Wéb’ &£ E THE HIGH COURT OF JUDICATURE AT BILASPUR WRIT PETITION No, 2A L5 OF 2004 PETITIONER Dr. Indra Kumar Som, son of Late O}\ .“". c “§ MR. Som, aged 38 yaars, resident of C.H.c., Charama, District Jagdalpur (C.Cr.’) VERSUS l. State of Chhattisgarh, through the Secretary, Department of Public Health and Family Welfare and Medical Education, D.K.S. Bhavan, Raipur. 5 2. The Dean, Pt. Jawahar Lal Nehru Medical College, Raipur. 3. The Director, Health Services, Govt. of Chhattisgarh, D .K. S . Bhawan, Raipur. 4. The Medical Council of India, Aiwan— E Galib Marg, Kotla Road, New Delhi WRIT PETITION UNDER ARTICLE 2,26 an 227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRITS IN THE NATURE OF MANDAMUS, CERTIORARY AND/OR ORDER(S} AND/OR DIRECTIONIS) IN THE NATURE OF WRIT ‘_ _.E-...,_.E.._-F_& WW \ L“ 3 \ ' - $\ ~ e HIGH COURT OF JUDIcATURE AT BILASPUR CHHA MM (QIVISION 3w) CORAM: - HON’BLE MR. A.8.V. MOOkTHY. CJ. AND HON'BLE Mk. LC. BHADOO, J. i ti 2110 2w Dr. M.K. Suryavanshi and ofhcrs wk»? 4, - Versus - Side of Chhaf‘l'isgarh and ofhers AND m-lf Petition uozlw g £001. Dr. Indra Kumm" Sam - Versus - Stafe of Chhaffisgarh and others PEesenf: - Mr'. SP. Shnrma, Advocate: For fhe pz‘l‘ii'ioners. Mr. N.K. Agrawal, Depufy Advocate General: For fhe Sfafe/mspondenfs No.1, 2 and 3. ORDEQ (gassed on 17'“ Agusf, 2004 The fouowlm order of fhe Court was passed g! imice L6: M, . - 1. WrH' Petition No.2110 of 2004 fiied by Dr. M.K. Surywonshi and others, and Writ Petition No.2115 of 2004 filed by Dr. Indra Kurnor Sam ore reioting to the ‘ some issue. Therefore they are being disobsed of by this common order . The mom grievance raised by the petitioners m these writ petitions is that > before conducting the counseiiing on 9’“ July 2004 they were not informed that they are in the merit list, therefore they should appear for counselling on 9‘” July, 2004. ) 3. Brief facts loading to filing of the“ writ petitions are that the Stoto of Chhcttisgarh hd framed Pre-PG Examimmn Rules, zooa As per Ruie 6.3, a condi‘tion was pnscribad 'l'ha'r only fhm candidates will b: mifkd +0 mpaar- in ‘Hne pre—PG examination who had complend two years of rural mvice by 30‘“ April, of ‘lha‘l' year. These Rules were challenged in Writ Pefiflon No.1188/2002. 11wis Cour-t by ifs order daled 10” December, 2002, held the? Rule 6.3 of ihe Pre—PG Examination kules, 2002, which lays down The eondli'ion of two years of rural service as i'l existed, cannot be sustained on 'l'he ground The? it omounis 1'0 100% reservolion for in-service oondidoi'es, leaving no seal for freshers. However, if was furfher held moi i'l‘ will be open lo lhe 60vernrnenl 'lo make o percentage of seals for in—service candidates and for freshers 'lho'l is insti‘rmional candidafes. Thereafter, in This year i.e. 2004, new rules namely, Pre-PG Examlnoi'ion Rules, 2004, were framed and as per 'rhese Rules even freshers who had just passed Final M885 examination became eligible to appear in fhe pre-P6 examination. The said Rules, 2004 were also challenged in Wrif Pefifion Nos.1648/2004 and 1326/2004 on 'lhe ground #haf as per Rule 6.3 framed under 'rhe Chho‘msgorh Chlki‘rsa Mdmvidyoiayon Ke Snatkottar Pathyokramon Mein Pravesh Adhiniyam. 2002. the eligibility criteria for appearing in fhe pro-PG examination was completion of two years rural service in a Primary Health Centre on or before 30’“ April of the year of pro-PG examination, whereas in the Pre-P5 Examination Rules, 2004, the said condition has been deleted, thereby even fl esliers became eligible to appear in the pre-P6 examination. The State 6overnment hos not made any special provision of reservation for the candidates who had served in the rural areas relying on the earlier rules i.e. Pre-PG Examination Rules, 2002. The State authorities ought to have given precedence to the petitioners or similarly situated persons by giving a percentage of seats. The petitioners relying on the earlier rules altered their y position to their detriment and by not fixing a percentage in the seats, the State Government has marred the prospects of the petitioners of getting admission in P6 course after appearing in the Pro-PG Examination 2004. These petitions were allowed by this Court vide order dated 2'“ July, 2004, it was directed that respondents No.1 to 3 shall give weightage mwdmum up to 5% to those candidates who had already completed two years of rural service before appearing in the Pre-PG Examination, 2004, after giving the weightage conduct Cwe/ * counulling afrash afur soaking fresh ahoiu of ihc undidah: ngarding fhc session and subject. I1- was further directed that the counsemng dwuld start by 9'" July, 2004, which should and by 10’" July, 2004 (1nd the sesqion should start from 12'“ July, 2004. In pursuanc: of