Gujarat High Court
Sandipkumar Natvarlal Naik vs Gujarat University on 31 March, 2004
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 2251 of 2004
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SANDIPKUMAR NATVARLAL NAIK
Versus
GUJARAT UNIVERSITY
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Appearance:
1. Special Civil Application No. 2251 of 2004
MR N.D. NANAVATI LD. SR. COUNSEL WITH MR. GM JOSHI
for Petitioner No. 1-9
MR. B.P. TANNA LD. SR. COUNSEL for TANNA ASSOCIATES
for Respondent No. 5 to 11
MR. S.I. NANAVATI, LD. SR. COUNSEL WITH MRS VD NANAVATI
for Respondent No. 1
MR. DIPEN DESAI, AGP, for Respondent No. 2
MR S.N. SHELAT, LD. ADVOCATE GENERAL WITH MR. MITUL K
SHELAT for Respondent No. 3
Respondent Nos. 4,12,13 are deleted.
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CORAM : HON'BLE MR.JUSTICE K.M.MEHTA
Date of Order: 31/03/2004
ORAL ORDER
Dr. Sandipkumar Natvarlal Naik and other petitioners have filed this petition under Articles 226 and 227 of the Constitution of India with a prayer that this Court may issue a writ of mandamus or a writ in the nature of mandamus or order quashing and setting aside the decision of the Vice Chancellor dated 12.2.2004 as reflected from the press note issued under the signature of the Registrar, giving direction to the office of the University to issue forms to the students seeking admission to Post Graduate Courses who would be completing their internship in September/October 2004 on various grounds raised in the petition.
2.The facts giving rise to this petition are as under:
2.1The petitioners are doctors who have passed Ist IInd and IIIrd year MBBS Examinations (Course) and after undergoing one year compulsory rotating internship, which is strictly as per the guidelines of the Medical Council of India, their names were registered in Part I register maintained by the Gujarat Medical Council.
2.2It is the case of the petitioner that on 5.12.1989 Government of Gujarat vide Government Resolution, Health & Family Welfare Department, dated 5.12.1989 framed Residency Rules for admission to 1st year residency (Post Graduate Course) which are required to be made by the respective Colleges once a year in September.
2.3The petitioners have relied on the provisions of Indian Medical Council of India Act, 1956. Section 33 of the Medical Council of India Act provides power to frame Regulation with previous sanction of the Central Government. These Regulations are known as "Regulation on Graduate Medical Education, 1997". It is the case of the petitioners that as per the judgement of the Hon'ble Supreme Court of India in the case of Medical Council of India Vs. Madhu Singh and others reported in 2002(7) SCC 258 the Supreme Court has decided certain issues regarding admission to medical course. It has been stated that in view of the aforesaid judgement the Medical Council of India in consultation with the Government of India directed all concerned including respondent No. 1 i.e. Gujarat University to fix a time schedule for admission to Post Graduate Medical Courses.
2.4It is is the case of the petitioner that respondent University published a Schedule for holding examination and counseling. As per Rule 1.3 of the Admission Rules issued by the Gujarat University stipulates a condition that one who is possessing the degree of MBBS after successful completion of one year compulsory internship can apply for the same, which is in accordance with the Rule 8.3 of the Post Graduate Medical Education Regulations 2000.
2.5It is the case of the petitioner that on 12.2.2004 the Vice Chancellor of the University issued a communication in respect of admission to Post Graduate Medical Admission and has relaxed the condition. As per the said communication the students who are going to complete one year compulsory rotating internship in September/October 2004 are eligible to obtain examination form and submit the same for admission to the Post Graduate Courses.
2.6Being aggrieved and dissatisfied with the said action, the present petitioners have filed this petition before this Court on 19.2.2004.
2.7It is the case of the petitioners that one who has yet to complete internship in September/October 2004 will not be eligible as he is not considered to have obtained a Degree, as certificate of Degree will be given only after completion of one year compulsory internship.
It is the case of the petitioners that when the Medical Council of India has formulated guidelines in the form of Regulations, the Vice Chancellor has no power to relax or waive any conditions.
