Madhya Pradesh High Court
Sanjay Maheshwari (Dr.) vs State Of Madhya Pradesh And Ors. on 19 August, 1991
Equivalent citations: 1992(0)MPLJ392
ORDER S.K. Dubey, J.
1. By this petition under Article 226 of the Constitution of India, the petitioner has stated his claim for allotment of a seat in Post-Grduation Course (MD, Anaesthesia) and for that has prayed for issuance of a writ in the nature of mandamus commanding the respondents Nos. 1 and 8 to allot and admit the petitioner to one of the two seats of all India quota reverted to the institution.
2. The salient facts leading to this petition are : The petitioner passed his MBBS examination in the year 1987, he completed his one year's compulsory Internship in the year 1988, completed 12 months, House Job in November 1989 and applied for a seat in MD Anaesthesia, from the institutional candidates the petitioner was in waiting list No. 1 in the order of merit and, hence, was allotted a seat in Diploma course in Anaesthesia of the academic session 1989. In January 1989 the petitioner appeared in All India Competitive Examination for seeking a seat in MD Anaesthesia but could not get through. Out of six seats (four of institutional candidates and two of Assistant Surgeon/military/private practitioner quota), two seats were diverted to All India quota - one from institutional merit candidate and one from Assistant Surgeon quota. As these two diverted seats were not availed of by the candidates from All India competitive examination, the seats were reverted back to the institution fide Directorate General, Health Services, Medical Examination Cell's communication dated 4th November 1989 for the 1989 quota. Prior to this, on 22nd September 1989 vide Annexure P/S, petitioner made a representation to respondent No. 2 the Dean, G. B. Medical College, Gwalior, for allotment of a Post-Graduate seat from All India quota-seats which were lying vacant, but that seat was not allotted to him, and he was selected for Diploma course in Anaesthesia, as aforesaid, which he joined on 13th December 1989.
3. Again, vide Annexure P/9 dated 30-12-1989, the petitioner made a representation to respondent No. 2 to allot him one of the released vacant seats of MD Anaesthesia of All India Quota. The petitioner also challenged the allotment of seats to Dr. Gyanendra Pradhan, an Assistant surgeon, and Dr. V. Saraswat, a Military personnel, respondents Nos. 3 and 4. Respondent No. 3 Dr. Pradhan, aggrieved of his placing and allotment of a seat in Diploma in Anaesthesia, made a representation, which was accepted, as is evident from Annexure R/3 dated 23-12-1989, issued from Directorate of Health Services, which related to the final allotment of seats to Assistant surgeons from Assistant Surgeon/private practitioner/Military quota. The Director of Medical Education vide Annexure R/l dated 20-12-1989 communicated to all Deans of Medical Colleges in Madhya Pradesh regarding the revised distribution of post-graduate seats for the year 1989 in reference to the released/reverted seats of All India quota, and informed them that in order to avoid complications, as far as possible, it would be desirable to issue admission letters only on the last working day of December 1989. It is evident from the return that out of the two reverted seats, one seat was allotted to Dr. Abha Agrawal, vide the minutes of the meeting of the College and Hospital Council dated 12-1-1990 (Annexure R/7) as she, admittedly, was higher in merit than the petitioner. Respondent No. 4 joined on 15th May 1989, vide Annexure R/5, consequent on the selection of Dr. Capt. Indramohan for MD Anaesthesiology at Medical College, Jabalpur, having been cancelled.
4. The petitioner, who challenged the allotment of seats to respondents Nos. 3 and 4, contended that the petitioner stands better in merit (he obtained 86.9% of marks in MBBS examination, while respondent No. 3 Dr. Gyanendra Pradhan secured 53.52% of marks) as is evident from Annexures P/16 and P/14 respectively. The petitioner also challenged the allotment of seat to Dr. Major V. Saraswat, as he got admission in place of Dr. Capt. Indramohan, who got admission at Jabalpur Medical College, therefore, that seat could not have been transferred.
