Gujarat High Court
Ketankumar Gabubhai Patel And 4 Ors. vs Secretary, Dept Of Health And Family ... on 24 July, 2006
Author: Akil Kureshi
Bench: Akil Kureshi
JUDGMENT Akil Kureshi, J.
1. Rule. Learned AGP Shri Siraj Gori waives service of notice of rule on behalf of respondent No. 1. Learned advocate Shri A.R. Thacker waives service of notice of rule on behalf of respondents Nos. 2 and 3. Learned advocate Shri Mahrookh Kerrawala waives service of notice of rule on behalf of respondents Nos. 4 to 7. Learned advocate Shri N.C. Thakkar waives service of notice of rule on behalf of respondent No. 8. Learned advocate Shri V.D. Parghi for the petitioners seeks and is granted permission to delete respondent No. 9. Considering the nature of issues involved, these petitions have been heard for final disposal at considerable length. Since the factual and legal issues are common, they are being disposed of by this common judgment.
2. In this group of petitions, the petitioners who belong to Scheduled Tribe and Scheduled Caste categories have challenged the selection process undertaken by the respondents No. 2 and 3 for the purpose of granting admissions to Post Graduate Medical Courses in various colleges in Saurashtra University. In the nutshell, the grievance of the petitioner is that respondent No. 2-Saurashtra University and respondent No. 3-Post Graduate Admission Committee have ignored their own Rules as also the Government Rules of Residency and de-reserved certain vacancies which were meant for Scheduled Tribe and Scheduled Caste candidates. The petitioners thus stake their claim on such vacancies.
3. Before listing the rival contentions and attempting to deal with the same, some basic facts leading to these petitions need to be noted. The petitioners have passed their MBBS Degree examination from various Universities in the State of Gujarat. The petitioner No. 1 passed his MBBS examination in February, 2005 and completed his internship in March, 2006 from Baroda Medical College. The petitioner No. 2 passed his MBBS examination in November, 2004 and completed his internship on 21-11-2005 from Government Medical College, Surat. The petitioner No. 3 passed his MBBS examination in November, 2003 and completed his internship on 31-1-2005 from the Government Medical College, Surat. The petitioner No. 4 passed his MBBS examination in February, 2005 and completed his internship on 31-3-2006 from the Pramukhswami Medical College at Karamsad. The petitioner No. 5 passed his MBBS examination in November, 2003 and completed his internship on 31-1-2005 from the Government Medical College, Surat.
3.1 The petitioners Nos. 1, 2, 4 and 5 belong to Scheduled Tribe community whereas petitioner No. 3 is a Scheduled Caste Candidate.
3.2 The petitioners desirous of pursuing their Post Graduation in Medical Science, applied for Post Graduate Medical Courses, seats of which were available in respondent No. 2-University. They also appeared in the Common Entrance Test conducted by the respondent No. 2 and claim to have passed the test successfully. The petitioners were also issued call letters by respondents No. 2 and 3 calling upon them to remain present for personal interview for counselling in the Post Graduate Courses. Initially, the interview was fixed on 8-4-2006, same was thereafter, postponed to 17-4-2006. The petitioners participated in the interview and indicated their choices.
3.3 It is the claim of the petitioners that in the above-mentioned selection process as many as 62 seats of Post Graduate Medical Courses for different categories were to be filled up. As per the Government policy, respondent No. 2 had also provided for reservation in favour of Scheduled Tribe, Scheduled Caste and SEBC (Socially and Economically backward Classes) candidates.
3.4 It is not in dispute that certain number of seats were earmarked for being filled up at-least at the initial stage from amongst the students passing MBBS Course from Saurashtra University. Within this quota which is popularly referred to as institutional preference or institutional quota, the Rules of reservation applies and according to the petitioners as many as seven seats were reserved for Scheduled Tribe candidates from Saurashtra University and four seats were reserved for Scheduled Caste candidates from Saurashtra University. To this statistical data provided by the petitioners, there is no serious dispute raised by the respondents. It is also not seriously in dispute that against seven seats reserved for Scheduled Tribe candidates from Saurashtra University, only one candidate was available and as against four reserved seats for Scheduled Caste candidates from Saurashtra University, only three qualified candidates were available. Eventually, therefore, respondents No. 2 and 3 could not fill up the entire quota of reserved seats of Scheduled Caste and Scheduled Tribe candidates from students coming from Saurashtra University. As many as four seats of Scheduled Tribe candidates and one seat of Scheduled Caste candidates remained unfilled for want of available qualified candidates from the said University. It is therefore, the case of the petitioners that these remaining unfilled seats meant for reserved category candidates should have been offered to the eligible candidates of reserved categories who had applied for such posts and who had passed their degree courses from various colleges in the State of Gujarat.
3.5 In support of their contention, the petitioners have placed reliance on the rules governing the admission to Post Graduate Degree and Diploma Medical Courses other than M. Ch. & D.M. at the Affiliated Medical Colleges/ Institutions from 01-01-2006(here-in-after referred to as the Admission Rules) formulated by the Saurashtra University. Reliance is also placed on the Government Circular providing for reservation in favour of Scheduled Caste and Scheduled Tribe candidates as also various circulars of the State Government providing for rules governing Residencies in Post Graduate Medical Courses.
1. On the other hand, the case of respondents No. 2 and 3 - Saurashtra University as emerging from the affidavit in reply filed as well as through the submissions made by their learned Counsel is that the Admission Rules as well as Residency Rules framed by the Government permit certain institutional preference and to the extent candidates belonging to reserved categories are not available, the Saurashtra University was free to fill up the seats from amongst its own candidates. In other words, it is the case of respondents Nos. 2 and 3 that whenever it is found that students from Saurashtra University belonging to reserved categories are not available to occupy such reserved seats, such seats are not required to be offered to other reserved category candidates passing from various colleges of State of Gujarat, but that same should be permitted to be filled up from amongst unreserved category candidates belonging to Saurashtra University.
