Madhya Pradesh High Court
State Of M.P. And Ors. vs Jitendra Kishore Bhargava on 18 April, 1996
Equivalent citations: AIR1997MP56, AIR 1997 MADHYA PRADESH 56
Bench: A.K. Mathur, Chief Justice
JUDGMENT Mathur, C.J.
1. Both the letters patent appeals are connected; therefore, they are disposed of by a common order.
Respondent Jitendra Kishore Bhargava filed a first petition -- W.P. No. 3111 of 1995 before this Court claiming admission to the Post-Graduate Course and the learned single Judge in that petition passed order dated 17-10-1995 relying on Rule XI(i) of the Madhya Pradesh Medical and Dental Post-Graduate Entrance Examination Rules, 1995 (for short the Rules of 1995) that the petitioner should file a representation before the State Government along with certified copy of this order and the State Government shall decide the representation within two weeks after the presentation of the representation by a speaking order regarding subsequent counselling in terms of above Rule XI(i) holding of second counselling even after Second July; if there is no other impediment in the way: Though it was contended before the learned single Judge that the representation was made to the Director of Medical Education but the learned Judge found that the representation does not contain any endorsement forwarding cppy to the State Government. It was found that there was no representation made to the State Government. Lastly, the learned Judge held that State Government has power under the Proviso to Rule XI(i) of the Rules of 1995 to have subsequent counselling even after 2nd July. Therefore, the learned Judge directed the petitioner to make representation and also directed the State Government to fill the unfulfilled vacancies to Post-Graduate course by second counselling in view of Proviso to Rule XI(i) of the Rules of 1995. Against this order of the learned single Judge dated 17-10-1995 in W.P. No. 3111 of 1995, the State Government has preferred this L.P.A. which is registered as L.P.A. No. 213 of 1995. It was admitted for hearing by this Court on 7-2-1996 and was directed to be connected with L.P.A. No. 10 of 1996.
2. L.P.A. No. 10 of 1996 arose out of the writ petition filed subsequently by the respondent Jitendra Kishore Bhargava (same petitioner) and it came to be registered as W.P. No. 3831 of 1995. The Writ Petition No. 3831 of 1995 was decided on 9-1-1998. In this writ petition, grievance of the respondent (petitioner therein) was that in spite of order passed in W.P. No. 3111 of 1995 dated 17-10-1995, the State Government did not dispose of the. petitioner's (respondent herein) representation and no order had been passed granting admission and, therefore the W-.P. No. 3831 of 1995 was filed in which the learned single Judge by order dated 9-1-1996 directed the State Government and its authorities to hold a counselling in accordance with the Rules within fifteen days. Thereafter a contempt petition was filed; however, notices were discharged as the learned single Judge found that the Principal Secretary did not wilfully disobey the orders of this Court. The State Government in its reply took the stand that admission in Post-Graduate Courses in Medical Colleges cannot be done after, 2nd July. Reference was made to the judgment of the Hon'ble Supreme Court. However, the learned single Judge brushed aside all those objections and directed as aforesaid. Aggrieved by this order of the learned, single Judge dated 9-1-1996, the State Government has preferred L.P.A. No. 10 of 1996. Since both the LPAs arise primarily out of order passed by the learned single Judge dated 17-10-1995 in W.P. No. 3111 of 1995, they are taken up together for disposal.
3. The principal submission of the learned counsel for the State is that according to Rule XI of the Admission Rules of 1995, no subsequent counselling is ordinarily permitted after 2nd July except in special circumstances as provided in Proviso to Rule XI(i); but it is submitted that in view of series of decisions of Hon'ble the Supreme Court of India, consistent view is that no admission should be granted disturbing the time schedule fixed and their Lordships have taken a very strong exception to this, We would like to refer those decisions at appropriate places but before doing so, it would be relevant to refer relevant rules of the Rules of 1995 for the disposal of the present LPAs. Rule 10 deals with 'counselling' and Sub-rule (v) of Rule X "talks about the seats falling vacant and the manner in which they are to be filled. Clause/Sub-rule (v) of Rule X of the Rules 1995 reads as under:
"Rule X(v) -- If any seat remains or falls vacant in any subject in any institution, the same would be filled up from the waiting list strictly in order of merit by subsequent counselling in the same manner as mentioned above. The dates of subsequent counselling for the candidates in the waiting list will be communicated to them by registered post and also displayed on the notice board of the office of the Director Medical Education. While filling up such vacant seats, candidates already admitted to any subject in any institution will not be considered and only candidates in the waiting list will be considered."
