Gujarat High Court
Ketankumar Gabubhai Patel vs Secretary, Dept Of Health And Family ... on 13 October, 2006
Equivalent citations: AIR 2007 (NOC) 696 (GUJ.)
Author: A.S. Dave
Bench: A.S. Dave
JUDGMENT A.S. Dave, J.
Page 2078 Heard learned Counsel for the appellant.
Considering the urgency of the issue and the controversy involved in this Letters Patent Appeal and in view of the no objection of the learned Counsels Page 2079 for the respondents if the appeal is heard finally, we have heard the appeal on merits finally and the same is being disposed of by this judgment and order.
1. This appeal under Clause 15 of the Letters Patent is preferred by the appellant petitioner No. 1 with a prayer to quash and set aside the judgment and order dated 24th July, 2006 passed by the learned Single Judge in Special Civil Application No. 9318 of 2006 to the extent that it denies benefit claimed in the petition with regard to direction to be issued to the respondent Nos. 2 & 3 to grant admission in Post Graduate Medial Course of respondent No. 2 University.
2. It is to be noted that Special Civil Application No. 9318 of 2006 was filed by in all five petitioners and out of them, only petitioner No. 1 has preferred this Letters Patent Appeal.
3. It is the case of the appellant that the appellant has completed his M.B.B.S course in February, 2005 and after completing his internship on 31.03.2006 from M.S. University, Baroda and appeared in Post Graduate Medical Course entrance test and fulfilled eligibility criteria prescribed by the respondent No. 2 and 3. The appellant secured 54 % marks in qualifying test conducted by the Saurashtra University and called for interview on 17.04.2006 and was placed at Serial No. 5 in category of Scheduled Tribes and only one student was found eligible from the Scheduled Tribe category from Saurashtra University.
4. It is the case of the appellant that though Admission Rules which are in force from 01.01.2006 governing the admissions in Post Graduate Degree and Diploma Medical Course, the appellant denied admission in the P.G. Degree Medical Course in violation of Rule 5.0 and 5.3 of the above Admission Rules. The appellant, therefore, immediately made representations to the respondent No. 2 - Vice Chancellor of Saurashtra University, respondent No. 3 - the Chairman of Post Graduate Admission Committee, Saurashtra University and ventilated his grievance that admission granted by the respondent University by converting the reserved quota seats for Scheduled Caste/Scheduled Tribe category into General Category and thus, admissions granted to the general category students are de-hors the Admission Rules and whole admission procedure either required to be kept in abeyance and re-start afresh as per the rules. It is required to be noted that above representations were made immediately by the appellant on the very same day when the seats reserved for reserved class category students came to be converted into general category and admissions were granted on 17.04.2006. Even representations were made to the concerned authority of the State Government including the Principal Secretary, Health and Family Welfare Department and all other authorities. Since the grievance were not ventilated, the appellant was compelled to file Special Civil Application No. 9318 of 2006 and upon issuance of notice, affidavit-in-reply came to be filed by the respondent No. 2 University, Ex-Chairman of Post Graduate Admission Committee Saurashtra University and also by the private respondents who were likely Page 2080 to be affected by the outcome of the proceedings of the writ petition preferred by the petitioners.
5. After considering the rival submissions, factual aspects, affidavit-in-replies and Admissions Rules for the Post Graduate Degree Course in Medical, the learned Single Judge upheld the contentions of the petitioner and in para-27 of the oral judgment observed and concluded that the respondent Nos. 2 & 3 i.e. Saurashtra University and the P.G. Admission Committee committed a legal error in filling up unfilled reserved vacancies through open category candidates from Saurashtra University and such seats ought to have been offered to other students passing out from Universities located in the State of Gujarat and who belong to such reserved categories. However, on the ground of equity and considering the submissions of the affected private parties, the learned Single Judge has denied benefit to the petitioner of granting admission to the P.G. Degree in Medical Course.
