Bombay High Court
Komal Kamlakar Chitnis And Others Etc. vs Director, Medical Education And ... on 11 October, 1994
Equivalent citations: AIR1995BOM1, (1995)1UPLBEC463, AIR 1995 BOMBAY 1, 1995 (1) BOM CJ 161, (1995) 1 APLJ 19.2, 1995 BOMCJ 1 161, (1995) 1 MAHLR 52, (1994) 8 SERVLR 1
Author: S.H. Kapadia
Bench: S.H. Kapadia
ORDER Tipnis, J.
1. All these writ petitions came up for final hearing before the Bench of D. R. Dhanuka and Vishnu Sahai, JJ. By order dated 27-9-1994 the Bench observed that the petitions involved consideration of the following questions:--
(i) Whether the Rules for selection to M.B.B.S./B.D.S. Courses and particularly Rule 3.3.0 prohibit the candidates like the petitioners passing qualifying examination in March, 1993 as ineligible for seeking admission to M.B.B.S./B.D.S. courses for the academic year 1994-95?
(ii) Whether Rules for admission to M.B.B.S./B.D.S. courses for the academic year 1994-95 issued and published by the State Government on 19th June, 1994 and particularly Rule 3.3.0 treats the candidates passing the qualifying examination i.e. H.S.C. 12th Standard) examination in the month of March, 1994 alone as eligible for admission to such course?
(iii) Whether the view taken by the Division Bench of our High Court i.e. Aurangabad Bench, Aurangabad in Writ Petition No. 2143 of 1994 and companion matters requires reconsideration by larger bench of this Court?
2. After summarising the facts of the concerning writ petitions and the "Rules for Admission" to the Government and Private medical, dental, ayurvedic, homoeopathic and unani courses for degree courses for the year 1993-94 and the rules published on 10-6-1994 for selection to M.B.B.S. and 8.D.S. courses for the year 1994-95 and Rule 3.3.0 thereof in particular, the Bench observed that Rule 3.3.1 did not prescribe as condition of eligibility that the applicant must have necessarily passed higher secondary certificate examination of the Board during the current year only. The Bench further observed that in Writ Petition No. 2143 of 1994, Aurangabad Bench had taken a view to the effect that the said Rule 3.3.0 of the Government Resolution dated 10-6-1994 must be read down so as to restrict the admission for the M.B.B.S. and B.D.S. courses to the students who have passed their qualifying examination during the current year 1994-95 only.
3. The Bench observed that the basic controversy arising in all these writ petitions is whether the condition of eligibility prescribed by the Government Resolution dated 10-6-1994 can be read down so as to exclude all those who had passed their qualifying examinations during the earlier years. The Bench specifically observed that it has been the contention of the State of Maharashtra and. the prescribed authorities throughout that it has been the consistent practice in the State throughout so as not to exclude the students who had appeared in the qualifying examination during the earlier years.
4. The Bench has expressed its inability to subscribe to the view taken by the Division Bench at Aurangabad in the above-referred decision. According to the Bench, Rule 3.3.0 must be interpreted according to its plain language and it is not open to the Court to add words or subtract words while interpreting the rule. The Bench observed that it was not satisfied that the abovereferred Rule 3.3.1 would have been exposed to the risk of being declared ultra vires Art 14 of the Constitution of India; if it was interpreted to mean and include all students who have passed their qualifying examinations in one year or another. In the situation, the Bench observed that it was not persuaded to follow the ratio of the judgment of the Division Bench of this Court at Aurangabad in Writ Petition No. 2143 of 1994 and, therefore, it felt that it was their plain duty to make a recommendation to Honourable the Chief Justice to refer all these petitions to the larger Bench for the purpose of considering the question formulated by the Court. The Bench, therefore, directed the registry to place the papers of all these writ petitions before Honourable the Chief Justice with a request that the larger Bench be constituted for deciding these petitions.
5. The matters having been placed before Honourable the Chief Justice, the following order was passed.
"Let all the writ petitions, being Nos. 3867, 3615, 3875, 3876, 3878, 3879 and 3995 of 1994, be disposed of by a larger Bench consisting of:--
1. V. P. Tipnis, J.,
2. A. V. Savant, J. and
3. S. H. Kapadia, J.
The learned Judges shall dispose of the petitions themselves and not merely determine the questions raised in the Order of Reference. All other writ petitions, if any, involving similar questions, shall also stand assigned to this Bench."
6. It may be noted that excepting writ petitions which were before the Bench consisting of D. R. Dhanuka and Vishnu Sahai, JJ., no other petition has been placed before us. However, during the hearing of these petitions Advocate Solshe desired to intervene on behalf of 3 students from Aurangabad who have passed the qualifying examination in October, 1993; result of which examination was declared on 1-1-1994. We permitted Advocate Solshe to intervene and to make his submissions. Shri D. B. Bhosale, Advocate, also was permitted to intervene and make his submission on behalf of the petitioners in writ petition No. 2157 of 1994 which was decided by the Bench at Aurangabad. Some parents whose wards have passed the qualifying examination, namely, standard 12th examination in October, 1993 also made their submissions which are exactly identical to the submission made by Shri Solshe.