the said oi-dar, the State Government vide ordar dated 3" July,_2004, fixed 5% weightage for- thos‘c candidates who had completed two yours of rural sorvice before appearing in tho examination and as a result of which a fresh merit list was prepared after adding 10 marks and fresh counselling was conducted on 9.7.2004. . The petitionere‘ me is that they were not aware of the order dated 2'” July, 2004 of this Court, as they were not properly connected with print media m they are rendering their services in the most backward and naxulite effected areas of the State of Chhattisgarh. Honever, the respondents prepared a fresh merit list as per the Court's direction giving weightage of 10 marks to eaoh candidate who had worked in the rural areos. As per the fresh list, the petitioners became qualified for admission in the P6 courses because of the said additional marks. Eut they had no knowledge of their securing position in the merit list. After preparing the merit list, the same was published only on the notice board of Pt. Jawd'iarlal Nehru Memorial Medical College, Raipur, it was not published in any of the Hindi dailies of the State of Chhattisgarh, therefore, i there is no question of petitioners coming to know about their securing position i in the merit list. Earlier practice was that the persons who had qualified for admission in the P6 courses were being given intimation by writing letters issued by the Director, Medical Education, State of Chhai'tisgarh. Since the respondents had not given any intimation to the petitioners about their merit, therefore they could not appear on the date of counseiling as fixed by the Court ‘and immediately after coming to know about the counselling already heid on 9'“ July, 2004, the petitioners made anapplication on 12’“ July, 2004 i.e. Monday for securing their seats; Therefore, the'Lfault lies on the respondent State authorities in not giving intimation to the petitioners who are in service of the State 6overnment. The respondent State authorities have all the modes of communication in their hands and they ought to have given the information to the respective offices of the petitioners by various modes of communication i.e. telephone, fax etc.. On account of the aforesaid sheer negiigence on the part of the respondent State authorities the rights of the petitioners have been «ffec‘rad. They have left wii-h no opiion bui' to seek profod'ion of law. The pe'rlTIoners have, thereforz, request“ for Issuance of a wrlt of mandanus to direct +h¢ mpandam Sfafe amhqrifies fa conduci counsziling in such a way ihmr wi+houf affecting fhe mgr-ii liai- of flu: persons who have «cured highenmarks fhan fhe peih‘ioners so fha1 fhe petitioners may be accommadatad in the PG Courses. 5. Rciurn has been fikd on behalf of fhe Sfafc/raspandanfs No.1 ta‘3 in which if has been mentioned mot after obiaining copy of order ddeo 2"“ $uly, 2004, fhe answering respondenfs immediofely decided fo give 57o weighfege Fl-o those candidates who had already served two years in the rural areas md accordingly on 3" July, 2004, issued on order to that effect i.e. Annexure R-l. Since fredi counselling was to be conducted, as per the Court's order, on 9‘“ July, 2004, therefore, in order to circulate the information of fresh counselling to all the candidates, an advertisement in the form of press note was sent to all the renowned newspapers of the 5tate of Chhattisgarh and also to 5d1ara Samaahar, Doordarshan and Akashwoni. Copies of the said press notes along with eovering letter, which was sent, to all renowned newspapers of the State of Chhattisgarh, Annexures R-Z to R-5 are filed. In the said press note it was specifically mentioned that those candidates who have completed two years of rural service have to submit a certlflcate to that effect before the Office of the Dean, Pt. Jmivdaarlal Nehru Medical College, Roipur, latest by 5 pm. on 7.7.2004, fresh merit list will be prepared on that basis and will bedisplayod on ‘ the notice board of the Medical College on 8.7.2004 and counalling will be conducted on 9.7.2004, for this no separate intimation will be given. The sdd press note was published in daily newspapers Le. Annexure R-o. It was broadcast through Akoshwmi, Roipur, on 3” & 4'“ July, 2004, and a copy of confirmation letter to this effect is Annexure R-7. It was also flashed on Doordarshan in regional news bulletin on 4* d: 5’“ July, 2004, and a copy of confirmation letter to this effect is Annexure R-B. In such a hart time, it was not possible for the respondents to issue individual notices to all418 candidates. It has further been mentioned that the petitioners are posted at Narayanpur, District: Bastar; Sirsida, District: burg; Mundagaon, Eater; and Village: Charamo, District: Jagdalpur. In all the above said places every newsp¢er is circulated and the petitioners had appeared in the Pre-P6 ExmninationLggg‘QhJx- 1»,, {f &:/ only on fho basis of mcpapcr report On 9’“ Juiy, 2004, 307 cmdidafcs appeared om of which 152 candldafes got admission including Assmant Surgeons in accordance wi'l’h iheir mar-if. All fine Assisi‘arri' Stir-goon quofa seats belonging 1-0 SC,,$T & OBC wen fillod whilz 13 sears belonging fa unreserved cafogory remained vacant. As such, fhe petitions deserve to be dismissed. . We have heard Mr. B.P. Sharma, counsel for the petitioners and Mr. Nawal . Mr. B.P. Sharma argued that as 13 seats are still lying vacant and the petitioners are five in number therefore, they can be given admission as against those seats. 7. Whereas, on nae am.- hend, Mr. me Agmni argued um 13 am which m lying vacant are of open category candidates whereas, the petitioners are SC, 5T & CBC category candidates, for these categories no seat is lying vacant. As such, these candidates cannot be adjusted against open category. He further argued that for open category seat minimum qualifying marks are 507° md none of the petitioners has secured 50% marks in order to become eiigible for admission against the open category quota. All the petitioners have secured less than 44%; therefore, they are not entitled for admission agaimt the open category seats. . In this connection, the relevant rule is Rule 9.1 of the PwPG Examination miles, 2004. This Rule, which deals with the preparation of merit list and waiting list, envisages that “as per the decision of Supreme Court of India minimum qudifying marks in the’Pre-PG Examination are 40% for candidates of reserved category (SC, ST, OBC) and 50% for candidates of unreserved eategory". Therefore, In View of the above rule, we are of the View that the oontention of the lewned counsel for the petitioners is of no avail to the petitioners. It is settled iw that no candidate can be admitted to the PG courses unless he has secured 50% marks in case of unreserved category and 40% marks in case of reserved category. It is an admitted position'that the petitioners have not secured 50% marks which is the minimum eligibility criteria for admission. Therefore, the petitioners cannot be given admission against the 13 seats lying vacant. 10. Mr. B.P. 5harma, while referring kule 10.14 of the Pre-?6 Examination kules, 2004, arued that this rule provides that in case eligible candidates to‘the Kishor-c Agrawal, Deputy Advocate General for the state/respondents No.1 to 3. g @ axfenf of naervd‘ion in any reserved cangory m m‘i available 'I‘he vacan‘t Stats shnll be fmed by convening mam imo ofher category Le. ST megory sears can be comer-fed info SC cafegary sens, SC category sacks can be convened info ST ¢afegory seafs, if cmdidaes cf both i-h: conga-ks are no? avdlablc Wen the vacun‘t seats can be filled from OBC category candidahs, and if he candida'ras are no‘t avniiable from *ha abova three rmrved cafagaries, fhe vocam saws can men be filied fvom unreserved categories, Therefore, vice- ver-sa, 13 seni's, which are vacnnf from i'he general co‘l'egory, can also be filled by accommodafing fhe pefifionere. Learned counsel for flue pefilioners fur-flier submmed fhaf if fhese seafs are not filled by accommo‘lnfing fhe pemioners, fhen fhese sears will go in waste and fhe feaehers and infrasfruefure for which public money ls soenf wlll remain In pasmon withouf fhelr uflllzafian. Therefore, in order 1'0 avoid fhe wastage of public money and looking to lhe inor‘loge of lhe doctors in ihe S'l-de, +he pemioners can be given admission ageinsf fhe general coiegory vacant seofs. Eut, we are of the considered opinion that the above argument advanced by the learned counsel for fhe pefifioners is wi‘rhou? any subsimee for flue reason 'l‘hol' for giving admission ogoins‘l ‘l'he vucanl seals of general cafegory, candidate must have secured 50% minimum mwks in order to become eligible. Rule 10.14 envisages fhat the vacant seats can be filled up by eligible candidates by converting them form one category to the other eategory. As the petitioners have secured between 40% to 44% marks, therefore, they are not eligible for admission against the general category quota It is settled ion that relaxation in the minimum marks i.e. 50% marks cannot be granted in any ease because, it affects the standard of education The second reason is that if the petitioners who have secured only 40% to 44% marks are given dmission against the general category seats then, there are candidates of general category available who have secured more marks than the petitioners, therefore, ignoring their ciaim the petitioners cannot be given preference for the vacant seats. Moreover, as . informed by