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Dr. Sidhartha Das and ors. Vs. State of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 168 of 1981
Judge
Reported inAIR1981Ori97; 51(1981)CLT305
ActsConstitution of India - Article 14; Indian Medical Councils Act, 1956 - Sections 33; Evidence Act, 1872 - Sections 115
AppellantDr. Sidhartha Das and ors.
RespondentState of Orissa and anr.
Appellant AdvocateG. Rath, ;R.K. Rath and ;N.C. Panigarhi, Advs.;R.K. Mohapatra and ;S.C. Mohapatra, Advs.
Respondent AdvocateGovt. Adv.
DispositionPetition allowed
Cases ReferredJyoti Prasad v. Administrator
Excerpt:
.....of the state for the session 1981 as well as for recommendation for p. on 8th august, 1978, the post-graduate committee of the council recommended that the post-graduate training should be delinked from housemanship. in exceptional circumstances the syndicate may permit a candidate four weeks more for admission. in the year previous to that of the petitioners but had failed to take examination. provided that in departments like radiology, anaesthesiology/physical medicine & rehabilitation where suitable candidates who have done housemanship in the respective subject for the respective speciality are not available, then the housemanship in medicine and/or in surgery may be considered as sufficient. when delinking was recommended in 1978, a classification of the type indicated was not..........1981 for a direction to the opposite parties to allow the petitioners to undergo the rest of the postgraduate course in subjects assigned to them and to have their names registered under the universities for submitting their theses.2. the pleadings relevant for disposal of the writ application advanced by the petitioners are these :--(i) under section 33 (j) of the indian medical councils act (102 of 1956), power has been vested in the council to frame regulations prescribing the courses and period of study, and of practical training to be undertaken, the subjects of examination and the standard of proficiency therein to be obtained in universities or medical institutions for grant of medical qualifications. m.d./m.s. degrees are recognised degrees in medical qualification. in exercise.....
Judgment:

Misra, J.

1. Each of the 8 petitioners is a Medical Graduate possessing M. B. B. S. degree. In terms of the prospectus published by the opposite parties for the year 1979-80 the petitioners applied for undergoing the course prescribed for post-graduate study in different specialities and each of them was selected in terms of the notification dated 6-1-1980. Under the prospectus for the year, copy of which is Anne-xure-4 to the writ application, the period of the course is 3 years -- the first year thereof is housemanship. In terms of the prospectus, in certain subjects selection to the post-graduate course entitles the candidates in those specialities to automatically take to the post-graduate course while in certain other specialities with which the petitioners are concerned, at the end of the year, a fresh selection examination is contemplated to entitle those in these specialities to take the remaining two-year course prescribed for the post-graduate degree. The petitioners allege that between 13th January and 23rd January of 1981 each of them completed the prescribed term of one year's housemanship. Opposite party No. 2 caused a notice to be published in the daily Samaj, vide Annexure 10, entitled 'Admission Notice' to the effect that --

'Applications are invited in the prescribed form for different P. G. Courses and recruitment to the Resident House Staff in 3 Medical Colleges of the State for the session 1981 as well as for recommendation for P. G. study outside the State. Prescribed application forms together with prospectus can be obtained from the Principals of any of the 3 Medical Colleges of the State on or after 9-1-1981 on payment of.........'

The admission notice has, however, in the meantime, been cancelled. The petitioners thereupon filed this application on 29th January, 1981 for a direction to the opposite parties to allow the petitioners to undergo the rest of the postgraduate course in subjects assigned to them and to have their names registered under the Universities for submitting their theses.

2. The pleadings relevant for disposal of the writ application advanced by the petitioners are these :--

(i) Under Section 33 (j) of the Indian Medical Councils Act (102 of 1956), power has been vested in the Council to frame regulations prescribing the courses and period of study, and of practical training to be undertaken, the subjects of examination and the standard of proficiency therein to be obtained in universities or medical institutions for grant of medical qualifications. M.D./M.S. degrees are recognised degrees in medical qualification. In exercise of such regulation-making power, the Medical Council of India formulated recommendations on post-graduate medical education which were approved by the Government of India and thus became regulations within the meaning of Section 33 of the Act. Up to 1977-78, the post-graduate course used to be for also a term of 3 years, and one who was selected for post-graduate study underwent one year's housemanship and two years of study in the discipline whereafter came the final examination. On 8th August, 1978, the Post-Graduate Committee of the Council recommended that the post-graduate training should be delinked from housemanship. Accordingly, in the prospectus published by the opposite parties in 1978-79 the delinking was made. While giving effect to the delinking process, a distinction was maintained by prescribing in certain specialities qualifying examination at the 'end of the one year's houseman-ship for being eligible for the remaining term of post-graduate study. No objection was raised at the relevant time, but those who underwent the housemanship were permitted to take the examination indicated in the prospectus by November, 1979.