5. In short, the central controversy arising in these petitions is whether in case of non availability of reserved category candidates from Saurashtra University it is necessary to occupy such reserved seats from its own students of general category or whether it is necessary that such reserved seats be offered to other reserved category candidates from outside Saurashtra University but passing out from various colleges of State of Gujarat.
6. The respondents No. 2 and 3 have heavily relied on the deadline of completion of such admission process as laid down by Hon'ble Supreme Court as well as Medical Council of India. It is contended that last date for filling up the vacancies for the current year was 30-6-2006 and any seats remaining unfilled thereafter, would lapse automatically. The State Government has also issued a circular revising the last date to 30-6-2006 for the current academic year.
7. Private respondents have also joined issues. It is primarily contended that University was justified in de-reserving the vacancies in favour of general category candidates from Saurashtra University and true interpretation of the Rules would permit such modality. They also point out that there is time limit for completion of the admission process. It is contended that they are occupying the seats as offered by the University and any reshuffling at this stage would act to their disadvantage since they have already forgone some of the options which were at their command. On the basis of above factual aspects, learned advocates appearing for the respondents have made detailed submissions before this Court.
8. Learned advocate Shri V.D. Parghi for the petitioners submitted that respondents Nos. 2 and 3 gravely erred in granting admissions to students from Saurashtra University who belong to general category when the seats were reserved for Scheduled Caste and Scheduled Tribe candidates. Referring to the Admission Rules and in particular Rules 5 and 5.3 of the Admission Rules, he submitted that the said policy provides for a minimum reservation in favour of Scheduled Caste and Scheduled Tribe candidates, and that such seats cannot be filled by permitting the respondents Nos. 2 and 3 to fill up the seats from amongst the general category candidates. If it is found that reserved category candidates are not available from Saurashtra University to occupy such seats, the same should be offered to candidates from outside of Saurashtra University who belong to reserved categories. Reliance was placed on the Division Bench decision of this Court dated 13-7-2006 passed in Special Civil Application No. 11157/2006 in case of Vinodkumar Rasiklal Vahoniya v. University of Bhavnagar and Ors. wherein Division Bench of this Court was pleased to strike down Rule framed by Bhavnagar University which permitted the University to de-reserve such vacancies.
9. On the other hand learned advocate Shri J.R. Nanavati appearing with Shri A.R. Thacker for respondents Nos. 2 and 3 strongly opposed the petition. He submitted that the Admission Rules are clear and permit no ambiguity. He further submitted that combined reading of rules 2,3,4 and 5 would demonstrate that there is an underlying principle of institutional preference. He submitted that the Admission Rules recognise primacy of rights of the students passing from colleges affiliated to Saurashtra University. In case there is failure to get sufficient number of students from reserved category to occupy the seats meant for such category, as per Rules, it is open for the University to grant the admission to its own students from general category. The students passing out from other colleges of State of Gujarat have their independent right to apply for the Post Graduation seats in their respective Universities. They also can independently apply for All India Quota Seats in Saurashtra University and they can also apply in All India Quota Seats in their own university. They therefore, do not deserve any further chance for staking their claim over the seats meant for Saurashtra University students.
9.1 It was also contended that Government of Gujarat has through various resolutions provided for the Rules for Residency. These Rules also recognise institutional preference. In particular Rules 6, 6.1 and 6.2 of Residency Rules circulated by the Government would demonstrate that preference is to be given to a student in his own University and only when in the parent University there is no possibility of getting residency in particular Post Graduation Degree Course that such students can seek admission in other University. He therefore, submitted that claim of the petitioners should be turned down.
9.2 Reliance was placed on the decision of the Hon'ble Supreme Court in the case of Dr. Pradeep Jain and Ors. v. Union of India and Ors. , wherein Hon'ble Supreme Court though finding that merits would be relevant consideration upheld the institutional and regional preference. Reliance was also placed on the decision of Hon'ble Supreme Court in the case of Saurabh Chaudri and Ors. v. Union of India and Ors. , wherein also this view was adopted.
9.3 On the basis of above submissions, it was contended on behalf of the respondents o. 2 and 3 that University as well as Admission Committee have committed no error. The Admission Rules have been followed and the petitioners who do not belong to Saurashtra University cannot insist that they be considered for seats meant for Saurashtra University students though belonging to reserved category candidates.
10. Learned senior advocate Shri Bhaskar P. Tanna appearing with Ms. Mahrookh Kherawala for respondents Nos. 4 to 7 also opposed the petitions. He submitted that institutional preference has been well recognised by series of judgments by Hon'ble Supreme Court. Saurashtra University Rules for admission also make statutory provisions in this regard. The private respondents who have passed MBBS examinations from various colleges from Saurashtra University therefore, were rightly considered for Post Graduate Courses in the seats meant for Saurashtra University students. According to him it matters not that such seats were meant for reserved category candidates and private respondents belonging to general categories were given admission, since sufficient number of reserved category candies to occupy the reserved seats were not available from Saurashtra University.
10.1 Besides placing reliance on the Rules for admission and Government circulars for governing Residency in Post Graduation Course, Counsel also relied on the decision of Hon'ble Supreme Court in the case of Mriduldhar(Minor) and Anr. v. Union of India and Ors. to point out that the Hon'ble Supreme Court has provided for a time schedule for Post Graduation and Specialty Course Admissions. According to the time limit so provided last date for completion of the admission process is 30-5-2006 and as per the directives of the Hon'ble Supreme Court, any vacancy remaining unfilled after the date shall lapse. He pointed out that subsequently however, for the current academic year upon representation from various quarters, such deadline as a special case has been extended upto 30-6-2006 by an order dated 24-1-2006, pursuant to which the authorities have also issued appropriate circulars. It was therefore, contended that said deadline of 30-6-2006 having already passed, any order that this Court may pass in this petition would adversely and gravely hurt the private respondents. They would not only lose admissions granted by the Competent Authority, but would also lose their chance to apply and secure admissions in any other University or Institution. It was therefore, contended that whatever be the view of this Court about the modality adopted by the University at-least for the current year, the admissions already granted may not be disturbed.
