Dilip Shah v. Gujarat University — 1984 DIGILAW 59 (GUJ)

JUDGMENT : N. H. Bhatt, J. These three petitions, though by three different brilliant students prosecuting their medical education at the post-graduate level, raise common questions, mostly of facts. They were heard together with the concurrence of the learned advocates appearing for both the sides and arc being disposed of by this common judgment. 2. In order to understand the controversies raised in these three petitions, certain basic facts arc required to be noted with precision. The Special Civil Application No. 228 of 1984 is filed by one Dr. Dilip Shah, who had passed his M.B.B.S. examination from Kakatiya Medical College, Andhra Pradesh. He had completed his internship in the calander year 1979 and as he belongs to Gujarat State and was having his permanent residence or property in the City of Ahmedabad, he was naturally desirous of prosecuting his further post-graduate studies in Medicine at Ahmedabad. He had applied to the respondents Nos. 1 and 2, the authorities of Sheth K. M. School of Post-graduate Medicine and Research situated in the premises of the V. S. Hospital, Ahmedabad for the purpose of post-graduate entry both for the Post-graduate degree and for the diploma courses. He was aspiring for studies in Paediatrics, known as Branch V in the University parlance. He was given admission to the Diploma in Paediatrics in the term commencing in January/February 1980. Obviously a diploma would not satisfy an aspiring student and, therefore, he had his eyes on the degree course, which is awarded to successful diploma holders after one year’s further studies. A diploma student has to take up two years’ study course whereas for degree course, three year’s period is provided for. In the V. S. Hospital premises, the municipal authorities run the Medical College upto the degree level and it is known as Smt. N. H. L. Municipal Medical College whereas for the post-graduate studies, the institution is known as Sheth K. M. School of Post-graduate Medicine and Research, Ahmedabad, In order to give admissions to the post-graduate studies, the authorities concerned of the institution had their Rules known as “the Rules for selection of House Medical Officers and Registrars for the hospitals affiliated to Sheth K. M. School of Postgraduate Medicine and Research, Ahmedabad”. They were of the year 1978. They inter alia provided for the method of selection. They were of the year 1978. They inter alia provided for the method of selection. The selection of the House staff (which included studentship also) as per clause 10 of the said Rules is to be made in order of preference as under: (a) Graduates of the Smt. N.H.L. Municipal Medical College; (b) Registered graduates of K. M. School of Post-graduate Medicine and Research; (c) Other graduates of Gujarat University; (d) Graduates of any other University of Gujarat State; (e) Graduates of any other statutory Indian University recognised by the Medical Council of India. These Rules were holding the field. Then there was some amendment made in March 1982, but the order of preference remained the same, as set out herein above. It was reiterated that after Graduates of Smt. N.H.L. Municipal Medical College, the next in order of preference came the post-graduate students of the Sheth K. M. School of Post Graduate-Medicine and Research, who had completed terms of Diploma Courses and they were to be given preference for their respective degree course only, which means students of Paediatrics used to get preference for M. D. degree in Paediatrics and a student pursuing Obstetrics & Gynaecology in Diploma will get preference for M. D. degree in that subject. 3. It so happened that this controversy regarding registration of the students for studentship and housemen/registrars also came up before this High Court and I had an occasion to deal with the question in my judgment in the case of Dr. Vikram A. Shah v. State of Gujarat 24(1) G.L.R. 554. I emphasised in that judgment that registration of the students in particular Branch and giving of posts of Housemen and Registrars are two distinct assignments and registration is the concern of the University. That judgment was required to be given because different Colleges in the State followed different patterns and the University meekly accepted those admissions to those post-graduate courses given by the Colleges and used to register the students as per the decisions of the respective post-graduate institutions. Thereafter came to be framed by the University the Rules for preparation of Merit List for admission to P.G. Medical courses, which are to be found at Annexure E to the Special Civil Application No. 228 of 1984. Thereafter came to be framed by the University the Rules for preparation of Merit List for admission to P.G. Medical courses, which are to be found at Annexure E to the Special Civil Application No. 228 of 1984. The Rules, however, mention as follows : “The selection of students for admission to post-graduate courses, both diploma and degree