In 1979-80, one prospectus was published for recruitment to Resident House Staff (hereinafter referred to as 'R.H.S.') confined to the 3 Medical Colleges of the State (vide Annexure 3), which underwent an amendment subsequently, and the amended prospectus has been made annexure to the writ application, marked Annexure 4. There is no dispute that the petitioners were selected along with many others for R. H. S. after taking the examination on 16th November, 1979. The prospectus under Annexure 4 introduced a classification by providing:--

'(A) For Post-Graduate Studies in Anatomy, Physiology, Biochemistry, Pharmacology, F. M. T., Forensic Medicine, Social & Preventive Medicine, Radio Diagnosis and Anaesthesiology, candidates are eligible to apply direct to the Post-Graduate courses.

'(B) For Post-Graduate Studies in Pathology General Medicine, Paediatrics, Skin & V. D., T. B. and Chest Diseases, Psychiatry, General Surgery, Orthopaedic Surgery, Ophthalmology, E. N. T., Radio-therapy and Obstetrics and Gynaecology, candidates must belong to any of the categories mentioned below:--

(1) Must have successfully completed residential housemanship in the subject of study for a period of at least one year in an institution recognised for the purpose by 31-5-1980.

(2) ... ... ... ... ... ... ... ...'

The Indian Medical Council has prescribed the specialities in which M. D, and M. S. degrees can be taken. At page 9 of the Regulations, clinical subjects have been denned as General Medicine, General Surgery and specialities in Category 'B' at page 1 thereof. Category 'B' covers 14 specialities, such as:--

(1) Obstetrics and Gyanecology,

(2) Orthopaedics,

(3) E. N. T.

(4) Paediatrics,

(5) Ophthalmology,

(6) Social & Preventive Medicine.

(7) Radio-diagnosis,

(8) Radio-therapy,

(9) Anaesthesiology,

(10) Psychiatry,

(11) Dermatology, Venerology and Leprosy,

(12) Forensic Medicine,

(13) Tuberculosis & Respiratory Diseases, and

(14) Hospital Administration. There is no dispute that what is not clinical is non-clinical. In classification (A) referred to above, there are as many as 4 clinical subjects, such as F. M. T., Social & Preventive Medicine, Radio-diagnosis and Anaesthesiology, while in category (B), Pathology, a non-clinical subject, has been included. The petitioners allege that the State was not entitled to make unreasonable classification and, other things being equal, could not classify at random and arbitrarily the specialities so as to allow certain candidates to have the advantage of a direct selection for the entire 3 year course, while for others prescribe additional examination at the end of the first year. This, according to them, is directly hit by Article 14 of the Constitution.

(ii) The selection is by the State Government in terms of its prospectus, but the degree has to be obtained from one of the 3 Universities functioning within the State depending upon the Medical College to which the candidate would be assigned and the affiliation of the Medical College to one of the 3 Universities. The Acts of the 3 Universities and their Statutes are almost similar. Reference has been made to the University Regulation 3 (1) in Chapter XVI of Utkal University Regulations where it has been provided :--

'However, candidate for the degree of M. D. or M. S., shall be required to register himself for the examination at least two academic years before submission of his thesis.' Chapter XVI further provides:--

'(1) (a) The duration of the postgraduate degree (M.D./M.S. courses) for clinical and non-clinical subjects shall be a minimum of 3 years after full registration. This period of 3 years includes one year of regular housemanship after full registration.' Regulation 2-A provides :-- 'A candidate shall be admitted into a Medical College affiliated to this University in two terms of the academic year once in July and next in Jan. In each term admission shall continue for six weeks from the first day of July and Jan. In exceptional circumstances the Syndicate may permit a candidate four weeks more for admission.'

The petitioners contend that even if an examination was at all to be held, so far as they are concerned, in terms of the prospectus steps should have been taken to hold the examination as in the pervious year before the one-year housemanship was over so that as soon as they completed the housemanship of one year, they could have, in case they qualified, taken admission within the time limit prescribed by Regulation 2-A. Cancellation of the notice under Annexure 10 has now made it impossible for them to take the examination contemplated by the prospectus of 1979-80.

