Bombay High Court
Dr. Taneshwar Singh Chahal vs The Dean, Goa Dental College & Hospital & ... on 27 April, 1998
Equivalent citations: 1998(4)BOMCR5, 1998(2)MHLJ394
Author: R.M.S. Khandeparkar
Bench: R.K. Batta, R.M.S. Khandeparkar
ORDER R.M.S. Khandeparkar, J.
1. The petitioner by the present petition is seeking for a writ of mandamus against the respondents for admission to the Post-graduate Course i.e. M.D.S. Course in Goa Dental College and Hospital for the academic year 1998-99, without insisting upon the requirement of 10 years residency clause. The petitioner secured admission to the B.D.S. course at Goa Dental College and Hospital in the year 1991 pursuant to the selection in All India Examination conducted by the Central Board of Secondary Education, New Delhi and completed the said course in January, 1996 after undergoing 4 years of study. Thereafter, the petitioner completed the compulsory internship of one year on 31-1-1997 and obtained permanent registration with the Goa State Dental Council on 14-2-1997, the registration number being A-233. The registration was renewed on 21-1-1998. The petitioner obtained highest total marks in the University Examination in B.D.S. Course and was awarded first rank as well as gold medal by the Goa University.
2. By notice dated 24-12-1997, the candidates desiring to secure admission to the M.D.S Course in the said College were informed by the respondents No. 1 and 2 that the prospectus and application forms for the admission to the said course would be available for sale from 26-12-1997 and the last date for submission of the application form would be 23-1-1998. The prospectus discloses that there are 5 seats for M.D.S. Course, 3 seats being in the speciality of Prosthodontics and two seats in the speciality of Orthodontics. It further discloses that one seat in each of the specialities is reserved for in-service candidates. The eligibility prescribed for the admission is firstly the B.D.S. Decree of Goa University or any other University recognised as equivalent thereto by the Goa University and Dental Council of India and the registration with Goa State Dental Council after completion of the compulsory paid Rotating Internship of one year. Moreover, the form appended to the prospectus also refers to a Certificate of 10 years residence in the State of Goa.
3. The petitioner submitted his application in the prescribed form to the respondent No. 1 before 23-1-1998. The petitioner also by way of abundant caution addressed a letter dated 14-1-1998 along with the application form to the Health Secretary urging that the 10 years residency clause may not be insisted upon in case of the petitioner for admission to M.D.S. Course. Thereafter, the petitioner personally visited the office of the respondent No. 1 on several occasions and he was informed that a proper decision in his case was yet to be taken. He was also informed that one Dr. Tarun Agarwal had preferred a writ petition and on the basis of the decision in the matter of Dr. Tarun Agarwal, the case of the petitioner would be decided. The said case of Dr. Tarun Agarwal was disposed of by this Court on 24-2-1998 and the respondents were directed to grant relaxation in the residence requirement in so far as Dr. Tarun Agarwal was concerned. Moreover, by communication dated 2-3-1998, the petitioner was informed that the respondent desire to challenge the judgment of this Court in the matter of Dr. Tarun Agarwal before the Supreme Court and, therefore, he had to await the result in the said matter before the Supreme Court.
4. It is the case of the petitioner that the prospectus does not provide for 10 years residence of the candidate being eligibility criteria for admission to M.D.S. Course. It is the case of the petitioner that if 10 years residency is not insisted upon, then the petitioner is bound to get admission for M.D.S. Course as he is most meritorious candidate and fulfills the eligibility criteria set out in the prospectus.
5. Even otherwise, it is the case of the petitioner that as regards such requirement of 10 years of residence in Goa, in cases of students who have passed their M.8.B.S. Course from the Goa University, the respondents while granting admission to the Postgraduate Course in Goa Medical College had been invariably granting relaxations to the meritorious students. Besides, the Full Bench of this Court, relying upon the Judgment of Dr. Pradeep Jain v. Union of lndia, delivered by the Apex Court, has already held that the deserving candidates would be entitled for such relaxations. The respondents, in the case in hand, have illegally refused admission to the petitioner and have granted admission to the respondent No. 4 who is far below than the petitioner as far as merit is concerned.
