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Dr. Sanjiv P. Desai Vs. the Dean and the Member of the Baroda Medical College Council and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR1006
AppellantDr. Sanjiv P. Desai
RespondentThe Dean and the Member of the Baroda Medical College Council and ors.
Cases ReferredRasesh C. Choksi v. State of Gujarat and Ors.
Excerpt:
- - university, baroda in october 1978 with good number of marks. those students who aspire for further post-graduation training would obviously like to learn and earn simultaneously and, therefore, these resident doctors' posts have always remained a matter of keen watch and contest. ' the petitioner, after he started officiating as the houseman in general surgery, developed second thoughts, and he perhaps thought that all may not be well with him, if he carried his earlier design to its culmination. the petitioner applied and a merit list, annexure a, bad come to be made at that time, but a note, was made below his; a post may be a one year's post, but the appointment can well be made only for the period of six months. (1978)illj187sc .in that case, the appellant there was appointed.....n.h. bhatt, j.1. this petition was presented to this court on 30-7-80 by a medical graduate seeking appointment as a houseman in radiology. this petition raises an important question pertaining to admission to medical colleges, entrance to which has remained an apple of discord and cut-throat competition for many years.2. a few facts require to be closely stated in order to comprehend what controversy is raging in this petition. the petitioner passed his final m.b.b.s. examination conducted by the m.s. university, baroda in october 1978 with good number of marks. one year's internship is obligatory for all students who clear the m.b.b.s. examination before they are entitled to get a degree and before they are entitled to practice and/or to prosecute further studies. the petitioner.....
Judgment:

N.H. Bhatt, J.

1. This petition was presented to this Court on 30-7-80 by a medical graduate seeking appointment as a Houseman in Radiology. This petition raises an important question pertaining to admission to medical colleges, entrance to which has remained an apple of discord and cut-throat competition for many years.

2. A few facts require to be closely stated in order to comprehend what controversy is raging in this petition. The petitioner passed his final M.B.B.S. examination conducted by the M.S. University, Baroda in October 1978 with good number of marks. One year's internship is obligatory for all students who clear the M.B.B.S. examination before they are entitled to get a degree and before they are entitled to practice and/or to prosecute further studies. The petitioner completed one year's internship also in December 1979 and aspired for post-graduation studies. The Government in order to have qualified staff to manage their hospitals and also to encourage further studies, have with them the plan to recruit Resident Doctors, who are of two categories. Housemen and Registrars. Those students who aspire for further post-graduation training would obviously like to learn and earn simultaneously and, therefore, these resident Doctors' posts have always remained a matter of keen watch and contest. In order to makes systematic provisions in this regard, the Government has framed Rules styled as the Rules for the appointment of Housemen in Government Medical Colleges and its attached Hospitals in the State as also the Rules governing the appointments of Registrars at these institutions. They are different sets of Rules. We in this petition are concerned with the Rules for appointment of Housemen.

3. The Final M.B.B.S. examinations are held twice a year and the results are out in about April and October every year. The term for Housemen, therefore, commences on 1st August and 1st February every year. Those who have cleared their internship period in June or thereabout can hope to work as a Housemen from 1st August and those who have cleared their internship in December can aspire to be Housemen on and from 1st February. Applications are, therefore, invited by public advertisement published respectively in about September and March of the year. Pursuant to that advertisement, candidates are required to make applications, to which is required to be annexed any number of choices of subjects of specialised post-graduate learning in order of preference irrespective of major subject heads or specialised subjects. After getting such applications, the College council calls the candidates merit wise for interview. At the time of interview, the candidate is permitted to change the number and preference of his choices, if he so desires. Students are likely to revise their choices after knowing the actual posts available in a particular branch at that particular point of time. The candidates, however, are required to write out their final decision of choices and preferences and sign it and this final choice list is to be attached to the candidates' original application as a record. Rule 6C(4) then provides that if the candidate excludes any Vast from his preference, he will not be considered for the post in that subject even if he stands in merit for the same. It is to be noted that in the initial preference fence list or in this eleventh hour preference list, a student is not required to confine himself only to one or two or three subjects. The form appended to the Rules speaks of as many as 30 subjects, as could be gathered from the Nos. 1 to 30 mentioned there. Rule 6 C(4) further provides that 'all procedure at this stage (of selection) and in future will be based on this final choice and the candidate will not be permitted to change it under any circumstances'. Then Rule 6 C(6) lays down that fresh candidates' merit list will be used for all posts meant for fresh applicants as per Rule 3-A and merit wise each fresh candidate will be offered post of his highest available choice at the interview. Fresh candidates will not be given post meant for experienced candidates' (there are certain posts for experienced candidates. They are candidates who have already put in one year's houseman ship. Such persons are getting some posts of Housemen and that appears to be the basis of Rule 6C(6) and Rule 3(A).

