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2008 DIGILAW 1340 (PNJ)

Hans Raj v. Maharshi Dayanand University

2008-08-08

JITENDRA CHAUHAN, PERMOD KOHLI

body2008
Judgment Permod Kohli, J. 1. The petitioner is serving as a Dental Surgeonr. The Governor of Haryana issued Notification dated 12.11.2007 declaring respondent No. 1 - Maharshi Dayanand University as the competent authority to conduct the entrance examination and declaration of results for admission to MD/MS/PG Diploma and MDS Courses in Government Medical and Dental Colleges, in the State of Haryana for the session of 2008. Respondent No. 2 was declared as the competent authority to conduct the counselling and finalisation of the admission in the aforesaid, course. Respondent No. 1 issued prospectus (Annexure P-1) containing terms and conditions for the entrance examination with the following schedule: 1. Last date of receipt of application : 04.02.2008 (Monday) 2. Date of Entrance Examination : 24.2.2008 (Sunday) (12.00 noon to 2.30 p.m) 3. Venue/Centre : Rohtak 4. Date of Counselling : 28.3.2008 5. Commencement of Academic Session : 31.5.2008 6. Last date upto which students can be admitted : 31.5.2008. against vacant seats 2. Besides laying down the qualifications and other eligibility criterion for examination/admission to the aforesaid courses, certain specific conditions were laid down for the candidates already in the service of any Government, Semi Govt., autonmous or any other organization. HCMS doctors sponsored by the State Government were eligible to appear in the Entrance through proper channel and they were required to submit their applications for getting NOCs to the department of the State well in time as provided in Annexure-D of the prospectus. For reserved category candidates, it was provided that they are eligible for NOC if he/she has completed five years service including the probation period out of which three years service should be in rural area and for open seats, the condition was three years service including two years service in the rural area. The petitioner claims to be belonging to reserved category, but at the time of last date for making applications, he was having less than five years service, but more than three years service including two years in rural area to his credit. He submitted his application form through proper channel under the open category as he was having less than five years of service as required for applying against the reserved vacancies. No Objection Certificate was issued by the Department. The petitioner appeared for MDS written entrance examination under roll No. 200167 on 24.2.2008 under the open category. He submitted his application form through proper channel under the open category as he was having less than five years of service as required for applying against the reserved vacancies. No Objection Certificate was issued by the Department. The petitioner appeared for MDS written entrance examination under roll No. 200167 on 24.2.2008 under the open category. The result of the entrance examination was declared on 25.2.2008. The petitioner secured 67.50/90 marks in the written examination and he secured rank No. 51 in the open category. In the reserved category, the petitioner claims to have ranked No. 2 as only one candidate, namely, Dr. K,K. Malhotra had secured 69.50/90 marks i.e. more than the petitioner. Only 11 candidates out of totai 380 candidates appeared from the HCMS category against open seats or against reserved seats. Since the petitioner had applied for under the open category, he did not find place in the select list on the basis of the marks secured in the examination. 3. While the process of selection was on, respondents issued fresh policy dated 10.3.2008 (Annexure P-4) allegedly revising the earlier selection policy notified vide Prospectus (Annexure P-l). Under the new policy, it was, interalia, provided that the HCMS/HMES doctors serving in Health Department may seek admission in PG Courses and entire of higher studies, will be treated as on duty and they will be paid full pay and allowances. Even the basic eligibility of five years minimum service reduced to three years service for reserved category HCMS/HEM doctors. The petitioner claims to have made an application to respondent No. 3 through proper channel vide Annexures P-5 and P-6 requesting for his consideration against HCMS reserved seats and applied for "No Objection Certificate" in that category. However, No Objection Certificate has not been issued to the petitioner. The petitioner challenged the action of the respondents of not granting NOC in CWP No. 5406 of 2008 and also claimed benefit under the revised policy letter dated 10.3.2008 (Annexure P-4). However, this writ petition was adjourned. The respondents have rejected the representation of the petitioner vide the impugned tetter dated 1.4.2008 (Annexure P-8) and letter dated 31.3.2008 (Annexure P8/A). In Annexure P-9, it has been stated that the petitioner applied