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2004 DIGILAW 1519 (ALL)

Mrityunjaya kumar singh v. State Of U. P.

2004-08-10

N.K.MEHROTRA

body2004
JUDGMENT : N. K. Mehrotra, J. This is a petition for issuing a writ in the nature of certiorari quashing the Clause No. 13.2 mentioned in the Brochure of U. P. Postgraduate Medical Entrance Examination, 2004 (hereinafter referred to as 'U. P.P.G.M.E.E.-2004'), the Government of India's letter dated 14.5.2003 and the State Government's letter dated 2.8.2003 if, the same are made applicable to the U. P.P.G.M.E.E.-2004 and also for issuing a writ in the nature of mandamus directing the opposite parties to hold the second counselling for filling up 30 unfilled seats of Postgraduate courses. 2. I have heard Shri Sandeep Dixit, the learned Counsel for the Petitioners and Shri M.B. Singh, the learned standing counsel for the opposite parties. 3. The case of the Petitioners is that the Petitioners submitted their application forms for admission to Postgraduate courses in medical education through the U. P.P.G.M.E.E.-2004 and they were issued the admission cards for the aforesaid examination. They were declared successful in the written examination. The result was declared on 4.2.2004. The Petitioner No. 1 obtained 233rd rank amongst general category candidates. The Petitioner No. 2 has obtained 243rd rank amongst general category candidates and 66th rank amongst other Backward Class category candidates. The Petitioner No. 3 has obtained 293rd rank amongst the general category candidates and 75th rank amongst other Backward Class category candidates. The Petitioner No. 4 has obtained 289th rank amongst general category candidates and the Petitioner No. 5 has obtained 276th rank amongst general category candidates. The Brochure of U. P. Postgraduate Medical Entrance Examination-2004 is Annexure-1 to the writ petition. According to the Schedule given in the Brochure, the counselling was to be held between 19.4.2004 and 25.4.2004. The examination schedule and the date of counselling were fixed as against 75% State quota to be filled in by the State Government. The counselling could not be held on the date fixed in view of the orders passed by the High Court on several grounds. The counselling was held between 18.6.2004 and 21.6.2004 and the last date of seeking admission was 25.6.2004. The counselling could not be held on the date fixed in view of the orders passed by the High Court on several grounds. The counselling was held between 18.6.2004 and 21.6.2004 and the last date of seeking admission was 25.6.2004. Under Clause 13.2 of the Brochure, it was mentioned that as directed by the Government of India, Ministry of Health and Family Welfare and in view of the letter dated 14.5.2003 there will be only one counselling, though in Clause 13.13 of the Brochure, it has been mentioned that "All such candidates who are allotted seat in U. P.P.G.M.E.E.-2004 counselling, shall not be entitled to take part in any subsequent counselling of 2004, if it is held." 4. In Clause 13.2 of the Brochure, a reference has been made to the letter of the Ministry of Health and Family Welfare dated 14.5.2003 which is Annexure-4 to the writ petition. The case of the Petitioners is that after the Residency Scheme being laid down by the State Government so far as the 75% seats to be filled in by the State quota is concerned, the Government of India do not have any authority or power to issue directions and the order dated 14.5.2003 cannot be made applicable so far as the 75% State quota which is to be filled in by the respective State is concerned. It is further submitted that in the Residency Scheme dated 9.10.1990, nowhere it has been prescribed that the admissions granted by the State Government under State quota would be subject to any directions being issued by the Government of India and the order dated 14.5.2003 so far as it prescribes time schedule for State quota, is without jurisdiction. It has been further alleged that following the order dated 14.5.2003 issued by the Government of India, the State Government issued an order on 2.8.2003 with regard to U. P.P.G.M.E.E.-2003, a copy of which Annexure-5 to the writ petition. This letter dated 2.8.2003 as well as the order of the Government of India dated 14.5.2003 was challenged by the candidates who were declared successful in the U. P.P.G.M.E.E.