APARESH KUMAR SINGH, J. - (1.) Heard learned counsel for the parties.
(2.) There is an intervention application I. A. No. 2433 of 2016 for addition of the applicant as a party as it is contended that any decision passed in the present writ petition would affect the case of the intervenor-applicant also. Applicant is an In-service candidate and concerned that if resolution dated 11.04.2016, part of which is impugned herein, is going to be quashed or read down, In-service candidates, who are entitled weightage in the preparation of merit list of Postgraduate Diploma Course would suffer.
(3.) On account of the order being proposed to be passed hereinafter upon considering the stand of the respondent-State conveyed through learned counsel for the State Mr. Rajesh Kumar, GP-V, the apprehension of the applicant-intervenor appears to be misplaced and there appears to be no necessity of his impleadment in the present writ petition. For better appreciation of the controversy raised, it is apposite to reproduce the order dated 22.04.2016 hereunder:- "Counsel for the petitioners submits that all defects have been removed. Clause-4 of the notification dated 22.12.2015 issued by Department of Health, Medical Education and Family Welfare, Government of Jharkhand so far as it allowed 50 % reservation in Post Graduate Degree Courses to in service candidates, who have been serving in rural areas was quashed by this Court vide judgment dated 15.03.2016 passed in W.P. (C) No. 85 of 2016 in the case of Rohit Keshav and Ors. v. State of Jharkhand and Ors. being in teeth of Medical Council of India regulation dated 15.02.2012 and in view of the ratio rendered by the Apex Court in the case of Sudhir N. and Others v. State of Kerela and Ors. reported in (2015) 6 SCC 685. The exercise for admission to Post Graduate Medical Courses is underway. The respondent-Department has issued a fresh resolution bearing memo no. 154 dated 11.04.2016, Annexure-10 where under it has sought to incorporate Sub-clause-vi of the MCI notification dated 15.02.2012 so far as it allows weightage in marks as an incentive @ 10 % of the marks obtained for each year of service in remote and/or difficult areas upto the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test to the candidates, who have served in remote and/or difficult areas for admission to Post Graduate Diploma Courses. Petitioners have assailed the resolution dated 11.04.2016 on the ground that weightage in marks for service rendered in remote and/or difficult areas to in service candidates shall encroach upon the quota of Open Category Candidates (Direct Admission Category), which is to be prepared strictly on the basis of merit. Therefore, it would be violative of Article 14 of the Constitution of India. Learned counsel for the petitioner has relied upon the judgment rendered by the Apex Court in the case of Satyabrata Sahoo and Ors. v. State of Orissa and Ors. reported in (2012) 8 SCC 203 where such a provision in the prospectus for Postgraduate Medical Entrance in the State of Orissa was quashed. Reliance has been placed upon para-24, 27 and 35 of the said judgment, which are quoted hereunder:- "24. 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 service category, to which 50% seats for PG admission have 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. 27. 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 that 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 compete 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. 35. We are, therefore, inclined to allow this appeal and set aside the judgment of the Division Bench as well as the learned Single Judge by quashing the proviso to Clause 9(2)(d) of the MCI Regulations to the extent indicated above as well as Clause 11.2 of the prospectus issued for admission to the Postgraduate 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 rearrange 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." Therefore, exercise of counselling for admission in Postgraduate Diploma Courses should be done strictly on inter se merit of the open category candidates. In service candidates should not be allowed to have march over the open category candidates by granting them additional weightage for the period of service rendered in remote and/or difficult areas. Any encroachment in the open merit list quota would be violative of Article 14 of the Constitution of India. Learned counsel for the State in all fairness is not able to dispute the legal contention of the petitioners based upon the judgment rendered by the Apex Court. He, however, seeks time to obtain instruction. Learned counsel for the State submits that perhaps clarification on this issue has also been sought by the Jharkhand Combined Medical Entrance Competitive Examination Board, Ranchi, respondent no. 5 from the Department. Mr. Kumar Sundaram, learned counsel, has entered appearance on behalf of the Medical Council of India. Learned counsel for the petitioner, further submits that process of counselling has already been delayed on account of these confusions and they are in teeth of specific guidelines issued on the subject in the judgment rendered by the Apex Court in the case of Ashish Ranjan and Ors. v. Union of India and Ors. in W.P. (Civil) No. 76 of 2015 dated 18.01.2016. As prayed for on behalf of the counsel for the respondents-State and the Commission, short time is granted for obtaining instruction considering the exigency of the situation. Let the matter be posted on Monday i.e. on 25.04.2016. In the meantime, the impugned provision of the resolution dated 11.04.2016, Annexure-10 be not acted upon. Let a copy of this order be handed to learned counsel for the State today itself. Respondents are expected not to take any further time in the matter so as to avoid delay in the exercise underway of admission to Postgraduate Diploma Courses." ;