Rule XI of the Rules of 1995 talks about admission. Rule XI reads thus:
"Xl. Admission--
(i) The course will commence on 2nd May every year. If due to any reason any vacant seat is to be filled, the same would be done through counselling within two months i.e. by 2nd July. All admission will come to an end on that date. Seats reverted from All India Quota to the State will be filled up from the waiting list by counselling as stated above, before the closing date of 2nd July;
Provided that having regard to the number of vacancies still remaining unfulfilled the Government may permit holding subsequent counselling even after 2nd July.
(ii) Candidates who have been admitted must join their college on or before the date to be notified at the time of admission.
(iii) The selection for admission will be automatically cancelled if the selected candidates do not report to the college on or before the date stipulated at the time of counselling.
(iv) In the matter of allocation/admission of candidates to respective Medical Colleges, the decision of the Director Medical Education shall be final."
4. As per Sub-rule (v) of Rule X, if any seat remains or falls vacant in any subject in any institution, then that would be filled up from the waiting list strictly in the order of merit by subsequent counselling as per Rule XI(i) of the Rules of 1995 which lays down that the course will commence on 2nd May every year and if due to any reason any vacant seat is to be filled, the same would be done through counselling within two months i.e. by 2nd July and all admissions will come to an end on that date. It is further provided therein that seats reverted from All India Quota to the State will be filled up from the waiting list by counselling as stated above, before the closing date of 2nd July. However, Proviso provided that having regard to the number of vacancies still remaining unfulfilled the Government may permit holding subsequent counselling even after 2nd July.
Both the learned Judges have emphasised on the second proviso that the State has power to undertake second counselling after , 2nd July also. It is admitted fact that certain seats did fall vacant and the chart showing vacancies is as under:
"VACANCY POSITION OF P.G. SEATS UNDER 1995 QUOTA Sl. No. Subject of P.O. Category No. of seats lying vacant.
Remarks.
1. Paediatrics All India 01 Dr. Vimmi Abbot resigned on 13-12-1995 and the seat declared vacant w.e.f. 13-12-1995.
2. Anaesthesiology All-India 02 (1) Dr. S. Murugan tendered resignation on 9-8-1995 and the seat declared vacant w.e.f. 9-8-1995. (2) Dr. Geetima Singh remains absent w.e.f. 5-10-1995 and terminated on 22-11-1995.
The seat declared vacant w.e.f. 22-11-1995.
3. Surgery All India State PG (ST) )( 01 )( =2 )( 01 )( (1) Dr. Manish Jain tendered resignation and left the college on 15-10-1995. The seat declared vacant w.e.f. 15-10-1995.*(2) Dr. Chhotelal Singh was absent w.e.f. 13-6-1995 and terminated on 11-10-1995. The seat declared vacant w.e.f. 11-10-1995.
4. E.N.T. All India 01 *Dr. Ambuchezhiyan was absent w.e.f. 23-6-1995 and terminated on 1 1-10-1995. The seat declared vacant w.e.f- 11-10-1995.