6. Shri M.S. Sonak, learned Advocate appearing on behalf of the petitioner while challenging the impugned action on the part of the respondents in denying the admission to the petitioner to the M.D.S. Course in Goa Dental College, submitted that the prospectus clearly specifies only two conditions as regards the eligibility criteria for the admission to the M.D.S. Course and it does not include the requirement of 10 years residence of the candidate in Goa. According to Shri Sonak, the form cannot override the substantive provision in the prospectus regarding eligibility criteria. The form is basically prescribed to enable the candidate to give all his particulars in tabular format and cannot travel beyond the provisions contained in the prospectus as regards the eligibility criteria for admission to the course and, hence, the reference to the certificate of 10 years residence in the from cannot be considered as one of the eligibility criteria for the admission to the said course. Alternatively and assuming that such a condition can be read into eligibility criteria in the prospectus, Shri Sonak submitted that the said provision is to be construed as directory in nature and not mandatory and, this is more so, in view of consistent stand taken by the Government in the matter for admissions to the post-graduate courses in the Goa Medical College by granting relaxation of such requirement. There can be no rationale behind discriminating the students seeking admission to the M.D.S. Course from those seeking admission to the Post-graduate Courses in the Goa Medical College in the matter of grant of relaxation in 10 years residency clause. Drawing our attention to the prospectus, Shri Sonak submitted that Clause 5(3) of Part II clearly provides that the application should be accompanied by certified true copies of the testimonials and certificates required vide Clause (6) of Part II of the prospectus and the testimonials and the certificates enumerated under Clause (6) Part II of the prospectus, do not include any certificate regarding residence of the candidates. The application form being mere subsidiary to the main prospectus, it cannot override the provisions in the prospectus. Referring to the judgment of the Division Bench of this Court in the matter of Miss Prabha Kalyandeo Varma v. The Nagpur University and others, , he submitted that the respondents are bound by the provisions contained in the prospectus and cannot override the same by taking shelter of reference to the residence certificate in the Form. In any case, according to Shri Sonak, Clause relating to 10 years residency is ultra-vires the Constitution in view of the law laid down by the Supreme Court in Dr. Pradeep Jain's case, . According to Shri Sonak, the Apex Court therein has approved institutional preference to a certain extent in the matter of admission to the Post-graduate Courses. But the reservation on residency requirement has been totally condemned as far as it relates to the admission to the Post-graduate Courses. He further submitted that the law laid down in Dr. Pradeep Jain's case has been further approved by the Apex Court in the matter of Dr. Dinesh Kumar and others v. Motilal Nehru Medical College, Allahabad and others, reported in A.I.R. 1986 S.C. 1877 and the same has been relied upon by the Full Bench of this Court in the matter of Rakesh Ravi v. The Dean, Goa Medical College and others, reported in 1988(1) G.L.T. 270.
