Sca7851/2005 1 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7851 of 2005 For Approval and Signature: HON'BLE MR.JUSTICE K.M.MEHTA =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? DR KAILASHBEN NINAMA JUNIOR LECTURER IN P & SM - Petitioner Versus GUJARAT UNIVERSITY & 3 - Respondent(s) =========================================================== Appearance : MR MB GANDHI for Petitioner No(s).: 1. MR SUNIL M AGRAWAL for Petitioner No(s).: 1. MRS VD NANAVATI for Respondent No(s).: 1. NOTICE SERVED BY DS for Respondent No(s).: 2,4. MR SUNIL S JOSHI for Respondent No(s).: 3. CORAM : HON'BLE MR.JUSTICE K.M.MEHTA Date : 20/07/2005 CAV JUDGMENT Sca7851/2005 2 1. Dr. Kailashben Ninama, petitioner, has filed this petition under Article 226 of the Constitution of India with a prayer that this Court may be pleased to issue a writ of mandamus and appropriate order or direction in the nature of mandamus holding and declaring that the petitioner is eligible for getting admission in Post Graduate Course (P.G. Course for short) in the subject of Preventive and Social Medicine (hereinafter referred to as “P&SM”) for the vacant seat of general category being a candidate of Scheduled Tribe category. He has further prayed that the Selection Committee has wrongly refused admission to the petitioner though the petitioner has secured more than 40% marks which is required for S.T. Candidates. It is further prayed that the Selection made by the Selection Committee not to select the petitioner be declared as illegal and void and this Court may be pleased to direct the Selection Committee – respondent No. 2, to give admission to the petitioner on one seat of P.G. Course in the subject of P&SM and the candidate of the other University to whom admission is given be declared as illegal and void and the same be cancelled. 2. The said petition was filed on 27.4.2005. Initially, this Court issued notice on 4.5.2005 and also passed an order that the admission, if any, would be subject to the final result of the present petition and the order that may be passed by this Court hereinafter. Thereafter, on 13.5.2005 this Court passed an Sca7851/2005 3 order and thereafter on 17.6.2005 this Court issued Rule. Ms. V.D. Nanavati, learned advocate, appears for respondent Nos. 1 and 2. 2.1 Mr. M.B. Gandhi, learned advocate for the petitioner, has filed Civil Application No. 4667 of 2005 on 13.6.2005 for joining two students as party respondent Nos. 3 and 4 who have been given admission in respect of the same subject with respondent No. 2. In view of the same, the said application was allowed vide the order passed by this Court on 17.6.2005 and one Ms. Vaishali P. Shah and Mr. Hirenkumar Govindlal Doshi were joined as respondent Nos. 3 and 4 respectively. 2.2 In view of the order of the learned Chief Justice on 13.7.2005, the matter has been placed before this Court for hearing on 14.7.2005. 3. I heard Mr. M.B. Gandhi, learned advocate for the petitioner and Ms. V.D. Nanavati, learned advocate for respondent Nos. 1 and 2 as well as Mr. Sunil Joshi, learned advocate for respondent No. 3. FACTS OF THE PETITIONER'S CASE: 4. The learned advocate for the petitioner has invited my attention to the Sca7851/2005 4 basic facts in this case as under: 4.1 The learned advocate has stated that the petitioner is serving as Junior Lecturer since last four years and she belongs to S.T. Category. The petitioner got degree of M.B.B.S. In the year 1999 and thereafter the petitioner completed internship for a period of one year and soon thereafter in the year 2000 the petitioner got job as a Junior Lecturer in the subject of P & SM. The petitioner is continuously serving on the post of Junior Lecturer since the date of her joining i.e. From 29th December, 2001. 4.2 The learned advocate for the petitioner further submitted that in the year 2005 the petitioner appeared in the competitive examination for admission to the P.G. Medical Course held by Gujarat University. As per the result declared on the notice board of the Gujarat University petitioner got 167.50 marks in the open test and as per the Rules and Regulations framed by the University the marks of 1st, 2nd and 3rd M.B.B.S., together with the marks obtained in the open test are consolidated and the list of candidates appeared in the open category is prepared and such list was published by the University. 4.3 So far as the petitioner is concerned the name of the petitioners appeared in the said list at 539 i.e., the merit number of the present petitioner and so far as Sca7851/2005 5 Registration number is concerned, the registration number of petitioner is 344. A copy of the said list has been produced by the petitioner along with this petition. 