5. Shri B. K. Shrivastava, learned counsel for petitioner, placing reliance on Dr. Jeewak Almost's case, AIR 1988 SC 1812 and Dr. Ajay Pradhan's case, AIR 1988 SC 1875, raised mainly two contentions, that respondent No. 4, who got admission on Dr. Capt. Indramohan's seat, was not entitled to get admission in Medical College, Gwalior, as the seat could not have been transferred, and that in view of the scheme as laid down by the apex court in Dr. Jeewak Almost's case for selection and admission to All India reverted seats, the seats were to be given to those who had appeared in All India Competitive examination but had failed; therefore, along with the merit condidates and Acssistant surgeons the petitioner was entitled to be considered on the basis of the marks obtained in MBBS examination. It was also contended that in view of Annexure R/1 dated 4-12-1989 for the reverted seats of All India quota admission letters were to be issued on the last working day of December 1989, therefore, the admission of respondent No. 3 in MD Anaesthesia Course vide order dated 23-12-1989 (Annexure R/3), cannot be an admission on the All India reverted seat, and the admission was in violation of the scheme as laid down in Dr. Jeewak Ahnast's case. Thus, this seat remained vacant and in spite of various representations the petitioner could not get the seat. Alternatively, it was contended that allotment of seat to respondent No. 3, who was less meritorious than the petitioner, deserves to be cancelled and the petitioner deserves to be admitted.
6. During the pendency of the petition, a number of documents filed by parties were exchanged. Lastly, the respondents Nos. 1 and 2 filed an application dated 29-7-1991 annexing therewith a letter of the Director of Health Services dated 17-7-1991 which speaks that only two seats in Assistant surgeon/Military/private practitioner quota were sanctioned in MD Anaesthesia Course for G. R. Medical College, Gwalior. Out of these two seats one seat has already been allotted to. Dr. Major V. Sarswat, a Military personnel, and the other seat was allotted to Dr. Gyanendra Pradhan, Assistant surgeon.
7. Hearing of this case took place in parts. When the matter was last heard on 30-7-1991, petitioner also placed reliance on Dr. Ambesh Kumar's case, AIR 1987 SC 400, Sanjay Gulati's case, AIR 1983 SC 580 and two unreported Division Bench decisions of this court in M.P. No. 951/1987, Dr. Pawan Kumar v. State of M.P. and Ors. decided on 14-12-1988 and M.P. No. 1288/1988, Dr. Jaya Chaturvedi v. State of M.P. and Ors., decided on 15th December 1988 and further stressed that if this court finds that the authorities have illegally allotted the seats or illegally admitted respondent No. 4, the petitioner cannot be denied admission for wrong action of the authorities, as the educational institutions must act fairly and objectively.
8. Before we deal with the merits of the rival contentions, it would be worthwhile to mention here that, initially, the petitioner did not implead the respondents Nos. 3 and 4 as parties, nor he challenged their admission, on an objection being raised in the return, an application for amendement was filed by petitioner on 3-9-1990, impleading respondents Nos. 3 and 4, and challenging their admission. Respondents Nos. 1 and 2 also filed a supplementary return. Respondent No. 3 after service filed return, while respondent No. 4 adopted the return filed by the State. Respondent No. 4 was selected on a reserved seat of Assistant Surgeon/Military/private practitioner quota and was granted admission on a vacant seat in that quota. During the pendency of the petition, respondent No. 4 passed his examination of MD Anaesthesia and as per the break-up given by respondents Nos. 1 and 2, there was no seat of All India quota vacant (in MD Anaesthesia), as one seat was allotted to Dr. Abha Agrawal and the other to respondent No. 3.
9. It is not in dispute that the admissions are to be made in accordance with the Rules framed by the State Government in exercise of the powers conferred on it under Article 162 of the Constitution of India. The Rules for selection and admission for post-graduation courses are known as M.P. selection for Post-Graduation Courses (Clinical, para-Clinical and Non-clinical Courses) in Medical Colleges of Madhya Pradesh Rules, 1984 (for short, 'the Rules'). These Rules do not in any way encroach upon the Regulations that have been framed under the provisions of Section 33 of the Indian Medical Council Act, 1955, as the regulations made by the Central Government lay down the criteria or standards for admitting the candidates to various Post-Graduation disciplines in the Medical Colleges of the State. The Rules deal with two streams for selection of candidates one relates to selection of merit candidates and the other relates to selection and eligibility of Assistant surgeons.