-2003, examination and were entitled to appear in the second counselling on 25.8.2003. This Court passed an interim order staying the operation of the order dated 2.8.2003 issued by the State Government on the basis of the order of the Government of India dated 14.5.2003. This Court passed an interim order staying the operation of the order dated 2.8.2003 issued by the State Government on the basis of the order of the Government of India dated 14.5.2003. The opposite parties were directed to hold the second counselling for the available seats within two weeks. A photostat copy of the order dated 21.3.2003 passed by this Court in some other writ petition is Annexure-6 to this writ petition. It is alleged that the order of the Government of India came to an end after issuance of the letter dated 31.10.2003/1.11.2003 by the Medical Council of India which has been issued in reference to the same judgment on the basis of which the Government of India issued letter dated 14.5.2003. A photostat copy of the letter of the Medical Council of India dated 31.10.2003/1.11.2003 is Annexure-7. It was directed in this letter that the admission including counselling thereof be completed by all the authorities on or before 1st May of the concerned year. It was also directed that the resultant/consequential admissions for any or all the arising reasons shall be completed by 31st May of the concerned year. It is alleged that these two guidelines would show that it was directed by the Medical Council of India that the admissions would be over including counselling by 1st May and with regard to the resultant/consequential admissions meaning thereby i.e. with regard to unfilled seats, the process of giving admissions would be completed by 31st May. Thus, the time schedule issued by the Medical Council of India was to complete the admissions by 1st May and for the remaining seats in 30 days thereafter i.e. upto 31.5.2004. It is alleged that this direction was further reiterated by the Medical Council of India in its letter dated 19.11.2003, a photostat copy of which is Annexure-8 to this writ petition. It is alleged that since the completion of admissions and the commencement of the course as directed by the Medical Council of India have been delayed from 1.5.2004 to 30.6.2004, the opposite parties have refused to make the resultant/consequential admissions which are required to be done within 30 days after the completion of the admissions on 1.5.2004. It is alleged that since the completion of admissions and the commencement of the course as directed by the Medical Council of India have been delayed from 1.5.2004 to 30.6.2004, the opposite parties have refused to make the resultant/consequential admissions which are required to be done within 30 days after the completion of the admissions on 1.5.2004. It is also alleged that the admissions have been delayed because of no fault of the Petitioners and the opposite parties have refused to hold the second counselling for which the provision is there by the direction of the Medical Council of India to complete the admissions on the resultant/consequential vacancies in the next 30 days but before 31.5.2004. Since the admissions have been delayed upto 30th June, it is incumbent upon the opposite parties to hold the resultant/consequential vacancies to complete the resultant/consequential admissions in the next 30 days i.e. upto 31.7.2004. It is alleged that there are 25-30 seats lying vacant, the details of which have been given in paragraph 33 of the writ petition. It is also the case of the Petitioners that under the Residency Scheme, the students of Postgraduate courses are being paid salary in lieu of their services to run the hospitals and when in the State of U. P. there is shortage of more than 275 teachers in the State Government Medical Colleges as well as the Medical University that will not be in the interest of the public at large as health is the prime subject to be looked into by the State. It has been further pleaded by the Petitioners that the judgment of the Supreme Court in Medical Council of India v. Madhu Singh and Ors. (2002) SCC 258, does not apply so far as the postgraduate courses are concerned. It is also alleged by the Petitioners that if, the letter of the Government of India dated 14.5.2003 is implemented in a mechanical manner as it is being done by the State Government, the illegality committed by the Director General, Medical Education and Training by not displaying the All India seats surrendered to the State college in the first counselling of the remaining unfilled vacancies without even being offered to any of the candidates on the basis of the merit-cum-choice. It will be the national wastage by keeping the seats vacant and it will neither be in the interest of Petitioners nor in the interest of public at large. 5. The opposite parties filed the counter-affidavit. The case of the opposite parties is that at the time of first counselling, which took place between 18.6.2004 to 21.6.2004 all the seats were allotted to the candidates who were eligible according to merit-cum-option and if, the seats have fallen vacant subsequent to the first counselling, the second counselling is not permissible in view of the guidelines issued by the Medical Council of India in its letter dated 31.10.2003/1.11.2004, issued on the basis of the judgment of the Supreme Court in Medical Council of India v. Madhu Singh and Ors. (supra). It is categorically stated in the counter-affidavit that on the date the counselling was over, no seat was left vacant. It is contended that the Petitioners are seeking second counselling in this writ petition, which is not permissible under the guidelines issued by the Medical Council of India. It is also pleaded