4.4 The learned advocate for the petitioner submits that so far as the Rules are concerned, for the purpose of P.G. Course the Gujarat University has framed Rules vide O.M.D. 14 (Ordinance Doctor of Medicine) and O.M.S. 14 (Ordinance Master of Surgery). These are the Rules for eligibility criteria of the candidates for getting admission to the P.G. Course. The said Rules are the Rules governing admission to the P.G. Degree and Diploma Medical Courses other than M.Ch. & D.M., at the affiliated Medical Colleges/Institutions from 1.1.2004. The learned advocate for the petitioner has invited my attention to Rule 1.8 which reads as under: “1.8 A candidate has to appear in Competitive examination for admission to Post Graduate medical courses (M.D./M.S. Diploma) held by Gujarat University and should have to secure 50% marks in entrance test (for reserve category 40%)” 4.5 The learned advocate for the petitioner has further submitted that the petitioner had filled in form for both the categories namely for open category as well as for ST category. It is the case of the petitioner that when the petitioner Sca7851/2005 6 was first called at that time petitioner had the preference for getting the admission on the reserved category seat for Post Graduation. However, at that time the petitioner was informed by the Select Committee that so far as NHL College is concerned, there is no seat reserved for ST Category in the course of P&SM and therefore, the petitioner had no option and the petitioner being a ST candidate did not get the preference in SC or SEBC or OBC category and therefore the petitioner had to wait for the general category seats and accordingly the petitioner as again called on 19th April, 2005 for interview. 4.6 It is the case of the petitioner that when the petitioner was called for interview on 19th April, 2005 there were two seats vacant for the P.G. Course in P&SM subject one seat was for general category and the other seat on SEBC converted into open category as no candidate of SEBC category was available and therefore, there were two vacant seats in open category for the post of Graduate Course in P &SM. The moment the petitioner found that there is a vacancy and in the open category also as she is entitled to get admission and therefore the petitioner accepted the admission in P.G. Course for P&SM. However, when preference was indicated by the petitioner, the Select Committee observed that it is a general category seat and unless and until 50% marks are obtained by the candidate the said seat cannot be offered. Sca7851/2005 7 4.7 The petitioner, at that time, submitted that the petitioner belonged to ST category and therefore passing level for the petitioner is 40% in the competitive examination and not 50% as per Rule 1.8. Therefore, on that seat of the passing at 40% the petitioner is eligible to have the seat even in the open category. However, that was refused and the petitioner was refused admission. 4.8 In view of the aforesaid peculiar facts and circumstances of the case, it is the case of the petitioner that though the petitioner is entitled to the reserved seat even then the Select Committee has not offered the same and therefore injustice is done to the petitioner. 4.9 Being aggrieved and dissatisfied with the aforesaid action, the present petition has been filed by the petitioner. 4.10 The learned advocate for the petitioner has argued the matter at great length. The petitioner has also filed rejoinder dated 12.5.2005 on which learned advocate for the petitioner has relied on. The learned advocate has raised a number of contentions which he has raised in the petition. SUBMISSIONS OF THE LEARNED COUNSEL FOR THE PETITIONER: Sca7851/2005 8 4.11 The learned advocate for the petitioner submitted that the interpretation of Rule 1.8 done by the Committee that for the purpose of getting admission in the general category a candidate of reserved category is also required to obtain 50% marks is totally incorrect interpretation. He submitted for getting admission 50% marks for general category is not meant but when the seat is of general category a candidate belonging to general category is required to obtain 50% marks but the candidate belonging to reserved category is required to obtain only 40% marks and can compete for the seat in the general category and that the marks are not comparable and therefore, the entire Rule has been misinterpreted and hence the present petition has been filed. 