The High Court · 2024
Case Details
Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 14:37:59 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 39468 of 2021 (An application under Articles 226 & 227 of the Constitution of India) Ipsita Dash .…… Petitioner -Versus- State of Odisha & Ors. ……. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. A.Mishra, Advocate For Opposite Parties : Ms.S.Mohanty, Advocate for OPSC Mr.K.C.Swain, Advocate for NMC Mr.D.Mohanty, AGA CORAM : JUSTICE B.P. ROUTRAY JUDGMENT 3rd December 2024 B.P. Routray,J. 1.
Legal Reasoning
Heard Mr. A.Mishra, learned counsel for the Petitioner, Ms.S.Mohanty, learned counsel for OPSC, Mr.K.C.Swain, learned counsel for NMC and Mr.D.Mohanty, learned AGA for State- Opposite Parties. 2. The Petitioner is an applicant for the post of Assistant Professor (Bio-Chemistry) in UR category pursuant to the Advertisement No.19 of 2021-22. Her case is that she is a non- medical candidate eligible as per Rule 4 read with Second Proviso to Rule 5 of the Odisha Medical Education Service (Method of W.P.(C) No.41362 of 2021 Page 1 of 7 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 14:37:59 Recruitment and Conditions of Service) Rules, 2021. Her challenge is to the effect that when the Rule prescribes qualification for the post as M.Sc only the further requirement of Ph.D/D.Sc. (Medical Bio- Chemistry) is illegal and against the Rules. 3. Counter affidavits have been filed by the State-Opposite Parties as well as by the OPSC. The State has explained in his counter affidavit that prescription of such additional qualification of Ph.D/D.Sc. is as per the National Medical Council guidelines. 4. The OPSC has stated in his counter that the Petitioner in the meantime was permitted to appear in the interview and her result was kept in sealed cover. However, it is seen from order dated 18th March 2024, the sealed cover was opened to find that the Petitioner secured 162 marks (81%) in the written examination. 5. Rule 4 & 5 of 2021 Rules speaks as follows:- “4. Eligibility criteria for Direct Recruitment to the post of Assistant Professor:- (1) In order to be eligible for direct recruitment, a candidate must,- (i) be a citizen of India. (ii) have attained the age of not less than 21 years and not above the age of 45 years as on the 1st day of January of the year in which the applications are invited by the Commission: Provided that the upper age limit shall be relaxed up to 5 years in case of in service doctors serving on ad hoc W.P.(C) No. 39468 of 2021 Page 2 of 7 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 14:37:59 basis or contractual basis under the Government or Government undertakings, as the case may be: Provided further that the upper age limit in respect of reserved categories of candidates referred to in rule 6 shall be relaxed in accordance with the provisions of the Act, Rules, Orders of Instructions, for the time being in force, for the respective categories. (iii) have acquired a post graduate degree in the concerned Board Specialty/Super Specialty or any other equivalent degree or qualification prescribed by the MCI/NMC or DCI from time to time. (2)Where the DM/M.Ch. is of two years duration or of five years recognized course after MBBS, one year teaching and, or research experience in a recognized institution in the subject of specialist shall be required after obtaining the qualifying degree of DM or M.Ch. (3)Those candidates who have undergone Diplomate National Board training in concerned subject are also eligible for the post of Assistant Professor subject to fulfilling of any other criteria regarding Diplomate National Board, prescribed by MCI/NMC or DCI from time to time in force. 5. Selection procedure of Assistant Professor:- (1)The recruitment to the post of Assistant Professor shall be made by way of direct recruitment through the Odisha Public Service Commission; from amongst the candidates possessing MD/MS/MDS/DM/M.Ch. Degree in the concerned discipline from MCI/NMC or DCI permitted or W.P.(C) No. 39468 of 2021 Page 3 of 7 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 14:37:59 approved or recognized Medical or Dental College and/or any other academic qualification with such additional teaching experience in the subject as may be prescribed by MCI/NMC or DCI from time to time in force: Provided that the recruitment may also be made by way of selection from amongst the Assistant Professors in any other Board-Specialty or Super-Specialty subject, having requisites qualification in the concerned Specialty subject to the condition that seniority in the Board-Specialty or Super-Specialty in the said discipline, as the case may be, shall be determined from the date of appointment in the new discipline in accordance with the placement given by the Commission, and accepted by the Government. Provided further that in case of non-availability of MD/MS/DNB candidates in the Departments of Anatomy, Physiology, Pharmacology and Microbiology, non- medical teachers possessing M.Sc. degree in concerned subject may be appointed to the extent of 30% (thirty percent) of the total number of posts in those Departments and in the department of Bio-Chemistry, non-medical teachers may be appointed to the extent of 50% (fifty percent) of the total number of posts in that Department. (2)Candidates who are native or resident of Odisha shall be given preference over candidates of other States. (3)The suitability of candidates shall be adjudged by the Commission on the basis of Written Test and the pattern of examination and Syllabus shall be as specified in the Schedule. W.P.