4. If a candidate does not get any of the posts of his choice, his name will continue to remain in the merit list because he may subsequently get any post, if there are any drop outs. Rule 6 D then provides that the appointment is to be made by the Dean or Superintendent as per the final selection by the College Council subject to the approval of the Director of Medical Education and Research Then Rule 6E provides that in case the fresh candidate does not join on the day of 'incoming', the seat will be considered vacant and appointment to the post will be made as per Rule 7. This term 'incoming' also deserves to be understood. As said above, selection takes place in June and December. Actual term of a housemen commences on 1st August and 1st February. Here is, therefore, invariably a period of about a month between the date of selection and the commencement of the working of the Houseman's post. In order to enable the prospective houseman to have some practical training, they are allowed to start functioning in the hospital for that intervening one month, which is known as the period of 'incoming'.

5. Even after the final selection has been made by the College Council, some students may drop out. They are known as 'drop outs'. Some students after their selection may not pay up the fees as are required to be paid there and then. Some students may not file the undertaking in the form appended to the Rules to the effect that the candidate would carry out his duties diligently and conscientiously for the period for which he is appointed and that he would prosecute his studies for higher qualification in the subject and to give satisfactory evidence of his having done so. What is to be done in respect of these vacancies? Rules 7A and 7B deal with such situations. Rule 7A states that the vacancies arising out of drop outs or other vacancies arising after regular appointments, will be filled up by the committee consisting of the Dean, Senior most full-time Professor and senior most full-time Professor of the concerned department. Before making fresh selection from the lists, candidates who are already appointed but who did not get the post of their higher available choice are to be given option to switch over to the available choice, if possible. If the vacancies could not be filled, the persons on the waiting list referred to above in Rule 6C(7) will then be again called for interview and offered the post of their highest available choice. Here also, the merit wise criteria is to be followed as specified in Rule 7B, but the Rule makes it clear that this is to be done up to 1st July or 1st January.

6. As far as the petitioner is concerned, he had annexed to his application the list of his preferences. At that time he had put General Surgery as the first choice and Radiology as the second. Because of his high placement in the merit list and because of his repetition of his preferences at the time of interview, he was appointed as a Houseman in General Surgery. At the time of hearing of this petition, the appointment order issued by the Dean, Medical College Baroda, was produced for my perusal and it inter alia states as follows:

The tenure of the post shall be one year. Your appointment is made for six months in the first instance renewable for the further period subject to satisfactory report.

7. Rule 3 of the above Rules provides inter alia as follows: '...In case of candidates who do not register themselves for post-graduation as in Rule 5(iii) even when vacancies exist, the tenure shall be reduced to six months.'

The petitioner, after he started officiating as the Houseman in General Surgery, developed second thoughts, and he perhaps thought that all may not be well with him, if he carried his earlier design to its culmination. He, therefore, did not apply for registration in General Surgery, but he continued to function as a houseman in General Surgery. Then came up the second turn of recruitment of Houseman. Advertisements were issued somewhere in July 1980, inviting applications for the post of Housemen. I have already said above that recruitment to the post of Houseman is made twice a year. Selection is once held in December and then in June or July. The petitioner applied and a merit list, Annexure A, bad come to be made at that time, but a note, was made below his; name that he was 'not eligible for house post'. At this time, the petitioner mentioned Radiology as the only choice of his. He was then called for interview and he reiterated that he was out for the post of a Houseman in Radiology. The respondent No. 1. Dean had called him on 23-7-80, but he was orally informed at that time that his candidature was barred as was already notified in the merit list itself. As the petitioner was no selected for the post of a Houseman in Radiology, the respondent No. 3 got opportunity. The petitioner, therefore, filed the present petition on 30-7-80 impleading the Dean, the Director of Medical Education & Research and the respondent No. 3 as parties, after finding that his representation to the Dean being dated 25-7-80 would surely fall on deaf ears,

