Bombay High Court
Dr. Sheela Laxmikant Kulwal vs The State Of Maharashtra And Ors. on 10 February, 1993
Equivalent citations: 1994(1)BOMCR527
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
JUDGMENT V.S. Sirpurkar, J.
1. All these petitions can be disposed of by this common judgment, as they involve common question of law.
2. All the petitioners are challenging the refusal to their admission to the post-graduate degree course on the ground that they were not eligible to be considered as they had already joined and were already registered for diploma courses. It is an admitted position and a common ground that the petitioners have lost their admission to the degree courses owing to the fact that they were already admitted to the diploma courses.
3. For the sake of convenience, we shall state the facts in Writ Petition No. 3258 of 1992 filed by Dr. Sheela Laxmikant Kulwal. It is an admitted position that the advertisement for the course of N.S. (opthalmology) was issued on 4-11-1992. This advertisement was for July, 1992 batch. It is commonly understood that there are two terms, first term beginning from January upto July and the second term beginning from July. The said terms are given in the prospectus where they are described as under :
(1) First Term : 1st January to 15th May; and (2) Second Term : 1st July to 15th November.
It is an admitted position that the advertisement dated 4-11-1992 was for the July, 1992 batch and the said advertisement was for 2 seats for M.S. (Opthalmology). The petitioner applied on 20-11-1992 and also made a representation showing her willingness to resign from the course of D.O.M.S., which she was already undergoing. It must be stated here that the petitioner was already selected for D.O.M.S. course in response to advertisement for the January, 1992 batch, but it is also an admitted position that the petitioner was given her admission only somewhere in July, 1992. Since the petitioner was not considered, she challenges her non-selection by this petition, as, in fact, according to the petitioner, respondent No. 5, who is selected, has less marks inasmuch as the petitioner had scored 130 out of 200 marks, while respondent No. 5 had scored 129 out of 200 marks and was less meritoreus as compared to her. We are setting out the facts in this petition only to formulate the questions on which all these petitions will have to be decided. Needless to say that the facts in all the other three petitions are similar in nature.
4. The State of Maharashtra has formulated Rules for the admission to the Post-Graduate Courses under the Government Resolution dated 24th October, 1991. This Resolution is more or the less a result of the Full Bench judgment delivered by this Court dated 16-9-1991 in Writ Petition No. 2569 of 1990 with Writ Petition No. 1306 of 1991 and Writ Petition No. 1652 of 1991, reported in Ashwin Prafulla Pimpalwar and others v. State of Maharashtra, (F.B.). In the said Full Bench judgment, this Court had, inter alia, held that the Rules for admission to the Post-Graduate Courses, which then were in existence being the 1989 Rules, 1990 Rules and 1991 Rules, were invalid and could not be applied, as they were bad for non-application of mind. It is in pursuance of this Full Bench judgment that the State of Maharashtra was required thereafter to provide for the fresh rules, which, as per the directions of the Full Bench, were more or the less based on the Rules of 1971.
5. For the purposes of understanding the present controversy, some Rules will have to be quoted. Rule 2 runs as under :
"Each recognised post graduate teacher in Clinical Para-Clinical and Basic Medical subject shall admit for post-graduate registration not more than two candidates per year in a Unit for University Post-Graduate degree or diploma taken together, i.e. one per term of six months or as allowed according to rules of the Medical Council of India. The students whose terms are complete will not count. Students whose terms are intimated to be discontinued by the College will also not count. Concurrent registration of same student in diploma and degree, and 2 specialities at a time will not be permitted unless one registration period is over or is discontinued."
The next rule is Rule 5, which provides the basis for the admission to the post-graduate course, degree or diploma. Rule 5 specifically provides that the basis of the admission would be the marks obtained in the subject at the University examination modified with the specified deductions for the number of attempts taken to pass that subject, as well as the final M.B.B.S. examination. In short, the only basis for the admission to the post-graduate courses is the merit of the candidate. Rule 6 provides for the procedure for a candidate who is selected for registration in one subject and who desires to change from that subject to another. A methodology is prescribed in Rule 6. The only other rule which needs quotation is Rule 10, which is as under :
"The candidate who desires to discontinue his course has to give notice three months before commencement of next term and Full fees for next three months thereafter will be charged in absence of such notice, if certificate of terms put in is required."