(C) No. 39468 of 2021 Page 4 of 7 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 14:37:59 (4)The Commission shall prepare a list of candidates in order of merit on the basis of written test which shall be equal to the number of advertised vacancies: Provided that, if two or more candidates secure equal marks, then the candidate securing higher marks in MBBS examination shall find place above the others in the merit list and in case marks obtained in MBBS examination is also the same, the candidate older in age shall be placed above the younger. (5)The list recommended by the Commission shall remain valid for a period of one year from the date of its approval by the Government.” 6. The National Medical Council (earlier known as Medical Council of India) guidelines as on 8th June 2017 which was in vouge on the date of issuance of advertisement i.e. on 10th November 2021, prescribes at Clause-2 of Schedule-I, that; “In the departments of Anatomy, Physiology, Biochemistry, Pharmacology and Microbiology, non- medical teachers may be appointed to the extent of 30% of the total number of the posts in the department. A non- medical approved medical M.Sc. qualification shall be a sufficient qualification for appointment as Lecturer in the subject concerned but for promotion to higher teaching post a candidate must possess the Ph.D. degree in the subject. The Heads of these departments must possess recognized basic university medical degree qualification or equivalent qualification. However, in the department of Biochemistry, non-medical teachers may be appointed to the extent of 50% of the total number of posts in the W.P.(C) No. 39468 of 2021 Page 5 of 7 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 14:37:59 department. In case of the paucity of teachers in non- clinical departments relaxation up to the Head of the Department may be given by the appointing authority to the non-medical persons if suitable medical teacher in the particular non-clinical specialty is not available for the said appointment. However, such relaxation will be made only with the prior approval of the Medical Council of India. A non-medical person cannot be appointed as Director or Principal or Dean or Medical Superintendent. In the departments of Community Medicine and Pharmacology, Lecturers in Statistics and Pharmacological Chemistry shall possess M.Sc. qualification in that particular subject from a recognized University.” 7. From analysis of Rule 4 & 5 read with the guidelines of MCI stated above, it is clear that the requirement for appointment for the post of Assistant Professor (Bio-Chemistry) for non-medical candidates is M.Sc. in that particular subject. So prescription of Ph.D./D.Sc. as per the advertisement dated 10th November 2021 under Annexure-8 may be considered as an additional qualification, but the same cannot take away the effect of minimum qualification prescribed in the relevant Rules. Therefore, the right accrued to a candidate by virtue of said Rules cannot be taken away by prescribing higher qualification in the advertisement for appointment of such posts. 8. It is admitted that the Petitioner having M.Sc. in (Medical Bio-Chemistry) has been appointed as Assistant Professor in SLN Medical College, Koraput and in the meantime, she has already acquired Ph.D. qualification in the year 2023. As stated earlier, the W.P.(C) No. 39468 of 2021 Page 6 of 7 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Dec-2024 14:37:59 Petitioner was allowed to appear the written examination and her results kept in per the sealed cover shows that she secured 162 marks i.e. 81%. Since the Petitioner’s candidature having M.Sc. (Medical Bio-Chemistry) qualification is held valid to appear for the post of Assistant Professor (Bio-Chemistry) as per the Advertisement dated 10th November 2021 (Annexure-8), it is now open for the Opposite Parties to consider her marks on merit for the post she had applied for. 9.
Decision
The Writ Petition is accordingly disposed of. 10. It needs to be observed here that, since the process of selection pursuant to the advertisement under Annexure-8 has already been completed no other person, who has not challenged the advertisement, will enure any benefit out of this order. Judge (B.P. Routray) Sangram,Sr.Steno W.P.(C) No. 39468 of 2021 Page 7 of 7