8. The petition has been sought to be supported by two grounds and none other. They are:

(1) There is no bar in the Rules in question against the petitioner's fresh application and his fresh selection for the post of a Houseman in Radiology;

(2) The respondents Nos. 1 and 2 had. permitted four other candidates similarly situated, whose details are set out in the petition paragraph 3.17(A), 3.17(B), 3.17(C) and paragraph 20, whom were allowed to apply afresh despite their having been offered houseman ship in another subject at the interview held in December and despite their having worked for six months as a Houseman in a different subject in a term operative from 1-2-80 in the respective post in that respective subject. So there is no reason why the petitioner, who is similarly situated, should not be accorded the same treatment and this having not been done, discrimination violative of Articles 14 and 16 of the Constitution of India has been practised by the respondents Nos. 1 and 2 and respondent No. 1 particularly and, therefore, the petitioner prayed for a write of Mandamus or a writ in that nature or any other appropriate writ or direction to be issued declaring that the petitioner was eligible for appointment as a Houseman and was eligible for registration in the subject of Radiology with effect from 1 -8-80 in regular manner and that the name of the petitioner should %e at serial No. 1 in the merit list.

9. Though in this matter a notice was issued on 20-8-80 and a rule was issued as back as on 29-8-80 with the order of expedition of the hearing of this petition and even though this matter was called out even before the X-mas vacation and during X-mas vacation as a specially fixed matter and even though more than four months' period has since then elapsed, the respondents Nos. 1 and 2 have chosen not to file any affidavit-in-reply. Time and again the alleged proverbial delays of courts are cried down. It is truism to state that the State or its officers are the biggest litigants in the court. Their cases unfortunately more often than not go undefended or half-heartedly defended and this case is one of the glaring instances of the type. In view of absence of any denial to the factual averments made by the petitioner in this petition, what has been stated is required to be accepted as true, except in so far as the respondent No. 3 has been able to challenge the factual averment. The petitioner has set out in paragraphs 3.17(A), 3.17(B) and Para 3.17(C) and in paragraph 20 of the petition the four cases of four such candidates allegedly similarly situated and their having been accorded the treatment, the denial of which in the petitioner's case is the subject matter of enquiry in these proceedings. AH that the respondent No. 3 stated was that averments were not admitted, but he too was not in a position to controvert specifically that what has been asserted with details by the petitioner in that regard was not true. I, therefore, accept those factual averments and proceed to decide the two only contentions raised by Mr. Tanna for the petitioner in the course of the hearing.

10. The first question pertains to the scope and ambit of the Rules. It is the gravamen of the petitioner's contention before me that there is no bar against his applying for the post of a houseman knew when the second opportunity came in his way. I have already said above that applications from the intending candidates are invited by issuing a public advertisement somewhere in September and March and the interviews are held in about December and June and selections are made by 31st December and 30th June so that the incoming period starts in January and the actual appointment of a houseman commences on 1st February or the incoming period starts on 1st July and the houseman's post starts to be operative on and from 1st August. It is common ground that the petitioner was otherwise competent and eligible for applying for the post of a houseman in pursuance of the advertisement issued somewhere in June 1980 or thereabout. It is also not in dispute that had there been no ban on his being considered afresh, lie would have got the appointment as a Houseman on this second occasion in the subject of Radiology because he was at Sr. No. 5 in the merit list Annexure A whereas the respondent No. 3, who occupied that post in lieu of him, is at Sr. No. 33 in that very merit list.

11. On behalf of the respondents, however, two provisions of the Rules made by the Government were pressed into service. The first provision is Rule 4 of the Rules, which is quoted below:

4(1) Candidates will not quit their appointment before completion of the tenure. In case they do not complete their tenure and leave the post, their services will be considered as terminated.... Such candidates will not be considered for appointment to any resident post in future.....

