Rajasthan High Court - Jaipur
Dr. Abhishek Vyas Son Of Dr. B.L. Vyas vs State Of Rajasthan on 2 April, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 5995/2019
Dr. Abhishek Vyas Son Of Dr. B.L. Vyas, Aged About 27 Years,
Resident Of Inside Usta Bari, Near Daftari School, Bikaner.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Chief Secretary,
Government Of Rajasthan, Secretariat, Jaipur.
2. The Principal Secretary, Department Of Personnel,
Government Of Rajasthan, Secretariat, Jaipur.
3. The Chairman, NEET PG Medical & Dental
Admission/Counseling Board And Principal & Controller
SMS Medical College & Attached Hospitals Jaipur, SMS
Medical College, Jaipur.
----Respondents
For Petitioner(s) : Mr. Rajendra Prasad, Senior Advocate
assisted by Mr. Sahir Hussain, Adv.
Mr. Kushagra Sharma, Adv.
Ms. Purvi Mathur, Adv.
For Respondent(s) : Mr. M.S. Singhvi Advocate General
with Mr. Raunak Singhvi, Adv.
Mr. R.N. Mathur Senior Advocate with
Mr. Shovit Jhajharia, Adv.
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Order
02/04/2019
1. A copy of the writ petition was made available to the
Advocate General who have filed their reply in the Registry. At the
request of the learned counsel for the parties requirement of
notice to MCI is dispensed with.
2. With the consent of learned counsel for the parties the
matter is being heard finally at this stage taking into consideration
the nature of the case.
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3. Learned Senior Counsel appearing for the petitioner submits
that the notification issued for providing 5% reservation to More
Backward Classes for admission into Educational Institutions and
Posts in the State has been brought in force w.e.f. 13.02.2019 and
the said notification would not apply to the selection process which
has already been initiated under the National Eligibility cum
Entrance Test 2019. The selection was conducted for PG Selections
PAN India on 06.01.2019. Learned Senior Counsel submits that as
per the Information Bulletin the last date for submitting the
application was 22.11.2018. The Instruction Booklet provided for
counselling to be conducted for State seats as per the reservation
policy and guidelines applicable in the State for the State Quota
seats. It is his submission that as per the existing reservation
policy on the date when the selection process was started since
notification dated 13.02.2019 was not in force therefore the 5%
reservation provided for More Backward Classes was not available
in the State of Rajasthan. It is his submission therefore that the
counseling has to be conducted in terms of the then existing
reservation policy and the notification cannot have a retrospective
effect. Learned counsel submits that seats for PG for State of
Rajasthan are already determined on the day when the
examination is conducted and the counseling is merely a process
of allotment of seats in the various medical colleges thus the
reservation of seats for admission is to be understood on the day
when the advertisement or the Instruction Booklet was issued for
examination. Learned counsel submits that the game rules cannot
be changed during the game. Learned counsel has relied on law as
laid down by the Supreme Court in the case ofM. Surendra
Reddy Versus State of Andhra Pradesh & Ors. (2015) 8 SCC
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410 and Dr. Himanshu Shekhar Sahoo and Others Versus
State of Odhisha & Ors. 2013(2)ILRCUT355 as well as AIR
1990 SC 1233 N.T. Bevin Katti, etc. V. Karnataka Public
Service Commission and Others, in support of his aforesaid
submissions.
4. Per contra, learned Advocate General submits that
notification dated 13.02.2019 has not been challenged by the
petitioners, it provides for 5% reservation for More Backward
Classes and the said reservation has to be applied while making
admissions. In terms of the Instruction Booklet, the reservation is
applicable on the date of counseling and not on the date of
issuance of Information Booklet/Bulletin. As the counseling is to
take place now, i.e. after the notification has been issued on
13.02.2019, it is his submission that the same will have an
application as it is not a case where the rules of the game have
changed in between. He further submits that the reservation
policy as is applicable on the day reservation is enforced.
5. Learned Advocate General has also relied on judgment in the
case of Manish Kumar Nagda & Ors. Versus State of
Rajasthan & Ors. passed by Coordinate Bench in S.B.C.W.P.
No.8529/2018 wherein the Coordinate Bench extended the benefit
of TSP reservation to the residents of the TSP Area and allowed
the petitioners to migrate from the same posts of teachers to the
TSP Area. Learned Advocate General also relied on Lalit Kumar
Versus The University Grants Commission New Delhi & Ors.
(SBCWP No.7545/2017) wherein the Coordinate Bench has
allowed the amendment made by the UGC in Regulation 3.4.1
extending the scope of relaxation of 5% to OBC Creamy Layer on
the recruitment process granting the 5% relaxation for
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assessment of good academic record. Thus, he submits that in on
going process the beneficial legislation ought to be given to the
candidates.
6. I have heard the learned counsels for the parties.
7. In M. Surendra Reddy Versus State of Andhra Pradesh & Ors.
(supra) the Apex Court was examined selections which were being
conducted for recruitment on various posts in the State
Government. The GOM dated 07.03.2002 was issued during the
selection process. The Supreme Court has held that the same is a
procedure law regarding reservation in the matter of selection to
Posts and the same cannot be given a retrospective effect and any
order amending a procedure law regarding reservation in the
matter of selection to posts cannot be given a retrospective effect
once the process of selection has already started.
