SUSHANT JOSHI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BY the instant writ petition under Article 226 of the Constitution of india, the petitioner herein seeks quashing of the impugned order Annex. 5 dated 21-5-2008 and also seeks staying of the counselling of in-service candidates scheduled to be held on 28-5-2008 and 29-5-2008 on the basis of the merit list prepared after dispensing with the negative marking.

(2.) THE facts and circumstances giving rise to the instant writ petition by the petitioner, as has been averred in the writ petition are that the petitioner completed his mbbs from M. S. Ramaih Medical College, bangalore, in the year 2006 and appeared in Pre-Post Graduation Medical examination, 2008 conducted by the respondent No. 2, the Rajasthan University of Health sciences, Jaipur (for short, "the university" hereinafter) on 20-1-2008 and stands in the non-service category. He has been placed in the merit at serial No. 100 and 101 vide annex. P/2. The said examination of 2008 was conducted by the respondent No. 2 university as per the Instructions Booklet containing information relating to the seats and reservation, eligibility for admission, details of examination, declaration of result etc. vide Annex. P/3 and stated that as many as six medical colleges are in Rajasthan to give admission to M. D. , M. S. /diploma courses, for which there are 360 seats for m. D. and M. S. and 68 seats for Diploma. 50% of the total seats available in various m. D. /m. S. /diploma courses are to be filled up as per the allocations made by the director-General of Health Services, government of India, on the basis of the result of all India Competitive Entrance Examination for admission to P. G. Courses (M. D. /m. S. / diploma) on the basis of merit and 50% of the total seats available in various M. D. / m. S. /diploma courses are to be filled up on the basis of merit of Pre-P. G. Medical examination, 2008 at the State Level. Out of remaining 50% seats available at the State level, 50% of which are to be filled up by inservice candidates and remaining 50% by non-service candidates as per the ordinance 278 E and G of the Rajasthan University ordinance as modified and adopted by the rajasthan University of Health Services, jaipur. Further distribution of seats among general and reserved categories shall be made as per the rules and regulations of medical Council of India and the directives of the State Government/hon'ble Courts in this regard. Thus, according to the petitioner, 50% out of 368 seats are to be filled-up through Pre-P. G. Medical Examination, 2008 on the basis of the result of All India competitive Entrance Examination for admission to P. G. Course (M. D. /m. S. /diploma ). The remaining 50% seats are further bifurcated in two categories, viz. 50% in-service candidates and rest 50% thereof for non-service candidates. In-service candidates are those doctors, who are serving in the Government Hospitals and the non-service candidates would be other than those who are serving in the Government hospitals. According to the petitioner, by the impugned order Annex. P/5, negative marking in respect of in-service candidates, irrespective of their class whether from general class, Scheduled Castes, Scheduled Tribes or Other Backward Classes, has been dispensed with; whereas the non-service candidates are required to qualify with the examination with negative marking and on these premises, the petitioner has assailed the dispensing with the nagative marking in respect of in-service candidates and contended that the dispensing with the negative marking in respect of in-service candidates is discriminatory; hence this writ petition.

(3.) A reply to the writ petition has been filed by the respondent-State raising certain preliminary objections that the petitioner cannot be said to be an "aggrieved person"; even if the dispensing with the negative marking in respect of in-service candidates had not been there, the petitioner would not be entitled for the admission to P. G. Courses. It is submitted that so far as in-service candidates are concerned, there are 109 seats allocated to them and as many as 37 persons have already been selected even on the basis of negative marking and the stand of the petitioner, even if accepted though denied the petitioner would not fall in the list of candidates eligible for admission to P. G. Course in M. D. /m. S. /diploma. Taking 109 seats, out of which 37 in-service persons have been selected even on the basis of negative marking i. e. pre-Annx. 5 and there remains only 72 seats (109-37=72) and if these 72 seats are transferred to the non-service category then the total seats available to the non-service category would be 112 seats i. e. 50% of the total seats available to the State level + 72 seats sought to be transferred, which would come to 184 and as per the roster system, out of 184 total seats for non-service candidates, 94 seats will be for the general category and out of 94 seats, if 25% seats are to be reserved for girls (general)there would remain only 70 seats in general category for boys and even according to the admission of the petitioner himself, the petitioner stands at the merit No. 101, though according to the result available with the respondents, the petitioner stands at merit no. 102 and not merit No. 101 and, thus, in any case, even if the case set up by the petitioner is accepted then also the petitioner would not be eligible for allocation of the seat as a non-service candidate and, therefore, on this ground, the respondent-State emphatically contended that the petitioner cannot be said to be an "aggrieved person".