11. Learned advocate Shri N.C. Thakkar appearing for respondent No. 8 submitted that respondent No. 8 was the highest ranked candidate from Saurashtra University. As a matter of right therefore, he would get the course of his choice. At the first counselling, he was offered the Post Graduate Course in Radio Diagnosis. When the Course was so being offered to him, Admission Committee never revealed that same is reserved seat and may lead to controversy. If he was informed about the seat being an unfilled seat of Scheduled Caste candidate, he would have easily switched over to some other preference. In any case, it is his case that subsequently, one more vacancy in the same Course became available to be filled up from Saurashtra University candidate of general category. Being a high ranked student from the University, he can be deemed to have been adjusted against such a vacancy. Under no circumstances, his admission should be cancelled. He stated that the said respondent had ample opportunity to seek admission in other Universities also having a bright career. Having already secured admission, he had forgone and foreclosed all his other options. Any relief that may be granted in favour of the petitioners, would irreparably hurt the education career of the said respondent.
12. Having heard learned advocates appearing for the parties, I find that central question that runs through these petitions is whether respondents Nos. 2 and 3 were justified in de-reserving the vacancies meant for Scheduled Caste and Scheduled Tribe candidates from Saurashtra University and offering the same to general category candidates from the same University. To put it differently, the question is whether the unfilled reserved category seats from Saurashtra University should have been offered to reserved category candidates from other Universities of State of Gujarat, instead of the same being filled up from unreserved category students of Saurashtra University.
13. To appreciate and to resolve the controversy, provisions contained in Admission Rules as well as those contained in Government circulars pertaining to Rules of Residency need to be noted.
Rule 1 of the Admission Rules provides for eligibility criteria for admission to the Post Graduate Degree and Diploma Medical courses affiliated to medical college/ institutions of Saurashtra University.
Rule 1.2 inter-alia provides that to be eligible for the above course, the candidate must have completed the recognised MBBS or equivalent course and compulsory rotating internship on or before 31st March of the concerned year.
As per Rule 1.4, a candidate who is currently engaged in P.G. Medical studies in any University shall not be eligible to seek admission.
Rule 1.8 of the Admission Rules provides inter-alia that the candidate has to appear in entrance test for admission to Post-Graduate Medical Courses held by the Saurashtra University and shall have to secure at-least 50% marks in entrance test. Such requirement is reduced to minimum of 40% of marks in case of reserved candidates belonging to SC, ST and SEBC. Rule 1.8 of the Admission Rules reads as follows:
1.8 A candidate has to appear in entrance test for admission to Post-Graduate medical courses (M.S./M.D./Diploma) held by the Saurashtra University and should have to secured atleast 50% marks in entrance test for candidates claiming admission on general category seats and atleast 40% marks in entrance test for candidate claiming on reserve category seats (i.e. SC,ST,S.E.B.C.). Reserve category candidate securing more than 40% but less than 50% in entrance test will not be eligible for general category seats even if seats are vacant.
Rule 1-A provides that admission shall be decided by the P.G. Admission Committee. The constitution of the Committee is also provided in the said Rule.
Rule 2.0 of the said Rules provides for 50% seats to be filled up on the basis of All India Competitive Entrance Examination. The remaining seats are made available for the candidates passing from Saurashtra University in accordance with Rule 4.1 and Rule 4.2 and the students passing from other statutory universities within Gujarat State would be considered as per their merits in accordance with Rule 4.3 and Rule 4.4. Rule 2.0 of the Admission Rules read as follows:
2.0 As per directive of Hon'ble Supreme Court of India 50% of the total available seats in an academic year in various Post -Graduate Degree and Diploma courses in each subject will be filled up on the basis of S All India Competitive Entrance Examination for admission of Post-Graduate Medical Courses (M.S./M.D./ Diploma). The remaining seats will be available for the candidates passing from Saurashtra University in accordance with Rule 4.1 and Rule 4.2. The students passing from other statutory universities within Gujarat State will be considered as per their merits in accordance with Rule 4.3 and, Rule 4.4.
Other relevant rules of the Admission Rules read as follows :
2.1 In case the seats reserved in Rules 2.0 remain vacant because of non-availability of candidates, the same will be treated as local University quota seats.
3.0 Remaining 50%(or more) of total seats after Rule 2.0 in Post-graduate courses will be filled up by the SP.G. Admission Committee of this University.
3.1 For the purpose of admission the selection will be done once in each academic year. Academic year 1st May to 30th April of Next year.
4.0 Selection: Selection of candidates eligible under Rule 1 for seats under Rule 2.1 and 3.0 will be done category wise on the basis of merits as laid down herein further.
4.1 Preference shall be given to candidates of not more than three years standing after completion of internship/Houseman ship, graduating from Saurashtra University on the date of interview and who have not availed of three opportunities for admission of the P.G. after completion of internship/houseman ship graduating from this University. Both the conditions are required to be satisfied by the candidates.
4.2 After the merit list prepared under Rule 4.1 is exhausted the candidates who have completed internship more than three years standing and graduate up to three years standing who had availed three opportunities for P.G. admission on date of interview, will be considered provided that they all have taken M.B.B.S. Degree from the Saurashtra University.
4.3 Candidates graduating from any other University located in Gujarat State and who have completed internship not more than three years will be considered after selection of candidates in the merit list as per Rule 4.2. Such category of reserved students referred to in Rule 5 from amongst the candidates graduating from other Universities within the State of Gujarat and completed one year internship will be considered in respect of balance of seats left unfilled after the operation of Rule 4.2 as per Rule 5.3.
4.4 After operation of Rule 4.3 the candidates graduating from other University located in Gujarat State who have completed internship more than three years will be considered.
