Bombay High Court
Dr. Ganpat Mashnajirao Wadekar vs The State Of Maharashtra & Others on 7 May, 1997
Equivalent citations: 1998(1)BOMCR19
Author: B.H. Marlapalle
Bench: A.P. Shah, B.H. Marlapalle
ORDER B.H. Marlapalle, J.
1. Heard learned advocates for the parties. Rule, By consent of the parties, Rule made returnable forthwith.
2. The factual matrix of the matter which is relevant to decide the claim of the petitioner is as under:
The petitioner belongs to S.C. Category and he sought admission to the M.B.B.S. Course from the said category. He passed his M.B.B.S. Examination in the first attempt and Secured 255 marks out of 400 in the subject of Surgery in the year 1994. He completed one year internship from 23-2-1995 to 22-2-1996 and became eligible for from 23-2-1995 to 22-2-1996 and became eligible for admission to Post Graduation Course from January-1996 Batch onwards. The petitioner also possessed the experience of house job in surgery.
3. The respondents issued an advertisement on 6th April, 1996 for admission to Post Graduation Courses (Degree and Diploma) for the January-1996 Batch and the said admissions were against the seats available at the Government Medical College, Aurangabad as well as S.R.T.R. Medical College at Ambajogai. The petitioner submitted his application for P.G. with first preference to M.S. (General Surgery) as contended by the petitioner In pursuance of a decision of this Court in Writ Petition No. 1530 of 1996, a revised roster came to be prepared for January 1996 batch after pooling all the available registrations at Government Medical College at Aurangabad and S.R.T.R. Medical College at Ambajogai together. With this advertisement, the previous advertisements issued in April 1996 was superseded and at the S.R.T.R. Medical College Ambajogai, one seat for S.C. Category was reserved for Post Graduate Courses in E.N.T. whereas for M.S. (General Surgery) there was no reservation at all and the lone seat was meant for an open category candidate. However, before the admissions were finalised against the advertisement dated 13-6-1996, the respondents issued tresh advertisement and it was stated that 25 per cent seats allotted to D.H.S. for in-service candidates were not to be calculated from the number of seats allotted to junior residents and that had led to increase in the number of Post Graduate registration. Therefore, a revised roster was prepared for January 1996 batch after pooling the previous and newly available P.G. Registrations of the Government Medical College, Aurangabad and S.R.T.R. Medical College, Ambajogai. It is thus clear that for the January-1996 batch the advertisement issued in the month of July-1996 was the final advertisement in supersession of the earlier two advertisements. As per this advertisement in all 42 seats were reserved for degree course at the Government Medical College at Aurangabad as well as S.R.T.R. Medical College at Aurangabad as well as S.R.T.R. Medical College, Ambajogai and 20 seats were reserved for diploma courses. For the admission to Post Graduation in M.S. Surgery at S.R T R. Medical College at Ambajogai there were in all two seats and one seat was for open category candidate and the other seat was for O.B.C. Category candidate whereas for the P.G. (E.N.T.) Course there was only one seat at S.R.T.R. Medical College at Ambaiogai and that lone seat was reserved for an S.C. Category candidate.
Admittedly, the petitioner's application was considered by the respondents for admission to M.S (E.N.T.) at S.R.T.R. Medical College at Ambajogai against the lone seat for S.C. Category candidate and he was granted admission to the said Course which he joined on 27th September, 1996.
