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Madhya Pradesh High Court · body

2006 DIGILAW 1097 (MP)

ANAND DATTATRAY BELE v. STATE OF M. P.

2006-09-13

A.K.PATNAIK, S.C.SINHO

body2006
ORDER A.K. Patnaik, C.J. In this writ petition under Art. 226 of the Constitution, the petitioner has challenged Rule 17.5 of the M.P. Medical and Dental Post Graduate Course Entrance Examination Rules, 2005, reserving the seat of Prosthodontics in MDS course in the autonomous Dental College in the State of M.P. for the Scheduled Tribe candidate. The facts briefly are that the Government of Madhya Pradesh in the Department of Medical Education framed Rules for admission to Medical and Dental Post Graduate (Degree and Diploma) Programme in 2002-2003. Rule 13.5 of the said Rules provided for seats which are available for MDS course for admission and is quoted hereinbelow: 13.5 Seats Available : For MDS Course following seats are available : Orthodontics Reserved One Prosthodontics Un-reserved One Prosthodonlics Un-reserved (in-service) One (subject to permission From Govt. of India for the Session 2002). As per Government of Madhya Pradesh Medical Education Department order No. F5-49/2000/55/ME/1 dated 4-10-2000 following will be the pattern of reservation for MDS course: 1. Year 2001 Scheduled Tribe Open 2. Year 2002 Scheduled Caste Open 3. Year 2003 Other Backward Class. Open 4. Year 2004 Scheduled Tribe Open 5. Year 2005 Scheduled Caste Open 6. Year 2006 Other Backward Class. Open 7. Year 2007 Scheduled Tribe Female 8. Year 2008 Scheduled Caste Female 9. Year 2009 Other Backward Class. Female 10. Year 2010 Scheduled Tribe Open The aforesaid Rule 13.5 thus provided that there were three seats available for the MDS course out of which the seat for Orthodontics was reserved for Scheduled Tribes, Scheduled Castes and Other Backward Classes and this seat of Orthodontics was to be rotated amongst the aforesaid three reserved categories as per the Government of M.P. Medical Education Department order dated 4-10-2000 in different years in accordance with the roster mentioned above. As per the said roster, the aforesaid reserved seat in Orthodontics in MDS course was to be allotted to a Scheduled Tribe candidate in the year 2004 and was to be allotted to a Scheduled Caste candidate in the year 2005. As per the said roster, the aforesaid reserved seat in Orthodontics in MDS course was to be allotted to a Scheduled Tribe candidate in the year 2004 and was to be allotted to a Scheduled Caste candidate in the year 2005. Thereafter, in the M.P. Medical and Dental Post Graduation Entrance Examination Rules, 2004, it was provided in Rule 13.5 that three seats in the autonomous Dental College in M.P. are available in MDS course out of which one seat in Prosthodontics was reserved for Scheduled Caste category candidate and accordingly for the said reserved seat of Prosthodontics, a Scheduled Caste category candidate was given admission during the year 2004. Since as per the roster fixed by the Government of M.P. Medical Education Department in its order dated 4-10-2000 extracted above, the reserved seat in MDS course was meant for a Scheduled Caste candidate in the year 2005; the petitioner who belongs to the Scheduled Caste category naturally aspired for admission in the reserved seat in the MDS course in the year 2005. In the M.P. Medical and Dental Post Graduation Entrance Examination Rules. 2005 (for short the Rules of 2005), however, it was provided in Rule 17.5 thereof that the seat of Prosthodontics is reserved for a Scheduled Tribe category candidate. The said Rule 17.5 of the Rules of 2005 is quoted hereinbelow: 17. Admission to PG Dental Degree Courses : ........ (5) Seats Available : At autonomous Dental College for MDS course following seats are available: Orthodontics -- Un-Reserved category - One. This seat is reserved for Assistant Professor. Government Dental College, lndore however if eligible candidate is not available, the seat will be allotted to eligible non-service (open) candidate strictly on merit cum option basis. Prosthodontics -- One. All India Quota. Prosthodontics -- Reserved Category - One. This seat is reserved for Scheduled Tribe category candidate, in case eligible candidate is not available then the seat will be filled up as described in sub-rule (11) of Rule 20. Prosthodontics -- One. All India Quota. Prosthodontics -- Reserved Category - One. This seat is reserved for Scheduled Tribe category candidate, in case eligible candidate is not