3. In the counter-affidavit of opposite parties attempt has been made to justify the classifications. In para. 14 of the return, the justification for the classification has been pleaded thus:--

'With regard to the averments made in the said paragraph relating to the non-clinical subjects it is submitted that certain subjects were sponsored subjects of the State and these subjects were treated as non-clinical to give incentive to the students in order to get ample number of qualified candidates to man those disciplines and that was necessary in the exigencies of public service. It is reiterated that there has been no irregularity in delinking the post-graduate training from Resident House Staff and also in conducting two separate examinations for post-graduate and Resident House Staff.'

So far as the publication and cancellation of the advertisement under Annexure 10 is concerned, in paragraph 21 of the return the fact has been admitted.

4. When the hearing of the application began on 2nd March, 1981, two applications for intervention were filed by two persons, being Dr. Sanjib Mohanty and Dr. Niroj Kumar Das, praying for being impleaded as parties to the proceeding on the allegation that they were necessary parties as their right to prosecute further post-graduate study would be taken away if the writ application was allowed. Their counsel did not want time to file any counter and agreed to assist the Court at the time of hearing of the writ application. In view of such a position, the petitioners' counsel did not raise any objection to a hearing being granted. The learned Government Advocate appearing for the opposite parties also did not dispute the arrangement. Accordingly, a hearing was granted to their counsel Mr. S.C. Mohapatra.

On the 2nd day of hearing of the application, a similar intervention application was filed by Dr. Bijoy Krushna Das through Mr. R.K. Mohapatra. By then, the hearing of the application had substantially advanced, but as Mr. Mohapatra also volunteered to say that he did not want any adjournment and it would be sufficient if an opportunity of being heard was given to him, in the absence of objection from counsel for the other sides he was also allowed to be heard.

So far as the two interveners who came on the first day of hearing are concerned, we may point out that they belong to a different class than the petitioners. They are resident doctors in the Ispat Hospital at Rourkela which is an approved institution, but admittedly they are outside the Medical Colleges and to us they appear to be a class by themselves who cannot be equated with the petitioners.

So far as Mr. R.K. Mohapatra's client is concerned, he was one who had been selected for the R. H. S. in the year previous to that of the petitioners but had failed to take examination.

As interveners, they are not entitled to any relief. The submissions which counsel for them have made have been duly taken note of. We may point out that Mr. S.C. Mohapatra supported the opposite parties while Mr. R.K. Mohapatra submitted in support of relief being granted to the petitioners.

5. Admittedly, the qualification prescribed for the post-graduate study in the recognised specialities is the same. It is conceded that the classification of clinical and non-clinical groups of subjects has not been maintained in the prospectus under Annexure 4. The prescription of the Indian Medical Council nowhere authorised the type of classification made under Annexure 4. At page 9 of the printed, Regulations, the criteria for the selection of candidates have been indicated to be--

(a) Students for post-graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course. All selection for post-graduate studies should be conducted by the Universities,

(b) The candidates should have obtained full registration, i.e., they must have completed satisfactorily one year of compulsory rotating internship after passing the final M. B. B. S. examination and must have full registration with State Medical Council,

(c) They must subsequently have done one year's housemanship prior to admission to the post-graduate degree or diploma course. Housemanship should preferably be for one year in the same subject or at least six months in the same department and the remaining six months in an allied department. Provided that in departments like Radiology, Anaesthesiology/Physical Medicine & Rehabilitation where suitable candidates who have done housemanship in the respective subject for the respective speciality are not available, then the housemanship in Medicine and/or in Surgery may be considered as sufficient. At page 10 of the printed Regulations, the period of training has been indicated to be 3 years after full registration including one year of house job or equivalent thereof. When delinking was recommended in 1978, a classification of the type indicated was not stipulated. In view of Clause (j) of Section 33 of the Act and the Council's detailed Regulations, ordinarily the State Government had no further prescription to make. We do not intend to mean that the State Government had no authority to ask for an examination to be taken for selection of candidates to undergo the post-graduate course. It meets our purpose when we say that the classification made by the State Government in Annexure 4 is not contemplated by the Regulations,