4. Subsequently, on 16-11-1996, the respondent No. 3 published another advertisement for Post Graduate Admission against the July-1996 batch and 21 seats were reserved for degree courses whereas 9 seats were reserved for Diploma Courses. As far as Post Graduate (Surgery) Course was concerned, the lone seat allotted to S.R.T.R. Medical College, Ambjogai was meant for an open category candidate and there was no reservation 1 3-1997, the respondent No. 3 published an advertisement for admission to P.G. Courses against January-1997 batch and as per the said advertisement 44 seat were reserved for degree courses whereas 20 seats were reserved for diploma courses. The details of distribution of the seats for different courses indicate that at Government Medical College at Aurangabad, there were three seats and at S.R.T.R. Medical College at Ambajogai; there were two seats for PG. (Surgery-Course). Out of the two seats at S.R.T.R Medical College at Ambajogai, one seat was reserved for O.B.C Category, whereas out of the three seats at Government Medical College at Aurangabad, two seats were reserved for open category candidates whereas one seat was reserved for S.C. category candidates. It is the contention of the petitioner that he addressed a letter dated 12-3-1997 to the respondent No 3 and stated that his original application submitted against January 1996 batch was with first preference for M.S. (General Surgery) and at that time there were no seats available in the said subject and he should be considered for admission to M.S. (General Surgery) Course against January-1997 Batch. The petitioner further stated that there was no time to give three months required prior notice in keeping with the Rules of admission and the said condition be relaxed in his case. He also showed his willingness to resign from M.S. (E.N.T.) Course before he joins the M.S. (General Surgery) Course. The said representation of the petitioner, as contended by the petitioner has not been considered by the respondents and merit list for admission to M.S. (General Surgery) for one seat reserved for S.C. category has been displayed by the respondents, in which the name of the petitioner is not shown, which implies that the application of the petitioner has not been considered. Aggrieved by the said merit list, displayed by the respondents (Exhibit K) to the petition, the petitioner has approached this Court with a prayer to direct the respondents to admit the petitioner for M.S. (General Surgery) Course against the Batch of January-1997.
5. The State Government has formulated the Rules for admission to the Post Graduation Courses under the Government Resolution dated 24-10-1991, more or less in consequence of the judgment of the Full Bench of this Court, dated 16-9-1991 in Writ Petition Nos. 2569 of 1990, 130 of 1991 and 1652 of 1991, reported as Ashwin Prafulla Pimpalwar & others v. State of Maharashtra. . The relevant Rules for admission to Post Graduate Courses, for the present purpose are Rules 2, 5, 6 and 10 which are reproduced hereunder:
"2. Each recognised post-graduate teacher in Clinical Para-Clinical and Basic Medical subject shall admit for Post-Graduate registration not more than two candidates per year in a Unit for University Post-Graduate Degree or Diploma taken together, i.e. one per term of six months or as allowed according to Rules of the Medical Council of India, concurrent registration of same students for Degree and Diploma of any type in a speciality having counted as one seat. The students whose terms are complete will not count. Students whose terms are intimated to be discontinued by the College will also not count. Concurrent registration of same student in 2 specialities a time will not be permitted unless one registration period is over or is discontinued."
"5. Selection of the students amongst those who have applied for admission to the Post-Graduate Degree or Diploma will be on the basis of the marks obtained in the subject at University Examination modified with specified deduction for the number of attempts taken to pass that subject as well as the final M.B.B.S. Examination."
"6. A candidate selected for registration will not in ordinary course be allowed to change his registration from subject to another. A candidate who desires to change registration from one subject to another will have to give three months notice before the commencement of the next term to enable notification of his vacancy for others. Such application will automatically terminate the existing registration and it will be treated as a fresh application for registration in new subject, such application shall bear the signature of the teacher concerned with termination and should be made after full consideration as they are irrevokable once lodged with the Deans Office. Registration by itself has no special priority either in registration or in posts."
"10 The candidate who desires to discontinue his course has 10 give notice three months before commencement of next term and full fees for next three months thereafter will be charged in absence of such notice, if certificate of terms put in is required."
6. In the case of Or. Sheela Kulwal v. State of Mahaharashtra and others, Writ Petition Nos. 3258, 3299, 3264 and 3265 of 1992), , a Division Bench of this Court (Coram : B.N. Deshmukh & V.S. Sirpurkar, JJ.) has held that Rule 2 of 1991 Rules for admissions to the Post Graduate Courses is mandatory whereas Rule 10 of the said Rules is directory in nature depending upon the facts and circumstances of each case. This Court held in the case of Dr. Sheela Kulwal (supra) that requirement of giving three months notice in advance before switching over to a post-graduate course from admission to a Diploma Course was not mandatory and the same could be termed as directory in nature in the facts of that case.