available then the seat will be filled up as described in sub-rule (11) of Rule 20. Aggrieved by this change in the roster so as to allot the reserved seat in the MDS course in the autonomous Medical College in M.P. to Scheduled Tribe category candidate instead of Scheduled Caste category candidate, the petitioner filed this writ petition under Art. 226 of the Constitution of India on 4-4-2005 praying for quashing the provision in the M.P. Medical and Dental Post-Graduation Entrance Examination Rules, 2005 reserving the seat in Prosthodontics for Scheduled Tribe category candidate instead of Scheduled Caste category candidate and for directing that the seat of Prosthodontics be reserved instead for Scheduled Caste category candidate and for directing that the said seat of Prosthodontics in MDS course be given to the petitioner, who is a Scheduled Caste category candidate, if the petitioner is successful in the MDS Entrance Examination for admission to the said reserved seat. 5A. On 13-4-2005, a learned single Judge of this Court at the Indore Bench considered the prayer of the petitioner to allow him to appear in the MDS Entrance Examination and to give the seat of Prosthodontics to the petitioner and directed the respondents to allow the petitioner to appear in the entrance examination of MDS course scheduled to be held on 18-4-2005 and to keep the seat of MDS Prosthodontics vacant. On 13-5-2005, the learned single Judge of this Court at Indore Bench took the view that since the petitioner was challenging the vires of a rule, the writ petition can only be heard at the Principal Seat at Jabalpur and accordingly directed the Registry to place the matter before the Principal Seat at the earliest. On 12-7-2005, a Division Bench of this Court took a prima-facie view that once the rules provide that one seat is for reserved category, it has to be filled as per roster contained in the notification dated 4-10-2000 and without cancelling or superseding the notification dated 4-10-2000, the reserved seat cannot be reserved for Scheduled Tribe candidate against the roster and therefore the rule providing for the seat reserved for Scheduled Tribe category candidate is unconstitutional. By its order dated 12-7-2005, the Division Bench therefore further directed the respondents to consider the said seat as having been reserved for Scheduled Caste category candidate as per roster notification dated 4-10-2000 and if the petitioner was found eligible under that category, allot him that scat without any delay, subject to final decision. On 12-7-2005, the Court also allowed the application filed by a Scheduled Tribe candidate for being impleaded as respondent No. 5. Pursuant to the said order passed by the Division Bench on 12-7-2005 the petitioner was admitted in Prosthodontics MDS course in the reserved seat and has been pursuing his studies, subject to final decision in the writ petition. At the hearing of the writ petition. Mr. Mrigendra Singh, Learned Counsel for the petitioner submitted that only one seat is reserved for SC/ST/OBCs and this reserved seat was to be rotated for SC/ST/OBCs as per the roster for the 10 years from 2001 to 2010, as decided in the Government of MP., Medical Education Department order, dated 4-10-2000. As per the said roster, in the year 2004, against the reserved seat, S.T. candidate was admitted and as per the roster, in the year 2005, a S.C. candidate was to be admitted. He submitted that this roster cannot all of a sudden be changed by the Government so as to provide in the Rules of 2005 reservation of the seat for a Scheduled Tribe category candidate instead of Scheduled Caste category candidate. He submitted that the change in the roster in the Rules of 2005 so as to reserve the seat of Prosthodontics for Scheduled Tribe category candidate instead of Scheduled Caste category candidate was arbitrary and discriminatory and violative of Art. 14 of the Constitution. He submitted that the change in the roster in the Rules of 2005 so as to reserve the seat of Prosthodontics for Scheduled Tribe category candidate instead of Scheduled Caste category candidate was arbitrary and discriminatory and violative of Art. 14 of the Constitution. He further submitted that under Rule 15 of the Rules of 2005, to be eligible for MDS Entrance Examination, a candidate must be a citizen of India, must be a bona fide resident of Madhya Pradesh, or must have passed BDS examination from a Dental College of Madhya Pradesh and that the petitioner was a