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2000 DIGILAW 232 (RAJ)

State of Rajasthan v. Miss Sharda Meel

2000-02-22

J.C.VERMA, SHIVARAJ V.PATIL

body2000
JUDGMENT 1. - Heard learned counsel for the parties. 2. The respondent No. 1 herein in this appeal, filed S.B. Civil Writ Petition No. 5424/97 with a prayer to quash the order dated 2.9.97 (Ex.8) and to direct the respondents in the writ petition to admit her in M.D. Course (Chest and Tuberculosis) on the basis of her merit or in other speciality as per the Ordinance No. 278-E of the University of Rajasthan; further she was permitted to amend the writ petition seeking a prayer to strike down the said Ordinance 278-E being ultra-vires of Article 14 of the Constitution. She passed MBBS course from Chandigarh and not from any college coming within the purview of University of Rajasthan. She applied for pre-PG Entance Examination for the year 1997 in Rajasthan. She was allowed to take the said entrance examination; her result was declared on 25th May 1997 placing her at SI.No. 181 on the basis of merit. During the interview, form the documents it was found that she had passed her MBBS examination from Chandigarh and, therefore, she was not eligible for admission in RG. course in view of the said Ordinance 278-E (iii) of University of Rajasthan. 3. The learned Single Judge on 1.10.97, ordered notices to the respondents to show cause as to why the writ petition may not be admitted and disposed of. Notice on the stay application also was issued. After the service of notice on the respondents was complete, the writ petition was ordered to be listed on 22.2.98 for final disposal. After few adjournments, on 19.2.98 after some arguments it transpired that an additional ground was necessary to be taken in the writ petition. Hence, the writ petition was adjourned by giving some time. Thereafter, an amendment application was filed raising an additional ground to strike down aforementioned Ordinance 278-E, although, originally in the writ petition, the validity of the said Ordinance had not been challenged. The amendment application was allowed to raise the said additional ground. Thereafter, after few dates of hearing, on 22.7.98, for the first time, interim order was passed to keep one seat vacant for the admission into PG course for the session 1997 and that it will be filled up after the disposal of the writ petition. The amendment application was allowed to raise the said additional ground. Thereafter, after few dates of hearing, on 22.7.98, for the first time, interim order was passed to keep one seat vacant for the admission into PG course for the session 1997 and that it will be filled up after the disposal of the writ petition. The writ petition was finally disposed of by the learned Single Judge on 23.4.99 allowing it and stating that the writ petitioner is entitled to a seat in M.D. (Tuberculosis) or any other subject wherever she is found fit. The respondents No. 1 and 2 in the writ petition, aggrieved by the said order of the learned Single Judge allowing writ petition and granting relief to the writ petitioner, have filed this appeal. 4. Since the learned Single Judge, in the order under appeal, has narrated the facts in sufficient details, we do not think it necessary to repeat them again, particularly in view of a narrow controversy that arises for consideration in the matter of interpretation of Ordinance 278-E and its validity. For convenience, we refer to the parties in this order as they were arrayed in the writ petition. The petitioner was denied admission to RG. course by the respondents on the ground that she had not passed MBBS degree from Rajasthan University and she is not bonafide resident of Rajasthan in terms of Ordinance 278-E(iii), the learned Single Judge accepted the case of the writ petitioner on the ground that there was discrimination between married and un-married girls on the ground of their domicile. While on behalf of the petitioner it was contended that a proper interpretation of Ordinance 278-E would entitle the petitioner to get admission and even otherwise, the said Ordinance was ultra-vires; it was contended on behalf of the respondents that the interpretation given by the respondents to the said Ordinance was perfectly valid and justified and there is no ground to hold that the said Ordinance was invalid or ultra-vires of Art. 14 of the Constitution. The learned Single Judge accepted the arguments advanced on behalf of the petitioner and allowed the writ petition as already stated above. The learned Single Judge accepted the arguments advanced on behalf of the petitioner and allowed the writ petition as already stated above. In this back-ground, it is necessary to extract the said Ordinance 278-E to appreciate the rival contentions which reads : "O. 278-E, Eligibility for admission ; All candidates seeking admission to M.D. and M.S. Courses should have obtained registration i.e. they must have completed satisfactorily one year's compulsory rotating internship after passing the final M.B.B.S. Examination and must have registration with the Rajasthan Medical Council, on or before the initial date of selection. (i) For seats reserved at sub-clause (a) of Clause-ll the Eligibility shall be laid down by the Government of India from time to time. (ii) For seats reserved for in service candidates as referred at clause (ll-b) the candidates must have served the State i.e. the Govt, of Rajasthan continuously for more than 3 years and should be below the age of 45 years and should have completed atleast 3 years of service in the rural area of the State of Rajasthan. Rural area is defined as a Rural area where Rural allowance is admissible to the doctors and should have actually served in the rural area. No application form for Pre-RG. entrance