4.12 The learned advocate for the petitioner has invited my attention to Rule particularly Rules 1.8, 2.0, 2.1, 4.1, 4.2, 5, 5.1, 5.2, 5.5(a) & (b), 7.2, 7.3, 7.12, 15, Rule on page 21 i.e. Regulation under Rule 7.6 – Regulation 11. He has also invited my attention to the representation made by the petitioner dated 22.4.2005. 4.13 The learned advocate for the petitioner has also submitted that the seats of P&SM are available both in the Civil Hospital as well as in the NHL College and the petitioner being a Junior Lecturer in the subject of P&SM and was getting admission in NHL College in P.G. Course in the subject of P&SM and the Sca7851/2005 9 petitioner is seeking to the vacant seat of P&SM subject in NHL Medical College. 4.14 The learned advocate has also relied on Article 16 of the Constitution of India which reads as under: “Art. 16 – Equality of opportunity in matters of public employment - Clause (1) – There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State . Clause (2) – No citizen shall, on grounds only of religion, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State . Clause (3) – xxxxxxxxxx Clause (4) – Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State”. 4.15 The learned advocate for the petitioner has stated that the interpretation of the University is clearly incorrect and in support of the same, he has relied on Sca7851/2005 10 the judgement of the Hon'ble Supreme Court in the case of HARIDAS PARSEDIA VS. URMILA SHAKYA AND OTHERS reported in (2000) 1 SCC 81 particularly para 17. 4.16 He has also relied on the judgement of the Hon'ble Supreme Court in the case STATE OF M.P. VS. NIVEDITA JAIN reported in AIR 1981 SC 2045 particularly para 26. 4.17 The petitioner has also filed Civil Application No. 4668 of 2005 on 13th June, 2005 with a prayer that this Court may be pleased to direct the respondents to allot the vacant seat in NHL Medical College as per Annexure-A to the petition. The University has filed reply on 7.7.2005. The said Civil Application was allowed by this Court on 14.7.2005. ADDITIONAL CONTENTION ON BEHALF OF THE PETITIONER AS PER THE AMENDMENT: 4.18 In the said Civil Application by way of amendment, the petitioner/applicant contended that as per Rule 15 she is entitled to get admission. That the two seats falling into general category were allotted to two persons who have already been joined as party respondents by a separate Sca7851/2005 11 application, namely, Ms. Vaishali P. Shah and Mr. Hirenkumar Govindlal Doshi. Out of the said two candidates the second candidate Mr. Hirenkumar Govindlal Doshi has not applied for registration nor did he pay fees and therefore his admission has been cancelled and according to the latest position as on 24th May, 2005, on the aforesaid reason one seat has also become vacant and the same is shown in the proforma published by the respondent. A copy of the same is produced by the petitioner at Annexure-F by way of amendment. According to Annexure-F again a vacancy has arisen in the concerned subject of P&SM (degree) and same is allotted to NHL Medical College. Though it is designated as SEBC seat but looking to the entire select no candidate of SEBC category is available to occupy the seat and according to the Rules and Regulations of the University it is open for the University to give admission to a claimant though belonging to ST category. The present applicant belongs to ST category and the petitioner is also since last four years serving as Junior Lecturer in the same subject of P & SM and therefore the present applicant claims a right over the said seat. It is also further submitted that as per the interim order, this Court has given direction to the University that admissions are subject to the result of the petition. In the aforesaid background, the present applicant can be allotted to said seat as per Annexure-F and accordingly the petitioner/applicant prayed that this Court be pleased to direct the respondents to allot the vacant seat in the NHL Medical College as per Annexure-A to the petition. Sca7851/2005 12 SUBMISSIONS AND CONTENTION ON BEHALF OF RESPONDENT NOS. 1 & 2 i.e., on behalf of Gujarat University by Mrs. V.D. Nanavati: 5. On behalf of respondent Nos. 1 and 2 Ms. V.D. Nanavati, learned advocate, appears. She has also relied on the affidavit dated 11.5.2005 of Mineshbhai S. Shah, the Registrar of the respondent Gujarat University as well as another affidavit dated 13.5.2005. The learned advocate