"26. In absence of any express or necessarily
implied provision in the statute, normally statute
affects the rights prospectively. A statutory
provision is held to be retrospective either when it
is so declared by express terms, or the intention to
make retrospective clearly follows from the
relevant words and the context in which they
occur."
8. In the case of Dr. Himanshu Shekhar Sahoo and Others
Versus State of Odhisha & Ors. (supra) while relying on 2005
(4) SCC 154 Secretary A.P. Public Service Commission
Versus B. Swapna and Others and law laid down in K.
Manjusree Versus State of Andhra Pradesh And Another,
2008 (3) SCC 512, the Odhisha High Court has held that during
the selection process amendment made would not apply:-
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"15. Since applications had been called for by
the NBE between 4th October 2012 to 12th
November, 2012 i.e. before midnight of 12th
November 2012, the law prevailing at the time
of submission of application would alone be
relevant and no subsequent law or policy.
Although it is contended by the State that the
State was contemplating amendment to the
eligibility criteria of "in-service candidates" from
five years to three years in the counter affidavit
in Paragraph-21, the stand of the State is
unambiguous and clear. We can do no better
than to extract Paragraph-20 of the counter
affidavit of the State which is as follows:
"20. That, the State Government had not issued
any guideline for allotment of candidates for Post
Graduate (Medical) courses in the Govt. Medical
Colleges of Odisha as the NEET (Post Graduate)
for MD/MS/Post Graduate Diploma Courses 2013
admission sessions which was challenged before
the Hon'ble Supreme Court and the Hon'ble
Supreme Court order dated 13.12.2012 in which
the Hon'ble Supreme Court had given liberty to
hold the examination and directed not to declare
the results. The State Government though had
taken a policy decision to hold to the counseling
only was able to issue the Guideline on
27.05.2013 after the order dated 13.05.2013
was passed wherein the Hon'ble Supreme Court
had lifted the bar imposed on 13.12.2012 and
allowed the results already conducted to be
declared to enable the students to take
advantage of the same for the current year. But
the decision was taken by the Government,
regarding the guidelines for admission
counseling for admission to the P.G. course,
2013. The DMET, Odisha had moved the file for
approval of the guidelines for admission to P.G.
courses on 11.04.2012 which was finally decided
on 29.04.2013 by the Government regarding the
conditions/eligibility etc. for admission to the
course, where in it was decided that 3 years
continuous service will be taken for
consideration instead of five years for inservice
doctors and the said decision of the Government
was communicated along with the guideline to
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the DMET, Odisha on 27.05.2013 in continuation
to the earlier letter of the Government which
was issued to DMET by the Government. xx xx"
17. In this respect, it is important to refer to the
judgment of this Court in the case of Bishnu
Charan Mohanty V. State of Orissa and Others,
AIR 1973 ORISSA 199, where this High Court
after referring to various leading judgments of
the Hon'ble Apex Court dealt with the scope of
Article 166(3) of the Constitution of India and
concluded that while Article 166(3) of the
Constitution lays down that "until such an order
reaches the person concerned, it does not attain
any finality. It is open to Government even to
recall a letter sent to another office before it
reaches the person concerned. When, however,
the order is communicated to the person
concerned, the order becomes final."
Therefore, the decision of the State Government
though signed by the Hon'ble Minister on
29.4.2013, was approved by the Hon'ble Chief
Minister on 21.5.2013 and communicated to the
person concerned i.e. DMET, Odisha on
27.5.2013 and, therefore, the date 27.5.2013
has to be held the date on which the order was
given effect to. Much prior thereto applications
had been called for, examination had been held
and results had also been declared. The law that
was applicable to the State of Odisha, on the
date of applications were made prior to midnight
of 12.12.2012 and such law and/or policy
prevailing at that time alone will govern the
matter of admission for PG (Degree) Course for
the year 2013.
We are further of the considered view that even
though the impugned guideline have been issued
by the State prior to the counseling for the year
2013, yet, the selection process having already
commenced on the date of application i.e.
12.11.2012, the law/policy/guideline as it
prevailed on the last date of application would
govern the case at hand.
18. Taking into consideration of the judgments
of the Hon'ble Supreme Court in the case of
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Secretary, A.P.Public Service Commission
(supra), K.Manjusree (supra) and Mohd. Raisul
Islam and others (supra), it is well settled
principle of law that once the process of
selection has started, the prescribed selection
criteria cannot be changed and further that,
introducing of any change into eligibility criteria
after the selection process has commenced,
would amount to changing the game after the
game has been played. It is also further well
settled that in the present case, the selection
process commenced from 12th November, 2012
(i.e. the last date of making online application)
and therefore, any requirement/selection has to
be made on the basis of the process/ policy/law
existing on the said date. We are of the further
considered view that while the State is at liberty
to change its policy and we are not required to
comment upon the justifiability and reasonability
of such a change of policy. We are of the view
that the impugned guidelines/policy would
operate only prospectively i.e. from 27.5.2013
for future examinations that may be conducted
but insofar as admission of P.G.(Medical) Course
for "in- service candidates are concerned for the
year 2013, Clause-F-2 of the impugned
guidelines cannot be made to apply to such
admissions into the seats reserved for "in-
service candidates" for the year 2013-14."