6. Learned Counsel for the appellant has contended that the reasoning of the learned Single Judge in denying consequential relief to the effect that for the present academic year, the case of the petitioner-appellant is not to be considered but for the next academic year, the same can be considered and procedure found by the learned Single Judge to be applied only in the next academic term, is contrary to the law laid down by the Apex Court in the decision reported in AIR 1983 580 in the case of Punjab Engineering College, Chandigarh v. Sanjay Gulati and Ors.
7. It is further contended that since the contentions of the petitioner are upheld and conversion of seats to be filled by the reserved class candidates to open and/or general category is not permissible and action of the respondent University is declared as illegal, a case is made out by the appellant for getting consequential relief and accordingly, appropriate direction be given to the respondents authorities to implement Rule 5.0 and 5.3 of the Admissions Rules. It is further submitted by the learned Counsel for the appellant that the appellant is qualified student in reserved category who has passed M.B.B.S. Examination and completed one year internship from a recognized medical college of M.S. University, Baroda and also qualified for the entrance test conducted by the respondent University and found to be eligible, ought to have been given his due in reserved category. However, denial of admission on the ground of equity or adverse effect on the rights of the private respondents who is admitted qua the appellant, ought not to have been deterred the learned Single Judge from granting consequential relief in exercise of the powers under Article 226 of the Constitution of India. Such denial, according to the learned Counsel for the appellant, amounts to granting a premium to misdeed of the University which has resulted into denial of rightful claim to the candidate belongs to the Scheduled Tribes and making purpose of admissions rules for P.G. Admission infructuous.
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8. Learned Counsel appearing for the appellant has relied upon the decision of the Division Bench of this Court in the case of Vinodkumar Rasiklal Vahoniya v. University of Bhavnagar and Ors. wherein Division Bench of this Court was pleased to strike down Rule framed by Bhavnagar University which permitted the University to de-reserve such vacancies. This Court in the aforesaid decision has held by declaring de-reservation rules framed by the University by which the seats belong to reserved category were converted into un-reserved category and action of the University was declared ultra-vires and unconstitutional.
9. Per contra, Shri J.R.Nanavati, learned Senior Counsel for the respondent No. 2 and 3 i.e. University and P.G. Admission Committee of the respondent University has contended that institutional preference is always permissible and the University has not committed any illegality since the meritorious students from the same University is granted admission in P.G. Degree Medical Course. He has relied upon affidavit-in-reply filed by Ex-chairman of the P.G. Admission Committee of the Saurashtra University and the averments made therein. However, when a pertinent query was raised by the Court about any decision taken by the University to challenge the finding of the learned Single Judge in Para-27 of the impugned judgment about committing a legal error in filling up unfilled reserved vacancies through open category, learned Counsel for the respondent University replied in negative.
10. No other defense was raised on behalf of the respondent University in P.G. Admission Committee of the respondent University.
11. Ms.Maharook Kerawala, learned Counsel appearing on behalf of the private respondents No. 4 to 7 has contended that denial of relief by the learned Single Judge to the appellant is based on the ground of equity so as not to disturb the admission secured by the meritorious candidates, for which, no fault can be attributed to him. Since, no disclosure was made by the University or Admission Committee about seat on which the respondent No. 8 secured admission in P.G. Degree Medical Course belonging to reserved category or not and admission granted to the respondent No. 8 having highest rank amongst the students in Saurashtra University need not require to be disturbed. She has further submitted that since outer line for completing the admission for P.G. Medical Course as fixed by the Medical Council of India has come to an end, it would be impossible for the respondent No. 8 to get admission anywhere, which may result into irreversible situation. No other submissions canvassed made by the respondents.
12. Having heard learned Counsel appearing on behalf of the parties, perusal of the record and relevant admission rules with regard to the admission to the P.G. Medical Course framed by the respondent University which has come into force from 01.01.2006, which reads as under:
1. To appreciate and to resolve the controversy, provisions contained in Admission Rules as well as those contained in Government circulars pertaining to Rules of Residency need to be noted.
