IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3872 of 2003 with SPECIAL CIVIL APPLICATION No 4635 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE C.K.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- BHAVESH A SHAH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3872 of 2003 MR BHASKAR TANNA, SR.ADVOCATE, for TANNA ASSOCIATES for Petitioner No. 1-5 MS MEETA PANCHAL, AGP for Respondent No. 1-2,4 MR S.N.SHELAT, LD. SR.COUNSEL WITH MR MITUL K.SHELAT, for Respondent No. 3 MR BM MANGUKIYA for Respondent No. 5 2. Special Civil Application No. 4635 of 2003 MR BM MANGUKIYA for Petitioner No. 1 MS MEETA PANCHAL, AGP for Respondent No. 1 MR S.N.SHELAT, LD. SR.COUNSEL WITH MR. MITUL K.SHELAT for Respondent No.3 MR AC GANDHI, for Respondent Nos. 5 & 6. -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE C.K.BUCH Date of decision: 14/10/2003 ORAL COMMON JUDGEMENT 1. Both these petitions are moved by the medical students anticipating and seeking admissions in Post Graduate Courses ( PG Courses for short) in Govt. Medical College, Bhavnagar. All the petitioners have cleared their M.B.B.S. Examinations from the college affiliated with Bhavnagar University. Though the nature of reliefs prayed by the respective petitioners in both these petitions are apparently different, but the basic issues raised and points of submissions made by them are similar and it centres round the modification in the policy of admission in PG Courses including the amendment made in Rule 4.1, both these petitions are heard together finally and are disposed of by this Common Judgment. For the sake of convenience and to appreciate the say of the petitioners, it is necessary to state the facts in brief of both the petitions. 2. The petitioners of Spl.C.A.No.3872/2003 are five Doctors expecting and claiming the admissions in Government Medical College, Bhavnagar in their Post Graduate Courses, by invoking the jurisdiction of this Court under Article 226 of the Constitution of India, have prayed for appropriate writ, order or directions praying for quashing and setting aside the decision of respondents authorities and especially respondent nos. 3 & 4 to implement 100 point roster to total number of seats available in PG Courses in Govt.Medical College, Bhavnagar and to declare the Government Resolution ( GR for short) dated 2.6.2003 as illegal and arbitrary. It is also prayed that a positive direction should be issued to the authorities concerned offering admissions to implement 100 point roster to PG Courses subjectwise -departmentwise. 3. The petitioner of Spl.C.A. No.4635/2003, by invoking jurisdiction of this Court under Article 226 of the Constitution of India, has prayed to issue a writ of mandamus or any other appropriate writ, order or direction in the like nature to quash the bracketed portion of Rule 4.1 of the Rules viz. "For the first batch of May 2001, students shall be exempted for the first year admission " as ultra vires of the Article 14 of the Constitution of India. The petitioner was admitted in 1st M.B.B.S. Course in Govt. Medical College, Bhavnagar in the year 1996 and he completed his M.B.B.S. Degree in August-2001. Examinations of Final Year M.B.B.S. was taken in the month of April-2001 and after result which was declared in the month of August viz. on 2.8.2001, he has undergone and completed One Year's practical training- internship in August-2002. According to the petitioner, Bhavnagar University has started Medical College in the year 1995 and 1st Batch of 50 students in 1st M.B.B.S. was admitted in July/August,1995. This first batch of the only medical college affiliated with Bhavnagar University cleared its Final M.B.B.S. Examinations in May-2000. Students of this batch completed their internship in or about May-2001. Bhavnagar University had no PG Courses, but it was under contemplation. It is contended by the petitioner that the PG Courses are being started in Govt.Medical College, Bhavnagar from January-2003 and the process to admit first batch of PG Courses has just begun. Interviews for the admissions in PG Courses were fixed on 4.4.2003. Meanwhile, the students of first batch who have cleared their Final M.B.B.S. Examinations in the month of May-2000, approached this Court ventilating the grievance about reservation and, therefore, the said interviews were postponed. Bhavnagar University has framed Rules for admissions to PG Courses and the said Rules provide that preference shall be given to the candidate of not more than one year's standing after completion of internship of the very University. While framing the said Rules, exemption from preference has been conferred upon the 1st batch of May-2001. Rule-4.1 of the Rules creates unhealthy competition between the 1st batch and 2nd batch and late-latifs of 1st batch have been conferred