7. Shri H.R. Bharne, learned Government Advocate, on the other hand, submitted that the Form appended to the prospectus, forms integral part of the prospectus and, therefore, the contents of the Form cannot be read disjunctively from the prospectus and the provisions contained therein, therefore, form part of the prospectus itself. Being so, according to Shri Bharne, requirement of the residency clause in the prescribed form is also an eligibility criteria to secure admission to the M.D.S. Course. Drawing our attention to para 6 of the decision of the Apex Court in the matter of Dr. Pradeep Jain's case, he submitted that the requirement of residency clause for admission to the Medical Courses cannot be condemned as unconstitutional. Placing reliance upon the Judgment of the Hon'ble Supreme Court in the matter of Ajay Kumar Singh and others v. State of Bihar and others, reported in 1994(5) S.C.C. 401, Shri Bharne submitted that the institutions established by the Sate out of the public funds are maintained by the Government also out of public funds and, therefore, the State has every power to regulate admission policy and in that respect, the reservation clause relating to residency requirement being in the interest of the students of the local area, cannot be considered to be unconstitutional. He also sought to rely upon the judgment of the Apex Court in the matter of Post Graduate Institute of Medical Education and Research etc. v. K.L. Narasimhan and another etc., reported in A.I.R. 1977 S.C. 3687 and more particularly on the observations made by the Apex Court in para 23 therein. He also drew our attention to the judgment of the Apex Court in the matter of Anant Madaan v. State of Haryana and others, reported in A.I.R. 1955 S.C. 955 and particularly para 9, wherein according to Shri Bharne, the Apex Court has clearly permitted reservation to the extent of 85%.
8. Shri Lotlikar, learned Advocate appearing for the respondent No. 4 while supporting the contentions of the learned Government Advocate, submitted that the Apex Court in the mailer of Pradeep Jain's case was dealing with the matter pertaining M.B.B.S. Course and not relating to Post-graduate Courses and what has been held therein is that wholesale reservation is bad and, therefore, no conclusion can be drawn therefrom that partial reservation is also bad. On the contrary, a conclusion to the effect that the reservation for Post-graduate Course to a limited extent is said to be duly approved and this is clear from the later judgment of the Apex Court in the matter of Mohan Bir Singh Chawla v. Punjab University, Chandigarh and another, reported in 1992(2) S.C.C. 171, wherein the Apex Court held that the Rule of preference on the basis of requirement of residence is not bad provided it is within reasonable limits i.e. up to 85% seats in graduate courses and upto 75% seats in post-graduate courses. Shri Lotlikar further submitted that the Full Bench decision of this Court has no application to the case in hand. This Court, in the said case had directed relaxation on the ground that the Government had been constantly granting such relaxations to meritorious students seeking admission to Post-graduate Course in Goa Medical College. In the case in hand, the Post graduate Course in the Dental College is being started for the first time and there was no occasion to grant such relaxation for admission to the Post-graduate Course in the Dental College, as it did not impart education at post-graduate level prior to the academic year 1998-99. He further submitted that the Form is the part of the prospectus. It is not different from the prospectus and the prospectus being mere executive instructions, they can be changed or supplemented at any time. In fact, the form is contemporary to the prospectus and in the absence of residency certificate being enclosed, the form would be incomplete and considering the provisions contained in the prospectus itself under Clause (4) Part (II), it is mandatory for the applicant to submit the form completed in every respect. Besides, apart from the residency clause, the form prescribes some other requirements, particularly regarding eligibifity certificate from the Goa University, statement of marks obtained at first, second, third and final years of B.D.S. Course etc.
9. Upon hearing the learned Advocates for the parties and on perusal of the entire records placed before us, it is seen that Part II of the prospectus deals, in detail, about eligibility, preference and order of merit for obtaining admission to the post-graduate degree course in Prosthodontics and Orthodontics in Goa Dental College and Hospital.
10. The Clause (1) of Part II deals with eligibility criteria and it provides thus:---
"(1) Eligibility---
Candidates applying for admission to the post-graduate degree course shall:-
(i) possess the B.D.S. degree of the Goa University or any other University recognised as equivalent thereto by the Goa University and Dental Council of India,
(ii) have to be registered with the Goa State Dental Council after completing. the compulsory paid Rotating Internship of one year. Registration should be up-to-date within the Goa State Dental Council."