ones, shall be made by the respective Medical Colleges/post graduate institutions on the basis of merit as per the following order of preference for which purpose Merit Lists of students shall be prepared by the College/Institution concerned in each of the two terms in an academic year as follows: (a) Preference shall be given to the candidates graduating from the respective colleges/institutions from amongst the students of Gujarat University; (b) candidates graduating from any other University in the Gujarat State; and (c) Candidates graduating from any statutory Indian University outside the Gujarat State recognised by the Medical Council of India;” In other words, according to the University guidelines and that too for the posts of diploma and degree courses, a pattern was advised by the University. As far as the institution is concerned, it had a special class provided for giving second preference to its students prosecuting diploma courses. Perhaps being not aware of this situation or through oversight, the University did not deal with this aspect and so to that extent, the Rules made by the University are silent about the preference to be given to the students of that very institution, who are admitted for the diploma courses. I shall examine its effect at the proper stage a little later. 4. Now it is admitted that the two terms are the terms commencing from January and ending on 30th June and 1st July to 31st December. For the purpose of post-graduate studies, academic year for post-graduate studies coincides with the calendar year. In the year 1983 at the end of the first term, that is, on 30-6-1983, the respondents Nos. 4 and 5 of the Special Civil Application No. 228/84 (who were also respondent Nos. 4 and 5 in the petition No. 334/84) came to be given admission by following the “Spot-selection” so called. I shall examine what authorities want to convey by this spot-selection. 4 and 5 of the Special Civil Application No. 228/84 (who were also respondent Nos. 4 and 5 in the petition No. 334/84) came to be given admission by following the “Spot-selection” so called. I shall examine what authorities want to convey by this spot-selection. Certain posts are to be filled in, in that particular term and some of those posts, of course a few of them, fall vacant during the term. So on the last day of that term, the office of the post-graduate institution as if rise from slumber all of a sudden and decide to fill in those posts or vacancies and they say that at that fortuitous moment, whoever readily comes forth is garlanded with admission. This is what they call a spot-admission. This would mean that the authorities, though knowing of certain vacancies occurring in the course of the term, wait till the last day and on the last day pick up anyone who, according to them, accidentally is present on that particular day, at that particular moment, which moment obviously will be uncertain and on him will be bestowed the benefit of this much-coveted registration or rather admission because the University even presently, after laying down the guidelines blissfully gives registration to all those who are admitted by the post-graduate institution, of course on assumption that the admissions are given by the concerned institution as per its guidelines, Annexure E at page 69 of the Special Civil Application No. 228 of 1984. The grievance of this petitioner is that these respondents Nos. 4 and 5 were given admissions at the eleventh hour, though they were not the students of the Gujarat University, but they were the students of the Medical Colleges in Kerala. Some unforeseen event brought them to Ahmedabad. They might have given application for post-graduate studies and the authorities of the respondent-institution state that on that fortuitous day of 30-6-1983, they found these students quite handy and blessed them with admissions. There is one respondent No. 6 in the petition No. 228 of 1984. Having coming to know of the admissions given to the respondents Nos. 4 and 5, he had knocked the doors of this High Court somewhere in the month of September or October 1983 and he was quieted by giving admission in Paediatrics degree course on 29-12-1983. There is one respondent No. 6 in the petition No. 228 of 1984. Having coming to know of the admissions given to the respondents Nos. 4 and 5, he had knocked the doors of this High Court somewhere in the month of September or October 1983 and he was quieted by giving admission in Paediatrics degree course on 29-12-1983. The petitioner of this petition No. 228/84, therefore, challenges the action of giving no opportunity to him, though he was very much alive to the mind of the authorities of that institution in its capacity as a student, who had prosecuted his diploma course in that very institution and if the authorities, if at all, were keen to do some justice to their own students, there was nothing to prevent them from doing so to him even at that eleventh hour, but the spot-picking up of others on 30-6-1983 has been the cause of grievance by him and he says that