with the entitlement to compete with the petitioner and other students. According to the petitioner, Medical Council of India has also framed Rules named and called as "Medical Council of India Post Graduation Medical Education Regulations,2000" and Rule.9 provides the guidelines for admissions to PG Courses. Gujarat University as well as practically all the universities in the State provides the preference to fresh batch and the exemption provided by the Bhavnagar University to 1st batch vide Rule 4.1 seriously prejudices the right of the petitioner. According to the petitioner, that act of giving exemption from the rule of preference to 1st batch is expressly illegal and arbitrary and, therefore, requires to be quashed. Rule 4.1 curtails the right of the petitioner inasmuch as if the said exemption is granted in favour of the 1st batch, then the petitioner will have no chance as the name of the petitioner would appear in the common seniority (merit) list of 1st & 2nd batch. There are limited 12 seats for PG Course. Considering the percentage of reserve seats, right of the petitioner to get admission in PG Course would be nullified for all time to come. The State all throughout has adopted the principle that fresh batch shall be preferred to in all professional courses and there was no reason for the Bhavnagar University to deviate therefrom. There is no logic or justification in giving go-by to the rule of preference or to deviate from the consistent policy adopted by the State all throughout. So, the petitioner has prayed for a writ of mandamus or any other appropriate writ, order or direction quashing the that much part of Rule 4.1 and it is prayed that words "for the first batch of May-2001 students shall be exempted in first year admission" be deleted and quashed. It is also prayed that the respondent University- Dean, Govt. Medical College be directed not to prepare joint merit list under Rule.4.1 of Rules for PG Admissions. The petitioner has also prayed for some alternative relief whereby it is prayed that at least the petitioner be given provisional admission in PG Course of his choice and only thereafter on availability of seats, students of first batch or any other students may be given admission. 4. Mr.K.V.Bhatt, Dean, Govt.Medical College, Bhavnagar - respondent no.4 has filed detailed reply affidavit whereby he explained the purpose and effect of R.4.1 giving exemption to 1st batch of students of very college/university when the said college/university is starting PG Courses for the first time since 1995 the year in which University started its own first medical college. 5. Both the petitions were moved in the month of April-2003 and pending hearing when it came to the notice of the petitioners of Spl.C.A.No.3872/2003 that respondent no.1 State of Gujarat has issued one GR on 2.6.2003 especially referring the present petition and so by amending the present petition, petitioners have also challenged the legality and validity of the said GR. In view of the order passed in Civil Application No.3022/2003 filed by ld. counsel Mr. Mangukia, this Court allowed the same and permitted one Dr.Narendra Jashabhai Barad to join as party respondent no.5 in the petition. This Dr. N.J.Barad claims that he belongs to a community recognised as "Socially & Economically Backward Class" (SEBC for short) and decision in the present petition would vitally affect his right to seek admission in PG Courses in the next term. 6. To appreciate the rival contentions, it is necessary to state certain facts. It is the say of the petitioners that the petitioners came to know that respondent No.4 Dean of Govt.Medical College, Bhavnagar was to implement 100 point roster for PG Courses to total number of seats available, whereas in all universities in the State as well as throughout the country, 100 point roster is applied subjectwise -departmentwise. The petitioners were informed that 100 point roster in reservation for recruitment to the post of Resident for SC/ST/SEBC candidates published by Government of Gujarat vide order dated 12.2.2001, would be applied subjectwise i.e. to number of seats available each year and in each subject. Copy of this 100 point roster is annexed at Annex.A to the petition. Thereafter, the petitioners were informed that respondent no.4 - Dean of Govt. Medical College proposes to implement 100 point roster to total number of seats available and not subjectwise -departmentwise as contemplated. Till academic year 2003-2004, various other universities like Gujarat University, Saurashtra University, MS University etc. have implemented 100 point roster subjectwise and in majority part of the country subjectwise admissions are given implementing 100 point roster. It is alleged that by making deviation from the prevalent practice, respondent