citizen of India and had passed BDS examination from the Government Dental College, AB Road, Indore and was therefore, eligible to participate in the open competition for the reserved seat in MDS course and pursuant to the orders passed by this Court, he participated in the entrance examination and amongst the scheduled caste candidates, stood first and was admitted to the MDS course in Prosthodontics pursuant to the interim orders passed by this Court, subject to final decision in the writ petition. He submitted that the Court should now declare the provision in the Rules of 2005 reserving the MDS seat in Prosthodontics for Scheduled Tribe category candidate as ultra vires Art. 14 of the Constitution and should direct that the seat be reserved for Scheduled Caste category candidate instead, as per the roster fixed by the Government of Madhya Pradesh, Medical Education Department in the order dated 4-10-2000. Mr. Vivekanand Awasthy, learned Government Advocate, relying on the reply filed on behalf of the respondents 1 to 4, submitted that from the year 2005-2006, an All India Quota for Post Graduate courses was fixed to the extent of 50% and for this reason, the three seats for MDS courses which were available had to be re-distributed and one seat was kept for general category, one seat for in-service candidate and one seat was kept for reserved categories as per roster. He submitted that since one seat had to be reserved for All India Quota and two seats now remained to be filled from amongst the candidates from the State, one by in-service candidate and another by reserved category candidate, the roster had to be re-framed and as a result of such re-framing, the reserved seat was allotted to Scheduled Tribe category candidate in the year 2005. He submitted that, therefore, the contention of the petitioner that the provision in Rule 17.5 of the Rules of 2005 is arbitrary, discriminatory and violative of Art. 14 of the Constitution, is not correct. Mr. N.S. Ruprah, Learned Counsel for the respondent No. 5, submitted that Rule 15 (4) of the Rules of 2005 provides that a No Objection Certificate and sponsorship certificate from CEO/Principal Employer of the candidate must be submitted before submitting application form to the Professional Examination Board and in the case of Assistant Surgeons, they have to be nominated by the Government of Madhya Pradesh. He submitted that since the petitioner was working as Assistant Surgeon in the Civil Hospital, Ganj Basoda, District Vidisha under the Health Department of the Government of Madhya Pradesh at the time he submitted his application for entrance examination for MDS course. No Objection Certificate and sponsorship certificate from the employer or a nomination by the Government of M.P. were required to be submitted by the petitioner at the time of submitting the application form to the Professional Examination Board but the petitioner had not submitted such No Objection Certificate and Sponsorship Certificate from the employer and he had also not submitted any nomination from the Government of Madhya Pradesh. He next submitted that Annexure R5/1 filed along with the return of the respondent No. 5 is a notice in the newspaper 'Nai Duniya' published on 25-2-2006 issued by the Government of M.P., Health Department, to show that 60 doctors including the petitioner were absent from their duties and from this, it is clear that he had not sought No Objection from the employer for joining the MDS Course. He argued that the petitioner was not, therefore, qualified to take the entrance examination. He submitted that since the petitioner was not qualified to take the entrance examination for the MDS course, he has no locus standi to file the writ petition. In support of this contention, he relied on the decision of the Supreme Court in Mohd. Shafi Pandow vs. State of J and K, (2001) W SCC 447. Mr. He submitted that since the petitioner was not qualified to take the entrance examination for the MDS course, he has no locus standi to file the writ petition. In support of this contention, he relied on the decision of the Supreme Court in Mohd. Shafi Pandow vs. State of J and K, (2001) W SCC 447. Mr. Ruprah further submitted that sub-rule (4) of Rule 3 of the Rules of 2005 provides that if it is found that a candidate has hidden any relevant fact and/or provided incorrect information while filling up the application form at the time of allotment of a seat, at the time of scrutiny of the documents and at the time of