other things being equal, he being a Medical graduate from University out of Gujarat and an applicant for admission was better placed qua the respondents Nos. 4 and 5, who had no moorings in the institution in question as compared to him. 5. The petitioner of the Special Civil Application No. 334 of 1984 is a student from the B. J. Medical College. She had passed her M.B.B.S. examination from the said B. J. Medical College, Ahmedabad in Ahmedabad itself and she was a student in Diploma in Paediatrics at that College. She had also made an application for degree course in this institution. She was called on two occasions as per pages 19 and 20 of that petition, respectively on 1-6-1983 and 23-9-1983, for being tested for admission in Paediatrics degree course. On 1st June, there was no chance for her as it is assumed and the accidental chance had gone to the respondents Nos. 4 and 5 on 30-6-1983. Even when she was called for the second term on 23-9-1983, she was assumedly given no admission because on the particular day, there may not be any admission available. She also makes a grievance that the respondents Nos. 4 and 5 (who are the respondents Nos. 4 and 5 on 30-6-1983. Even when she was called for the second term on 23-9-1983, she was assumedly given no admission because on the particular day, there may not be any admission available. She also makes a grievance that the respondents Nos. 4 and 5 (who are the respondents Nos. 4 and 5 in the petition No. 228 of 1984 also as noted herein above) could not have been preferred to her, whose candidature was there very much present to the mind of the authorities of the respondent-institution. Only under that so-called spot-selection conducted on 30-6-1983, she was not given any admission and the respondents Nos. 4 and 5, who, for inconceivable reasons, were physically present before the authorities, were given admissions. Her case is that as per the University Rules also, she being a student from the Gujarat University was ranking in the first priority list or first preference category as a student of the Gujarat University itself. She, therefore, challenges the appointment of the respondents Nos. 4 and 5 and also prays that if the admissions of the respondents Nos. 4 and 5 are allowed to stand, at any rate, she, who has been vigilant enough to come forth to this court and exhibited her eagerness to prosecute this degree course, must be given admission. 6. The petitioner of the Special Civil Application No. 335 of 1984 is a student aspiring for the degree course in Obstetrics and Gynaecology. No doubt she had graduated from Kakatiya Medical College, Andhra Pradesh, but she had prosecuted her studies in diploma in that subject in this very institution of the respondents Nos. 1 and 2. Nay, she was so brilliant that she had completed her diploma course in the subject from this institution and was awarded a gold medal for standing first amongst the successful students. She also, therefore, likewise contends that she was entitled to be considered when the respondents nos. 4 and 5 of that petition had come to be given admissions respectively on 30-12-1983 and 30-6-1983 because of that fortuitous circumstance of their being allegedly present on those days fortunate for them. In this petition also the grievance is acutely ventilated against the spot-picking up or spot-selection resorted to by these authorities absolutely capriciously. The respondent No. 4 of this petition is a student from the B. J. Medical College. In this petition also the grievance is acutely ventilated against the spot-picking up or spot-selection resorted to by these authorities absolutely capriciously. The respondent No. 4 of this petition is a student from the B. J. Medical College. He was prosecuting his studies in Diploma in that subject with this institution, but was unfortunate enough to fail twice and secured that diploma only at the third attempt The respondent No. 5 of this petition is one Dr. Jane George, who had no moorings whatsoever with this Institution, either at the graduation level or at the Diploma course level. She had procured her M.B.B.S. degree from Jammu & Kashmir University and she was prosecuting her studies in Diploma in that subject at the M. S. University, Baroda. She, however, got admission for this M.D. course on that last day of the term on 30-6-1983 because of that nefarious spot selection. 7. I produce herewith as Annexure A to this judgment a statement given by Mr. Shelat very fairly and the said Annexure A to the judgment shows the percentage of marks procured by these petitioners and the concerned respondents at the M.B.B.S. level. The last column of that Annexure A shows the date on which these respondents had come to be given admissions by this respondent - institution. 