C.W.P. No.6333 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. DATE OF DECISION : 24.5.2011 1. C.W.P. No.6333 of 2011 Dr.Pooja Gahlot and others v. State of Haryana and others. 2. C.W.P. No.6322 of 2011 Dr.Pankaj v. State of Haryana and others. 3. C.W.P. No.6168 of 2011 Dr.Parmender Kumar and others v. State of Haryana and others. 4. C.W.P. No.6479 of 2011 Dr.Sandeep Chhabra v. State of Haryana and others. 5. C.W.P. No.6518 of 2011 Dr.Suresh Godara v. State of Haryana and others. 6. C.W.P. No.6630 of 2011 Dr.Ishwar Goyal and another v. State of Haryana and others. 7. C.W.P. No.8548 of 2011 Dr.Manisha Modi v. State of Haryana and others. 8. C.W.P. No.8575 of 2011 Dr.Rajeev Dabla &others v.Pt.B.D.Sharma University & others C.W.P. No.6333 of 2011 -2- CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present:- Shri R.K.Malik, Senior Advocate with Ms.Renu Malik, Advocate for the petitioners (in CWP Nos.6333,6168,6630 of 2011). Shri Nilesh Bhardwaj, Advocate for petitioner(in CWP 6322/2011). Shri P.S.Chauhan, Advocate for petitioner (in CWP 6479/2011). Shri K.S.Dadwal, Advocate for the petitioner(in CWP 6518/2011). Shri V.K.Jindal, Advocate for the petitioner (in CWP8548/2011). Shri Vikas Chatrath, Advocate for the petitioner(in CWP8575/2011). Shri Sunil Nehra, Senior D.A.G. Haryana. Shri Ramesh Hooda, Advocate Shri Sanjiv Sharma, Senior Advocate with Shri Saurabh Dalal, Advocate. MAHESH GROVER, J. This order will dispose of C.W.P. Nos.6333,6322,6168,6479,6518, 6630,8548 and 8575 of 2011. The petitioners are all Medical Graduates and have completed more than three years of service as Medical Officers with two years of service rendered in rural areas. They have also completed probation period successfully in terms of their appointment. All of them are desirous to pursue their courses in MD/MS/PG DIPLOMA/MDS, for which Pt.B.D.Sharma University of Health Sciences, Rohtak issued a prospectus in which the last date for submission of the applications was prescribed as 24.1.2011. The eligibility criteria required the aspirants to have completed 3 C.W.P. No.6333 of 2011 -3- years of service with two years in rural areas and should have completed probation period successfully so as to earn the right of consideration against the seats reserved for HCMS categories. The petitioners claim that they were eligible to be considered against the HCMS category, but have been debarred from consideration in this particular category on account of Annexure P-3 which is a policy issued by the State of Haryana revising the criteria which by prescription now provided a person to have rendered 5 years of service, instead of 3 years so as to be eligible for consideration in the HCMS quota. The State policy is dated 31.3.2011 and is subsequent to the declaration of the result i.e. 3.3.2011. The grievance of the petitioners is thus, confined to this narrow arena that once the prospectus prescribed the eligibility criteria as 3 years service the subsequent change effected by virtue of the policy dated 31.3.2011, was impermissible and it has deprived them of the right of consideration. Thus, the action of the respondents in effecting the change in the criteria is clearly hit by the observations made by the Full Bench of this Court in Amardeep Singh Sahota v. State of Punjab 1993(3) P.L.R. 212, as also the numerous other judgments of this Court which are given below :- (1) Guru Ram Dass Charitable Trust v. State of Punjab and another, (2004) 136 P.L.R. 99, (2) Varghese Philip v. State of Kerala, 2004(1) K.L.T.581, (3) Paramveer Singh v. Punjab University, AIR 2000 PH 291. The respondents, on the other hand, justified the introduction of the policy dated 31.3.2011 by which the candidates desirous of pursuing the Post Graduate Courses could be considered only if they have completed 5 years of regular satisfactory service including 2 years probation, out of which 3 years C.W.P. No.6333 of 2011 -4- service should be in one of the District Hospitals or a Sub-Divisional Hospital and 2 years service in rural area institutions. It is their contention that this does not amount to any change in the eligibility condition and since this criteria is confined only for HCMS doctors whose entry into the course is dependent upon a “No Objection” Certificate, the State is very well within its right to prescribe its criteria, more so, when all the HCMS doctors who are selected against this category, would be entitled to full pay and allowances, as this period is to be treated as period spent on duty. Furthermore, they are entitled to prescribe and lay down any such conditions which are necessary for the grant of No Objection Certificate especially when the instructions in