4.5 Any vacancy after operation of Rule 4.4 shall remain unfilled, however, this provision may be relaxed in the subjects of Anatomy, Physiology, Bio-chemistry, Forensic Medicine, Preventive and Social Medicine, Pharmacology, Pathology and Microbiology only at the discretion of University, only for the candidates graduating from out state University (with permission of the Govt. of Gujarat).
4.6 The candidates will be given a choice of subject according to his/her merit level. He/She will have to choose Registration with Residency out of the available choices in different subjects at his/her merit level. No student shall be given P.G. Admission without Residency (or higher post).
4.7 Seats can be utilized in the same academic year only and vacancy in one academic year can not be utilized in subsequent academic year. For allocation of seats to physically handicapped category in a said year, Roster Point guideline given by The Govt. of Gujarat, will be followed.
5.0 7% of seats available for P.G. Degree and Diploma under Rule 3 will be reserved for candidates belonging to Scheduled Castes, 15% of seats will be similarly reserved for S.T. Candidates and 27% of seats will be similarly reserved for candidates belonging to Socially and Educationally Backward Classes (SEBC) students including widows and orphan children. The students desiring admissions under SEBC category will have to submit a certificate of relevant year that they are not included in the creamy layer from the competent authority as prescribed by the Govt. of Gujarat from time to time along with the application. And they must bring fresh & new certificate of the relevant year at time of interview (i.e. Certificate issued by competent authority issue on or after 1st April) Otherwise they will be debarred from S.E.B.C. Category.
5.3 As per Govt. of Gujarat Rule In case the residencies reserved as mention in rules No. 5.0 for the respective categories remain vacant due to Non availability of condition in specified category, the same will be filled in by the candidate of respective reserve category,who have passed the M.B.B.S. Degree examination and completed one year compulsory rotating internship(Housemanship) from any recognised medical college in the Gujarat State.
7.3 Notification : Merit List will be notified as under:
Merit List 1-A Candidates under Rule 4.1 belonging to (General/ST/SC/SEBC) Category of Saurashtra University Merit List 1-B Candidates under Rule 4.2 belonging to (General/ST/SC/SEBC) Category of Saurashtra University Merit List 2-A Candidates under Rule 4.3 & 4.4 belonging to (General/ST/SC/SEBC) Category Other University of Gujarat State.
Merit List 3-A Candidates under Rule 4.5 belonging to Gen. Merit Seats Out side University of Gujarat State.
1. It may be noted that above Admission Rules have been framed by the Saurashtra University in exercise of powers conferred under provisions of Section 33 of Saurashtra University Act. In that view of the matter, these Rules have statutory force. The Government of Gujarat has issued resolutions from time to time governing the question of Residencies in P.G. Medical Colleges. By resolution dated 5-12-1989, superseding all the previous resolutions, Government approved Rules for appointment of Residency at the Government Medical College and attached teaching, hospitals in the State. These Rules shall be referred to as the Residency Rules.
15. The Residency Rules inter-alia provide for payment of stipend to the Residents. Rule 5 of Residency Rules provide for eligibility criteria and provide inter-alia that selection of the candidates for admission in the first year residency shall be made by College Council of respective Medical Colleges and payment will be made by Director PG Studies/Deans.
15.1 Rule 6 provides for categories of candidates that will be eligible for admission into residency.
15.2 Rule 6.1 reads as follows:
6.1 Those who have passed the MBBS degree examination from the respective medical colleges and satisfactorily completed one year compulsory rotating housemanship(internship), sons and daughters of All India Services Officers viz. Indian Police Service, Indian Administrative Service, Indian Forest Service alloted to the Gujarat State and serving in the State outside the Gujarat State on deputation and sons and daughters of the Gujarat Govt. servants who have been posted outside the Gujarat State would be treated on par with candidates of respective medical colleges for the purpose of appointment, if they are otherwise eligible on merits.
15.3 Rule 6.2 reads as follows:
6.2 Those who have passed the MBBS degree examination and satisfactorily completed one year compulsory rotating housemanship (Internship) from the Govt. Medical College in Gujarat State, which have no post graduate facilities in that subject. However, preference will be given to those who have passed the said examination from the same medical college.
15.4 Rule 6.3 reads as follows:
6.3 Candidates must be registered under Gujarat Medical Council Act, 1967.
15.5 By a subsequent resolution dated 1-9-1990, Rule 6.2(A) was added which reads as follows:
6.2(A) After considering the case of the candidates as per Rule 6.1 and Rule 6.2 above, the remaining vacancies if any will be filled in by the candidates who have passed the M.B.B.S. Degree examination and satisfactorily completed one year compulsory rotating housemanship (internship) from any recognised Medical College in Gujarat.
15.6 Rule 23(2) in its amended form reads as follows :
Rule 23(2) In case the residencies reserved as mentioned in Rule-24 for the respective categories remain vacant due to non-availability of candidates in specified category, the same will be filled in by the candidate of respective reserved category, who have passed the M.B.B.S. Degree Exam, and satisfactorily completed one year compulsory rotating housemanship (internship) from any recognised Medical College in the Gujarat as per the Rule 6.1, 6.2 and 6.2(A).
Thereafter the remaining vacancy, if any meant for the candidates of respective reserve categories will be treated as unreserved and filled up by the candidate on the basis of open merit.