10. The Government of M.P. vide order No. 321/1134/MED-II/90, dated 14-2-1990, has rescinded from these rules. Certain provisions relating to criteria for determination of merit as contained in clause (b) and its sub-clauses, clause (c), clause (d) and clause (f) of Rule 8.6 and clause (B) of Rule 9.5 (including the sub-clauses thereunder). But this order does not affect the candidates who were selected for post-graduation on their effective percentage of marks, calculated under the then prevalent Rules in the year 1989. The petitioner here too has not challenged the validity of any Rule, in particular Rule 9.13 which says "vacancy in the quota of merit students or assistant surgeon or private practitioners quota will not under any circumstances be transferred from one quota to the other." The petitioner stakes his claim on one of the two All India seats reverted to the institution. Of the two seats, one was originally available for admission to the institutional merit candidate and the other to the Assistant surgeon quota of 1989. Therefore, it is distinctly clear that of the two seats which were reverted back to the institution, one was bound to be allotted to institutional candidates and the other to Assistant surgeon quota on merit.
11. True, in Dr. Jeewak Almast's case (supra) which related to the academic year 1988-89, in the All India Entrance examination, out of the candidates appeared, only 500 students were found fit for being admitted as against 25% reservation, and 1600 seats could not be filled up in terms of the said examination. Therefore, one of the Medical Colleges of Uttar Pradesh moved the Apex Court for a direction that the remainder of the seats from out of the reserved 25% quota should revert back to the Medical Colleges to be filled up by the candidates who had applied for the remaining 75 per cent of the seats and had not got admission. To remove any confusion, a general equitable direction in relation to 1600 seats was made by the Supreme Court which contained in para 8 of the judgment. There, in clarifying the scheme and giving a direction for the remaining unfitted seats of 1988-89 an order was made "to draw up a list of the remaining candidates seeking admission as against the 75 per cent of the seats, and the candidates who had taken the All India Entrance examination but had not been found fit on the basis of the marks secured in their respective selection tests and in the event of there being no selection test in the States relating to the 75 per cent quota, then at the MBBS examination. This was to be on the footing that the marks in the respective tests or the test and the examination are at par and admission would be on the basis of merit. There is no doubt that the All India selection test had been a stricter one. Now, it would not be possible for us to direct what weightage is to be added on that score. Once the common list was drawn up on the basis of performance, admission to the remaining seats in the Post-Graduate courses could be taken up.
12.This scheme formulated by the apex Court was only for the academic session (1988-89) to meet the peculiar situation which had arisen in that given case and not for all times to come. No law was expounded or declared under Article 141 of the Constitution in the said case to bind as precedent, as a decision ordinarily is a decision on the case before the Court while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently, as has been said by the apex Court on occasions more than once. In case of Prakash Aminchand Shah v. State of Gujarat, AIR 1986 SC 468, the apex Court observed in para 26 :
"Before embarking upon the examination of these decisions we should bear in mind that what is under consideration is not a statute or a legislation but a decision of the Court. A decision ordinarily is a decision on the case before the Court while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. Hence, while applying the decision to a later case, the Court which is dealing with it should carefully try to ascertain the true principle laid down by the previous decision. A decision often takes its colour from the questions involved in the case in which it is rendered. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation."
Recently, in case of Krishena Kumar v. Union of India, AIR 1990 SC 1782, again in paras 18 and 19 the apex Court said :
"The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain "propositions wider than the case itself required."
In other words, the enunciation of the reason or principle upon which a question before a Court has been decided is alone as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the Court to spell it out with difficulty in order to be bound by it. "In the words of Halsbury, 4th Edn., Vol. 26, para 573:
"The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideartion of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment all are taken as forming the ratio decidendi."
