Sibasish Kumar Jena Vs State of Odisha

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.26430 and 27118 of 2024

W.P.(C). No.26430 of 2024

1. Sibasish Kumar Jena, aged about 30 years, S/o. Dr. Srikanta Kumar Jena, At-Sikharpur, Cuttack, at present working as Junior Resident in Pandit Raghunath Murmu, Baripada, At/P.O. Baripada, Dist-Mayurbhanj.

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Utirna Kumar Rana , aged about 29 years, S/o. Tikam Rana, At-Ghasiput, P.S. Banki, Cuttack, at present posted as Medical Officer in PHC, Khambesi, CHC, Bissam Cuttack, Rayagada.

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State of Orissa , represented through its Commissioner-cumSecretary, Health and Family Welfare Department, At-Secretariat Building, Bhubaneswar, Dist-Khordha.

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Director, Directorate of Medical Education and Training (DMET) , Odisha, At-Kesharinagar, Bhubaneswar, Dist-Khordha.

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The Director, Health and Family Welfare Department , AtSecretariate Building, Bhubaneswar, Dist-Khorda.

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The Convenor, P.G. Medical Counseling Committee, Odisha , At-PG Cell, (Registrar, Administration Office), First Floor, College Building, VIMSAR, Ayurvihar, Burla, Dist-Sambalpur.

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5. National Board of Examination in Medical Science , AtMedical Enclave, Ansari Nagar, M.G. Marg, Ring Road, New Delhi.

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…Opposite Parties.

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Advocates appeared in the case:

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For the Petitioners : Mr. Budhadev Routray, Senior Advocate Mr. S. Sekhar, Advocate For Opposite Parties : Mr. K.C. Kar, Government Advocate [For State] Mr. R.C. Mohanty, Advocate [For DMET] Mr. Devasis Panda, Advocate Mr. T. Meher, Advocate Mr. B.B. Choudhury, Advocate Mr. P.K. Nayak, Advocate (For Interveners]

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W.P.(C). No.27118 of 2024

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1. Dr. J.D. Shree Shoumya, aged about 29 years, daughter of Jugalal Jagadala, at preent working as Medical Officer (Asst. Surgeon) in PHC (N), Bhundimuhan, Balangir.

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Dr. Shaswata Sarangi , aged about 29 years, son of Rabindr Kumar Sarangi, at present working as Leave Training Reserved Medical Officer in CHC, Kisantandi, Mayurbhanj, Dist-Mayurbhanj.

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…Petitioners

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-Versus-

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State of Orissa , represented through its Commissioner-cumSecretary, Health and Family Welfare Department, At-Secretariat Building, Bhubaneswar, Dist-Khordha.

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Director, Directoratre of Medical Education and Training (DMET) , Odisha, At-Kesharinagar, Bhubaneswar, Dist-Khordha.

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The Director, Health and Family Welfare Department , AtSecretariat Building, Bhubaneswar, Dist-Khorda.

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The Convenor, P.G. Medical Counseling Committee, Odisha , At-PG Cell, (Registrar, Administration Office), First Floor, College Building, VIMSAR, Ayurvihar, Burla, Dist-Sambalpur.

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National Board of Examination in Medical Science , AtMedical Enclave, Ansari Nagar, M.G. Marg, Ring Road, New Delhi.

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…Opposite Parties.

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Advocates appeared in the case:

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For the Petitioners	:	Mr. Gautam Misra, Senior Advocate Mr. S. Sekhar, Advocate
For Opposite Parties	:	Mr. K.C. Kar, Government Advocate [For State]
		Mr. R.C. Mohanty, Advocate [For DMET]
		Mr. Devasis Panda, Advocate Mr. B.B. Choudhury, Advocate Mr. P.K. Nayak, Advocate (For Interveners]

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CORAM:

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HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO

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JUDGMENT 22.11.2024

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Chakradhari Sharan Singh, CJ.

