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2006 DIGILAW 505 (KAR)

K. R. MAHESHA v. STATE OF KARNATAKA

2006-06-21

D.V.SHYLENDRA KUMAR

body2006
ORDER Writ petition by persons who are serving as Medical Officers in the Government and who had written the entrance examination conducted by the Rajiv Gandhi University for selecting the candidates for admission to Post-graduate Medical Courses whose performances had been notified in terms of the rankings assigned to them and who had also been counselled but completion of the counselling having stopped midway and the Government also having indicated that certain changes are sought to be effected to the method and manner of counselling that the earlier ranking and counselling are of no consequence but it is to be freshly assigned and recounselling would take place by the PGET-2006, are before this Court questioning the Notification dated 12-6-2006 (copy at Annexure-Q) which has brought about such changes midway impugning the legality of the same. 2. As indicated above, the petitioners had written examination, rankings were made known and on the basis of such rankings in the examination for the purpose of admission to Post-graduate Medical and Dental Courses had been interviewed etc., Later, when the Government issued a Notification dated 12-6-2006 indicating that the earlier ranking and counselling will be of no consequence, it will be redone again, the petitioners apprehensive of what they had gained by their efforts may be lost have approached this Court questioning the legality of such a notification, particularly, as it comes midway when the counselling for admission of candidates was in progress. 3. The challenge is on the premise that the action is arbitrary, coming midway and the notification is questioned primarily on the ground that it is an arbitrary action and not based on any rule or norm nor the action was warranted; that it is also clearly in contravention of the directions issued by the Supreme Court in several judgments involving admission to Post-graduate Medical and Dental Courses wherein the Supreme Court has emphatically directed that there should be Common Entrance Test and one counselling and not counselling, after counselling particularly, having regard to the time stipulations such as last date for admitting the students to these courses and second counselling for the very candidates is not permissible III law and therefore the notification is liable to be quashed. 4. Notices had been issued to the respondent 1-State, respondent 2-PGET Committee formed from out of the personnel of the Rajiv Gandhi University of Health Sciences and the respondent 3-Rajiv Gandhi University. 4. Notices had been issued to the respondent 1-State, respondent 2-PGET Committee formed from out of the personnel of the Rajiv Gandhi University of Health Sciences and the respondent 3-Rajiv Gandhi University. 5. Sri B. Manohar, learned Additional Government Advocate has appeared on behalf of the respondent 1-State. Sri N.K Ramesh, learned Counsel appears for respondents 2 and 3. 6. 4. Notices had been issued to the respondent 1-State, respondent 2-PGET Committee formed from out of the personnel of the Rajiv Gandhi University of Health Sciences and the respondent 3-Rajiv Gandhi University. 5. Sri B. Manohar, learned Additional Government Advocate has appeared on behalf of the respondent 1-State. Sri N.K Ramesh, learned Counsel appears for respondents 2 and 3. 6. Statement of objections have been filed on behalf of the respondent 1-State in which it is, inter alia, indicated that the Government has the authority and the power to take such action under the provisions of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 and the rules framed thereunder; that the Karnataka Conduct of Entrance Test for Admission to Post-graduate Medical and Dental Degree and Diploma Courses Rules, 2003 has been framed under such enabling provisions; that while it was noticed the provisions of Rule 11 could not be followed and given effect to in view of the ruling of the Supreme Court in the case of State of Madhya Pradesh and Others v Gapal D. Tirthani and Others1, and accordingly the procedure of selecting in-service candidates on seniority basis was done away and the in-service candidates were also subjected to entrance examination test and their performance based on merit was being used as a criteria for selecting the candidates to such courses; that during the course of counselling, the respondents having noticed certain discrepancies in the rank list of the in-service candidates that had been announced, copy of which is produced as Annexure-R1 to the statement of objections filed by this respondent and to set right that anomaly, the matter had been referred to the Selection Committee PGET-2006 and the Selection Committee having held its meeting on 2-6-2006, having recommended to withdraw all the allotments that had been made earlier and redo the counselling afresh and the Government having accepted the recommendation, had issued the notification; that the object of the notification was to alleviate the grievance of in-service candidates who had agitated that taking the age as the criteria for ascertaining inter se merit amongst the candidates who had secured the same marks was not found to be an appropriate norm, the date of entry into service should be the criteria and higher seniority being assigned to those who had entered service earlier and on such premise the Government having accepted the same, has also later announced the rank list, a copy of which is produced at Annexure-R2 and the Government having applied this norm uniformly to all candidates, no exception can be taken; that the petitioners have not been discriminated nor shown any differential treatment; that the criteria followed for publishing the second merit list at Annexure-R2 is for serving a public cause and public purpose, as norms for giving the ranking having been streamlined with reference to date of entry into service from the earlier norm and urges for dismissal of the writ petition. 7. It is in this background of such pleadings, the present writ petition has to be examined. 8. Sri P.S. Rajagopal, learned Counsel for the petitioners has vehemently urged that changing of the norms midstream has absolutely no justification; that the Government had resorted to the method of conducting entrance examination even for the in-service candidates pursuant to the judgment of the Supreme Court referred to supra and had in fact conducted examination and counselling on such basis one year earlier and it was for the second time that the test and counselling was being so conducted based on such altered norms and having given a go by to the procedure contemplated under Rule 11 of the Rules and the Government having adopted norm of age of the candidate to be the criteria for fixing the inter se merit amongst the candidates who have obtained the same marks and higher the age, higher the ranking being the norm and this having a rationale and nexus to the object of selection of candidates particularly as under the Post-graduate Medical Education Rules there being an upper age limit for admission to post-graduate courses i.e., 48 years and candidates with higher age having less chance to appear and succeed in such examination and when several candidates are tied with the same marks amongst them candidates with higher marks having lesser opportunities to qualify than the candidates of lower age, as amongst them preferring or ranking a candidate of higher age above the candidates of lesser age being a very reasonable and relevant criteria and the Government having adopted the norm of higher age for better ranking amongst the candidates who have obtained the same marks, that was a proper, relevant, reasonable norm and such a norm could not have been given a go by midstream without notifying the candidates, without apprising the candidates or even without framing relevant rules in this regard which could have brought about such change. 