that the interim order of this Court staying the operation and enforcement of the impugned order dated 2.8.2003 of the State Government and directing the opposite parties to hold the second counselling in the year, 2003 in Writ Petition No. 2855 (M/S) of 2003, Kamlesh Kumar Gupta and Ors. v. State of U. P. and Ors. is dated 21.8.2003 before formation of the Schedule by the Medical Council of India and conveyed on 31.10.2003/1.11.2003 issued on the basis of the judgment of the Supreme Court in Medical Council of India v. Madhu Singh and Ors. (supra). It is also contended that the Petitioners do not fall in the category of those candidates who are entitled to resultant/consequential admission because they cannot be given admission without holding the second counselling and the second counselling is not permissible in view of the directions of the Medical Council of India. It is made clear by the opposite parties that few vacancies are there because some of the candidates have not joined uptill now after the first counselling. 6. The first contention of the learned Counsel for the Petitioners is that the judgment of the Supreme Court in Medical Council of India v. Madhu Singh and Ors. (2002) SCC 258, is not applicable in the case of admission in Postgraduate courses. 6. The first contention of the learned Counsel for the Petitioners is that the judgment of the Supreme Court in Medical Council of India v. Madhu Singh and Ors. (2002) SCC 258, is not applicable in the case of admission in Postgraduate courses. I do not agree with this contention of the learned Counsel for the Petitioners. I refer the following relevant portion of the said judgment, which is as under: This appeal filed by the Medical Council of India (in short "M.C.I.") raises important questions regarding desirability of belated admissions to medical colleges in different courses, both pregraduate and postgraduate... 7. The second contention of the learned Counsel for the Petitioners is that Union of India or the Medical Council of India have nothing to do with 75% quota of the State Government in filling up the seats of Postgraduate for which the Residency Scheme was issued by the State Government on 9.10.1990 which is Annexure-1 to the writ petition. This contention has also no force. It is settled that the Medical Council of India is a statutory body constituted under the Medical Council of India Act by the Parliament and it has been given the power to control the medical education for which the Medical Council of India can pass Regulations on different subjects. The Supreme Court in Medical Council of India v. Madhu Singh and Ors. (supra) has pointed out The Medical Council of India Establishment of Medical College Regulations, 1999 (in short "the Establishment Regulations") in which certain qualifying criteria have been prescribed. It has been pointed out by the Apex Court that Part II of Regulation 3 deals with educational programme and sub-parts (4) and (5) reads as follows: (4) Educational Programme.- (a) proposed annual intake of students, (b) admission criteria, (c) method of admission, (d) reservation/preferential allocation of seats, and (e) departmentwise and yearwise curriculum of studies. (5) Education Programme.- (a) departmentwise and servicewise functional requirements, and (b) area distribution and roomwise seating capability. 8. After pointing out the aforesaid Regulation, the Supreme Court in Medical Council of India v. Madhu Singh and Ors. (supra) has issued certain directions in paragraph 23 of the judgment which is as follows: 23. (5) Education Programme.- (a) departmentwise and servicewise functional requirements, and (b) area distribution and roomwise seating capability. 8. After pointing out the aforesaid Regulation, the Supreme Court in Medical Council of India v. Madhu Singh and Ors. (supra) has issued certain directions in paragraph 23 of the judgment which is as follows: 23. There is, however, a necessity for specifically providing the time schedule for the course and fixing the period during which admissions can take place, making it clear that no admission can be granted after the scheduled date, which essentially should be the date for commencement of the course. In conclusion (i) there is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education; (ii) even if seats are unfilled that cannot be a ground for making mid-session admissions; (iii) there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year; (iv) M.C.I. shall ensure that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date for admission; (v) Different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counselling and the like have to be completed within the specified time; (vi) No variation of the schedule so far as admissions are concerned shall be allowed; (vii) In case of any deviation by the institution concerned, action as prescribed shall be taken by M.C.I. 9. Therefore, if, any Schedule is fixed by the Medical Council of India regarding different courses relating to admission in Postgraduate courses in medical education and if, the Medical Council of India has issued a direction that there will be no second counselling, it is binding on every body including the Petitioners and the opposite parties. 