NAVEEN KUMAR DULHANI Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS is a Letters Patent Appeal directed against the order dated 5 -7 -1999 passed by the learned Single Judge in Writ Petition No. 1979/1999 (Ritwik Pandey vs. Professional Examination Board M.P. and another), wherein the learned Single Judge has allowed the writ petition of the respondent No. 4 (herein) (petitioner in W.P. No. 1979/1999) and directed the respondent No. 2 to call the respondent No. 4 as first candidate in the second (next) counselling and allot him the seat of his choice if he is willing to accept it. It is also observed that the benefit of this order shall be given to all the similarly circumstanced candidates. The respondent No. 4 (petitioner in Writ Petition No. 1979/1999) appeared on 3 -1 -1999 in All India Competitive Entrance Examination for admission to Post Graduate Medical Courses conducted by All India Institute of Medical Sciences. This examination was conducted as per directives of the Hon. Supreme Court for admission to 25% seats of various post graduate courses in the country. This examination is governed by the Rules and Regulations made by the Government of India known as "All India Entrance Examination and Admission to M.D./M.S./Diploma and MDS Courses, 1999, (hereinafter referred to as All India Rules for short). The respondent No. 4 was placed at Serial No. 310 in the merit of the successful candidates. He appeared in All India counselling at New Delhi on 9 -3 -1999 and he was allotted a seat in S.S. Medical College, Rewa in Madhya Pradesh in Paediatrics course. He did not join this course. The respondent No. 4 had also appeared in the examination for entrance to the post graduate course as per M.P. Medical and Dental Postgraduate Entrance Examination Rules, 1999 (hereinafter referred to as 'M.P. Rules' for short). This examination was conducted on 24 -1 -1999 and the result was declared on 11 -3 -1999. The respondent No. 4 secured 4th rank in order of merit in the general category. He was called for counselling on 12 -4 -1999 at Bhopal. He was, however, not permitted to appear in the counselling and it was adjourned. He made a representation that he may be permitted to appear for counselling, but that was rejected. Hence, the writ petition (W. P. No. 1979/1999) was filed by the respondent No. 4 (petitioner in W. P. No. 1979/1999) before the Single Bench.

(2.) THE contention of the respondent No. 4 (petitioner in W.P. No. 1979/99) was that he should have been called for counselling under the M.P. Rules and he cannot be prevented from being called for counselling just because he has been called for counselling at All India Level and he has been allotted a seat in the S. S. Medical College, Rewa, in Madhya Pradesh in Paediatrics course. That petition was contested by State and the State relied on Rule 3(VI)(iv) of Chapter -2 of the M.P. Rules. An application for intervention was also filed by Dr. Sameer Agrawal and he appeared through his counsel Shri Sudhir Rawat as Intervener and he was permitted to make submissions in that petition. The learned Single Judge after considering the relevant provisions of the All India Rules as well as the M.P. Rules, came to the conclusion that the Rule 3(VI)(iv) does not prohibit the respondents from calling the respondent No. 4/petitioner for counselling. The learned Single Judge has also held that since the incumbent has not appeared subsequent to the present counselling in any examination held by State under its Rules, therefore, he is not prohibited from being called for counselling. Both the examinations were conducted simultaneously and the first result was announced by the All India Level and subsequently, the result was announced at the State. Therefore, it is not a case that the candidate has appeared in second examination held by the State thereby incurring any disability for being called for counselling. In order to appreciate the controversy involved in the matter, it may be relevant to refer to the relevant Rules pertaining to All India Entrance Examination and Admission to MD/MS Courses, 1999. All India Level examinations are held for 25% of seats of all States in country in various post graduate specialities, for which certain guidelines have been prescribed by the All India Competitive Entrance Examination. Clause 5 of the All India Rules lays down the eligibility criteria. It says that the candidate must be an Indian National. A candidate, who holds a recognised M.B.B.S. degree from a recognised medical college or a foreign medical degree included in the Schedules to the Indian Medical Council Act, 1956 and who has obtained full registration either from the Medical Council of India or any of the State Medical Councils after completing compulsory rotating internship, shall be eligible to take up the competitive examination for admission to post -graduate degree or diploma courses. It further says that the candidates who have obtained their M.B.B.S. degree from the Medical Colleges which are not recognised by Medical Council of India, shall not be eligible. It also says that a candidate who after passing the final qualifying examination (MBBS or the foreign recognized medical degree), is undergoing compulsory rotating internship/practical training and is likely to complete the same by 31st March, 1999, can take up the competitive test, but he/she shall not be eligible for admission unless he/she has completed the compulsory rotating internship/practical training and obtained full registration on or before 31st March, 1999. It further says that no condonation of compulsory Rotating Internship shall be accepted unless approved by the Medical Council of India along with necessary proof of the approval. Condonation of compulsory rotating internship shall be restricted to the period upto 31 -3 -1999 and not beyond that date. It further says that all such candidates shall have to submit the documentary proof, from the Principal/Dean of the college regarding the date of completion of internship along with the application. Clause 6 deals with option for medical courses/medical colleges and it says that the allotment of seats shall be made through personal appearance. The candidates are not required to give any choice of subject and college at the time of submission of application form. Clause 6(b) lays down certain prohibition which is relevant for our purposes, and reads as under:

(3.) "Cl. 6(b): Some of the Universities are having regulations that candidates who are already pursuing the PG Course in their University or in another University are not eligible for admission till they complete the course. The candidates who are already pursuing PG courses either through All India Quota or State Quota and are applying for a seat under All India Quota may confirm the eligibility conditions of that University in this regard. Refusal of admission to such candidates shall not be the responsibility of DGHS. Such candidates may opt for the subject and the college at their own risks and costs." Clause 7 deals with examination. There shall be one paper of three and half hours duration containing 300 M.C. Qs. All questions will be single response objective type. Clause 8 deals with declaration of results. It further says that the result shall be declared between 18th to 20th February, 1999. Clause 9 deals with merit list and it says that the merit list will consist of number of candidates equal to the number of seats available for allotment. A waiting list containing not more than 10 percent of the merit list will also be declared from amongst the successful candidates who have secured 50 percent or more marks in the competitive examination. Clause 10 deals with application form and fees for examination. Clause 11 deals with conduct of examination and Clause 12 deals with method of selection and admission. Clause 12 says that all the candidates who apply for admission and are found eligible, will be required to take the competitive entrance examination at their own cost. The examination will be conducted at the centres as given in Appendix I. Clause 13 deals with allotment on personal appearance and it says that the allotment of seats shall be made to the candidates through personal appearance. It further lays down that the candidate for personal appearance should bring their Admission Card, Rank Letter and other related certificates including the Internship Completion Certificate etc. It further ordains that the candidates will have the right to choose any one of the available seats at his/her rank and the same will be allotted to him/her and the allotment letters will be issued the next day. In case any candidate is unable to appear in person on the notified date(s) for personal appearance, he/she can send his/her authorised representative with an undertaking and Authority Letter for allotment along with original documents mentioned above, for verification. The allotment made to the authorised representative shall be binding on the candidate. Clause 13(e) says that the candidate shall be given 15 days time from the date of personal appearance, to join the allotted college and course. Clause 13(e) which is relevant for our purposes, reads as under: "Cl. 13(e): Each candidate shall be given 15 days time from the date of personal appearance, to join the allotted college and course. However, the last date of joining shall not be later than 6th April, 1999 and the intimation to the effect that the candidate has joined, be sent to the Assistant Director General Health Services (M.E.), Nirman Bhavan, New Delhi. The allotment made will be firm and final. No change is permissible under the scheme. No request for change should be sent to DGHS nor the same will be entertained."