for admission against the open seats vide his application dated 21.1.2008 for which "No Objection Certificate" was issued to him. However, this writ petition was adjourned. The respondents have rejected the representation of the petitioner vide the impugned tetter dated 1.4.2008 (Annexure P-8) and letter dated 31.3.2008 (Annexure P8/A). In Annexure P-9, it has been stated that the petitioner applied for admission against the open seats vide his application dated 21.1.2008 for which "No Objection Certificate" was issued to him. It is further stated that the examination was conducted on 24.2.2008 and result already stands declared before the representation dated 19.3.2008 for fresh No Objection Certificate was received by the respondents. The stand of the respondents is that the existing policy came into operation on 10.3.2008 and request of the petitioner for NOC against reserved seats cannot be allowed as this would be unfair and unjust to all other candidates who are similarly situated and also to those who applied under the old policy against the reserved seats. In Annexure P-8/A, it is also indicated that revised policy dated 10.3.2008 cannot be implemented for the current admission and will be applicable from the next year. Both these letters are under challenge in the present writ petition. 4. The claim of the petitioner is that under the revised policy wherein eligibility period for admission to PG Courses as HCMS doctors has been reduced to three years, the petitioner has become eligible and is entitled to be considered as the reserved category candidate. He has also placed reliance upon the original prospectus (Annexure P-1) wherein Clause No. 8 deals with the modified policy and reads as under: "8. any instructions/directions to modify/change any condition can be issued by the Govt, prior to counselling." 5. Based upon aforesaid condition, it is contended that the modified policy shall be applicable to the petitioner and he is entitled to be considered for admission against the reserved category as the counselling was fixed on 28.3.2008 i.e. after the notification of the revised policy dated 10.3.2008. The petitioner has also placed reliance upon the judgment of a Division Bench of this Court passed in the case of Dr. Ravinder Singh and another vs. State of Haryana and others, CWP No. 7081 of 2005 decided on 25.5.2006, (Annexure P-9). 6. This writ petition is resisted by the official respondents No. 1 to 3 as also by the private respondent No. 4 who has been admitted to the course against one of the reserved seats HCMS doctors. Ravinder Singh and another vs. State of Haryana and others, CWP No. 7081 of 2005 decided on 25.5.2006, (Annexure P-9). 6. This writ petition is resisted by the official respondents No. 1 to 3 as also by the private respondent No. 4 who has been admitted to the course against one of the reserved seats HCMS doctors. In the disclaimers filed by the respondents, the stand taken is that the revised policy has no application to the current admissions and is applicable only to such admissions that may take place after the issuance of the revised policy dated 10.3.2008. Besides that it is also the stand of the respondents that the process of admission has already been completed and the doctors stand admitted to the courses. They are undergoing the Training Courses and no admission is permissible at this stage. 7. We have heard learned counsel for the parties. Reliance is placed upon a Division Bench judgment of this Court passed in the case of Dr. Ravinder Singh (supra), The Division Bench of this Court quashed the selection/admission of the private respondents who were having less marks than the petitioners and a direction was issued to the respondents to hold fresh counselling for HCMS Category seats from the persons who had already applied and who had appeared in the counselling and after the fresh counseling a fresh merit list be prepared. The facts of the said case are on different footings in so far as the eligibility of the petitioners therein is concerned. In the advertisement/prospectus, HCMS Category candidates were eligible for Entrance Examination against reserved and open category with five years and three years experience, respectively. The petitioners in the said petition were having only three years experience and thus they applied for open category. In the original notification, the last date for receipt of the application form was 28.2.2006. The revised policy was notified on 24.2.2006 and HCMS candidates having three years service were made eligible against the reserved vacancies. A corrigendum was issued by the University on 26.2.2006 notifying the revised policy laying down revised criteria. The petitioners therein applied for fresh No Objection Certificate under the revised policy and the Government issued them No Objection Certificates after considering their representation. The petitioners took part in the counseling. A corrigendum was issued by the University on 26.2.2006 notifying the