8. The first and foremost question that stares in the face in these three petitions is whether this alleged spot-selection is something which can go down in a society governed by the rule of law. No elaborate arguments are needed to brand it as an absolutely capricious method. If this spot-selection is allowed to have its sway, it would keep the doors open for rank favouritism, rank nepotism and unheard of hostile discrimination. There are no rules, no guidelines, permitting the authorities to fill in the vacancies at the eleventh hour. It is a question how the respondents Nos. 4 and 5 of the first two petitions and the respondents Nos. 4 and 5 of the third petition got hang of the vacancies to be filled in by that method of spot-selection. Hew could they have gone and presented themselves on that day and that too at a particular striking of the clock so as to be readily received and rewarded? Is an institution like the respondent Nos. 1 and 2 not expected to scrutinise the list of expectant candidates? Hew could they have gone and presented themselves on that day and that too at a particular striking of the clock so as to be readily received and rewarded? Is an institution like the respondent Nos. 1 and 2 not expected to scrutinise the list of expectant candidates? I am not prepared to believe that the occasion for vacancies to fill in would arise at that eleventh hour. If the vacancies are there, they must be there in the course of the time and it would be very easy for the authorities of that institution to know well in advance that particular number of vacancies are to be filled in, in that particular subject. As the affidavits-in-reply were silent about this important event, I had asked Mr. Shelat, who appears for the respondents Nos. 1 to 3, to furnish me the information regarding when these vacancies in those respective terms had fallen vacant. Mr. Shelat assures that by tomorrow noon, the requisite detailed information will be made available in respect of various posts or vacancies that had come to fall vacant and occasion for those vacancies. Whatever information is furnished by Mr. Shelat-under his signature and under the signature of the officer of the hospital authorities is to be treated as part of this judgment and it is to be treated as Annexure B to this judgment (It is given and appended on 22-2-1984 before I signed the judgment). 9. The above-mentioned synopsis of the circumstances shows that the respondents Nos. 1 and 2 have adopted a very queer and strange method of filling in the vacancies in the manner that is open to serious doubt and if one calls this method as a surreptitious one, one would be amply justified in brandishing it so. Without examining the cases of other students in these coveted branches of medicine, if such pick and choose method is adopted by the respondents Nos. 1 and 2, as the agents of the Gujarat University, for and on whose behalf they are handling this admission matter, which ultimately gets reflected in the registration by the University, it will be an act of sheer caprice, downright unreasonableness, which is much frowned upon by the Constitution by Article 14. I do not think that even if the vacancies arise, say about a week prior to the closure of the term, the expectant students cannot be intimated. I do not think that even if the vacancies arise, say about a week prior to the closure of the term, the expectant students cannot be intimated. If necessary, they can make a provision that students, whose applications are lying on the dormant file, will be required to attend the office of the respondents Nos. 1 and 2 in the last week regularly from 11.00 a.m. to 5.00 p.m. and I am sure that many aspiring students would very willingly keep a close watch on the possibility of those vacancies being filled in by them, but to do a thing, which has been done, is totally obnoxious to the rule of law, to the ban against discrimination and, therefore, I put on record my strong disapproval and displeasure at the way in which this eleventh hour vacancies have come to be filled in. 10. The question now that arises is: what should be done in the circumstances of the case? Can those respondents in these three petitions, who have got their entry into the institution for post-graduate degree course in shady circumstances, to which they may be direct parties or possibly they may be indirect parties, be allowed to continue their post-graduate degree courses? If the things are allowed to have their legal course, I would certainly quash their admissions as surreptitiously obtained by them and discriminately bestowed on them by the College authorities, but it is well said that justice as far as possible should also be tampered with mercy, particularly when those who knock the doors of the High Court can be compensated without damage to those students, who have made their appearance on the scene in dubious circumstances. Fortunately, a case similar to the one had arisen before the Supreme Court. The three Judges Bench headed by the Chief Justice decided the case of Punjab Engineering College, Chandigarh v. Sanjay Gulati AIR 1983 SC 580 . The Supreme Court in very clear terms examined the question and I would say ,with respect, that I follow what the Supreme Court has observed in that judgment. The Supreme Court observes: “Cases like these in which