Rajasthan High Court - Jaipur
Dr Reshma Reja And Anr vs State (Medicaland And Health)Ors on 29 July, 2013
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER 1.SB Civil Writ Petition No.9774/2013 Dr Gyan Prakash Gaud & ors versus State of Rajasthan & anr 2.SB Civil Writ Petition No.10186/2013 Dr Neha Gupta versus State of Rajasthan & anr 3.SB Civil Writ Petition No.10197/2013 Dr Reshma Reja & anr versus State of Rajasthan & anr 4.SB Civil Writ Petition No.10198/2013 Dr Sangeeta Khyalia versus State of Rajasthan & anr 5.SB Civil Writ Petition No.10202/2013 Dr Mukesh Kumar Bhupesh versus State of Rajasthan & anr 6.SB Civil Writ Petition No.10204/2013 Dr Jigyasu Joshi & anr versus State of Rajasthan & anr 7.SB Civil Writ Petition No.11312/2013 Dr Mahesh Upadhyaya versus State of Rajasthan & anr 8.SB Civil Writ Petition No.12382/2013 Dr Vandana Meena versus State of Rajasthan & anr Date of Order : 29th July, 2013 HON'BLE MR. JUSTICE MN BHANDARI Mr Tanveer Ahmed for petitioners Mrs Shruti Dixit, Addl. Government Counselfor respondents BY THE COURT:
These writ petitions pertain to admission in Post Graduate Medical courses.
The respondents issued an advertisement for admission to various PG Medical & Dental Degree/ Diploma courses.
The grievance of the petitioners is regarding non-compliance of Ordinance 278-E (II) (d) of the University of Rajasthan (Examination - Faculty of Medicine and Pharmaceutics, Bachelor of Medicines and Bachelor of Surgery), which provides that all in-service Teacher (Senior Demonstrator), selected by the Rajasthan Public Service Commission be allowed automatic registration in post graduate studies in the same subject in which they are selected. The respondents were providing automatic registration of Senior Demonstrator till last year but denied the same benefit this year in violation of Ordinance 278-E. The automatic registration is provided under Ordinance 278-E (II) (d) for PG course towards non-clinical side. In the instant case, respondents are giving admission to PG course in clinical/ non-clinical based on National Eligibility cum Entrance Test (for short 'NEET') held by the Medical Council of India (MCI). It is in ignorance of Ordinance 278-E as referred to above. Thus, directions may be given to the respondents for automatic registration of the petitioners for PG Degree/ Diploma course. It is in view of the fact that they are in-service candidates (Teacher Senior Demonstrator) selected by the RPSC.
Learned counsel for respondents, on the other hand, submits that admission to PG course can now be as per the Postgraduate Medical Education Regulations, 2000, as amended in the year 2010 and 2012 (for short 'the Regulations of 2000'). The Regulations were amended by the Postgraduate Medical Education (Amendment) Regulations, 2010 (Part-II). As per clause 9, under the heading Procedure for selection of candidate for Postgraduate courses, single eligibility cum entrance examination namely National Eligibility-cum-Entrance Test is provided and, now as per sub clause (III) of clause 9, admission to PG course can be made from and amongst those qualified in the NEET. Accordingly, Ordinance 278-E cannot be given effect in violation of the Regulations of 2000 of the MCI, as amended in 2010 and 2012. The amendment aforesaid was brought in the month of December, 2010 thus prior to it, admissions to PG courses were made as per the University Ordinance. In the light of the aforesaid, the prayer of the petitioners to give automatic registration in PG course, cannot be allowed. The government is, however, come out with an order that after completion of counselling, if any seat is left vacant towards non-clinical side then it would be given to Senior Demonstrator.
I have considered rival submissions of the parties and perused the record of the case.
The controversy in the present matters is regarding violation of Ordinance 278-E of the University of Rajasthan. For ready reference, aforesaid Ordinance is reproduced hereasunder -
O-278-E (I) Total Number of Seats .....
(II) Reservation :
(a) (b) and (c ) .....
(d) All in service Teacher (Senior Demonstrator) selected by the RPSC be allowed automatic registration in post graduate studies in the same subjects in which they are selected.
The perusal of the Ordinance aforesaid, no doubt, provides for automatic registration of in-service Teacher (Senior Demonstrator) and claim of the petitioners is based on the aforesaid Ordinance. The issue, however, does not end here inasmuch as the Medical Council of India came out with the Regulations for admission to PG course by framing Postgraduate Medical Education Regulations in 2000 and those Regulations were amended in the year 2010 and 2012. Therein, amendment was made in clause 9 by adding sub-clause or provisos. Sub clause (III) of clause 9, under the heading Selection of Postgraduate Students, as amended vide Notification dated 21.12.2010, after substitution, reads as under -
In order to be eligible for admission to any postgraduate course in a particular academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in National Eligibility-cum-Entrance Test for Postgraduate course held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, the minimum marks shall be at 40th percentile. In respect of candidates as provided in clause 9 (II) above with locomotory disability of lower limbs, the minimum marks shall be at 45th percentile. The percentile shall be determined on the basis of highest marks secured in the All-India common merit list in 'National Eligibility-cum-Entrance Test' for Postgraduate courses:
Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test held for any academic year for admission to Post Graduate Courses, the Central Government in consultation with Medical Council of India may at its discretion lower the minimum marks required for admission to Post Graduate Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only.
The perusal of the Regulations quoted above shows that in order to be eligible for admission to any postgraduate course, it would be necessary for a candidate to obtain minimum 50th percentile in NEET. Relaxation is however given to the SC/ST/ OBC candidates. The proviso, however, gives liberty to lower down minimum marks in the appropriate cases. In the light of the aforesaid, admission to the PG course cannot now be made ;as per the Ordinance 278-E of the University Ordinance. It is in view of the fact that as and when there is a repugnancy in Central vis-a-vis State enactments, what will prevail is the central legislation in view of Article 254 of the Constitution of India provided central legislation is made in its competence i.e. by virtue of Concurrent list. The medical education comes at item No.25 of the Concurrent list. In view of the above, what will prevail is the central enactment if the State enactment is repugnant thereto.
By virtue of sub-clause (III) of clause 9 of the Regulations, a candidate can become eligible for admission to any of the postgraduate courses if he has obtained minimum 50th percentile in NEET. The petitioners herein have not appeared in NEET but praying for their automatic registration, which cannot be permitted in derogation to the MCI Regulations and pursuant to Ordinance 278-E (II) (d) of the University of Rajasthan.
It is, no doubt, true that provisions to hold NEET and other provisions have recently been struck down by the Hon'ble Apex Court but the admissions in question have been saved. Accordingly, a direction to comply Ordinance 278-E of the University of Rajasthan cannot be given de hors the Regulations of 2000, as amended in the year 2010 and 2012.
It is, however, necessary to refer to the order dated 10.7.2013 issued by the Chairman, PG Medical and Dental Counselling Board-2013 that if any seat remain vacant after counselling, Sr Demonstrator would be given registration on availability of vacant seat after completion of final round counselling as High Court has also instructed to prepare a list of Senior Demonstrators working in different colleges in different subjects.
In view of above, while not accepting the prayer in reference to the Ordinance 278-E, I dispose of the writ petitions with directions to the respondents to not only complete the counselling but to complete the admission by 30.7.2013 so that if any seats remain vacant, it can be offered to Senior Demonstrator based on seniority and subject to availability of branch. The process aforesaid should be completed by 31.7.2013.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-JW