1. From the rule position, it can be seen that statutory rules framed by Saurashtra University provide for the modalities for governing the admission to Post Graduate Courses. Combined reading of the Rules would suggest that 50% of the seats available in a particular area are to be filled through All India Competitive Entrance Examination. Thus 50% of All India Quota Seats will be available to students regardless of the geographical location of their Universities. Remaining 50% of the seats are to be filled, at the first instance, from the students passing the examination from Saurashtra University. Such admissions are to be governed by provisions made in Rules 4.1 and 4.2 of the Admission Rules. The students passing from other Universities within the State of Gujarat have to be considered as per their merits and in accordance with the provisions of Rules 4.3 and 4.4 of the Admission Rules. These provisions are made in Rule 2.0 of the Admission Rules. As per Rule 2.1 of the Admission Rules, if seats reserved in Rule 2.0 remain vacant because of non-availability of the candidates, the same are required to be treated as local University quota seats. When Rule 2.1 of Admission Rules refer to reserved seats in Rule 2.0, reference is to 50% of seats to be filled up on the basis of All India Competitive Entrance Examination. It would thus be clear that, in case, any of such seats are not filled up on account of non-availability of the candidates, the same get added to the tally of the seats to be filled up from the students from Saurashtra University.
16.1 It is in this respect that Rule 3.0 talks about remaining 50% of seats or more to be filled up by the P.G. Admission Committee of the University. Thus if entire 50% quota of All India Competitive Entrance Examination candidates is filled up as provided in Rule 2.0 of the Admission Rules, the local University quota seats available will be 50%. In case of any of the seats not being so filled up from All India Quota candidates, by virtue of operation of Rule 2.1, the same shall get added to the tally of seats to be filled from local candidates. It is in this regard that Rule 3.0 refers to remaining 50% or more of total seats.
16.2 Rule 4.0 provides for the mode of selecting the candidates under Rules 2.1 and 3.0.
16.3 Rule 4.1 provides for preference to candidates of not more than three years standing after completion of internship/Housemanship, graduating from Saurashtra University and who have not availed of three opportunities for admission to the P.G. Course after completion of internship/housemanship graduating from the Saurashtra University.
16.4 As per Rule 4.2 after the merit list prepared under Rule 4.1 is exhausted the candidates who have completed internship more than three years standing and graduated upto three years standing, who had availed three opportunities for P.G. admission on the date of interview, will be considered as long as they have passed M.B.B.S. Degree from Saurashtra University.
16.5 Rule 4.3 of the said Rules similarly includes the students graduating from any other University located in Gujarat State and who have completed internship since not more than three years. It also provides that such category of reserved students referred to in Rule 5 from amongst the candidates graduating from other Universities within the State of Gujarat and completed one year internship will be considered in respect of balance of seats left unfilled after the operation of Rule 4.2 as per Rule 5.3.
16.6 Rule 4.4 provides for consideration of candidates graduated from other Universities of State of Gujarat after operation of Rule 4.3 and who have completed internship for more than three years.
16.7 As per Rule 4.5, after operation of Rule 4.4., if vacancies are not filled up, same shall remain unfilled.
16.8 Rule 5 of the Admission Rules provides that 7% of seats available under Rule 3 will be reserved for candidates belonging to Scheduled Caste, 15% of the seats for S.T. Candidates and 27% of the seats for SEBC candidates.
16.9 Rule 5.3 of the Admission Rules inter-alia provides that in case the Residency reserved as mentioned in Rule 5.0 for the respective categories remains vacant due to non availability of candidates in specified category, same will be filled in by the candidate of respective reserve category who has passed MBBS degree examination and completed one year compulsory rotating internship (Housemanship) from any recognised medical college in the State of Gujarat.
17. In my view the scheme of Rules is amply clear. Essentially all available seats of P.G. course for Saurashtra University are divided in two parts. 50% of the seats are to be filled up from All India Quota candidates and remaining 50% is to be filled up from firstly out of candidates from Saurashtra University. This quota may increase, if it is found that sufficient number of qualified students from All India Competitive Quota candidates are not available. Thus, a minimum of 50% seats are made available to local students or students passing MBBS examination from Saurashtra University to be filled up by PG Admission Committee. This may increase to the extent of non-availability of qualified candidates from All India quota. Thus remaining 50% or more of the total seats are to be filled up by the P.G. Admission Committee. First preference is to be given to the candidates of not more than three years standing after completion of internship/ Housemanship and who have not availed of three opportunities for P.G. admission after completion of internship. For some reason, if this source of students is insufficient to occupy all local quota seats, Rule 4.2 of the Admission Rules is to be resorted to under which students passing out from Saurashtra University and those who have completed more than three years since internship and have availed three opportunities for P.G. admission have to be considered. In case, despite operation of Rule 4.2, all seats are not occupied, resort is to be made to Rule 4.3 of the Admission Rules by virtue of which candidates graduating from other Universities located in State of Gujarat have to be considered. At the first instance, those candidates who have completed not more than three years of internship are to be preferred. Significantly, the Rule also provides that such category of reserved students referred to in Rule 5 from amongst the candidates graduating from other universities within the State of Gujarat and completed one year internship will be considered in respect of balance of seats left unfilled after the operation of Rule 4.2 as per Rule 5.3. Even after operation of Rule 4.3, if there are any seats still available, same are offered to the students graduating from other Universities located in State of Gujarat and who have completed internship since more than three years. The remaining vacancies are to be left unfilled subject to certain exceptions.
17.1 Reservation is provided and recognised in Rule 5.0 of the Admission Rules to include 7% reservation for Scheduled Castes, 15% reservation for S.T. and 27% reservation for SEBC candidates. Rule 5.3 of the Admission Rules further provides that in case of residencies reserved as mentioned in Rule 5.0, remained vacant due to nonavailability of candidates in specified categories, same are to be filled in by candidates of respective categories who have passed MBBS degree examination from any recognised Medical College in State of Gujarat.
