R.N. Misra, C.J.
1. Each of these writ applications is by a single but separate petitioner for a direction in the nature of mandamus to the opposite parties for allowing him to undertake the remaining two-year period of the postgraduate course in one of the three Medical Colleges within the State. The petitioners in O. J. Cs. 499/81 and 515/81 want to undertake study in General Surgery while in O. J. Cs. 513 and 514 of 1981 the further study is in Pediatrics and Opthalmology respectively.
2. Eight medical graduates possessing M. B. B. S. Degrees, who had applied for undergoing the course prescribed for post-graduate study in different specialties and had been selected in terms of a notification dated 6-1-80, filed a writ application being O. J. C. No. 168/81 for a direction to the State and the Director of Medical Education and Training to allow them to undergo the rest of the post-graduate course in the subjects assigned to them without requiring them to take a further examination at the end of the first year of the course. During the pendency of the said writ application, the petitioner in O. J. C. No. 499/81 and two others applied for intervention. In the judgment delivered in the said case, since reported in AIR 1981 Orissa 97 (Dr. Siddhartha Das v. State of Orissa), a Bench of this Court held:--
'4. When the hearing of the application began on 2nd Mar., 1981, two applications for intervention were filed by two persons, being Dr. Sanjib Mohanty and Dr. Niroi 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 (Petitioner in O. J. C. No. 499/81) 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 the 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.'
3. The main point for consideration in the writ application was whether the State Government was entitled to provide an examination after the first year's housemanship for the candidates to continue their study for the rest two years to sit for the examination for the postgraduate degree. This Court found that for certain specialties without any rhyme or reason the examination had been waived while for other specialties such an examination at the end of the first year was insisted upon. The Court, therefore, held (at p. 100) :--
'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 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.'
After dealing with the matter from different angles, the Court ultimately observed (at p. 101):--
'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 specialties of their selection without complying with the further requirement of an examination,'
The State has not challenged the decision of this Court by going to the Supreme Court. But as it appears, one of the intervenes (Dr. San lib Mohanty) has filed a Special Leave Application before the Supreme Court against the judgment of this Court and two independent Writ Petitions, being Writ Petitions 1756/81 and 1819/81, have also been filed. Interim directions have been obtained from the Supreme Court.
4. The four petitioners now before us after obtaining the M. B. B. S. Degree undertook the Rotating Internship (R. H. S.) in 1978-79 having been selected in October, 1978. Some of them appeared for the second selection examination on 15-11-79, but were not selected. According to Mr. Mohapatra, each of the petitioners fulfils the conditions prescribed in the prospectus of 1979-80 and, therefore, they are medical graduates who are entitled to undertake the postgraduate course in the specialties for which they had initially been selected without taking the examination at the end of the first year of the course.
The learned Government Advocate on the other hand says that none of the petitioners in these four applications is similarly situated as the applicants in the reported decision and, therefore, they cannot take advantage of the judgment of this Court. It is pointed out that these petitioners were admitted to the R. H. S. Course in 1978-79 under a different prospectus: they were entitled to appear for the second selection examination of 1978-79. In fact, some had taken the examination and were not selected. Some persons similarly placed as the petitioners did take the second examination that year and having been qualified are now continuing their post-graduate course. It is further pointed out that none of the petitioners was selected on 6th Jan., 1980, and, therefore, they do belong to a separate category. The further contention of the learned Government Advocate is that the prospectus said to be for the session 1981-82 has already been published (Annexure A to the counter affidavit) and therein the total number of seats in the different specialties has been shown to be 226. Out of these, 113 seats are reserved for the in-service candidates while a similar number has been reserved for direct candidates. The seats available in the 21 specialties have been separately indicated. Since we are concerned with Surgery. Pediatrics and Ophthalmology, we may now refer to these in particular.
