Punjab-Haryana High Court
Unknown vs Date Of Decision : 24.5.2 on 24 May, 2011
Author: Mahesh Grover
Bench: Mahesh Grover
C.W.P. No.6333 of 2011 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
DATE OF DECISION : 24.5.2011
1. C.W.P. No.6333 of 2011
Dr.Pooja Gahlot and others v. State of Haryana and others.
2. C.W.P. No.6322 of 2011
Dr.Pankaj v. State of Haryana and others.
3. C.W.P. No.6168 of 2011
Dr.Parmender Kumar and others v. State of Haryana and
others.
4. C.W.P. No.6479 of 2011
Dr.Sandeep Chhabra v. State of Haryana and others.
5. C.W.P. No.6518 of 2011
Dr.Suresh Godara v. State of Haryana and others.
6. C.W.P. No.6630 of 2011
Dr.Ishwar Goyal and another v. State of Haryana and others.
7. C.W.P. No.8548 of 2011
Dr.Manisha Modi v. State of Haryana and others.
8. C.W.P. No.8575 of 2011
Dr.Rajeev Dabla &others v.Pt.B.D.Sharma University & others
C.W.P. No.6333 of 2011 -2-
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
Present:- Shri R.K.Malik, Senior Advocate with Ms.Renu Malik, Advocate
for the petitioners (in CWP Nos.6333,6168,6630 of 2011).
Shri Nilesh Bhardwaj, Advocate for petitioner(in CWP 6322/2011).
Shri P.S.Chauhan, Advocate for petitioner (in CWP 6479/2011).
Shri K.S.Dadwal, Advocate for the petitioner(in CWP 6518/2011).
Shri V.K.Jindal, Advocate for the petitioner (in CWP8548/2011).
Shri Vikas Chatrath, Advocate for the petitioner(in CWP8575/2011).
Shri Sunil Nehra, Senior D.A.G. Haryana.
Shri Ramesh Hooda, Advocate
Shri Sanjiv Sharma, Senior Advocate with Shri Saurabh Dalal,
Advocate.
MAHESH GROVER, J.
This order will dispose of C.W.P. Nos.6333,6322,6168,6479,6518, 6630,8548 and 8575 of 2011.
The petitioners are all Medical Graduates and have completed more than three years of service as Medical Officers with two years of service rendered in rural areas. They have also completed probation period successfully in terms of their appointment.
All of them are desirous to pursue their courses in MD/MS/PG DIPLOMA/MDS, for which Pt.B.D.Sharma University of Health Sciences, Rohtak issued a prospectus in which the last date for submission of the applications was prescribed as 24.1.2011.
The eligibility criteria required the aspirants to have completed 3 C.W.P. No.6333 of 2011 -3- years of service with two years in rural areas and should have completed probation period successfully so as to earn the right of consideration against the seats reserved for HCMS categories.
The petitioners claim that they were eligible to be considered against the HCMS category, but have been debarred from consideration in this particular category on account of Annexure P-3 which is a policy issued by the State of Haryana revising the criteria which by prescription now provided a person to have rendered 5 years of service, instead of 3 years so as to be eligible for consideration in the HCMS quota. The State policy is dated 31.3.2011 and is subsequent to the declaration of the result i.e. 3.3.2011.
The grievance of the petitioners is thus, confined to this narrow arena that once the prospectus prescribed the eligibility criteria as 3 years service the subsequent change effected by virtue of the policy dated 31.3.2011, was impermissible and it has deprived them of the right of consideration. Thus, the action of the respondents in effecting the change in the criteria is clearly hit by the observations made by the Full Bench of this Court in Amardeep Singh Sahota v. State of Punjab 1993(3) P.L.R. 212, as also the numerous other judgments of this Court which are given below :-
(1) Guru Ram Dass Charitable Trust v. State of Punjab and another, (2004) 136 P.L.R. 99, (2) Varghese Philip v. State of Kerala, 2004(1) K.L.T.581, (3) Paramveer Singh v. Punjab University, AIR 2000 PH 291.
The respondents, on the other hand, justified the introduction of the policy dated 31.3.2011 by which the candidates desirous of pursuing the Post Graduate Courses could be considered only if they have completed 5 years of regular satisfactory service including 2 years probation, out of which 3 years C.W.P. No.6333 of 2011 -4- service should be in one of the District Hospitals or a Sub-Divisional Hospital and 2 years service in rural area institutions. It is their contention that this does not amount to any change in the eligibility condition and since this criteria is confined only for HCMS doctors whose entry into the course is dependent upon a "No Objection" Certificate, the State is very well within its right to prescribe its criteria, more so, when all the HCMS doctors who are selected against this category, would be entitled to full pay and allowances, as this period is to be treated as period spent on duty. Furthermore, they are entitled to prescribe and lay down any such conditions which are necessary for the grant of No Objection Certificate especially when the instructions in question i.e. the instructions dated 31.3.2011 (Annexure -3) convey an acute deficiency of specialists in various streams. To justify their decision, reliance has been placed upon the observations by the Hon'ble Supreme Court in Rajiv Kapoor v. State of Haryana 2000(2) S.C.T. 514, wherein the decision in Amardeep Singh Sahota v. State of Punjab 1993(3) P.L.R. 212 (supra) was specifically considered, as also the Division Bench judgment of this Court in Dr.Asha Goel v. State of Haryana 1996(4) S.C.T. 66 and Dr.Suresh Kumar and others v. State of Haryana and others 2007(2) SCT 45.
I have heard the learned counsel for the parties and perused the material on record.