10. The learned Counsel for the Petitioners has argued that the guidelines issued by the Medical Council of India vide its Circular Letter No. 23 (1)/2003-MED/2L 582, dated 31.10.2003/1.11.2003 is similar to the letters issued by the Union Government of India on 14.5.2003 (Annexure-4) and the order of the State Government dated 2.8.2003 (Annexure-5) which debar second counselling and this Court in Writ Petition No. 2855 (M/S) of 2003, Kamlesh Kumar Gupta and Ors. v. State of U. P. and Ors., issued a direction by an interim order dated 21.8.2003 for holding the second counselling for the available seats after staying the operation and enforcement of the order dated 2.8.2003. It has also been pointed out that this Court in passing the interim order dated 21.8.2003 has followed the judgment of the Supreme Court in Paramjeet Gambhir and Anr. v. State of M. P. and ors. 2003 (3) SCCD 1301 : JT 2003 (5) SC 99. In this regard I want to make it clear that the order of this Court in Writ Petition No. 2855 (M/S) of 2003, Kamlesh Kumar Gupta and Ors. v. State of U. P. and Ors. (supra) is an interim order and only a direction has been issued to hold second counselling in the year, 2003 after the judgment of the Supreme Court in Medical Council of India v. Madhu Singh and Ors. (supra) and after following the judgment of the Supreme Court in Paramjeet Gambhir and Anr. v. State of M. P. and Ors. (supra). So far as the interim order in Writ Petition No. 2855 (M/S) of 2003, Kamlesh Kumar Gupta and Ors. v. State of U. P. and Ors. is concerned, it cannot be said to be a binding precedent because a mere direction without laying down any principle of law is not a binding precedent as has been held by the Division Bench of this Court in Nalini and Associates and Another Vs. State of U.P. and Others, (2004) 3 AWC 2075 . 11. Now I come to the judgment of the Supreme Court in Paramjeet Gambhir and Anr. v. State of M.P. and Ors. 2003 (3) SCCD 1301 : JT 2003 (5) SC 99. in which the judgment of the Supreme Court in Medical Council of India v. Madhu Singh and Ors. (supra) has also been referred, I may refer here the last paragraph of this judgment, which is as follows: We make it clear that this order will not be used as a precedent either for holding third counselling or for granting mid term admission. 12. The learned Counsel for the Petitioners has argued in this regard that the Supreme Court was conscious that it is only third counselling which is not permissible and that is why nothing has been said about second counseling by the Supreme Court in Paramjeet Gambhir's case. 13. 12. The learned Counsel for the Petitioners has argued in this regard that the Supreme Court was conscious that it is only third counselling which is not permissible and that is why nothing has been said about second counseling by the Supreme Court in Paramjeet Gambhir's case. 13. In view of the above discussions, now the next question is as to whether the second counselling is possible or not? After issuing Circular Letter No. 23 (1)/2003-MED/2L 582 dated 31.10.2003/1.11.2003 by the Medical Council of India which is Annexure-7 to the writ petition. This circular has been issued fixing the Schedule with regard to admission in Pregraduate and Postgraduate courses in compliance of the judgment of the Supreme Court in Medical Council of India v. Madhu Singh and Ors. (supra) and in the Schedule prepared by the Medical Council of India, it is directed that there will be no second counselling for the allotment of the seats for Postgraduate course of medical education. The learned Counsel for the Petitioners has pointed out that even this circular of the Medical Council of India dated 31.10.2003/1.11.2003 (Annexure-7) makes the provision for second counselling and he has referred the Clause IV of the Schedule of Admission in Postgraduate Medicine Courses which is as follows: 4. The resultant/consequential admissions for any or all the arising reason shall be completed by 31st May of the concerned year. 14. Emphasis is on the phrase 'The resultant/consequential admissions' for which a period of one month was provided. The argument of the learned Counsel for the Petitioners is that this Clause indicates the provisions of second counselling for fulfilling the resultant/consequential admissions. Dr. Usha Sharma, Chairperson of Postgraduate Counselling has appeared in this Court and she has explained that this Clause about resultant/consequential admissions does not indicate that second counselling was permitted by the Medical Council of India because of the clear cut restriction in the time Schedule for completion of the admission process for medical and dental courses given on page-4 of Annexure-7 to the writ petition. 15. In the counter-affidavit Dr. K. C. Rastogi, the Officer on Special Duty in the Office of Director General, Medical Education and Training, U. P. Lucknow has stated that the guidelines of the Medical Council of India referred to by the Petitioners have been wrongly interpreted by the Petitioners. 