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The State of Odisha in the Department of Health and Family Welfare has framed Post-Graduate (PG) (Medical) Selection Odisha “Guidelines for counseling and admission of candidates for PostGraduate (Medical) & Post-MBBS NBEMS Diploma Courses in Government and private Medical Colleges of the State 2024-25” (the Guidelines for short). As manifest from its nomenclature, the Guidelines lay down the procedure for counselling and admission of candidates for PG (Medical) Courses in various Medical Colleges in the State of Odisha. Since Clauses-F, G and H of the said Guidelines are at the core of the controversy, it is deemed fit to reproduce them at the very outset:

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“ F. ELIGIBILITY

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To be eligible a candidate must have passed MBBS from any MCl/NMC recognized institution / equivalent and must have the following criteria:

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A candidate must be a permanent resident of Odisha.

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OR

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A candidate of outside state but passed MBBS from any Govt Medical College of Odisha, who was admitted under 15 % All India Quota seats.

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Must have qualified in NEET PG of current year, securing the qualifying marks as prescribed by MCI/NMC

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Must have completed one year of Compulsory Rotatory Internship/Houseman ship by 15^th August of current year of admission or as may be notified by MCC for the current year.

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Must have registered himself/ herself under State/ Central Council of Medical Registration.

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Candidates who are undergoing P.G.(Medical) Course in any subject and wants to take fresh admission she/ he has to comply the terms and conditions of bond and deposit appropriate monetary penalty at the time of admission.

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G. CATEGORY OF CANDIDATES :

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A Direct Candidate is one who at the time of application:

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Is either unemployed or under employment of Government of Odisha/ Govt. of Odisha Public Sector Undertakings/ Govt. of India Public Sector Undertakings located in Odisha/ Defence services located in Odisha but not completed 3 years of service which includes all categories of employment like contractual/ temporary/ adhoc/regular by 31^st March of the current year of admission.

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2. An In-service candidate is one who at the time of application:

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Is under employment in Government of Odisha/ Govt. of Odisha Public Sector Undertakings / Govt. of India Public Sector Undertakings located in Odisha/ Defence service in Odisha and has completed a length of 3 years of service including all categories of employment like contractual/ temporary/ adhoc /

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regular by 31^st March of the current year of admission excluding at-a stretch leave of any kind of 30 days or more. However, the maternity leave is exempted from this exclusion and shall be counted towards the length of three years of service.

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Candidates under employment in regular service at the time of application in Government of Odisha/ Govt. of Odisha Public Sector Undertakings / Govt. of India Public Sector Undertakings located in Odisha/ Defence service located in Odisha shall be eligible to apply for the state quota diploma course.

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NB: The cut off date of 31st March mentioned above is subject to change, as per any change in schedule of NEET PG and or All India Counseling which will be notified.

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(Highlights for emphasis)

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H. ADDITIONAL WEIGHTAGE:

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The additional weightage will be awarded to in-service category candidates vide section G.2. supra and shall be calculated for the number of days actually worked in institutions in remote/ vulnerable areas till the 31^st March of the current year of admission at the following rates subject to maximum of 30% of marks secured to be added to the NEET-PG score of the candidate while determining the merit.

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a. Candidates who are working prior to dt.21.03.2016 shall be awarded additional weightage @ 10% marks per year as per provisions of Govt. vide Notification No. MEII-M-02/2015-5750/H/ dt.21.03.2016 vide Annexure A (enclosed)

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b. Candidates who have joined service after dt.21.03.2016 shall be awarded additional weightage @ 2.5%, 5%, 7.5% & 10% marks per year in VI, V2, V3 & V4 areas respectively vide Annexure B (enclosed).

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Maternity leave period availed if any shall be eligible for calculation of additional weightage

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Candidates applying for Diploma course shall not be awarded any additional weightage while drawing their merit list.”

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Based on 31^st March of the current year i.e. 2024 as the cut-off

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date for determination of eligibility to be considered as In-service candidates under Clause-G (2) of the Guidelines as noted above, the petitioners do not qualify for the advantage of the additional weightage under Clause-H of the said Guidelines. The entire case of the petitioners is based on the „NB‟ under Clause-G of the Guidelines as quoted and highlighted above, which stipulates that cut-off date of 31^st March mentioned in Clause-G is subject to change, as per any change in the schedule of NEET PG and/or All India Counselling, which will be notified.