Page 2082 Rule 1 of the Admission Rules provides for eligibility criteria for admission to the Post Graduate Degree and Diploma Medical courses affiliated to medical college/institutions of Saurashtra University.
Rule 1.2 inter-alia provides that to be eligible for the above course, the candidate must have completed the recognised MBBS or equivalent course and compulsory rotating internship on or before 31st March of the concerned year.
As per Rule 1.4, a candidate who is currently engaged in P.G. Medical studies in any University shall not be eligible to seek admission.
Rule 1.8 of the Admission Rules provides inter-alia that the candidate has to appear in entrance test for admission to Post-Graduate Medical Courses held by the Saurashtra University and shall have to secure at-least 50% marks in entrance test. Such requirement is reduced to minimum of 40% of marks in case of reserved candidates belonging to SC, ST and SEBC. Rule 1.8 of the Admission Rules reads as follows:
1.8 A candidate has to appear in entrance test for admission to Post-Graduate medical courses (M.S./M.D./Diploma) held by the Saurashtra University and should have to secured atleast 50% marks in entrance test for candidates claiming admission on general category seats and atleast 40% marks in entrance test for candidate claiming on reserve category seats (i.e. SC,ST,S.E.B.C.). Reserve category candidate securing more than 40% but less than 50% in entrance test will not be eligible for general category seats even if seats are vacant.
Rule 1-A provides that admission shall be decided by the P.G. Admission Committee. The constitution of the Committee is also provided in the said Rule.
Rule 2.0 of the said Rules provides for 50% seats to be filled up on the basis of All India Competitive Entrance Examination. The remaining seats are made available for the candidates passing from Saurashtra University in accordance with Rule 4.1 and Rule 4.2 and the students passing from other statutory universities within Gujarat State would be considered as per their merits in accordance with Rule 4.3 and Rule 4.4. Rule 2.0 of the Admission Rules read as follows:
2.0 As per directive of Hon'ble Supreme Court of India 50% of the total available seats in an academic year in various Post -Graduate Degree and Diploma courses in each subject will be filled up on the basis of 'All India Competitive Entrance Examination for admission of Post-Graduate Medical Courses (M.S./M.D./Diploma).
The remaining seats will be available for the candidates passing from Saurashtra University in accordance with Rule 4.1 and Rule 4.2. The students passing from other statutory universities within Gujarat State will be considered as per their merits in accordance with Rule 4.3 and, Rule 4.4.
Page 2083 Other relevant rules of the Admission Rules read as follows:
2.1 In case the seats reserved in Rules 2.0 remain vacant because of non-availability of candidates, the same will be treated as local University quota seats.
3.0 Remaining 50%(or more) of total seats after Rule 2.0 in Post-graduate courses will be filled up by the SP.G. Admission Committee" of this University.
3.1 For the purpose of admission the selection will be done once in each academic year. Academic year 1st May to 30th April of Next year.
4.0 Selection: Selection of candidates eligible under Rule 1 for seats under Rule 2.1 and 3.0 will be done category wise on the basis of merits as laid down herein further.
4.1 Preference shall be given to candidates of not more than three years standing after completion of internship/Houseman ship, graduating from Saurashtra University on the date of interview and who have not availed of three opportunities for admission of the P.G. after completion of internship/houseman ship graduating from this University. Both the conditions are required to be satisfied by the candidates.
4.2 After the merit list prepared under Rule 4.1 is exhausted the candidates who have completed internship more than three years standing and graduate up to three years standing who had availed three opportunities for P.G. admission on date of interview, will be considered provided that they all have taken M.B.B.S. Degree from the Saurashtra University.
4.3 Candidates graduating from any other University located in Gujarat State and who have completed internship not more than three years will be considered after selection of candidates in the merit list as per Rule 4.2. Such category of reserved students referred to in Rule 5 from amongst the candidates graduating from other Universities within the State of Gujarat and completed one year internship will be considered in respect of balance of seats left unfilled after the operation of Rule 4.2 as per Rule 5.3.