It was urged very vehemently on behalf of the respondent No. 3 by Mr. Girish Patel, his counsel, that the petitioner's appointment was for the period of one year and he did not complete the same and for all practical purposes, he can be said to have left the post and, therefore, he was debarred from being considered for appointment to any Resident post in future including the post of a Houseman. The argument suffers from two defects. It proceeds on the assumption that the petitioner's appointment was for the full tenure of one year. The tenure of the post and appointment for the period of the tenure are two distinct things. A post may be a one year's post, but the appointment can well be made only for the period of six months. In the case of the petitioner, as per his appointment order shown to us at the time of hearing without any demur from the other side, his appointment was only for the period of six months specifically. The words in that appointment order are reproduced by me. Clause 3 of the appointment order specially reads as under:

The tenure of the post shall be one year. Your appointment is made for six months in the first instance renewable for the further period subject to satisfactory report.

It is, therefore, not correct to say that the petitioner's appointment was for the full tenure of one year and he did not complete that tenure. Even if it is assumed that as the post was of one year's tenure and the petitioner was assured of the renewal for the further period of six months subject to satisfactory performance of his duties, he cannot be said to have left the post. A similar term occurring in the Registrar Rules made by the State of Gujarat, i.e. Rule 23, is reproduced below:

23. The candidates who are appointed on any of the resident posts and leave without completing the tenure of their appointment shall not be considered in future for the post of Registrar.

This Rule 23 quoted above had been the subject matter of decision by the Supreme Court in the case of Rasesh C. Choksi v. State of Gujarat and Ors. : (1978)ILLJ187SC . In that case, the appellant there was appointed as a Houseman in Obstetrics and Gynecology from 1-1-75 to 15-1-76. The appellant bad special aptitude for the subject and he wanted to pursue his studies by becoming a Registrar in that department whenever such vacancy fell. The petitioner, however, was appointed as a Registrar of Anesthesia and he accepted the same in the hope that would be a stepping stone for his appointment as a Registrar in the department of Obstetrics and Gynecology, which had not fallen vacant till that time. On joining the post of the Registrar of Anesthesia, he gave an undertaking to serve in that capacity for a period of one year. Later, on the 15th March 1976, the appellant there received a communication that the term of his tenure was extended to another year, that is to say, that the tenure of the post was extended to two years instead of one. At that time, no undertaking was insisted upon from him. Then an advertisement for the post of the Registrar of Obstetrics and Gynecology which fell vacant with effect from 1-1-77 came to be issued and the appellant there along with others applied for the said job. The director was of the opinion that the appellant was not eligible for that post, because he had not completed the full tenure of the post of Registrar of Anesthesia and so the appellant, by recourse to Rule 23 quoted above, could not be considered and he in fact was not considered. The Supreme Court held that the appellant could not be said to have 'left' his post. No bar of the nature stated by the Director was read by the Supreme Court in the above quoted Rule 23. The Supreme Court inter alia observed as follows:

The word 'leave' used in Rule 23 has been used not as a noun but as a very. If used as a verb the word 'leave' postulates that the candidate who is appointed to a Resident post must have left or forsaken the job for ever and ceased to remain in service, in which case alone he would not he considered for promotion to the post of Registrar.

In the case on hand, the petitioner's appointment automatically came to an end on the expiry of six months' period because he had not himself got registered for the post-graduation studies in General Surgery. Automatic termination of the post or office is different from leaving that office. Leaving the post presupposes the otherwise continuity of the post. If the post itself does not continue on and from 31st July, the petitioner cannot be said to have left the post. So the bar contained in Rule 4.1, which is no doubt an absolute bar, cannot be invoked in the case of the petitioner.

12. Alternatively, reliance was strongly placed on Rule 6C(4), which is required to be quoted below:

6.C(4). The College council at its meeting, will call the candidates merit-wise for interview. The candidate will be permitted to change the number and preference of his choices, if he so desires after knowing the actual posts available at the time. In any case, each candidate will write out his final decision of choices and preference and sign it. This Final choice will be attached to the candidates' original application as a record. If the candidate excludes any post from his preference he will not be considered for the post even if he stands in merit for the same. All procedure at this stage and in future will be based on this final choice and the candidate will not be permitted to change it under any circumstances.

(Emphasis supplied by me).

