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Madhya Pradesh High Court · body

2007 DIGILAW 635 (MP)

Dinesh Gyanani v. State of M. P.

2007-06-21

A.K.PATNAIK, AJIT SINGH

body2007
ORDER Patnaik, C.J. -- 1. This is an appeal filed under section 2 (i) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, against the order dated 6.7.2005 passed by the learned Single Judge in Writ Petition No. 4040/2005. 2. The relevant facts briefly are that after passing the MBBS Examination in March 2002, the appellant appeared in Pre-P.G. Test 2005 conducted by the Professional Examination Board for admission to the Post Graduate Medical Courses in the Government Medical Colleges in the State of Madhya Pradesh and secured 133.99 marks out of total 200 marks and was placed at Serial No. 272 in the waiting list of general category. For the first counselling, the appellant was not called and the candidates up to Serial No. 269 in the waiting list for general category were called. Hence, the candidates in the waiting list from Serial No. 270 onwards had to wait for their turn for second counselling. Thereafter, a notification was issued on 22.5.2005 calling general category candidates in the waiting list from Serial No. 270 to 500 for filling up the vacant seats by Post Graduate Degree Diploma Courses which became available after admission was over on the basis of first counselling. The notification dated 22.5.2005 was, however, challenged in Writ Petition No. 3893/2005 by Dr. Amita Dhakad and others and on 23.5.2005 the learned Single Judge directed that the matter be listed for admission and final disposal on 21.6.2006 by which time, a counter affidavit be filed by the State and further directed as an interim measure that the petitioners in the said writ petition shall be permitted to appear in the counselling and given the allocation but shall not be admitted in the Colleges. Soon thereafter, the Directorate of Medical Education, M.P., issued another notification on 28.5.2005 superseding the earlier notification dated 22.5.2005 and by the said notification not only waiting list candidates were called from Serial No. 270 to 500 but all interested candidates selected in Pre-P.G. Entrance Test 2005 were allowed to participate in the proceedings for re-allocation on the available seats. In the annexure to the notification, a total number of 42 seats, i.e. 20 seats of Degree and 24 seats of Diploma, were shown to be available for Post Graduate Courses. In the annexure to the notification, a total number of 42 seats, i.e. 20 seats of Degree and 24 seats of Diploma, were shown to be available for Post Graduate Courses. In the annexure to the notification, it was also stated that all such candidates who have already been allotted seats in the first stage counselling and are studying therein but were desirous change of subject, course and college and all such candidates, who appeared in the first stage of counselling but have not selected the subject and college because of unavailability of seats of their choice on the subject, course and college can also participate in the process of counselling. 3. Aggrieved by the said notification dated 28.5.2005, the appellant filed Writ Petition No. 4040/2005 before the learned Single Judge and contended inter alia that under the M.P. Medical and Dental Post Graduate Course Entrance Examination Rules 2005 (for short 'the Rules') the candidate who is admitted to a particular subject, course and college, is not entitled for any change on any ground and Migration Transfer/Mutual Transfer of students undergoing any Post-Graduate Course Degree/Diploma shall not be permitted by the University or any other authority without the recommendation of the State Government and approval of Medical Council of India and hence, the notification dated 28.5.2005 in so far as it relates to· all such candidates who are permitted to such subjects in the aforesaid colleges to participate in reallocation of available seats, was contrary to the Rules and was illegal. In the impugned order dated 6.7.2005 the learned Single Judge held that on a plain reading of the Rules, it is clear as crystal that the candidates who had been called for first counselling and taken admission could not have been called for the second counselling and further held in paragraph 23 of the order that if the appellant had been called for counselling he could have been selected in respect of certain streams and he had lost the opportunity and as he has suffered, he should be granted compensation of Rs. 25,000/-. 25,000/-. Aggrieved by the impugned order dated 6.7.2005 passed by the learned Single Judge, the appellant first moved the Supreme Court in SLP (Civil) No. 16595-16596/2005 but on 11.8.2005 the Supreme Court dismissed the SLP with liberty to the appellant to approach this Court in intra Court Appeal available under the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005. Hence, this writ appeal. 4. Mr. Rajendra Shrivastava learned counsel for the appellant submitted that Rule 21 (4) of the Rules expressly provided that a candidate admitted to a particular subject, course and college will not be entitled for any change on any ground and Migration/Transfer/Mutual Transfer of students undergoing any postgraduate course Degree/ Diploma shall not be permitted by University or any other authority without the prior recommendation of the State Government and approval of Medical Council of India. He further submitted that it has also been provided in Rule 20 (11 ) (d) of the Rules that in case eligible candidates are not available in SC, ST and OBC categories, the vacant seats of said reserved categories shall be filled up by the eligible general category candidates. He submitted that the learned Single Judge held in the impugned order that the candidates who have been already admitted to particular subjects, courses and colleges were not entitled for any change on any ground and that the appellant should have been called for the counselling and had he been called, he would have been able to select the particular stream. He submitted-that once the learned Single Judge recorded the aforesaid findings, he should have directed the authority to grant admission to the appellant and should not have only granted compensation of Rs. 25,000/-. 