@JUDGMENTTAG-ORDER
1. The petitioner is a candidate for post-graduate medical admission for July 1989 batch after one year internship. The petitioner is at Serial No. 171 in the common merit list and his choice was M.D. (Medicine) stipendary or non-stipendary. As such seat was not available at the time of first interview, second interview and reshuffling, he has not taken admission to any other branch or subject and he has not given any choice for any other subject.
2. 25% of the post-graduate medical seats are reserved for All India Candidates as per the scheme evolves under the orders of the Supreme Court. It appears that several seats in several States remained vacant in the All India Quota and the Supreme Court seems to have passed an order on 5-12-1989 permitting such seats to be filled in by the local candidates. The Director General of Health Services, Medical Examination Cell, New Delhi, informed all the State authorities that the vacant seats for the year 1989 are released with effect from 4-12-1989 to the respective States and the colleges except those for which some interim orders have been passed by any Court, and the Director General also stated that this allotment to the local candidates is being done as per the directives of the Supreme Court and, therefore, all the State authorities were requested to see that the directions of the Supreme Court are not violated.
3. In pursuance of this letter of the Director General, Gujarat University took a decision (Annexure-C). The decision is to the effect that these seats are decided to be filled in even though a period of two months has already elapsed in the special circumstances. It was further decided that these seats are to be offered only to such candidates who are already studying (i.e. admitted to a postgraduate -course) and who have given final choices. Thus, the contest to these All India seats which are to be filled in by the local candidates is restricted to the candidates who have given their final choice and who have already taken admission to the post-graduate course.
4. The petitioner is naturally aggrieved by this part of the University decision and has challenged the same as being contrary to rules. It is to be noted that M.D. (Medicine) seat released from All India Quota is available and without disturbing any of the students who are already admitted, this can be offered to the present petitioner. The present petitioner agreed that he is prepared and will undergo full three years course and he does not insist that even if he is admitted now, he should be deemed to have been admitted six months back.
5. The relevant rules framed by the, University are at Annexure-B. Rule 1.0 states that as per the directions of the Supreme Court, 25% of the total available seats will be filled in on the basis (if All competitive entrance examination for -admission to P.G. Medical Courses Rule 1.1 provides - that placement of these candidates under particular post-graduate teacher shall be decided by the selection committee of the University Rule 1.2 is important and relevant for our purpose and it reads as follows:-
"In case the seats reserved in Rule 1.0 remain vacant because of non-availability of candidates, the same will be treated as open and will be filled up from the Merit List of eligible candidates under Rule 2."
Rule 2 is for the local candidates.
6. According to the learned counsel for the petitioner, some All India seats have remained vacant because of non-availbility of candidates and, therefore, the same are required to be treated as open and to be filled in from the merit list -of eligible candidates under Rule 2. If this rule is applicable, merit list has to be operated and the petitioner would be eligible for the same.
7. However, the learned counsel for the University has submitted that the rule applicable in the present case would be Rule 5.5 which reads as follows:
"To fill vacancies arising within 2 months due to reshuffling or any other reasons second interview will be held before the end of 2 months for those eligible candidates who, were not selected at the original interview. Candidates present will be offered subject and teacher as per his merit level. The selected candidates will have to join within stipulated time which shall not be beyond 2 months from original joining date."
According to the learned counsel for the respondent, the vacancies could be filled in within two months, under Rule 5.5, and after lapse of two months, the vacancies cannot be filled in by fresh admissions and, therefore, the University has taken a decision that as a period of two months has elapsed, All India seats be filled in by giving shifting and reshuffling to the candidates who are already admitted. In the present case, nobody has Claimed this seat by shifting or reshuffling and the seat remains vacant. It is contended by the learned counsel for the petitioner that the restrictive admissions to the students who are already -admitted has no rational basis and is I arbitrary and contrary to Rule 1.2 and also contrary to the Supreme Court directions. The Supreme Court has not restricted the choice to the students who are already admitted. In fact, the intention of then Supreme Court seems to be to release the seats for local students who are waiting for admissions. There is no rational basis why it should be restricted to the students who are already admitted, to the prejudice and detriment of the persons who are higher in the, merit list. The petitioner is admittedly ranking in the merit list. The seat of his choice i.e. M.D. (Medicine) is released from All India Quota. It is not claimed by any other student and yet the University refuses to give admission to the petitioner on the ground that he had not taken admission to any other branch. The petitioner had a definite and the only choice of M.D. (Medicine) and, therefore, he was prepared to wait till such seat becomes available. If he had taken admission to any other subject, he would have been subjected to disability under Rule 5.6 because once he is selected and appointed and joins a post, he is not eligible to apply for the subject of his choice namely M. D. (Medicine), (in the present case) in future. When a candidate has a fixed and particular choice, he cannot be put to such disadvantage because he has a fixed aim and career in his mind. Rule 5.6 clearly provides that if he takes admission in a course or a subject, he has to complete the course and he is not eligible for applying in future for another subject. The only exception is shifting and reshuffling within two months where the chances are very meager and uncertain. In such circumstances, no candidate having a fixed aim for medical career can be done justice.
