Madhya Pradesh High Court
Dr. Ashish Dixit And Anr. vs Union Of India (Uoi) And Ors. on 14 August, 1987
Equivalent citations: AIR1988MP271, AIR 1988 MADHYA PRADESH 271, (1988) 19 REPORTS 179, (1988) MPLJ 113, (1987) 2 CURCC 995
Author: Faizanuddin
Bench: Faizanuddin
JUDGMENT S. Awasthy, J.
1. The petitioners passed their M.B.B.S. Examination in May, 1984, from the Government Medical College, Jabalpur, and after completing one year's Compulsory Rotating Internship on 31st May, 1985, obtained 5th and 28th position, respectively, in the Final Fooled Merit List, 1985. The petitioners are registered with the State Medical Council Madhaya Pradesh, and continue to be enrolled with Rani Durgawati Vishwavidyalaya, Jabalpur. The petitioner 1 completed his house job in Moolchand Khairatiram Hospital, New Delhi, with effect from 11-11-1985 to 10-11-1986 in Pediatrics, while the petitioner 2 completed his house-job in General Surgery from Dr. Ram Manohar Lohia Hospital, New Delhi, in the calendar year 1986. Both the Institutions are recognized by the Medical Council of India, but are not attached to any Medical College.
2. The petitioner 1 before joining housemanship at Delhi, was appointed as House Officer in Surgery in the Medical College, Jabalpur, on 15-6-1985. He worked as House Officer in Surgery up to 22-7-1985 and, thereafter, went on leave for his treatment at Bombay. His leave was sanctioned till 28-10-1965, vide letter dt. 17th/18th Oct. 1985 (Annexure R-1) and he was directed to join his duties on 29-10-1985, failing which it was specifically-mentioned that his appointment as House Officer was to be terminated without any further notice. It was also mentioned in the notice to him that leave would not any longer be extended.
3. On receipt of Annexure R-1, the petitioner No. 1 wrote a letter to the respondent on 21-10-1985 informing that he had an appointment with the Bombay Hospital regarding his treatment for Asthma and Rheumatism on 2-11-1985. Hence, he would be able to join his duties on 5-11-1985. A request was made for sanction of further leave from 20-10-1985 to 4-11-1985. No reply to this letter was given and the application for further leave was not considered.
4. It is mentioned in Paras. 4 to 7 of the return as under :--
"4. In fact no medical certificate from his treating doctor was produced in support of his application and his application for leave for above period could not be considered because there is no provision of any leave for a House Officer. The petitioner did not join, on 29-10-1985 as directed earliest, his House Job was terminated by order dt. 30-10-1985, a copy thereof is filed hereto and marked Annexure III. The petitioner did not at any time object to the termination of his House-job.
5. An interesting fact is required to be mentioned here that the petitioner was being treated at Bombay and was declared unfit to travel or work for the post of, House Officer up to 28-10-1985. The petitioner came to Jabalpur during this period and collected his remuneration as House Officer on 9-10-1985. This could not be done if the petitioner 1 was realty ailing as was submitted by him.
6. It is submitted that the facilities for treatment of Asthama as also Rheumatism are available in the Medical College, Jabalpur. The petitioner did not consult the Medical Expert at Jabalpur Medical College. If after treating him here it was found that it was necessary to send him to Bombay, the same would have been done at the College level It appears that the petitioner was not suffering from any such disease and had only taken shelter for purposes of justifying his absence from performing his duties as House Officer.
7. The petitioner, therefore, was guilty of misconduct and brought about circumstances which necessitated termination of his House Job on 30-10-1985. The petitioner 1, instead of coming over to Jabalpur Medical College, sent an application for continuance of House Job, but remained continuously absent."
5. The petitioner No. 2 joined house job in the Department of Medicine with effect from 14-6-1985 and worked till 18-6-1985. He, therefore, applied for leave from 19-6-1985 to 24-6-1985 and applied for extension of his leave by 15 days more. He was absent throughout. A telegraphic notice was issued to the petitioner 2 on 16/20th Aug., 1985, informing him that his leave was not sanctioned and he should positively join by 26th August, failing which his house job would be cancelled. Since the petitioner No. 2 continued to be absent unauthorisedly, his appointment was terminated.
