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2002 DIGILAW 288 (RAJ)

State of Rajasthan v. Dr. Jagdish Prasad Goyal

2002-02-04

K.S.RATHORE, M.R.CALLA

body2002
JUDGMENT 1. - In this group of appeals common judgment and order dated 2.3.2001 passed by the learned Single Judge in S.B. Civil Writ Petition Nos. 3804/2000, 5170/2000, 3935/2000 and the order dated 18.10.2000 passed in S.B. Civil Writ Petition No. 3258/2000 are under challenge. Whereas the grievances are based on identical facts and common questions are involved, we propose to decide these four appeals by this common judgment and order as under: 2. The original petitioners medical graduates holding degree of MBBS appeared in the Pre P.G. Test for admission in various specialities for the. courses of M.S. & M.D. in the year 2000. That the admissions to these seats are governed under the Ordinance 278-E and 278-G of the University of Rajasthan and the instructions contained in the handbook were issued by the University of Rajasthan for guidance of the candidates. After the declaration of the result of Pre P.G. course, a merit list was declared and the candidates were offered subjects for admission in two year PG. course on 4.5.2000. 3. When the matters were argued before us, it was noticed that the ordinance as has been reproduced in the body of the common judgment and order dated 2.3.2001 was not the correct reproduction of the ordinance 278-E. Mr. Katta learned counsel appearing for the University was, therefore, directed to produce before us the ordinance as was in force in the year when the admissions in question were accorded. Mr. Katta has produced before us Notification Number-3 issued by the University of Rajasthan, Jaipur which says that the Syndicate has approved the amendments in Ordinances and Regulations of the University Hand Book Part-II as its meeting held on (i) 28th June/1st, 2nd/21st July/9th August, 1997; (ii) 20/29th Sept. 1997 and (iii) 23rd October, 1997. As per this amendment in Ordinance 278-E clauses and sub-clauses with regard to (III) Selection of Candidates at No. 6 Allotment of Seats-Last week of April is to be read as under: (xiv) The key of the answers of the Rajasthan University Pre-PG. Entrance Test papers will be published in the News-papers. The candidates will be allowed to submit an application on the prescribed form along with charges fixed by the University for re-valuation within 15 days of the publication of the key. Entrance Test papers will be published in the News-papers. The candidates will be allowed to submit an application on the prescribed form along with charges fixed by the University for re-valuation within 15 days of the publication of the key. The revaluation result should be announced by the University before the meeting of the Central P.G. Admission Board is held for selection of the candidates for MD/MS Courses. (xv) The selection will be done by a Central P.G. Admission Board, consisting of all the Principals of the State Medical Colleges with Principal, SMS Medical College, Jaipur, as its Convener. The Central P.G. Admission Board shall. interview the candidates and allocate them college and subject, strictly on the basis of Merit-cum-Preference list, given in writing by the students on or before the scheduled date. The candidate will be allowed to withdraw and submit a fresh preference list in writing at the time of his/her interview and not late in any circumstances. The presence of candidate or his/her authorised representative at interview is essential. (xvi) The candidate is entitled for reshuffle only if he/she joins and continue to attend the allotted P.G. Course, failing which, his/her selection will be terminated. If a candidate has furnished the choice of 'Non-recognised' subject and joins the course, he/she shall not be allowed to change the subject except in reshuffle. (xvii) The vacancies due to not joining of the candidates within the stipulated time, shall be filled by reshuffling by the Central P.G. Admission Board on the basis of merit- cum-preference list already submitted; and the resultant vacancies or such vacancies which can-not be filled by reshuffling shall be filled by taking candidates from the Waiting List on 'Merit-cum-Preference list' given in writing at the time of his/her interview, at the earliest, but not latter than two months from the initial selection. "No Admission shall be made after two months from the date of initial selection, even if any vacancy is left unfilled or any vacancy occurs subsequently. Note:-The period of training will be 3 years in that particular subject/speciality. Increase in the period of training due to reshuffle will be at candidate's risk. 4. This is the Ordinance which was to be applied. 5. Learned counsel for the respondents Mr. R.P. Garg and Mr. Note:-The period of training will be 3 years in that particular subject/speciality. Increase in the period of training due to reshuffle will be at candidate's risk. 4. This is the Ordinance which was to be applied. 5. Learned counsel for the respondents Mr. R.P. Garg and Mr. Ajay Rastogi have stated before us that at the time when the application forms were given to the candidates in the year 2000 the University of Rajasthan, Jaipur had given the instructions for the guidance of the candidates regarding pre-PG. Entrance Examination, 2000 for admission in MD/MS/Diploma Courses and in this printed guidelines which was supplied to all the candidates of examination 2000 under the heading 'Selection of Candidates' at No. 6, the crucial portion as was mentioned is as under: (xvii) The vacancies due to not joining of the candidates within the stipulated time, shall be filled by reshuffling by the Central P.G. Admission Board on the basis of merit- cum-preference list already submitted; and the resultant vacancies or such vacancies which cannot be filled by reshuffling shall be filled by taking candidates from the waiting List on 'Merit cum-Preference list' given in writing at the time of his/her interview, at the earliest, but not later than two months from the initial selection. No Admission shall be made after two months from the date of initial selection, even if any vacancy is left unfilled or any vacancy occurs subsequently. 