KAMLESH KUMAR UDENIA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE question involved in this writ petition is, whether a petitioner can justly invoke the equality clause enshrined in Article 14 of the Constitution of India to seek Court's direction to the State commanding it to do an illegal act in favour of the petitioner, if only because the State in its. action committed the same kind of illegal acts in favour of some others? Couched in this verbiage, the question admits of a simple anwser in the negative. But the learned counsel for the petitioner tried to make out a plausible case of hostile discrimination against the petitioner.

(2.) FIRST the facts. Dr. Kamlesh Kumar Udenia is an M.B.B.S. and Assistant Surgeon in the employment of the State of Madhya Pradesh since 14 -4 -1988. After having worked in outlying Government hospitals, he is working in the Department of Medicine in G. R. Medical College and J. A. Group of Hospitals, Gwalior since November, 1989 vide Annexure P -IV On 1 -6 -1992, the Director of Health Services, Madhya Pradesh, Bhopal invited applications from Assistant Surgeons of the State for admission to Post -Graduate Courses vide Annexure P -VII. In response to that advertisement, the petitioner made an application in the prescribed form on 24 -6 -1992 for admission to Post -Graduate Courses stating also his choices. The said application of the petitioner was not forwarded by the Superintendent, J.A. Group of Hospitals on the ground that the petitioner had not completed five years of service as Assistant Surgeon, which is the eligibility criteria given in Rule 9.3 of Madhya Pradesh Selection for Post -Graduation Courses (Clinical, Para -Clinical and Non -Clinical Courses) in Medical Colleges of M. P. Rules 1984 (hereinafter called the P. G. Rules). The case of the petitioner is that he had been working for the last more than one year in J. A. Group of Hospitals, which is approved for the purposes of undertaking compulsory rotatory internship and his total service as Assistant Surgeon was more than three years, and therefore, in terms of criteria laid down' in the Recommendations of the Medical Council of India vide Annexure P -V, he was eligible for admission to Post - Graduate Courses. The said recommendations of the Medical Council of India are approved as 'Regulations' by the Government of India under Section 33 of the Indian Medical Council Act, 1956 and have therefore, statutory force. When the Superintendent, J. A. Group of Hospitals did not forward his application, the petitioner sent the said application by post vide Annexure P -VIII. The Director of Health Services (Respondent No. 2 herein) on 30 -12 -1992 published a list of Assistant Surgeons selected for admission to Assistant Surgeon quota 1992 for Post -Graduate Courses vide Annexure P -IX: Petitioner's name does not find place in the said list. He has been unjustly denied admission to Post -Graudate Courses although he fulfilled the criteria, in terms of the Regulations of the Medical Council of India. It is further the case of the petitioner that at least four Assistant Surgeons, who are expressly named by him in paragrph 9 of his petition, are juniors to him in service as Assistant Surgeons as also lesser in merit. They have hardly put in 2 to 4 years' service. They did not fulfil the eligibility of five years of service as Assistant Surgeons mentioned in Rule 9.3 of the PG Rules. Yet they were admitted by the State to Post -Graduate Courses. Even now, many seats in Post -Graduate Courses of Assistant Surgeon quota are lying vacant. In these circumstance the petitioner seeks a writ for directing his admission to Post -Graduate Courses, and as submitted by his counsel, specially to Post -Graduate Course in Radiology (M. D. Radiology).

(3.) THE first contention advanced by Shri Modi, learned counsel for the petitioner, was that the petitioner had been treated unequally and hostile discrimination had been done against him inasmuch as at least four Assistant Surgeons, who are juniors to the petitioner in service as also lesser in merit to him, were given admission by the respondents to the Post -Graduate Courses in Assistant Surgeon quota of the year 1992. The averment in this regard is to be found in paragraph 9 of the petition. Our attention was drawn to the List of Selected Assistant Surgeons for the quota of 1992, Annexure P -IX and copy of final Gradation List of Assistant Surgeons published by Department of Public Health and Family Welfare Annexure P -X. It was pointed out after reference to them that the following Assistant Surgeons, showing their respective merit as also their standing in service, were admitted to P. G. Courses of 1992 :