EHG‘ki CC‘JRT 9F CEHATTISGA ‘i: BILASPUR WRIT PETITION N0. 1926 OF 2003 PETITEGEER : Dr. Sanjeev Kumar Agaiwal S,’ 0 Dr. Ramesh Prasad Agaxwal Aged about 37 years, R] o Baniapara Dhnmdha, Distt. Burg (C.G.). JUgzgus— EESPON'DENTS : 1. State of Chhattisgarh, Thmugh SEcrétaly, Department of Public Health 8r, Family WC‘ arc 8a Medical Education, D.K.S. Bhawan, MantraJay, Distt. Raipurigke“ ’). Director Medical Education, Govt. Of Chhat’risgarh, D.K.S. Bhawaxi . Raipur, (C.G.). Dean, Jawahar Lal Nehru, Medical College, Raipur (C.G.) 4: Director, Health 8r: Services, Govt: Of Chhattisgarh, D.K.S. Bhawan Raipur, (C.G.) 5, Medical Council of India, Aiwaxl— i E—Galib Marg, Kotla Road, New Delhi— l 10002. (;)1 POST FDR ORDER ON MAugust, 2003. / Sdl— L.c.BHADOO Judge 93! P3 . 1925 9F 2003 PETE ‘ “mm :u.n. EIHG% CGURT 3F $HHATTISGARH: BILASPUR ‘ETDT¢‘ DE’FgT h-I 1“ 6“" K1 a1" Agarwal Ram€sn Pra$ad Agarwal ‘ avw bout 37 Vewrs R/ o Baluapala Dhamuna, Dlstt uurg (C.G.). -' V €3‘Su5- 1. nLaLC 0f L/hud‘fl ’garh Thmlmh Secretdry uépaflmenL 01 Pubhc Health 6r, Fagmly Welfam & Medlcal Education WK S uhaWml, Maildaiay, D1stt. Ralpur. ir'x w Msdical Education Gdvt C hatnsgarh D K S BhaW'm ' p“ (C (3x “San, Jawahar L31 Nehlu, Medical ’ Hege, Raipur (CG) 4. Direcior, HEalth 65 Services, Govt. 0f Chhattisgarh, D.K.S. Bhawa11 Raipul‘, (C‘Gj Medical omnn of India, Aiwan— E-‘Galib Marg, Kotla Road, New .a mnarGiV‘En 1 .3 I: q UO ’UC C7 U1 buu‘ n‘l‘h" .L 1 IOUU nn Shri R.P. NTish'ra; Counsel for the petih'n'ner. Q U *1 “aim “ K Agrawal, Dc‘g‘uty u f0 he Sfats,’ rcspondents. QRDER {Passed on/MAug‘ust, 2003) 11 DV dLLSiiCt‘ r L1. r \..‘. a BilauOU‘ 1 1 p.‘ 'ne pefifionar w'no is a sfuden'r of posfgmdua‘re Medics! course (Anacsthesia) 9f Me ica! Ce!!ege, Raipur' and pursuing his posf gradum‘ion s'i'udies in ‘i'haf coiiege has preferred This wri‘r pefi’rion wider- r‘r§cle 226/227 cf fhe Censf§fufion of India seeking direc‘tian The? To direc‘f The respcndenfs To give admission ‘i'o fhe pei'i‘riorier in MS (”enemi Surgery) againei a sea? which is lying unrn'n‘l- ainro kgninn & inn3 . i )tx. The pe?ificnar'$ i32‘fi?ion La“; fhaf i4r1a respondeM No.1 Sfafe of Chhattisgarh made Chhaftisgarh Medical Snafko‘h‘ar‘ Pravesh Famksha Nlyam dUUd lhe said ruies came info force 0n 5 um und ta aims and abjecfs of making‘The Pre-P.G. Rules 2002 were To fill ‘i'he 5mm quom Seafs Through fhe S‘m‘re Pre— P.6. Examinm‘ion. The Pre-P.C-v. Rubs bid dawn the specific eligibili‘i‘y crh‘eria as memioned in ciause~6 Thereof which a candidafe Es :Lequired 1'0 I..L£:Il mu m awgxmy ---l.: - uumissioa AA... “ha pas? graduafe courses. af'he pefi‘rioner ;3 ‘ful‘fillgd all fhg cri‘i‘erio fixgd under *Hqe Pre-P.G. “Rules 2002 and firm? in response To fhe adver'risamen'r published in Hindi Daiiy ‘Danik Bhaskar" daiad 4+h Juné 2002 oppiied in The prescribed manner For annearing in fhe Pre-P.G. Tesi' +0 be conducied by i'he ?T. muVISfICmkm onuniu iJnwer‘Si‘i‘yi Ralpur' and he was Issued admission card by the uniyersify and he appeared in fhe en‘h‘unce fes‘r cond‘uci‘ed‘ on 10-7-2002. The pe’fi‘rioner was declared ucce sfu, dud he secured 10w posi‘iion in order of merit Copy of fhe resulf is Annexure—P/4. 4. On 24—2—20 i3 ihe process of counseling was commenced by fhe r Ira were.._-... hnnrlpn ..