Undisputedly, the respondents had initially given out in the prospectus that for consideration in the HCMS category, a person should have (i) completed 3 years of service, (ii) should have completed probation period satisfactorily and should have rendered 2 years of service in rural areas. By virtue of the policy instructions dated 31.3.2011, it has now been stipulated as follows :-
"I. MBBS doctors will be eligible for doing Post Graduate Courses, both degree as well as Diploma, after completion of 5 years of regular satisfactory service including 2 years C.W.P. No.6333 of 2011 -5- probation, out of which, 3 years of service should be in one of the District Hospital or a Sub Divisional Hospital and two years in rural area institutions. Only the persons fulfilling this condition will be eligible for sponsorship against reserved seat in PGIMS Rohtak or other Government Institution, and against the open seats in the Government Colleges of Haryana or similar Government institutions anywhere else in the country.
Eligible persons of this category will be entitled to draw full salary as they were drawing and the period spent on the prescribed duration of course will be treated as service for all intents and purposes. However, they will not be entitled to the stipend, if paid by the institution. Such stipend if received will be deposited in the State Treasury."
The aforesaid clause is the one which offends the petitioners who say that they have now been declared ineligible to be considered against the HCMS quota and this change has been effected subsequent to the process having been initiated i.e. after the declaration of the result and also for the reason that it has not been given out in the prospectus, the same cannot be enforced qua the instant selection as it is contrary to the observations made in the various judicial pronouncements.
To evaluate the assertions and counter-assertions made by the respective parties, one would necessarily have to refer to the observations relied upon by both the sides and this exercise is akin to hair splitting for the reason that the judgments relied, propound the same principle, that terms of the prospectus cannot be deviated from, but yet in one of the judgments of the Supreme Court (Rajiv Kapoor's case supra), a fine distinction regarding the power of the State to C.W.P. No.6333 of 2011 -6- formulate and enforce policies governing admissions to reserved categories has been made.
A Full Bench of this Court in Amardeep Singh Sahota v. State of Punjab 1993(3) P.L.R. 212 observed as follows :-
"22. It may at this stage further be stated that notification dated July 13, 1992 goes contrary to the policy which was laid down for admission in the notification dated May 20, 1992 on the basis of which the prospectus had been issued to the students and students appeared for test on the basis of the policy laid down in the prospectus. The prospectus cannot subsequently be changed by the State Govt. to the detriment of the students to benefit certain other students. In Randeep Kaur v. State of Punjab and others, a Division Bench of this Court had an occasion to consider the value of a prospectus issued for admission to an entrance examination. It was held that eligibility for admission to a course has to be seen according to the prospectus issued before the entrance examination and that the admission has to be made on the basis of instructions given in the prospectus as the instructions issued have the force of law. We agree with the view taken by the Division Bench. Since the prospectus issued for admission to the 1992-1993 course in the medical college has the force of law and students appeared in the examination on the basis of instructions laid down in the said prospectus, it was not open to the State Govt. to issue contrary instructions and as such also the notification dated July 13, 1992 issued by the State Govt. is invalid in law."C.W.P. No.6333 of 2011 -7-
Likewise, in Varghese Philip v. State of Kerala 2004(1) K.L.T. 581, it was observed by the High Court of Kerala as follows :-
"7. In our view it is not permissible to change the eligibility criteria for admission to a course by modifying or amending the prospectus after the last date fixed for submission of applications. Such amendment or modification of the prospectus will have the effect of changing the eligibility criteria for admissions retrospectively. Admissions should be made based on eligibility criteria contained in the prospectus as it stood on the last date fixed for submission of applications. Changing the eligibility criteria after the last date fixed for submission of application, is unjust, unfair and arbitrary. Though, as per Clause XVII of the prospectus, the Government is competent to issue an executive order modifying the prospectus, the said power cannot be exercised to change the eligibility criteria after the last date fixed for submission of applications. The power to change the eligibility criteria after the last date fixed for submission of applications is capable of being misused in favour of an applicant or against an applicant, because,e o the last date fixed for submission of applications the identity and details of all applicants are known. With the knowledge of identity and details of the applicants, the eligibility criteria may be changed to make an ineligible person eligible or to make an eligible person ineligible or to improve the chances of selection of a person to the disadvantage of another as C.W.P. No.6333 of 2011 -8- happened in the present case. Such an arbitrary and unbridled power cannot be conceded to Government in the matter of admission of educational courses. In taking this view, we are supported by judgments of this Court in Writ Appeal Nos.864/ 2002, 985/2002 and 3058/2002.
8. In Ashok Kumar Sharma and others v. Chander Shekhar and another (1997) 4 SCC 18, the Hon'ble Supreme Court has held that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. In our view, the above principle is applicable in the case of change of eligibility criteria for admission to educational courses also. Having issued a prospectus calling for applications representing that the eligibility will be determined based on certain criteria, the Government is bound by such representation and the said eligibility criteria cannot be changed after the last date fixed for submission of applications."
This Court in Guru Ram Dass Charitable Trust v. State of Punjab and another, (2004) 136 P.L.R. 99, while noticing the observations made by the C.W.P. No.6333 of 2011 -9- Hon'ble Court in Rajiv Kapoor v. State of Haryana (supra), which is relied up[on by the learned counsel for the State of Haryana, concluded by making a fine distinction from the observations of the Hon'ble Supreme Court, to say that no change could be effected in the criteria once given out in the prospectus. For the purpose of reference, the relevant observations made by this Court are extracted here below :-
"41. Mr.Gupta, however, submitted that the prospectus was subject to alterations or modifications without any prior notice. Therefore, the petitioners cannot claim that the admission can only be based on the basis of the Notification dated 14.5.2003. He further submitted that even otherwise the prospectus is amenable to amendment at any stage before the admission process is completed. He further submitted that no equity could possibly arise in favour of the NRI candidates who were not even required to take the competitive entrance test. Mr.Gupta has also submitted that the proposition of law that the admissions have to be made on the basis of the prospectus issued prior to the test, is contrary to the law laid down by the Supreme Court. He relied on a judgment of the Supreme Court in Charles K.Skaria and ors. v. Dr.C.Mathew and ors. 11 A.I.R. 1980 S.C. 1230. In this case, at one stage, in paragraph 24 of the judgment, the Supreme Court has observed that the "Prospectus is not the scripture".
