SCA/8558/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8558 of 2008 For Approval and Signature: HON'BLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH AND HON”BLE MR.JUSTICE D.H.WAGHELA ================================================= 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 SHAIL ABHAY VASAVADA - Petitioner(s) Versus CHAIRMAN & 2 - Respondent(s) ================================================= Appearance : MR ND NANAVATI, SR. ADVOCATE with MR PR NANAVATI for Petitioner(s) : 1, MR SHIVANG SHUKHLA AGP for Respondent(s) : 2. MRS VD NANAVATI for Respondent(s) : 1, MR SN SHELAT, SR. ADVOCATE with MR MITUL K SHELAT for Respondent(s) : 3, ================================================= CORAM : HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH and HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 18/07/2008 ORAL JUDGMENT (Per : HON”BLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH) In this petition under Article 226 of the Constitution the petitioner who secured admission to the Post Graduate Diploma SCA/8558/2008 2/7 JUDGMENT Course in Ophthalmology has prayed for a writ of mandamus to direct respondent No. 1 – Chairman, Post Graduate Admission Committee to consider the petitioner's case for transfer to the vacant seat in the Post Graduate Degree Course in Ophthalmology at the BJ Medical College, Ahmedabad. 2. As averred in the petition, the petitioner passed his MBBS Examination from Gujarat University in February, 2007. The petitioner also appeared at the open entrance test conducted in January, 2008 for admission to Post Graduate Courses. In the merit list published in the first week of April, 2008, the petitioner figured at Sr No. 101. The petitioner applied for admission to the Post Graduate Degree Course in Ophthalmology and also to the Diploma Course in Ophthalmology. The first counselling commenced on 10.4.2008. The petitioner was offered admission in MS Surgery, MD Anesthesia and other Post Graduate Degree Courses in non- clinical subjects. Since the petitioner was desirous of pursuing further education in the faculty of Ophthalmology consistent with the tradition in his family, the petitioner opted for Diploma in Ophthalmology in spite of the fact that he was offered admission in other Degree Courses. 3. The petitioner's case is that out of 12 seats in the Degree Course in Ophthalmology at the BJ Medical College, 6 seats were to be filled in under the All India quota and out of the 6 seats available for the State quota, 3 seats were reserved and 3 seats were open merit seats. One student who was admitted against the All India quota seat did not join and as a result one open merit seat in the All India quota fell vacant on 16.6.2008 and stood converted into a State quota seat. The petitioner, therefore, requested respondent No. 1 – Chairman, Post Graduate Admission Committee to admit the petitioner against the vacant seat by transferring the petitioner from the Diploma Course in Ophthalmology to the Degree Course in Ophthalmology. Since the petitioner's request was not acceded to, SCA/8558/2008 3/7 JUDGMENT this petition came to be filed on 24.6.2008. 4. In response to the notice issued by this Court, affidavits have been filed by respondent No.1 - the authority granting admissions to the Post Graduate Medical Courses and also on behalf of the Medical Council of India. The stand of the said authorities is that that the petitioner was at Sr No. 101 of the merit list. At the first counselling, the students at Sr Nos. 49, 66 and 71 secured admissions to the Degree Course in Opthalmology against the open merit seats in the State quota at the BJ Medical College, Ahmedabad and the three other seats were filled in by the reserved category students. Similarly, admissions to the Degree Course in Opthalmology were secured by the open merit students at Sr Nos. 10 and 36 against the open merit seats at the NHL Municipal Medical College, Ahmedabad. At the first counselling, the petitioner opted for Diploma Course in Ophthalmology in the open merit category. It is the case of the authorities, and not disputed by the petitioner, that when the second counselling took place on 10.6.2008 no open merit seats were available in the Degree Course in Ophthalmology either at the BJ Medical College, Ahmedabad or at the NHL Municipal Medical College, Ahmedabad. The case of the authorities is that as per the Medical Council of India Regulations and the judgment of the Hon'ble Supreme Court in Mridul Dhar vs Union of India, (2005) 2 SCC 65, 31st May of the relevant year is the last date upto which students can be admitted against vacancies arising due to any reason. It is pointed out that this year, by order dated 2.5.2008 in IA No. 17 of 2008 in Writ Petition (Civil) No. 157 of 2005 (Amit Gupta vs. Union of India), the Hon'ble Supreme Court has extended the said deadline upto 10th June, 2008 and, therefore, the respondent authorities also conducted the second round of counselling of admission on 10th SCA/8558/2008 4/7 JUDGMENT June, 2008. Since one student admitted to the open merit seat in the All India quota gave up the seat on 16.6.2008, the seat cannot now be filled in because that would require a third round of counselling which is not permissible. It is also submitted that considering the petitioner's case for admission to the Degree Course in Ophthalmology would amount to permitting the petitioner to jump the queue because the last admission given to the open merit student in the State quota for Degree Course in Ophthalmology stopped at Sr No. 71 whereas the petitioner is at Sr No. 101 of the said list. Reliance is also placed upon the decision of the Madhya Pradesh High Court in support of the contention that transfer from Diploma Course to Degree Course in the same subject is also not permissible. 