6. On 20-3-1986, respondent 5 invited applications for registration as Post Graduate in the Medical College, Jabalpur. The essential conditions relevant to this case were (1) the person applying for such registration should have completed house job in the subject for which he seeks registration; and (2) the house job should have been done in a hospital attached to the Medical College, Jabalpur. The petitioner 1 applied for his registration for Pediatrics M.D./D.C.H. while the petitioner No. 2 applied for M. S. in General Surgery Anaesthesia. The applications of both the petitioners were rejected on the ground that (1) they had not done the house jobs in the subjects they had opted for such appointments in the Medical College, Jabalpur; and (ii) their house jobs were terminated on account of misconduct and/or gross indiscipline; and that the provisions of Ordinance No. 57(2)(a) of Rani Durgawati Vishwavidyalaya, Jabalpur, do not permit admission of a candidate who had not done his house job in the Medical College, Jabalpur.
7. The petitioners have challenged the order of rejection of their applications for registration in the Medical College, Jabalpur, for post-graduation as stated above.
8. The learned counsel for the respondents 3, 4 and 5 argued that under the provisions of Ordinance No. 37(2)(a) framed by Rani Durgawati Vishwavidyalaya, Jabalpur, resorting to the provisions of Sections 37 and 38 of the M. P. Vishwavidyalaya Adhiniyam, 1973, it is obligatory that the housemanship should have been done in a hospital attached to the Medical College for a period of one year. In the case of the petitioners, they had not done the house-job in a hospital attached to the Medical College, Jabalpur. Hence, they were not eligible for appointment. It is submitted that the rules for appointment of a House Officer as framed by the Government of Madhya Pradesh, Public Health and Family Welfare Department, Bhopal, vide their Notification No. 4556/8442/17/Med. 2 Bhopal dt. 12-10 1983 called "Revised-Rules for Selection of Candidates for appointment as House Officers in the Medical Colleges" (Annexure I), require that the candidates who have graduated from the same Medical College and completed their internship during the calender year, would be eligible for house-job (Rule 3 of the said Rules). It is also submitted that under Rule 10, the choice of subject exercised by a candidate before the College and Hospital Council will not be allowed to be changed afterwards. Under Rule 12(a), change from one department to another, cannot be allowed under any circumstance. It is further submitted that any act of professional misconduct or gross indiscipline would render House Officer liable to removal from the College. On the strength of these Rules, it is submitted that the option given by the petitioners before the College Council has been changed by them and, therefore, they would not have been admitted for post-graduation in a subject which they had not opted before the College Council. Since their appointment as House Officer was terminated because of their misconduct, or, at any rate, because of their act of gross indiscipline, they were liable to be not considered for registration. It is also submitted that under Rule 4(2) of Ordinance No. 7 of Rani Durgawati Vishwavidyala. Jabalpur, a candidate has to possess requisite qualifications for admission to a course for which he has to appear in the examination. Since the petitioner had not fulfilled the requisite qualifications for appearing in the post-graduation, they were not entitled to be registered for that course. It is also submitted that the Government of Madhya Pradesh, Public Health and Family Welfare Department, framed Rules, viz., Rules for post-graduation (MD/MS Course) in Clinical, Para-Clinical and Non-Clinical Discipline in Medical Colleges in Madhya Pradesh (Annexure H), which require that the candidate should complete the house-job from the hospital of the Medical College and, in case, the candidate fails to complete the house-job or is guilty of misconduct or any act of gross indiscipline, which, in the opinion of the Dean, renders him liable to such punishment, or, who, after finishing his regular house-job, takes up service outside the State, shall lose his eligibility.
9. A reference has been made to the Recommendations of the Medical Council of India on Post-graduate Medical Education which have been approved as 'Regulations' under Section 33 of the Indian Medical Council Act, 1956, by the Government of India. The criteria for the selection of candidates to the said course are as under : --
(a) Students for post-graduate training-should be selected strictly on merit judged on the basis of academic record in the under graduate course. All selection for postgraduate studies should be conducted by the Universities.