4.4 After operation of Rule 4.3 the candidates graduating from other University located in Gujarat State who have completed internship more than three years will be considered.
4.5 Any vacancy after operation of Rule 4.4 shall remain unfilled, however, this provision may be relaxed in the subjects of Anatomy, Physiology, Bio-chemistry, Forensic Medicine, Preventive and Social Medicine, Pharmacology, Pathology and Microbiology only at the discretion of University, only for the candidates graduating from out state University (with permission of the Govt. of Gujarat).
4.6 The candidates will be given a choice of subject according to his/her merit level. He/She will have to choose Registration with Page 2084 Residency out of the available choices in different subjects at his/her merit level. No student shall be given P.G. Admission without Residency (or higher post).
4.7 Seats can be utilized in the same academic year only and vacancy in one academic year can not be utilized in subsequent academic year. For allocation of seats to physically handicapped category in a said year, Roster Point guideline given by The Govt. of Gujarat, will be followed.
5.0 7% of seats available for P.G. Degree and Diploma under Rule 3 will be reserved for candidates belonging to Scheduled Castes, 15% of seats will be similarly reserved for S.T. Candidates and 27% of seats will be similarly reserved for candidates belonging to Socially and Educationally Backward Classes (SEBC) students including widows and orphan children. The students desiring admissions under SEBC category will have to submit a certificate of relevant year that they are not included in the creamy layer from the competent authority as prescribed by the Govt. of Gujarat from time to time along with the application. and they must bring fresh & new certificate of the relevant year at time of interview (i.e. Certificate issued by competent authority issue on or after 1st April) Otherwise they will be debarred from S.E.B.C. Category.
5.3 As per Govt. of Gujarat Rule In case the residencies reserved as mention in rules No. 5.0 for the respective categories remain vacant due to Non availability of condition in specified category, the same will be filled in by the candidate of respective reserve category,who have passed the M.B.B.S. Degree examination and completed one year compulsory rotating internship(Housemanship) from any recognised medical college in the Gujarat State.
7.3 Notification : Merit List will be notified as under:
Merit List 1-A Candidates under Rule 4.1 belonging to (General/ST/SC/SEBC) Category of Saurashtra University Merit List 1-B Candidates under Rule 4.2 belonging to (General/ST/SC/SEBC) Category of Saurashtra University Merit List 2-A Candidates under Rule 4.3 & 4.4 belonging to (General/ST/SC/SEBC) Category Other University of Gujarat State. Merit List 3-A Candidates under Rule 4.5 belonging to Gen. Merit Seats Out side University of Gujarat State.
13. Even the Residency Rules also provide for eligibility criteria and provide inter-alia for selection of the candidates for admission in the first year residency shall be made by the College Council of respective medical colleges.
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14. Relevant Rules provides for categories of candidates that who will be eligible for admission into residency.
1. Rule 6.1 reads as follows:
6.1 Those who have passed the MBBS degree examination from the respective medical colleges and satisfactorily completed one year compulsory rotating housemanship (internship), sons and daughters of All India Services Officers viz. Indian Police Service, Indian Administrative Service, Indian Forest Service alloted to the Gujarat State and serving in the State outside the Gujarat State on deputation and sons and daughters of the Gujarat Govt. servants who have been posted outside the Gujarat State would be treated on par with candidates of respective medical colleges for the purpose of appointment, if they are otherwise eligible on merits.
15.3 Rule 6.2 reads as follows:
6.2 Those who have passed the MBBS degree examination and satisfactorily completed one year compulsory rotating housemanship (Internship) from the Govt. Medical College in Gujarat State, which have no post graduate facilities in that subject. However, preference will be given to those who have passed the said examination from the same medical college. 15.4 Rule 6.3 reads as follows:
