The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 25516 of 2023 Dr. Sujata Tosh Others State of Odisha & Another CORAM: ….. Vs. ….. Petitioners Mr. A. Mishra, Adv. Opp. Parties Mr. A. Behera, A.S.C. THE CHIEF JUSTICE JUSTICE SAVITRI RATHO ORDER 16.08.2023 Order No. 01. 1. This matter is taken up through hybrid mode. 2.
Legal Reasoning
Heard Mr. A. Mishra, learned counsel appearing for the Petitioners. 3. By means of this writ petition, the Petitioner has challenged Rule – 6(5), Rule 7(c)(iv) and Rule-7(e) of the Odisha Medical Services (Method of Recruitment and Conditions of Service of Dental Surgeons) Rules, 2022. The Petitioners have further urged this Court to quash the Advertisement No.2 of 2023-24 dated 20.04.2023 issued for purpose of recruitment to the posts of Dental Surgeon in Group-A (Jr) of Odisha Medical Service (Dental) Cadre Page 1 of 8 under Health and Family Welfare Department. The said Advertisement is at Annexure-4 to the petition. 4. Mr. Mishra, learned counsel appearing for the Petitioners has stated that those Rules which are under challenge have created serious bottlenecks for Dental Surgeons, domiciled in the State of Odisha. The Petitioners have challenged the said rules for ensuring preference over the candidates from the other States, on the basis of their domicile. Mr. Mishra, learned counsel has fairly submitted that purpose of filing the writ petition is that more than 600 posts of Dental Surgeons have been created for extending their service to the periphery of the State where the citizens confront difficulty to get the service of the Dental Surgeons. Mr. Mishra, learned counsel has asserted that unless a dentist does have the knowledge of reading and speaking Odia, he will not be able to serve the people of this State properly. He has drawn parallels from the other cadre Rules where it has been made mandatory that the person who has applied for the post shall have the functional knowledge of Odia. But in the present Rule, there is no such provision. As such, Mr. Mishra, learned counsel has contended that a similar Clause should be incorporated in the Rules by providing that the dentist, domiciled in Odisha having all qualification shall be given preference over the Page 2 of 8 candidates coming from outside the state of Odisha. It is understood that the petitioners demand incorporation of knowledge of Odia as essential qualification. That apart, It has been stated by Mr. Mishra, learned counsel that there is no dearth of dentists registered with the Odisha Dental Council for filling up of those posts. As such, inviting the persons from outside will serve no purpose at all. It has been further contended that absence of such Rule, as proposed, makes the present Rules unreasonable and incompatible to their objects. Mr. Mishra, learned counsel has fairly submitted that previously also, the Petitioners approached the learned Single Judge of this Court on the similar issue and their writ petition being W.P.(C) No. 15694 of 2023 was disposed of, by the order dated 16.05.2023, having observed that the Petitioners, if they are so advised, may challenge Rule -7(c) by filing separate application on the ground that the proviso runs contrary to the proviso below Rule 7(c)(i). It has been also observed that the petitioner should ventilate their grievance taking recourse to the “liberty to approach the Opposite Party No.1 by filing a grievance petition along with supporting documents. In the event such grievance petition is filed by the Petitioners, the Opposite Party No.1 shall do well to consider the same and keeping in view the difficulties faced by the Dental Surgeons, who are inside the State and the learned Single Judge has decided that such Page 3 of 8 decision shall be taken within a period of four weeks from the date when the petitioners shall file to the Opposite Party No.1.” 5. Mr. Mishra, learned counsel has also submitted that even though the representation was filed in the line as indicated by the learned Single Judge, but the Opposite Party No.1 has not taken any decision, at least such decision has not been communicated to the Petitioners. 6. We record the brief facts, as the background of the above challenge. 7. Rule 7 (c)(ii) of the Odisha Medical Services (Method of Recruitment and Conditions of Service of Dental Surgeons) Rules, 2022 prescribes that the eligibility criteria for direct recruitment to the post of Dental Surgeon. 8. Rule 7(1)(c) of the said Rules clearly provides that the person who will apply for the said post shall be able to read, write and speak Odia; and must have passed middle School Examination of Odia as a language subject or passed matriculation or equivalent examination with Odia as medium of examination in non-language subject; or passed in Odia as language subject in the final examination of Class VII or above; or passed a test in Odia in Middle English School Standard conducted by the School and Mass Page 4 of 8 Education Department. But, it has been further provided by a proviso below the Clause (c) that if a candidate has not passed Middle School Examination in Odia as a language subject, he shall be required to pass the examination conducted by Board of Secondary Education, Odisha within four years of joining in the service failing which no further increment shall be sanctioned nor will he get promotion to the rank of Group-A (Senior Branch). Such deferment will continue until the person appointed has passed the Odia language test. 9. The ground of the challenge of the Petitioners is confined to the said proviso. For better appreciation, we reproduced the said proviso: “Provided that if a candidate has not passed Middle School Examination in Odia as a language subject, he shall be required to pass the examination conducted by Board of Secondary Education, Odisha within four years of joining in the service failing which no further increment shall be sanctioned nor will promotion to the rank of Group-A (Senior Branch) be made until he has passed the Odia Language test.” 10. Mr. Mishra, learned counsel has stated that even those candidates coming from outside Odisha may not be registered with Page 5 of 8 Odisha Dental Council, but they are given opportunity to get selected and appointed as the Dental Surgeon in the said cadre. Even the said proviso has been carved out for those persons who have been coming from outside Odisha to get themselves registered with the Odisha Dental Council under Section 34 of the Dentist Act, 1948. 11. Consequent upon the said challenge, the advertisement dated 20.04.2023, Annexure-8 to the writ petition, has been challenged in this writ petition. 12. We have heard Mr. Mishra, learned counsel at length. We do find that the challenge against those Rules is not based on any grounds of ultra vires, the gross arbitrariness or breach of public policy. Purpose for which this writ petition has been filed is apparent on the face of records viz. not to allow anyone from outside Odisha to participate in the selection process of Dentists. 13. It is no more res integra that the blanket restriction on the basis of domicile is an anathema to the constitutional principles. But, there cannot be any amount of debate that the State Government can amend or mould the rules. We are convinced that the said aspect has been seriously considered by the State Government at the time of drafting the said Rules by carving out the singular exception in the Page 6 of 8 form of proviso. 14. As such, we do not find any sustainable ground to strike down those Rules as challenged. 15. As Mr. Mishra, learned counsel has pointed out that in terms of the order dated 16.05.2023 as delivered in W.P.(C) No. 15694 of 2023, the Opposite Party No.1 has not considered the representation filed by the Petitioners as yet. We hereby direct the Opposite Party No.1 to take a call on the said representation within a period of 30 days from today. At the time of considering the representation of the Petitioners, if it is found that more restriction are required to be imposed in respect of the knowledge of Odia language, conforming to the constitutional imperatives, the competent authority may impose more stringent clause for ensuring better service to the people living in the periphery of the State. The knowledge of Odia may also be treated as an essential qualification of the service. The period for acquiring knowledge of Odia as granted to the extent of four years is unreasonably long period. This clause definitely needs revisit. 16. Mr. A. Behera, learned Addl. Standing Counsel has appeared for the Opposite Party No.1. As the challenge to the Rules does not concern the Opposite Party No.2 presently, we have not issued any Page 7 of 8 notice on them.
Decision
17. Accordingly, this petition stands disposed of. 18. No order as to costs. (S.Talapatra) Chief Justice Sukanta (Savitri Ratho) Judge Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 21-Aug-2023 19:54:28 Page 8 of 8