Allahabad High Court
Dr. Kamal Kumar Sharma And Etc. vs Principal, M.L.B. Medical College, ... on 11 September, 1987
Equivalent citations: AIR1988ALL32, AIR 1988 ALLAHABAD 32, 1987 ED CAS 229 (1987) UPLBEC 656, (1987) UPLBEC 656
JUDGMENT Ravi S. Dhavan, J.
1. At the Maharani Luxmi Bai Medical College, Jhansi there is a competition between two doctors seeking admission into the Master of Surgery, the General Surgery Course. The petitioner has filed a Writ Petition No. 11417 of 1987; Dr. Kamal Kumar Sharma v. Principal M. L. R Medical College, Jhansi and others. The other writ petition, in effect, seeking relief for a direction for being admitted to the same course, is Writ Petition No. 12689 of 1987 : Dr. Rishi Bhatia v. Principal, MLR Medical College and others. The Writ Petitions are being taken up for consideration.
2. At the outset this court would like to express dismay at the practice of Clerks and subordinate officials being sent to file affidavits when the respondents arrayed, ought to have answered the writ petition with their own affidavits. In the matter of Dr. Kamal Kumar Sharma, a clerk has answered the writ petition on behalf of the Principal of the Medical College. In the writ petition filed by Dr. Rishi Bhatia, a Store Keeper at the Medical College has replied to the writ petition by a counter-affidavit.
3. On behalf of the Principal of the Medical College in the writ petition filed by Dr. Kamal Kumar Sharma it is contended that six seats are available for theMS. General Surgery Course, aforesaid and there is a tie between Dr. Kamal Kumar Sharma and Dr. Rishi Bhatia as both have secured equal marks of 5451%, in reference to the merit standing at the M.B.RS. examination. The recommendation of the Admission Committee being in favour of Dr. Rishi Bhatia, the admission, in the aforesaid course, was granted to the latter. It is contended that Dr. Kamal Kumar Sharma, in accordance with his second choice has been granted admission to M. D., Anaesthesia as he is not entitled for admission to the M.S. General Surgery Course. The vacancy exists, as admission granted to Dr. Rishi Bhatia had been stayed by the High Court by an ad-interim order.
4. In reference to the petition filed by Dr. Rishi Bhatia a counter affidavit filed by the Storekeeper on behalf of the Principal recites that in pursuance to Dr. Kamal Kumar Sharma filing a writ petition and an ad-interim order was being passed Dr. Rishi Bhatia's admission was stayed to the course and in accordance with his second choice admission has been granted to him in M D. Anaesthesia course
5. Thus, the tie is for Master of Surgery, General Surgery Course, between these two petitioners. According to the merit list consequent upon the MRRS. examination the two have obtained identical marks.
6. The merit index of the Post Graduate internal candidates for 1987 prepared by the Admission Committee, placed Dr. Kamal Kumar Sharma at serial No. 32 and Dr. Rishi Bhatia at serial No. 33. This overall assessment was reached by taking into consideration the performance of the two candidates; these are matters of record and not in dispute. This was the merit list for the internal candidates.
7. Dr. Kamal Kumar Sharma passed his M.B.B.S. Examination in the first attempt. Dr. Rishi Bhatia failed in the surgery examination of the M.B.B.S. examination and passed this subject in the second attempt. The petitioner. Dr. Kamal Kumar Sharma has done one year House Job in surgery, whereas Dr. Rishi Bhatia has split his House Job of one year by taking six months in surgery and six months in another subject. Dr. Kamal Kumar Sharma in passing the M.B.B.S. Course in the first attempt received 7/10 assessment on his day to day marking, 23/40 in the terminal examination and consequently 214/400 as gross marks in surgery. In comparison the marks of Dr. Rishi Bhatia were 5/10 in the day-to-day assessment, 22/40 in the terminal examination and 178/400 as gross marks in surgery with the result of being declared as failed. In the second attempt Dr. Rishi Bhatia received 205/350 marks.
8. The reasons for selecting Dr. Rishi Bhatia in preference to Dr. Kamal Kumar Sharma has been explained in a supplementary affidavit filed by Dr. Rishi Bhatia. This is on an application dated 17 June, 1987 which Dr. Rishi Bhatia gave to the Director, Medical Education and Training, Lucknow, U. P. Below the application of Dr. Rishi Bhatia the Principal of the Medical College put the following endorsement :--
"OFFICE OF THE PRINCIPAL, M.LB. MEDICAL COLLEGE, JHANSI.