The sentence underlined by me while quoting Rule 6C(4) was pressed into service vehemently both by Mr. Takwani, the learned Assistant Govt. Pleader and Mr. Girish Patel. It was time and again urged that there must be a finality of choice. Nobody can object to this. What Rule 6.C(4) requires is that in the final choice if any subject is dropped, it will be deemed to have been dropped for further occasions in the course of the said selection for that term. The reference to the words 'in future' in the above-quoted sentence does not refer to future occasions arising pursuant to the fresh advertisement, fresh selection and fresh appointment. Rule 6.C deals with 'procedure and selection'. As said above, the exercise of this procedure is to be undertaken by the Dean on two occasions in a year. In the first round of procedure, there is the first stage referred to in Rule 6.C(4) when a candidate has to give his final list of chances. The word 'final' put in the capital letters and put in singular in the Rule itself is not indicative of anything because the form of final choice list appended to the Rules, as already said by me while giving synopsis, does not obligate student to state only one subject. As many as 30 subjects or even more can be mentioned even in the so-called final list, it is for this reason that I say that the use of the singular number of choice in this sentence is not necessarily referable to a single subject to be chosen. Rule 6.C(4) is to be read in conjunction with Rule 7B which deals with the second stage of selection in the course of the first or second occasion of selection of the year, which selection takes place in June and December every year. Say for example at the first sitting the college council fills in all the posts of Housemen in different subjects. There are 'drop outs' so-called. What is to be done with respect to those vacancies? Rule 7.B deals with the situation. It is quoted below:

7.B. Before making fresh selection from the lists, appointed candidates will be shifted to posts of their highest available choice; also those non-appointed candidates on the merit lists who did not get the post of their choice should be again called for interview and offered the post of their highest available choice. Both these categories will be considered according to their position in the merit list. This will be done up to 1st July or 1st January.

This means and must mean that if at the selections made in December and June some drop outs turn out to be there, a smaller body called the committee consisting of the Dean, senior most full-time professor and; the senior most full-time professor of the concerned department, shall hold the second stage of the selection for that term and fill in those posts. I It is in this sense of the second sitting that the phrase 'in future' occurring in Rule 6.C(4) is to be considered. Say for example at the time of interview, a student has given a final list containing three choices or preferences. At the second stage of the selection of the first time, that f very final selection or choice made by him will be considered as the part of his application and those vacancies will be filled in firstly by giving option to the appointees to shift to their highest available choice and still if some vacancies remain, they will be filled in by non-appointed candidates selected on merit and they will be offered the post of their highest available choice. So the words 'in future' occurring in Rule A6.C(4) do not deal with the second selection or the subsequent selection that arises for the second term or another following term. Rule 6.C(4), as it is in the context in which it is placed, does not lead to this conclusion, sought for by respondents.

13. Mr. Girish Patel, however, placed more reliance on Clause (vi) of Rule 5 in support of his proposition. Said clause reads as follows:

5(vi). If a candidate applies for any of the above posts and does not accept the post of his choice when offered, he will not be considered for post in those major subjects in future. For this purpose, selection of the candidate at the meeting of the College council will be considered as offer of the post. Candidate's inability to pay the deposit or sign the undertaking as per Rule 8 will be taken as rejection of the offer.