8. When there is an express rule .1.2 covering the subject of vacant seats of All India quota which provides as to how the seats are to be filled in, there is no scope for the University to take a decision, that such seats would be filled in from amongst the candidates who are already admitted to some course. The University seems to have acted on the objects underlying Rule 5.5 and restricted the admissions to the students who are already admitted. The learned counsel for the University has submitted that fresh admissions at the fag-end of the term would be against the interest of education and interest of the students and has relied on the observations of the Supreme Court in the case of
The All India seats released by for the Supreme Court for local candidates for the first time at the fag-end of the academic term. Even at that stage, the Supreme Court itself has permitted seats to be filled in by the local candidates. The candidates are not in any way to be blamed. The seats were released at the fag-end of the Academic term and were intended to be filled in. If the decision in Ajay Pradhan''s case (supra) is to be mechanically, applied the Supreme Court direction issued .on 4-12-1989 becomes redundant and cannot be complied with at all. In the present case, rule 1.2 which makes an express provision for the vacant seats of All India quota can directly take care of the present situation without any violation of any provisions to any other rules and the decision of the University to restrict the admissions to the students who are already admitted cannot be said to be legal and valid being contrary to rule 1.2.
9. At the time of admission of this petition, in the facts of the case, it wag directed that notwithstanding anything contained in rule 3.8 of the rules produced at annexure-B, seats for the term commencing from July 1989 shall not lapse till further orders of this Court. Rules 3.8 provides that seats can only be ultiliscd in the same current academic term and vacancy in one academic term cannot be utilised any time in subsequent term and the vacancy of earlier term also cannot be filled up. This order was passed on 29-12-1989 as the term was expiring on 31-12-1989 and the court was unable to finally decide the matter. Therefore, the post-graduate seats have not been allowed to lapse by the interim order of the Court and would remain available.
10. The petitioner is at serial No. 171 in the common merit list and he did not get admission to M.D.(Medicine) whereas person below him in the merit list at serial No. 173 has been given admission to M.D. (Medicine) in December 1989 as a result of reshuffling, as per the impugned decision of the University. That candidate had earlier taken admission in Diploma in Pediatrics. The University gave admission to the candidate at serial No. 173 on the ground that he had already taken admission and, therefore, permitting him to avail of the vacancy in M.D. (Medicine) would not amount to fresh admission. This has resulted in denying the admission to the petitioner who is higher in the merit list at serial No. 171. However, the petitioner is not interested in challenging or canceling the admissions already given in view of the fact that a vacant seat is still available and without disturbing anyone, the petitioner can be accommodated on the available seat. The petitioner has also agreed that even though he is getting admission in the batch of July 1989, and he is getting admission at the fag-end or even beyond the academic term, in view of the peculiar circumstances of the case, he has agreed to undergo full three years course in M.D. (Medicine).
11. In the result, the petition succeeds and it is declared that the petitioner is eligible for admission to post graduate course in M.D. (Medicine) to the vacant seat released from All India Quota and not allowed to lapse by the interim order of this Court, on the basis of his merit number 171 in view of the provisions of Rule 1.2 of the Gujarat University Rules for post-graduate medical admission and the respondents are accordingly directed to give admission to the petitioner in that vacant seat It is made clear that the Court does not disturb the admissions which are already granted to the M.D. (Medicine) course in view of the fact that it is not necessary having regard to the vacancy being still available in which the petitioner can, be accommodated.
Rule made absolute accordingly, with no'' order as to costs. Writ to issue forthwith.
12. Petition allowed.