DATED : July 30, 1987 To, The Vice Chancellor, Bundelkhand University Jhansi.
Since the merit index of both Dr. K. K. Sharma and Dr, Rishi Bhatia is equal (54.42%) at the meeting of P. G. Committee held at Lucknow under the Chairmanship of D.M.E. & T. it was decided that Dr. Rishi Bhatia's merit will be considered above the merit of Dr. K. K. Sharma since the surgery marks of Dr. Rishi Bhatia in the Subject of Post-graduation are higher. Submitted for information and necessary action.
Sd/- V. M. Bhatnagar Principal M.L.B. Medical College, Jhansi"
9. This is all of a sudden by extracting the result of one examination, in the marks obtained in surgery by Dr. Rishi Bhatia, in the second attempt, he was placed higher in order of merit to Dr. Kamal Kumar Sharma. This decision was taken without reference to Dr. Kamal Kumar Sharma, and on the letter of Dr. Rishi Bhatia, while both these writ petitions were pending consideration before this court, of Dr. Kamal Kumar Sharma since 30 June, 1987 and Dr. Rishi Bhatia since 16th July, 1987. The merit list in reference to admission in Post-graduate Course, apparently has been disturbed. In the first list issued by the Principal, Dr. Kamal Kumar Sharma was put at serial No. 32 and Dr. Rishi Bhatia at serial No. 33. This list was recognised for giving admission to internal candidates, but it was ignored in reference to the tie which was occasioned when the admission for the Post-graduate Surgery Course was being considered in reference to two doctors, aforesaid. Even the merit was changed at the initiative of Dr. Rishi Bhatia and without reference to Dr. Kamal Kumar Sharma. We have already observed, that this happened while the two writ petitions were pending consideration.
10. When the merit list was prepared for all the students as a class for the Post-graduate internal candidates, seeking admission to 1987-88 session, it took into account fifty five candidates. At serial No. 1 Dr. Ravi Prakash Agarwal with 68.2% and at the end at serial No. 55, Rajendra Kumar Singh with 30.07%. This merit list was not prepared exclusively for Dr. Kamal Kumar Sharma or Dr. Rishi Bhatia, but for 55 candidates as a class. This Court feels that it was not proper to vary the merits in a reference to those two doctors, without appropriate and cogentreasons, being placed on record as the merit list had been prepared upon assessment of all the factors. It is true that on the overall assessment the two candidates had identical marks, but this position was not known when the merit list for fifty five candidates was prepared, as a class.
11. The criteria prescribed by the Medical Council of India laying down the recommendation of Post-graduate Medical Education is contained under Section 33 of the Indian Medical Council Act, 1956. This reads as :
Criteria for the selection of candidates : --
(a) Students for post-graduate training should be selected strictly on merit judged on the basis of academic recorded in the under graduate course. All selection for postgraduate studies should be conducted by the Universities.
(b) The candidates should have obtained full registration i.e. they must have completed satisfactorily one year of compulsory rotating internship after passing the final M.B.B.S. examination and must have full registration with State Medical Council,
(c) They must subsequently have done one year's housemanship prior to admission to the post-graduate degree or diploma course. Housemanship should preferably be for the year in the same subject or at least six months in the same department and the remaining six months in an allied department. Provided that in departments like Radiology/Anaesthesiology/Physical Medicine and Rehabilitation where suitable candidates who have done housemanship in the respective subject for the respective specialty are not available then the housemanship in Medicine and/or in surgery may be considered as sufficient.
Work done by the District Epidemiologists in P. Falciparum Containment Programme (PFCP) for a period of one year may be considered at par with the requirement of house jobs required for admission to postgraduate course in Social and Preventive Medicine.
(i) Alternatively must have worked as a full time post graduate student in a manner equivalent to housemanship requirements, in the department concerned before taking up the post-graduate course.
(ii) or worked in State Medical Services, Armed Forces Medical Services or other equivalent services of public undertakings, local bodies, etc. for a period of three years after full registration provided that one year of these three years is spent in a hospital which is approved for purposes of undertaking the compulsory rotating internship or in a command hospital, failing which the aforesaid period of three years would be increased to five years.
Provided that in case of service in Armed Forces, this period shall be in addition to one year of compulsory rotating internship required for purposes of obtaining the M.B.B.S. degree and full registration.