The text of above clause ex-facie deals with a situation where offer is made, but is not accepted. Such a man forfeits all future changes to be considered. Here the words 'in future' necessarily means not the second or third stage of the selection for the first or the second term of the year, but obviously the first stage of the selection. Can we say that the petitioner's case falls under this disabling clause? He had applied for the post and he had accepted the post of his choice when offered. He cannot be said to have rejected the officer. Under the rules and under a the order of his appointment, he was appointed for the period of six months. The condition was that he should get himself registered with the University concerned for prosecuting studies in that particular branch, and if he did not do so, the consequence that would follow will be refusal of renewal. This is the only consequence provided for not getting registered. So strictly speaking, Rule 6 cannot be said to be attracted. Mr. Patel, however, urged that these Administrative Rules should not be interpreted in the manner we do while interpreting the statutory rules. He invited my attention to a possible anomaly that might arise on the interpretation suggested by Mr. Tanna for the petitioner. Mr. Patel argued that if a candidate who refused to accept the post ab initio will forfeit the chance, but who worked for six months and did not avail himself of the renewal, which was available to him, would not be in a position to escape the rigors intended to be. laid down by the rule-making authority. In my view, Mr. Patel's submission is not well-Tounded. In the absence of statutory Rules, administrative rules or instructions take the place of those rules. When the question of interpretation of such administrative rule arises, the normal rules of interpretation must get attracted. The first and foremost rule of construction is that the Rules should be construed by deriving the normal and natural meaning of the various terms employed in that provision. Extraneous aides can be had if and only if the text is dubious or is open to more than one interpretation. The text of Clause (vi) of Rule 5 quoted above specifically refers to only one contingency. If the framers of the rules wanted to shut out even those who changed their minds later on but completed the period of their appointment, namely, six months' service, there was nothing to prevent them from suitably framing the Rules. When any disability is sought to be attached, this disability must be specific and clear. All this in my view is exercise in futility because in the case of four other Doctors, four aspirants for the posts of post-graduate students and housemen referred to in the petition and with whom I am going to deal a little later specifically, the authorities themselves did not invoke this provision and this is clearly indicative of the situation that they do not interpret the rule in the manner Mr. Patel wanted me to do. The four persons, whose cases are to be referred to in details a little below, were actually working as Housemen in different subjects. They had made applications for the post of Housemen commencing on 1st August 1980. Obviously they must not have registered in the subject, which were offered to them in the month of January or February 1980. They hoped to get the subjects of their choice at the second round of selection and they applied and they were considered. They were not treated as disqualified or barred by recourse to above-mentioned Clause (vi) of Rule 5 this moans that the authorities who are entrusted with the charge of implementing these Rules did not interpret the above-mentioned Clause (vi) in the manner Mr. Patel suggested. Mr. Takwani had in this connection cited before me the judgment of the Supreme Court in the case of Principal Patna College Patna and Ors. Kalyan Srinivas Raman : [1966]1SCR974 and urged that where two interpretations are possible in respect of a regulation, the High Court generally would not treat it as expedient to reverse a decision of the educational authorities on the ground that the construction placed by such authorities on the relevant regulation appears to the High Court less reasonable than the alternative construction which it is pleased to accept. When the authorities did not invoke this Clause (vi) of Rule 5 in respect of those four Doctors, the question of one interpretation or the other interpretation or the possibility of two interpretations does not at all are.

14. In above view of the matter, I do not find any provision in the Rules which precluded the petitioner from applying afresh at the second round of selection to be made for filling in the post of Houseman becoming operative from 1-8-80. If the case of those four Doctors could be considered, there is no earthly reason why the case of the petitioner should be treated differently.

15. Mr. Takwani, however, tried to bank on one circumstances, which is a differentiating one no doubt. The petitioner had given his final choice at the time of interview of December '79 and General Surgery was his final choice. Those four persons, namely, Dr. Bharani B.P., Dr. M.R. Patel, Dr. M.G. Bhatt and Dr. Shah A.N. had shown some other subject as the first choice of theirs. They had got houseman ship in the subject second or third in the list of their preferences, but this differentiation is not gername for the purposes of treating them as persons belonging to a different class. These personal were considered as fresh applicants, even though they could be said to have not availed themselves of the earlier offer of a housemen's post. Rule 4 of the Rules quoted above was not invoked in their case. If it was not so invoked, and I say not rightly invoked, there is no occasion to invoke the same, when the petitioner's case came to be examined. Similarly, Rule 6.C(4) also was not invoked in their case, and rightly so as I have already stated above. There was no occasion, therefore, to invoke the same in the case of petitioner as well.

16. For the purpose of recording details, it is to be seen that Dr. Bharani, SI. No. 10 in the merit list, Annexure A, was Resident Anaesthist, which is a post equivalent to houseman ship in Anesthesiology from February 80 to July 1980. With effect from 1-8-80, he was given houseman ship in General Surgery. Dr. Bharani had not got himself registered for degree or diploma in Anaesthist within the prescribed time limit laid down by Rule 3. In spite of that fact, he was given an appointment for one year on and from 1-8-80. As has been held by me to be the case of the petitioner, so was the case of Dr. Bharani, whose earlier tenure of six months' housemanship came to an end on 31-7-80. He was, therefore, for all practical purposes on the same pedestal as is the case of the petitioner.