6. Plain reading of these rules would clearly debar all the petitioners from being considered for admission to the degree course as Rule 2 would clearly come in their way as they were at the material time already holding a registration vide their admission to diploma course and as such their further registration to degree course would tantamount to concurrent registration which is prohibited by that rule in most positive terms. So also, these petitioners had not discontinued their registration in terms of Rule 10 quoted above so as to extricate themselves from the mischief of Rule 2. Rule 10 domonstrates a method by which a course of registration is to be discontinued. Basing on these rules, it was suggested by the learned Counsels appearing for the petitioners in all the petitions mentioned above that these rules generally are not mandatory in nature, but directory. It was tried to be suggested that even if Rule 2 specifically provides that concurrent registration of the same student in diploma and degree and in 2 specialities at a time is not permissible, this rule has to be held as directory, so as to permit the student, who is already having an admission in the diploma course and wants to be admitted to the degree course in the same subject. The petitioners also contend that Rule 10 is also liable to be held directory and the strict compliance of the method of giving of notice for discontinuance of the course should not be insisted upon.
7. A brief history will have to be given before we tackle with this argument. These Rules, as has already been stated earlier, have come in the field by a Government Resolution dated 24th October, 1991. Prior to these rules, the rules which were in existence were the rules brought in by the respondent-Government of Maharashtra, vide a Government Resolution dated 6-1-1990. However, the rules dated 6-1-1990, as also the earlier rules made in 1989, were invalidated by the Full Bench of this Court in the decision cited supra. In fact, the only controversy which was present before the Full Bench was the basis on which admission to the post-graduate courses were provided. In paragraphs 9 to 13, the Full Bench judgment proceeds to give the history of these Government Resolutions, as also the changes which were brought in by the Government of Maharashtra in the basis for the admission to the post-graduate courses. Generally, the only controversy before the Full Bench was as to whether the basis for the admission would be the marks obtained by a particular student in a particular subject; or, whether it would be the marks generally obtained in M.B.B.S. examination as a whole. However, the Full Bench ultimately in paragraphs 61 and 62 returned a finding that since there was no necessary application of mind to the Government Resolution of 1989 and the further changes made in 1990 and 1991, all those three Government Resolutions were invalid. In view of the specific finding by the Full Bench, we do not wish to go into the controversy as to whether the whole rules of 1990, as referred to earlier, were invalidated; or, only a part of those rules was invalidated and the part of them were saved.
8. A glance at the Full Bench judgment would be enough to realise that the controversy was extremely limited therein. The Full Bench was not called upon to test the various other provisions barring the main controversy about the basis for admission to the post-graduate courses in medical education. The provision made by Rule 3 in 1990 Rules which gives the mode in which the seats available for admission are to be decided can be cited as an example. Prior to these rules, the number of seats used to be fixed by a ratio of 70% and 30%. The 70% seats would be advertised for January batch while 30% seats were advertised for July batch. This system was clearly erroneous and confusing as the student did not know the availability of the exact number of seats for the whole year and they could not plan whether they should apply for a particular post considering their marks in a particular subject. The rules in 1990 however clearly gave a mandate that from January, 1992, all the available seats had to be advertised only once a year. This doing away with the element of uncertainty as to whether a seat would be available in a particular subject in the second term or not. The students could thereafter plan and apply in a particular discipline fully knowing that they could complete for that subject once for all considering their score is that particular subject. The Full Bench was not called upon to decide the reasonableness of this rule and, indeed, this rule was not in the debate. Again, even if the rules concerning the basis for admission were to be set aside as tainted by a vice of non-application of mind, the rule regarding fixing of the seats was completely independent and, therefore, unquestionably severably from the tainted rule and thus a very good scheme, which had the effect of bringing certainty and clarity and could be saved. However, since the whole of 1990 Rules were invalidated, the Government has retrogaded its steps to 1971 Rules. At any rate, the Full Bench judgment had given a clear mandate to the Government to frame fresh rules in the light of the judgment. However, the Government, it seems, scrupulously avoided even to touch, let apart consider, all 1990 Rules, some of which were clearly severable from the others. The Government also reverted back to 1972 position and seems to have fallen back on the old pattern of 70% and 30% declaration of availability of the seats biennially - creating tremendous confusion in the process. There is nothing in 1992, i.e., the present, rules to justify falling back on this old pattern and this seems to have been done as a matter of old practice.