(d) other conditions being equal, weightage may be given to persons who have worked in rural areas or the Armed Forces Medical Services for at least two years. Evaluation of merit.
The post-graduate committee was of the opinion that in order to determine the merit of a candidate for admission to post-graduate medical course (i) his performance at the M.B.B.S. examination (ii) his performance during the course of internship and housemanship for which a daily assessment chart be maintained and (in) the report of the teachers which is to be submitted periodically may be considered.
Alternatively the authorities concerned may conduct competitive entrance examination to determine the merit of a candidate for admission to post-graduate medical courses."
12. Thus, when once merit has been determined for the entire class of students, fifty five in number, it ought not to have been changed in reference to the two candidates petitioners before this Court. It is difficult to visualise what factors went into the reassessment in switching the order of merit between these two candidates. The tie was in the marks, not the order of merit. Under Clause (a) in the criteria for selection of candidates, the merits awarded to M.B.B.S. students is on a basis, which is not to be ignored. This is more or less an overall assessment of the academic record in the under graduate course. Then, comes, the matter of housemanship. This is referred to under Clause (c). The criteria in reference to Housemanship is that it should preferably be in one year. Although, should a candidate have done six months in the subject in which he is seeking admission to the Post-graduate Course and another six months in another course, this may not be a ground for inelegibility. On the other hand, it is difficult to ignore a candidate who has done one year Housemanship in the very subject in which ission for the Post-graduate Course.
13. In reference to the break up of marks obtained by the two candidates, the comparative assessment had already been gone into when the merit list was prepared for fifty five candidates. This ought not to have been changed without reference to Dr. Kamal Kumar Sharma when Dr. Rishi Bhatia was writing to the Director, Medical Education and Training, Lucknow without reference to his rival. It would have been appropriate if the Principal of the Medical College, who forwarded the application, to the Director of Medical Education and Training, Lucknow, ought to have intimated Dr. Kamal Kumar Sharma before attempting to reassess the merit. Though an appropriate step would have been to intimate Dr. Rishi Bhatia that as the matter is sub judice before the High Court, the action on his application to reassess the merit would be differed and would depend upon the result of the writ petitions, aforesaid. While Dr. Kamal Kumar Sharma was making a grievance in his writ petition that his merit was ignored, it is clear that Dr. Rishi Bhatia did initiate an exercise, with the writ petitions pending, to either reverse the merit rating on record or ignore it.
14. On the examination of the details of the facts on record of the two writ petitions under consideration, the Court does not find similarity in the facts and circumstances of the two decisions referred to by learned counsel for Dr. Rishi Bhatia. The two decisions, in Writ Petition No. 5873 of 1982. In re Dr. P. M. Yadava and Writ Petition No. 8597 of 1984; In re Dr. Sudhaka Jauhari, thus are not attracted.
15. Thus, we quash the decision of the Post Graduate Admission Committee, Lucknow, referred to in the endorsement of the Principal of the M. L. B. Medical College, Jhansi, July 30, 1987, Annexure 'A' to the supplementary affidavit of Dr. Rishi Bhatia dated 21 August, 1987.
16. If indeed, the candidature of the two doctors aforesaid is to be reconsidered for the Post Graduate Course to which they have applied, then the Post Graduate Admission Committee, Lucknow, aforesaid, will reconsider the matter in the light of the observation made in this judgment after giving an opportunity to both the doctors and hearing them in the presence of each other. The Committee (of which Director, Medical Education and Training is the Chairman) will examine the matter afresh in reference to these two doctors, aforesaid, within ten days from the date of a certified copy of this judgment being placed by either of them. This Court is suggesting the period, as the academic session has commenced and the sooner the selected candidate joins the course the better it would be.
17. In the writ petition filed by Dr. Kamal Kumar Sharma allegations of mala fide have been made in the manner in which the merit list as it initially stood has subsequently been changed in a reference to the two doctors, aforesaid. This Court is not taking cognizance of the allegations made and thus, likewise cautions the Post Graduate Admission Committee, Lucknow, to deliberate upon the matter as remanded, but ignoring the allegations so that it neither prejudices the candidate against whom the allegations have been made nor anything should be considered against the candidate who has made the allegations.
18. In the result, the Writ Petition No. 11417 of 1987 filed by Dr. Kamal Kumar Sharma is allowed and the Writ Petition No. 12689 of 1987 filed by Dr. Rishi Bhatia is dismissed. But in view of the circumstance that the matter, in effect, has been remanded no order is being made on costs.