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It is the petitioners‟ case that there have been changes in the schedule of NEET PG and, therefore, the cut-off date of 31^st March 2024 being subject to change as per the Guidelines, ought to have been suitably altered by way of notification. The petitioners are accordingly seeking a direction to the opposite parties to alter the said cut-off date.

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It is an admitted fact that the NEET PG was initially notified to

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be tentatively held on 03.03.2024. Later, through notice dated 09.01.2024 issued by National Board of Examinations in Medical Sciences, New Delhi (NBEMS), the tentative date of examination of NEET PG 2024 was rescheduled and declared to be held on 07.07.2024. Further, the NBEMS subsequently came out with another notice dated 16.04.2024 inviting applications for National Eligibilitycum-Entrance Test, NEET PG 2024 whereby the date of examination was declared as 23.06.2024. The examination was, however, postponed indefinitely by a notice dated 22.06.2024. On 05.07.2024, the date of examination was rescheduled, to be held on 11.08.2024, on which date the examination was held.

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As both the writ applications are based on identical legal issues and factual matrix, they have been heard together and are being disposed of by the present common judgment and order.

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It is the petitioners‟ case that since the date of NEET PG 2024 which was notified to be held on 03.03.2024, was re-scheduled to 07.07.2024 and subsequently preponed to 23.06.2024, and finally held on 11.08.2024, applying the aforesaid NB under Clause-G of the

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Guidelines, the cut-off date for determination of in-service candidates within the meaning of Sub-Clause-2 ought to have been suitably altered. The petitioners are falling short by few months to avail the advantage of getting weightage as in-service candidates under ClauseG (2). According to them, the NB under Clause-G makes it obligatory for the State Government to alter the cut-off date i.e. 31.03.2024, consequent upon the change in the schedule since the said cut-off date is subject to change in the schedule of NEET PG.

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In the present case, intervention applications i.e. I.A. Nos.15074, 15076, 15173 and 15349 of 2024 [arising out of W.P.(C) No.26430 of 2024] have been filed on behalf such aspirants for admission to PG/Diploma courses based on NEET PG 2024 who qualify as inservice candidates in terms of Clause-G (2). They have opposed the relief sought in the present writ application on the ground that it will adversely affect the prospect of their admission into PG Courses because of inclusion of the candidates, who do not qualify as in-service candidates, strictly in terms of the aforesaid Clause-G (2).

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We have heard at length Mr. Budhadev Routray, learned Senior Counsel and Mr. Gautam Misra, learned Senior Counsel appearing for

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respective petitioners; Mr. K.C. Kar, learned Government Advocate for the State-opposite parties; Mr. R.C. Mohanty, learned counsel appearing for the opposite party-DMET and Mr. Devasis Panda, learned counsel, Mr. T Meher, learned counsel, Mr. B.B. Choudhury, learned counsel and Mr. P.K. Nayak, learned counsel for respective interveners.

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Mr. Budhadev Routray, learned Senior Counsel appearing on behalf of the petitioners in W.P.(C) No.26430 of 2024 has vehemently argued that it is obligatory for the State to change the cut-off date prescribed under Clause-G (2), by way of notification as the said cutoff date is subject to change in the schedule for NEET PG. He has argued that by not taking any decision, the State Government has ignored its own policy as disclosed in the NB under Clause-G of the guidelines. He has argued that it will cause serious prejudice to otherwise eligible candidates like the petitioners to get the advantage of Clause-G (2) read with Clause-H of the Guidelines because of the inaction on the part of the State Government in duly addressing refixation of cut-off date in terms of the said NB under Clause-G of the Guidelines.