Thereafter, the learned counsel relied on a judgment of the Supreme Court in the case of Rajiv Kapor and ors. v. State of Haryana, J.T. 2000(3) S.C.635. He also relied on a judgment of the Supreme Court in Kamal Bhatia and others v. State of C.W.P. No.6333 of 2011 -10- Punjab and others, A.I.R. 2001 Supreme Court 117. Learned counsel also relied on Varinder Singh and ors. v. State of Punjab and ors., (1997-3) 117 P.L.R. 494(F.B.) and submitted that if the power to amend is reserved in the Prospectus and the amendment is made to the Prospectus, in pursuance of that power, then no exception can be taken by any party.
42. We are unable to accept the submission made by the learned counsel. The law has been settled by a string of authorities that the Prospectus is law for the academic session to which it relates.
43. ... ... ...
44. Thereafter in the case of Raj Singh v. The Maharshi Dayanand University and others (1994-2) 107 P.L.R.32 (F.B.), another Full Bench of this Court has affirmed the ratio of law laid down in the aforesaid two cases.
45. In the case of Rahul Prabhakar v. Punjab Technical University, Jalandhar and ors., (1997-3) 117 P.L.R. 13 (F.B.), after referring to the aforesaid cases, a Full Bench of this Court has held as follows :-
Thus, it is settled law that the provisions contained in the information brochure for the Common Entrance Test, 1997, have the force of law and have to be strictly complied with. No modification can be made by the Court in exercise of powers under Article 226 of the Constitution of India. Whenever a notification calling for applications, fixes date and time within which applications are to be received whether sent through C.W.P. No.6333 of 2011 -11- post or by any other mode that time schedule has to be complied with in letter and spirit. If the application has not reached the Co-ordinator or the competent authority, as the case may be, the same cannot be considered as having been filed in terms of the provisions contained in the prospectus or Information Brochure. Applications filed in violation of the terms of the brochure have only to be rejected.
46. Same proposition of law has been reiterated by Another Full Bench of this Court in the case of Indu Gupta v. Director of Sports, Punjab and another, 1994(4) R.S.J. 667.
47. The ratio of law laid down by a Full Bench of this Court would be binding on the Divison Bench. We are farther of the opinion that the Supreme Court in Rajiv Kapoor's case (supra), has not, in any manner, diluted or altered the ratio of law, that the prospectus is law for the purpose of Academic Sessions to which it relates. In the aforesaid case, after referring to the Full Bench in Amardeep Singh Sahota's case (supra), has observed in paragraph 10 of the judgment as follows :-
"10. The High Court in allowing the writ petition purported to follow an earlier judgment of the Full Bench of the very High Court reported in Amardeep Singh Sahota v. State of Punjab, (1993-2) 104 P.L.R. 212 (F.B.). On carefully going through that judgment, we find that the Full Bench did not doubt the competency or authority of the Government to stipulate C.W.P. No.6333 of 2011 -12- procedure for admission relating to courses in professional colleges, particularly in respect of reserved category of seats, but on the other hand, it specifically deprecated the decision to do away with the requirement of minimum marks criteria in respect of seats reserved for sports category and that too by passing orders after the examinations were held under a scheme notified in the prospectus. As a matter of fact the Full Bench, ultimately directed, in that case, that selections for admissions be finalized in the light of the criteria specified in the Government orders already in force and the Prospectus, after ignoring the offending notification introducing a change at a later stage.
48. These observations do not advance the case projected by Mr.Gupta. The Supreme Court noticed that the Full Bench had deprecated the decision to do away with the requirement of minimum marks criteria in respect of the seats reserved for sports category. The Supreme Court came to the conclusion that the Government orders which were under challenge in Rajiv Kapoor's case (supra) did not introduce for the first time either the Constitution of a Selection Committee or evolving the system of interview for adjudging the merits of the candidates in accordance with laid down criteria. The Supreme Court held as follows in paragraph 11 of the judgment :
"11. So far as the cases before us are concerned, the High Court, not only held that the Government order C.W.P. No.6333 of 2011 -13- dated 21.5.97 issued after the declaration of the results of the entrance examination held pursuant to the Prospectus issued for 1997, could not be followed but went a step further to hold that except the Prospectus in question nothing else could be looked into and that the Government orders had the effect of varying the criteria laid in the Prospectus in the matter of selections to the seats reserved for HCMS candidates. We are unable to appreciate this reasoning. The Government orders dated 21.5.1997, did not introduce, for the first time, either the constitution of a Selection Committee or evolving the system of interview for adjudging the merits of the candidates in accordance with the laid down criteria. It merely modified the pattern for allotment of marks under various heads from the total marks. Therefore, even if the modified criteria envisaged under the orders dated 21.5.1997 is to be eschewed from consideration, the earlier orders and the criteria laid down therein and the manner of assessment of merit by the Selection Committee after interview, were still required to be complied with and they could not have been given a complete go-bye, as has been done by the High Court."