revised policy laying down revised criteria. The petitioners therein applied for fresh No Objection Certificate under the revised policy and the Government issued them No Objection Certificates after considering their representation. The petitioners took part in the counseling. They were not considered as eligible and were denied the admission against the reserved category and private respondents therein were admitted to the course. Considering the aforesaid circumstances, this Court allowed the writ petition primarily on the ground that the writ petitioners were granted No Objection Certificates under the revised policy which was notified before the last of making application under the original notification and also taking into consideration that the petitioners were having higher ranking in the examination than the selectees. However, the facts of the present case are different. In the present case, the last date for making applications was 4.2.2008. New revised policy was notified on 10.3.2008. Admittedly, as on the last date of making applications, the petitioner was not eligible. It is relevant to notice some of the relevant conditions of the revised policy as under: "xxx xxx xxx 4. The requisite length of service shall be calculated as on the date of submission of applications for the relevant course(s). B. Procedure : xxx xxx xxxx 2. Once the NOC is issued by the employer, the process of admission will be regulated in accordance with the admission rules of the Institution/ University concerned. xxxxxxxxx This policy will come into force from the date of issue. However, this policy will also be applicable to those who are already doing PG Diploma/PG Degree/ Super Speciality Courses for the remaining period of the course......." 8. Under the new policy, the length of service is to be counted as on the date of submission of the applications for the relevant course. It also provides under Clause 2 of "B. Procedure" that once the NOC is issued by the employer, the process of admission is to be regulated on that basis. The clear stand of the respondents is that the new policy is prospective in nature and has no application for the current admission in so far as it relates to the eligibility for admissions to the course. The clear stand of the respondents is that the new policy is prospective in nature and has no application for the current admission in so far as it relates to the eligibility for admissions to the course. Though this policy under the last clause confers benefit upon the doctors/candidates who are undergoing the course, however, this benefit seems to be as regards the payment of salary etc. as provided under Clause 1 which reads as under: "A. General 1. HCMS/HMES doctors serving in connection with the affairs of the State Government in the Health Department and those serving in the PGIMS, Rohtak may be allowed to apply for and seek admissions in various academic courses leading to PG Diploma/PG Degree/Super Speciality Courses in their respective streams of Medical Profession and the entire period of the higher study (PG Diploma/PG Degree/Super Speciality Courses) will be treated as on duty with full pay and allowances." (Emphasis supplied) 9. Apart from above", if the plea of the petitioner is accepted, it will cause discrimination against those candidates who did not apply under the new policy for NOC, but may have better marks and were also eligible to be considered against the reserved category. If the new policy is made applicable retrospectively, a large number of candidates who might be eligible having three years length of service have been deprived. The judgment relied upon by the petitioner has no application to the present case. The petitioner is not entitled to take the benefit of the new policy. Otherwise also, Honble Supreme Court in case of Mridul Dhar (Minor) and others vs. Union of India and others, JT 2005(1) SC 340 in paragraph 11 has fixed the cut off dates for grant of admission to professional medical and dental courses in the following manner: "Schedule for admission First MBBS/ BDS Course Postgraduate Super speciality course XXX Last date upto which students can be admitted against vacancies arising due to any reason All India Quota XXX 30th September State Quota XXX 31st May XXX 30th September 10. The present case relates to admission to PG Courses for the last date for admission under all circumstances is 31st May of a calendar year. All admissions have already been made. No relaxation is possible as far as the cut off date is concerned, in view of the mandate of the aforesaid judgment. The present case relates to admission to PG Courses for the last date for admission under all circumstances is 31st May of a calendar year. All admissions have already been made. No relaxation is possible as far as the cut off date is concerned, in view of the mandate of the aforesaid judgment. The petitioner is not entitled to any relief. We find no merit in this writ petition which is accordingly, dismissed.