9. Submission is that the action as indicated in Annexure-Q the Government Notification becomes an arbitrary action not relevant for the purpose, particularly one which is sought to be pushed into effect at a time when the counselling was midway by stalling further counselling. 10. 9. Submission is that the action as indicated in Annexure-Q the Government Notification becomes an arbitrary action not relevant for the purpose, particularly one which is sought to be pushed into effect at a time when the counselling was midway by stalling further counselling. 10. Countering such submission what is urged by Sri Manohar, learned Additional Government Advocate is that there were some agitation by some in-service candidates in the context of giving weightag8, the Government thought that it was an appropriate time to formulate a better norm and length of service was thought about as a proper and enduring norm and therefore the Notification has been issued and no interference is warranted. 11. Even here, Sri Rajagopal, learned Counsel for the petitioners joins issue by pointing out that in respect of in-service candidates if seniority in-service is to be taken, it is not merely governed by the date of entry into service but amongst the candidates in the same batch, it is merit as determined by the selecting authority at the time of their selection and not necessarily the date on which they report for duty which is the norm adopted for fixing inter se seniority and such being not the norm adopted for issuing Annexure-R2 the present merit list of candidates and therefore this action also fails the test of the norm being seniority in service etc. 12. Be that as it may, what is noticed is that a Notification has been issued by the Government in terms of Annexure-Q on 12-6-2006 at a point of time when the selection procedure for selecting in-service candidates was at an advanced stage. Candidates' merit had been evaluated and their rankings indicated. Based on such ranks which had been obtained even as on 6-5-2006, candidates were being interviewed/counselled. When counselling was in progress based on such rankings, the Government could not have thought of disturbing the same by changing the norm for announcing a second merit list and which could be to the utmost detriment of the candidates who have already appeared and performed in the examination; that it could cause not only undue anxiety but could jeopardise the rankings already assigned and admissions perhaps made on counselling and at any rate having the effect of upsetting the entire selection procedure made hitherto was not warranted. Even if a change was required, it should have been made in a proper and appropriate manner, and the Government could have framed a rule after having taken into consideration all relevant aspects and instead of having recourse to such action, issuing such Notification midway only amounts to arbitrary action and perpetuation of adhocism. 13. Submission of learned Counsel for the petitioner in my view merits acceptance. The examination for in-service candidates had been held and their performance evaluated and their rankings published. That definitely gives an expectation in such candidates based on their performance in such examination. There was no flaw in the examination or the announcing of the rank list. Just because some candidates were not satisfied with any procedure that was followed hitherto or with the merit list as published, that by itself cannot be a justification for the Government to change the procedure or the norms over night that too midway. These are all matters which should be necessarily governed by rule and procedure. A rule and procedure is followed to avoid adhocism, to eliminate arbitrariness and to instill a sense of confidence amongst persons to whom such rules govern. 14. In a democratic system, transparency is the hallmark of the functioning of the Government. Rule of law should prevail in all situations. Issuing orders in the nature of Annexure-Q at any point of time which can have a most deleterious effect on the process of selection and stalling selection midway is most undesirable and at any rate amounts to arbitrary action on the part of the State Government. One can appreciate if a rule had envisaged a particular procedure and the procedure that was being followed was not in consonance with such rule and therefore the order was issued for the purpose of setting right the wrong that was done earlier. But, the situation is not so here. In fact, the Government has been dragging its feet in the matter of formulating a proper procedure by hitherto not framing a rule for such purpose. 15. Be that as it may, what had been done was in consonance with the norm that the Government had put in place followed earlier and that norm having been found to be satisfactory and relevant norm, that should be changed, it should be for a compelling reason and after following a proper procedure in this regard. 15. Be that as it may, what had been done was in consonance with the norm that the Government had put in place followed earlier and that norm having been found to be satisfactory and relevant norm, that should be changed, it should be for a compelling reason and after following a proper procedure in this regard. The notification at Annexure-Q, dated 12-6-2006 to bring about a change midway of the counselling and to redo the counselling is certainly not one which was either warranted or can be justified. There was absolutely no need for rushing an order of this nature at this point of time which if at all which can cause unwarranted disruption in finalising the selection process but also create suspicion about the action on the part of the respondent 1 rather than to support its action or to vindicate its bona fides. At any rate, the action of the respondent 1 in this regard cannot be upheld being an arbitrary action and its consequences also cannot be sustained. 16. The Government Order No. HFW 179 MPS 06, Bangalore, dated 12-6-2006 (copy at Annexure-Q) is hereby quashed. 17. Consequently, the second merit list announced by the Government produced at Annexure-R2 to the Statement of Objection also stands quashed. The merit list as had been announced earlier to be retained for the purpose of counselling. Counselling done hitherto done is sustained and the respondents to continue such counselling from the stage at which it had been stalled and complete the same based on the first merit list it had published. 18. However, counselling to be continued and the process to be completed at the earliest as the entire procedure of admission has to completed within 30-6-2006. 19. Writ petition allowed. Rule issued and made absolute.