06It is thus admitted fact that these seats against which the petitioner wants admission did fall vacant after 2nd July. Second Proviso enables the Government to fill up these vacancies by holding a subsequent counselling even after 2nd July. It is true that this is an enabling power of the State and it is not incumbent on the State that even after 2nd July, they are under an obligation to fill up these seats. The enabling power does not confer any right on the candidates to be admitted if the State Government chooses not to fill up the vacancies after having realised that the admissions have been closed on 2nd July and now filling these vacancies at this distance of time will disturb the academic set up. In pursuance of the direction given by the learned single Judge vide order dated 17-10-1995, the State Government did consider the representation filed by the petitioner (respondent herein) and did pass order dated 24th November, 1995, which reads as under:
(Vernacular matter is omitted -- Ed.) In this order, it was observed by the State keeping in view the decisions given by the Hon'ble Supreme Court and by Full Bench of the Delhi High Count that it does not feel inclined to go for a. second counselling after 2nd July. This order was filed before learned single Judge in reply to the writ petition filed by the petitioner (W.P. No. 3831 of 1995). Learned single Judge observed in paragraph 2 of order dated 9-1-1996 in W.P. No. 3831 of 1995 that while admitting this' petition, a notice was issued to the Principal Secretary to appear in person and to show cause why he should not be punished for contempt for not complying with the directions contained in the order passed in W.P. No. 3111 of 1995, and then the respondent State passed order dated 24-11-1995. Therefore, the learned single Judge did not attach any importance to this order dated 24-11-1995 and directed the State and is authorities to hold counselling in accordance with rules, within 15 days. Reference of petitions of Dr. Neeraj Jain and Dr. Shilpi Saxena was made, it was stated that they have been admitted despite expiry of cut off date i.e. 2nd July. But the learned single Judge did not consider those precedents to be good because it was observed that both these candidates were admitted in compliance of order of the Hon'ble Supreme Court. We need not enter into controversy regarding Dr. Neeraj Jain and Dr. Shilpi Saxena in the present LPAs.
5. The basic question which is posed for our answer is whether by virtue of the power under the Proviso to Rule XI(i) which is enabling power of the State Government, can a mandamus be issued to State Government? The State Government after considering the representation of the petitioner rejected the same by orderdated 24-11-1995 by a speaking order that after 2nd July, the State would not like to exercise jurisdiction and power under Proviso to Rule XI(i). Can this Court still direct the respondents to admit a candidate? In our opinion, the answer is negative. We understand the sanctity of cut-off date for admissions in Medical Colleges, because if the process of admission is allowed to continue for an indefinite period, then the academic session will suffer and the candidates will be lagging behind on account of late admission and they would not be able to make good their studies.
6. The question of grant of late admissions came up for consideration before the Hon'ble Supreme Court and their Lordships of Hon'ble Supreme Court strongly criticised such practice of continuing admission open for an indefinite period. In this connection, reference can be made to the case of Dr. Ajay Pradhan v. State of M.P., (1988) 4 SCC 514; (AIR 1988 SC 1875) which related to M.P. Selection for Post-Gratriation Course (Clinical, Para-clinical and Non-clinical Courses) in Medical Colleges of Madhya Pradesh Rules, 1984. Rule 10 of the said Rules provided for admissions to the vacancies falling in midst of or towards the end of an academic year to which it pertains. In that context, their Lordships observed:
"Under Rule To of the Rules, there is no right to admission to a seat in the PG Course in MD/ MS falling vacant in a medical college 'in the midst of or 'towards the end of an academic year to which it pertains. Rule 10 is a specific provision made for the benefit of the merit candidates who are placed in the waiting list. If a seat falls vacant for candidates who are placed on the waiting list any reason, namely, that the candidate selected in order of merit does not join the PG course in MD/ MS in a medical college or by reason of his death or otherwise, and due to inaction on the part of the authorities the seat is not filled up in the academic year to which it pertains, the vacancy cannot be carried forward to the next academic session. Normally, the question of a seat being filled up must arise at the commencement of the academic year or soon thereafter. When a seat falls vacant in any particular academic year there is a corresponding duty cast on the authorities to take immediate steps to fill up the same. There is no question of a right of admission to a seat falling vacant in the midst of, or towards the end of, the academic year."