17. Dr. M.R. Patel, SI. No. 19 in the merit list, Annexure 4, was given houseman ship in Anaesthist from February 1980, for the period of one year. He too did not register himself within the prescribed time limit as a post-graduate student in Anesthesiology and so his services stood terminated or, 31-7-80. He was given a fresh chance to apply and he was appointed as a houseman in General surgery on and from 1-8-80. His earlier alleged leaving of the post of Houseman in Anaesthist did not serve as a bar to his fresh application for the post of a houseman in general surgery. There is no conceivable reason why the petitioner's application, similar in all respects except the minor detail, was not accorded the self-same treatment.

18. The third similar case is of Dr. M.G. Bhatt who was at Sr. No. 35 in the merit list, Annexure A. He was given houseman ship in Tuberculosis effective from February 1980 and the appointment was for the period of one year divided into two terms of six months each. He did not get himself registered as a post-graduate student in tuberculosis and so his appointment also came to stand terminated on and from 1-8-80. His fresh application was considered in July 1980 and he was offered the post of houseman in another Branch, namely, Skin and V.D.

19. The fourth case is of Dr. A.N. Shah, Sr. No. 2 in the merit list. He was initially appointed as a houseman in medicine. However, after working in one branch, he requested the college authorities to give him registration in Radiology and from 14-3-80 to 31-7-80 he has been a postgraduate student in Radiology. Said Dr. Shah applied for houseman ship in pathology. Despite the time limit for change having expired as per Rule 7B referred to above, he was given accommodation and he was considered eligible for the post, but whether he was appointed or not was not known to the petitioner at the time he filed the petition.

20. The above instances will show that the authorities while dealing with the cases of those four persons, and particularly the first of those four persons, did not treat the final chance as final for all purposes. Rule 6.C(4) in their case was not invoked, and as I have emphasised, quite rightly. The invoking of the said very Rule 6.C(4) in the case of the petitioner is, therefore, unjustified.

21. I had put a pertinent question to Mr. Girish Patel appearing for the respondent No. 3 and Mr. Takwani, appearing for the respondents Nos. 1 and 2, to point out any other provision in the Rules, which would debar a fresh application. Neither of them could point out any such rule to me. In the absence of any Rules, the attempt made by the petitioner cannot be sought to be frustrated as has bet n done by the respondents nos 1 and 2 in his case.

22. Mr. Patel and Mr. Takwani, however, urged that if final chance is allowed to be disturbed, it would lead to a chain of reactions. I do not agree. When a candidate who avails himself of houseman ship in one subject applies for a houseman ship in another subject at the next term, he offers himself only for the post that may be available at that time, if any. Those who are already accorded houseman ship in the first round cannot be disturbed by him by putting a new choice in the second round of the attempt. Even if some such outcome is there, it will be the result of the unsatisfactory state of the Rules. There is nothing to prevent the Government from visualising all conceivable situations and then making adequate provisions. When the Government lays down any policy decision, it must follow it consistently. If the provisions made are silent on any point, the Government may in such not-too-frequent situations evolve a policy decision, but it cannot adopt one line of action in respect of some persons and a different line of action in the case of others. Consistency and unity are the essence of the Rule of law.

23. In the above circumstances, I uphold both the contention canvassed by Mr. Tanna before me and would grant the prayers put forward. I, however, make it clear that if necessary the respondents will take necessary steps to create an additional post of a houseman in Radiology, but they shall not disturb the respondent No. 3, who for no fault of his has been given houseman ship, has procured registration in the subject and has been prosecuting his studies and service simultaneously in that particular branch. For improper reading of the rules or for improper handling of the situation at the hands of the Dean and the Director of Medical Education and Research, the respondent No. 3 cannot be allowed to suffer. So, I have made it clear that while complying with this Court's writ in respect of the petitioner, the respondents Nos. 1 and 2 are not to disturb the respondent No. 3.

24. The result is that the petition is allowed.

25. The petitioner is declared to be eligible to be appointed as a House man in Radiology and is eligible for registration in the subject with effect from 1-8-80 in regular manner. Mr. Tanna has, however, declared that his client does not insist on the salary of the post of a houseman in Radiology on and from 1-8-80 because he has not factually rendered any services. The respondents are directed to consider the case of the petitioner in the light of this judgment and the final decision is directed to be reached latest by 31-1-81. If necessary, the Respondents Nos. 1 and 2 shall move the Govt, for creating an additional post of a houseman in Radiology for a year commencing on 1-8-80. The petition is accordingly allowed and rule is accordingly made absolute with no order as to costs. The writ to issue forthwith.


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