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Mr. Gautam Misra, learned Senior Counsel appearing on behalf of the petitioners in W.P.(C) No.27118 of 2024 has argued that the „NB‟ under Clause-G enjoins a duty upon the State Government to extend the cut-off date as per the changes in the Schedule of NEET PG and/or All India Counselling. At the time of submission of application, though the candidates could not have known with certainty that they would be considered as in-service candidates, but they certainly had a legitimate expectation of being considered as in-service candidates as per Clause-G of the Guidelines. He has argued that if the cut-off date is extended as per the „NB‟ of Clause-G of the Guidelines, no prejudice will be done to the State Government. Further, extension of cut-off dates would increase the talent pool of in-service doctors, which would foster further competition. He has lastly submitted that the petitioners may not have a vested right, but if extension is given in public interest, it would considerably help in recruitment of better doctors. He has argued that the annotation „NB‟ stands for nota bene which means „note well‟ and is normally used to indicate that something is important and the reader should take note of it. He has emphasized on the significance of the expression “subject to”, and has relied on the Supreme Court‟s decision in case of Commissioner of Central Excise, W.P.(C). No.26430 and 27118 of 2024 Page 11 of 25

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Bhavnagar v. Saurashtra Chemicals Ltd., 2007 (10) SCC 352 ,

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paragraph-13 of which reads as under:

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“13. A beneficent statute may have to be considered liberally but where a statute does not admit of more than one interpretation, literal interpretation must be resorted to. The provision allows taking of credit but the same is circumscribed by the condition as is apparent from the use of the words “subject to” and is limited to an amount not exceeding 50% of the duty paid on such capital goods. The term “subject to” in the context assumes some importance. In Ashok Leyland Ltd. v. State of T.N. [(2004) 3 SCC 1] this Court held: (SCC p. 36, para 79)

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“ 79. … „Subject to‟ is an expression whereby limitation is expressed. The order is conclusive for all purposes.”

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This Court further noticed the dictionary meaning of “subject to” stating: (SCC p. 38, paras 92-93)

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“92. Furthermore, the expression „subject to‟ must be given effect to.

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93. In Black's Law Dictionary, 5th Edn. at p. 1278, the expression „subject to‟ has been defined as under:

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„Liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for. Homan v. Employers Reinsurance Corpn. [345 Mo 650 : 136 SW 2d 289, 302] ‟ ”

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(See also S.N. Chandrashekar v. State of Karnataka [(2006) 3 SCC 208] .)”

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10.1. He has argued that it is obligatory for the State to give effect to

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the expression “subject to” which has been defined in the Black‟s Law

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Dictionary (5^th Edition) Page-1278 to „mean liable‟, „subordinate‟, „subservient‟, „inferior‟, „obedient to‟, „governed or affected by‟, „provided that‟, „provided‟, „answerable for‟. Emphasizing his submission that merits should be given primacy in the matter of selection for admission to PG Courses, he has relied on the Supreme Court‟s decisions in case of Christian Medical College Vellore Association v. Union of India and others, 2020 (8) SCC 705 (Paragraph 34) and B.S. Minhas v. Indian Statistical Institute and others, 1983 (4) SCC 582.

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10.2. Relying on the Supreme Court‟s decision in case of State of Jharkhand and others v. Brahmputra Metallics Limited, Ranchi and

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another, 2023 (10) SCC 634 , he has argued that the petitioners had a legitimate expectation, in view of disclosure made in the Guidelines, that the cut-off date stipulated in Clause-G (2) being subject to change in the date of examination, would be altered as the date of examination was initially rescheduled, postponed, preponed and, thereafter, finally held on 11.08.2024. He has argued that in the said background, the State Government ought to have taken decision on the point of redetermination of the cut-off date under Clause-G (2).

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A counter affidavit has been filed in W.P.(C) No.26430 of 2024

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on behalf of opposite parties No.2 and 4. A plea has been taken that at no point of time, the petitioners and similar candidates had raised any objection as regards a stipulation made in Clause-G of the Guidelines fixing 31^st of March of the current year as the cut-off date. The State of Odisha has heavily relied on a decision rendered by a co-ordinate Bench of this Court dated 30.08.2022 passed in W.P.(C) No.16772 of 2022 ( Dr. Manisha Vidyabhasini and another v. State of Odisha and others ) in relation to NEET PG 2022. In the said case, a corrigendum notice for PG Guidelines 2022-23 pertaining to the cut-off date for inservice category and completion of one year compulsory rotating internship/housemanship for direct candidates for counselling and admission of candidates for PG (Medical) Courses was under challenge. In that case, the cut-off date for completion internship was fixed to 31.05.2022 which was 31^st March for every year. A Division Bench of this Court quashed the change in cut-off date relating to eligibility criteria on the reasoning that the conditions stipulated under Sub-Clause-2 of Clause-G of the Guidelines could not be changed as that would amount to changing the rule of the game after the game had been played.