6. While it is not in 'dispute that the respondents herein i.e. all the four original petitioners have been given some specialities and they have been prosecuting the courses in the respective specialities even uptill now; the only question which is to be considered is that the vacancies which had become available after 4th day of May, 2000 on account of non-joining by any of the candidates within stipulated time are required to be filled, by reshuffling on the basis of merit-cum-preference list. The question is as to how the vacancies due to non-joining within the stipulated time have to be filled by reshuffling on the basis of merit-cum-preference list and the resultant vacancies cannot be filled by reshuffling, are required to be filled by taking candidates from the Waiting List on Merit-cum-Preference basis, at the earliest, but not later than two months from the date of initial allotment and it is to be kept in view that no admission shall be made after this period of two months from the date of initial allotment even if any vacancy is left unfilled or any vacancy occurs subsequently. There is no doubt that the printed guidelines were supplied to the candidates. But the fact remains that the ordinance which was in force in the year 2000 when the admission of the original petitioners i.e. respondents herein were made the ordinance contained period of two months end, therefore, it is to be examined as to how the admission should have been made within a period of two months from 4th day of May, 2000 i.e. the date on which the initial selections were made. The case of the original petitioners is that any vacancy which becomes available during this period of two months has to be taken into consideration and merely because the exercise under this process had been completed by the respondents on 29th & 30th May 2000 cannot be decisive for this purpose and the vacancies which became available even after 29/30.5.2000 on account of any candidate resigning or leaving the course which was offered to him or her should have been made us of and made available for benefit of the original petitioners. 7. Mr. Jain appearing on behalf of the State has assailed the order passed by the Learned Single Judge on the ground that according to the language of the Ordinance the reshuffling on the basis of merit-cum-preference list and the resultant vacancies which could not be filled by reshuffling had to be filled by taking candidates from the waiting list on merit-cum-preference basis at the earliest and the admission board was not bound to wait for this exercise till the last day of two months i.e. 4.7.2000 in the facts of this case. This vacancies which, therefore, became available for any reason after 29./30.5.2000 could not be made available to the candidates and if the process suggested by the original petitioners is allowed to be followed it would become endless process. It was also argued that once the exercise has been undertaken and the same was offered on 29/30.5.2000 any vacancy which became available thereafter could not be subjected to further consideration and it is clear that the same could not be made available even if it remains unfilled. On behalf of the original petitioners i.e. respondents herein what has been contended is that the language of the Ordinance shows that first there has to be reshuffling for the vacancies becoming available on account of non-joining of any candidate on the basis of the merit-cum-preference list already prepared. Thereafter the resultant vacancies or such vacancies which cannot be filled up by reshuffling have to be considered and for that purpose the original petitioners should have been considered for such vacancies in the specialities which became available and merely because the exercise have been undertaken on 29/30.5.2000, the appellants could not leave the vacancies unfilled which became available even after 29/30.5.2000 but before 4.7.2000. Our attention was also invited to the note below the Ordinance which says that the period of training will be three years in that particular subject/speciality and the increase in the period of training due to reshuffle will be at candidate's risk and it was also submitted that the original petitioners forego the work done by them in the specialities which were given to them and that they were prepared to return the money which they had received during this period in the specialities which were given to them and henceforth their period of training of three years may commence even now from the date on which the specialities of the choice which made available to them on the basis of the seats which became available during the period of two months between 4th May to 4th July 2000 particularly after 29/30.5.2000. Learned counsel for the appellant has relied upon the case of State of Uttar Pradesh & Ors. v. Dr. Anupam Gupta & Ors. reported in 1993 Supp. (1) SCC 594 and the case of Arvind Kumar Kankane v. State of U.P. & Ors. reported in AIR 2001 Supreme Court 2800 . Learned counsel for the appellant has relied upon the case of State of Uttar Pradesh & Ors. v. Dr. Anupam Gupta & Ors. reported in 1993 Supp. (1) SCC 594 and the case of Arvind Kumar Kankane v. State of U.P. & Ors. reported in AIR 2001 Supreme Court 2800 . The original petitioners have cited before us the case of Gujarat University v. Rajiv Gopinath Bhatt & Ors. reported in (1996) 4 SCC 60 . It is also mentioned that against the impugned order when the appeals were preferred by the State the operation of the order passed by the learned Single Judge was stayed by the Division Bench on 22.4.2001 and the original petitioners have been continuing in the respective specialities which were given to them. The factual position as given out on behalf of the appellants with regard to the status of each of the original petitioners is as under: (1) DBSAW 163/2001 (1) Dr. Jagdish Goyal (182-I) PSM (Bikaner)- Now in 2001 Medicine at Bikaner (2) De. Gautam (209-III) DFM (Jaipur) (2) DBSAW 164/2001 (1) Dr. Navin Vyas (78-III)-MD Pathology No Change (2) Dr. Usha Sharma (185-IV) Diploma in Anatomy (Udaipur) -Now in 2001 Gyn. at Jodhpur (3) Dr. Akhilesh