7. It is clear to us that by the order of Honourable the Chief Justice all the petitions have been placed before us for final disposal on merits and not merely to determine the question raised in the order of reference.
8. Shri Bora the learned Advocate appearing for the petitioners in Writ Petition No. 3867 of 1994 submitted that all the petitioners passed 12th standard examination held in March, 1993. The petitioner applied for admission for M.B.B.S. course for the academic year 1993-94 but could not get admission against the free seats. The petitioners were not in position to raise the funds for payment seats. Therefore, they could not avail of payment seats. They have therefore now applied for admission to the M.B.B.S./ B.D.S. course for academic year 1994-95 for free seats as well as payment seats. The petitioners' names appeared in the regional provisional merit list displayed on 9-7-1994. On 6-7-1994, Government issued a Resolution, which, according to the petitioners, impliedly permitted the students who had passed the qualifying examination in the year 1993 and who had already secured admission to various medical courses for the academic year 1993-94 or earlier thereto to seek admission to medical course for the academic year 1994-95. Writ Petition bearing No. 2143/94 was filed before the Aurangabad Bench challenging the legality of the aforesaid Resolution dated 6-7-1994 by the students who had passed the qualifying examination held in March, 1994. By an interim order the State and the Authorities were restrained from admitting the students who had secured admission to the medical course in the previous years. On August 31, 1994, the Division Bench at Aurangabad, by final order in the afiresaid Writ Petition No. 2143 of 1994 directed the Authorities to prepare a merit list excluding the candidates who had passed the qualifying examination in the year 1993 or in prior years thereto. He contended that rule of eligibility was not challenged at all. The basic challenge was for apprehended selection of the candidates who had secured admission to medical course in the previous years. He submitted that the ultimate order passed by the Bench at Aurangabad, holding that students who had passed the qualifying examination in the year 1993 or prior thereto cannot be considered for admission to the medical courses for the academic year 1994-95 is not correct. After referring to various rules he submitted that the petitioners cannot be legitimately denied the consideration for admission to the medical courses for the academic year 1994-95 solely on the ground that they have passed the qualify ing examination in the year 1993. Therefore, he submitted that the petitioners are eligible for admission as per rule 3.3.0 of the rules framed in that behalf by the State Government for admission to M.B.B.S. and B.D.S. course for the academic year 1994-95. He submitted that, as a matter of fact, the Government understood it to be so, and therefore, names of the petitioners have been included in the regional provisional merit list. He submitted that it has been a consistent practice of the State to allow the students to seek admission to the medical course although they have passed the qualifying examination in the previous years. He submitted that in the petitions before the Bench at Aurangabad the only restricted prayer was to quash Resolution dated 6-7-1994 inasmuch, as it implied that even the students who have secured admission for medical courses in the previous years are also eligible for admission to medical courses for the academic year 1994-95. He submitted that the rule of eligibility cannot be read down in the manner done by the Division Bench Aurangabad. Incidentally, we may mention that Shri Bora himself had appeared for the petitioners in Writ Petition No. 2143 of 1994 before the Aurangabad Bench.
9. Shri Thorat the learned counsel appearing for the petitioners in Writ Petition Nos. 3875/1994, 3876/1994, 3877/1994, 3878/1994 and 3879/1994 submitted that all the petitioners had appeared for the qualifying examination in the month of March, 1993 excepting the petitioner in Writ Petition No. 3877 of 1994 who had passed the qualifying examination in March, 1992. He also submitted that the Aurangabad Bench ruling to the extent it completely bars these students, who had passed the qualifying examination either in the year 1993 or in the years previous thereto; from being eligible for admission to the medical courses for the academic year 1994-95; is clearly incorrect and requires to be reconsidered.
10. Dr. Shivade learned counsel appearing for the petitioner in Writ Petition No. 3615 submitted that the petitioner also passed his qualifying examination in March, 1993 and although he applied for admission during the academic year 1993-94, he could not get the admission and was kept on waiting list. The petitioner applied for admission for the academic year 1994-95. However, he was told that since he has passed the 12th standard examination in the year 1993 his case will not be considered. He will not be considered as eligible for obtaining a seat for the academic year 1994-95. He challenged the correctness of the judgment of the Aurangabad Bench and submitted that the application of doctrine of legitimate expectation by the learned Judges who decided Writ Petition No. 2143/ 1994 at Aurangabad is erroneous. Totally barring the candidates who have passed the qualifying examination in the year 1993 or in the years previous thereto; for finding the rule of eligibility in conformity with the provisions of Art. 14 of the Constitution of India is also not correct in law. Identical submissions were made by Smt. Patil, learned counsel appearing for the petitioner in Writ Petition No. 3995 of 1994
11. Shri Solshe, Advocate, who was permitted to intervene in the matter on behalf of the some students from Aurangabad who had passed the qualifying examination held in the month of October, 1993 and the result of which examination was declared on 1-1-1994, submitted that the ruling of the Aurangabad Bench completely bars such students even though they never got any chance at all to apply for the admission to the medical courses at any time and the rules cannot be interpreted in such a fashion as to totally bar the students without offering them any chance of consideration.