18. As noted above, reservation is provided in favour of SC/ST/SEBC candidates in Rule 5 of the Admission Rules. Therefore, when the candidates belonging to the said reserved categories from eligible candidates from classes of students referred to in Rules 4.1 and 4.2 are not available, such seats are to be filled up from the candidates graduating from any other University located in Gujarat State as provided in Rule 4.3. In fact Rule 4.3 makes it abundantly clear that such spillover vacancies of reserved category candidates, on account of want of qualified candidates being available from Saurashtra University are to be filled by such category of students graduating from other universities located in Gujarat State. In Rule 4.3 it is clearly stated that such category of reserved students referred to in Rule 5 from amongst the candidates graduating from other Universities within the State of Gujarat and completed on year internship will be considered in respect of balance of seats left unfilled after the operation of Rule 4.2 as per Rule 5.3. Combined reading of the above statutory Rules therefore, leaves no manner of doubt that unoccupied reserved category seats of Saurashtra University quota shall have to be filled up from candidates belonging to the same categories and who have graduated from any other Universities located in the State of Gujarat. Significantly, Rule 5.3 talks of Residency reserved as mentioned in Rule 5.0 for the respective categories and provides that in case of Residency reserved for the respective categories remaining vacant due to nonavailability of candidates in specified categories, the same will be filled in by the candidates of respective reserved category who have passed MBBS degree examination and completed one year compulsory rotating internship from any recognised Medical College in the State of Gujarat. Rule 5.0 in turn does not refer to reservation in Residencies. Rule 5.3 therefore, when talks of reservation in Residency as mentioned in Rule 5.0, necessarily it makes reference to the requirement of reservation in Residency also.
19. From the Residency Rules of the State Government noted here-in-above, it is abundantly clear that there is necessarily one to one relation between the number of admissions granted to the students in P.G. Medical Courses and number of Residencies available. In other words the moment, there is registration granted to a student in the P.G. Medical Course, Residency is a matter of course and conversely unless and until there is Residency available, registration in P.G. Medical Course cannot be granted. This becomes clear in the resolution dated 23-5-2005 whereby in Rule 23.3, the Government added clarification (b) that the Residency will not exceed the numbers of Residency sanctioned by the Government from time to time. Total P.G. Seats in degree/diploma in each Medical College shall not exceed the recognised/approved intake by MCI.
19.1 In fact, it was not in much doubt or dispute that for every student securing admission in P.G. Medical Course, there has to be a Residency seat earmarked for him. If this much is clear, combined reading of Rules 5.0 and 5.3 of the Admission Rules would make it further clear that in case of any of the Residency reserved for a reserved category student, is not occupied by a student belonging to such a category, same shall be offered to the student belonging to the same category but should have passed MBBS degree examination and completed one year internship from any recognised Medical College in the State of Gujarat.
20. Thus by conjoint reading of Rules 4.0 to 4.4 of the Admission Rules in light of the provisions made in Rules 5.0 and 5.3 of the Admission Rules, it becomes amply clear that whenever there is an occasion of any of the seats reserved for SC/ST/SEBC candidates from Saurashtra University not being filled by candidate belonging to such a category for want of eligible candidates, the same has to be offered to the candidates belonging to same categories but who have passed from any of the Universities located in the State of Gujarat. In case of Rakesh Bhansal and Ors. v. State of Gujarat and Ors. in Special Civil Application No. 11725/2006, this Court had under somewhat similar circumstances taken similar view. The petitioners therein were the MBBS degree holders from the South Gujarat University. For an unfilled quota of reserved seats for want of availability of qualified students from the same University, the petitioners contended that such seats should be made available to them who were general category students and that same should not be made available to other reserved category students from the State of Gujarat. The said contentions were negated by the Court by a judgment dated 17-6-2006.
21. Rules made by Veer Narmad South Gujarat University for regulating the admission for P.G. courses were somewhat similar. To point out similarities, following rules of Narmad South Gujarat University need to be noted.
Rule 1.9 reads as follows:
1.9 A candidate has to appear in competitive entrance examination for admission to post-graduate medical courses (M.D./M.S./Diploma) held by Veer Narmad South Gujarat University and will have to secure 50% marks in Entrance Test (For reserve category 40% marks).
Rule 2.0 reads as follows:
2.0 Allocation of Total Seats available for P.G. Medical Degree /Diploma course will be in the following order.
(a) As per directive of Hon'ble Supreme Court of India 50% of the total available open merit seats in an academic year (subject to change) in various post graduate degree and diploma courses in each subject will be filled up on the basis of SAll India competitive entrance examination for admission to postgraduate medical courses (M.D./M.S./Diploma).
(b) Thereafter, maximum of 10% of total PG Diploma seats in following courses, i.e. Peadiatries, T.B. & Chest, O & G, Anaesthesia & P.S.M. Is reserved for Medical Officer appointed by Govt. of Gujarat as per rules prescribed vide G.R. No. MCG/1004-650 dated 18-7-2005 and inforce from time to time.
c. The remaining seats (after allocation as per Rule 2.0 (a) & (b) will be available for candidates passing from Veer Narmad South Gujarat University in accordance with Rule 4.1 and the students of other Universities will be considered as per their merits in accordance with Rules 4.2 and 4.3.
Rule 2.1 reads as follows 2.1 In case the seats reserved in Rule 2.0 remain vacant because of non-availability of candidates, the same will be treated as open seats.
Rule 3.0 reads as follows:
3.0 Remaining total seats after Rule 2.0 & 2.1 in Post Graduate courses will be filled up by the Admission Committee of the University.
Rule 3.1 reads as follows:
3.1 For this purpose selection will be done once in each Academic year.
Academic year : 2nd May to 30th April of next year.
First Academic Term : 2nd May to 31st October of the same year Second Academic Term:1st November to 30th April next year.
Rule 4.0 reads as follows:
4.0 Selection of candidates eligible under Rule 1 for seats under Rule 3.0 will be done category wise on the basis of merit as laid down herein further.
Rule 4.1 reads as follows:
4.1Preference shall be given to candidates graduating from this university.
Rule 4.2 reads as follows:
4.2 Candidates graduating from any other university located in Gujarat state and not registered fro any P.G. Course and eligible as per Rule 1 will be considered after selection of candidates in the merit list as per rule 4.1.