admissions granted to students in educational institutions are quashed raise a sensitive human issue. It is unquestionably true that the authorities who are charged with the duty of admitting students to educational institutions must act fairly and objectively. The Supreme Court observes: “Cases like these in which admissions granted to students in educational institutions are quashed raise a sensitive human issue. It is unquestionably true that the authorities who are charged with the duty of admitting students to educational institutions must act fairly and objectively. If admissions to these institutions arc made on extraneous considerations and the authorities violate the norms set down by the rules and regulations, a sense of resentment and frustration is bound to be generated in the minds of those unfortunate young students who are wrongly or purposefully left out. Indiscipline in educational institutions is not wholly unconnected with a lack of sense of moral values on the part of the administrators and teachers alike. But the problem which the courts are faced with in these cases is that it is not until a period of six months or a year elapses after the admissions are made that the intervention of the court comes into play. Writ petitions involving a challenge to such admissions are generally taken up by the High Courts as promptly as possible, but even then, students who are wrongly admitted finish one or two semesters of the course by the time the decision of the High Court is pronounced. ... This has virtually come to mean that one must get into an educational institution by means, fair or foul: Once you are in, no one will put you out. Law’s delays work their wonders in such diverse fashions”. 11. Fortunately or unfortunately, these petitions could be taken up peremptorily, but the respondents, it appears, could keep concealed their admissions for some time or at any rate the students who have come forth boldly and bravely to challenge the respondents’ admissions took some time in collecting facts and then moving this court. By the time these petitions are heard today those respondents have become saddled so to say in their vacancies. The respondent No 4 of the first two petitions is there right from 30-6-1983 and he is admitted to the first term of that academic year 1983. So is the case of the respondent No. 5 of the third petition, namely, the special civil application No 335 of 1984. The case of Dr. The respondent No 4 of the first two petitions is there right from 30-6-1983 and he is admitted to the first term of that academic year 1983. So is the case of the respondent No. 5 of the third petition, namely, the special civil application No 335 of 1984. The case of Dr. Gohil, the respondent No. 4 of the special civil application No. 335 of 1984, however, stands on a different footing because he was fortunate enough to be picked up in the spot-selection on 30-12-1983, that is, about one month and 22 days ago, but at the same time when I am condoning this lapse on the part of the administration in respect of other respondents, I see no reason why he also should not reap the benefit of that lapses, if not dereliction on the part of the respondents Nos. 1 and 2. I, therefore, would not upset their admissions, though there is a good case for doing so. I, however, would give a direction to the authorities, namely, the respondents Nos. 1 and 2 and also the respondent No. 3 that henceforth they shall not resort to this spot-selection method, which is grossly arbitrary and open to serious suspicion about even integrity. 12. This takes me to the cases of these petitioners. What should be done qua them? In order to frustrate their prayers, it was alleged by the respondents Nos. 1 and 2 that the court should now give a direction that the respondents Nos. 1 and 2 should start examining de novo the cases of all the eligible candidates in the light of the guidelines. I do not think that I should resort to that exercise to be undertaken by the respondents Nos. 1 and 2. The students who have not bothered about so far in respect of their admission and have allowed the things to lie down and settled, cannot now be heard to say that they also would have come forth, like these petitioners, to have their chances examined and then benefits conferred on them, if it is otherwise open to them. It is said that eternal vigilance is the price of democracy. It is said that eternal vigilance is the price of democracy. A judicial notice can be taken of the fact that the students seeking medical education arc proverbially vigilant and whenever such occasion arises, they boldly come forth to this Court to set right the wrongs done by the authorities to them or to the student world. Every year this High Court is having good number of petitions from medical students and this is clearly the proof of the vigil with which these students handle their affairs and it is again the proof of their keenness for those degree courses. Particularly, the petitioner of the special civil application No. 335 of 1984 has made her case