examination alongwith certificate of Rural experience shall be counted under the signatures of Director of Medical & Health Services to the University. No application of in service candidate shall be accepted by the University. (iii) For seats not reserved in the sub-clauses (a) and (c) of Clause-ll, candidates must have passed final MBBS Examination from the University of Rajasthan or the candidates should have been nominee of the Rajasthan Government and was admitted to the M.B.B.S. course as State nominee in a Medical College outside the State of Rajasthan and has obtained the M.B.B.S. Degree from a Medical College from outside the State of Rajasthan, where they secured admission on All India Competitive basis. Besides, those lady doctor/spouse who are not born in Rajasthan and because of their marriage and they have become bonafide residents of Rajasthan, shall also be eligible, subject to the condition that they have passed their M.B.B.S. Examination from a Medical College, recognised by Medical Council of India. (iv) In case the candidate required eligibility after passing Pre-RG. Besides, those lady doctor/spouse who are not born in Rajasthan and because of their marriage and they have become bonafide residents of Rajasthan, shall also be eligible, subject to the condition that they have passed their M.B.B.S. Examination from a Medical College, recognised by Medical Council of India. (iv) In case the candidate required eligibility after passing Pre-RG. Examination in the subsequent year for admission in other speciality he/she have to produce (i) Cancellation of Registration from the University of Rajasthan (ii) Certificate of acceptance of his/her resignation from the Head of the Institution, with the application of choice of subject and place before admission." 5. Learned counsel for the appellants urged- (i) In terms of the above extracted Ordinance it is clear that the petitioner was not eligible for admission in RG. Medical Course; (ii) initially, there was no challenge to the validity of the Ordinance. By subsequent amendment the validity of the same was challenged on untenable grounds; the classification of the candidates for admission was made on rational basis and there was nothing unreasonable or arbitrary as sought to be made out by the petitioner; (iii) the learned Single Judge committed error in granting relief to the writ petitioner without declaring the Ordinance 278-E (iii) as either invalid or ultra vires, and (iv) the direction given by the learned Single Judge to admit the writ petitioner to M.D. Course by the impugned order dated. 23.4.99 is not at all justified, inasmuch as, the admission relates to the year 1997-98. The writ petition was filed in September, 1997 and no interim order had been granted till 22.7.98, on which date one seat was ordered to be kept vacant for the admission into P.G. Course for the session 1997; it is not a case of total reservation of all the available seats based on domicile. 6. Learned counsel for the respondent No. 1 (writ petitioner) argued in support and justification of the order of the learned Single Judge and reiterated the submissions similar to those made before the learned Single Judge. He submitted that the classification made under the said Ordinance in regard to married and unmarried girls was arbitrary and it had no purpose or object to serve. He submitted that the classification made under the said Ordinance in regard to married and unmarried girls was arbitrary and it had no purpose or object to serve. Learned counsel for respondent No. 2 (University) supported the arguments advanced on behalf of the appellants and submitted that there is nothing wrong with the Ordinance, in asmuchas, the object of the Ordinance is to serve the interest of the State of Rajasthan, 7. We have carefully considered the submissions made by the learned counsel for the parties. Ordinance 278-E (iii) relates to eligibility for admission in respect of seats not reserved in the sub-clauses (a) and (c) of Clause (II). Such candidates (i) must have passed final MBBS examination from the University of Rajasthan, or (ii) the candidate should have been nominee of the Rajasthan Government and admitted to the MBBS course as State nominee in a Medical College outside the State of Rajasthan and has obtained the MBBS degree from a Medical College from out-side State of Rajasthan, where they secured admission on All India Competitive basis, besides (iii) those lady Doctors/spouse who are not born in Rajasthan and because of their marriage they have become bona fide residents of Rajasthan, shall also be eligible subject to the condition that they have passed their MBBS Examination from Medical College recognised by the Medical Council of India. As far as the case in hand is concerned, on admitted facts, it is clear that the case of the petitioner does not fall within the purview of Ordinance 278-E (iii). The petitioner has not passed MBBS examination from the University of Rajasthan. She also does not claim that she was nominee of the Rajasthan Government and was admitted to the MBBS course in a Medical College out-side the State of Rajasthan and has obtained the MBBS degree from a Medical College out-side the State of Rajasthan having secured admission on All India Competitive basis. It is not also her case that she is married and has become a bona fide resident of Rajasthan. 8. It is not also her case that she is married and has become a bona fide resident of Rajasthan. 