his/her admission, then the admission shall be cancelled by the Dean/Principal of the College at any time during his/her studies. He submitted that since the petitioner has not revealed in his application form that he was working with the Government in the Health Department as an Assistant Surgeon, his admission to the MDS course was liable to be cancelled under the said sub-rule (4) of Rule 3 of the Rules of 2005. Finally, Mr. Ruprah submitted that the petitioner did not object to the provision in the Rules of 2005 that the seat of Prosthodontics in the MDS course is reserved for Scheduled Tribe category candidate and participated in the entrance examination for the selection and he is estopped from challenging the said provision in the Rules of 2005. It is not correct, as has been submitted by Mr. Ruprah, that the petitioner did not object to the provision in Rule 17.5 of the Rules of 2005 reserving the seat of Prosthodontics in the MDS course for Scheduled Tribe category candidate and participated in the entrance examination. The petitioner filed the writ petition before this Court, as indicated above, on 4-4-2005, challenging the said provision in the Rules of 2005 reserving the scat of Prosthodontics in MDS course for Scheduled Tribe category candidate and pursuant to interim order passed by this Court on 13-4-2005, the petitioner was allowed to appear in the entrance examination for MDS course on 18-4-2005 and the contention of Mr. Ruprah that the petitioner had participated in the entrance examination without objecting to the said provision in the Rules of 2005 reserving the seat of Prosthodontics for a Scheduled Tribe category candidate and was estopped from challenging the said provision in the Rules of 2005 therefore has no merit. The provisions of Rule 15(1) of the Rules of 2005 on which Mr. Ruprah has placed reliance in support of his submission that the petitioner was not qualified to take the entrance examination are extracted hereinbelow : 15. ELIGIBILITY: (1)(i) The candidate must be a Citizen of India. (ii) The candidate must be a bona fide resident of Madhya Pradesh. OR (iii) The candidate must have passed all MBBS/BDS examinations from Medical/Dental College of Madhya Pradesh. Note : Vide Government of Madhya Pradesh Medical Education Department Order No. F-5-15/03/55/ME/1, dated 26-12-2003 the students admitted to M.B.B.S. course in 1999 can appear in Post Graduate Entrance Examination, 2005 provided a student passes Post Graduate Entrance Examination, he/she has to submit a No Objection Certificate from Public Health and Family Welfare Department, Government of Madhya Pradesh, then only admission shall be given in Post Graduate Course. OR (iv) The demonstrator working in PRE or PARA clinical subject in Government autonomous Medical College of Madhya Pradesh and Assistant Professor working in Government Dental College. Indore and selected/regularized by Madhya Pradesh Public Service Commission or Autonomous Society (except those appointed on contract basis), should provide No Objection Certificate and sponsorship certificate from CEO/Principal employer before submitting the application form to Professional Examination Board. An affidavit, and sponsorship certificate will be required in prescribed Form in this respect. OR (v) Assistant Surgeons nominated by Government of Madhya Pradesh (In-service candidates). Note : All In-service candidates will have to appear in common entrance examination conducted by Professional Examination Board. Separate merit/waiting list will be made of in-service candidates after adding the qualifying marks scored in common entrance Examination and marks allotted by department of Public Health and Family Welfare. Counselling will be done as per the filial merit/waiting list, and in addition to above (a) Candidate must have undertaken studies in an institution recognized by MCI/DCI. (b) Candidate must have completed compulsory internship from a MCI/DCI recognized institution on or before 31-3-2005. Counselling will be done as per the filial merit/waiting list, and in addition to above (a) Candidate must have undertaken studies in an institution recognized by MCI/DCI. (b) Candidate must have completed compulsory internship from a MCI/DCI recognized institution on or before 31-3-2005. (c) Candidate must permanently be registered by Madhya Pradesh Medical/Dental Council and/or MCI/DCI on or before 30-4-2005 Rule 15(1)(i) states that the candidate must be a citizen of India. It is not disputed that the petitioner