amply established by showing that she stood first in the diploma examination and even captured the gold medal reserved for the post. Why should such students, who are vigilant enough to ventilate their rights, be allowed to suffer on the ground that possibly some better-suited persons also might be there in the field? I say that those who have missed the bus should thank their stars for their dereliction or indifference. These petitioners arc, therefore, required to be admitted to the respective courses of their choice for which they are eligible as per the University Rules and a direction is issued to the respondents Nos. 1 to 3 that on and from the term commencing from 1-7-1983 the petitioners of the first two petitions, viz, 228/84 and 334/84 shall be admitted to their respective courses, but whether the terms can be granted or not is for the University to deal with. For want of attendance, the term may not be granted, but at any rate they should secure their admissions. If necessary, the University is directed that they shall register them as the students lawfully admitted to the institution of the respondents Nos. 1 and 2 under orders of this court. I am not oblivious of the fact that ordinarily one student per one Professor in the subject determines the total strength of the students registered in that particular branch of study, but peremptory situation calls for peremptory treatment. When the authorities bungled and the result is the marring of the prospects of such students as these petitioners, such ordinary working rule must give its way. When the authorities bungled and the result is the marring of the prospects of such students as these petitioners, such ordinary working rule must give its way. One Professor may be able to guide more than one student and so total strength of students to be admitted to a particular course need not necessarily and invariably be linked up with the ratio of one student one Professor. I, therefore, direct that the petitioners of the first two petitions will be given admission to their courses on and from 1-7-1983 with registration granted to them by the University in those subjects for M.D. degree course. The petitioner of the Special Civil Application No. 335 of 1984 is to be given admission from 1-1-1984 on the lines on which the respondent No. 4 is admitted. She is not given admission from 1-7-1983, as she completed her two years’ diploma course in October 1983. Therefore, she is to be given admission on and from 1-1-1984. Other things will be dealt with in accordance with law. All the three petitions are accordingly allowed. Rule is made absolute with no order as to costs in all these three matters. 13. Before I close this judgment, I would like to mention one argument, which has escaped my notice. It is stated that the University’s guidelines at page 69 of the Special Civil Application No. 228 of 1984 do not refer to the students of the respondent No. 1-institution. It is true that it is so, but at the same time there is no banor bar in considering the cases of these petitioners under clause (c), if not under clauses (a) or (b). Other things being equal, if the respondents Nos. 1 and 2 are required to prefer their students, meaning thereby the students who have prosecuted studies in the diploma courses at their institution qua the other students of that particular group under clause (a) or (b), there is nothing obnoxious to the University guidelines. So, this possible argument cannot be allowed to have any sway to deny these petitioners the legitimately claimed admissions to the post-graduate course of their choice, to which they are held to be entitled to. Sr. no. Name Qualification and year of passing Percentage of marks obtained Date of admission 1 Dr. Darshana Modi M.B.B.S. Oct. ’78 B. J. Medical College D.Ped. from B.J.M.C. 52.60% - 2 Dr. Sr. no. Name Qualification and year of passing Percentage of marks obtained Date of admission 1 Dr. Darshana Modi M.B.B.S. Oct. ’78 B. J. Medical College D.Ped. from B.J.M.C. 52.60% - 2 Dr. Dilip U. Shah M.B.B.S. from Kakataya Uni. in 1978 D.Ped. from K. M. School 59.50% - 3 Dr. Kuncheria P. K. Kerala Uni. 63.43% 30.6.83 4 Dr. James K. Francis Kerala Uni. 58.60% 30.6.83 5 Dr. Narendra B. Trivedi M.B.B.S. October, 1978 Saurashtra 29.12.83 6 Dr. Harita R. Trivedi M.B.B.S. Oct. ’79 from Kakatya Uni. D.G.Q. in October, 1983 from K. M. School 62.80% 7 D. L. Gohel M.B.B.S. ’78 3rd attempt 56.50% Tran. to M.D. III on 31-12-1983 8 Dr. Jane George M.B.B.S. ’79 D.G.O. ’81 50.00% 30.6.83 Annexure - B IN THE HIGH COURT OF GUJARAT AT AHMEDABAD Dist. Ahmedabad City Special Civil Application No. 228 of 1984 Dilip Shah ..Petitioner v. Selection Committee of V. S. Hospital ... Respondent M.D. Paediatrics Dr. Amit V. Dave died on 12th April, 1983 Filled in on 30th June, 1983 Dr. Anil J. Desai vacancy created because of his not joining. Filled in on 30th June, 1983 Gynaecology One Registration available on 28th May, 1983 and another available on 31st August, 1983 Sd /- Advocate for the Respondent No. 1 (ISS) Rule made absolute.