6.3 Candidates must be registered under Gujarat Medical Council Act, 1967.
15.5 By a subsequent resolution dated 1-9-1990, Rule 62(A) was added which reads as follows: 6.2(A) After considering the case of the candidates as per Rule 6.1 and Rule 6.2 above, the remaining vacancies if any will be filled in by the candidates who have passed the M.B.B.S. Degree examination and satisfactorily completed one year compulsory rotating housemanship (internship) from any recognised Medical College in Gujarat. 15.6 Rule 23(2) in its amended form reads as follows:
Rule 23(2) In case the residencies reserved as mentioned in Rule-24 for the respective categories remain vacant due to non-availability of candidates in specified category, the same will be filled in by the candidate of respective reserved category, who have passed the M.B.B.S. Degree Exam, and satisfactorily completed one year compulsory rotating housemanship (internship) from any recognised Medical College in the Gujarat as per the Rule 6.1, 6.2 and 6.2(A).
Thereafter the remaining vacancy, if any meant for the candidates of respective reserve categories will be treated as unreserved and filled up by the candidate on the basis of open merit.
Thus, above rules provide for admissions in post graduate degree courses and eligibility criteria for the categories of the candidates for admission into residency also.
Page 2086 15 We have perused the above rules and particularly, para-17, 17.1, 18 and 19 of the judgment of the learned Single Judge where the interpretation is elaborately discussed by conjoint reading of admission and residency rules and it was found by the learned Single Judge in Para-17 to 19.1 which is reproduced for ready reference.
17. In my view the scheme of Rules is amply clear. Essentially all available seats of P.G. course for Saurashtra University are divided in two parts. 50% of the seats are to be filled up from All India Quota candidates and remaining 50% is to be filled up from firstly out of candidates from Saurashtra University. This quota may increase, if it is found that sufficient number of qualified students from All India Competitive Quota candidates are not available. Thus, a minimum of 50% seats are made available to local students or students passing MBBS examination from Saurashtra University to be filled up by PG Admission Committee. This may increase to the extent of non-availability of qualified candidates from All India quota. Thus remaining 50% or more of the total seats are to be filled up by the P.G. Admission Committee. First preference is to be given to the candidates of not more than three years standing after completion of internship/Housemanship and who have not availed of three opportunities for P.G. admission after completion of internship. For some reason, if this source of students is insufficient to occupy all local quota seats, Rule 4.2 of the Admission Rules is to be resorted to under which students passing out from Saurashtra University and those who have completed more than three years since internship and have availed three opportunities for P.G. admission have to be considered. In case, despite operation of Rule 4.2, all seats are not occupied, resort is to be made to Rule 4.3 of the Admission Rules by virtue of which candidates graduating from other Universities located in State of Gujarat have to be considered. At the first instance, those candidates who have completed not more than three years of internship are to be preferred. Significantly, the Rule also provides that such category of reserved students referred to in Rule 5 from amongst the candidates graduating from other universities within the State of Gujarat and completed one year internship will be considered in respect of balance of seats left unfilled after the operation of Rule 4.2 as per Rule 5.3. Even after operation of Rule 4.3, if there are any seats still available, same are offered to the students graduating from other Universities located in State of Gujarat and who have completed internship since more than three years. The remaining vacancies are to be left unfilled subject to certain exceptions.
17.1 Reservation is provided and recognised in Rule 5.0 of the Admission Rules to include 7% reservation for Scheduled Castes, 15% reservation for S.T. and 27% reservation for SEBC candidates. Rule 5.3 of the Admission Rules further provides that in case of residencies reserved as mentioned in Rule 5.0, remained vacant due to nonavailability of candidates in specified categories, same are Page 2087 to be filled in by candidates of respective categories who have passed MBBS degree examination from any recognised Medical College in State of Gujarat.