49. A perusal of the aforesaid observations clearly shows that the Supreme Court proceeded on the basis that the notification dated 21.5.1997, did not introduce, for the first time, either the constitution of a Selection Committee or C.W.P. No.6333 of 2011 -14- evolving the system of interview for adjudging the merits of the candidates in accordance with the laid down criteria. It merely modified the pattern for allotment of marks under various heads from the total marks. The Supreme Court also observed that even if the modified criteria envisaged under the orders dated 21.5.1997 was not to be taken into consideration, the earlier orders were still required to be complied with and they could not have been given a complete go-bye as has been done by the High Court. This precisely is the ratio of law laid down by this Court in Ravdeep Kaur's case (supra) wherein it has been held that "the admission has to be made on the basis of instructions given in the prospectus as the instruction issued have the force of law." This ratio was approved in Amardeep Singh Sahota's case (supra). Therefore, we are of the opinion that the ratio of law down by this Court in Amardeep Singh Sahota's case (supra) is in consonance with the law laid down by the Supreme Court in Rajiv Kapoor's case (supra). The aforesaid observations make it clear that the prospectus would include the notifications issued by the Government. In the present case also, the prospectus included notification dated 14.5.2003. The petitioners are claiming that the admissions have to be made on the basis of the aforesaid notification which is part of the prospectus issued for the Academic Sessions 2003-2004. The ratio of the law laid down by the Supreme Court in Rajiv Kapoor's case (supra), has also been considered by a Division Bench of this Court in Kamal Bhatia's case (supra). In this C.W.P. No.6333 of 2011 -15- judgment, the Divison Bench held as follows :-
"6. ... Thus, the Supreme Court held that in addition to the prospectus the orders of the Government also governed the admission. It is, therefore, clear that controversy before the Supreme Court was not whether the criteria mentioned in the prospectus could be changed or not but was merely whether the orders of the Government could also be taken into account on an issue which had been left open in the prospectus. The Apex Court had merely disagreed with the findings of the High Court that the admission in question had to be made in terms of the stipulations contained in the prospectus issued by the University and in assuming that the Government had no authority to issue directions laying down any criteria other than the one contained in the prospectus. The Supreme Court had to deal with the issue whether the criteria mentioned in the prospectus could be changed subsequent to the holding of the test or not.
7. In the case in hand the specific concession given in the prospectus to the candidates admitted through LEET-99 is sought to be withdrawn after the entrance test has been already conducted and result thereof declared. This according to us is not permissible."
50. These observations of the Division Bench make it amply clear that the notification date 25.7.2003, is unenforceable for the Academic Sessions 2003-2004 as all the C.W.P. No.6333 of 2011 -16- candidates have completed the necessary formalities for seeking admission. As a result of the impugned notification, NRI quota candidates will not be able to seek admission in any of the Punjab Colleges. The final dates for making applications for admission has already passed. Therefore, we have no hesitation in holding that the respondents would be estopped from denying the admission to the candidates against the NRI quota, on the basis of the notification dated 25.7.2003. Their claim for admission will have to be governed by the Notification dated 14.5.2003 as incorporated in the Prospectus issued by the Baba Farid University, made available to the students from 26.5.2003.
51. This view of ours also finds support from the Division Bench judgment of this Court in the case of Mamta Bansal v. State of Punjab, 2002(1) S.C.T. 1030. In the aforesaid case also, the respondent-State of Punjab had tried to alter materially and in substance the earlier Notification dated May 25, 2001 which had been published in the newspaper in June 25, 2001. This notification had been issued by the Government for conducting the Punjab Medical Entrance Test, 2000 (PMET-2000) for admission to Medical Colleges. By the subsequent Notification dated 21.8.2001, it was provided as follows :-
"NOTIFICATION The 21st August, 2001 No.5/2001-5HB3/4304 - The Governor of Punjab is pleased to partial modify notification dated 25th May, 2001 issued C.W.P. No.6333 of 2011 -17- vide No.5/1/2001-5HB3/3009, dated 25.5.2001 to the extent the paragraph 8(1) and (b) wherein minimum marks to be obtained by the Schedule Caste/Schedule Tribe or the other Backward Classes as well as by Sports persons an physically handicapped persons have been prescribed. It has now been decided to withdraw these minimum qualifying marks so far as candidates belonged to Scheduled Caste/Schedule Tribe or other Backward Classes as well as Sports persons and handicapped persons are concerned. Now their eligibility will be determined as per the policy followed for admission for the academic sessions PMET 2000.
Dated Chandigarh Sd/- N.S.Rattan the 21st August, 2001 Principal Secretary to Government, Punjab Department of Medical Education and Research."
... ... ...