the learned Deputy Advocate 6eneral, out of these 13 seats, four seats are vacant against the session 2004-2005 and remaining 9 seats are vacant against the sessions 2005-2006 and 2006-2007. As far as 2005-2006 and 2006-2007 sessions are concerned, it was informed during the course of the arguments that even among general category candidates some waiting iist of . v\y w; R, @ eiigibk candida'l'es who have opfed for o‘l‘har subjcefs is +h¢rle, ihor-cfam, befar'e fhe session wlll start fhose candidcfes may also opt fcr' rhea vm sects. Aparf from fha'r, parusal of fine above rul¢ makcs i? clzar fhat only those candidaies of gcneral ca‘l'zgory who have securad 50% marks an b: given admission by converting 1‘he reserved wiegory seats, because the opening word of ihe rule makes it clear *hai only fhe eligible candidate: can be given admission. In other words, the general category candidates who have not secured 50% marks cannot be given admission against the reserved category seats for which 40% marks are prescribed by converting the reserved category seats into general category seats. Similarly, the reserved category students who have secured less than 50% marks cannot be given admission against the general category seats for which the minimum pass marks we 50%. Therefore, the petitioners who have not secured 50% marks cannot be given admission against the general category seats. 12. Mr. B.P. sharma further argued that in the first iist, the petitioners could not secure position in the merit and they were not aware about the order dated 2.7.2004 of this Court, whereby the Court ordered for giving 5% weightage to those candidates who had served two years in the rural areas. Later on, when the Government 'decided to give weightage of 10 additional marks to the petitioners, thereby, their name appeared in the merit list after adding 10 marks but, about that they were not aware, therefore, the respondents ought to have sent letters by post about the date of counselling 9.73004 and no such letter as envisaged in Rule 1.2.2 of the Rules, 2004, was issued, as such, the petitioners are entitled for re-counselling. 13. But, again we are of the opinion that looking to the circumstances in whidt the counselling of 9.7.2004 was conducted, the ground taken by the petitioners is not justified for the reason that before starting of the first counselling few candidates filed writ petitions and by order dated 2.7.2004 this Court ordered that 5% weightage should be given to those candidates who had served for two years in the rural areas before the commencement of the examination. Proceedings of that matter were regularly appearing in almost all the newspapers. Looking to the time schedule fixed by the Medical Council of India for commencement of coUrses in compliance of the judgment of the Hon'ble Apex Court in the matter of Medical Council of India vs. Madhu Sitgh and ”hm reporfod in (2002) 7 Sum-m: Court Cm. 258, fhis Cour? Vida order dated 2.7.2004 ordered that offer giving additiona! weighfage of 57o marks 1'0 +he candidates who have scrved for fwo year‘s in fhe rural arm, ‘l’he respondanis should conduc‘? counseiling on 9‘“ July, 2004 hy seeking ¢hoic¢ of fhe subject and session from moae candiddes. Therefore, in the given sifua'rion, a very shori- *ime Le. six days was given 'ro fhe respondems 1’6 oonduc? counselling rho? too after giving weightage of 57a marks. Hence, in such ashort time it was not possible for the respondents to send call letters by post, which has been mentioned, by the respondents in their return. However, looking to the shortage of time, the respondents adopted o workable procedure. First of all on 3" of July, 2004, they issued order for giving weightoge of 10 marks to those candidates who had served for two years in the rural areas and then published a press note on 4.7.2004 in various widely circulated newspapers i.e. Nov Bharat, Deshbandhu, Dainik Haribhoomi and Dainik Bhxkar to the effect that all those candidates who had appeared in Pre-PG Examination 2004 are hereby informed that before appearing in the pre—PG examination, if they hod served for two years in the rural areas, then they should first obtain a certificate to that effect from the Director, Health Services. Chhattisgarh and submit the some latest ‘by 5 p.m. on 7.7.2004. It was further made clear that merit list after giving weightage of 10 marks will be prepared and published on 8.7.2004 by 3 p.m. on the notice board of the Pt. Jawdaarlal Nehru Memorial Medical College, Raipur, the counselling will be conducted on 9.7.2004, and no separate notice will be given for counselling. This press note was published in‘the above newspapers, which are widely circulated in the State of Chhattisgarh. Not only this, the details of the