Rule 4.3 reads as follows:
4.3 After operation of Rule 4.2 the candidates graduating from any other university located out side Gujarat state and eligible as per Rule 1 will be considered for the PG admission.
Rule 4.4 reads as follows:
4.4 If any vacancy remained thereafter the admission will be offered to tutor working in the same PG department of that college. (1.9 & 1.10 not applicable to him) Rule 4.5 reads as follows:
4.5 No student shall be given P.G. Admission without Residency (or higher post or post like tutor) Rule 4.6 reads as follows:
4.6 Seats can be utilized in the same academic year only and vacancy in any one academic year cannot be utilized in subsequent academic year.
Rule 5.0 reads as follows:
5.0 7% of seats available for P.G. Degree and Diploma will be reserved for candidate3s belonging to scheduled caste, 15% of seats for ST candidates and 27% of seats for cnadidates belonging to socially and educationally backward class (SEBC) students including widows and orphan children. The students desiring admissions under SEBC category will have to submit a certificate that they are not included in the creamy layer from the competent authority as prescribed by the Govt. of Gujarat from time to time along with the applications. 3% of seats will be reserved for physically handicapped candidates in each category on the basis of criteria laid down by Medical Council of India.
Rule 5.1 reads as follows:
5.1 These seats are reserved for the cnaidates beloning to SC/ST and SEBC recognized as such in the state of /Gujarat and not for those cnadidates or their parents who have migrated from other state to Gujarat State.
Rule 5.2 reads as follows:
5.2 For allocation of seats to this reserved category a 100 point roster, will be followed, record of which will be maintained by the university/respective college/institutions. These roster point list will be separate fro affiliated institutions/college.
Rule 5.3 reads as follows:
5.3 In case the seats reserved under Rule 5.0 remain vacant due to non-availability of the candidates of the specified category up to Rule 4.2 selection, they shall be treated as unreserved seats and will be filled up by the candidates on the basis o merit as per Rule 4.1, 4.2, 4.3 and 4.4.
22. It can thus be seen that barring some minor differences, the Rules applicable in the said Veer Narmad South Gujarat University were similar to those framed by Saurashtra University with which we are concerned in the present group of petitions. On the basis of above Rule position, this Court made following observations which would apply to the facts of the present case also:
From the above rules it can be seen that there is allocation of 50% of the total available seats in an academic year in various postgraduate degree and diploma courses to be filled on the basis of All India competitive entrance examination. This is popularly referred to as All India Quota seats. In certain specified branches of postgraduate courses, upto a maximum of 10% of seats are earmarked for medical officers appointed by the Govt. of Gujarat as prescribed in the relevant G.R. Seats remaining thereafter i.e. in Clause (a) & (b) of Rule 2.0 are made available for candidates passing from Veer Narmad South Gujarat University in accordance with the rules and in particular Rule 4.1 as also for the students of other universities of the state as per their merit in accordance with Rule 4.2 and 4.3.
5.4 Combined reading of Rules 2.0 and 2.1 would make it clear that in case seats earmarked as provided in Clause (a) or Clause (b) of Rule 2.0 are for some reason not filled, such unfilled seats would revert to the sources specified in Clause (c) of Rule 2.0 namely from amongst the students from Veer Narmad South Gujarat University and the students of other universities in the State. This is the connotation of the term Swill be treated as open seats appearing in Rule 2.1.
6. From the above noting of the rules and combined reading thereof, I find it sufficiently clear that what is envisaged in the rules is that whenever the seats earmarked in Clause (a) & (b) of Rule 2.0 are not filled up from the sources for which they are earmarked, such seats will be filled in the by category specified in Clause (c) of Rule 2.0. Such seats are added to total seats for the said source and will have to be filled in as per the prevailing rules from amongst the students of Veer Narmad South Gujarat Universities or other Universities of the State as envisaged in Rule 4.1 and Rule 4.2; and 4.3 respectively. This is what is sought to be conveyed when Rule 2.1 specifies that in case of seats reserved under 2.0 remain vacant, the same will be treated as open seats. There is some indication in the above interpretation to be available in Rule 3.0 which provides that remaining total seats after 2.0 and 2.1 in postgraduate courses will be filled by admission committee of the university. It would thus appear that whenever seats are not fully utilised as provided in Rule 2.0 (clause (a) and (b) respectively), such seats will get added to the tally of seats made available to be filled up from amongst the sources specified in Clause (c) of Rule 2.0. The central question is whether once these seats get added to tally of the number of seats to be filled from the said sources, should the policy of reservation apply to such additional seats. It is not in dispute that the reservation applies for all seats to be filled up as specified in Clause (c) in Rule 2.0 of the said rules. It would, therefore, mean that the seats to be filled up from such sources, would be subject to the reservation for different categories of reserved class as envisaged in State Government in its policy. If this be so, there is no worthy reason why additional seats available for the said source should not be subject to the same requirement of following reservation policy. I find nothing in the rules, which would suggest that for such additional seats the reservation should not be made applicable. From whichever source the seats are made available, by virtue of application of rules the seats are being filled up from the source specified in Clause (c) of Rule 2.0 i.e. from the students of Veer Narmad South Gujarat University or other university of State of Gujarat. The prevailing policy of the reservation in the state must apply to these seats also. To my mind the rules are amply clear and permit no ambiguity. The communication dated 30th May, 2005 only clarifies the situation. The same, in no manner, is conflicting with or modifies or amends the existing rules. In that view of the matter the contention of the learned advocate for the petitioners that by way of impugned communication the existing rules are amended cannot be accepted.