12. Shri D. B. Bhosale who was permitted to intervene on behalf of the petitioners in Writ Petition No. 2157 of 1994 which was decided along with Writ Petition No. 2143 of 1994 by the Division Bench at Aurangabad, submitted that for the qualifying examination of the 12th standard held in the year 1993 the assessment was regionwise and there was no centralised assessment. While in the year 1994, the assessment was centralised, which, according to Shri Bhosale, has resulted in lesser percentage obtained by the candidates who had appeared for the 12th standard examination in the year 1994 in comparison with the candidates who had appeared for the 12th standard examination held in the year 1993. He submitted that due to earth-quake in La'tur District last year, the students who appeared for the qualifying examination in the year 1994 from Marath-wada region suffered unprecedented hardships. Therefore, some weightage, by allotting additional marks, should be given to the candidates who had appeared for qualifying examination in the year 1994 from that region. He further submitted that it is not as if the students having passed the qualifying examination in the year 1993 or in the years previous thereto should be totally barred but with a view to bringing equality between the students who had passed the qualifying examination in the year 1993 and the students who had passed the qualifying examination in the year 1994, some marks must be deducted from the marks obtained by the students who have passed the qualifying examination in 1993 or in the years previous thereto.
13. Shri C. J. Sawant the learned counsel appearing for the State and the Authorities relied on the judgment of Supreme Court reported in AIR 1993, page 2178, Unni-krishnan v. State of Andhra Pradesh. Relying on paragraphs 145, 149 and 150 thereof he submited that the right of education is recognised as a very important right in favour of the citizen. He specifically submitted that the language of Rule 3.3.1 of the rules for admission to the M.B.B.S. and B.D.S. courses for the academic year 1994-95 is so clear that it is not capable of any other interpretation except that all the students who have passed the qualifying examination as mentioned therein are eligible. He, therefore, submitted that rule of interpretation like reading down the section has no scope in the facts and circumstances of the case. In that behalf he also referred to the judgment of the Division Bench of this Court at Nagpur in Writ Petition No. 1594 of 1994 and other connected writ petitions delivered on 27-9-1994, especially, paragraphs 102 to 113 thereof. He specifically submitted that according to the State and the Authorities concerned, for admission to the M.B.B.S. and B.D.S. courses for the academic year 1994-95, the students who had passed the qualifying examination in the year 1993 or in the years previous thereto, even if such students have secured admission in the earlier years and have completed one year of their education, are also eligible according to the plain meaning and reading of Rule 3.3.1.
14. Before we deal with these petitions on merits in view of the controversy raised and the submissions made before us on behalf of the respective parties, it is necessary to consider the decision dated August 31, 1994 by the Bench at Aurangabad in Writ Petition No. 2143 of 1994 and other connected petitions.
15. The Division Bench at Aurangabad has clearly stated in the judgment that all the writ petitions before them raise a common question about the eligibility of the students who have passed their 12th standard examination in the year 1993-94 for admission to the various medical colleges for the year 1994-95. The controversy arises on account of Government Circular No. MED. 1094/CR-280/94/Education dated 6-7-1994 wherein it is stated that the students who have secured admission to the private medical colleges, dental colleges; Ayurvedic and Homoeopathy and Unani colleges in the year 1993-94 may seek admission for the year 1994-95 to various medical colleges and if such cases are brought to the attention of the Authority of various colleges those students should be asked to pay the fees for remaining course they had taken after seeking the admission. This, according to the petitioners, adds to the class or source of students who are otherwise not eligible for seeking admission. The contention was that only those candidates who have cleared their 12th (H.S.C.) standard examination in the year 1994-95 are entitled to seek admission to various medical _ colleges but on account of the above Circular a rival source is created in favour of the students who have passed in 1993-94 for admission to the medical colleges and thus the petitioners are likely to be prejudiced. The petitioners in petitions before the Aurangabad Bench had appeared for 12th standard examination known as Higher Secondary Certificate Examination, held in March, 1994. They made applications for admission to the medical course as per rules framed by the Government on 10-6-1994. The designated Authority had displayed the regional provisional merit list on 9-7-1994 and the petitioners were shown at serial Nos. 521, 375 and 368. However, a corrected regional provisional merit list were published on 14-7-1994 wherein the petitioners were shown at serial Nos. 529, 376 and 370 as against 521, 375 and 368 respectively. Upon scrutiny, they found that some of the students who had cleared their qualifying examination in the year 1993-94 were also included in the merit list. They contended that the students who had cleared their exmination in March, 1993 could never be treated on par on equal footing with the students who had cleared their 12th standard examination in the year 1994. This inclusion, it was argued, is per se illegal, arbitrary and violative of equality before law enshrined under Art. 14 of the Constitution of India.