question i.e. the instructions dated 31.3.2011 (Annexure -3) convey an acute deficiency of specialists in various streams. To justify their decision, reliance has been placed upon the observations by the Hon'ble Supreme Court in Rajiv Kapoor v. State of Haryana 2000(2) S.C.T. 514, wherein the decision in Amardeep Singh Sahota v. State of Punjab 1993(3) P.L.R. 212 (supra) was specifically considered, as also the Division Bench judgment of this Court in Dr.Asha Goel v. State of Haryana 1996(4) S.C.T. 66 and Dr.Suresh Kumar and others v. State of Haryana and others 2007(2) SCT 45. I have heard the learned counsel for the parties and perused the material on record. Undisputedly, the respondents had initially given out in the prospectus that for consideration in the HCMS category, a person should have (i) completed 3 years of service, (ii) should have completed probation period satisfactorily and should have rendered 2 years of service in rural areas. By virtue of the policy instructions dated 31.3.2011, it has now been stipulated as follows :- “I. MBBS doctors will be eligible for doing Post Graduate Courses, both degree as well as Diploma, after completion of 5 years of regular satisfactory service including 2 years C.W.P. No.6333 of 2011 -5- probation, out of which, 3 years of service should be in one of the District Hospital or a Sub Divisional Hospital and two years in rural area institutions. Only the persons fulfilling this condition will be eligible for sponsorship against reserved seat in PGIMS Rohtak or other Government Institution, and against the open seats in the Government Colleges of Haryana or similar Government institutions anywhere else in the country. Eligible persons of this category will be entitled to draw full salary as they were drawing and the period spent on the prescribed duration of course will be treated as service for all intents and purposes. However, they will not be entitled to the stipend, if paid by the institution. Such stipend if received will be deposited in the State Treasury.” The aforesaid clause is the one which offends the petitioners who say that they have now been declared ineligible to be considered against the HCMS quota and this change has been effected subsequent to the process having been initiated i.e. after the declaration of the result and also for the reason that it has not been given out in the prospectus, the same cannot be enforced qua the instant selection as it is contrary to the observations made in the various judicial pronouncements. To evaluate the assertions and counter-assertions made by the respective parties, one would necessarily have to refer to the observations relied upon by both the sides and this exercise is akin to hair splitting for the reason that the judgments relied, propound the same principle, that terms of the prospectus cannot be deviated from, but yet in one of the judgments of the Supreme Court (Rajiv Kapoor's case supra), a fine distinction regarding the power of the State to C.W.P. No.6333 of 2011 -6- formulate and enforce policies governing admissions to reserved categories has been made. A Full Bench of this Court in Amardeep Singh Sahota v. State of Punjab 1993(3) P.L.R. 212 observed as follows :- “22. It may at this stage further be stated that notification dated July 13, 1992 goes contrary to the policy which was laid down for admission in the notification dated May 20, 1992 on the basis of which the prospectus had been issued to the students and students appeared for test on the basis of the policy laid down in the prospectus. The prospectus cannot subsequently be changed by the State Govt. to the detriment of the students to benefit certain other students. In Randeep Kaur v. State of Punjab and others, a Division Bench of this Court had an occasion to consider the value of a prospectus issued for admission to an entrance examination. It was held that eligibility for admission to a course has to be seen according to the prospectus issued before the entrance examination and that the admission has to be made on the basis of instructions given in the prospectus as the instructions issued have the force of law. We agree with the view taken by the Division Bench. Since the prospectus issued for admission to the 1992-1993 course in the medical college has the force of law and students appeared in the examination on the basis of instructions laid down in the said prospectus, it was not open to the State Govt. to issue contrary instructions and as such also the notification dated July 13, 1992 issued by the State Govt. is invalid in law.” C.W.P. No.6333 of 2011 -7- Likewise, in Varghese Philip v. State of Kerala 2004(1) K.L.T. 581, it was observed by