for the University has invited my attention to the said affidavit filed by the University. On the basis of the said affidavit the learned advocate has made the following submissions: 5.1 The learned advocate for the respondents submits that there are different subjects in which Post Graduation Courses in Medical is available under Gujarat University. The seats of Post Graduate Courses in different disciplines are conducted in two centers, namely, (i) N.H.L. Municipal Medical College and (ii) B.J. Medical College. The admission to PG Courses in Medicine by Gujarat University is conducted as per the MCI (Medical Council of India) Regulations. It was further submitted that Gujarat University as per Rules O.M.D. 14 and O.M.S. 14 framed for PG Courses conducted open entrance test. As per the Rules framed by the Gujarat University, any student seeking admission to a general category seat has to secure 50% marks in the entrance test and any reserved Sca7851/2005 13 category student seeking admission to the reserved category seat has to secure 40% marks in the entrance test. 5.2 It is submitted that in the year 2005 for the PG Course in the discipline of Preventive and Social Medicine , two seats were available in N.H.L. Medical College and three seats were available in B.J. Medical College. As per the subject wise roaster maintained by the individual Institute in the year 2005 out of two seats of N.H.L. Medical College, one seat was reserved for S.E.B.C. (Socially and Educationally Backward Class) and one seat was open. Similarly, out of three seats of B.J. Medical College, one seat was reserved for ST candidate and two seats were reserved for open category students. In the year 2005, the petitioner secured 41.87% marks in the entrance examination. As the petitioner belonged to Scheduled Tribe category, the petitioner was eligible for admission to ST category sets on the basis of her performance in the entrance examination. In the year 2005, ST seat as stated above, was available in B.J. Medical College. 5.3 The learned advocate further submitted that during the counselling for admission as per Rule 7.6 which provides for the sequence of interview for selection and admission will be as per Regulations, the petitioner was offered ST seat in B.J. Medical College and the learned counsel has produced the form by Sca7851/2005 14 which the petitioner was offered seat in the B.J. Medical College where the petitioner has declined to take admission in ST category and thereafter the authority has stated that her claim for ST category seat has been withdrawn. The said form along with application filed by certain students is placed before this Court and the same is taken on record. Therefore, the fact remains that the petitioner has refused to take admission in B.J. Medical College in S.T., category seat. 5.4 The learned advocate for the University has further submitted that in fact this fact has been suppressed by the petitioner in the present petition. The learned counsel therefore submitted that this Court may reject the petition solely on this ground and declare that the petitioner is not entitled to any equitable relief as she has suppressed material facts from this Court. She has not come to this Court with clean hands. 5.5 The petitioner, after leaving this opportunity, thereafter, insisted for admission only in N.H.L. Medical College. Since no ST reserved category seat was available in N.H.L. Medical College, the petitioner opted for admission in open category. Since she had obtained 41.87% marks in the entrance examination, she was not eligible for admission in the open category seats. The eligibility fixed by the University as per Rule 1.8 is based on the category of seats Sca7851/2005 15 to which admission is sought by the student. A reserved categroy student when seeks admission to a general category seat, has to obtain 50% marks in the entrance test. It is submitted that the petitioner on the basis of her performance in the entrance examination is therefore not eligible for admission in the open category seat in the subject of P&SM. The learned counsel therefore submitted that the petition is not maintainable and the petitioner has no right to seek a writ from this Court for admission to the course. In any view of the matter, the petitioner is not entitled to admission to the said course. 