3.On behalf of the petitioners I have heard Mr. N.D. Nanavati, ld. sr. counsel with Mr. G.M. Joshi, learned advocate. On behalf of respondent No. 1, Gujarat University, I have heard Mr. S.I. Nanavati, ld. sr. counsel with Mrs. V.D. Nanavati, learned advocate. On behalf of Medical Council of India, respondent No. 3, I have heard Mr. S.N. Shelat, learned Advocate General with Mr. Mitul Shelat, learned advocate. On behalf of respondent Nos. 5 to 11, I have heard Mr. B.P. Tanna, ld. sr. counsel. On behalf of the State of Gujarat Mr. Dipen Desai, learned A.G.P. appears. Respondent Nos. 4, 12 and 13 are deleted. Mr. N.D. Nanavati, learned sr. counsel for the petitioners, has stated that respondent Nos. 5 to 11 are the students who are likely to complete internship by September/October 2004. Only after that they will be able to appear in the examination of Post Graduate Degree. It is fact situation that respondent Nos. 5 to 11 in the present petition are petitioners who had identical case had filed in a writ petition under Article 32 of the Constitution of India being Writ Petition No. 128 of 2004 filed by Patel Kavesh Jashubhai and others before the Hon'ble Supreme Court. Those petitioners who are before the Hon'ble Supreme Court who are also students and who are likely to complete their graduation in September/October 2004. In view of the same, the petitioners before the Hon'ble Supreme Court has stated in that petition that the petitioners before the Hon'ble Supreme Court are internees. It is their case that respondents have wrongly refused to consider petitioners' representation that also by relying on the decision of the Hon'ble Supreme Court in Madhu Sing's case (supra) where the deadline is 31.5.2004 and therefore they have filed petition before the Supreme Court. Before the Supreme Court on page 35 their prayers were as follows:
3.1A "By a appropriate writ, order or direction in the nature of mandamus or such other writ as this Hon'ble Court may deem fit to issue, direct the respondents to appropriately modify/amend the policy guidelines dated 14.5.2003 and letter of the MCI dated 31.10.2003/1.11.2003 in so far as the last date for making admissions to Post Graduate course for the Gujarat University in this Academic year i.e. 2004-05 is concerned."
3.1B "By appropriate writ, order or direction in the nature of mandamus or such other writ as this Hon'ble Court should deem fit in the facts of the case to be issue direct the respondents to fix 30th September, 2004 as the last date for making admissions to the Post Graduate Medical Course for Gujarat University for this year i.e. 2004-2005."
3.2Mr. Nanavati, ld. sr. counsel for the petitioners, has invited my attention to paras 9.11, 9.12 and 9.13 of the petition before the Hon'ble Supreme Court which are on pages 22, 23 and 24 of Annexure-AR-1 to the additional affidavit of Dr. sandipkumar N. Naik dated 31.3.2004. His contention is that this very things were pressed by the respondents before this Court and therefore the challenge before this Court by respondents who are petitioners before the Hon'ble Supreme Court is almost identical. Mr. N.D. Nanavati, learned counsel for the petitioners has also filed additional affidavit of Dr. Sandipkumar Natvarlal Naik in which it has been stated that the said matter is taken up before the Hon'ble Supreme Court on 29.3.2004 (Coram: Hon'ble Ms. Justice Ruma Pal and Hon'ble Mr. Justice Dr. A.R. Laxmanan). Mr. Rohinton Nariman, ld. sr. advocate and Mr. B.P. Tanna, ld. sr. advocate appeared for the petitioners. Mr. P. Chidambaram, ld. sr. advocate and Mr. S.I. Nanavati, ld. sr. advocate, appeared for the Gujarat University, Mr. K.N. Raval, Solicitor General appeared for the Union of India. Ultimately, the Supreme Court was not convinced and passed the order of dismissal on merits. Though the order has not been produced but in the affidavit the learned counsel has stated before me who had remained present before the Supreme Court.
3.3In view of the same, the following order is passed:
3.4Rule. The Gujarat University is directed that the persons who are not eligible for appearing at the examination to be held on 16.4.2004 as per the Medical Council of India Regulations read with Admission Rules of the University will not be allowed to appear in the examination to be held on 16.4.2004 for admission to Post Graduate Course.
3.5Rule is waived by the learned counsels for the respective respondents. The matter to be fixed for final hearing on 21.4.2004.
(K.M. MEHTA, J) (pkn)