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Mr. R.C. Mohanty, learned counsel appearing on behalf of the opposite party-DMET has also placed reliance on the Supreme Court‟s decision in the case of Shikhar and another v. National Board of Examination and others , 2022 SCC OnLine SC 425 wherein the Supreme Court declined to disturb the schedule as that would have affected other students who fulfilled the requirement as per the cut-off date of 31^st July, 2021 for completion of internship. He has submitted that this Court may not interfere in the matter of fixation of the cut-off date for determination of eligibility condition for qualification as inservice candidates.

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Learned counsel appearing on behalf of the intervenors have heavily relied on the decisions in case of Dr. Manisha Vidyabhasini ( supra ) and Shikhar v. National Board of Examination ( supra ) and have submitted that any change in the cut-off date for determination of eligibility against the seats meant for in-service candidates will amount to changing the game after the game has started. Reliance has also been placed on a recent constitution Bench decision (5-Judge) of the Supreme Court dated 07.11.2024 in Civil Appeal No.2634 of 2013 in case of Tej Prakash Pathak & others v. Rajasthan High Court &

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others reported in 2024 SCC OnLine SC 3184 to bolster the said legal submission.

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In reply, Mr. Routray, learned Senior Counsel appearing on behalf of the petitioners has submitted that the decision in case of Dr. Manisha Vidyabhasini ( supra ) has no application since in the NB under Clause-G of the present guidelines, there is specific stipulation based on conscious decision of the State Government that the cut-off date of 31^st March for determining the eligibility criteria for in-service candidates is subject to change depending on change in the date of examination. The said clause requires the competent authority to take a decision if there is any change in the date of NEET PG-2024, he contends.

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Based on the pleadings on record and rival submissions advanced on behalf of the parties as noted above, the following questions have emerged for this Court to consider for due adjudication of the claim raised by the petitioners:-

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(i) Whether the relief sought for by the petitioners for changing the cut-off date for determination of eligibility of an in-service candidate deserves to be declined in the

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light of a co-ordinate Bench decision in case of Dr. Manisha Vidyabhasini (supra) ?

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(ii) Whether any change in the cut-off date for determination of eligibility of in-service candidates applying the „NB‟ under Clause G of the guidelines will amount to change of the rule of the game after the game had started/been played, and, therefore, impermissible, applying the principle reiterated in various decisions of the Supreme Court, recently reiterated by the Constitution Bench in case of Tej Prakash Pathak (supra) ?.

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(iii) Whether by virtue of „NB‟ under Clause G(2) of the guidelines, it is obligatory for the State to change the cutoff date of 31^st March for determination of eligibility of in-service candidates consequent upon the change of date for NEET P.G. 2024. ?

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Needless to reiterate that the entire controversy in the present

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case revolves around application of the „NB‟ under Clause G of the guidelines. On a deeper scrutiny and analysis of Clause G of the guidelines, it can be easily discerned that the cut-off date for determination of the in-service candidates i.e. 31^st March is subject to change because of the „NB‟ which states in no uncertain terms that the said cut-off date is subject to change, as per any change in the schedule

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of NEET P.G. and/or All India Counselling, which will be notified.