56. We are of the considered opinion that the aforesaid observations are fully applicable to the facts and circumstances of the present case. In fact the situation in the present case is worse. The Division Bench in Mamta Bansal's case (supra) was concerned with some ineligible candidates being made eligible. In the present case, eligible candidates have been made ineligible at a time when the admission process is complete. This action of the respondents cannot be sustained as it is wholly arbitrary, unreasonable, discriminatory, and therefore, clearly violative of the equality clause enshrined in Article 14 of the Constitution of India." C.W.P. No.6333 of 2011 -18-
Likewise, another Division Bench of this Court in Parmveer Singh v. Punjab University and others A.I.R. 2000 PH 291, while referring to both Amardeep Singh Sahota v. State of Punjab 1993(3) P.L.R. 212 (supra) and Rajiv Kapoor v. State of Haryana (supra), concluded that the prospectus issued for admission to a course of study has the force of law, and it was not open to the State Government to issue instructions contrary thereto and that Rajiv Kapoor v. State of Haryana (supra) does not overturn the decision of the Full Bench rendered in Amardeep Singh Sahota v. State of Punjab 1993(3) P.L.R. 212 (supra), the observations of the Full Bench are as follows :-
"2. We have heard counsel for the parties and are of the view that the writ petition deserves to succeed. There is no gainsaying the fact that the petitioner had filed his application for admission to the course along with the sports gradation certificate well within the prescribed time and it was complete in all respects. Respondent No.4, on the other hand, had applied for admission on 29.6.2000 which application though within time was not accompanied by the sports gradation certificate as required by clause 2.2.5.3 of the prospectus. This certificate on her own showing was produced by her on 18.7.2000 at the time of counselling. Since the application of respondent No.4 was not complete the same should not have been entertained in terms of the aforesaid clause of the prospectus no matter what the merit of the candidate was. May be the certificate C-II as produced by respondent No.4 was higher in grade than that of the petitioner but that would not entitle her to admission because the same was not produced along with the application. A similar question arose C.W.P. No.6333 of 2011 -19- before a Division Bench of this Court in Manish Nanda v. State of Punjab Civil Writ Petition No.12164 of 1996 decided on 11.9.1996. Petitioner therein applied for admission to an Engineering course and wanted the benefit of reservation for a sports person. As per the prospectus the sports gradation certificate issued by the Director of Sports, Punjab was to be produced for getting the reservation benefit under the Sports category. This certificate was not produced along with the application form though it was produced at the time of counselling. The action of the respondents in not admitting the petitioner therein was challenged before this Court and from the pleadings of the parties the question that arose for consideration was whether the requirement relating to the production of certificates mentioned in the prospectus by a particular time was directory or mandatory. The requirement of time was held to be mandatory and Chief Justice K.Sreedharan after referring to the Full Bench judgment of this Court in Amardeep Singh Sahota v. State of Punjab 1993(3) P.L.R. 212 observed as under :-
"We are bound by the said statement of law and we proceed on the basis that the provisions contained in the prospectus (admission brochure-cum-application form) issued by the respondents govern the rights of the petitioner. In this case, since the petitioner did not comply with the provisions of the said prospectus, inasmuch as he failed to submit attested copy of the sports gradation certificate along with application, the C.W.P. No.6333 of 2011 -20- same was liable to be rejected."
3. A similar question arose before a Full Bench of this Court in Sachin Gaur v. Punjab University, Patiala (1996) 1 R.S.J.1 :(AIR 1996 Punj & Har 109) wherein it was held "that there has to be a cut off date provided for admissions and the same cannot be changed afterwards." It was also held by the learned Judges that an institution has necessarily to fix a cut off date for admissions as non-fixation thereof would result in non-finalization of admissions for an indefinite period. It must, therefore, be held in the present case as well that the action of respondents Nos.1 and 2 in granting admission to respondent No.4 is illegal being contrary to the provisions of the prospectus and cannot be sustained.
4. Before concluding, we may refer to the latest judgment of the Supreme Court in Rajiv Kapoor v. State of Haryana (2000) 2 Serv LR 603 : (AIR 2000 SC 1476) to which reference was made by the respondents during the course of arguments to contend that the provisions contained in the prospectus are not sacrosanct and, therefore, the respondents were justified in entertaining the sports gradation certificate of respondents No.4 even after the last date of receipt of applications. We have carefully gone through the judgment of the Apex Court and are of the view that the learned Judges have not held that the provisions contained in the prospectus can be given a goby. In that case the dispute was in regard to admission to Post Graduate Degree and Diploma Courses in Medicines from amongst the Haryana Civil Medical service C.W.P. No.6333 of 2011 -21- candidates for the academic session 1997. This Court held that the instructions issued by the State Government on 21.5.1997 were in contravention of the prospectus and could not, therefore, be relied upon for granting admissions to the candidates. The Apex Court found that the order of 21.5.1997 was only in continuation of the earlier instructions issued on 20.3.1996 and 21.2.1997 which had not only been forwarded to the University for making entries in the prospectus but had been issued prior thereto which had to be followed for granting admissions to the candidates. The view of this Court in Amardeep Singh Sahota v. State of Punjab 1993(3) P.L.R. 212 (supra) that the prospectus issued for admission to a course of study has the force of law and that it was not open to the State Government to issue instructions contrary thereto has not been reversed. Rajiv Kapoor's case (AIR 2000 SC 1476) (supra) is entirely on different facts and does not advance the case of the respondents.
5. In the result, the writ petition is allowed and the admissions granted to respondent No.4 quashed. Respondents Nos.1 to 3 are directed to fill the resultant vacancy from amongst the candidates who applied for admission in the sports category on the basis of their merit in the sports grading. There will be no order as to costs."
Concededly, the decision in Rajiv Kapoor v. State of Haryana 2000 (2) S.C.T. 514 (supra) did not upset the Full Bench decision of this Court in Amardeep Singh Sahota v. State of Punjab 1993(3) P.L.R. 212 (supra), but C.W.P. No.6333 of 2011 -22- upheld the right of the State to issue policy instructions, as long as it did not negate or vary the terms of the prospectus and the Hon'ble Supreme Court thereafter expressed its mild displeasure to comment on the inept drafting and publication of the prospectus and then went to an express a desire that the prospectus should specifically adopt all amendments an lay down the entire scheme before inviting applications. Para-17 of the judgment is reproduced below :-
"17. The mess that has occurred leading to the present litigation seem to be more on account of the inept drafting and publication of the prospectus by the University and not properly carrying out the binding orders of the Government and too many orders passed from time to time, being allowed to stand piecemeal independently. The Government would do well in future to publish at the beginning of every academic year, even before inviting applications a compendium of the entire scheme and basis for selection carrying out amendments up-to-date and the prospectus also specifically adopting them as part of the prospectus, to avoid confusion in the matter of selections, every year."