5. Mr. Samdarshi Tiwari, learned Government Advocate appearing for the respondents, on the other hand, submitted that Rule 21 (4) of the Rules only provides that once the candidate is admitted to a particular subject, course or college, he will not be entitled for any change on any ground and hence untill the candidate is admitted after the first counselling, the said Rule will not come into operation. Thus, the notification dated 28.5.2005 in so far as it permits all interested candidates including the candidates who have been allotted to a particular subject, course and college in first stage of counselling to participate in the reallotment of available seats, was not competent to course. 6. Thus, the notification dated 28.5.2005 in so far as it permits all interested candidates including the candidates who have been allotted to a particular subject, course and college in first stage of counselling to participate in the reallotment of available seats, was not competent to course. 6. We are unable to accept the aforesaid submissions of Mr. Samdarshi Tiwari. The relevent note appendend to the notification dated 28.5.2005 is quoted hereinbelow: "All such candidates, who have already been allotted the subject and college in the first stage of counselling and they are studying therein as well, but now they are desirous of changing the subject and College. All such candidates, who appeared in the first stage of counselling, but they have not selected the subject/college because of unavailability of the seat of their choice of subject/college. All such candidates, who have appeared in the first stage of counselling, but before they get their turn counselling was declared concluded because all the seats available were tilled up, as a result of which they could not get the opportunity to select the seat." It will be clear from para 1 of the aforesaid note that all such candidates, who had already been allotted the subjects and colleges in the first stage of counselling and were studying therein as well, but were desirous of changing the subjects and colleges could participate in re-allotment of available seats. The word 'studying' would show that even candidates who had been admitted to seat on the basis of allotment of subjects and colleges in the first stage of counselling were also allowed to participate in second counselling for the available seats in the notification dated 28.5.2005. In any case, the learned Single Judge in paragraph 18 of the impugned order has clearly held that the candidates who have been called for first counselling and taken admission could not have been called for second counselling and that the State Government has created a total confusion misconstruing the Rule as if it had all the power to amend the Rule in the midstream of counselling and admission. These findings in paragraph 18 of the impugned order have not been challenged by the respondents/State Government and have become final. 7. These findings in paragraph 18 of the impugned order have not been challenged by the respondents/State Government and have become final. 7. Having held that an illegality has been committed by the State Government by allowing the candidates who have been allotted subject and college at the first stage counselling and who have been admitted to different Post Graduate Medical Courses to participate in re-allocation of the available seats, the learned Single Judge should have directed the authorities to admit the appellant in a seat if he would have been entitled to admission to such a seat in the second counselling and should not have awarded a compensation of Rs. 25,000/- to the appellant. This is because the annexure to notification indicated that as many as 20 Degree and 24 Diploma seats were available in the Post Graduate Medical Courses in different Government Medical Colleges of the Madhya Pradesh and the position of the appellant was at Serial No. 272 and the second counselling as per the first notification dated 22.5.2005 was to be for interested candidates selected in the general category from Serial No. 270 to 500 of the waiting list and thus, the appellant was 3rd among the waiting list candidates and he would have admitted to a seat which was then available. As per Notification (Annexure A-3), the subjects available were Anatomy, Phoreric, Medicine, General Medicine, Obsetrics and Gynaecology, Physiology, General Surgery, Ophthalmology, ENT, DLO, DOMS, D. Orth, D.A., D.G.O., DMRD and DCH. Hence, the appellant could have been admitted in the seat in General Medicine Degree Course. The appellant, however, cannot be given admission in the academic session 2007-2008 because the time limit within which such admissions are to be given as per the direction of the Supreme Court and as per the Rules is already over on 31.5.2007. 8. We, therefore, direct that the respondents will give admission to the appellant to a seat in M.D. Course (General Medicine) in the Government Colleges at Indore, Bhopal, Gwalior or Jabalpur in the State of Madhya Pradesh during the academic session 2008-2009. The admission will be given within the intake capacity of the College and there will be no addition of seat in the concerned college for accommodating the appellant. The appeal is allowed. The parties shall bear their own costs.