Madhya Pradesh High Court
Dr. Pramod Jhavar And Anr. vs The Director Of Medical Education, ... on 12 March, 1991
Equivalent citations: AIR1991MP269, AIR 1991 MADHYA PRADESH 269
JUDGMENT V.S. Kokje, J.
1. In this petition the petitioners have passed their M.B.B.S. Examination from the M.G.M. Medical College, Indore in 1988 and have completed their internship in the month of December, 1989. The petitioners are desirous of admission in the Course of Diploma in Turberculosis and Chest Diseases (D.T.C.D.). According to the petitioners three seats in the Diploma Course are available in Indore but only two house jobs in the concerned subject were available. They applied for house job in the said subject at Jawaharlal Nehru Hospital and Research Center, Bhilai Steel Plant, which according to them is an Institution recognized by the Medical Council of India and has four house job seats in the department of Turberculosis and Chest Deceases. The petitioner No. 1 has completed his house job on 27-12-1990 and the petitioner No. 2 has completed his house job on 30-12-1990. The petitioners had applied for admission to the D.T.C.D. Course in the M.G.M. Medical College, Indore. However, respondent No. 4 Dr. Ku. Kusum Goel, who had done her house job in Medicine from the M.G.M. Medical College, Indore was preferred and the petitioners were not able to get admission. They have, therefore, filed this petition claiming that as they have done house job in the same subject though from a hospital not attached to the M.G.M. Medical College, Indore but attached to another college of the State, according to the guidelines called Diploma Rules, they had better claim over respondent No. 4.
2-3. In their return the respondents Nos. 1 to 3 have taken a stand that the Bhilai Hospital from which the petitioners did their house job was not a Medical College Hospital at all. It is also contended that the Bhilai Hospital is not running D.T.C.D. Course and, therefore, there could be no house job attached to this Course in that Hospital. It is further contended by the respondents Nos. 1 to 3 that Medicine is an allied subject to Tuberculosis and Chest Dieseases and since respondent No. 4 had done her house job in Medicine she was given admission after accommodating the two candidates who had done house job Chest and T.B. in M.Y. Hospital Indore. As the petitioners had done their house job from the Bhilai Hospital, according to the respondents they could not claim preference over respondent No. 4. It is also contended that the sole criterion for admission is merit and respondent No. 4 was higher in merit and had her house job in a subject which is allied to T.B. house job. It is also contended that the matter was put before the P.O. Committee consisting of three senior Professors of the College for considering the problem, the recommendation of the Committee was in favour of respondent No. 4 and, therefore, admission was granted to her.
4. The respondent No. 4 has filed separate return. She has contended that the petitioners were lower in merit than her and could not claim preference over her only because they had done the house job in the concerned subject. It is also contended that the petitioners do not appear to have completed their house job in the year 1990 and were therefore not eligible for consideration. It is further contended by the respondent No. 4 that while making application for post graduate Diploma Course she had applied for M.D. (Anaesthesia) and for a Diploma Course D.T.C.D. or D.C.P. in that order of preference. She could not get admission to M.D. (Anaesthesia) Course but has been considered to be entitled to admission for D.T.C.D. on the basis of the merit position. Because of this, she has not been admitted to D.C.P. and a candidate with lower merit has been admitted there. According to her she cannot now be removed from the D.T.C.D. Course because she had been deprived of admission to D.C.P. because of her admission to D.T.C.D. Course.
5. The petitioner in Misc. Petition No. 83/91 Dr. Paresh Nath Pal, has passed his M.B.B.S, Examination from the Medical College, Raipur in July, 1988 and has completed his house job in Chest and T.B. from 23-8-89 to 22-8-1990 in the Jawaharlal Nehru Hospital and Research Center, Bhilai. The petitioner had applied for admission to D.T.C.D. Course in the M.G.M. Medical College, Indore. It is alleged that respondents Nos. 1 and 2 have allotted the seat to respondent No. 4 Dr. Kusum Goel, who has not done her house job in the concerned subject. This case as also Misc. Petition No. 83/91 concern admission to the same Course. They were heard and are being decided by this order together. Returns taking a similar stand as has been taken in Misc. Petition No. 51/91, have been filed by respondents Nos. 1 to 3 and respondent No. 4, in the other case also.