9. In N.T. Bevin Katti, etc. V. Karnataka Public Service
Commission and Others (supra) the Apex Court has held as
under:-
"11. There is yet another aspect of the question.
Where advertisement is issued inviting applications
for direct recruitment to a category of posts, and
the advertisement expressly states that selection
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shall be made in accordance with the existing Rules
or Government Orders, and if it further indicates the
extent of reservations in favour of various
categories, the selection of candidates in such a
case must be made in accordance with the then
existing Rules and Government Orders. Candidates
who apply, and undergo written or viva voce test
acquire vested right for being considered for
selections in accordance with the terms and
conditions contained in the advertisement, unless
the advertisement itself indicates a contrary
intention. Generally, a candidate has right to be
considered in accordance with the terms and
conditions set out in the advertisement as his right
crystalises on the date of publication of
advertisement, however he has no absolute right in
the matter. If the recruitment Rules are amended
retrospectively during the pendency of selection, in
that event selection must be held in accordance
with the amended Rules.
Whether the Rules have retrospective effect or not,
primarily depends upon the language of the Rules
and its construction to ascertain the legislative
intent. The legislative intent is ascertained either by
express provision or by necessary implication, if the
amended Rules are not retrospective in nature the
selection must be regulated in accordance with the
Rules and orders which were in force on the date of
advertisement. Determination of this question
largely depends on the facts of each case having
regard to the terms and conditions set out in the
advertisement and the relevant Rules and orders.
Lest there be any confusion, we would like to make
it clear that
a candidate on making application for a post
pursuant to an advertisement does not acquire any
vested right for selection, but if he is eligible and is
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otherwise qualified in accordance with the relevant
Rules and the terms contained in the
advertisement, he does acquire a vested right for
being considered for selection in accordance with
the Rules as they existed on the date of
advertisement. He cannot be deprived of that
limited right on the amendment of Rules during the
pendency of selection unless the amended Rules are
retrospective in nature."
10. Having noted the aforesaid law, this Court finds that the
present case is a case relating to admissions to Educational
Institutions and is not a case relating to recruitment however one
thing is similar that the selection process is required for
recruitment as well as for admission similarly and conditions and
rules for both are laid down in the advertisement. There is already
a determination of seats for admission to PG Course, 50% of the
seats available in the State of Rajasthan would have to be handed
over to the Central Government and the remaining 50% of the
seats would be filled by the State. Counseling for the Central
process is done as provided under the Information Booklet by the
Central Agency while the State seats are to be filled by counseling
to be done at the State level. Reservation accordingly has to be
also applied.
11. Question as to what reservation is to be applied in State of
Rajasthan for admission to PG Courses is the only aspect which
needs to be addressed too. Admittedly the last date of application
was 22.11.2018 and on that date the reservation policy as existing
in the State of Rajasthan did not provide for additional 5%
reservation for More Backward Classes. The seats which were
determined for admission in the colleges for State of Rajasthan
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had to be bifurcated according to the reservation policy as existing
on the last date of application. In my considered view therefore,
the new reservation policy as substituted vide notification dated
13.02.2019 providing for 5% More Backward Classes could not be
applied retrospectively on the selection process which had already
commenced in November 2018 in terms of the NEET notification
issued by the National Board of Examination. The reservation
policy as existing on the last date of application in the State of
Rajasthan would therefore remain in force for the selection and
the State Government and its authorities are bound to make
admissions accordingly.
12. The aspect relating to Manish Kumar Nagda as pointed out
by learned Advocate General was distinguishable in the said case.
The TSP area notification issued under the constitutional scheme
provided the candidates of the said area to be given additional
benefit and for the said purpose a corrigendum was issued by the
RPSC on 04.06.2018 extending the last date of application. In the
case of Lalit Kumar the UGC Regulations already provided
relaxation of 5% marks under the Regulations of 2010 at UG Level
by clarification the same was also made applicable at PG Level but
the advertisement dated 12.01.2015 did not provide regulations of
5% in good academic record at the graduate level taking into
consideration the provisions of 2010 regulations to be mandatory
the Coordinate Bench directed that the same would be applicable
to the State of Rajasthan and on the advertisement itself in both
the cases whether the amendment has been introduced during the
selection process and hence both the judgments are not applicable
in the present case.
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13. My view is further fortified in view of the law as laid down in
the judgments as cited above by counsel for the petitioner.
14. Therefore the respondents are restrained from providing reservation in terms of notification dated 13.02.2019 on the on going counseling admission process NEET PG Examination 2019 and the reservation policy as existing on the last date of application shall be followed for admission.
15. Accordingly, the writ petition is allowed.
(SANJEEV PRAKASH SHARMA),J R.Vaishnav 122. (D.B. SAW/593/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 07:12:14 AM) Powered by TCPDF (www.tcpdf.org)