18. As noted above, reservation is provided in favour of SC/ST/SEBC candidates in Rule 5 of the Admission Rules. Therefore, when the candidates belonging to the said reserved categories from eligible candidates from classes of students referred to in Rules 4.1 and 4.2 are not available, such seats are to be filled up from the candidates graduating from any other University located in Gujarat State as provided in Rule 4.3. In fact Rule 4.3 makes it abundantly clear that such spillover vacancies of reserved category candidates, on account of want of qualified candidates being available from Saurashtra University are to be filled by such category of students graduating from other universities located in Gujarat State. In Rule 4.3 it is clearly stated that such category of reserved students referred to in Rule 5 from amongst the candidates graduating from other Universities within the State of Gujarat and completed on year internship will be considered in respect of balance of seats left unfilled after the operation of Rule 4.2 as per Rule 5.3. Combined reading of the above statutory Rules therefore, leaves no manner of doubt that unoccupied reserved category seats of Saurashtra University quota shall have to be filled up from candidates belonging to the same categories and who have graduated from any other Universities located in the State of Gujarat. Significantly, Rule 5.3 talks of Residency reserved as mentioned in Rule 5.0 for the respective categories and provides that in case of Residency reserved for the respective categories remaining vacant due to nonavailability of candidates in specified categories, the same will be filled in by the candidates of respective reserved category who have passed MBBS degree examination and completed one year compulsory rotating internship from any recognised Medical College in the State of Gujarat. Rule 5.0 in turn does not refer to reservation in Residencies. Rule 5.3 therefore, when talks of reservation in Residency as mentioned in Rule 5.0, necessarily it makes reference to the requirement of reservation in Residency also.
19. From the Residency Rules of the State Government noted here-in-above, it is abundantly clear that there is necessarily one to one relation between the number of admissions granted to the students in P.G. Medical Courses and number of Residencies available. In other words the moment, there is registration granted to a student in the P.G. Medical Course, Residency is a matter of course and conversely unless and until there is Residency available, registration in P.G. Medical Course cannot be granted. This becomes clear in the resolution dated 23-5-2005 whereby in Rule 23.3, the Government added clarification (b) that the Residency will not exceed the numbers of Residency sanctioned by the Government from time to time. Total P.G. Seats in degree/diploma in each Medical College shall not exceed the recognised/approved intake by MCI.
Page 2088 19.1 In fact, it was not in much doubt or dispute that for every student securing admission in P.G. Medical Course, there has to be a Residency seat earmarked for him. If this much is clear, combined reading of Rules 5.0 and 5.3 of the Admission Rules would make it further clear that in case of any of the Residency reserved for a reserved category student, is not occupied by a student belonging to such a category, same shall be offered to the student belonging to the same category but should have passed MBBS degree examination and completed one year internship from any recognised Medical College in the State of Gujarat.
16. Thus, it was found by the learned Single Judge that joint reading of Rule 4.0 to 4.4 of the Admissions Rules in light of the provisions made in Rules 5.0 and 5.3 of the Admission Rules, for admissions of students belong to reserved category candidates, it is clear that when there is an occasion of any of the seats for SC/ST/OBC candidates from Saurashtra University not being filled by candidate belonging to such a category for want of eligible candidates, the same has to be offered to the candidates belonging to the same categories provided such candidates have passed requisite examination from any of the recognized medical college of the State of Gujarat. The learned Single Judge has even considered the relevant admissions rules framed by Veer Narmad South Gujarat University which are analogous to the rules framed by the Saurashtra University barring some minor differences and in the judgment of this Court in the case of Rakesh Bhansal and Ors. v. State of Gujarat and Ors. rendered in Special Civil Application No. 11725 of 2006 the Rules of Veer Narmad South Gujarat University came to be interpreted and the Court negatived the contentions of general category students and to grant admission in unfilled up vacancies of the reserved seats for want of availability of qualified students from the same University and not to be filled in by reserved category of other Universities of State of Gujarat. Even the learned Single Judge has further relied upon the judgment of the Division Bench of this Court dated 13.07.2006 in the case of Bhavnagar University where the relevant Rules for admission to P.G. Degree Medical Course of that University permitting the University to utilize the unfilled up vacancies of the reserved categories by granting admission to the students belonging to the General Category students as unconstitutional and ultra-vires. After considering the arguments advanced by the learned Counsel appearing for the respondent University about institutional preference and the residency rule, the learned Single Judge has dealt with the same and concluded as under:
26. As noted earlier, the Admission Rules framed by Saurashtra University have statutory force. These Rules make specific provision for regulating the admissions of various categories of the candidates. Even if some provisions made by the Government in its Residency Rules seem to be conflicting with the Admission Rules of Saurashtra University, the provisions made in the Saurashtra University Rules Page 2089 shall prevail since Residency Rules of the Government are circulated through executing instructions. To the extent field is not occupied by any statutory Rules, it is always open for the State to provide for regulations through executive instructions. However, to the extent same is conflicting with the statutory Rules, the Rules must take precedence.