no.4 wants to admit students as per 100 point roster against total number of seats available and not subjectwise. As per Rules, Rule-4 was required to put up on the notice board of Govt. Medical College, Bhavnagar inviting applications for PG Admissions mentioning the last date for submission of applications. On 4.4.2003, interviews were to be held and on 3.4.2003, this petition was moved. Petitioner no.1 was intimated vide interview call letter dated 25.3.2003 that he was to appear in interview on 4.4.2003 at 11.00 A.M. before the authority concerned. The petitioners along with other students when were came to know that 100 point roster is to be applied qua total number of seats and that too not subjectwise/ departmentwise, they raised objections against the implementation of the modified policy in writing in the form of representation dated 31.3.2003. This representation was not responded. On 2.4.2003, Director, Health & Medical Education, Gandhinagar (respondent no.2) was approached and detailed representation was made. The petitioner no.1 is one of the signatories of the said representation. On 4.4.2003, this Court while issuing notice making returnable on 9.4.2003, directed the respondents not to declare and/or implement the result of the interview without the prior permission of this Court. The Bhavnagar University is having only one Medical College and has started MBBS Course in the year 1995. So, this was the first occasion for Bhavnagar University to start the PG Course and to offer admissions to the students. Undisputedly, the University is an autonomous body and can have its own policy, rules and regulations in all regards including the admission procedure in various faculties and subjects for the students who intend to prosecute their studies with that University. In the State of Gujarat, there are about four Universities other than Bhavnagar University having medical college or colleges affiliated to it. Respondent no.1 State has approved the Rules governing appointment of Residents at Govt.Medical Colleges attached to the hospitals in the State and these Rules are approved under Government Resolution H & PWD. No. MCG-1089-5528-J dated 5.12.1989. According to the petitioners, these Rules carving policy to implement 100 point roster is being implemented and has been implemented till academic year 2003-2004 by all other Universities in the State. On 4.7.2003, this Court had issued Rule as respondent no.5 had joined litigation. In the meanwhile, considering the submissions of ld. AGP Ms. Meeta Panchal and ld. counsel appearing for Bhavnagar University- respondent no.5, this Court granted interim relief in terms of para-16(c). On that day, Dr.S.D.Patel, Acting Dean of Govt. Medical College, Bhavnagar was also present and he appraised the Court of the fact that no interviews are held till this date. This decision of granting interim relief was challenged by way of filing appeal being L.P.A. No.660/2003. The Division Bench, in view of the copy of the Govt. Resolution dated 2.6.2003 placed before the Court on record before it, observed that "we are not commenting on the contents of that notification, because, the learned Senior Counsel for the respondents states that the original petitioners would challenge this notification by taking out a suitable amendment in the petition. Since, the entire controversy is pending before the learned Single Judge and the matter is coming up for the final hearing on 24.7.2003, we, after obtaining consensus of the learned counsel who have argued before us, direct that the process of interviews shall be commenced immediately and the concerned authority will take the interviews as per the rules applicable for the purpose and keep the result with them in a sealed cover, which process would be subject to any direction that may be given by the learned Single Judge in the petition." It seems that in light of the directions given by the Division Bench, the appellant did not press the appeal and now the parties have argued before me on merits. 7. I have considered the contentions raised by the petitioners and the submissions advanced by ld. Sr.Counsel Mr. B.P.Tanna and the say of ld. Senior Counsel Mr.S.N.Shelat appearing for Bhavnagar University and Ms. Meeta Panchal appearing for Respondent Nos.1, 2 & 4 Dean, Govt. Medical College, Bhavnagar. The submissions of Mr. Mangukia, ld. counsel appearing for respondent no.5 and stand taken in two affidavits is also considered. 