16. The learned Judges further observed that the respondent -- State has not disputed that as many as 246 students who had cleared their examination in the year 1993, did apply for entry to the medical course in the year 1994. Amongst those students, 120 are the students who had secured free seats and one student in payment seat for the M.B.B.S. course and 116 students who were given free seats and one student in the payment seat so far as B.D.S. course is concerned. It was contended before the Aurangabad Bench that generally the percentage of marks of students who had appeared for qualifying examination held in March, 1994 is less than those who appeared for similar examination in March, 1993. It was contended that for the first time in the year 1994 the system of inter regional transfer was enforced and accord-ingly some papers were transferred to Pune region for valuation and correspondingly some papers from Pune region were sent to Aurangabad region for evaluation and this system of evaluation of papers has brought about the decline i.e. less percentage in the year 1994.
17. The learned Judges then referred to the Circular dated 6-7-1994 and according to them it was clearly indicated by the said Circular that the students of the previous years were seeking admisson to the first year course in medical as well as dental faculty which operated to the great prejudice of the petitioners before them. There was also a prayer for quashing the said Government Circular dated 6-7-1994 being unreasonable and unconstitutional to the extent it allows admission to the medical courses for the candidates passing in the year 1993 for the medical course for academic year 1994-95. It was contended that such inclusion is yiolative of Art. 14 of the Constitution of India inasmuch as the students who had cleared their examination in 1993 constitute altogether a different source for filling seats in the medical faculty. It constitutes a different class and cannot be clubbed with the students passing qualifying examination in the year 1994. The learned Judges observed that the pertinent fact which they like to emphasise is that the interveners have already been admitted to medical colleges on the basis of their merit in the qualifying examination held in the year 1993. In the affidavit filed before the Aurangabad Bench on behalf of the State by Dr. Deshpande, it was stated that it was by way of giving an opportunity for their betterment and, that denial to those students would amount to curtailment of their right for betterment of their prospect and that the seats vacated by such students would not amount to waste. After the academic year is over the said seats would lapse and it is not possible either for the Government or Management to fill up these seats by admitting fresh students on the seats of 1993-94 vacated in the academic year 1994-95. It was contended on behalf of the State that the rules introduced the concept of self-financing professional colleges and that the tuition fees collected by those colleges from the students admitted on free and payment seats are meant for balancing the costs for imparting instructions and that on account of the foreseen contingency of students leaving the college, the Circular dated 6-7-1994 was issued. It was further contended that all such students may not vacate their seats in the respective colleges as this would happen only if these students are admitted to the colleges and institutions of their choice. It was also contended before the Aurangabad Bench on behalf of the State that the existing rules relating to admission do not debar eligible candidate of earlier examination from the selection process in the year 1994-95.
18. The first argument before the Division Bench at Aurangabad on behalf of the petitioners was that so far as medical faculty is concerned, every examination of every year constitutes a different source for consideration for admission to the medical courses and that it can never be said that examination of all the years constitute a common source for the students to make them eligible for admission to the medical course. It was also contended that when the students for the year 1994-95 took admission, they had expectation that except them there were no other competitors. On behalf of the . State the learned Government Pleader at Aurangabad contended that when examination is prescribed all throughout the times the question of this batch or that batch is not the ground to hold that different classes of students are created. It was contended that so long as the main examination remains the same, there cannot be any questiqn of different classes of students appearing at different examinations and, therefore, it must be held that the students of the previous year i.e. 1993 or even prior thereto are eligible for making application for admission to the medical courses.
19. Upon consideration of the rival submissions the learned Judges found that the submission on behalf of the petitioners before them, that when one looks to the rules for admission from year to year, they prescribe different test of eligibility for different years for admission to the medical course and the students who have appeared for different years cannot constitute one class of students similarly placed so as to claim benefit of admission, is not devoid of substance. The learned Judges found that rule for academic year 1994-95 provided for passing the examination at one attempt. Formerly, candidate could take 12th standard examination by exemption. If he secured notable marks in P.C.B. group and English, he could qualify for admission. However, the rule was changed for the year 1992-93 and it was prescribed that the student must pass 12th standard examination at one attempt. Prior to 1992-93 mode of seeking an exemption was permissible. Therefore, the learned Judges found marked distinguishing feature in the Rules which at one stage provided for eligibility of student to get admission even on exemption basis whereas in the year 1992-93 the conditions were rendered very stringent and the merit of the students was to be judged on his cumulative performance at one examination only. The learned Judges, therefore, found it difficult to say that a candidate having passed in the year 1991-92 could be equated with the students who have passed in the year 1992-93. They observed that on no reckoning, therefore, it can be said that the students at both the examinations constitute one class or that they were similarly placed and they are, therefore, entitled to equal protection and equal right before the law. Such different modes of passing would generate a class of students with different I.Q. The students coming out with flying colours at one attempt would certainly merit more consideration than the student who had cleared examination in different examinations. The latter cannot be equated on any reckoning with the former.
