas. The court considered the legality of the circular and the information brochure, and the Petitioners' eligibility for additional weightage.
Finding of the Court:
The court found that the Petitioners cannot challenge the circular or the information brochure as they had accepted the terms, filled up the forms, and appeared in the examination. However, if the Petitioners have served for three years in the mentioned areas, they will be entitled to the additional weightage.
Issues: Legality of the circular and information brochure, Petitioners' eligibility for additional weightage.
Ratio Decidendi: Petitioners cannot challenge the circular or information brochure after accepting the terms and appearing in the examination. Eligibility for additional weightage is based on actual service in specified areas.
Final Decision: The court dismissed all the writ petitions, stating they were devoid of merit, and directed the Opp. Parties to complete the admission exercise within the time schedule.
JUDGMENT :
M.M. Das, J. - As common questions of law & facts arise in all the aforesaid Writ Petitions, they were heard together & are disposed of by this common Judgment.
2. Each of the Petitioners in the aforesaid writ petitions have prayed for issuance of a direction to the Opp. Parties to extend additional weightage of 10% of the marks secured by the Petitioners for computing their ranking in the entrance examination for taking admission to Post Graduate (Meciical) Courses, 2009. An additional prayer has been made in W.P. (C) Nos. 1952, 5551 & 5552 of 2009 to issue a further direction to the Opp. Party - State to modify the circular dated 3.1.1997 incorporating the P.H.C. Areas as described under the National Health Plan, 1983 & thereby including the PHC areas, where the Petitioners in the aforesaid three writ petitions have served, as Tribal areas basing on the percentage of tribal population in the said areas. The concerned R.H.Cs in the aforesaid three writ petitions are P.H.C., Anandapur, P.H.C., Fakirpur & P.H.C., Panasadlha in the district of Keonjhar.
3. In course of argument, it was submitted by Mr. B. Routray, Learned Counsel for the Petitioner in one of the to writ petitions that the circular dated 3.1.1907 issued by the Government of Orissa in its Health & Family Welfare Department does not Include all the areas which are to be considered as backward/rural/tribal areas, &, therefore, the said circular cannot be taken as a guiding factor for computing as to whether the Petitioners have served for three years ih KBK/ Tribal/Backward areas as per Clasue-11.2 of the Information Brochure.
4. Various documents have been annexed to the writ petitions supporting the contention of the Petitioners that the list appended to the circular dated 3.1.1997 does not give the correct picture with regard to tribal/backward areas of the State. The Petitioners further contended that the Government in its notification dated 26.3.2004 (Annexure-1) to the W.P. (C) No. 1986 of 2009), which is the order of appointment of the Petitioners clearly mentioned in Clause-6 thereof that the Orissa Medical Services Rules require every appointee to serve the initial period of first three years in the tribal/backward are as of the State. Candidate's who have not been posted to any medical institution(s) in tribal/backward areas as declared by the Government shall be posted to any such institution(s) at any time. The aforesaid notification made in the year of appointment of the Petitioners is in consonance with Rule 10-A (2) & (3) of the Orissa Medical Services Recruitment Rules, 1941, as amended. The said Rule reads as follows:
10.A (1) The candidates selected shall, if so required, be liable to serve in any Defence Service or the post connected with the Defence of India for a period of not less than 4 years including the period spent on training, if any, any where in India or abroad:
Provided that (a) he shall not be required to serve as aforesaid after the expiry of 10 years from the date of appointment;
(b) he shall ndt ordinarily be required to serve as aforesaid after attaining the age of 45 years.
(2) Every candidate selected for appointment to the Orissa Medical Service shall have to serve the initial period of minimum three years in Tribal/Backward areas as declared by the Government from time to time.
(3) Every such candidate after serving three years as under Sub-rule (2) Shall serve the next three yeas in rural areas:
Provided that the candidates who do not join the .places of their posting according to Sub-Rules (2) & (3) shall be permanently debarred from joining any medical service under the State Government.
5. Basing on the advertisement, appointment order & the service rules, the Petitioners contended that they presumed that they have been posted in tribal/ backward areas inasmuch as conceding that they have not been posted in such an area, it was beyond the control of the Petitioners to serve in such areas for three years even though they ac