(b) The candidates should have obtained fu11 registration i.e., they must have completed satisfactorily one year of compulsory rotating internship after passing the final M.B.B.S. Examination and must have full registration with State Medical Council.
(c) They must subsequently have done one year's housemanship prior to admission to the post-graduate degree or diploma course. Housemanship should preferably be for one year in the same subject or at least six months in the same department and the remaining six months in an allied department, provided that in departments like Radiology/ Anaesthesiolpgy/Physical Medicine and Rehabilitation where suitable candidates who have done housemanship in the respective subject for the respective speciality are not available then the housemanship in Medicine and/or in Surgery may be considered as sufficient. Work done by the District Epidmiologist is in the P. Falciparum Containment Programme (PECP) for a period of one year may be considered at par wit h the requirements of house-job required for admission to post-graduate course in Social and Preventive Medicine."
10. The period of training, as prescribed under the Rules, is as under : --
"Period of training.
The period of training for M.D., M.S. shall be 3 years after full registration including one year of house job or equivalent thereof and for Diploma courses, 2 years after full registration including one year of house-job. The Council encourages universities or medical institutions to have a longer period of training as this Council's recommendations are for minimum requirement. The Council, however, emphasises that thorough and intensive training on a planned programme should be given to the students, during all stages of the course and such programme should be available for the inspection and scrutiny of the Council during its visitation."
11. It is submitted by the learned counsel for the respondents that unless the Medical Council of the College has got the opportunity of observing the candidate, it was not possible to assess the candidate's merit for his selection to the said course. It is because of this reason that the housemanship must be done in a hospital under the Medical College.
12. Lastly, it is submitted that the petitions themselves allowed the time schedule to run out. The candidates, viz., respondents 6 and 7 (Dr. Sandesh Govil and Dr. Shyam Sunder Khanna), who were selected for the registration, have almost completed their course. Hence, it would be unjust to oust them and not to permit them to appear in the said examination. It is submitted that the petitioner's claim, if any, is liable to be rejected on this count.
13. We shall first consider the case of the petitioner 1 regarding termination of his housemanship by order dt. 30-10-1985 (Annexure R-III). The leave of the petitioner was sanctioned up to 28-10-1985 and he was informed to join on 29-10-1985. He has given his reasons and made a request for extending the leave up to 4-11-1985, but his application was not considered; and his house-job was terminated. No enquiry was made. No opportunity was given to him to substantiate his assertions. It is true that the housemanship of the petitioner was terminated but not because of any act of gross indiscipline or misconduct. He was neither heard nor rule of natural justice followed. The defence taken in the return by the respondents is apparently an afterthought and with a view to put up a case in defence. The case of the petitioner 2 is also on similar lines with slight difference that the petitioned did not apply for extension of leave and remained absent till his housemanship was terminated. We hold that both the petitioners did not commit any act of gross indiscipline or misconduct. They could not be punished in the manner as has been alleged in the present case. According to us, they did not incur any disqualification for the post-graduation course on this count.
14. The argument of the learned counsel for the respondents regarding ineligibility due to change of subject, is also not acceptable to us. The petitioners never applied for the change of subject during their housemanship in the Medical College at Jabalpur. Their housemanship was terminated and there was no question of changing the subject for the house-job at Jabalpur. Had their house-job continued at Jabalpur Medical College, the Rule would have prohibited them from changing the subject, but their house job at Jabalpur had come to an end. They had done the house-job in different subjects. Since the housemanship for one year had been done, the question regarding change of subject does not arise. We are of the view that the said Rule would not render them ineligible for their registration in the Medical College at Jabalpur for post-graduation.
15. The counsel for the respondents argued that unless a candidate had done housemanship in a hospital under the Medical College, Jabalpur, he would not be eligible for admission to the post-graduate classes. It is not suggested that the hospitals at Delhi, where the petitioners have done housemanship, are not recognised hospitals or incapable of imparting training as required under the 'Regulations' approved by the Government of India under Section 33 of the Indian Medical Council Act, 1956. What is required under the 'Regulations' is that the candidate should have done one year's housemanship in the subject in which he wants admission. A candidate, who has done housemanship in a recognised hospital, has equipped himself with the training which is requisite for admission to the post-graduate classes in the Medical College where the candidate is to be registered. The required qualification is the training in the subject by doing housemanship for one year. Of course, the house-job should have been done in a recognised hospital. The insistence that the house-job should be done in a hospital under the Medical College concerned, is an unreasonable condition.