15. In the counter-affidavit Dr. K. C. Rastogi, the Officer on Special Duty in the Office of Director General, Medical Education and Training, U. P. Lucknow has stated that the guidelines of the Medical Council of India referred to by the Petitioners have been wrongly interpreted by the Petitioners. It is submitted that 'the resultant/consequential admissions for any or all the arising reason' means that those candidates will be permitted to appear in the counselling who could not appear on the date of counselling due to some disease or accident etc. and in their cases formalities shall be completed by 31st May of the concerned year and no other candidate who has appeared in the first counselling is entitled to the allotment of the seat by way of second conselling. It is further submitted by the opposite parties that the Petitioners do not fall in the category of those who come under resultant/consequential admissions, because the Petitioners cannot be given any other choice on the vacant seat without calling second counselling which is prohibited by the Medical Council of India who has issued a schedule for admission after complying the directions issued by the Supreme Court in Medical Council of India v. Madhu Singh and Ors. (supra). The directions issued by the Supreme Court in Medical Council of India v. Madhu Singh and Ors. (supra) are the law binding on the Courts and the authorities in the country and if, Medical Council of India after complying the directions issued by the Supreme Court has framed a time schedule for admission and has prohibited third counselling then, it should be adhered to by every court and authority. The decision of the Supreme Court in Paramjeet Gambhir and Anr. v. State of M. P. and ors. 2003 (3) SCCD 1301 : JT 2003 (5) SC 99, is not a law declared u/s 141 of the Constitution because of the observations that an order will not be used as precedent. 16. The learned Counsel for the Petitioners vehemently argued that in the instant case the Petitioners are not seeking second counselling for midstream admission and the judgment of the Supreme Court in Medical Council of India v. Madhu Singh and Ors. (supra) prohibits midstream admission in the course of the medical education. 16. The learned Counsel for the Petitioners vehemently argued that in the instant case the Petitioners are not seeking second counselling for midstream admission and the judgment of the Supreme Court in Medical Council of India v. Madhu Singh and Ors. (supra) prohibits midstream admission in the course of the medical education. No doubt, U. P.P.G.M.E.E.-2004 was over on 21.6.2004 and hardly a month has passed from the date of the closure of the admission after the counselling of 2004 but it cannot be overlooked that in Medical Council of India v. Madhu Singh and Ors. (supra), the Supreme Court has given directions to the Medical Council of India to fix a time schedule for admission and at the same time, it has been directed that no variation schedule so far admissions are concerned, shall be allowed. So, I am of the view that the High Court should not permit any variation or quash the guidelines issued by the Medical Council of India, which prohibits the second counselling. It is only the Supreme Court who can interpret after seeing its own judgment in Medical Council of India v. Madhu Singh and Ors. (supra) as to whether after prohibition of second counselling of Medical Council of India, the second counselling in the circumstances of the case should be permitted or not? For the purpose of this writ petition, it is sufficient that the admissions to the Postgraduate courses in medical education are to be regulated by the Medical Council of India and the Medical Council of India has issued circular prohibiting second counselling after taking strength from the judgment of the Supreme Court, therefore, the prayer of the Petitioners for seeking second counselling cannot be permitted in this petition. The Petitioners have also sought the quashing of Clause No. 13.2 of the Brochure, the Government of India's letter dated 14.5.2003 and the State Government letter dated 2.8.2003. Clause 13.2 of the Brochure is as follows: As directed by the Government of India, Ministry of Health and Family Welfare letter No. V-11025/1/2003/ME (P-1) dated 14/05/03 on the judgment of Hon'ble Supreme Court there shall be only ONE COUNSELLING. 17. This Clause of the Brochure is based on the Government of India's letter which has been issued in compliance of the judgment of the Supreme Court in Medical Council of India v. Madhu Singh and Ors. 17. This Clause of the Brochure is based on the Government of India's letter which has been issued in compliance of the judgment of the Supreme Court in Medical Council of India v. Madhu Singh and Ors. (supra) and therefore, for the reasons given above, no such relief can be granted by this Court. 18. In view of the above, the writ petition is dismissed.