6. We have heard Shri S.S. Samvatsar, the learned counsel for the petitioners in Misc. Petition No.51/91, who are also respondents Nos. 5 and 6 in Misc. Petition No. 83/91; Shri S. Kulshreshtha, learned counsel for Dr. Kusum Goel respondent No. 4 in both the cases, Shri T. N. Singh, learned Deputy Advocate General, counsel for respondents Nos. 1 to 3 and Shri S.C. Bagdia, learned counsel for the petitioner in Misc. Petition No. 83/91.
7. Shri Samvatsar, learned counsel for the petitioners in Misc. Petition No. 51/91 submitted that the admission to post graduate diploma courses are governed by executive instructions known as rules for post graduate diploma courses, in medical colleges in M.P. which are annexed by him as Annexure-C to the petition. According to him under the rules the first priority has to be given to the candidates completing house job in the concerned subject from the same medical college, the second preference will be of the candidates completing house job in the concerned subject from any other medical college of the State. He, therefore, submits that as no candidate who has completed house job in the concerned subject in the M.G.M. Medical College, Indore is available to fill in the vacant seat, candidates completing house job in the concerned subject from other medical colleges in the State are entitled to admission in preference to candidates who have completed the internship in the M.G.M. Medical College and completed house job in any other subject. In support of his contention that a house job in Bhilai Hospital is a house job from a medical college situated in the State he heavily relies on the judgment of this Court in Dr. Nirmal Lakhotiya v. State of M.P. (AIR 1987 MP 167).
8. Shri S.C. Bagdia, learned counsel for the petitioner in Misc. Petition No. 83/91 supports the contention of Shri SS Samvatsar and further submits that from amongst the candidates having done house job from other medical colleges also the admissions have to be granted on the basis of their comparative merit, in which case according to him, his client would be entitled to admission to one of the seats in preference to one of the petitioners in Misc. Petition No. 51/91.
9. Shri T.N. Singh, learned Dy. Advocate General appearing for the State submits that a Committee consisting of three Acada-micians had considered the question and had arrived at the conclusion that respondent No. 4; was entitled to admission in preference to the petitioners in both these cases. According to him the matter of suitability for admission has to be left to acadamicians and as three senior Professors have decided in favour of respondent No. 4, this Court should not interfere with their decision. Shri Kulshreshtha, learned counsel for respondent No. 4 Dr. Kusum Goel pressed his claim foY admission on the basis of merit as well as on the ground that his client has lost admission to D.C.P. because of her admission to D.T.C.D. Course and her admission to D.T.C.D. cannot be cancelled without providing for her admission to the D.C.P. Course, at least.
10. Having heard the learned counsel, we have come to the conclusion that the petitioners have been unnecessarily dragged to this court by the respondents Nos.:1 to 3. In Dr. Nirmal Lakhotiya's case (supra) the same questions came up for consideration and have been decided unequivocally by this Court. The two questions formulated in para 5 of that judgment were as under (at page M.P. 169; AIR 1987:--
"(1) Whether house job in the hospital of the Bhilai Steel Plant at Bhilai can be considered to be a house job in the Medical College, Raipur; and (2);Whether the applicant, who has completed one year house jon in the subject concerned in the Bhilai Steel Plant hospital is entitled to get preference over candidate, who has done house job in an allied subject from the M.G.M. Medical College, Indore."
It is dear from para 7 of that judgment that attention of the Court was also invited to the executive instructions issued by the State Government providing rules for admission to post graduate diploma courses in medical colleges in M.P. and priority for admission as per rules was quoted by the Court. It is also noted in para 7 of the judgment by the Court that executive instructions have to be read along with the advertisement because it was never suggested that in issuing the advertisement there was any error. It is in this context that the Court had observed that as held by the Supreme Court in Dr. Vinay Rampal v. State of Jammu and Kashmir, AIR 1983 SC 1199, the authorities issuing advertisement and inviting applications for admissions must be held bound by it unless it is shown that in issuing the advertisement there was any error.