< r‘ Gd m ' << l nn +n MD/Mls Gnd DlPlOmG COLI l"S65 2002 and 'rhe candidafes who had passed ihe Pre-P G fesf were calied for counseling on 26—2-2003. The p ocedure of counseling followed by The respondenis was fhm‘ They displayed on The biackboord The number of posTgroduaTe degree seaTs available againsT each course/subJecT and called The candida‘res one by one as per The iisT Annexure-FV4 and asked Them To choose one avonuwe worse/sum i The condidaTes .oppeared before The commiTTee and indica‘l'ed Their individual choice for The course/subjecT and The avaiiable seaTs were Thus soughT To be 15— U) U} “led u“ 5. The peTiTioner was inTeresTed To exercise his opTion for M5 (G'neroi 5urger'y‘) course. BUT he being oT 5N0. 10 in The orderbf . r @@ U) mar-i? mid by f‘r‘xé fimz hii fur'n camé, The. sea'rs for M‘S‘ (Ganeml Surgery) were declared fil!ed up as one Dr. Mukesh Kumar Tiwari who was a‘r 5. No. 2 had 'op‘red for fine same, Then fhe pefifioner‘ gave his choice far MD co.rse in Anaes‘fhesia. The fesfimonials of fhe candidafes were seru+inized by The commifi’ee affer ‘rhe provisionai aiioi'mem" of seafs as S’mfed above and af This sfage if was feund by the commifme verifying the cer‘rifica‘l'es ‘rha‘f Dr. Mukesh Kumar Tiwar'i a'f S.No.2 in fhe lisf who had opied for M5. (@nemi Surgery) co.rse .as no‘r eligible because fig’rs ceriificafes were na+ in arder and iher‘efore, finally he was no? admii'iecl i0. "rhe said Ra course. Thus i‘he seaf for MS. (General Surgery) remain d vacant and has naf been filled Till da‘re. The above sii‘ua'iion arose aue fo improper procedure adopfed by i The respondenf‘ in counseiing. Had The cer‘iificai'es been scrui‘iniveri firs? before alloti’ing the seat as confemplaied in Pre- . Quies 2002, The sea'i' for M5. (General Surgery) would no? " been iy provisianally allo'ri'ed i'o Dr. Mukesh Kumar Tiwari and +he pe‘ri'rioner would have go‘r fhe said seat The peiiiioner on coming i0 know Thai The sea’r for MS. (General Surgery) is still vacan‘i submlffed his applicai'ion To The Dean, PT. Jawaharlal Nehru Medical College, Raipur wiTh copies Thereof To The 60W. of ChhaTTisgarh and also DirecTor Medical EducaTion for The alloTmenT of The gaid seaT To him. Copy of The applicaTion is annexure—P/ . 6L i his MD. Course (An'aesThesia), buT he is sTill desirous of The seaT for MS. (ée'neral Surgery) especialiy because a seaT is vacanT and if noT allo‘i’Ted will go wast. The seaf is iying vacanT since 17—3-2003 and if is more Than 3 monThs The respondeni's' decision Thereon is sTili awaiTed. iT is re/liablv learnT ThaT The respondenTs are noT inclined To alloT The seaT in quesTion To fhe peTiTioner alThough There is no any raTional/ l\ OQ V/ sTudies in The peTiTioner is pursuing __, / / / rzascn fmi if. Th‘ orxiy‘ mason which is; remomiy undzrsfcod is that the. sea? rmce alimtzd cannof be. changed which came? by any process of reasoning be shid 1‘0 be good and sound ground for m. Therafore, *Hna pe‘rificner‘ prays fhe i, ‘M’wj‘lmég-ur-T ‘l’ha‘r We responder-r3 be direc‘red by issue of wr‘i'r of mandamus or eriinmJ .0 ails? ihe seat fer M.5.{6enemi Surgery) course to . : ”>17 _ . 