23. The issue can be looked at from a slightly different angle. The Division Bench of this Court by a judgment dated 13-7-2006 as mentioned earlier found that the relevant Rules of the Bhavnagar University in so far as the same permit the said University to utilise the unused vacancies of the reserved categories by granting admission to their students who belong to general category of communities is unconstitutional and ultra vires. It was observed that such Rule if it is allowed to be read, as to permit any person who graduated from any other university located in Gujarat State will be considered after selection of the candidates in the merit list as per Rule 4.1 and 4.2, and is applied to reserved category, then, such application would be ultra vires the Constitution. In this regard Division Bench made following observations:
[31] The manner in which Rule 5, specially Rule 5.4[a] has been framed would violate Articles 14 and 15 of the Constitution of India. It is also to be noted that Medical Council of India has nowhere said that policy of reservation is to be sacrificed in the name of excellence or merits. Comparative merits are to be examined in a class or community and not otherwise.
[32] In our humble opinion, Rule 4.3, if it is allowed to be read that any person who graduated from any other university located in Gujarat State will be considered after selection of the candidates in the merit list as per Rule 4.1 and 4.2, and is applied to reserved category, then, such application would be ultra vires the Constitution, but if Rule 4.3 is read for general category candidates, then, Rule is not ultra vires.
[33] So far as Rule 5.4[a] is concerned, it is apparently ultra vires the Constitution, it runs contrary to the Rules framed by the State, it runs contrary to the Regulations made by the Medical Council of India and the mandate of the Constitution.
24. Thus if the interpretation of the Admission Rules of Saurashtra University as sought to be canvassed by learned advocate Shri J.R. Nanavati is to be accepted, the same would fall prey to the virus of unconstitutionality. However, I agree with the submissions of learned advocate Shri J.R. Nanavati that small but significant difference between the two sets of Rules namely those governing the Bhavnagar University and Saurashtra University would ensure that interpretation of the Rules of Saurashtra University would stand on its language. It is in this regard that I find that Rules themselves are sufficiently clear as to provide that spillover vacancies of reserved categories meant for the students from Saurashtra University have to be filled up at-least at the first instance by the candidates belonging to the same categories but passing out MBBS examination from other Universities in the State of Gujarat.
25. I am unable to accept the contentions of learned advocate Shri J.R. Nanavati that Residency Rules of the State Government prohibit consideration of any of the candidates who have such Residencies available in the parent University and that therefore, their candidature is to be rejected out of hand for the available seats in Saurashtra University.
26. As noted earlier, the Admission Rules framed by Saurashtra University have statutory force. These Rules make specific provision for regulating the admissions of various categories of the candidates. Even if some provisions made by the Government in its Residency Rules seem to be conflicting with the Admission Rules of Saurashtra University, the provisions made in the Saurashtra University Rules shall prevail since Residency Rules of the Government are circulated through executing instructions. To the extent field is not occupied by any statutory Rules, it is always open for the State to provide for regulations through executive instructions. However, to the extent same is conflicting with the statutory Rules, the Rules must take precedence.
27. The conclusion of the above discussion is that the respondents Nos. 2 and 3 i.e. Saurashtra University and P.G. Admission Committee in my view committed a legal error in filling up unfilled reserved vacancies through open category candidates from Saurashtra University. Such seats ought to have been offered to other students passing out from Universities located in the State of Gujarat and who belong to such reserved categories.
28. The crucial question of what ultimate relief can be granted to the petitioners still survives.
29. As noted earlier the Hon'ble Supreme Court has provided for a time limit for completion of the admission process to P.G. Medical Courses. For the current year through the Court's order as circulated by the State Government, such time limit was extended upto 30-6-2006. It is also provided that beyond such time limit, no admissions shall be granted and vacancies remaining unfilled shall lapse and shall not be made available for the next academic year. The private respondents herein were granted admission by the respondents Nos. 2 and 3 University though mistakenly. I do not find that their actions were suffering from mala fides. In fact such allegations have not even been made by the petitioners. Respondent No. 2 bona fide sought to apply the Rules as interpreted by it. By cancelling the admissions granted to the private respondents, no useful purpose would be served. The seats which may fall vacant pursuant to such directions cannot be ordered to be filled up by any other candidates, since time limit for filling up such vacancies is over. Only purpose that such directions could achieve therefore, would be to vacate the seats already occupied by respondent students and ultimate lapsing of such P.G. Medical Course seats. This would not be in the interest of anyone. Additionally, I also find that it is not possible to pinpoint that these private respondents were at the bottom of the merit list and but for this spillover seats being made available, would not have got admission in their own University. Since respondent No. 3 Committee had the picture of the reserved category candidates clear at the outset, it included all the seats including the left over seats for consideration at the first counselling itself. Consequently, respondent No. 8 who was the highest ranked student in Saurashtra University was offered the seat of his choice which happened to be a reserved category seat not claimed by any reserved category candidate. So far as other respondent-Doctors are concerned also, similar situation would arise. It is not therefore, that these students were accommodated in the P.G. Course though they were not meritorious only on account of additional seats being available due to nonavailability of reserved category candidates from Saurashtra University. Striking down their admissions therefore, would be inequitable in facts of this case. It is entirely possible that all or most of them would have independently secured admission in some or the other P.G. Course in Saurashtra University. By striking down their admissions at a belated stage they would be left high and dry. The admission in their own University will stand cancelled without any corresponding opportunity to apply for the open category seats in their own University or to seek admission elsewhere. To achieve this without any corresponding benefit to the petitioners would be wholly inequitable and improper. This Court also should not be privy to some P.G. Medical Course seats lapsing.
30. Considering all these aspects of the matter though I find that the petitioners are substantially correct in contending that the interpretation of the Admission Rules adopted by respondents Nos. 2 and 3 is incorrect, the procedure as this Court has found correct can be applied only in next academic term and no prayer as made by the petitioners can be granted on account of the time limit for regulating such admissions having lapsed.
31. This may not be confused with perspective overruling or perspective application of the decision which formula can be adopted only by the Hon'ble Supreme Court. All that this Court has done in the present order is to interpret the Rules as found appropriate. But has at the same time found that granting of ultimate relief to the petitioner will be inequitable.
5. In the result, the petitions are disposed of in the above manner. Rule is discharged.