the High Court of Kerala as follows :- “7. In our view it is not permissible to change the eligibility criteria for admission to a course by modifying or amending the prospectus after the last date fixed for submission of applications. Such amendment or modification of the prospectus will have the effect of changing the eligibility criteria for admissions retrospectively. Admissions should be made based on eligibility criteria contained in the prospectus as it stood on the last date fixed for submission of applications. Changing the eligibility criteria after the last date fixed for submission of application, is unjust, unfair and arbitrary. Though, as per Clause XVII of the prospectus, the Government is competent to issue an executive order modifying the prospectus, the said power cannot be exercised to change the eligibility criteria after the last date fixed for submission of applications. The power to change the eligibility criteria after the last date fixed for submission of applications is capable of being misused in favour of an applicant or against an applicant, because,e o the last date fixed for submission of applications the identity and details of all applicants are known. With the knowledge of identity and details of the applicants, the eligibility criteria may be changed to make an ineligible person eligible or to make an eligible person ineligible or to improve the chances of selection of a person to the disadvantage of another as C.W.P. No.6333 of 2011 -8- happened in the present case. Such an arbitrary and unbridled power cannot be conceded to Government in the matter of admission of educational courses. In taking this view, we are supported by judgments of this Court in Writ Appeal Nos.864/ 2002, 985/2002 and 3058/2002. 8. In Ashok Kumar Sharma and others v. Chander Shekhar and another (1997) 4 SCC 18, the Hon'ble Supreme Court has held that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. In our view, the above principle is applicable in the case of change of eligibility criteria for admission to educational courses also. Having issued a prospectus calling for applications representing that the eligibility will be determined based on certain criteria, the Government is bound by such representation and the said eligibility criteria cannot be changed after the last date fixed for submission of applications.” This Court in Guru Ram Dass Charitable Trust v. State of Punjab and another, (2004) 136 P.L.R. 99, while noticing the observations made by the C.W.P. No.6333 of 2011 -9- Hon'ble Court in Rajiv Kapoor v. State of Haryana (supra), which is relied up[on by the learned counsel for the State of Haryana, concluded by making a fine distinction from the observations of the Hon'ble Supreme Court, to say that no change could be effected in the criteria once given out in the prospectus. For the purpose of reference, the relevant observations made by this Court are extracted here below :- “41. Mr.Gupta, however, submitted that the prospectus was subject to alterations or modifications without any prior notice. Therefore, the petitioners cannot claim that the admission can only be based on the basis of the Notification dated 14.5.2003. He further submitted that even otherwise the prospectus is amenable to amendment at any stage before the admission process is completed. He further submitted that no equity could possibly arise in favour of the NRI candidates who were not even required to take the competitive entrance test. Mr.Gupta has also submitted that the proposition of law that the admissions have to be made on the basis of the prospectus issued prior to the test, is contrary to the law laid down by the Supreme Court. He relied on a judgment of the Supreme Court in Charles K.Skaria and ors. v. Dr.C.Mathew and ors. 11 A.I.R. 1980 S.C. 1230. In this case, at one stage, in paragraph 24 of the judgment, the Supreme Court has observed that the “Prospectus is not the scripture”. Thereafter, the learned counsel relied on a judgment of the Supreme Court in the case of Rajiv Kapor and ors. v. State of Haryana, J.T. 2000(3) S.C.635. He also relied on a judgment of the Supreme Court in Kamal Bhatia and others v. State of C.W.P. No.6333 of 2011 -10- Punjab and others, A.I.R. 2001 Supreme Court 117. Learned counsel also relied on Varinder Singh and ors. v. State of Punjab and ors., (1997-3) 117 P.L.R. 494(F.B.) and submitted that if the power to amend is reserved in the Prospectus and the amendment is made to the Prospectus, in pursuance of that power, then no exception can be taken by any party. 42. We are unable to accept the submission made by the learned counsel. The law has been settled by a string of authorities that the Prospectus is law for the academic session to which it relates. 