11. Now, it appears that three learned professors of the M.G.M. Medical College, Indore sat over this judgment of the High Court in their meeting held on 27-12-1990 and concluded that priority should be given to the candidates who have completed their house job in M.G.M. Mcdicai College in allied subjects over candidates having done their house jobs in the concerned subjects from the other colleges of the State. A perusal of minutes of the Annexure R-1 to the return filed by respondents Nos. 1 to 3 clearly shows that the learned professors were trying to somehow wriggle out of the judgment of this Court and it also appears that the matter was referred to them for getting over the difficulty created by the aforesaid judgment of the High Court in the way of respondents in granting admission to a candidate of their own choice. The minutes 01 the Committee clearly shows that they resorted to a deliberate falsehood while observing that the judgment of the High Court has pointed out that the advertisement for that year for diploma course in the year 1986 was different from the Government rules. The following observations in the aforesaid ruling give a clear view to the statement made by the Committee in para l(b) of their minutes. We extract both these portions hereinbelow for easy comparison:--
Extract from judgment Extract from R-l "Now, the aforesaid executive instructions have to be read along with the advertisement because it was never suggested that in issuing the advertisement Anne sure A there was any error."
"1(b) : The judgment of the High Court has pointed out that the advertisement for that year for Diploma courses in the college in the year 1986 was different from the Government rules and mentioned its priorities differently. The Hon'ble High Court stressed that the criteria and priority mentioned in the advertisement should be Struck to. There was no direction for changing the Government rules."
A mere glance at the aforesaid excerpts from the judgment and from the minutes would show that a blatant falsehood was perpetrated on the High Court's judgment in order to get out of it. This is nothing short of contumacious and malicious conduct which we cannot leave unnoticed. We would make suitable directions in this regard at the end of this order.
12. Reverting back to the merits of the case, let us now examine it even in the light of Annexure R-1, the minutes of the so-called P. G. Committee. The decision of the High Court in Dr. Nirmal Lakhotiya's case (supra) has been tried to be distinguished on the ground that it was based on the advertisement issued that year and not on the rules. However, along with the return the advertisement, which is being made the basis for distinguishing Dr. Nirmal Lakhotiya's case was not filed. We had to call it from the respondents Nos. 1 to 3. On going through it, we find that applications are invited from candidates eligible as per rules framed for Diploma Courses and no eligibility criteria has been mentioned in the advertisement. For the priorities and eligibilities, therefore, we have to fall back on the rules. Rule 1.2 of the Diploma Rules sets out the priorities. It reads as under (at page AIR 1987 MP 170 :--
"Rule 1.2:-- The priority for admission to diploma courses for merit candidates would be as under :--
(1) The candidates completing house job in the concerned subject and in the same Medical College. For diploma in Anasthesia (DA) and Diploma in Radiology (DMRE) if a candidate with housejob in Anaesthesio-logy/Radiology is not available then a candidate who has done house job in Medicine or Surgery would be considered. Similarly for diploma in Forensic Medicine (DFM) and clinical pathology (DCP) candidates having done housejob in Medicine or Surgery would be preferred.
(2) The candidates completing housejob in the concerned subject and in other Medical Colleges in the State.
(3) The candidates completing housejob in the same Medical College.
(4) The candidates completing internship in other Medical College in the State.
(5) The candidates completing housejob in the concerned subject in the Medical College outside State.
(6) The candidates completing internship in the Medical Colleges outside State.