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The decision rendered in the case of Dr. Manisha Vidyabhasini (supra) by this Court related to NEET PG 2022 wherein similar cut-off date of 31^st March was prescribed to determine eligibility of in-service candidates. NEET P.G. 2022 was rescheduled by NBEMS which was earlier fixed. After publication of the result, a corrigendum was issued enhancing the cut-off date from 31.03.2022 to 31.05.2022, which was under challenge in the case of Dr. Manisha Vidyabhasini (supra) on the ground, inter alia, that after publication of result, in the midst of the selection process, issuance of the said corrigendum changing the cutoff date from 31.03.2022 to 31.05.2022 amounted to changing the rules of the game after the game was played, which was impermissible. Clause G of the guidelines issued for NEET P.G. 2022 has been quoted in the decision in the case of Dr. Manisha Vidyabhasini (supra). It appears from paragraph 10 of the decision in the case of Dr. Manisha Vidyabhasini (supra) that there was no stipulation akin to the „NB‟ under Clause-G of the Guidelines for NEET P.G. 2022. In the said circumstance, after having noticed the Supreme Court‟s decisions in the cases of Secretary, Andhra Pradesh Public Service Commission Vs. B. Swapna and Others in (2005) 4 SCC 154 ; K. Manjushree Vs. State of Andhra Pradesh and Others reported in (2008) 3 SCC 512,

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this Court concluded that the issuance of the corrigendum changing the cut-off date for determination of the eligibility of in-service candidates was not legally sustainable. The Division Bench, in the case of Dr. Manisha Vidyabhasini (supra) had had no occasion to deal with the stipulation in the nature of „NB‟ under Clause G of the guidelines.

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We are, accordingly, of the opinion that the decision rendered in the case of Dr. ManishaVidyabhasini (supra) is not applicable in the present case on the point of competence of the State Government to alter the cut-off date for determination of eligibility condition of inservice candidates, since the NB under Clause-G of the Guidelines permits the State to change the cut-off date by notification at appropriate stage, if there is any change in the schedule of NEET PG or All-India Counselling.

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We answer the first question accordingly.

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Moving on to the second question, whether if any change is made in the cutoff date fixed in Clause-G(2) of the guidelines by applying the „NB‟ as noted above, that will amount to changing the game after the game had already started, applying the law laid down in

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the latest decision of the Supreme Court in the case of Tej Prakash W.P.(C). No.26430 and 27118 of 2024 Page 19 of 25

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Pathak and Others Vs. Rajastahan High Court and Others reported

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in 2024 SCC OnLine SC 3184, it would apt to reproduce paragraph 42

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of the said decision, which contains the conclusions and lays down the law in clear terms as under:-

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“42. We, therefore, answer the reference in the following terms:

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(1) Recruitment process commences from the issuance of the advertisement calling for applications and ends with filling up of vacancies;

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(2) Eligibility criteria for being placed in the Select List, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non- arbitrariness;

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(3) The decision in K. Manjusree (supra) lays down good law and is not in conflict with the decision in Subash Chander Marwaha (supra). Subash Chander Marwaha (supra) deals with the right to be appointed from the Select List whereas K. Manjusree (supra) deals with the right to be placed in the Select List. The two cases therefore deal with altogether different issues;

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(4) Recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the

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recruitment process to its logical end provided the procedure so adopted is transparent, nondiscriminatory/non-arbitrary and has a rational nexus to the object sought to be achieved. (5) Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. However, where the Rules are nonexistent, or silent, administrative instructions may fill in the gaps;

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(6) Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list.”

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(Highlights for emphasis)

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The Supreme Court has ruled in the case of Tej Prakash Pathak

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(supra) that the eligibility criteria cannot be changed mid-way through the recruitment process “unless the extant rules so permits”, or the advertisement, which is not contrary to the extant rules, so permits. It can be easily culled out, therefore, that if as statutory rule, a policy or

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guidelines of the State within the meaning of Article 12 of the Constitution of India permits change mid-way through the recruitment

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process, it can be done, depending on the nature of such provision

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under the rules, policy and guidelines.

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The Supreme Court in the case of Tej Prakash Pathak (supra),

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has, however, added that even if such change is permissible under the extant rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness. As has been noticed in the present case, the policy of the Government as disclosed in the guidelines makes the cut-off date, subject to change by way of notification, as per change in the schedule of NEET PG or All-India Counselling. We, therefore, negative the contention raised on behalf of the interveners that no change is permissible at all, in any circumstances, in the cut-off date for determination of eligibility of in-service candidates on the principle of impermissibility of change in the rule of game after the game begins. Such contention will make the „NB‟ under Clause G of these said guidelines completely redundant and nugatory.