11‘ Q’mr“! rm behaif of The resporidems 1 “‘:o 4 has beerrgiied In which “A; a i¢lU3uL ’ if” i3 i1- has bgzn manhoned ma? iihe pstiiigngr was qualified for Pre- PJ. examina‘rion and has been given cdmission- in MD. (Anaasfhssic). The admission in The posfgrudua‘re courses are govarned by fhe ruies known as Chha‘ffisgarh Medicai Snoikoi‘ior 'Pmvash ?ariksha Niyom 2602. Copy of The ruie is filed herewith es Annexure—R-1(A). Rule 10.13 of The said rules envisages 'lha? every candida‘l’e will be ailowed 1'0 choose one available course in subiecf during ‘ihe counseiing for ‘lhe session for which Pre-P.6‘ Examinaiion is conducied. Rule 10.15 envisages ‘l'hai‘ if any sea’r remains or faiis vacam‘ in any subjeci The same would be fiiled up from waning list strictly in order of merit by subsequent counseiing in The same manner as mentioned above. it also says That while filling up such vacant seats, candidates already admitted to any subject wili not be considered Rule 11.31 i‘ur‘l‘her iays down That a candidaTe so admiTted will noT be entitled‘To seek e ehange of subject/ceurse later an, “on any ground“. No requesT for change of subject will be entertained and a candidate shall give ah undertaking That he/she s‘nali not make any application, representation for ohange of subject/course so allotted/assigned to 'nim or her. However, change from Diploma Course to Degree eourse in the same subject is permissi‘ale. l- l2. The answering respondents submit That the rules framed for admission in Pre—P‘6. courses and also the rules regardingxtyh ‘rm'rigé «if siibjeci' is Vér'y‘ dear rxr'xd $‘pecific. Thus4 by force of Hula n rnndlrla‘b <0 nAmIHDA Is n9? enfifled f0 seek a change of The course/subJ‘ec‘r infer oh, on any ground and accordingly fhe pai‘rion r- ;s was n01 an?i?!ed f‘ cucmge of subject as he has already and admiffedly been ndmif‘i’ed in MD. (Anaesfhesia) course and is prosecufing his smdies and non cansid mfwnlrelwhon 9‘ 'rhe pehficner's case for- change of 1'he subiec‘r is based sfricfiy in accordance wifh ruies and law as fhe peh‘homr has no? chansenged ‘rhe negun‘ry and vahdrry f The rules in force and, i'herefore, fhe answering respondenfs submiTs fhaf fhe rejecfiom’non-considera‘i'ion of fhe pe‘rifioner's case for a sea? in M3. {&enera! Surf-e")! anncf be fauHed wi‘rh and The said pefi‘rion deserves +0 be rejec‘red. I have aeuru 5hi‘i 8P. fv‘iishra, counsei for The pe‘ri'iianer and Shri Sanjnv V Agrawai, henu'iy Advocaie General for fhe STai‘e/respond'en‘l's. 14. suns l for The pe‘hfim r Mr B P s . a argued 1'ha1' a‘l' The Time (3 of 1'he counseling incorrec'r and wrong procedure was adop'ied by i‘ne admissicm commiiiee. In f'ne firsi' ins’iance The admission cammii’fee aughi‘ To have checked The eligibiliTy of The candidaTes afTer scruTinizing Their TesTimoniais. Had The commiTTee opTed This precedure Then There was no chance of any misTake. BUT, insTead of This, The cammiTTee sTarTed The counseling wiThouT scrui'inizing The TesTimoniais and The seaT of M.S.( General q'mnery} was allocaTed To cne Dr. MK. Tiwari and laTer on when afTer aiioTTing The seaT To all The candidaTes The TesTimonials were scruTinized by The commiTTee Ther They found ThaT Dr M K Tiwari le: Accordmoly his admissmn was cancelled and he was noT aiiowed To Take admission and ThaT one seaT of M5. (Genera, Surgery} feii vacant He furTher submiTTed ThaT This misTake crepT in on accounT of The incorrecT procedure adopTed by True r ponaems rie furTher submiTTed ThaT The peTITioner was a‘T . .