8. Bhavnagar University has Rules for admissions to PG Degree Medical Courses for the medical colleges affiliated with the University (other than MCh & DM). Roster point which is at Annex.E prepared by the PG Admission Committee is not subjectwise. Even between the list Annex.E and roster on reservation prepared and signed by the members of the Committee on 29.3.2003, there is difference to some extent. Roster point prepared by the said committee as per GR (page-78) is obviously different than the roster point shown at page no.77. It is contended by the Dean of Medical College that in light of the limited seats of the subjects, the Committee has decided to apply roster point in reference to total number of seats available,but not subjectwise. Simultaneously, the arrangement of the subject for the purpose alphabetically arranged by the Committee is prima facie found objective with the element of rationality, but in the background of many other relevant aspects as to the scope of spell out or mention the subjects in different way or manner and the addition in the subject in coming years or increase in seats in one or more subjects, sounds some apprehension of confusion and/or chaos. Certain facts brought to the notice of the Court by ld. Sr.Counsel Mr. S.N.Shelat and ld. AGP Ms. Meeta Panchal indicate that the University was not bent upon to offer admissions applying 100 roster against the seats available and selection of subject was to be offered to the students on their merits and the University has not thought of at any time for applying 100 point roster subjectwise. 9. In light of the decision of the Division Bench while dealing with above-numbered LPA, admission Committee has taken interviews and the Committee was directed to take interviews as per the rules applicable and in compliance of the order, the result has been tendered in the sealed cover to this Court. At present, that envelope is lying with the Registry in view of the directions issued by the Court vide order dated 6.10.2003. Considering the principles of legitimate expectation as argued by ld. Sr.Counsel Mr. Tanna for the petitioners and the fact that there is no formal amendment in the relevant rules and especially rule-23, policy laid down by the GR in the form of Rules in the year 1989 which has been consistently followed till this academic year, requires to be followed in case of PG Admissions in Bhavnagar University. Initially, the proposition was accepted by respondent no.4, but it seems that because of intervention of some Under Secretary to the State of Gujarat, subsequently with a view to see that some students from reserved categories get admission in PG Courses, the formula to apply 100 point running roster qua number of seats available was introduced. Though the running roster is not amended, an attempt to change its effect has been made which has resulted into frustration and prejudice to the students who were legitimately expecting their admissions in PG Course in the subjects of their choice. Merely because Bhavnagar University offers admissions in PG Course for the first time, deviation at last moment was not required to be made. Different Govt. Medical Colleges may have affiliation with different universities, but the policy of the State Government at least should be consistent and in harmony. Unless the State Policy is not in accordance with the admission rules of a particular university, the university or the admission committee can insist upon the implementation of its own rules or regulations considering its autonomous status, but it is never the case nor the submissions from any side that Bhavnagar University was compelled to make some deviation from the policy of the State which has been consistently followed by all other government medical colleges since 1989 i.e. more than 12 to 13 years. None of the counsel has pointed out that 1989 policy was challenged before any competent Court on the point of its rationality, feasibility or its validity qua the percentage of reservation offered to various classes who require to be given some special treatment for their betterment and the balanced progress of the society at large. Ld. AGP Ms. Panchal during the course of oral submissions has fairly submitted that GR dated 2.6.2003 is issued to put the policy of the State on a better logical and rational footing. As observed by this Court in the decision in the case of Kumari Jayshree Chandrachud Dixit v/s State of Gujarat & Ors., reported in 20 GLR 614, the Government was supposed to announce the policy or decision to make change in the existing policy well in advance so it cannot be condemned or otherwise deprecated on account of so-called late announcement/ publication. Ld. Sr.Counsel Mr. Shelat and ld. AGP Ms. Panchal have placed reliance on the observations made in para-20 of the said decision and ld. Sr.Counsel Mr. Tanna appearing for the petitioners has simultaneously stated that till 2.6.2003, there was no reason for respondent no.4 or the Committee to decide the admission to the students applying any other method than the prevailing method in all other government medical colleges affiliated with respective