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2004 DIGILAW 180 (JK)

Ashwani Kumar Sharma (Dr. ) v. State

2004-06-07

PERMOD KOHLI

body2004
The common issues are involved in these petitions. Accordingly, the same are being disposed of by a common judgment. OWP No. 104/04: The petitioner in this case applied for his selection/admission to the post graduation course pursuant to the Advertisement Notice issued by respondent No. 3 in the year 2001. He participated in the selection process and declared successful in the open merit category. After counseling for allocation of discipline, he was given admission to diploma course in Paediatrics (DCH) in the Government Medical College, Jammu where the petitioner joined and had completed the course at the time of filing of this petition. In the year 2003, respondent No. 3 issued another Notification No. 50-BPEE of 2003 dated 22.10.2003 invited applications for entrance test for admission to post graduation course in the Medical Colleges of the State. The petitioner again applied pursuant to the aforesaid Notification. Respondent No. 3 vide subsequent Notification No. 58-BPEE of 2003 dated 03.12.2003 notified the list of candidates who were declared ineligible for entrance examination. The petitioners name also figured in the list of such ineligible candidates. It is stated in the petition that the petitioner came to know that some similarly situated doctors whose candidature was declared ineligible approached this Court and some interim order was passed permitting them to appear in the entrance test. The petitioner and such other candidates have been declared ineligible in terms of SRO 364 of 2003 dated 21.10.2003. Vide interim order dated 09.02.2004, the petitioner was permitted to participate in the entrance examination scheduled to be held on 29.02.2004 or any other date, at his own risk and responsibility. OWP No. 1109/03 The petitioners in this petition applied for selection/admission to the post graduation course pursuant to the Notification No. 84-CAEE of 2002 dated 27.12.2002 issued by respondent No. 4. All of them passed the entrance examination. On the basis of merit and choice for allocation of concerned discipline, they were allotted diploma courses. Petitioner No. 1 was allotted diploma in Anesthesia, which was later on adjusted against Pathology. Petitioner No. 2 was allotted diploma in Radio diagnosis. Petitioner No. 3 was allotted diploma in CAN. Petitioner No. 4 was allotted diploma in Pathology. Petitioner No. 5 was allotted MD Pharmacology. All of them joined their respective courses. Petitioner No. 1 was allotted diploma in Anesthesia, which was later on adjusted against Pathology. Petitioner No. 2 was allotted diploma in Radio diagnosis. Petitioner No. 3 was allotted diploma in CAN. Petitioner No. 4 was allotted diploma in Pathology. Petitioner No. 5 was allotted MD Pharmacology. All of them joined their respective courses. Respondent No. 4 subsequently issued another Notification No. 50-BPEE of 2003 dated 22.10.2003, whereby applications were invited from eligible candidates for appearing in the entrance test for admission to various MD/MS/Post graduate degree/diploma courses in the Govt. Medical Colleges of the State and SKIMS Medical College, Srinagar and Acharya Shri Chander College, Jammu for the Sessions 2003. This notification contains clauses (vi) and (vii) whereunder certain eligibility criterions were prescribed in addition to the other conditions prescribed in the Notification. According to the conditions incorporated under these clauses, candidates who are employed in the State and who have already done or are doing their post graduation in any specialty at government expense at the time of applying, shall not be eligible to appear in the entrance test for any post graduation course in any specialty in the State Medical Institutes. This condition has been incorporated on the basis of SRO 364 of 2003 dated 21.10.2003. The petitioners are aggrieved of these conditions and SRO 364, which render them ineligible having been admitted in the post graduation course for the year 2002 and are undergoing the same. Challenged to SRO 364 is based upon bias and arbitrariness and violation of fundamental right to Education. It is stated that the petitioners have fundamental right to acquire the higher and better education and qualification. This right is being taken away through incorporation of ineligibility condition under SRO 364 of 2003. It is further stated that the action of the respondents in creating an embargo with the petitioner is also violative of Article 13 of the Constitution of India, which renders every action in derogation of fundamental rights as null and void and inoperative. It is also submitted on behalf of the petitioners that their admission to any diploma course cannot make them ineligible for admission to any other post graduation course and therefore, SRO 364 is unconstitutional being violative of fundamental rights of the petitioners enshrined in Articles 14 and 16 of the Constitution of India. It is also submitted on behalf of the petitioners that their admission to any diploma course cannot make them ineligible for admission to any other post graduation course and therefore, SRO 364 is unconstitutional being violative of fundamental rights of