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The second question stands answered accordingly.

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We now move on to the last question framed by us hereinabove, i.e., whether it is mandatory for the competent authority to change the

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said cut-off date, that being subject to change as per any change in the

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schedule of NEET PG or All-India Counselling, if there is any change in schedule of NEET P.G. 2024.

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As has been noted above, Mr. Gautam Misra, learned Senior Advocate has attempted to convince the Court that the cut-off date of 31^st March being subject to change in the schedule of NEET PG, once the NEET PG, 2024 was re-scheduled, it was obligatory for the competent authority to alter the said date by notification. He has taken us to the definition of the expression „subject to‟ as noticed in the case of Saurashtra Chemicals Ltd . (supra) and Ashok Leyland v. State of Tamil Nadu , reported in 2004 (3) SCC 1 . The expression „subject to‟ as held by the Supreme Court in Ashok Leyland (supra) means „liable‟, „subordinate‟, „subservient‟, „inferior‟, „obedient to‟; „governed or affected by‟; „provided that‟; „provided‟; „answerable for‟. He submits that if the correct meaning of the expression „subject to‟ is applied in the „NB‟ of Clause-G, it would be mandatory for the competent authority to alter the cutoff date. The said submission, though at first blush appears to be forceful but deserve to be rejected for the reason that if the said submission is to be accepted, any change in the date of

¶166

any nature will impact the cut-off date under Clause G (2) of the

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W.P.(C). No.26430 and 27118 of 2024

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Page 23 of 25

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guidelines. In our opinion, the said expression „subject to‟ will have to be read in the context in which the same has been used under Clause G

¶170

(2). An answer lies directly in the Constitution Bench decision in the case of Tej Prakash Pathak (supra) , wherein the Supreme Court has laid down that even if a change is permissible under the extant Rules, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness.

¶171

Situated thus, on contextual interpretation of the „NB‟, in our opinion, the said cut-off date in Clause G (2) of the guidelines is subject to change, as may be notified by the State Government, consequent upon any change in the schedule of NEET P.G. or All India

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Counselling. In our considered view, though it is not obligatory for the competent authority to change the cut-off date, with every change in the schedule of NEET P.G., in view of the facts and circumstances of the present case and various changes in the dates of NEET P.G. 2024, the State Government ought to have taken a decision whether any change in the cut-off date under Clause G (2) of the guidelines was required or not.

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W.P.(C). No.26430 and 27118 of 2024

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Page 24 of 25

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Accordingly, we dispose of the writ applications with the

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following directions and observations:

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“(i) The Director of Medical Education and Training (DMET), Odisha, Bhubaneswar is directed to take a decision in the light of the NB below Clause G (2) of the Post Graduate (Medical Selection), Odisha guidelines for counselling and admission of candidates for Post Graduate/Diploma (Medical Course) in Medical Colleges of Odisha for 2024-25. As has been noticed, 31^st March of current year of admission was prescribed as the cut-off date for considering the eligibility criteria of in-service candidates.

¶178

(ii) The DMET is required to take a decision accordingly, as stipulated in the NB below Clause G (2), that the said cut-off date of 31^st March is subject to change, to be notified, as per any change in the schedule of NEET P.G. and/or All India Council.

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(iii) We make it clear that this order shall not be construed as a direction to the DMET, Odisha to change the cut-off date of 31^st March. The decision must be taken by 25.11.2024.”

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All interlocutory applications stand disposed of.

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(Chakradhari Sharan Singh)

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Chief Justice Signature Not Verified Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: AuthenticationLocation: High Court of Orissa, Cuttack. (Savitri Ratho) Date: 25-Nov-2024 15:10:58

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(Savitri Ratho) Judge

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SK Jena/Secy/SK Guin/PA.

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W.P.(C). No.26430 and 27118 of 2024

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Page 25 of 25

Sibasish Kumar Jena v. State of Odisha

Case brief

What is this about?

What did the court decide?

Sibasish Kumar Jena v. State of Odisha

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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