said press note was broadcast in Aakashvani through weir regionai news bunenn dmd 4*“ a 5*“ July, 2004 and n was also “mama on Television in the state news dated 4’” di 5'“ July, 2004, which has not been denied by the learned counsel for the petitioners. Therefore. wide publicity was given to the said press note. The above fact has been mentioned by the respondents in their return, which has not been denied by the petitioners by filing rejoinder. The petitioners in their petitions have mentioned that they are not properly connected with print media, but they hove not oontroverted the point raised by the respondents that the newspapers in which the press note was released lliz., Nov Bhorot, Deshbandhu, Dainik Haribhoomi 6i Dainik Bhaskor are no‘l' bcing received af *heir- place of work and ih¢y m mi nading any new: paper among the above papers. Further, they have not stated an affidavit mu? rdio & Télevision facilities are no? available a? ‘I'hair place of posting and fhey are not haaring radio and wafching Television, iherofore, there was no possibilily of coming to know obouf the above press noie through broadcasting or telecasting. In the circumstances, now the petitioners cannot claim that the said news did not come to their knowledge. 14. As afar- as the question of application of Rule 1.2.2 of the Rules, 2004, is concerned, this rule was applicable in the ordinary course. But in this case, the counselling on 9.7.2004 was conducted in compliance of this Court's order dated 2.7.2004 and very short time i.e. six days was left, therefore, the respondents in their wisdom published in various newspapers which have wide circulation, informed all the candidates to submit their certificates and see the merit list on the notice board of the Medical College an 8.7.2004 and to appear for counselling on 9.7.2004. Therefore, in the peculiar facts and circumstances, the petitioners cannot press into service Rule 1.2.2 of the Rules, 2004. The petitioners are working in the dispensaries out of which Village: Charama and Bastar are on the national highway and even in the other towns where the petitioners’ dispensaries exist these newspapers are regularly circulated and further that this news was telecasted/broadcasted on TV a radio also. Therefore, in the circumstances, we are of the considered opinion that the petitioners cannot claim that the respondents had not followed the just and fair procedure of informing the petitioners about the counselling date. It is not out of place to mention here that even the petitioners had applied for appearing in the pre-PG examination based only on the news published in these newspapers. Therefore, now they cannot take the stand that the press note published by the respondents for counselling, could not be noticed by them. As such, the ground taken by the petitioners is without force. 15. Even otherwise, in the alternative, worst to worst, if the request of the petitioners is accepted and the respondents are directed to conduct counselling only after sending call letters to those candidates whose name appears in the merit list, even then the petitioners will not be able to get admission for the reason that in the merit list at least there are 10 candidates above petitioner Dr. MK Suryavanshi: 22 candidates above petitioner Dr. Ganesh K Dos. There I .4 /495 i rs l 0 are more fhan +hes¢ candida?» above in ‘Hwe marit Iisf from 'l'he o‘Hner petitioners who had not appeand in counsemng, hm th¢y have not approached ihis Cour-f by filing wrif pefifion, if +he ca" lefters m sen? *0 a" fhosc candiddes and if fhey appear- for counsemng fhen *he pdifioners will nof gei- any chance ‘ro get admission. Therefore, on this ground also, the relief sought by ‘l’he pefi'lioners canno‘l be growled 1’0 them. 16. As mentioned above, ihe session has already been delayed by fwo months and as per the directions of the Hon'ble Apex Court in the matter of Medical Council of India (supra) and the circular issued by the Medical Council of India, mid 1 x \ ‘l term admissions cannot be granted. Therefore, even if now a direction is given to the respondents to conduct fresh counselling there will be another delay of at leastrtwo weeks and thereby the admissions will be delayed by three months, which is not permissible in view of Madhu Singh's ease and the circular issued by the Medical Council of India. Therefore, on this ground also the relief sought by the petitioners cannot \be granted. 17. In view of the foregoing reasons, we are of the considered opinion that the relief sought by the petitioners in these writ petitions cannot be granted. The writ petitions are therefore, liable to be dismissed and they are hereby dismissed. ' " \ X l Sdl. . -. .. “fl Sd/— Chief Justice i L.C.BHADOO Judge $oma