11. The Clause (2) of Part II of the prospectus deals with the subject of "preference" and it provides that while selecting the candidates for admission to the Post-graduate Course, preference would be given to the candidates who have graduated from the Goa Dental College and Hospital and have also satisfactorily completed internship at Goa Denial College and Hospital. It further provides that if such candidates are not available, then the candidates who have graduated from Goa Dental College and Hospital and have done the Internship outside the Goa Dental College, but in a Dental College recognised by the Dental Council of India would be preferred. In case even such candidates are also not available, then the preference would be given to the candidates who have graduated from Dental Council of India recognised Colleges, other then the Goa Dental College and Hospital, but who have completed the Internship in the Goa Dental College and Hospital.
12. The Clause (3) of Part II of the prospectus deals with the order of merit and provides that the same shall be determined by computing the marks in the manner prescribed therein. It provides for deduction of certain percentage on account of failure at B.D.S. level. It provides for weightage being given to senior students who had passed from Goa Dental College prior to starting of the M.D.S. Course subject to a maximum of 5 marks in the grand total, as well as in the subject of speciality. More weightage is available in case of more years of experience, of course, subject to the maximum of 5 marks.
13. The Clause (4) of Part II of the prospectus deals with the application forms and it provides that the same can be availed of from the office of Dean, Dental College and Hospital, Bambolim, Goa on payment of Rs. 100/-.
14. The Clause (5) of Part II of the prospectus deals with the procedure regarding the application for admission to the post-graduate M.D.S. degree course. It provides that the application for admission to M.D.S. Course should be addressed to the Dean, Goa Denial College and Hospital, Bambolirn, Goa. Sub-clause (3) thereof provides that such an application should:--
"(3) be accompanied by certified true copies of the testimonials and certificates required vide Clause (6) of Part II of this prospectus."
The sub-clause (4) thereof prescribes 23-1-1998 at 5 p.m. to be deadline for accepting the application forms.
15. The Clause (6) of Part II of the Prospectus enumerates certified copies of testimonials and the certificates to be attached with the application. The list consists of 6 items and it includes certificate of passing of B.D.S. Course; that of completion of compulsory paid Rotating internship; that of registration with the State Dental Council; that of members being belonging to Scheduled caste/Scheduled Tribe/other Backward class and that of inservice candidates and that of attempt for B.D.S. examination from the concerned university. It does not include any certificate of residency of a candidate.
16. The Clause (7) of Part II of the Prospectus deals with allocation of seats and it provides that out of the total 5 seats, three seats are in the speciality of Prosthodontics and two seats in the speciality of Orthodontics. It further provides that one seat in each of the specialities is reserved for inservice candidate who have completed 5 years of service and one seat out of total 5 seats is reserved for All India Entrance Exam. Candidate. II also provides that in case of vacancy, the same shall be filled up from the waiting list.
17. The Clause (8) of Part II of the Prospectus deals with method of selection and provides that the applicant to the post-graduate. M.D.S. Course in Goa Dental College and Hospital, Bambolim, Goa will be selected against at the seats classified in Clause (7) of Part II in the order of merit.
18. The form annexed to the Prospectus contains tabular format for giving details and particulars required to be submitted by the candidates seeking admission to M.D.S. Course. At the foot of the form, it provides list of certificates/testimonials to be enclosed and item No. 4 thereto reads thus:---
"(4) Certificate of 10 years residence in the State of Goa."