20. Having given our anxious consideration to the aforesaid judgment, with great respect to the learned Judges, we find it impossible to subscribe to this reasoning. It is difficult to appreciate how the change in the rules for admission to the medical courses in different years would constitute result into forming different classes of students passing the qualifying examinations in different years. If the rule for admission to the medical courses prescribes that the candidate must pass the qualifying examination at one attempt, as is the case in the 1994-95 rules, in that event irrespective of the fact as to in which year the applicant has passed the qualifying examination, if he does not satisfy this condition, he would be ineligible. We find it extremely difficult to appreciate how this fact would be relevant for coming to the conclusion that the students passing qualifying examination in different years constitute different classes.
21. Thereafter, the learned Judges have referred to rules for eligibility in the year 1992-93, 1993-94 and 1994-95 and noting the alleged differences, have observed that there is a different criteria for the students in regard to their eligibility in different years. With great respect, we fail to understand how this alleged difference in the eligibility criteria in the rules for admission for different years would classify the students appearing for qualifying examinations in different years into different groups or classes. It is obvious that whatever may be the year in which the candidate has passed the qualifying examination, his eligibility will have to be determined on the basis of the rules applicable for the particular academic year in which he makes application for admission to the medical courses. For example, when the rule for eligibility in the year 1994-95 prescribes that the candidate must have passed the qualifying examination in one attempt, every student irrespective of the fact whether he has passed the qualifying examinations in the year 1992 or in the year 1993 or in the year 1994, will have to satisfy this test and irrespective of the year in which the candidate has passed the examination, every one who fails to satisfy this condition would obviously become ineligible.
22. The learned Judges, thereafter, referred to Rule 1.0.2 for the academic year 1994-95 which in the opinion of the learned Judges highlights the proposition that every batch is different for every year. Rule 1.0.2 is as under:--
"1.0.2 These rules arc applicable only for the year 1994-95. No promise is implied therein for subsequent year/s; and no expectations be based on these rules for the future."
The learned Judges thereafter observed that it clearly implies that eligibility test of the candidate has to be weighed from year to year and if the eligibility changes the question of assessment of merit will also change and so the consequent admissions. If that be so, it cannot be canvassed on behalf of the respondents that common brand of one examination, namely, 12th standard examination is enough to club all the studcnls of all the years. We find it extremely difficult to uphold this reasoning of the learned Judges. The observation by the learned Judges to the effect that they are unable to persuade themselves to a point of view that 12th standard examination for all years creale only one class of students and no discrimination can be made, is difficult to appreciate. It is further difficult to appreciate and endorse the observation that when the students go through different eligibility tests, they constitute separate source or class and cannot be clubbed with other set of students undergoing different eligibility test. There is a basic incorrect assumption in this reasoning. When a student makes an application; irrespective of the year in which he has passed,; his application will have to be dealt with in accordance with the rules for admission for the academic year in which he has made the same. To the question posed by the learned Judges to the effect -- "can student claim eligibility for 1993-94 and 1994-95 when he has passed his 12th standard examination in compartment and not at one attempt", the answer on the basis of rules has to be "No". But this cannot be the ground to hold that there is any classification at all. We are also unable to appreciate the further observation to the effect that commonness of examination de hors the other equally weighty criteria of eligibility cannot be construed as providing for equality. The conclusion reached by the learned Judges that each year constitutes a different source and different class of candidates and if this class is sought to be clubbed with other classes of students, the same would be deemed to be unreasonable, unjust, inasmuch as the students who were qualified in the later years would be deprived of admission to the medical courses under the pretext that the candidates of the previous years are eligible; cannot be upheld. It is also difficult to appreciate the completely contradictory statement at the end of paragraph 24 of the judgment to the effect "However, the argument of the petitioners that no two examinations are alike has to be rejected". Ultimately, the learned Judges observed in paragraph 28 of the judgment "We do not propose to strike down any rule of 1994-95 but read down the rule as a rule providing for candidates having passed qualifying examinations in 1994-95 and not the candidates who have passed earlier examinations and who had got chance for consideration". However in paragraph 30 of the judgment the learned Judges directed the respondents before them to prepare the fresh merit list excluding the candidates of the previous years, namely, 1993 and the years thercbefore. The Government Circular dated 6-7-1994 was also quashed. We find it difficult to endorse this view of the learned Judges.