universities of the State when State Policy was not in any way conflicting or inconsistent with the Rules of Bhavnagar University. Actual admissions were not given because of the pendency of the present litigation and interim orders passed by the Court. So, it would not be appropriate, justified or legal to say that while giving actual admissions to the students either in the month of August, September or October,2003, the change proposed by the State vide GR No.2.6.2003, can not be termed as late publication of the policy. On the contrary, say of Ms. Panchal is very clear, of course, no formal affidavit from any government authority has been filed in the petition, but she being responsible officer representing the State can make a statement that GR dated 2.6.2003 is published because of the fact came to the notice of the government because of the present litigation and petition and, therefore, the government has declared the policy with an intention to see that the changed policy can be implemented from the next academic year. According to Ms. Panchal, it is the say of the State that change in policy framed in the year 1989 emerging from GR dated 2.6.2003 is to be implemented from the next academic year and government has not thought of its implementation immediately. 10. Undisputedly, the medical students in PG Courses are getting admissions twice in a year and normally the policy should be yearwise and it can not be batchwise. I am told that except in MS University, PG Students are offered admissions in the month of January & August every year and the idea of the government is that certain infirmities in the existing policy may be cured and improved and with that view only the GR dated 2.6.2003 has been issued. Though Bhavnagar University was to offer admissions for the first time to the students joining PG Courses, but it was the part of one academic year 2003-2004 and there can not be two different types of policies. 11. Ld. counsel Mr. Mangukia appearing for respondent no.5 in Spl.C.A. 3872/2003 has mainly assailed this petition by placing reliances on number of decisions and 3 decisions out of said decisions mainly deal with one ratio that the policy decision of the government or any other statutory body, should not be made subject to the judicial review, unless it is unjust, discriminatory or malafide or is violative of rights flowing from the Constitution or it is otherwise detrimental to any statutory rights. Said decisions are:- (i) Pareshkumar Mahendrabhai Shah and Another v/s State of Gujarat and others, AIR 1983 Gujarat 173; (ii) Jayesh A.Joshipura v/s State of Gujarat and Ors., 25(2) GLR 761; (iii) I.S.Azeez Basa and another v/s Union of India etc., AIR 1968 SC 662. Placing reliance on the recent decision of the Apex Court in the case of NTR University of Health Sciences, Vijaywada v/s G.Babu Rajendra Prasad and another, reported in 2003 (Vol.V) SCC 350, it is argued by ld. counsel Mr. Mangukia that the decision to offer admissions to the PG Courses against the total number of seats available arranging subjectwise/ departmentwise by itself was a policy decision and it was within the jurisdiction and powers of admission committee and, therefore, ethicucy of that decision though was affecting some change in existing 1989 policy, can not be examined by the Court in exercise of the powers vested in the Court under Article 226 of the Constitution. Mr. Mangukia has also placed reliance on the decision reported in 1985(2) SCC 745 known as Sabarwal's case. The ratio of this decision, in light of the nature of disputes brought before the Court, would not help respondent no.5. 12. Ld.Sr.Counsel Mr. S.N.Shelat, referring to Rule 4.1 and the amendment made therein, has submitted that some preference has been given to the students who have cleared their M.B.B.S. examinations being the student of 1st batch. There was no scope for those students to get admissions in PG Courses as it is the Govt. Medical College, Bhavnagar which is the only medical college affiliated with Bhavnagar University having permission to start PG Courses and Medical Council of India, for the first time, granted permission for the same and, therefore, preference to compete has been given to the students who have completed their internship in previous year only. So, R.4.1 and the amendment made in the said rule provides uniform pattern. Reasonableness of the Rules can not be made subject of judicial scrutiny unless the Rules are found violative of any basic rights. Ld. Sr.Counsel Mr. Shelat has placed reliance on number of decisions while developing his arguments and analysing the facts narrated in affidavit (page-66 para-4). 13. On the other hand, the petitioners submit that admission Committee when has decided to offer admissions arranging the subject alphabetically and to