It is apparent from the above observations of their Lordship of Supreme Court that simply because a vacancy has fallen vacant, there is no corresponding right conferred on the person in waiting list that he must be admitted in the midst of the course or at the end of the academic year. Their Lordships have examined the matter and have found that the practice of admitting students at the late academic course is not conducive to the medical teaching. Hence, no writ of mandamus can be issued for admitting a candidate under Proviso to Rule XI(i). This was only an enabling provision under which no mandamus can be issued directing the State to give admission. If the State Govt. feels that it, would not be conducive to the educational institution to keep the admission open even after 2nd July no direction can be given to the State Government to admit the student in mids-session. Main body of Rule XI clearly mandates that admissions should be 'completed by 2nd May and no admission should be granted after 2nd July. It is a clear mandate in the Scheme of the Act, simply because an enabling proviso is there, it does not mean that the State Government has no discretion in the matter and it must necessarily exercise this enabling proviso to admit students. We are clearly of the opinion that as per the Scheme of the Act, the time-schedule should be strictly adhered to and in view of the Hon'ble Supreme Court decision, this aspect of the scheme has to be given full effect to. In this connection, reference can be made to the case of Dr. Dinesh Kumar v. Motilal Nehru Medical College. (1988) 4 SCC 459, wherein their Lordships very strongly observed as under;
"What remains now to be dealt with is the finalisation of the programme relating to the selection examination. As already decided, the selection examination shall be conducted by the All India Institute of Medical Sciences, New Delhi. The announcement for holding of the selection examination shall be made on Octobef 1 of every year and a full four weeks' time would be made available to candidates for making their applications. After the applications are received not later than six weeks from October 1, the same would be scrutinised and duly processed and admit cards would be issued. Examination shall be held on the second Sunday of January. The results of examination shall be announced within four weeks from holding of the examination. Admission shall commence two weeks after the declaration of results. The last date for taking admission shall be six weeks from the date of the announcement of results, but the Head of every institution shall be entitled to condone delay up to seven days for reasons shown and grounds , recorded in special cases. The courses of study shall commence in every institution providing such study throughout the country from May 2. Notification announcing examination, publication of result and allotment of place of admission (keeping preference in view and our directions regarding preference of lady candidates in places of proximity to residence) shall be" published in two successive issues of one national paper in English having large circulation in every State and at least in two local papers in the language of the State as quickly as possible."
7. As per the decision in the case of Dr. Dinesh Kumar (supra), a clear mandate was given by the Apex Court that the courses of study shall commence in every institution providing such studies throughout the country from 2nd May. That shows the anxiety of the Apex Court to see that the medical studies should go on according to time schedule and admissions at late stage should be avoided.
8. Then again, the matter came up before their Lordships of the Supreme Court in the case of State of Bihar v. Dr. Sanjay Kumar Sinha, (1990) 4 SCC 624 : (AIR 1990 SC 749) and their Lordships of the Hon'ble Supreme Court came out very heavily and observed that the direction given in the case of Dr. Dinesh Kumar (1987 (4) SCC 459) (supra) has not been followed and, therefore, it was observed (at page 751 of AIR):
"Obviously the relevant directions have not been followed by the examining body for the current year. Similarly, the State of Bihar did not follow the directions of this Court while drawing up its prospectus. If the course of study are to commence from May 2, the last qualifying date would not have been fixed as May 31st, 1989. It has been reiterated before us that several States have not been following the directions. Instead of issuing notice to the States and Union Territories for examining the correctness of the allegations of delay and non-compliance of the directions, we have thought it appropriate to indicate that everyone including the States, the Union Territories and other authorities running medical' colleges with Post Graduate Courses are bound by our order and much strictly follow the time schedule indicated in paragraph 6 of the order. We have not proceeded against the defaulting authorities for violation of this Court's order hoping that there would be no recurrence of it, but we would like to -administer a warning to everyone that if it is brought to our notice at any time in future that there has been violation, a serious view of such default shall be taken. We hope and trust that every one concerned shall comply with the time frame strictly and there would be no lapse in this regard in future."