23. As a matter of fact, the particular examination of a particular Board or University, irrespective of the fact as to in which year the candidate has passed the same; is always treated on par for all purposes. We find it impossible to subscribe to the view that the students passing the same examination in different years constitute different classes merely by virtue of the fact that they have given the same examination in different years. Even marginal difference in the curriculum or method of assessment or such other factors in respect of different years for the same examination would not be sufficient to categorise the students into different classes. As a matter of fact, the decision of the Apex Court , State of Kerala v. T.P. Roshana and passage quoted by the learned Judge of the Auranga-bad Bench in thejudgment is a clear authority against the submission that the same examination held in different years cannot be treated alike. The Apex Court in the aforesaid judgment in paragraph 17 has observed as under:--
"The Vagarious element in marking and moderation of marks may be a fact of life, but too marginal to qualify for substantial. difference unless otherwise made out. Indeed, there may be difference among the colleges under the same University, among the examiners in the same University. Such fleeting factors or ephemeral differences cannot be the solid foundation for a substantial differentiation; which is the necessary precondition for quashing an executive or legislative act as too discriminatory to satisfy the egalitarian essence of Art. 14. The functional validation of the writ jurisdiction is an appropriate examination of the substantiabi-lity of the alleged disparity."
24. However, so far as the students who have not only passed their qualifying examination in the previous years but also who have been selected for a seat for a medical course and who have availed of the said seat and, in fact, completed such period of tution that if they abandoned the seat the seat would lapse, such class of students would definitely form a separate and distinct class which cannot be permitted to be eligible for the admission to the medical courses again during the subsequent years. As a matter of fact, we are inclined to think that the learned Judges at Aurangabad were, in fact, concerned mainly with this question as is clear from paragraphs 24 and 25 of the judgment. In paragraph 24 of the judgment, after pointing out Rule 6.0.3 applicable to the academic year 1994-95, the Bench observed that when the student makes an application for medical course and when he exercises his choice, he becomes a selected candidates and such selected candidate will not be considered for any free seat thereafter. The learned Judges observed that it seems that as per this rule, he is barred from fresh consideration in the matter of admission. In the petitions before them the interveners had been admitted to various medical courses and had thus exercised their choice. They had availed of one attempt of seeking admission and had spent one year of their carrer in the medical college. In paragraph 25 of the judgment, the learned Judges have referred to the judgment of the Division Bench delivered on 2-4-1987 in Writ Petition No. 1104 of 1987 as also the judgment of the Division Bench delivered on 23-10-1990 in Writ Petition Nos. 3059 and 3294 of 1990 wherein the practice of free transfer of admission from one institute to another and the resultant waste of educational facilities was deprecated. It was observed that if the students are allowed to leave their courses at their sweet will and claim admissions later in other institutions or to do a different postgraduate course later in the same institution, seats and scarce facilities of post-graduation course are likely to be completely wasted. The learned Judges, thereafter, observed that in the case before them about 248 students were seeking admission to the first M.B.B.S. course who had passed in the previous year i.e. 1993 which would result into wasting of equal number of seats which were occupied by them in the previous year. The students had completed one year and now they wanted to complete afresh in this year. The learned Judges specifically observed that these are the factors which weigh their reasoning for not according permission to change or drift from the courses.
25. According to us, the students who have not only passed the qualifying examinations in the previous years but also were allotted seats for medical courses in the previous years and who have availed of those seats; and in fact completed such period of course, that in the event of their abandoning or discontinuing that course, the seats which they occupied in the previous year would be totally wasted for the entire remaining period of the course, as the same would lapse, would form a distinct class by themselves. We are of the clear opinion that the main object of the rules for admission to the courses like medical courses, where availability of the seats is extremely meagre in comparision to the number of aspirats; is not only that merit and merit alone should be considered but also that distribution of such scarce, valuable and much saught-after seats is made in an absolute and just and fair manner. Treating equally, classes which are dissimilar or unequal in the context of the object to be achieved, also offends equality clause. Considered in this light, we have no manner of doubt that holding that any person belonging to this class as an eligible candidate under R. 3.3.1 of the rules for admission to Medical, Dental courses for the year 1994-95 would expose the said rule to invalidity on the ground of breach of provisions of Art. 14. When these students obtained the admission and accepted the seats allotted to them and when they have completed one year of their course, they have already deprived some other eligible students waiting in the queue in the previous years. If such students discontinue the course by getting admission in the current year not only they waste their own one year of academic career but it results into huge loss ultimately to the Society inasmuch as their seats lapse and are totally wasted. Such a student if held eligible for the current year would additionally displace some other eligible candidate even during the current year. It is also relevant to notice that even under rules for admission to Medical, Dental Ayurvedic, Homeopathic and Unani courses for the academic year 1993-94, it was provided under Rule X Special Note that (i) no shift of student from one course to another or from one college to another college is permissible. Request for mutual transfer/change will not be entertained, and (ii) candidates seeking admission to private colleges should indicate in the application form the choice for "Free Seats" and "Payment Seats". Choice once exercised will be considered as final and no change thereafter will be entertained. Even under rules for the academic year 1994-95 R. 6.0.3 provides that having exercised his choice as per his merit order, one ceases to be an applicant and becomes a selected candidate. Such a selected candidate will not be considered for any free set thereafter. In view of these rules, it is clear that no candidate who had exercised his choice and accepted the seat allotted to him in the year 1993 could have changed the course or the college. On this count also, the candidates or the students belonging to aforesaid class, as we have indicated, cannot be held to be eligible for admission to the medical course for the academic year 1994-95 inasmuch as they cannot be permitted to do indirectly what they could not have done directly. Looked from any angle, we are clearly of the opinion that holding any student who belongs to such class of students, eligible afresh for admission to the medical courses is not only extremely unfair and unjust to other eligible students who had competed with him and failed in the previous years but also to other eligible student for the current year.
