PARAMJEET GAMBHIR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Leave granted.

(2.) These appeals by special leave have been preferred against the judgment and order dated 11th November, 2002 of a Division Bench of High Court of Madhya Pradesh.

(3.) The appellants appeared in the Madhya Pradesh Medical and Dental Post-Graduate Entrance Examination which was held on 24th March, 2002. The appellant No.1 Dr. Paramjeet Gambhir secured 141 rank while appellant No.2 Smita Lakhotia secured 75 rank. The first counselling was held on 8th and 9th May, 2002. According to the appellants certain seats had been surrendered from All India quota much before 8th May but the same were not included in the counselling. Under MP Medical and Dental Post-Graduate Examination Rules, 2001 a candidate who stood higher in the merit list and who did not get a course of his/her choice could forego his/her claim in the first round of counselling and had a right to appear again in the second counselling. This was commonly known as "opt for waiting". Subsequently in the year 2002 new Rules were made and Rule 15.8 of the said Rules abolished the system of opt for waiting and provided that a candidate who due to any reason did not opt for any course, subject and college available at his/her turn as per merit shall forfeit all the rights for allotment of a seat. The appellants did not opt for any seat in the first round of counselling. Initially they filed writ petitions before the Indore Bench of Madhya Pradesh High Court challenging the vires of Rule 15.8 of 2002 Rules. Since the MP High Court Rules do not permit any question regarding vires being raised before the Indore or Gwalior Bench and the same can only be done at the principal seat at Jabalpur, the petitioners preferred fresh writ petitions at Jabalpur. In the reply filed on behalf of the State Government it was pleaded that a letter had been issued to the Director Medical Education on 19-8-2002 to provide equal opportunity to all the candidates including those who were bound to accept the subjects offered to them in the first counselling as per Rule 15.8 Pre PG Rules, 2002 despite their disinclination. It was further averred that Rule 15.8 had been amended by deleting the present rule and reviving opt for waiting system. The High Court disposed of the writ petitions with certain directions and one of the main direction is that the counselling for seats which had fallen vacant before the first counselling which was held from 8th to 10th May, 2002 need not be done. In pursuance of the direction issued by the High Court, second counselling was done on 2nd/3rd December, 2002. A statement regarding the seats which are lying vacant and have not been filled up in view of the orders passed by the High Court has been given in the affidavit of Dr. G.C. Dixit, Professor, Department of Community Medicine, Mahatma Gandhi Medical College, Indore, which has been filed in this Court on 14th February, 2003. The statement shows that 11 seats including 4 in the discipline of Radio-diagnosis have not been filled up and they are lying vacant.