“v, "!" eli was naT b ._ .I 5.? o. 10 iiri fhé mari‘f iis-f and since s-fuaénf Nos‘ 2 and 3 aT The merif lis? apfed for Ganeml Surgery and there were fwo seafs for {Senemi Surgery and no sedi' remained vacan‘f for fhe pe‘l‘i‘rioner um .he swdem Nos. 4 f0 9 in fhe mar-i? “51' are nof inTeres'I'ed in MS (General Surgery; ‘I'hereforei ‘i'he responden‘rs ough‘!’ 1'0 hav ah'oi’fea' "r'ne vacan‘i' sea? To fhe pefifioner. On the center-y, Mr. Sanjay K‘ AgrawaL Deputy Advocu'fe General argued Thaf lire-PE} rules 2002 lays down That once sea‘r alloffed . :‘gwrf 7 canno? be changed in any circums'iance for whafever rgascn. Such Sear can be filled. un only as preseribed in fl'ie rules and can be fiiied up from "rine s‘rudenfs among waii'ing lisf on The 'basis of merif list Therefore, there is no substance in The pe‘riTioner’s pe‘ii‘i’ion. He ‘Fur‘i‘her submi‘i‘ied fha‘i' fhe course has already commenced aria by now more Than 4 'rnonThs have already been expired. Therefore, in the mid stream i'haf Too com‘rary ’ro rules ‘rhe pefi'i'ioner canno'i be allowed 1‘0 fake admission as per’ his choice and in support of his argumen‘r . e placed reliance upon The decision of 'Hne Hon'ble Apex Cour'l'. In fhe lighf of submissions made by fhe respec’rive counsel, if we look a? :Phe rules, rule 10.15 lays down :Fha‘r if any seaf remains or falls vacanf in any subjecf 'ihe same would be filled up‘from The waning lisf sfricfly in fhe order of meri? by subsequen‘r counseling (s) in fhe same manner as men‘lloned. above. The dafes of subsequen'i‘ counseling (s) for fhe candidafes in warring lisi’ will be :l communicai‘ed To Them by regisTered posT and also displayed on i, The noTice board of The office of The DirecTor Medical EducaTion. While filling up such vacan‘r seaTs/ candidaTes already admiTTed To rg any subject will noT be considered and candldaTes in waiTlng llsT will only be considered Till The closing daTe of 2“ July of The year f‘ Rule 11.3‘1. furTher prescribes ThaT a candidaTe so admiTTed will ' noT be enTiTled To seek a change of subjecT/course laTer on ”Ad. of 9M P - ExaminaTion. e y @OO I\ graum. l A1 N6 Féques‘f Tar L mange i at L $u9jec1' l shall be enfer-Tained.’ The candidaie shaH a!so give an undertaking *rhm‘ he/she shall no? make any appiicafion, représenfafion or' pe’i‘ifion for change of auuJcuu/ L. .--+1.....mn- LAN.“ an 30 GuGl ll ++I€ul A lGSSIg 1nd 3‘5 him/her. Therafore, a bar-e parusa! of The rules 10‘15 and 11.3.1. specificaHy iaid down Tim? once op’i’ion is exercised and subjecf/cour'se is eiieca'ied 1'9 ihe sfudenf that wiH net be changed on any ground and if has been furi'her nrescmbed Thai if any sea? falls vacan‘l f fur uny Immun man mun anu‘l’ Wlll uc almuO‘l’ed "l‘O The &ndldu‘l’es In waiting lisi' sfricily in girder of .e.i? by inviting lhem in subsequen‘r counseiing in The same manner as men‘lioned above. In View ”4 e speei‘“ previsians, I us n T find any subsfance in The argumenfs of *l'he learned counsel for fhe pei'i'honer and in This conneciion The Hon‘ble Apex Cour? in The ma‘H'er' of Arvind Kumar Kankane Vs. State of UP. and oihers repori'ed