8. The learned Single Judge, as can be seen from the order under appeal, was of the opinion that a girl student migrating to Rajasthan by virtue of marriage and an un-married girl repatriating to Rajasthan by virtue of her parents retirement, will have to be placed into one and the same category; two yard-sticks cannot be applied for married and un-married girls. To support this view, the learned Single Judge has referred to the case of Meenakshi Malik v. University of Delhi and others, AIR 1989 S.C. 1568 We may state here itself that case of Meenakshi Malik has no application to the facts of the case in hand, particularly in the light of the specific Ordinance 278-E of Rajasthan University. In the case of Meenakshi Malik, although, she had studied in Delhi all through, she was held in-eligible for admission on the ground that last two years of study in the school before seeking admission in the Medical College, was not in Delhi; she had been compelled to leave India for a foreign country by reason of the posting of her father by the Government to a foreign country. Under the circumstances, the Hon'ble Apex Court held that the condition in prescription of qualification for admission to a Medical College in Delhi providing the last two years of education to be in a school in Delhi should be construed as not applicable to students who had to leave India on account of their parents or the parent being posted to a foreign country by the Government. That is not the case of the petitioner. Added to this, we are of the view that there is neither arbitrariness nor unreasonableness in the classification of lady Doctor/spouse those who are not born in Rajasthan and because of their marriage they have become bona fide residents of Rajasthan and the unmarried girls repatriating to Rajasthan. The object in making such a classification appears to be that in case of lady Doctor/spouse, though not born in Rajasthan and because of their marriage they become bona fide residents of Rajasthan are made eligible for admission to PG. Medical Course in respect to a particular category and not against all seats, is to see that after completion of RG. Medical Course in respect to a particular category and not against all seats, is to see that after completion of RG. course their services are available to the people of the State of Rajasthan. After the marriage, if they bonafidely reside in Rajasthan and complete the RG. Course, naturally they would serve the people of Rajasthan. The same thing cannot be said In respect of unmarried students who have completed MBBS degree from University other than the University of Rajasthan. We are not able to find any good reason based on material facts to say that the interpretation placed by the learned Single Judge on the Ordinance 278-E is correct and sustainable. From the plain language of the said Ordinance, in our view, there is no scope to say that unmarried girls are also eligible for admission by virtue of their migration to the State of Rajasthan because of the retirement of their parents from other States. 9. The Hon'ble Supreme Court in Anand Madaan v. State of Haryana and others, AIR 1995 S.C. 955 has upheld the validity of criteria requiring that candidate should have studied their 10th, 10 + 1 and 10+2 classes as regular candidates In recognised institution of State itself relying on its earlier decision in the case of Dinesh Kumar v. Moti Lal Nehru Medical College, Allahabad, AIR 1986 S.C. 1877 . In the present case also Ordinance 278-E (iii) relates to only a particular category of seats not in respect of all the seats available. 10. In Sanjay Ahlawat v. Maharishi Dayanand University Rohtak and others, 1995 (2) S.C.C. 762 , the Hon'ble Supreme Court upheld the giving of weightage of ten extra marks to Graduates from the only existing Medical College in the State of Haryana so as to make their services available in the State in view of the dearth of medical facility there, holding that it was not violative of Art. 14 of the Constitution. This case supports the stand of the appellant, particularly in relation to giving admission into RG. medical course so that the Doctors after RG. course could serve the people of State of Rajasthan. 11. This case supports the stand of the appellant, particularly in relation to giving admission into RG. medical course so that the Doctors after RG. course could serve the people of State of Rajasthan. 11. Yet, one more aspect remains to be examined is, whether the direction given by the learned Single Judge that the petitioner should be given a seat in the M.D. (Chest and Tuberculosis) course or in any other subject, as late as on 23.4.99, the date on which the writ petition was disposed of. The admission to P.G. Medical course of the petitioner was filed in September 1997; initially, no interim order was passed; for the first time on 22.7.98, interim order was passed directing the respondents to keep one seat vacant for admission to P.G. course for the Sessions, 1997. Further, there may be several such candidates placed similar to the petitioner, may be some of them were more meritorious, looking to the Ordinance 278-E, they could not get admission. Such candidates, might not have approached the Court. Under these circumstances, the direction given by the learned Single Judge on 23.4.99 by the order under appeal when the order dated 22.7.98 one seat was directed to be kept vacant for admission into P.G. course for the Session 1997, cannot be sustained. 12. However, it is advisable to the State Government to consider so as to modify the relevant statute' ordinance so as to include those candidates who have their origin from Rajasthan; or residents of Rajasthan, but had to move out because of the reason that their parents were compelled to stay out of the Rajasthan due to the exigency of their service. 13. In the result, for the reasons stated and discussion made herein-above, this appeal is entitled to succeed. Hence, it is allowed, the order of the learned Single Judge under appeal is set-aside. The writ petition is dismissed. No costs.Appeal Allowed Judgment of Single Judge Set-Aside. *******