16. In Dr. Mrs. Alka Rahalkar v. State of M. P., M. P. No. 3880 of 1986, D/- 21-4-1987 (reported in (1987) 4 IJ Rep 465) this Court ruled that the reservation made in respect of students of the same college should not exceed 70% of the open general seats. Hence, the institution could not have insisted on filling all the seats by the students, of the same college; the out-siders, if meritorious, should have been considered.
17. In Dr. Nirmal Lakhotiya v. State of M. P., M. P. No. 1820 of 1986 (reported in AIR 1987 Madh Pra 167) another Division Bench of this Court held that the house-job done in the hospital of the Bhilai Steel Plant, Bhilai, was considered to be house-job done in the Medical College, Raipur.
18. In the case of Pradeep Jain v. Union of India, AIR 1984 SC 1420, it has been held that reservation on the basis of residence requirement within the State and institutional preference cannot exceed 70% of open seats, wholesale reservation on aforesaid grounds is violative of Article. 14 of the Constitution. In the case of Dr. Vinay Rampal v. State of J. and K., AIR 1983 SC 1199, it has been held that the rules or Government instructions must be in conformity with the Regulations framed by Indian Medical Council. In the case of Dr. Jagdish Saran v. Union of India, AIR 1980 SC 820, it has been held that "The constitutionality of institutional reservation must be founded on facts of educational life and the social dynamics of equal opportunity. Political panic does not ipso facto, make constitutional logic." ".......reservation must be kept in check by the demands of competence." ".......the State's duty is to produce real equality, rather egalitarian justice in actual life. If university-wise classification for post-graduate medical education is shown to be relevant and reasonable and the differentia has a nexus to the larger goal of equalisation of educational opportunities the vice of discrimination may not invalidate the rule. Even so. what is fundamental is equality, not classification. What is basic is equal opportunity, for each according to his ability, not artificial compartmentalisation and institutional apartheid using the mask of handicaps."
19. In the case of Dr. Dinesh Kumar v. Motilal Nehru, Medical College, Allahabad, AIR 1985 SC 1059, it has been held that the relative merits with reference to the marks obtained by them should be uniform and at the same qualifying examination. In the present case, the petitioners have scored more marks in the same examination than the marks obtained by respondents 6 and 7 who have been admitted to the post-graduate courses. Hence, the petitioners are more meritorious than some of those who have already been admitted by the Medical College at Jabalpur for post-graduation.
20. In the case of State of Bihar v. Asis Kumar Mukherjee, AIR 1975 SC 192 it was held "........ an obligation to consider every qualified candidate is implicit in the 'equal opportunity' right enshrined in Articles 14 and 16 of the Constitution. Screening a candidate out of consideration altogether is illegal if the applicant has eligibility under the regulations framed under Section 33."
21. In the result, we are of the view that the restriction imposed vide order dt. 30-10-1985 (Annexure R-III) as well as order dt. 2-9-1985 (Annexure R-VI) is unreasonable. The petitioners cannot be denied admission in the post-graduation courses in the Medical College at Jabalpur. The condition imposed in the said orders debars meritorious students from prosecuting higher studies in the Medical College at Jabalpur. Hence, this amounts to unconditional (sic) restriction. The merit of a candidate is to be preferred to other superfluous considerations.
22. We allow the petition and direct that the respondents 1 to 5 shall register and admit the petitioners in the Medical College at Jabalpur for their post-graduation studies and permit them to prosecute their studies in the session commencing from 17th Aug., 1987, or any other date hereafter. The respondents 6 and 7, viz., Dr. (Kum.) Sandesh Govil and Dr. Shyam Sunder Khanna, shall also continue their studies and they shall be eligible to appear in their examination. A similar view was taken in the case of Dr. Vinay Rampal v. State of Jammu and Kashmir, AIR 1983 SC 1199. We direct the parties to bear their costs of this petition. The outstanding amount of security, if deposited, shall be refunded to the petitioners.