13. The contention based on the scheme formulated by the apex Court in Dr. Jeewak Almost's case (supra) came up for consideration before a Division Bench of this Court in M.P. No. 1310 of 1989, decided on 30-3-1990, Dr. (Miss) Shashi Malik v. State of M.P. and Ors., where also the petitioner, an institutional candidate, made a claim that the seat originally taken from All India quota which was of Assistant surgeon quota, has to be filled up by merit institutional candidate. This Court read the observation in para 8 of the judgment in Dr. Jeewak Almost's case (supra) and maintained the admission of the Assistant surgeon on a seat which belonged to Assistant surgeon quota, holding that the Director General of Health Services, the Director of Medical Education and the College and Hospital Council are bound by the rules and have to act as per rules. In the rules entitlement is provided category-wise and that entitlement has not been affected in any manner. Thus, when the All India seat of Assistant surgeon quota was not filled up, that had to be filled up by Assistant surgeon in the absence of any specific impairment of that category under any law or order of Court.
14. In case of Dr. Arifa Almas, 1991 M.P.L.J. 189, a Division Bench of this court observed in para 30, that it is distinctly clear, in the background of that case, that if those two seats which reverted back to the institutional candidates out of All India, were originally available for admission to the institutional candidates in the academic year 1989, then in that event there cannot be any dispute that according to Rules 8.1 to 8.4 of the Rules as also under Regulations of the Council only the meritorious candidates would have been allotted the two seats on the basis of merit judged by the academic record of MBBS examination. It was further said that simply because the two seats became vacant later and were ultimately reverted back to the institutional candidates, there is no valid reason to depart from the normal rule of selection and not to apply the same yardstick and criteria, as laid down in the Rules.
15. The petitioner forcefully relied on Annexure R/l dated 20th December 1989, which speaks that to avoid complications, as far as possible, it would be desirable to issue admission letters only on the last working day of December 1989, but it does not demolish the case of respondent No. 3, as respondent No. 3 was not a merit candidate but was a candidate from Assistant surgeon quota. His representation and selection along with other 26 Assistant surgeons was considered by the committee constituted under Rule 9.8 of the rules, and when the final decision was taken it was communicated vide Annexure R/2 dated 23-12-1989, in pursuance of which final allotment of seat was made and respondent No. 3 was granted admission on a vacant reverted seat of Assistant Surgeon quota. Therefore, Annexure R/l, issued by the Directorate of Medical Education, M.P., Bhopal, did not put any injunction on issuance of admission letters, but it was, in essence, a guidance. Moreover, the Director of Health Services was the chairman of the selection committee who passed the final order Annexure R/3. therefore, it cannot be assumed or presumed that the selection of respondent No. 3 was not on a reverted seat of All India quota but was independent of a vacant seat of Assistant surgeon quota, which in fact, was not vacant.
16. Even assuming for argument's sake that the admission of respondent No. 3 was in violation of the scheme as laid down in Dr. Jeewak Almost's case (supra) (which we do not find) respondent No. 3 is pursuing his course of studies from 27-12-1989 and the academic session is nearing its end. It would not be proper to allow the petitioner's admission belatedly and disturb the respondent No. 3, as recently said by the apex Court in Dr. Pramod Kumar Joshi's case, (1991)2 SCC 170.
17. In regard to the admission granted to respondent No. 4, who has already passed out, the contention of the petitioner based on Dr. Ajay Pradhan's case (supra) is that the seat could not have been diverted to Medical College, Jabalpur, as respondent No. 4 got the admission because of the selection of Dr. Capt. Indramohan being cancelled. Suffice it to say, the admission of respondent No. 4 was granted on the vacant seat of Assistant Surgeon/Military/Private practitioner quota by the committee constituted under Rule 9.8 of the Rules. When selections are made, such candidates are granted admission in different Medicial Colleges in Madhya Pradesh to pursue their course of studies. There is nothing on record to demonstrate that the vacant seat at G. R. Medical College was illegally taken away or diverted to Medical College, Jabalpur, for giving admission to respondent No. 4. Moreover, as respondent No. 4 has already passed out, the petitioner cannot have any claim on the seat on which admission was granted to respondent No. 4.
18. In the result, the petition fails and is dismissed with no order as to costs.