9. The petitioners' contention to the effect that these rules which have been brought in pursuance of the Full Bench judgment are directory and more particularly Rules 2 and 10 are directory, cannot be accepted in whole. Rule 2 itself provides as to how the seats would be first decided and then it provides a specific rider to the effect that concurrent registration of the same student firstly in diploma and degree, and, secondly, in two specialities is not permissible. There is still a further rider provided to the effect that this would be so permissible if one registration period is over or the registration period is discontinued. Now, from the very language of this rule, it is clear that this rule is mandatory in nature, for it, firstly, decides the number of seats to be made available which is on the basis of the availability of the teachers. Previous to these rules, the position was that the words "of same student in diploma and degree" were not to be found and the only bar which was provided was by Rule 6 in the rules dated 18-6-1971. Rule 6, as it then stood, was :
"A candidate selected for registration will not in ordinary course be allowed to change his registration from one subject to another. A candidate who desires to change registration from one subject to another will have to give three months notice before the commencement of the next term to enable notification of his vacancy for others. Such application will automaticaly terminate the existing registration and it will be treated as a fresh application for registration in new subject, such application shall bear signature of the teacher concerned with termination and should be made after full consideration as they are irrevocable once lodged with the Dean's office. Registration by itself has no special priority either in registration or in posts."
10. Time and again, this rule came to be considered by this Court and it was held that the bar created by Rule 6 in 1971 Rules applies only for the students who wanted to change from one subject to another and it did not apply to the candidates who wanted to remain in the same subject but desired to change the course from diploma to degree. A leading judgment, which is generally relied on by the petitioners in this case, is in Writ Petition No. 5306 of 1986, Dr. Makarand Chandrakant Ghaisas v. The University of Poona and others, decided on 28th April, 1987 (at Bombay). The petitioners want to contend and heavily rely upon the ratio in Dr. Makarand Ghaisas's case. The Counsel for the petitioners also took us through the various other judgments. However, admittedly in all the judgments, including the judgment in Dr. Ghaisas's case, what was considered was the bar of Rule 6, as it then was, and when there was no specific bar created by any other provision in these rules. The relience of the petitioners, therefore, on these cases, including Dr. Ghaisas's case, would be uncalled for in view of the change in the present rules by restructuring Rule 2 and by adding the words "of same student in diploma and degree". We do not wish to go into the facts of all the other judgments, since we find that in all the judgments it is only the ratio in Dr. Ghaisas's case which is relied upon. This bar, which has been introduced in Rule 2, is deliberate and with positive intention on the part of the respondent-State, so that the maximum students could get the advantage of higher education, particularly the post-graduate education in the medical field. It cannot, therefore, be said that the rule should be so construed as if the bar was not there. With the bar having been brought in specifically and the bar having been made applicable to the students in diploma and degree along with the other students who wish to change from one speciality to another, it would not be possible for us to accept the contention of the pertitioners that this bar should be ignored and, for that purpose, Rule 2 should be held as directory. A clear and unambiguous language of the rule which admits of no relaxation also supports our view. We, therefore, hold that Rule 2 as it stands today is mandatory in nature and a student who has taken admission in a diploma course cannot be registered for a degree course.
11. In this behalf, we may also further say that the bar appears to have been brought only to avoid situation created because of the judgment in Dr. Ghaisas's case. Considering the very nature of the provision, its implications and its utility, we feel that Rule 2 cannot be held to be directory and, on that count, the petitioners cannot claim the avoidance from Rule 2, if they are so situated.
12. However, that cannot be the end of this controversy. It will have to be seen as to whether a student, who is already admitted in diploma, could be admitted or could be considered for the admission to the degree course. The words "unless one registration period is over or is discontinued" are extremely clear and as to how a student would discontinue his course is provided for in the provisions of Rule 10. A candidate who desires to discontinue his course has to give a notice of three months before the commencement of the next term and full fees for the next three months thereafter will be charged in the absence of such notice, if certificate of terms put in is required. It is, therefore, essential for a student for being considered for the admission to the degree course and who is, at the same time, selected or is continuing with a diploma course, to discontinue his term as provided in Rule 10 by giving a notice three months prior to the commencement of the next term. It is, therefore, essential that the student must get a reasonable opportunity to give such notice before he applies for consideration of his admission to the degree course. Whether the strict compliance of Rule 10 is necessary treating it to be of mandatory nature, is a question which we have to answer now.