the petitioners enshrined in Articles 14 and 16 of the Constitution of India. Another argument advanced on behalf of the petitioners is that when they were admitted in the diploma course pursuant to the earlier notification in the years 2001 and 2002 there was no condition that they will not be entitled to seek admission in any future post graduation course and thus, the respondents are estopped from creating any impediment and ineligibility criteria on the rights of the petitioners to seek admission in the post graduation course. It is true that before introduction of SRO 364 dated 21.10.2003 a candidate was entitled to appear and seek admission to any post graduation course from time to time, even if he/she had undergone any post graduation diploma/degree course or is undergoing the same. It is true that before introduction of SRO 364 dated 21.10.2003 a candidate was entitled to appear and seek admission to any post graduation course from time to time, even if he/she had undergone any post graduation diploma/degree course or is undergoing the same. SRO 364 as notified by the government which creates impediment on the rights of such candidates is reproduced hereunder:- "SRO 364: The Government hereby direct that in the Jammu and Kashmir Government Medical Colleges (Selection of candidates for Post-graduation Degree and diploma courses) procedure order 1995 issued under notification SRO 158 dated 12th July, 1995 as amended vide notification SRO 57 of 2002 dated 31.01.2002, the following amendments shall be made:- (I) for proviso to sub-clause (v) of clause 3, the following provisos shall be substituted namely: "Provided that the Doctors who are employed in the State and/or who have done their Post Graduation in any specialty at the Government expenses or are doing their post graduation in any specialty on Government expenses at the time of applying shall not be eligible to undergo Post Graduation Course in any other specialty in the State Medical Institutions at the State expenses; Provided further that the Doctors who are doing their Diploma course in any specialty at the Government expenses at the time of applying shall also not be eligible to undergo Post Graduation courses in any other specialty in the State Medical Institutions until such time as they complete their Diploma courses." (II) Sub-clause (3) of clause(4) as inserted vide notification SRO 281 dated 31.07.2002 is deleted." SRO 364 has created three categories of candidates who have been rendered ineligible for pursuing post-graduation course in medical :(i) any Doctor employed in the State who has done post graduation in a specialty at the government expense; (ii) any doctor employed in the State who is doing any post-graduation in any specialty on government expenses and (iii) any doctor who is doing diploma course in any speciality at the government expenses. As far first two categories are concerned if a doctor has already undergone post-graduation course in any displine or is undergoing any post graduation course in any discpline, he shall not be entitled to seek admission for post graduation course in any other specialty in the State Medical Institutions at the State expense. As far first two categories are concerned if a doctor has already undergone post-graduation course in any displine or is undergoing any post graduation course in any discpline, he shall not be entitled to seek admission for post graduation course in any other specialty in the State Medical Institutions at the State expense. As far third category is concerned, any doctor who is undergoing diploma course in any specialty will not be entitled to seek admission to any post graduation course in any other specialty in the State Medical Institution until he completes such course. In so far the candidates who are undergoing degree or diploma course in any specialty at government expense are concerned, there seems to be reasonable logic for debarring them from seeking admission to any specialty leaving the course mid-way. If such candidates are permitted to leave the course in between, resultant vacancies cannot be utilized by any other person for the rest of the period and are rendered waste. Not only this, the candidate who was next in the merit at the time of admission has also been deprived of the right of admission for the course. This view has sanction of the Apex court in case Mbel v. State of Haryana and Ors., reported in AIR 2002 SC 2773, wherein it is held as under: " Clause in the information broucher regarding admission to MBBS/BDS courses which reads that the candidates already admitted in any Medical/Dental Colleges will not be considered eligible for admission to the course clearly shows that a candidate who was already admitted in a medical or Dental College would be ineligible for admission in the other course. The said clause is meant to ensure that a candidate who has already secured admission should not abandon the studies after the commencement of that course to seek admission in another course which is in public interest, for otherwise it would result in the wastage of the seat in the course in which he has taken admission and further such a change would deprive another eligible candidate from seeking admission to the other course. Obviously, the intention of the concerned authority in