in (£001) $ Supreme Cour-1‘ Cases 355 heici Thai- rm nn+inn Is exercrsed bv a candidai'e on l'he basis . .e 01‘ which he is allo-Hed fhe subJecT and Thereafi‘er Thai canaiaaTe is aiiowea i0 parTiCipaTe in subsequenf counseling and hi; Jew vecemea vacanf he process of counseling will be endless and, as apprehended by The High Cour‘l', iT may noT be possible To compleTe The academic course-wiThin The A ' I J. l - iii 5llpUlQIZG p51 IOQ . Similarly The Cour‘l’ negaTived The grievances raised by The peTiTioner saying ThaTi— “ i a cheice subjecT like Surgery and Medicine is given p by andidaTe and Tha‘l' seaT becomes vacanT iT may go T candidaTe who is lower in rank in The meriT iisT. “is is only a forTuiTous circumsTance uependenT on so many conTingencies like The sTuclenT, who has been alloTTed .a seaT in Medicine; giving up The said seaT and ThaT seaT faiiing vacanT and ThereafTer The same is alloTTed To a canuidaie who is lower in rank in The meriT lisT. Such freak circumsTances cannoT be The TesT of reasonableness of The oimnar (" “1l . . argumérif$ advar1cad before .hé H‘m’ble Apex Cour? in The matter 9f §hafa!i Naredwem Vs. Stew of Hergyena and ofhers reporfed in (ZOEZ) 5 Supreme Cour“? Cases 152; in paras 7 and 8 The Hon'bie Cour‘r nega‘rweuA +.ha argumenfs reiymg (m the earlier decision in fhe case of Arvind Kgmgri Kankana Vs: 5mm 9f LLP; and o-fhenS and fine Coum‘ observed +ha+:— “ Admission f9 pcstgmduq‘re ceurses QT beIdTed smge gran‘h‘ng responden‘f a&mission To The confesfed fhr-ee-yeur pos‘rgmduafe course when bm‘h respgpden? and appeHanf had already compiekd Two—and—&5Enlf year-s of their respective courses, held, would be improper since i1- would amoun‘l‘ f0 colossal waste of effor‘i and expendh‘ure. H In the present case a.so more fhan 4 monihs have already’elapsed. Again The Hon’ble Apex Couri- in fhe maffer of Medical Council of India Vs. Madhu $in‘h and held Thai:- Gfliers repor‘red in (2002} 3’ $upreme Court Cases 258 uMid=sessions admissions cannoT be permi‘r‘red. Cour? should no? direc'r such admission and iime schedule should be fixed for dura‘rion of The course and period during which admission con fake place." {20) In View of The law laid down by 'l'he Hon‘ble Apex Cour’r in The above judgmenfs, if is cl‘ar fhaf mid-sessions admissions should always be avoided where fhe Rules prescribes fhaf if any sea? falls vacanf fhen ‘rhe waifing lisf candidafes are To be aliowed fo fake admission. Bu‘r, 'rhe sfudenf who had aiready sped the subieci/course should no‘l’ be allowed To change his/her subject Tn The presenT case also as per The Rules 10.15 and 11.3.1. no change (‘1H‘i U‘ (V! ii CI i Cl. 5. i .o JJme siuuen J. .l .l. is wno i nave I already Taken admissions on exercising Their nhTionsi Mareover, There are candidaTes aT 5. No. 4-9 above The peTiTioner and wif'nou‘i' invi‘i'ing Them for counseling The peTiTioner cannoT be giver. admission Therefore, in any circumsTance, The peTiTioner is noT able To make ouT his case for exercise of exfraordinary Jurisdicfion by This CourT // i under l nrTiCxe II 1 ’5”! “o of Tne I eonsTiTuTion I“ of India. ‘ ,\ ‘ Thi§ wrif pe?ifi0'n ha§ r10 force, fhé same fails and i’r is dismissed. \J C3 - z-xl\) I\) es? is made asy‘ ‘ Sd/- 1 L.C.BHAr)oo Judge Barve rx