The Hon'ble Supreme Court in Rajiv Kapoor v. State of Haryana 2000(2) S.C.T. 514 (supra) while upholding the right of the State to issue policy instructions, observed as follows :-
"9. In our view, the High Court fell into a serious error in sustaining the claim of the petitioners before the High Court that selection and admissions for the course in question have to be only in terms of the stipulations contained in Chapter V C.W.P. No.6333 of 2011 -23- of the Prospectus issued by the University. Such an error came to be committed in assuming that the Government had no authority to issue any directions laying down any criteria other than the one contained in the prospectus and that the marks obtained in the written entrance examination alone constituted proper assessment of the merit performance of the candidates applying for selection and admission. The further error seems to be in omitting to notice the fact the orders dated 21.5.1997, which came to be issued after the declaration of results of written Entrance Examination, even if eschewed from consideration the orders dated 29.3.96 and 21.2.97 passed in continuation of the orders of the earlier years, continued to hold the field, since the orders dated 21.5.97 were only in continuation thereof. Those orders dated 20.3.96 and 21.2.97 had, admittedly been forwarded to the University, with a request to make necessary entries in the Prospectus/syllabus.
10. The High Court, in allowing the Writ Petitions purported to follow an earlier judgment of the Full Bench of the very High Court reported in Amardeep Singh Sahota v. State of Punjab 1993(3) P.L.R. 212 (supra). On carefully going through that judgment, we find that the Full Bench did not doubt the competency or authority of the Government to stipulate procedure for admission relating to courses in professional colleges, particularly in respect of reserved category of seats, but on the other hand, it specifically C.W.P. No.6333 of 2011 -24- deprecated the decision to do away with the requirement of minimum marks criteria in respect of seats reserved for sports category and that too by passing orders after the examinations were held under a scheme notified in the Prospectus. As a matter of fact the Full Bench, ultimately directed in that case, that selections for admissions be finalized in the light of the criteria specified in the Government orders already in force and the Prospectus, after ignoring the offending notification introducing a change at a later stage.
11. So far as the cases before us are concerned, the High Court, not only held that the Government order dated 21.5.97 issued after the declaration of the results of the entrance examination held pursuant to the Prospectus issued for 1997, could not be followed but went a step further to hold that except the Prospectus in question nothing else could be looked into and that the Government orders had the effect of varying the criteria laid in the prospectus in the matter of selections to the seats reserved for HCMS candidates. We are unable to appreciate this reasoning. The Government orders dated 21.5.1997 did not introduce, for the first time, either the constitution of a Selection Committee or evolving the system of interview for adjudging the merits of the candidates in accordance with the laid down criteria. It merely modified the pattern for allotment of marks under various heads from the total marks. Therefore, even if the modified criteria envisaged under the orders dated 21.5.97 is to be eschewed C.W.P. No.6333 of 2011 -25- from consideration, the earlier orders and the criteria laid down therein and the manner of assessment of merit by the Selection Committee after interview, were still required to be complied with and they could not have been given a complete go-bye, as has been done by the High Court.
... ... ...
13. The fact that the list to be prepared on the basis of marks in written test had to be two and a half times the number of seats available in each category also is an indicator that it was not by itself, the final list of selection for admission to professional courses in a college. Even if there had been any default o the part of the University in properly specifying this aspect despite communication of the Government orders every time to the University with a direction to incorporate them in the prospectus/syllabus, the efficacy and binding force of the Government orders and the necessity to apply the criteria laid down therein to finally determine the merit of the candidates to be selected for admission against the seats reserved for HCMS candidates in terms of the criteria laid down in those orders cannot be overlooked or given up once for all. The prospectus as well as the orders of the Government in our view have to be construed in such a manner that the inter se merits of the service candidates are properly assessed on the basis of their credentials and performance in service and not merely of theoretical knowledge of the subject as in the case of non-service candidates belonging to the other categories. C.W.P. No.6333 of 2011 -26-
The construction placed by the High Court, if accepted may result in discrimination on account of applying different criteria of total marks for open candidates and in-service candidates without noticing the distinguishing features relevant for the purposes of assessment of merit in the case of HCMS candidates. We find no reason or justification to allow any deviation from the method of assessment uniformly followed in all the previous years for such selection. For all the reasons stated above, we have no hesitation in holding that the High Court committed a serious error in this regard which vitiates its judgment and the same is accordingly set aside. We hold that the merits of the HCMS candidates are required to be adjudged in terms of the criteria contained in the Government orders noticed above and the selections can be made for admission against the reserved seats, as per the determination of merit by the Selection Committee constituted for the purpose."
The Hon'ble Supreme Court, therefore, has clearly acknowledged the right of the State to issue policy instructions governing the process of admissions, but at the same time, has also acknowledged that the prospectus is required to contain the entire information including the relevant instructions which have any bearing on the process of admission.
The controversy, therefore, has to be seen in the perspective of the right of the State to issue policy instructions which do not find an expression in the prospectus and to enforce them at a date subsequent to the initiation of the process of admission and the impact it has on the persons seeking admission. Once it is C.W.P. No.6333 of 2011 -27- accepted that the State has a right to issue instructions, as has been observed in Rajiv Kapoor v. State of Haryana (supra), then it has to be considered as to whether the policy instructions of the State of Haryana were justified in the given set of circumstances.
It is to be noticed that the candidates for the HCMS seats being in service are required to obtain a No Objection Certificate from the Government of Haryana, the grant of which is not automatic and is dependent upon the decision of the State, but the admission to these seats against the HCMS quota is in the shape of sponsorship of a candidate for higher studies. A complete set of guidelines have been laid down for the issuance of the No Objection Certificate which is extracted here below :-
C. Sponsorship of candidates for higher studies against Reserved Seats :
Presently, a certain number of seats are reserved in the PGIMS, Rohtak for PG diploma/ PG Degree Courses for the in- service employees of HCMS. The case of in-service candidates for higher studies against reserved seats will be regulated as follows:-
1. Candidates keen to go in for higher studies for the PG Diploma/ PG Degree courses against the reserved seats will be required to apply for a "No Objection Certificate" to the competent authority before submitting their applications for admission to the said courses. Only those candidates will be considered for NOC under this category who fulfil the following conditions :-
(i) He/she must have completed the probation period successfully and completed 3 years regular service C.W.P. No.6333 of 2011 -28- under the State Government including the probation period out of which two years service should be in rural areas/service. However, the condition of rural service will not be applicable in the case of a member of HMES.