43. ... ... ... 44. Thereafter in the case of Raj Singh v. The Maharshi Dayanand University and others (1994-2) 107 P.L.R.32 (F.B.), another Full Bench of this Court has affirmed the ratio of law laid down in the aforesaid two cases. 45. In the case of Rahul Prabhakar v. Punjab Technical University, Jalandhar and ors., (1997-3) 117 P.L.R. 13 (F.B.), after referring to the aforesaid cases, a Full Bench of this Court has held as follows :- Thus, it is settled law that the provisions contained in the information brochure for the Common Entrance Test, 1997, have the force of law and have to be strictly complied with. No modification can be made by the Court in exercise of powers under Article 226 of the Constitution of India. Whenever a notification calling for applications, fixes date and time within which applications are to be received whether sent through C.W.P. No.6333 of 2011 -11- post or by any other mode that time schedule has to be complied with in letter and spirit. If the application has not reached the Co-ordinator or the competent authority, as the case may be, the same cannot be considered as having been filed in terms of the provisions contained in the prospectus or Information Brochure. Applications filed in violation of the terms of the brochure have only to be rejected. 46. Same proposition of law has been reiterated by Another Full Bench of this Court in the case of Indu Gupta v. Director of Sports, Punjab and another, 1994(4) R.S.J. 667. 47. The ratio of law laid down by a Full Bench of this Court would be binding on the Divison Bench. We are farther of the opinion that the Supreme Court in Rajiv Kapoor's case (supra), has not, in any manner, diluted or altered the ratio of law, that the prospectus is law for the purpose of Academic Sessions to which it relates. In the aforesaid case, after referring to the Full Bench in Amardeep Singh Sahota's case (supra), has observed in paragraph 10 of the judgment as follows :- “10. The High Court in allowing the writ petition purported to follow an earlier judgment of the Full Bench of the very High Court reported in Amardeep Singh Sahota v. State of Punjab, (1993-2) 104 P.L.R. 212 (F.B.). On carefully going through that judgment, we find that the Full Bench did not doubt the competency or authority of the Government to stipulate C.W.P. No.6333 of 2011 -12- procedure for admission relating to courses in professional colleges, particularly in respect of reserved category of seats, but on the other hand, it specifically deprecated the decision to do away with the requirement of minimum marks criteria in respect of seats reserved for sports category and that too by passing orders after the examinations were held under a scheme notified in the prospectus. As a matter of fact the Full Bench, ultimately directed, in that case, that selections for admissions be finalized in the light of the criteria specified in the Government orders already in force and the Prospectus, after ignoring the offending notification introducing a change at a later stage. 48. These observations do not advance the case projected by Mr.Gupta. The Supreme Court noticed that the Full Bench had deprecated the decision to do away with the requirement of minimum marks criteria in respect of the seats reserved for sports category. The Supreme Court came to the conclusion that the Government orders which were under challenge in Rajiv Kapoor's case (supra) did not introduce for the first time either the Constitution of a Selection Committee or evolving the system of interview for adjudging the merits of the candidates in accordance with laid down criteria. The Supreme Court held as follows in paragraph 11 of the judgment : “11. So far as the cases before us are concerned, the High Court, not only held that the Government order C.W.P. No.6333 of 2011 -13- dated 21.5.97 issued after the declaration of the results of the entrance examination held pursuant to the Prospectus issued for 1997, could not be followed but went a step further to hold that except the Prospectus in question nothing else could be looked into and that the Government orders had the effect of varying the criteria laid in the Prospectus in the matter of selections to the seats reserved for HCMS candidates. We are unable to appreciate this reasoning. The Government orders dated 21.5.1997, did not introduce, for the first time, either the constitution of a Selection Committee or evolving the system of interview for adjudging the merits of the candidates in accordance with the laid down criteria. It merely modified the pattern for allotment of marks under various heads from the total marks. Therefore, even if the modified criteria envisaged under the orders dated 21.5.1997 is to be eschewed from consideration, the earlier orders and the criteria laid down therein and the manner of assessment of merit by the Selection Committee after interview, were still required to be complied with and they could not have been given a complete go-bye, as has been done by the High Court.” 