Admittedly, the candidates for postgraduate training belong to one common class. The qualifications prescribed were the same. The State Government did not go by the known classifications of clinical and non-clinical subjects in Annexure 4. There is no dispute that the candidates have been treated differently, some having an outright admission for the 3-year course and others first to the R. H. S. with a term of one year intervened by an examination, and depending on its result for the rest of the term of 2 years. Therefore, for the group to which the petitioners belong the study has become more onerous. Unless there be a reasonable differentia, the discriminatory treatment would not be valid. The Supreme Court in Jyoti Prasad v. Administrator for the Union Territory of Delhi (AIR 1961 SC 1602) pointed out:--

'If the statute itself or the rule made under it applies unequally to persons or things similarly situated it would be an instance of direct violation of the constitutional guarantee and the provision of the rule in question would have to be struck down'.

It is now a settled principle of law that the State in exercise of its administrative jurisdiction has also to behave in accord with Article 14 of the Constitution. It has not been disputed before us that the prescription in Annexure 4 has to stand the scrutiny of the equality clause.

The justification advanced in paragraph 14 of the counter, in our view does not provide a reasonable differentia. No material has been placed to demonstrate the correctness of the bald assertion contained in that pleading and, therefore it has become difficult for us to accept the plea that there was a reasonable justification for drawing a distinction between certain subjects and others irrespective of the known classification of the clinical and non-clinical subjects. We are, therefore, led to hold that there is discrimination in the treatment of the petitioners and others and the distinction in Clauses (A) and (B) in the prospectus in Annexure 4 is hit by Article 14 of the Constitution. The learned Government Advocate pleaded that the petitioners should not be permitted to plead discrimination as they are estopped from challenging the arrangement by their own conduct. According to him, knowing the provisions in the prospectus they had applied and continued to receive advantages for one year. They cannot now be permitted to turn round and question the arrangement. We do not think, when infraction of Article 14 of the Constitution is pleaded, estoppel is an answer. Article 14 holds out a mandate to the State for regulating its conduct and while the State's conduct is under review with reference to the equality clause, estoppel based upon the performance of a citizen is not the answer to negative such a plea.

We were told during argument that in 'case this amounted to discrimination it should be appropriate for us to hold that an examination should be adopted as a rule for all after the one year's term of housemanship. If the Regulations prescribe such an examination, there would have been force in the argument. Since the break up and intervention of an examination came in the prospectus, we do not think, there would be any force in the submission of the counsel.

If an examination was necessary, the petitioners were also prepared to undertake it as we were told in course of argument. Government, however, have not provided for an examination. We have already extracted the Regulation of the University which prescribes a time limit. Six weeks from the first day of January would have brought it to mid-February, and the Syndicate has power of extension up to 4 more weeks, which would bring it to around the end of the second week of March. With the cancellation of the advertisement under Annexure 10, the possibility of an examination within the time prescribed by the University for seeking admission has gone and the State Government by their own conduct have made it impossible for candidates like the petitioners to qualify themselves for admission into the post-graduate degree course.

We were told at the bar, and learned Government Advocate did not dispute the factual assertion that there are many vacancies in the specialities where the petitioners and persons like them are interested in taking admission after having completed the one year's houseman-ship. When provision has been made for imparting post-graduate education in certain subjects by reserving seats, we must assume that Government felt that there was necessity for it and having made the provision at public expenditure for such purpose, it does not appear to be appropriate or reasonable to allow vacancies to go unfilled, particularly when candidates are anxious to undergo such study, qualify themselves and with higher equipment serve the society. We were told by the learned Government Advocate as also by Mr. S.C. Mohapatra that there would be many others interested to take admission, and if we permit the petitioners or similarly placed persons to take admission, deserving candidates may be kept away and inequality of opportunities would result. In the circumstances which we have indicated, namely, time has been running out and those who have not been showing any interest need not be looked up to at this stage, we think, that argument has no force.

We would accordingly allow the writ application and direct the opposite parties to permit the petitioners and persons similarly situated as the petitioners who as a result of their selection on 6th January, 1980, had undertaken the one year's housemanship, to take admission for the post-graduate degree in the respective specialities of their selection without complying with the further requirement of an examination. The Universities are not before us as parties, but we assume that they would take the situation arising in the present case as an exceptional circumstance, and in exercise of the powers under Regulation 2-A of Chapter XVI of their respective Regulations, permit the candidates 4 weeks more time for admission.

We make no order for costs.

R.N. Misra, C.J.

I agree.


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