13. In the present case, all the petitioners are admitted to the diploma courses in the seats which were meant for the January, 1992 batch. Their admissions were, however, not finalised by April, 1992 and in one case till July, 1992. What would be the period now available for that student to give notice in case that student wants to apply for the next course, is a question. According to Rule 10, such student must give the notice three months before starting of the next term. If the student is admitted for the seats of January, 1992 batch, the January, 1992 term would come to an end on 15th May, and the next term would start on 1st July. Under such circumstances, that student must give the notice of discontinuation on or before April, 1992. Now, obviously, this was not possible for the students in this case for this reason that by that time their admissions to diploma courses also were not finalised. Therefore, there was no question of their giving any notice. It was stated at the Bar that a student who starts his or her course late, the term will have to be deemed to be extended in his or her case. Now, let us take the example in writ petition of Dr. Kulwal, whose admission was finalised in July, 1992. Now, obviously, if the term of the petitioner started from July, 1992, in her case the next term will start in January and under such circumstances, the petitioner would be required to give notice of discontinuance before October. Was it possible for this petitioner to give a notice of discontinuance so as to seek admission to the degree course? Could a petitioner be expected to dream about a seat being made available in some other advertisement and on that expectation, to throw an admission to a diploma, which she had become entitled to on her merits? Now, it is to be understood that Rule 2 makes a specific exception in cases where the registration period is over or is discontinued. The reason why this exception has been made in this rule is obvious and that is because generally the students who are studying in diploma would strive for a better qualification of degree. The cases of such students, much less in medical education, are not few and it was, therefore, that this exception was made a part of Rule 2.
14. As has already been stated earlier, advertising the seats biannually and that too with inordinate delays, the authorities themselves have left no scope for the strict application of Rule 10. The respondents and more particularly the Dean, could not give any reasonable explanation as to why the advertisement for July, 1992 batch came to be issued as late as on 4-11-1992. Had that advertisement been published in time, the petitioner could have had the choice of not joining the diploma course at all or discontinuing the same. (This is again quite apart from the fact that the authorities did not also maintain the ratio of 70% and 30%). Thus, no petitioner had any idea about any such advertisement being given or the seats in post-graduate degree courses being made available. No petitioner was, therefore, in a position to give notice. We find that in Writ Petition No. 3258 of 1992, the petitioner has by her communication dated 20th November, 1992 brought this situation to the notice of the Dean, wherein the petitioner had conveyed that she had joined the D.O.M.S. course on 25th July, 1992 and, therefore, her term started from July, 1992 and, therefore, she would not be in a position to give notice to discontinue the course within the date as prescribed by Rule 10, as the advertisement itself is given in the month of November, 1992 and she had also shown her readiness that since her application is for the same subject, her application may be considered on that ground and that as she would be ready to discontinue the present course. It is an admitted position that all the petitioners have also given such a communication to the Dean, but they have neither been asked to discontinue the course at that very moment, nor had any action been taken on that communication. Under such circumstances, if there was no opportunity for the student to discontinue his or her course for the purposes of seeking admission to the degree course, that is, for the betterment of qualifications, then, obviously, a prejudice is caused to such students by the issuance of the advertisement as late as on 4-11-1992. Now, if this advertisement had been issued in time, i.e., somewhere in July, then all the petitioners would have been in a position to, firstly, decide whether to take the admission to the diploma course, or, at least, they would have been in a position to resign before their next term started. All the petitioners have been deprived of this opportunity and it has resulted in injustice having been caused to them.
15. It was contended by the respondents that Rule 10 is a mandatory provision and as these students had not discontinued their course, their cases could not be considered for the admission to the next courses. Rule 10 merely prescribes the methodology for the discontinuation of a term. If the advertisement was so timed as to make the application of Rule 10 impossible, then it cannot be said that because the petitioners did not give the notice of discontinuation as prescribed, they lost the chance of being considered for the admission to the degree courses. From the attitude of the respondent-Dean of delaying the advertisement, it cannot be said that he expected a strict compliance thereof.
16. It will have, therefore, to be held that though Rule 2 is mandatory in nature, where the students could have had no opportunity of discontinuance of the course because of the peculiar timing of the advertisement, merely because the student has not discontinued his or her course in terms of Rule 10, it would not debar the student from being considered for admission to the post-graduate degree course. Now, on this principle, we will test the individual cases.