9. Recently also, their Lordship of the Hon'ble Supreme Court, in the case of Dr. Subodh Nautiyal v. State of U.P., 1993 Supp (1) SCC 593 : (AIR 1991 SC 1131) again condemned the practice of mid-term admission. It has been reiterated that practice of mid-term admission should be avoided. It was observed by their Lordships as under (at p. 1132 of AIR):
"We have already indicated in our previous orders that the course throughout India is intended to commence on a particular date and, therefore, admissions must be over-prior to the date of such commencement. The intention of this Court has been to appropriately regulate the teaching in Medical Colleges both at the under Graduate as also in the Post Graduate level. The happenings which have been noticed by this Court and which are being placed before the Court now and then clearly indicate that the intention of this Court is not being kept in view by the authorities charged with the implementation. Therefore, the Scheme is not getting enforced in the proper way."
10. In another case of State of U.P. v. Dr. Anupam Gupta, 1993 Supp (1) SCC 594: (AIR 1992 SC 932), their Lordships have also' come out very heavily that such admission to Post Graduate courses after mid session are not proper. Their Lordships also did not appreciate the orders passed by the High Court in exercise of powers under Article 226 of ' the Constitution of India. It was held :
"To maintain excellence, the courses have to be commenced on schedule and to be completed within the schedule, so that the students would have full opportunity to study full course to reach their excellence and come at par excellence. Admission in the midstream would disturb the courses and also work as a handicap to the candidates themselves to achieve excellence. Considered from this pragmatic point of view, vacancies of the seats should not be taken as a ground to give admission to the Post Graduate course which required securing of cut-off 50% marks in Entrance Examination. Therefore, the direction by the High Court to admit the candidates into the vacant seats cannot be sustained. The directions given in Jeevak Almast's case was for M.B.B.S. course and arose in the peculiar situation and does not afford a precedent. Exercise of equity, jurisdiction and prescription of minimum cut off are mutually incompatible and counter productive. It would frustrate excellence."
Our attention is also invited to the case of State of Punjab v. Renuka Singla, AIR 1994 SC 595 where also their Lordships of the Hon'ble Supreme Court have not taken very kindly to the directions given by the High Court for admitting certain students to the course on compassionate ground. It was also not countenanced by their Lordships of the Supreme Court.
11. From the series of decisions quoted above, it is established beyond doubt that the Apex Court, right from the beginning, has been very anxious from the case of Dr. Dinesh Kumar, (1987 (4) SCC 459) (supra) onwards, that the mid-term admissions should be avoided. Keeping in view this mandate of their Lordships of the Hon'ble Supreme Court, the scheme was formulated and it was clearly mentioned that admissions should be closed by 2nd May and no admissions should be given after 2nd July. This was clearly mandated in the rules and authorities were right in their approach not to grant admissions after 2nd July because this is the cut off date fixed by the authorities keeping in view the direction of the Hon'ble Supreme Court in the series of decisions quoted above.
12. This Court also, in the case of State of M.P. v. Dr. Shailesh Gupta,(M.C.C. No. 437 of 1995), arising out of the order dated 2nd May 1995, in W.P. No. 5766/94 Dr. Shailesh Gupta v. State of M.P., has taken the View that admission to the Medical College in midstream cannot be countenanced and in this case, the order of the learned single Judge was set aside and the writ petition was dismissed by order dated 17-1-1996. From the facts of this case also, as reproduced above, it is apparent that some vacancies fell vacant in August, some in Oct. and some in Dec. If the vacancies which felt vacant in mid-session for one reason or the other are allowed to be filled iri it will not be fair to the excellence of the medical education. The Hon'ble Supreme Court has all the time been emphasising this aspect and the State Government has rightly framed Us scheme in the light of observation of the Hon'ble Supreme Court.
13. Simply because the enabling provision is there in the Rules of 1995, that does not provide any right to wait listed candidates to seek a mandamus to State to admit in course after the cut off date. We are of the opinion that the order passed by the State Government keeping in view the decision in Dinesh Kumar, (1987 (4) SCC459) (supra) is proper and the State Government has rightly rejected the representation of the petitioner by order dated 24th Nov. 1995 and both the petitions do not call for any interference by this Court.
14. Both the State appeals are allowed and the orders passed in W.P. No. 3111/95 and W.P. No. 3031/95 dated 17-10-1995 and 9-1-1996 respectively are set aside. There shall be no order as to costs.