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Dr. Miss Bhavna P. Patel and ors. Vs. the Dean, Govt., Medical College and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR13
AppellantDr. Miss Bhavna P. Patel and ors.
RespondentThe Dean, Govt., Medical College and ors.
Cases ReferredDivan C.J. and R.C. Mankad J. Dr. Nikhil V. Vachharaja.nl v. State of Guj. and Ors.
Excerpt:
- - s university of baroda in november 1978 challenge in this petition the notices dated january 4, 1980 and january 19, 1980 at annexure d and f respectively, as well as the merit list prepared by the dean, medical college, baroda, annexure g to the petition. there are also shown various heads of subjects like medicine, surgery, obstetrics gynecology and preventive and social medicine and on each subject marks were allotted for theory and practical. it is interesting to note that there is no sub-head of any internal marks obtained by the concerned candidate in the concerned subjects. he says that he has made that attempt and he has arrived at the internal marks as well as the requisite external marks allowable to each candidate and thus prepared the reshuffled merit list at annexure.....s.b. majmudar, j.1. the petitioners who have passed their final m.b.b.s. examination from the m. s university of baroda in november 1978 challenge in this petition the notices dated january 4, 1980 and january 19, 1980 at annexure d and f respectively, as well as the merit list prepared by the dean, medical college, baroda, annexure g to the petition. the impugned merit list is prepared by the dean, medical college, baroda, respondent no. 1 herein for the purpose of appointing candidates to the posts of houseman at the government medical college, baroda. the petitioners contend that the impugned merit list has been prepared by the 1st respondent on total misconception of the judgment of (his court delivered in special civil application no. 1516 of 1979 decided on august 1, 1979 by the.....
Judgment:

S.B. Majmudar, J.

1. The petitioners who have passed their final M.B.B.S. examination from the M. S University of Baroda in November 1978 challenge in this petition the notices dated January 4, 1980 and January 19, 1980 at Annexure D and F respectively, as well as the merit list prepared by the Dean, Medical College, Baroda, Annexure G to the petition. The impugned merit list is prepared by the Dean, Medical College, Baroda, respondent No. 1 herein for the purpose of appointing candidates to the posts of Houseman at the Government Medical College, Baroda. The petitioners contend that the impugned merit list has been prepared by the 1st respondent on total misconception of the judgment of (his Court delivered in Special Civil Application No. 1516 of 1979 decided on August 1, 1979 by the Division Bench consisting of Divan C.J. and R.C. Mankad J. Dr. Nikhil V. Vachharaja.nl v. State of Guj. and Ors. 1979 (2) XX (2) G.L.R. 109.

2. In order to appreciate the controversy posed for consideration in the present proceedings it is necessary to have a glance at the relevant facts. The petitioners have passed their final M.B.B.S. examination from the M.S. University of Baroda in November 1978. Tile said University is joined as respondent No. 3. The petitioners have completed their internship for a period of one year starting from 15th December 1978 and extending up to 14th December 1979. The petitioners contend that they are eligible to be appointed as Housemen at the S.S.G. Hospital and the Government Medical College at Baroda. The said hospital and the Medical College are run by respondent No. 4 the State of Gujarat. The case of the petitioners is that the respondents Nos. 1 and 2 are the authorities to whom the applications are required to be made for appointments to the posts of Housemen and for approval thereof. The 4th respondent has framed rules for appointments to the posts of Housemen and Registrars at various Government Medical Colleges and Hospitals in the State of Gujarat. Usually the Government frames Rules in consonance with the regulations approved and adopted under the provisions of the Indian Medical Council Act, 1956. The Government of Gujarat had by resolution of Panchayat and Health Department, bearing No. MCG-1Q74-5100-N. dated August 7, 1975, superseded Its earlier orders and approved the rules for the appointments of Registrars and Housemen at the Government Medical Colleges and attached teaching hospitals. As per these rules the candidates who passed their M.B.B.S. degree examinations became eligible for appointment as Housemen. Under Rule 6, thereof the eligibility of candidates for appointment to the posts of Housemen was required to be ascertained on the basis of total marks obtained by the concerned candidates at the final M.B.B.S. examination according to the preferential category. This Rule 6 is required to be reproduced in extenso at this stage and it reads as under:

6. Selection of eligible Candidates for appointment to posts of Housemen shall be made on the basis of total marks at the final M.B.B.S. examination according to the categories mentioned in order of preference below:

(a) The first group of those who have passed each of the M.B.B.S examination (I, U and IJI M.B.B.S.) at the first attempt.