13. A bare reading of the Rules 1.2(1) and 1.2(2) would make it clear that the petitioners in both the cases are entitled to a preference over respondent No. 4. The first priority is of candidates completing house job in the concerned subject and in the same Medical College. A proviso is added to this clause of priorities itself by explaining that for diploma in Anaesthesia and diploma in Radiology, if candidates with house job in the concerned subject are not available, candidates who have done house job in Forensic Medicine and Surgery would be considered, and similarly for admissions in Medicine and diploma in Clinical Pathology the candidates having done house jobs in Medicine or Surgery would be preferred. Now, it is clear that so far as D.T.C.D. Course is concerned, it has not been provided that a house job in Medicine would be preferred to a housejob in the concerned subject from outside the concern Medical College. Thus, the respondent No. 4 having done housejob in Medicine does not fall in first category of priority not having done house job in the same subject. The second priority so far as D.T.C.D, Course is concerned would be of candidate having done house job in the concerned subject from other Medical Colleges in the State. The petitioners in Misc. Petition No. 51/91 squarely fall in this category because even the socalled P.O. Committee has not held them ineligible for that reason. In any case, the judgment in Dr. Nirmal Lakhotiya's case so far as it holds that house job in Bhilai Steel Plant Hospital was equivalent to house job in D.K. Hospital attached to Medical College, Raipur cannot now be challenged. In Nirmal Lakhotiya's case relying on a. decision of the Division Bench of this Court in M.P. No. 911/81 decided at Jabalpur as also relying on the fact that the Government Advocate in Dr. Nirmal Lakhotiys's case informed the Court that the college council of the M.G. Medical College, Indore had also not taken any decision that the house job in Bhilai cannot be treated at par with the house job done in Medical College/Hospital, the Court had categorically held that the housejob in the hospital of the Bhilai Steel Plant can be considered to be house job done in the Medical College, Raipur. Even in this case it was not brought to our notice that it has been decided by any competent authority that housejob in Bhilai Steel Plant cannot be taken as house job in Medical College, Raipur. It cannot, therefore, be said that the petitioners are not eligible for consideration for admission to D.T.C.D. Course.
14. For the aforesaid reasons we allow Misc. Petition No, 51/91 and direct the respondents Nos. 1 to 3 to consider petitioners Nos. 1 and 2 for admission to D.T.C.D. Course in preference to respondent No. 4 and all other candidates who have not done housejob in the concerned subject from the M.G.M. Medical College, Indore. We quash the admission granted to respondent No. 4 Dr. Kusum Goel and that she should be considered for D.C.P. or any other Course in accordance with her merit as per rules governing admissions to Degree and Diploma Courses in the M.G.M. Medical College, Indore. We do realise that such a direction may upset the admissions granted to other candidates in other Courses but we cannot help. The respondents Nos. 1 to 3 have created a mess of these admissions despite a clear cut decision of this Court in Dr. Nirmal Lakhotiys's case and, therefore, they will have to thank themselves for all the complications which may now arise. The following observations of the Supreme Court in Punjab Engineering College, Chandigarh v. Sanjay Gulati, AIR 1983 SC 580 are apposite in the situation (at page 581 & 582 of AIR 1983 SC:--
"Cases like these in which admissions granted to students in educational institutions are quashed raise a sensitive human issue. It is unquestionably true that the authorities who are charged with the duty of admitting students to educational institutions must act fairly and objectively. If admissions to these institutions are made on extraneous considerations and the authorities violate the norms set down by the rules and regulations, a sense of resentment and frustration is bound to be generated in the minds of those unfortunate young students who are wrongly or purposefully left out. Indiscipline in educational institutions is not wholly unconnected with a lack of sense of moral values on the part of the administrators and teachers alike. But the problem which the Courts are faced with in these cases is that it is not until a period of six months or a year elapses after the admissions are made that the intervention of the Court comes into play. Writ petitions involving a challenge to such admissions are generally taken up by the High Court as promptly as possible but even then, students who are wrongly admitted finish one or two semesters of the course by the time the decision of the High Court is pronounced. A further appeal to this Court consumes still more time, which creates further difficulties in adjusting equities between students who are wrongly admitted and those who are unjustly excluded. Inevitably, the Court has to rest content with an academic pronouncement of the true legal position. Students who are wrongly admitted do not suffer the consequences of the manipulations, if any, made on their behalf by interested persons. This has vitually come to mean that one must get into an educational institution by means, fair or foul. Once you are in, no one will put you out. Law's delays work their wonders in such diverse fashions.