19. Considering the above details in the prospectus, it is apparent that the respondents have made elaborate provision concerning the procedure of admission to the M.D.S. Course. Particulars regarding each head have been separately and specifically enumerated in the prospectus and in that regard, as already pointed out above, eligibility criteria is clearly spelt out in the Clause (1) of Part II of the prospectus. Eligibility criteria speaks of two requirements, one regarding possession of the B.D.S. degree of the Goa University and the other regarding registration with the Goa State Dental Council. There is no other eligibility criteria provided for in order to enable the candidates to secure admission to the M.D.S. Course. That apart, Clause (5) of the Part II further makes detail provision regarding the manner in which the application form should be submitted for securing admission, as also for the accompaniments along with such admission form. Sub-clause (3) of Clause (5) clearly specifies that the form should be accompanied by certified true copies of testimonials and the certificates enumerated under Clause (6) of Part II of the prospectus. If one reads Clause (6) of Part II of the prospectus, as already stated above it does not include any certificate regarding residency of the candidate. The provision regarding eligibility criteria and the manner in which the application form is to be submitted and the enclosures to be submitted with such form have been specifically provided for in the prospectus itself. One is not required to take help of extraneous material to know as to what particulars are to be furnished to the respondents in order to secure admission to M.D.S. Course. The provisions in Clauses 1 and 5 of Part II which deal in detail regarding such process neither include any certificate of residency nor it provides for the requirement of 10 years residency in the State of Goa to enable the candidates to seek admission to the M.D.S. Course. In our opinion, it is not necessary to refer to the foot-note of the Form to find out the requirements regarding accompaniments of the form for the application to the M.D.S. Course. In fact, if one reads the form along with the provisions relating to eligibility and the accompaniments of the application form in the prospectus, it is clear that the contents of the foot-note in the application form relating to the copies of the certificates to be filed along with the form are not in consonance with the provisions contained in Clauses (1) and (5) of Part II of the prospectus. There can be no doubt that the form is part of the prospectus, however, it cannot override the provisions contained in the prospectus itself. It has to be in consonance with the provisions contained in the prospectus. It has been held by the Apex Court in the matter of Life Insurance Corporation of India v. Escorts Ltd. and others, that form cannot control the Act. It has been further clearly held by the Apex Court in the matter of M.S. Aphali Pharmaceuticals Ltd. v. State of Maharashtra and others, that the basic principle of law of interpretation is that in case of a conflict between the body of the Act and the Schedule, the former prevails. The Apex Court while dealing with the question of interpretation of the Act and the Schedule, has observed therein that the expressions in the Schedule cannot control or prevail against the express enactment and in case of any inconsistency between the Schedule and the enactment, the enactment is to prevail and if any of the Schedule cannot be made to correspond, it must yield to the Act. Considering the said observations by the Apex Court in the matter of interpretation of an Act and Schedule along with the observations of the Apex Court in the matter of Life Insurance Corporation of India v. Escorts Ltd., and others (supra) wherein their Lordships have clearly held that the form cannot control the Act, the Rules or the Directions, it can safely be concluded that since the Item No. 4 in the foot-note of the application form appended to the prospectus is not consistent with the provisions relating to eligibility criteria clearly specified in Clause (1) of Part II of the prospectus, read with the enumeration of the certificates and the testimonials to be accompanied with the application, as provided in Clause (6) of Part II of the prospectus, the same cannot be construed as forming part of the eligibility criteria in the prospectus. Indeed, it is well said that it is the dog that wags the tail and not the tail that wags the dog. Certainly, the form is prescribed by the authorities to enable the candidate to furnish his details in a tabular manner. The information so furnished in a tabular manner will certainly come handy to the authorities while considering the competitive merits and demerits of all the candidates cannot control the main body of the prospectus which contains substantive provision relating to the eligibility criteria. Had it been the intention of the framers of the prospectus relating to the admission to the M.D.S Course in Goa Dental College to insist upon the residency Clause of 10 years, then certainly they would have included the same in the main body of the prospectus dealing with eligibility criteria for admission to the said course. The exclusion, therefore, clearly brings out the intention of the prospectus that such a condition was not intended to be insisted upon for securing admission to the said course.