5. Mr ND Nanavati with Mr Premal Nanavati, learned counsel for the petitioner has submitted that while the deadline of 31st May/10th June, 2008 may be held out against holding the third round of general counselling which would unsettle the admissions already granted, there could not be any objection to the authorities considering the petitioner's case for transferring the petitioner from the Diploma Course in Ophthalmology to the Degree Course in same subject because there will be no difference in syllabus and, therefore, no dislocation. It is submitted that the syllabus for the two year Diploma Course and the syllabus for the three year Degree Course in Ophthalmology have three common papers as under :- SCA/8558/2008 5/7 JUDGMENT Diploma (Optho) (3 papers) ------------------------------ M.S. (Optho) (4 papers) ----------------------------------- (i) Optics & Refraction & Applied Anatomy (i) Optics & Refraction & Applied Anatomy (ii) Opthemic Medicine & Surgery (ii) Opthemic Medicine & Surgery (iii) General Medicine & Surgery (iii) General Medicine & Surgery (iv) -- (iv) Recent Advances in Ophthalmology It is submitted that if the seat in All India quota which fell vacant on 16.6.2008 is not filled in, the seat will lapse and thus wasted without any benefit to any student or any institution,. It is also submitted that as far as the students admitted to the Diploma Course in Ophthalmology are concerned, the petitioner is the most meritorious and that consideration of the petitioner's case for transfer from Diploma Course to Degree Course in Opthalmology will not override the claim of a more meritorious student from out of the students admitted to the Diploma Course in Ophthalmology. 6. Mr SN Shelat, learned counsel with Ms Vaibhavi Nanavati and Mr Mitul Shelat has submitted that acceding to the petitioner's request would amount to back door entry of a diploma student into a Degree Course by overriding the claim of more meritorious students from Sr Nos. 72 to 100 in the merit list. It is submitted that inviting all the students from Sr No. 72 to 100 would require third round of counselling which is prohibited by the MCI Regulations as well as the decision of the Apex Court in Mridul Dhar's case and such a course of action would unsettle the SCA/8558/2008 6/7 JUDGMENT admissions already secured by the students in various Post Graduate Courses. It is also submitted that extension of the deadline in Amit Gupta's case (supra) was done in exercise of the power of the Apex Court under Article 142 of the Constitution. 7. Having heard the learned counsel for the parties, the Court finds substance in the objection raised on behalf of the respondents that considering the case of the petitioner, who is at Sr No. 101 of the merit list, would involve overriding the claim of more meritorious students from Sr No. 72 to 100 on the same merit list. At the same time, in view of the deadline set by the MCI Regulations and the decision of the Apex Court in Mridul Dhar's case (supra), which do not permit any further counselling beyond 31st May, it will not be possible for this Court to issue any direction to the respondents to go for the third round of counselling. The deadline for the second counselling was extended upto 10th June, 2008 by the aforesaid order dated 2nd May 2008 of the Hon'ble Supreme Court, but the extension was acted upon and it is not open to this Court to direct the respondents to go for the third round of counselling. 8. It is true that in the facts and circumstances of the case, and particularly those stated in paragraph 2-II of the petition and referred to in paragraph 2 of this judgment, the petitioner's request may not seem unreasonable as otherwise one open merit seat in the Degree Course in Opthalmology will lapse and, therefore, be wasted. But that is the consequence of the deadline set by the MCI Regulations, which is held to be mandatory in the decisions of the Apex Court in Madhu Singh's case and in Mridul Dhar's case. In cases where a student has forgone admissions to other Degree Courses and preferred to pursue a Diploma Course in a particular subject, whether a seat in that Degree course becoming vacant after second counselling should be made available to such a diploma student without dislocating the admissions granted in SCA/8558/2008 7/7 JUDGMENT other Degree courses is a matter which may be appropriately addressed by the Rule making authority, like the MCI and/or in exercise of constitutional power to pass such order as is necessary for doing complete justice in a matter. However, if any direction were to be given by this Court to the respondent – authorities to accept the petitioner's request for transfer from Diploma Course to Degree Course, it would have the tendency of being treated as a precedent even in other cases where a student may have obtained admission to a Diploma Course without any possibility of admission to any degree course and more meritorious students will be left out of consideration. 9. In view of the above discussion, the reliefs prayed for in the petition are not granted. Rule is discharged with no order as to costs. [M.S. SHAH, Actg. CJ.] [D.H. WAGHELA, J.] sundar/-