17. As has already been stated, in Writ Petition No. 3258 of 1992, the petitioner has applied in January for the course of M.S. (Opthalmology), but she could be admitted only to the diploma on the basis of her marks in Opthalmology. She has secured 130 out of 200 marks in that subject. Respondent No. 5 who is admitted to the course was also an applicant along with the petitioner but, as she had secured 129 marks out of 200, she could not have been admitted to the course. Eventually, when the advertisement dated 4-11-1992 came, respondent No. 5 was admitted and the claim of the petitioner was not considered as she was already admitted to the D.O.M.S. course. It would not be possible to sidetrack the petitioner's claim and she will have to be admitted for the M.S. (Opthalmology) course.
18. We now take the facts in Writ Petition No. 3299 of 1992 filed by Dr. Sumati Karadkhedkar. She had also applied for the M.S. (Opthalmology) course in January, 1992, but, on the basis of her marks, which were 134 out of 200, she was admitted to the D.O.M.S. course. Even this petitioner had given a letter to the Dean at the time of applying for the M.S. (Opthalmology) course which is a letter dated 20-11-1992 wherein she had requested the Dean to consider her application. She had also pointed out that there was no time for her to discontinue the course because of the peculiar timing of the advertisement. In comparison to respondent No. 5, who has been admitted, claim of this petitioner will have to be considered better and we direct the Dean accordingly.
19. We now take up Writ Petition No. 3264 of 1992. The petitioner herein had applied for the post in Gynaecology. He has passed the M.B.B.S. examination in November, 1990 and had secured 132 marks out of 200 in Gynaecology. After completion of the internship in December, 1991 and after the necessary registration with the Maharashtra Medical Council, when the posts were declared for January, 1992 term, the petitioner could not get admission to M.D. (Ob. & Gy.), but was admitted for D.G.O. This petitioner's admission commenced on 16th April, 1992. When the present advertisement was issued on 4-11-1992, there were 3 seats of M.D. (Ob. & Gy.) and the petitioner applied for the same. This petitioner also has forwarded a communication dated 20-11-1992 showing his preparedness to discontinue the course which he was then undergoing, i.e., of D.G.O., if he was to be considered for M.D. (Ob. & Gy.). Here again, the case of this petitioner has not been considered obviously as he was already undergoing the D.G.O. course and in his place, respondent No. 5 - Dr. Patil has been admitted, who was a less meritoreus candidate having secured 128 out of 200 marks as compared to the petitioner. The claim of the petitioner will also have to be granted for that seat of M.D. (Ob. & Gy.).
20. In Writ Petition No. 3265 of 1992, Dr. Deelip Kashinath Soundale had also similarly passed his M.B.B.S. examination in November, 1990 and had secured 133 out of 200 marks in Gynaecology. He had also applied for the post for January, 1992, both for M.D. (Ob. & Gy.) and D.G.O., and on the basis of marks, could not get admission to M.D. (Ob. & Gy.), but was admitted to D.G.O. When the advertisement dated 4-11-1992 was published, he also applied for M.D.(Ob. & Gy.) with the necessary certificates. While applying, even this petitioner vide letter dated 20th November, 1992 showed his willingness to discontinue the course of D.G.Q. if he was to be considered for the course of M.D. (Ob. & Gy.). In his place, respondent No. 5 - Dr. Sunita Shalke - was admitted who was a less meritoreus candidate having secured 131 out of 200 marks. Under such circumstances, the claim of the petitioner was bound to be considered as better against the claim of respondent No. 5.
21. In view of the discussion above, we allow these four writ petitions and direct the respondents to admit these four petitioners against the seats for which they have applied. Rule made absolute accordingly, with no order as to costs.
22. Before parting with this judgment, we must refer to the argument raised on behalf of the Government to the effect that if these petitions were to be allowed, then as many as four posts, two in D.G.O. and two in D.O.M.S., would be wasted. In fact, this was the major defence raised by the respondents against the view that we have already taken. However, we repel that argument, as in these cases, firstly, the merit cannot be given a go-bye and the claim of the meritoreus students cannot be allowed to be frustrated, and, secondly, because such meritoreus students did not have any opportunity to discontinue their diploma courses. However, considering that large number of seats are going to be wasted, we hope that the Director and the Dean shall consider favourably the applications of the concerned respondents as against the diploma courses, if they so desire.