27. The conclusion of the above discussion is that the respondents No. 2 and 3 i.e. Saurashtra University and P.G. Admission Committee in my view committed a legal error in filling up unfilled reserved vacancies through open category candidates from Saurashtra University. Such seats ought to have been offered to other students passing out from Universities located in the State of Gujarat and who belong to such reserved categories.
17. Thus, above reasoning and conclusion of the learned Single Judge on interpretation of the P.G. Degree course in Medical framed by the Saurashtra University and other analogous Rules of Veer Narmad South Gujarat University and Bhavnagar University and judgment of this Court (Supra), we do not find any justification for not granting consequential relief to the appellant whose legal rights are guaranteed under Articles 14, 15 and 16 of the Constitution of India and under relevant Rules viz. Rule 4.0, 4.2, 5.0, and 5.3 of the Rules framed by the respondents.
It is also established fact that the appellant has made timely representations to the Post Graduate Admission Committee, Saurashtra University on the same date when the admission was finalized i.e. on 17.04.2006. Even recourse taken to the legal proceedings by the appellant by filing writ petition in this High Court is also well within time. However, time consumed in the proceedings including one month of summer vacation, has deterred the learned Single Judge from giving consequential effect and therefore, according to us, time limit fixed by the Hon'ble Apex Court may not come in the way of the appellant since he is not given his due though deserved on facts and on law, therefore, his stand is to be vindicated by granting effective reliefs with directions to respondent University to admit the appellant in P.G.Degree Medical Course.
18. In the back ground of above discussion, in our view, legal right flowing from Articles 14, 15 and 16 of the Constitution of India and benefit of the reservation embodied particularly in Articles 15 and 16 of the Constitution and reflected in the P.G. Degree Medical Course Admissions Rules framed by the University in exercise of the powers under Section 33 of the Saurashtra University Act, refusal to consequential relief to the appellant will be against the law laid down by the Apex Court.
In the case of State of Kerala v. T.P.Roshan and Ors. , the Hon'ble Apex Court in para-34 has observed as under:
34. Nor is law unimaginative, especially in the writ jurisdiction where Page 2090 responsible justice is the goal. The court cannot adopt a rigid attitude of negativity and sit back after striking down the scheme of Government, leaving it to the helpless Government caught in a crisis to make-do as best as it may, or throwing the situation open to agitational chaos to find a solution by demonstrations in the streets and worse. We are, therefore, unable to stop with merely declaring that the scheme of admission accepted by Government is ultra vires and granting the relief to the petitioner of admission to the medical college. The need for controlling its repercussions calls for judicial response. After all, law is not a brooding omnipresence in the sky but an operational art in society.
Even in Para-37 of the aforesaid decision, the Hon'ble Apex Court has considered qua the need of grant of effective relief to do justice to the existing entrants.