(ii) There should be nothing adverse against his integrity and efficiency.
(iii) His/her services can be spared by the employer for the duration of the course without adversely affecting the larger public interests.
(iv) In addition to the above, if a doctor has already studied for a PG Diploma course in any subject under the Government scheme as an in-service candidate, he she will be considered for grant of "No Objection Certificate" only for the PG Degree courses in that very discipline/subject provided that he/she will not be entitled to claim this facility under this policy unless he/she has completed the previous service bond.
(v) The in-service candidates, who already have a PG degree to their credit in any subject and want to do a diploma course in the same subject or any other subject, will not be considered for issuance of NOC."
A procedure has also been prescribed in this very policy regarding higher studies for doctors in the Department of Health & Medical Education and the policy of 2008 prescribes the procedure, the relevant portion of which is extracted here below :-
C.W.P. No.6333 of 2011 -29-
"B. Procedure :
The procedure for availing of the opportunity of higher studies under this policy would be as under :-
1. In the first instance, the doctor concerned shall have to apply for a "No Objection Certificate" (NOC) from his/her employer for submitting/forwarding his/her application to the Institution concerned for admission to the course of study.
2. Once the NOC is issued by the employer, the process of admission will be regulated in accordance with the admission rules of the Institution/ University concerned."
In the information regarding general conditions it has been laid down that permission to pursue higher studies to the in-service candidates is not a matter of right and is subject to the specific approval by the Government, which will depend on various factors. For the purpose of reference, the relevant clause as given out in the Policy dated 5.12.2008 under the Heading of General Information is extracted here below :-
A General :
1. HCMS/HMES doctors serving in connection with the affairs of the State Government in the Health Department and those serving in the PGIMS, Rohtak may be allowed to apply for and seek admissions in various academic courses leading to PG Diploma/PG Degree/Super Specialty Courses in their respective streams of Medical Profession and the entire period of the higher studies (PG Diploma/PG Degree/Super specialty C.W.P. No.6333 of 2011 -30- courses) will be treated as on duty with full pay and allowances.
2. Permission to pursue higher studies to the in-service candidates is not a matter of right. It will be subject to specific approval by the Government which will depend upon various factors e.g. possibility to spare one's services without adversely affecting the larger public interest, and according to the felt needs for specialists in various disciplines on the basis of a review carried out from time to time and other exigencies of service.
3. The basic condition for eligibility is three years regular service with successful completion of probation period out of which two years service is essential in rural areas for both reserved and open seats in the case of HCMS doctors.
However, the condition of rural service will not be applicable in the case of a member of HMES."
It has also to be noticed that this policy forms Annexure-D with the prospectus and the prospectus itself under the Heading "Method of Selection and Admission" clearly laid down "the conditions for NOC fixed by the Haryana Government vide letter No.2/123/05/1/HB/1 dated 5.12.2008 for HCMS who want to join PG Course are given at Annexure-D. However, latest Government instructions issued from time to time will be followed. The offending policy of 31.3.2011 is a policy governing the N.O.C. to a desirous candidate.
Thus, it is evident that the State had every right to prescribe a policy for the grant of N.O.C. especially when it was dealing with the cases of sponsorship of in-service candidates for higher studies. The State was committed C.W.P. No.6333 of 2011 -31- to bear the expenses for the selected HCMS candidates as such incumbents were entitled to full pay and the period spent by them in pursuing these courses was to be treated as being spent on duty.
The introduction of the policy also rests on a sound foundation, logic and rationale as it has been stated in clause-VI thereof that there is dire requirement of specialists in some of the streams which number 16 in all and it has further been stipulated in this very clause that "if any doctor after 5/3 years of services wishes to do PG courses in any the specialty, he will have to seek extraordinary leave without pay. His services, however, will be protected for the purpose of increment, seniority and pension". It is apparent, therefore, that the State was making an endeavour to have trained specialists in various streams. Clause VI is extracted here below :-
"VI. In Health Department, Haryana, there is a dire requirement of specialists in the following streams :-
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1. General Medicine 2. General Surgery
3. Obstetrics and Gynae 4. Pediatrics
5. Orthopedic Surgery 6. Anesthesia
7. Radiology 8. Pathology
9. Eye Surgery 10. Psychiatry
11. ENT Surgery 12. Forensic Medicine
13. Social & Preventive Medicine 14. Dental
15. Chest & TB and 16. Pharmacology.
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Under this policy doctors will be sponsored for higher studies with full pay, subject to other conditions in respect of these C.W.P. No.6333 of 2011 -32- aforementioned specialties only. If any doctor after 5/3 years of service wishes to do PG course in any other specialty, he will have to seek extraordinary leave without pay. His service, however, will be protected for the purpose of increments, seniority and pension. Such persons will also be entitled to stipend if available in the Institution."
The decision of the State Government therefore, cannot be faulted with in view of the fact that they have consciously chosen to invest in human resources in which they are deficient and for that, if certain criteria has been laid down which does not smack of allegations of mala fides, then the same cannot be negated.
The underlying principle in accepting the prospectus as sacrosanct and having the force of law is that the State may not indulge in nepotism especially in effecting the change of criteria subsequent to the issuance of the prospectus to grant inclusion to a few to the detriment and exclusion of the others.