(b) Second group of those who have passed the III MBBS Examination at the first attempt and I or II M.B.B.S. examination at more than one attempt.

(c) Third group of those who have passed the III M.B.B.S. examination at the second attempt and I or II M.B.B.S. examination at one or more than one attempt.

The said rule was substituted by another resolution of the Health and Family Planning Department of the 4th respondent, being No. MCG-1077-3150-J dated April 28, 1977 which runs as under:

The selection of eligible candidates for appointment to the post of Houseman shall be made on the basis of total external marks obtained at the final M.B.B.S. examination as modified below:

(a) Trial Modification, (i) Passed the examination at the first attempt-No modification.

(ii) Passed the examination at second attempt or third attempt. Average marks of all the attempts of the subjects will be. considered subject wise, original marks will be considered if he has passed the subject at first attempt,

(iii) If a candidate did not appear in full examination or any subject he will be deemed to have obtained 50% of maximum marks in that subject (i e. Medicine 140/280, Surgery 140/280, Obstetrics and Gynecology 70/140 where internal and external system is obtainable and where only external, system is obtainable Medicine 200/400, Surgery 220/400, Obst. and Gynecology KO/2CO irrespective of actual marks obtained by him in the subject at any of the attempts.

After the issuance of the aforesaid resolution of April 28, 1977, the 4th respondent partially modified the same and passed a further resolution dated December 30, 1977, pertaining to the rules governing appointment of Registrars and Housemen in the Government Medical Colleges and attached hospitals. The said resolution dated December 30, 1977 reads as under:

In partial modification of the orders contained in Government Resolution, Health and Family Planning Department No. MCG/1077-3150-', dated 28th April 1977, Government is pleased to direct that the selection of eligible candidates for appointment to the posts of Housemen and Registrar shall be made in accordance with the system of assessment of marks prevailing at the final M.B.B.S. examination in the different Universities in the State of Gujarat when the candidate has passed his final M.B.B.S. examination from the University. The existing Rules 6 and 15 of the Rules governing the appointment of Housemen and Registrars should be deemed to have been modified to that extent.

2. The Director of Medical Education and Research, Ahmedabad, should be requested to bring these orders to the notice of all Deans of various Medical Colleges in Gujarat for information, guidance and necessary action accordingly.

3. The orders issued in Government Resolution, Health and Family Planning Department No. MCG-1076/4586-J, dated 26th July, 1977, are hereby cancelled.