framing Cl. Obviously, the intention of the concerned authority in framing Cl. 18 of the information Brochure of Kurushetra University of Haryana for BDS/MBBS entrance examination appears to be to ensure that a candidate who has already secured admission with his free will in any course (MBBS or BDS) should complete that course and should not change his mind in midstream. It, therefore, follows that the bar is intended to be operative during the period of the course in which a candidate has taken admission. After completing that course or in the event of abandoning the course (MBBS/BDS) and not studying for the normal period (4 years/5 years as the case may be) the candidate would become eligible after the end of such period of the course to seek admission in the course of his choice provided other conditions of admission are satisfied." Taking into consideration the ratio laid down by the Apex Court in the aforesaid judgment, no fault can be found with the conditions incorporated in the SRO 364 which debar the candidates undergoing any degree/diploma course from seeking admission to any other course in subsequent selection. However, same principle cannot be applied to such candidate who has already completed either diploma or degree course in any specialty. The right to education has not been specifically incorporated as a fundamental right in Part-III of the Constitution of India. Place of Education under the constitutional scheme be noticed:- " 41. The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. 45. The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years." Articles 41 and 45 of the Constitution of India do recognise the responsibility of the State to provide education. As far Article 45 is concerned, State is under obligation to provide free compulsory education upto the age of fourteen years and under Article 41 State is required to make effective provision for securing the right to education within its economic capacity. As far Article 45 is concerned, State is under obligation to provide free compulsory education upto the age of fourteen years and under Article 41 State is required to make effective provision for securing the right to education within its economic capacity. In Mohini Jains case (Mohini Jain v. State of Karnataka, (1992) 3 SCC 666), the Apex Court defined the expansive scope of Art. 21 in relation to right to Education and observed:- " `Right to life is the compendious expression of all those rights which the courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens." Mohini Jains case came up for scrutiny before a Constitution Bench of the Court. In case of Unni Krishnan, J.P. and others v. State of Andhra Pradesh and others, reported in 1993 (1)SCC 645, a Constitution Bench of the Apex Court while examining the dictum in Mohini Jains case in the light of constitutional provisions ruled as under:- " 171. ..., it would not be correct to contend that Mohini Jain was wrong insofar as it declared that "the right to education flows directly from right to life. But the question is what is the content of this right ? How much and what level of education is necessary to make the life meaningul? Does it mean that every citizen of this country can call upon the State to provide him education of his choice ? In other words, whether the citizens of this country can demand that the State provide adequate number of medical colleges, engineering colleges and other educational institutions to satisfy all their educational needs ? Mohini Jain seems to say, yes. With respect, we cannot agree with such a broad proposition. The right to education which is implicit in the right to life and personal liberty guaranteed by Article 21 must be construed in the light of the directive principles in Part IV of the Constitution ......................................................................... Mohini Jain seems to say, yes. With respect, we cannot agree with such a broad proposition. The right to education which is implicit in the right to life and personal liberty guaranteed by Article 21 must be construed in the light of the directive principles in Part IV of the Constitution ......................................................................... Right to education, understood in the context of Articles 45 and 41, means ( a) every child/citizen of this country has a right to free education until he completes the age of fourteen years and (b) after a child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development..." As far State of J&K is concerned,it also contains similar provision as under Indian Constitution. Section 20 contained in Part-IV under the Directive Principle of State Policy is relevant for purposes of this petition and is noticed:- "20 . Rights of free and compulsory education in certain cases. The State shall endeavour - (a) to secure to every permanent resident the right to free education upto the University standard; (b) to provide, within a period of ten years from the commencement of this Constitution, compulsory education for all children until they complete the age of fourteen years; and (c) to ensure to all workers and employees adequate facilities for adult education and part-time technical, professional and vocational courses." Unlike Articles 41 and 45 of the Constitution of India, the