Item No. 9 is Pediatrics. Total seats available are 18.9 are reserved for in-service candidates and 9 are open to direct candidates. Out of the 9, 7 seats have been filled up in Jan, session of the current course in terms of the writ issued in O. J. C. No. 168/81 (reported decision) and 2 seats have been reserved for the July session in terms of the said decision. Column, 10 shows that there is no seat available in the specialty for direct candidates.
Item No. 13 is Surgery where the total number of seats is 41. Out of it, 20 are reserved for in-service candidates while 21 have been reserved for direct candidates. Out of it, 10 have been filled up in the Jan. session as per the writ issued in the reported decision. 4 have been reserved for the July session in terms of the said decision. 7 seats have either been filled up or have been set apart in terms of the interim order of the Supreme Court. Thus, all the 21 seats for direct candidates have already been filled up and/or set apart and none is available.
Item No. 16 is Ophthalmology and in that subject 14 seats are available 7 of which are for direct candidates. 5 have been filled up in the January session pursuant to the reported decision and 2 have been reserved to be filled up in the July session in terms of the said decision. Thus there is no seat available in the said specialty.
5. According to the learned Government Advocate, in view of the fact that no seat is available in any of these specialties, it is unnecessary to examine the various other aspects raised at the hearing, and each of these petitions must fail on the basis that no seats are available.
To meet these objections of the learned Government Advocate, Mr. Mohapatra for the petitioners has contended that since the petitioners are similarly situated as those who had come before this Court in O. J. C. No. 168/81, their claims should be considered along with the petitioners of that case and no discrimination should be permitted. We must point out that this contention is not sound inasmuch as the petitioners of that case have already succeeded in the adjudication and a right has accrued in their favour. They are not impleaded in the present writ applications. The benefit derived by them pursuant to our judgment cannot be set at naught at the instance of the present petitioners. If what Mr. Mohapatra has contended is accepted, the petitioners of the earlier case and persons similarly situated like them who are covered by the selection of 6th Jan., 1980 would be prejudicially affected. We, therefore, do not propose to accept the submission of Mr. Mohapatra. In fact, the petitioners who have succeeded before us already are a class by themselves inasmuch as they are an identifiable group separate from the petitioners. The points of distinction indicated by the learned Government Advocate as noted above, in our view, appear to be germane and in accepting those contentions we hold that the petitioners belong to a different category than the medical graduates who had come before this Court on the earlier occasion. These petitioners, therefore, cannot rank pari passu with the petitioners of the earlier writ application.
6. Mr. Mohapatra next contended relying on the decision of the Supreme Court reported in AIR 1979 SC 765 (State of Kerala v. T, P. Roshana) that it was open to us to direct enlargement of the available seats to meet the present situation. It is stated that if the prospectus purporting to be of the year 1981-52 is valid, the petitioners will have no more chance of completing the postgraduate course and they would be permanently disabled from undergoing the course and taking the degree. There is truth in the submission that the petitioners may not have the advantage of completing the post-graduate course in view of the changed arrangement made. But that by itself cannot be a ground to make them entitled to relief at this stage.
The Supreme Court in the decision reported in AIR 1979 SC 765 (supra) did direct for creation of 30 seats In the facts of the case, however, we do not think it would be appropriate for us to issue a writ to the opposite parties for enhancing the seats so as to accommodate the petitioners. We are, however, of the opinion that it is for Government to consider whether it would be feasible to enhance the number of seats in the postgraduate course so as to allow admission to the petitioners in the different specialties, keeping in the background the fact that the provision applicable for the coming year is different and the petitioners may not have the advantage of completing the post-graduate course in their respective specialties on the changed basis of the prospectus.
7. While we do not accept the writ applications and issue any direction to the State, we leave it open to the State to consider whether the petitioners may not conveniently be accommodated in the different specialties for the postgraduate course as per the prospectus now published inasmuch as they claim to have the requisite Qualification prescribed for the session which was the subject matter of the reported decision.
There would be no order for costs.
J.K. Mohanty, J.