This does not seem to be the case here. Neither have any allegations of mala fide been made, nor are they inferentially visible. The petitioners have not been excluded from the zone of consideration, but they have certainly been denied the consideration in HCMS Category. But if the decision of the respondent/State is construed in view of the observations that have been made above, for the reason that there is an apparent absence of an ulterior motive and for the reason that the reasoning is based on a rational foundation, and in view of the observations made by the Hon'ble Supreme Court in Rajiv Kapoor v. State of Haryana (supra), which clearly acknowledges the right of the State to formulate instructions and also in the light of the specific conditions laid down in Annexure-D, binding the petitioners to the latest government instructions, then the same cannot be faulted with. C.W.P. No.6333 of 2011 -33-
Further, as noticed earlier there was no inherent right conferred upon the petitioners to pursue their higher studies. It was contingent upon the grant of a No Objection Certificate which again was not automatic. One may question as to of what value is a right if it is contingent upon the discretion of the other, as it would remain a hostage to the discretion of the other unless released from the bondage.
Consequently, the assertion of the petitioners has to be negatived. It has also been brought to the notice of this Court that the petitioners have been granted N.O.C. on 4.4.2011 and are likely to be considered against the open category.
For the reasons given above, I am of the opinion that the writ petitions are without any merit and do not warrant any interference.
C.W.P. Nos.6333,6322,6168,6479 and 6518 are thus, dismissed. C.W.P.6630 of 2011 The facts of the instant writ petition are slightly different from the ones which have been given out in C.W.P. No.6333 of 2011. In this case, the only distinction is that the petitioners had applied pursuant to the prospectus issued by the respondents and the last date for admission was 22.1.2011. The petitioners took the examination on 5.2.2011 and their result was declared on 12.2.2011. They were granted the admission in MDS Course in Maharishi Markandeshwar University, Mullana and they paid an amount of Rs.6,50,000/- each as the requisite fee on 31.3.2011. The policy which came into existence is now to the detriment of the petitioners in this writ petition, as it deprives them of the pay and allowances which they would have been entitled to, had they been sponsored by the State as a HCMS candidate. The petitioner pleads promissory estoppel.
On due consideration of the matter, I am of the opinion that in view of the reasons that have been given in C.W.P. No.6333 of 2011 that pursuing C.W.P. No.6333 of 2011 -34- higher studies by an in-service candidate was not a matter of right, and was subject to the specific approval of the Government, which may depend on various factors, would debar the petitioners from raising the plea of promissory estoppel, as such a sponsorship was very well within the discretion of the respondents to have denied or accepted and the petitioners have not demonstrated in this petition that the State had acquiesced to the petitioners pursuing the higher studies.
Consequently, C.W.P. No.6630 is also dismissed.
C.W.P. Nos.8548,8575 of 2011 The short controversy involved in these petitions is as to whether the petitioners were entitled to the benefit of 10 marks meant for Graduates of recognized Medical/Dental Colleges of Haryana. The very same process of selection is in question and therefore, the other facts are not required to be given separately. Suffice it to say that the prospectus contained the following criteria to be followed for determination of merit.
"6. DETERMINATION OF MERIT.
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(i) Written examination(two papers) 90 marks (45 marks each paper).
(ii) (a) Weightage for graduates of recognised 10 marks.
Medical/Dental Colleges of Haryana.
(b) Weightage for Haryana Domicile candidates 05 marks.
who have passed their qualifying examination to MBBS/BDS Courses i.e. 10+2 but have passed their MBBS/BDS from recognised Medical Colleges/Dental Colleges outside Haryana State.
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The contention of the petitioners is that they have not been awarded 10 marks which is admissible to the candidates from Dental/Medical Colleges of Haryana. During the course of arguments, learned counsel for the petitioners has C.W.P. No.6333 of 2011 -35- referred to the prospectus for the earlier years, where this very criteria for determination of merit was as follows :-
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DETERMINATION OF MERIT FOR OPEN SEAT (MD/MS/MDS/DIPLOMA COURSES)
(i) (a) Weightage for graduates of recognised Medical/Dental 10 marks Colleges of Haryana.
(b) Weightage for candidates who have passed their 05 marks qualifying examination to MBBS/BDS courses i.e. 10+2 from any Institution situated in Haryana but have passed their MBBS/BDS from recognised Medical Colleges/Dental Colleges outside Haryana State.
(ii) Written examination(two papers) 90 marks (45 marks each paper) NOTE:Weightage will be given to only those candidates who qualify the Entrance Examination by securing atleast 50% marks.
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The contention of the learned counsel for the petitioners is that weightage of 10 marks could not have been denied to them.
The respondents have filed their reply in which they have justified the denial of this weightage on the ground that the in-service candidates who are to be considered for HCMS Category, constitute a clause in themselves and that the weightage of 10 marks is meant only to be given to those candidates who compete in the open seats. It is their contention that the Haryana Government officers cannot be differentiated within the same category and if a person has acquired the MBBS Degree from some other University and is a part of the HCMS cadre, then for the purpose of consideration for pursuing higher studies, they cannot be discriminated vis-a-vis these candidates in this category.
It was however, candidly admitted by the respondents that this has C.W.P. No.6333 of 2011 -36- not been mentioned in the prospectus.
On due consideration of the matter, I am of the opinion that the petitioners cannot be denied the benefit of the criteria which has been specifically given out in the prospectus. It has been laid down that 10 marks are to be given to those who have acquired the degree of MBBS/BDS from Haryana. If the intention of the respondents was to the contrary, then it should have found an expression in the prospectus, as it did in the previous years.
In the absence of any such condition, the petitioners cannot be deprived of the weightage that they deserve as per the criteria specified in the prospectus.
C.W.P. Nos.8548 and 8575 of 2011 are, therefore, allowed and the petitioners are held entitled to the benefits claimed by them.
(MAHESH GROVER)
May 24, 2011 JUDGE
GD
WHETHER TO BE REFERRED TO REPORTER? YES/NO