7. The petitioner in the present case, while relying upon the decision of this Court in the case of Dr. Sheela Kulwal(supra) and the 1991 Rules for Admission to Post Graduate Courses has contended that his representation dated 12-3-1997 ought to have been considered by the respondent No. 3 and he ought to have been granted admission to the M.S. (General Surgery) Course against the reserved seat for S.C. Category. Admittedly, the petitioner has scored 255 marks out of 400 marks in the subject of surgery at his M.B.B.S. Examination and all the four candidates whose names appear in the merit list at Exhibit K to the petition have scored less than 255 marks out of 400 marks in the subject of surgery. It is also not in dispute that the petitioner has passed his M.B.B.S. Examination in first attempt. Under the circumstances, there is no doubt that the petitioner is more meritorious than the four candidates appearing in the select list at Exhibit K, against the lone seat reserved for S.C. Category for admission to P.G. (General Surgery) Course However, the question that arises for our consideration is whether the petitioner could be declared as a candidate entitled for admission to M.S. (General Surgery) Course at this stage when already he has been admitted for M.S. (E.N.T) Course against the January-1996 batch and he has joined the said course on 27th September 1996. The reliance of the petitioner on the decision of this Court in Dr. Sheela Kulwal's case (supra) is solely on the ground that the requirement of giving three months prior notice is not mandatory and his undertaking to resign from the course of M S. (E.N.T.) was sufficient to grant him admission to M.S. (General Surgery) against the January-1997 Batch. The other contention of the petitioner that the requirement of Rule 2 of 1991 Rules for Post-Graduate admissions is directory has been over-RuIed by this Court in the case of Or. Sheeta Kulwal. The contention of the petitioner will have to be considered by a combined reading of Rules 2, 6 and 10 of the 1991 Rules for the Admissions to Post-Graduate Courses. The provisions c Rule 6 of 1991 Rules were also considered by this Court in Dr. Sheela Kulwal's case with the context that the petitioners therein were all of them seeking change in admission from Diploma courses to Post Graduate Courses in the same subject and it was not the case of change in admission from one speciality to other speciality.
8. The petitioner has not brought on record the advertisement dated 6-4-1996 as well as a copy of the application for admission as against that advertisement However, by the advertisement issued in July, 1996, all the earlier advertisements issued for January-1996 batch were superseded. The petitioner's application against the said advertisement, if any, is also not brought on record. However, the said advertisement it specifically provided that all those who had applied previously for January-1996 batch were permitted to change their preference for subject and college if they so desired. For consideration of the claim of the petitioner, it is required to be noted that the July 1996 advertisement did not provide for any reserved seat in S C Category at any of the two Medical colleges to the Course of M.S. General Surgery and one seat was reserved for S.C. Category at S.R.T.R. Medical College at Ambajogai for M.S. (E.N.T.) Course. The application of the petitioner was rightly considered for admission to M.S. (E.N.T) on the basis of his merit and specially his marks in the subject of E.N.T. (64 out of 100).
9. In para No. 12 of the judgment in the case of Dr. Sheela Kulwal, this Court observed as under :---
"However, that cannot be the end of this controversy. It will have to be seen as to whether a student, who is already admitted in diploma, could be admitted or could be considered for the admission to the degree course. The words "unless one registration period is over or is discontinued are extremely clear and as to how a student would discontinue his course is provided for in the provisions of Rule 10. A candidate who desires to discontinue his course has to give a notice of three months before the commencement of the next term and full fees for the next three months thereafter will be charged in the absence of such notice, if certificate of terms put in is required. It is therefore, essential for a student for being considered for the admission to the degree course and who is, at the same time, selected or is continuing with a diploma course, to discontinue his term as provided in Rule 10 by giving a notice of three months prior to the commencement of the next term. It is, therefore, essential that the student must get a reasonable opportunity to give such notice before he applies for consideration of his admission to the degree course."