We find that this situations has emboldened the erring authorities of educational institutions of various States to indulge in violating the norms of admission with impunity. They seem to feel that the Courts will leave the admissions intact, even if the admissions are granted contrary to the rules and regulations. This is a most unsatisfactory state of affairs. Laws are meant to be obeyed, not flouted. Some day, not distant, if admissions are quashed, for the reason that they were made wrongly, it will have to be directed that the names of students who are wrongly admitted should be removed from the rolls of the institution. We might have been justified in adopting this course in this case itself, but we thought that we may utter a clear warning before taking that precipitate step. We have decided, regretfully, to allow the aforesaid sixteen students to continue their studies, despite the careful and weighty finding of the High Court that at least eight of them, namely, the seven wards of employees and Ashok Kumar Kaushik, were admitted to the Engineering Course in violation of the relevant rules and regulations.
It is strange that in all such cases, the authorities who make admissions by ignoring the rules of admissions contend that the seats cannot correspondingly be increased, since the State Government cannot meet the additional expenditure which will be caused by increasing the number of seats or that the institution will not be able to cope up with the additional influx of students. An additional plea available in regard to Medical Colleges is that the Indian Medical Council will not sanction additional seats. We cannot entertain this submission. Those who infringe the rules must pay for their lapse and the wrong done to the deserving students who ought to have been admitted has to be rectified. The best solution under the circumstances is to ensure that the strength of seats is increased in proportion to the wrong admissions made."
15. So far as petitioner in Misc. Petition No. 83/91 is concerned, he has done his M.B.B.S. and internship from the Medical College, Raipur. The rules as they are provide for the priorities on the basis of house job in the concerned subject and not merely on the basis of having done M.B.B.S. in a college and internship in that college. As already observed, the first category is of those candidates who have done house job in the concerned subject from the same Medical College. The second category is of candidates completing house job in the concerned subject from other Medical Colleges of the State. The third category is of candidates completing internship in the same Medical College. The Institutional preference so far as the Diploma Rules are concerned is clearly based on house job in the concerned subject. A plain reading of the rules would show that the petitioner in Misc. Petition No. 83/91 also falls in the second category of priority. The respondents Nos. 1 to 3 have, therefore, to consider the petitioner Dr. Paresh Nath Pal also as eligible for consideration in the category of second preference and consider him along with the petitioners in Misc. Petition No. 51/91 for admission to D.T.C.D. Course. We again make it clear that the respondents would be free to consider increase in the number of seats available for D.T.C.D. in the light of observations of the Supreme Court in the Punjab Engineering College's case (supra) but they shall not stall admissions of the petitioners for an indefinite period. We, therefore, direct that the petitioners in both these cases be immediately considered for admission to D.T.C.D. Course and as many of them in order of merit as can be granted admissions be admitted within a fortnight from this order. They shall be deemed to have been admitted from the beginning of the Course this year and their absence up till now shall be deemed to be condoned. Extra work for compensating the absence can however be taken from them. If and when a seat is increased the respondent No. 4 be admitted against it as she has lost her admission to D.C.P. Course because of her wrong admission in the D.T.C.D. Course.
16. In view of the aforesaid, both these petitions (Misc. Petition No. 51/91 and Misc. Petition No. 83/91) are allowed. As the petitioners were forced to file these petitions despite a decision of this Court in their favour, we direct respondents Nos. 1 to 3 to pay to the petitioners costs of these petitions. Counsel's fees Rs. 2,000/- in each case. The respondent-State shall not only be free but is also expected to recover the costs imposed on it in these cases from the erring officials who have brought about this situation after giving them proper opportunity to explain their conduct. We also direct that since a prima facie case of disobediance of a decision of this Court is made out a separate case be registered as Miscellaneous Civil Case against the person who was occupying the post of Dean, M.G.M. Medical College, Indore in December, 1990, who referred the matter of admissions to the Committee as also against Dr. R. Pathak, Dr. S. D. Singh and Dr. S.K. Ohri, who constituted the Post Graduate Committee which distinguished the decision of this Court apparently on false and untenable grounds and let that case be fixed for further orders before the Court. Security deposit, if any, be refunded to the petitioners after verification.