26. On consideration of the entire matter, we are of the opinion that R. 3.3.1 of the rules for admission to the Medical, Dental courses 1994-95 has to be read down by excluding any applicant who having passed the qualifying examination in the previous years has been allotted a seat in any course and who after availing of the said seat has completed such period of course as would result into lapsing of the said seat; in the event of such applicant vacating or abandoning the said seat. Save and except this class, everyone who has passed the qualifying examination as provided in R.3.3.1 irrespective of the year in which he has passed the same shall be eligible for the purposes of R. 3.3.1 of the aforesaid rules. It is made clear that we are dealing only with the eligibility criteria of qualifying examinations in R. 3.3.1 and even the candidate satisfying this eligibility has obviously and necessarily to satisfy all the other relevant years for ultimate selection.
27. It is relevant to notice that the decision of the Government of Maharashtra declared by its Resolution dated 6-7-1994 states that there is a possibility that some of the students who have taken admission for Medical courses for the academic year 1993-94 or in academic years previous to that may cancel their admission for those years and may take admission afresh for the first year. It is further stated because of this the seats of those students previously occupied in their colleges shall remain vacant for the remaining duration of the course and the colleges may have to suffer financial loss. Considering the aforesaid situation, the Government is according its sanction to such colleges to recover the entire amount of fees for the remaining duration of the course from such students who may cancel their admission from the private Medical, Dental, Ayurvedic, Homeopathic and Unani colleges and obtain admission for the first year course afresh for the academic year 1994-95. There can be no manner of doubt that this decision is only with a view to safeguard ing the interest of the colleges that are likely to be affected and that it has nothing to do with the rules of admission to the medical courses of M.B.B.S. and B.D.S., for the academic year 1994-95. However, what is relevant to notice is that the said decision unequivocally reveals that the Government definitely considers such students eligible for admission afresh in the first year for the medical courses of M.B.B.S. and B.D.S. for the academic year of 1994-95. So far as the interpretation of R. 3.3.1 of the rules for admission to M.B.B.S. and B.D.S. course in the academic year 1994-95 by the State Government, implied in the aforesaid decision is concerned, the same obviously requires to be quashed and it is on this reasoning that the order of the Division Bench at Aurangabad in aforesaid Writ Petition No. 2143/1994, to the extent it has quashed the said Government decision dated 6-7-1994, has to be endorsed.
28. The Petitioners in Writ Petition No. 3867 of 1994 had appeared for 12th standard examination held in March 1993. They had applied for admission for M.B.B.S. course for the academic year 1993-94 but were not admitted against the free seats. The Petitioners were unable to raise funds for payment seals. Therefore, they could not avail of the same. They have applied for admission to the medical course as per rules for the academic year 1994-95 and, in fact, in the regional provisional merit list published on. 9-7-1994 their names were shown. In view of the interpretation which we have put on the provisions of R. 3.3.1 these Petitioners are clearly eligible as they do not fall within the excepted class already indicated. The Peli-tion, therefore, succeeds and it is held that these Petitioners satisfy the requirements of R. 3.3.1 of the rules for admission to M.B.B.S./B.D.S. courses for the academic year 1994-95 and the Respondents are directed to treat these Petitioners as having satisfied the eligibility so far as the R. 3.3.1 is concerned. Rule made absolute in the aforesaid terms. There shall be no orders as to costs.
29. Coming to Writ Petition No. 3878 of 1994, the Petitioner passed her S.S.C. examination in the year 1991 securing 88% marks. The petitioner appeared for Higher Secondary Certificate Examination in May 1993 and secured 94.33% marks. She made an application for admission to the medical course for the academic year 1993-94. As she could not secure the admission to M.B.B.S. course she availed of the admission to B.D.S. course in Government Dental College, Bombay. She has asserted that she lost the admission to M.B.B.S. course in the academic year 1993-94 only by two marks. After joining B.D.S. course she developed depression for having lost the seat for M.B.B.S. course. Upon advice and consideration, she decided to vacate her seat for B.D.S. course. She, therefore, made an application dated 11-9-1993 requesting the Dean, Government Dental College, Bombay to permit her to withdraw her admission for B.D.S. course. The Dean by his letter dated 13-9-1993 informed her that as per request made by letter dated 11-9-1993, her admission to the first B.D.S. course 1993-94 at the institution is cancelled and that only caution money and deposits would be returned to her as per the rules in due course of time. It is further asserted by the Petitioner that the B.D.S. seat occupied by her did not lapse as the same was allotted to the next waiting list candidate. It is further averred that Authorities would not have allowed her to cancel her admission to B.D.S. course without paying the amount mentioned in the bond. However, since the vacancy arising out of her resignation coutd be allocated to some one else, she was permitted to cancel her admission without having to pay any amount as mentioned in the bond. Thereafter, the Petitioner made an application for admission to the M.B.B.S. degree course for the academic year 1994-95. It is alleged by the Petitioner that on 2-9-1994, upon inquiries by the Petitioner with the Respondent-Authorities, she was informed that all those who have not passed H.S.C. examination during the year 1994 will not be considered for admission to any medical courses. She was also informed that the Bench of the Bombay High Court at Aurangabad had directed the State to consider the application of only those candidates who have passed the H.S.C. examination in the year 1994. It is on that apprehension that the Petitioner has preferred this Petition with a prayer that the Respondents be directed to consider her application for admission to the medical course. On the basis of the facts and circumstances and the factual assertions which are not controverted by the Respondents; this Petitioner also does not fall in the class which is held by us as not eligible for the purposes of R. 3.3.1. Accordingly, the Petition succeeds and the Respondent-Authorities are directed to consider the Petitioner as eligible candidate for the purposes of R. 3.3.1. Rule made absolute in the aforesaid terms. There shall be no order as to costs.