20. As regards the decision of the Apex Court in the matter of Ajay Kumar Singh and others v. State of Bihar and others (supra) and in the matter of Anant Madaan v. State of Haryana and others (supra), relied upon by the Government Advocate, it is seen that they are of no assistance to the case in hand. Once the eligibility criteria, as disclosed in the prospectus, do not include the residency requirement, the question regarding percentage of reservation is of no relevancy for the decision in the matter, and as such, the said decisions are of no help to the respondents in the present case. Similarly, the decision of the Apex Court in the matter of Post Graduate Institute of Medical Education and Research etc. v. K.L. Narsimhan and another (supra) is also relating to the validity of reservation in the post-graduate speciality or super-speciality to medical courses. Since, we are not dealing with the said issue in the present case, the said decision renders no assistance to decide the matter in question. Similar is the case in relation to the decision of the Apex Court in the matter of Mohan Bir Singh Chawla v. Punjab University, Chandigarh and another (supra), sought to be relied upon by learned Advocate Shri Lotlikar for the respondent No. 4.
21. . Apart from the absence of any reservation clause on the ground of 10 years residency in the State of Goa in the eligibility criiteria for seeking admission to M.D.S Course in the Goa Dental College, it is undisputed fact that the Government had been invariably relaxing similar requirement in case of meritorious students seeking admission to the Post-graduate Courses in Goa Medical College all along in the past. No doubt, the post-graduate course in the Goa Dental College has been started this year only. Moreover, as rightly submitted by Shri Sonak, learned Advocate appearing for the petitioner, that itself may not be any justification as such for discriminating the candidates seeking admission to M.D.S. Course in the Dental College, from those seeking admission to the post-graduate courses in the Goa Medical College. Moreover, occasion for such discrimination does not arise at all in cases of the students seeking admission to M.D.S. Course in Goa Dental College in view of the fact that the prospectus does not prescribe any such requirement of residency of 10 years in the State of Goa to secure admission to the said Course
22. Since in our considered opinion the prospectus in question does not prescribe 10 years residency requirement as eligibility criteria to secure admission to the M.D.S.. Course in Dental College, therefore, we are not required to address to other points sought to be raised by the petitioner i.e. as to whether the provision regarding the said requirement is directory or mandatory and vires of such rule.
23. Before concluding, it may be noted that at the time of issuing the Rule in this petition on 10th March, 1998, while refusing the interim relief, we had clearly observed that the admission to the Post-graduate Course, if granted by the respondents pending the disposal of the petition, shall be subject to final decision in this petition and the candidates, if any selected for the said seats, shall be specifically informed that his or her admission shall be subject to the result of this petition. Accordingly, in view of the fact that the petitioner having been denied the admission solely on the ground of lack of 10 years of residency in the State of Goa and in view of our decision that there is no such requirement of residency to secure admission to the M.D.S. Course in the Goa Dental College and the respondents No. 1 and 2 having admitted the respondent No. 4 to the said course during the pendency of this petition after the said order, the admission granted to the respondent No. 4 is required to be quashed and set aside and the respondents No. 1 to 3 are required to be directed to consider the petitioner for admission to the Post-graduate Course i.e. M.D.S. Course for the academic year 1998-99 without applying any residency requirement.
24. In the result, therefore, the petition succeeds. The admission grained to the respondent No. 4 the M.D.S. Course in the Goa Dental College is hereby, quashed and set aside. The respondents No. 1 to 3 are directed to forebear from applying the 10 years residency clause in case of the petitioner and further to consider the case of the petitioner for admission to the said course for the academic year 1998-99 on merits in terms of the provisions contained in the prospectus. The respondents No. 1 and 2 shall pay costs of Rs. 1,500/- to the petitioner.
25. At this stage, learned Government Advocate Shri H.R. Bharne, prays for stayof operation of the judgment, just pronounced, for a period of four weeks. In support of his contention, he sought to rely upon the judgment of the Apex Court in the matter of Chandigarh Administration and another etc. v. Manpreet Singh and others etc., . A similar request is made by learned Advocate Shri S.D. Lotlikar appearing on behalf of the respondent No. 4.
26. . In the facts and circumstances of this particular case, we are not inclined to grant stay. The decision cited by learned Government Advocate is distinguishable on the facts and circumstances of that particular case. Accordingly, prayer for stay of the operation of the judgment is rejected. Certified copy expedited.
27. Petition allowed.