Constitution of J&K gives right to its permanent residents to free education upto the University standard, though the elementary education upto the age of fourteen years is compulsory for every children. In addition to above, clause (c) of Section 20 further makes a provision for adequate facilities for adult education and part-time technical, professional and vocational courses for the employees/workers in the State. The expression "University standard" used in Section 20 of the State Constitution include all the courses approved by the University but may not include within its compass professional courses like MBBS, Engineering and such other courses as these are not normal academic courses. Therefore, to command the State to ensure free education for the professional courses may not be permissible. SRO 364 debars the candidates from undergoing the Medical post-graduation course at the State expense in the State Medical Institutions. Therefore, to command the State to ensure free education for the professional courses may not be permissible. SRO 364 debars the candidates from undergoing the Medical post-graduation course at the State expense in the State Medical Institutions. In addition to the State Medical Institutions, there are two private institutions having facility of providing post-graduation courses. The restriction contained in SRO 364 is applicable only for admission to the State Medical Institutions and not private institutions. It goes without saying that in the State Medical Institutions , fee for professional courses including post graduation courses is nominal and expenditure is funded by the State, therefore, the State cannot be compelled to allow every student to undertake the course at the State expense as State does not have any such obligation. But important question that needs consideration is, can State create a complete embargo on the right of a person to continue its studies. Human mind cannot remain stagnant. The quest for higher and better qualification, improvised and special knowledge cannot and should not be allowed to be plugged by any State action, be it an administrative or legislative as it tends to check the progress and growth of the human mind. Can there be a restriction on human thinking and desire of person to acquire more and more knowledge? simple answer is `No. No law can be allowed to operate so as to prevent a person from acquiring more knowledge, secure academic and professional efficiency. Of course, State cannot be burdened to facilitate acquiring of knowledge for every student at the same time. State cannot be permitted to prevent a person in his endeavour to acquire better and more knowledge. It is in this perspective, provisions of SRO 364 are to be viewed. The restriction contained in the aforesaid SRO debarring a candidate who has already completed any course of study in one discipline from seeking admission in any other specialty cannot be justified and is not sustainable both on the touch stone of law and probity. Such a provision, is totally irrational, illogical and outcome of the arbitrary and colourable exericse of power, hence violative of Art. 14 of Constitution of India. This restriction contained in the aforesaid SRO is, therefore, not sustainable in law and is liable to be removed . Such a provision, is totally irrational, illogical and outcome of the arbitrary and colourable exericse of power, hence violative of Art. 14 of Constitution of India. This restriction contained in the aforesaid SRO is, therefore, not sustainable in law and is liable to be removed . Now the other relevant question would be, can State be commanded to bear the expenditure for every student who is interested to seek admission in any post-graduation course after having completed the one. I am of the opnion that the State cannot be asked to bear the expenses for every student unless it is willing to do so. However, balance has to be struck between the right of a student who is seeking admission to a PG Course for the first time and a person who is keen to seek admission in a different discipline after completing the course in some subject. I am of the view that State should make necessary and appropriate amendements in the SRO 364 to make a room for such candidates who are desirous of seeking higher education and better professional knowedge by opting for some other post graduation course after completion of course in one specialty. This would enable them to go in for acquiring more and better knowledge, professional efficiency and specilization in any subject of their choice, of course subject to their merit amongst similarly situated candidates. SRO 364 in so far it creates an embargo on the right of candidates who have already completed post-graduation course in one subject to seek admission in any other specialty is hereby quashed. State is given opportunity to make appropriate law and provide quota or percentage in the post graduation courses diploma/degree for those who have completed the post graduation diploma/degree in one specialty to seek admission in any other specialty. State may however impose a condition of payment of extra fee etc. for such students. Let necessary provisions be created within a period of three months. This petition is, accordingly, disposed of alongwith connected CMP(s).