30. As far as Writ Petition Nos. 3875, 3876, 3877 and 3879 of 1994 are concerned, the Petitioner in Writ Petition No. 3875 cleared the qualifying examination in March 1993. She did not apply for any medical course for the academic year 1993-94. She applied for the first time for admission to medical course for the academic year 1994-95 and she is shown at serial No. 2596 in the provisional regional merit list. The Petitioner in Writ Petition No. 3876 cleared the qualifying examination in March 1993. She applied for a seat reserved for V.J.N.T. category for the academic year 1993-94 but was not allotted any seat. She again applied for a seat in medical course for the academic year 1994-95 and she is shown on the merit list at serial No. 2037. Petitioner in Writ Petition No. 3879 cleared the qualifying examination in March 1993. He applied for a seat for medical course for academic year 1993-94 but could not get any seat. He has again applied for a seat in the medical course for the academic year 1994-95 and he is shown in the merit list at serial No. 1982. Petitioner in Petition No. 3877 cleared the qualifying examination in March 1992. He applied for admission to medical course for the academic year 1992-93 as also for the year 1993-94 but could not get admission. He has again applied for a seat in medical course in the academic year 1994-95 and is shown at serial No. 3212 in the merit list. None of the Petitioners in these Petitions falls in the excepted category which we have carved out and as such each of the Petitioners in these Petitions is held to be eligible so far as R. 3.3.1 of the rule's is concerned and the Respondent-Authorities are directed to consider each of them as eligible so far as R. 3.3.1 is concerned. Rule made absolute in the aforesaid terms in each of the aforesaid Petitions. However, there shall be no order as to costs.
31. Writ Petition No. 3615 of 1994. The Petitioner passed the qualifying 12th standard examination held in March 1993. He applied for M.B.B.S./B.D.S. course for the academic year 1993-94 but could not get admission in any of the courses and was merely kept on the waiting list. The Petitioner did not apply for payment seats; as he could not afford the cost. The Petitioner applied for M.B.B.S./B.D.S. courses for the academic year 1994-95. He applied for both free as well as payment seats and the Petitioner has been shown at serial No. 684 in the merit list prepared by the concerned Authorities. On the basis of the judgment delivered by the Division Bench at Aurangabad, the Petitioner was totd that inasmuch as he has passed the qualifying examination in the year 1993, he will not be considered as eligible. In the facts and circumstances of the case, he is clearly eligible so far as R. 3.3.1 is concerned. As such, Respondent-Authorities are,direcled to consider the Petitioner as a candidate eligible so far as R. 3.3.1 is concerned. Rule made absolute in the aforesaid terms. There shall be no order as to costs.
32. Writ Petition No. 3995 of 1994. The Petitioner in this Petition passed the qualifying examination, namely, 12th standard held in March 1993 and secured 93% marks. He applied for a medical seat for the academic year 1993-94 and was selected and offered a payment seat. Due to financial disability, the Petitioner could not avail of the said payment seat and preferred to remain on the waiting list for free seats but he could not get Ihe same. Petitioner again applied for admission to first M.B.B.S course for the academic year 1994-95. However, he was informed that he will not be treated as eligible for admission on the ground that he has passed the qualifying examination in the year 1993, possibly as a result of the decision of the Aurangabad Bench. The Petitioner is clearly eligible so far as provisions of R. 3.3.1 are concerned. The Respondent-Authorities are directed that the Petitioner be so held eligible so far as R. 3.3.1 is concerned. Rule made absolute in aforesaid terms. There shall be no order as to costs.
33. We are making it clear that we have held these Petitioners eligible only for the purposes of R. 3.3.1 and obviously for ultimate selection, apart from their ranking in the merit list, they will have to satisfy the requirements of all other rules and regulations as prescribed.
Order accordingly.