Pathak (109-III) MD Forensic Medicine (Jaipur) (4) Dr. Tanuj Kanchan (209-I) -Diploma in Forensic Medicine (Jaipur) (3) DBSAW 193/2001 (1) Dr. Manjari Gupta (115-II) Microbiology 3 years course DGO (Jaipur) (Two Years) (4) DBSAW 1060/2000 (1) Dr. Preeti Agarwal (101-II) Anatomy (Udaipur) -Ophthalmology (Ajmer) This factual position has been controverted before us by the original petitioners. So far as the interpretation and scope of Ordinance is concerned; (1). It is very clear that only those vacancies which become available on account of non-joining of any candidate within the stipulated time which is given to them at the time of initial selection are to be filled by reshuffling by the Central PG Admission Board on the basis of merit-cum-preference list. (2) EVen thereafter if any vacancy is there which could not be filled up by reshuffling are required to be filled by taking candidates from the Waiting List on the merit- cum-preference list. (3) It has to be done at the earliest but not later than two months from the date of initial selection. (2) EVen thereafter if any vacancy is there which could not be filled up by reshuffling are required to be filled by taking candidates from the Waiting List on the merit- cum-preference list. (3) It has to be done at the earliest but not later than two months from the date of initial selection. It is, therefore, clearly discernible from the language of the Ordinance itself that the two months period from the date of initial selection that does not mean that the Board has to wait till the last date and they cannot take up the exercise prior to the expiry of two months. It is also very clear from the language of the Ordinance that no admission shall be possible after two months from the date of initial selection even if any vacancy is left unfilled on any vacancy occures subsequently. 8. Therefore, the occurrence of any vacancy subsequently i.e. after a period of two months is of no consequence. And in case any vacancy becomes available within this period of two months and upto the time that the exercise is undertaken by the Board has also to be made available to the candidates who are there in the waiting list and in this context even if the arguments which have been raised on behalf of the original petitioners are accepted that after reshuffling the resultant vacancies have to be taken into consideration and for that purpose any seat or vacancy becoming available prior to the expiry of two months and after the exercise has already been taken up by the Board in respect of the vacancies becoming available on account of non-joining by the candidates, it goes without saying that such vacancies have to be made use of only from amongst those candidates who are in the waiting list. 9. In the facts of the present case if cannot be said that any of the original petitioners was in the waiting list. The specialities had already been given to them by 29/30.5.2000 and once the specialities had been given to them no one remains on the waiting list. Once they seized to be on the waiting list on 29/30.5.2000 there is no question of making those vacancies again available to them which became available after 29/30.5.2000 for any reason whatsoever. The specialities had already been given to them by 29/30.5.2000 and once the specialities had been given to them no one remains on the waiting list. Once they seized to be on the waiting list on 29/30.5.2000 there is no question of making those vacancies again available to them which became available after 29/30.5.2000 for any reason whatsoever. Even otherwise in the facts of the present case, the petitioners have already prosecuted the course for a period of more than 50% of the period which is prescribed for this course and at this stage we do not feel inclined to direct that these vacancies should be made available to them by treating them to be still continuing on the waiting list for the purpose of the vacancies becoming available after 30.5.2000 for any reason whatsoever. More particularly when ordinance itself says that ordinance permits the leaving of the vacancies unfilled. The case of Gujarat University which has been cited before us was a case in which certain observations were made by the Supreme Court in respect of the vacancies which are left unfilled at the initial stage and that case has no application to the facts of the present case. We, however, feel that it will not be conducive to the interest of the studies to disturb the position which has continued for a period of more than 50% of the period prescribed for this course as now at this stage it would be simple case of wastage of time, money and energy on both the sides. We take the view which has been taken by the learned Single Judge. That any vacancy even if becomes available after the exercise has been taken up by the admission Board has to be counted for the benefit of those who are no more on the waiting list merely because the seat has become available during the period of two months and if this interpretation is followed it will be an endless process. That any vacancy even if becomes available after the exercise has been taken up by the admission Board has to be counted for the benefit of those who are no more on the waiting list merely because the seat has become available during the period of two months and if this interpretation is followed it will be an endless process. To make it more clear the vacancies which may now become available by giving those specialities to the present original petitioners, the seats which will become available now, may again be sought to be claimed by some other candidates and thus it will disturb the whole system of admission and in our opinion interference with the matters relating to admission at this stage when the course has already gone more than half way, it is not at all desirable to accept the case of the respondents i.e. original petitioners. For all these reasons. We find that all these 4 appeals have to be allowed and all the four appeals are hereby allowed. The order as has been passed by the learned Single Judge is hereby set aside. No order as to costs.All four appeals - Order of Single Judge set aside. *******