19. In the decision . In the above case, the Hon'ble Apex Court confronted with the similar situation of granting consequential relief to the students who were denied admission though eligible, has observed in para-4, 5, and 6 as under:
4. Cases like these in which admissions granted to students in educational institutions are quashed raise a sensitive human issue. It is unquestionably true that the authorities who are charged with the duty of admitting students to educational institutions must act fairly and objectively. If admissions to these institutions are made on extraneous considerations and the authorities violate the norms set down by the rules and regulations, a sense of resentment and frustration is bound to be generated in the minds of those unfortunate young students who are wrongly or purposefully left out. Indiscipline in educational institutions is not wholly unconnected with a lack of sense of moral values on the part of the administrators and teachers alike. But, the problem which the courts are faced with in these cases is, that it is not until a period of six months or a year elapses after the admissions are made that the intervention of the court comes into play. Writ petitions involving a challenge to such admissions are generally taken up by the High Court as promptly as possible but even then, students who are wrongly admitted finish one or two semesters of the course by the time the decision of the High Court is pronounced. A further appeal to this Court consumes still more time, which creates further difficulties in adjusting equities between students who are wrongly admitted and those who are unjustly excluded. Inevitably, the Court has to rest content with and academic pronouncement of the true legal position. Students who are wrongly admitted do not suffer the consequences of the manipulations, if any, made on their behalf by interested persons. This has virtually come to mean that one must get into an educational institution by means, fair or foul: Once you are in, no one will put you out. Law's delays work their wonders in such diverse fashions.
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5. We find that this situation has emboldened the erring authorities of educational institutions of various States to indulge in violating the norms of admission with impunity. They seem to feel that the Courts will leave the admissions intact, even if the admissions are granted contrary to the rules and regulations. This is a most unsatisfactory state of affairs. Laws are meant to be obeyed, not flouted. Some day, not distant, if admissions are quashed for the reason that they were made wrongly, it will have to be directed that the names of students who are wrongly admitted should be removed from the rolls of the institution. We might have been justified in adopting this course in this case itself, but we thought that we may utter a clear warning before taking that precipitate step. We have decided, regretfully, to allow the aforesaid sixteen students to continue their studies, despite the careful and weighty finding of the High Court that at least eight of them, namely, the seven wards of employees and Ashok Kumar Kaushik, were admitted to the Engineering Course in violation of the relevant rules and regulations.
6. It is strange that in all such cases, the authorities who make admissions by ignoring the rules of admissions contend that the seats cannot correspondingly be increased, since the State Government cannot meet the additional expenditure which will be caused, by increasing the number of seats or that the institution will not be able to cope up with the additional influx of students. An additional plea available in regard to Medical Colleges is that the Indian Medical Council will not sanction additional seats. We cannot entertain this submission. Those who infringe the rules must pay for their lapse and the wrong done to the deserving students who ought to have been admitted has to be rectified. The best solution under the circumstances is to ensure that the strength of seats is increased in proportion to the wrong admissions made.
20. Thus, according to the Hon'ble Apex Court, best solution under the circumstances is to ensure that the strength of the seats is increased in proportion to the wrong admissions made and the authorities which granted admission by ignoring rules of admission cannot be permitted to contend that seats cannot be correspondingly increased which may result into additional expenditure or some procedure to be followed for which time will be spent.
21. By taking necessary guidance from the above reasoning of the Hon'ble Apex Court, we have no hesitation to direct the respondent University and the P.G. Admission Committee of the Saurashtra University to grant admission to the appellant in P.G. Medical Course as opted by him and if any other candidate is affected by such process, the respondent University may create supernumerary post and for which if necessary, it will be open for the respondent University to take up the issue before the Medical Council of India and/or any authority for necessary approval, since the action of the University in denial of admission to the petitioner-appellant Page 2092 is declared as illegal by the learned Single Judge till this date remain unchallenged by respondent University and now the same is also confirmed and upheld by us.
Accordingly, it is directed that the respondent-Saurashtra University shall grant admission to the appellant forthwith to the P.G. Degree Medical Course of Saurashtra University.
22. Therefore, the Letters Patent Appeal is allowed to the extent of denial by the learned Single Judge of consequential relief of grant of admission to the appellant to P.G. Degree Medical Course and rest of the findings and conclusion with regard to the interpretation of P.G. Admission Rules including declaration on the basis of conclusions in para-26 and 27, are not disturbed.
The Letters Patent Appeal stands allowed to the extent indicated herein in above and qua the appellant only.
Civil Application No. 10388 of 2006 stands disposed of in terms of the order passed in Letters Patent Appeal No. 1098 of 2006.