49. A perusal of the aforesaid observations clearly shows that the Supreme Court proceeded on the basis that the notification dated 21.5.1997, did not introduce, for the first time, either the constitution of a Selection Committee or C.W.P. No.6333 of 2011 -14- evolving the system of interview for adjudging the merits of the candidates in accordance with the laid down criteria. It merely modified the pattern for allotment of marks under various heads from the total marks. The Supreme Court also observed that even if the modified criteria envisaged under the orders dated 21.5.1997 was not to be taken into consideration, the earlier orders were still required to be complied with and they could not have been given a complete go-bye as has been done by the High Court. This precisely is the ratio of law laid down by this Court in Ravdeep Kaur's case (supra) wherein it has been held that “the admission has to be made on the basis of instructions given in the prospectus as the instruction issued have the force of law.” This ratio was approved in Amardeep Singh Sahota's case (supra). Therefore, we are of the opinion that the ratio of law down by this Court in Amardeep Singh Sahota's case (supra) is in consonance with the law laid down by the Supreme Court in Rajiv Kapoor's case (supra). The aforesaid observations make it clear that the prospectus would include the notifications issued by the Government. In the present case also, the prospectus included notification dated 14.5.2003. The petitioners are claiming that the admissions have to be made on the basis of the aforesaid notification which is part of the prospectus issued for the Academic Sessions 2003-2004. The ratio of the law laid down by the Supreme Court in Rajiv Kapoor's case (supra), has also been considered by a Division Bench of this Court in Kamal Bhatia's case (supra). In this C.W.P. No.6333 of 2011 -15- judgment, the Divison Bench held as follows :- “6. ... Thus, the Supreme Court held that in addition to the prospectus the orders of the Government also governed the admission. It is, therefore, clear that controversy before the Supreme Court was not whether the criteria mentioned in the prospectus could be changed or not but was merely whether the orders of the Government could also be taken into account on an issue which had been left open in the prospectus. The Apex Court had merely disagreed with the findings of the High Court that the admission in question had to be made in terms of the stipulations contained in the prospectus issued by the University and in assuming that the Government had no authority to issue directions laying down any criteria other than the one contained in the prospectus. The Supreme Court had to deal with the issue whether the criteria mentioned in the prospectus could be changed subsequent to the holding of the test or not. 7. In the case in hand the specific concession given in the prospectus to the candidates admitted through LEET-99 is sought to be withdrawn after the entrance test has been already conducted and result thereof declared. This according to us is not permissible.” 50. These observations of the Division Bench make it amply clear that the notification date 25.7.2003, is unenforceable for the Academic Sessions 2003-2004 as all the C.W.P. No.6333 of 2011 -16- candidates have completed the necessary formalities for seeking admission. As a result of the impugned notification, NRI quota candidates will not be able to seek admission in any of the Punjab Colleges. The final dates for making applications for admission has already passed. Therefore, we have no hesitation in holding that the respondents would be estopped from denying the admission to the candidates against the NRI quota, on the basis of the notification dated 25.7.2003. Their claim for admission will have to be governed by the Notification dated 14.5.2003 as incorporated in the Prospectus issued by the Baba Farid University, made available to the students from 26.5.2003. 51. This view of ours also finds support from the Division Bench judgment of this Court in the case of Mamta Bansal v. State of Punjab, 2002(1) S.C.T. 1030. In the aforesaid case also, the respondent-State of Punjab had tried to alter materially and in substance the earlier Notification dated May 25, 2001 which