is a citizen of India. Clauses (ii) and (iii) of sub-rule (1) of Rule 15 state that the candidate must be a bona fide resident of Madhya Pradesh, or the candidate must have passed BDS examinations from Dental College of Madhya Pradesh. It is not disputed that the petitioner has passed BDS examinations from Dental College. AB Road, Indore. The note below Rule 15(1)(iii) states that as per the Government of Madhya Pradesh. Medical Education Department order dated 26-12-2003, the students admitted to MBBS course in 1999 can appear in Post Graduate Entrance Examination, 2005 provided a student passes Post Graduate entrance examination and he submits a No Objection Certificate from the Public Health and Family Welfare Department of Government of Madhya Pradesh. This relates to a candidate who had been admitted to MBBS course in 1999. This does not apply to the petitioner who has passed BDS Examination and not the MBBS examination. Rule 15(1)(iv) provides that a Demonstrator working in PRE or PARA clinical subject in Government Autonomous Medical College of Madhya Pradesh and Assistant Professor working in Government Denial College. Indore and selected/regularized by Madhya Pradesh Public Service Commission or Autonomous Society should provide No Objection Certificate and sponsorship certificate from CEO/Principal employer before submitting the application form to Professional Examination Board and an affidavit and sponsorship certificate will be required in prescribed form in this respect. Since the petitioner was not working as a Demonstrator in PRE or PARA clinical subject in Government autonomous Medical College of Madhya Pradesh, or was not working as Assistant Professor in Government Dental College. Indore, the said provision in Rule 15(1)(iv) is not applicable to the petitioner. Rule 15(1)(v) states that Assistant Surgeons who arc nominated by the Government of Madhya Pradesh are eligible to apply as in-service candidate. Indore, the said provision in Rule 15(1)(iv) is not applicable to the petitioner. Rule 15(1)(v) states that Assistant Surgeons who arc nominated by the Government of Madhya Pradesh are eligible to apply as in-service candidate. The Note below Rule 15(1)(v) states that all in-service candidates will have to appear in common entrance examination conducted by Professional Examination Board and a separate merit/waiting list will be prepared of in-service candidates after adding the qualifying marks scored in common entrance examination and marks allotted by department of Public Health and Family Welfare. Hence, Rule 15(1)(v) of the Rules of 2005 is applicable to only the Assistant Surgeons who want to take entrance examination as in-service candidate. The seat of Prosthodontics in MDS course to which the petitioner has made a claim is not a seal reserved for in-service candidate but is a seat reserved for ST, SC and OBC candidates. The Government order dated 4-10-2000 extracted above also would show that the reserved category seat is not for in-service candidate and is not to be filled up by competition amongst in-service candidates but has to be filled up by open competition from all candidates whoever was eligible to apply under Rule 15(1)(i) and (ii) of the Rules of 2005. Since the petitioner satisfied the eligibility conditions in Rule 15(1)0) and (ii) of the Rules of 2005, he was eligible or qualified to take the entrance examination for the seat of MDS for reserved category candidates. The contention of Mr. Ruprah that the petitioner was not qualified or eligible to take the entrance examination for the reserved category seat in the MDS course, thus, is misconceived. If the petitioner has remained absent from his duties as Government servant, the disciplinary authority is competent to take action against him in accordance with the relevant rules. Similarly, if the petitioner has suppressed facts or information in his application, the authorities can take action in accordance with the rules. But these are not grounds to hold the petitioner ineligible to take the MDS Entrance Examinations. The last question that arises for decision is whether the provision in Rule 17.5 of the Rules of 2005 reserving the reserved category seat for MDS course for Scheduled Tribe category candidate in the year 2005 is ultra vires Art. 14 of the Constitution. The order dated 4-10-2000 of the Government of Madhya Pradesh. The last question that arises for decision is whether the provision in Rule 17.5 of the Rules of 2005 reserving the reserved