ORISSA HIGH COURT: CUTTACK W. P.(C) NO.7909 OF 2008 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------- Dr. Bibhu Prasad Sarangi …… Petitioner -Versus- State of Orissa & others …… Opp. Parties For Petitioner : Mr. Sachidananda Kar. For Opp. Parties : Addl. Govt. Advocate, (For O.Ps 1 to 3) M/s. U.C. Patnaik, A.J.Mohanty, P.K. Swain & S.Patnaik (For O.P.No.6) Mr. R.C.Mohanty (For O.P.7) ----------------------- Decided on 17 .11. 2009. ----------------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS ----------------------------------------------------------------------------------------- M.M. Das, J. In this writ petition, the petitioner, who is a doctor serving under the Government of Orissa, has challenged the legality of the condition imposed by the State and its authorities with regard to giving admission to in-service candidates in MDS Course, 2008-2009 that those who have completed five years of service by 31.3.2008 shall only be considered for such admission. Pursuant to the advertisement at Annexure-2 issued by the Convenor, M.D.S. Selection Committee-cum-Vice-Principal, Dental Wing, S.C.B. Medical College, Cuttack, the petitioner made an application for being selected for admission to one of the MDS seats as an in-service candidate. In the said advertisement, the eligibility criteria were given as follows:- “ELIGIBILITY CRITERIA The candidate must be: 1. A permanent resident of Orissa OR 2. Son/Daughter/Spouse of any one of the following category: i) Employees of Government of Orissa. ii) All India Services belonging to Orissa Cadre serving within or outside Orissa. iii) Public Sector undertaking of either State of Orissa or Government of India located in Orissa. iv) Defence Services personnel stationed in Orissa. v) Employees of Government of India serving in Orissa at the time of application provided the candidate has passed the Ist BDS, 2nd BDS, 3rd BDS and Final BDS examination from the same university. OR 3. Who is permanent resident of Orissa but has passed the Ist BDS, 2nd BDS, 3rd BDS and Final BDS examination from the same University. He/She is required furnish a certificate of permanent residence of Orissa from a Revenue Officer not below the rank of Tehsildar of the area concerned (in Form No.III, as per Appendix enclosed in the application form) 4. Belonging to other State(s) and must have passed the Ist BDS, 2nd BDS, 3rd BDS and Final BDS examination from Utkal University, Vani Vihar, Bhubaneswar, Orissa. 5. At the time of application, the candidate: i) Must have passed the Ist BDS, 2nd BDS, 3rd BDS and Final BDS examination from the same university. ii) Must have completed one year of compulsory rotating internship/housemanship by 31.03.08. iii) Must have permanently registered himself/herself with State/Central Council. 2 6. Candidates who have completed MDS Course or undergoing MDS course in a particular subject in any of the Institution shall not be eligible to apply”. 2. The petitioner’s case is that though he secured more percentage of marks in the BDS Examination then the opp. party no. 6, but he was denied such admission. It is the further case of the petitioner that the State by applying the condition of completion of five years of service by 31.3.2008 which is not prescribed by the Dental Council of India (for short, ‘the DCI’) has acted contrary to law in applying such condition which was a condition for admission to P.G. (Medical) Courses like M.S, M.D. etc. by in-service candidates, who are MBBS doctors. The petitioner has contended that the State could not have applied the said rule for MDS seats as Medical Council of India (for short, ‘the MCI’) and the DCI are two independent bodies and the DCI does not prescribe such a condition for giving admission to in-service candidates in MDS Course. 3. A counter affidavit has been filed on behalf of the State, inter alia, stating that the MDS Course for the first time was started in the Dental Wing of S.C.B. Medical College, Cuttack during the academic year 2008-09 in the discipline of Oral and Maxillofacial Surgery and Pedodontics and Preventive Dentistry. Two seats each were permitted for each of the disciplines, out of which, one seat in each discipline was allotted to the All India 3 Quota and one seat in each discipline was to be filled up as State Quota equally amongst in-service and direct candidates. As there was shortage of time to fill up the seats, it was decided to fill up the said seats as per the provisions under Rule 2 (iii) of the Dental Council of India Revised MDS Course Regulation, 2007. Accordingly, the modalities for admission in the MDS Course were prepared as per Annexure-6 to the writ petition and submitted to the Government for approval. The same was approved by the Government as at Annexure-A/3 to the counter affidavit. Pursuant thereto, a corrigendum was issued as at Annexure-C/3 to the counter affidavit to the advertisement published earlier mentioning therein that an in-service candidate is one who has already completed minimum 5 (five) years of service under the State Government as contractual/ ad hoc/regular employee or combination of all on or before 31.3.2008. The petitioner having not completed five years of service by the said date for being admitted to MDS Course, even though, admittedly, he has secured more percentage of marks than the opp. party no. 6 was not eligible to be admitted to such seat. The last date for filling up the forms for filing of the application was fixed as 04.06.2008. 4. Be it mentioned here that neither the MCI guidelines/regulations nor the DCI guidelines/regulations 4 prescribe any eligibility criteria for in-service candidates. However, as the candidates are serving under the State and are to be recommended for admission to the seats allotted for in- service candidates in either P.G. (Medical) courses or MDS Courses, it is the State, which is to adopt a uniform policy to be applicable to all such in-service candidates. Such policy, if shown to be arbitrary, unreasonable or discriminatory, may be amenable to judicial review and struck down. 5. This Court finds that the condition imposed by the State for in-service candidates, i.e., a candidate must have completed five years of service by 31.3.2008 was uniformly adopted for all in-service candidates and it is within the domain of the State to adopt a policy for its employees for giving the benefit of higher studies during service career retaining lien in the service. The said condition imposed has no nexus with the regulation of either the MCI or the DCI. This Court, therefore, finds no arbitrary or unreasonable action on the part of the opp. parties in fixing the said condition in respect of the in-service candidates for being admitted to the MDS Course, 2008-09. The only other contention raised by the petitioner is that by 31.3.2008, he had only a couple of months to complete five years of service and his case should have been considered as opp. party no. 6 having lessor percentage of marks has been given 5 admission. Admittedly, the petitioner is under a contractual employment given by the State. He began his service on 1.8.2003. Even accepting that such completion of five years of service should have been considered till the date fixed for submission of application forms, i.e., 4.6.2008, it is seen that the petitioner by 4.6.2008 also does not have five years of completed service. Hence, on no count, the petitioner could have been held to be eligible to be considered for being given admission to the MDS Course, 2008-2009. 6. In the result, the writ petition, being devoid of merit, is dismissed, but in the circumstances without any cost. …………………… M.M. Das, J. Orissa High Court, Cuttack. November 17th , 2009/Biswal. 6 7 8 9