It is thus amply clear that in Dr. Sheela Kulwal's case, this Court has construed the scope of Rule 10 as directory solely in the context of change in admission from Diploma Course to that of a Degree Course in the same subject. In the present case, the claim of the petitioner is for change in admission to Post-Graduate Course from one specialitv namely M.E. (E.N.T.) to another namely M.S. (General Surgery) and to decide this case it is necessary to examine the provisions of Rule 6 of 1991 Rules. The said Rule clearly speaks that a candidate selected for registration will not in ordinary course be allowed to change his registration from one subject to another. A candidate who desires to change registration from one subject to another will have to give three months notice before the commencement of the next term to enable notification of his vacancy for others and such application will automatically terminate the existing registration and it will be treated as a fresh application for registration in new subject. It is, therefore, clear that Rule 10 of the 1991 Rules for admission to Post-Graduate Courses has no application to the facts to the present case and it is only Rule 6 as quoted hereinabove has to be applied in the instant case. The said Rule puts a bar on change of registration from one subject to another in ordinary course. If the provisions of Rule 6 are treated to be mandatory dearly the petitioner has not made out any case to show that the provisions of the said Rule 6 are required to be viewed as directory in his case.
10. After reproducing the provisions of Rule 6, this Court in para 10 of Or. Sheela Kulwal's case has observed as under :
'Time and again, this Rule came to be considered by this Court and it was held that the bar created, by Rule 6 in 1991 Rules applies only for the students who wanted to change from one subject to another and it did not apply to the candidates who wanted to remain in the same subject but desired to change the course from Diploma to Degree."
The provisions of Rule 6 of 1971 Rules have been retained without any change while framing the 1991 Rules" for Admission to Post-Graduate Courses. It has therefore, to be held that the provisions of Rule 6 of the 1991 Rules are mandatory in nature. The above observations of this Court in para No. 10 of the judgment of Dr. Sheela Kulwal's case clearly indicate that Rule 6 of the 1991 Rules for the admission to the Post-Graduate Courses, will come into play while deciding the case of change from one subject to another of RG. admissions and that the said bar is not applicable to the candidates who wanted to remain in the same subject, but desire to change the course from diploma to degree. Obviously, in the instant case, there is no change sought from diploma to degree course and the petitioner is seeking the change from M.S. (E.N.T.) course to M.S. (General Surgery) course. Under the circumstances, the present case is covered by Rule 6 of the 1991 Rule for admission to Post Graduate Courses and the bar of the said Rule squarely operates against him.
11. Even otherwise, the petitioner has already been admitted to the M.S. (E.N.T.) Course for the January-1996 batch. He has completed almost one year of the said course and at the relevant time there was no seat reserved for S.C. Category candidate for admission to M.S. (General Surgery) course. In the background of these admitted facts, if the claim of the petitioner is accepted at this stage, the same would result in a mockery of admissions to Post-Graduate courses in different disciplines and will defeat the very purpose of framing such Rules for admission. The bar of Rule 6 must therefore operate against the petitioner and his claim for admission to M.S. (General Surgery) course for the January-1997 batch cannot be entertained at this be lated stage. The petitioner cannot be allowed to move from one course to another at his free will, in the facts and circumstances of the present case. The petition is, therefore, dismissed, and the Rule is discharged. The respondent No. 3 will now proceed to finalise the admissions to M.S. (General Surgery) Course for the January-1997 batch forthwith and the stay granted by this Court by order dated 31 -3-1997 is hereby vacated. No order as to costs. We, However, direct the respondents to restore petitioner's admission to MS (ENT) course in case he has resigned and has been relieved from the course during pendency of this petition.
12. Petition dismissed.