category seat for MDS course for Scheduled Tribe category candidate in the year 2005 is ultra vires Art. 14 of the Constitution. The order dated 4-10-2000 of the Government of Madhya Pradesh. Medical Education Department, which is extracted in Rule 13.5 of the Rules for Admission to Medical and Dental Post Graduate (Degree and Diploma) Programme in 2002-2003 provides that only one seat out of the three seats available for MDS course was reserved for Scheduled Tribe. Scheduled Caste and Other Backward Classes category candidates. To ensure equality of opportunity for ST, SC and OBCs category candidates for this one reserved seat in the MDS course, the Government of Madhya Pradesh in Medical Education Department vide its order dated 4-10-2000 had decided to rotate this one reserved seat between ST, SC and OBCs category candidates and had prepared a ten years roster. In the first year of the rosier, the seat was to be reserved for Scheduled Tribe category Candidate; in the second year of the roster, the seat was to be reserved for Scheduled Caste category candidate; and in the third year of the roster, the seat was to be reserved for Other Backward Classes category candidate. Similarly, in the fourth year of the roster, the seat was to be reserved for Scheduled Tribe category candidate; in the Fifth year of the roster, the seat was to be reserved for Scheduled Caste category candidate; and in the Sixth year of the roster, the seat was to be reserved for Other Backward Classes category candidate. Accordingly, in the fourth year of the roster in 2004, the reserved category seat of MDS course in Prosthodontics was reserved for Scheduled Tribe category candidate as would be evident from Rule 13.5 of the M.P. Medical and Dental Post Graduation Entrance Examination Rule, 2004. In the fifth year of the roster in 2005, this reserved category seat in Prosthodontics ought to have been reserved for Scheduled Caste category candidate as per the said order dated 4-10-2000 of the Government of Madhya Pradesh, Medical Education Department, but in the impugned provision in Rule 17.5 of the Rules of 2005, the reserved category seat of Prosthodontics in MDS course has been reserved for Scheduled Tribe category candidate. This has resulted in discrimination and violation of the right to equality of opportunity of Scheduled Caste category candidate. The reason given by the respondents 1 to 4 in the return that from 2005. 50% of the seats in the MDS course had to be allotted for All India Quota and hence one seat out of three MDS seats available in the State of Madhya Pradesh for reserved categories had to be allotted to the All India Quota and therefore the roster had to be re-framed in 2005, is not a reason good enough to justify re-framing of the roster so as to reserve the reserved category seat in the MDS course in Prosthodontics for Scheduled Tribe category candidate in 2005. The fact remains that prior to 2005, only one seat had been reserved for Scheduled Tribe, Scheduled Caste and OBCs category candidates and allotment of one seat for All India quota from 2005 onwards has not resulted in any change in the number of seats in the MDS course reserved for Scheduled Tribes, Scheduled Castes or OBCs category candidates, If one seat in MDS course was reserved for Scheduled Castes, Scheduled Tribes and OBCs, then this seat had to be rotated amongst the aforesaid three reserved categories so as to give an opportunity to each one of the reserved categories once in every three years for admission to MDS seal. We are, thus, of the view that the provision in Rule 17.5 of the Rules of 2005 reserving the reserved seat in MDS Course in Prosthodontics rescheduled Tribe category candidate instead of Scheduled Caste category candidate in 2005 is ultra-vires Art. 14 of the Constitution of India. In the result, we declare that the provision in Rule 17.5 of the Madhya Pradesh Medical and Dental Post Graduation Entrance Examination Rules. 2005 reserving the reserved category seat of Prosthodontics in MDS course for Scheduled Tribe category candidate is ultra vires the Constitution and we direct that the said seat would be treated as reserved for Scheduled Caste category candidate and if the petitioner, who is a Scheduled Caste Candidate was entitled to admission in the said seat as per his merit in the Entrance Examination of 2005, he will be continued in the said seat. The writ petition is allowed, but in the facts and circumstances of the case, parties to bear their respective costs.