5.6 The learned advocate further submitted that in any view of the matter, the petitioner cannot get relaxation of getting admission in the open category seat by securing only 40% marks in the entrance examination. The learned advocate further submitted that the candidate once opts for open category, she/he shall secure 50% of marks to become eligible for admission in the open category. It was submitted that the candidate who is belonging to SC/ST/SEBC (Reserve Category) opting for admission in the open category shall have to secure the eligible 50% marks; but that candidate cannot get admission in open category by securing less than 50% of marks and cannot get the relaxation on the basis that she/he is belonging to SC/ST/SEBC (Reserve Category). 5.7 The learned counsel has further relied on the judgement of the Hon'ble Sca7851/2005 16 Supreme Court in the case of GURU NANAK DEV UNIVERSITY VS. PARMINDER KR.BANSAL reported in AIR 1993 SC 2412 where the Hon'ble Supreme Court has held that admissions to educational institutions cannot be ordered by means of interim directions without regard to the eligibility of the candidates. 5.8 The learned counsel has also relied on the judgement of the Hon'ble Supreme Court in the case of R.K. SABHARWAL VS. STATE OF PUNJAB reported in AIR 1995 SC 1371. 5.9. Alternatively, the learned counsel for the respondent University further submitted that in any view of the matter, the admission process by the Gujarat University was completed by 20.4.2005. She has also invited my attention to the fact that respondent No. 3, who has been given admission, was given admission on 21.4.2005. The learned counsel submitted that as per the decision of the Hon'ble Supreme Court in the case of MEDICAL COUNCIL OF INDIA VS. MADHU SINGH AND OTHERS reported in (2002) 7 SCC 258 in which it is held that a schedule of admission to the PG Course is framed by the Medical Council of India. As per the schedule, the admission to post graduation courses has to be completed before 1st May. In view of the same, the petitioner is otherwise not entitled to admission to the said course. The learned counsel has Sca7851/2005 17 relied on para 23 of the said judgement on page 272 in which the Hon'ble Supreme Court has given its conclusion as under: (i) there is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education; (ii) even if seats are unfilled that cannot be a ground for making admission. (iii) xxxxxxxxxxx (iv) MCI shall ensure that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date for admission (v) different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counselling and the like have to be completed within the specified time; (vi) no variation of the schedule so far as admissions are concerned shall be allowed; (vii) in case of any deviation by the institution concerned, action as prescribed shall be taken by MCI”. 5.10 The learned counsel has further relied on the judgement of the Hon'ble Sca7851/2005 18 Supreme Court in the case of MRIDUL DHAR VS. UNION OF INDIA reported in AIR 2005 SC 666 particularly para 32 on page 680 which reads as under: “Having regard to the professional courses into consideration, it deserves to be emphasized that all concerned including Governments, State and Central both, MCi/DCI, colleges, new or old, students, Boards, Universities, examining authorities, etc., are required to strictly adhere to time schedule wherever provided for; there should not be mid-stream admission; admission should not be in excess of sanctioned intake capacity or in excess of quota of any one, whether the State or Management. The carrying forward of any unfilled seats of one academic year is also not permissible.” 5.11 In paragraph 35 on page 681 of the said judgement, directions have been given. Direction 12 states that the time schedule for grant of admission to postgraduate courses shall also be adhered to. Direction 15 states that time schedule provided in Regulations shall be strictly adhered to by all concerned failing which defaulting party would be liable to be personally proceeded with. 5.12 The learned counsel has also relied on the judgement of this Court in the Sca7851/2005 19 case of PIYUSH HARSHADRAI DESAI VS. UNION OF INDIA reported in 2004(2) GLR 1687 particularly paragraph 44 on page 1706 where in similar circumstances this Court has rejected the petition for admission after considering the judgement of the Hon'ble Supreme Court in MADHU SINGH's case (supra). REPLY OF UNIVERSITY AGAINST THE PETITIONER'S ADDITIONAL CONTENTION BY WAY OF AMENDMENT: 5.13. As against this, the University has filed affidavit in reply dated 7.7.2005. Ms. V.D. Nanavati, learned counsel for the University has relied on Rule 5.5 of the Post Graduate & Diploma Medical Courses