3. The contention of the petitioners is that as per Rule 6 as read in the light of the subsequent resolution of April 28, 1977, as modified by the resolution of December 30, 1977, the eligibility criterion for being appointed to the post of Houseman and Registrar in Government Medical College at Baroda so far as the petitioners are concerned was the obtaining of total marks at the final M.B.B.S. examination by the concerned candidates. According to the petitioners, the Dean of Medical College at Baroda who is respondent No. 1 prepared a merit list of candidates who were eligible to compete for the posts of Housemen and Registrars on the basis of the total marks obtained by the concerned candidates at their final M.B.B.S. examination of November 1978 held by the 3rd respondent. The said merit list is annexed to the petition at Ex. E. The petitioners have also produced a specimen copy of the mark-sheet supplied to the concerned candidates by the 3rd respondent. The said marksheet is at Ex. A to the petition, A mere look at the said mark-sheet shows that the University supplied to the concerned candidate certificate showing total number of marks obtained by him at the Third M.B.B.S. examination of November 1978. The marksheet showed that the total marks for all subjects were 1200 and the minimum passing marks were 600 while the candidate concerned had obtained 727 marks. There are also shown various heads of subjects like Medicine, Surgery, Obstetrics Gynecology and preventive and Social Medicine and on each subject marks were allotted for theory and Practical. Thus the candidates were required to appear at and to pass out the final M.B B.S. examination concerning different subjects. The grand total of marks mentioned in the certificate also shows the break up into total marks obtained by the candidate in each of the subjects at the said examination. It is interesting to note that there is no sub-head of any internal marks obtained by the concerned candidate in the concerned subjects. It is the definite case of the petitioners that so far as the Baroda University is concerned, there is no system of assessment of candidates at the final M.B.B.S. examination by indicating any internal & external marks said to have been obtained by concerned candidates as may be found in other Govt. Medical Colleges in the State which may be affiliated to other Universities. So far as Respondent No. 3 is concerned, which is a residential University and which follows only one Uniform pattern of examining students in different subjects at the final examination, it has followed only one pattern of allotment of marks and that is total integrated marks obtained by the concerned student at the final examination. The petitioner's case is that as per the integrated pattern of marks assigned to the petitioners at their final M.B.B.S. examination by the 3rd respondent, in the light of the resolution passed by the 4th respondent dated December 30, 1977, the relevant criterion for appointment to the posts of Housemen and Registrar was total number of marks obtained by the concerned candidate at the final MB.B.S. examination as held by the concerned University in the State of Gujarat from where the candidate had passed the final M.B.B.S. examination and accordingly on the basis of the total marks of the concerned candidates obtained by them at their final M.B.B.S. exam, held by the 3rd respondent in November, 1978, the merit list Ex. E was prepared by the 1st respondent. There after, it appears that the 1st res, tried to give a go-bye to the said merit list on the supposition that this Court had struck down the Government resolution dated December 30, 1977, with the result that only prior resolution dated 28-4-1977 remained in the field, A notice was issued by respondent No. 1 on 4th January 1980 at Ex. D intimating that according to the instructions given by the Government, the Division Bench of the Gujarat High Court had given judgment in Special C.A. No. 1516/79 that the appointment of Housemen and Registrars had to be made as if the Government Resolution dated December 30, 1977 does not exist and on that basis he tried to reshuffle the merit list which was previously prepared at Ex. E and accordingly issued a fresh notice at Ex. F on January 8, 1980, mentioning that in partial modification of the advertisement issued by that office dated November 15, 1979, it was further notified that the selection to the relevant posts would be made on the basis of the external marks only as per the judgment of the Gujarat High Court and on that basis the 1st respondent reshuffled the merit list Ex. E previously prepared by him and prepared a fresh list at Ex, G. This new list prepared by the 1st respondent proceeded on the supposed effect of this Court's judgment in Special C.A, 1516/79 on the Government resolution dated December 30, 1977 and which had necessitated (he computation of the external marks of the concerned candidates as obtained by them at the final M.B.B.S. Examination which was held in November 1978. The reshuffled merit list at Ex. G was thereafter prepared on the basis only of the external marks said to have been obtained by the concerned candidates at the aforesaid examination. In order to prepare the new merit list, the 1st respondent seems to have made an attempt to go behind the total marks supplied by the 3rd respondent University to the successful candidates and seems to have made an effort to split them into two categories, namely, external marks and internal marks and for the purpose of arriving at the figure of internal marks, the 1st respondent seems to have relied upon the marks which the concerned candidates had obtained at the second and third semester examinations held by the University and having thus arrived at the total internal marks, the 1st respondent seems to have deducted them from the total marks obtained by each candidate as mentioned in the respective marksheets supplied by the University to the concerned candidates and thus he arrived at the figures of external marks of the concerned candidates and on the basis of these figures of the said external marks arrived at by him the 1st respondent prepared the impugned fresh merit list at Ex. G. The contention of the petitioners is that the said attempt on the part of the 1st respondent is totally misconceived and proceeds on a misreading of the judgment of this Court in Spl. C.A. 1516/79 and that has resulted in serious loss to the petitioners as they have gone down in the new merit list on account of the aforesaid misreading on the part of the 1st respondent while preparing the impugned reshuffled merit list. The petitioners have, therefore, approached this Court for issuance of a writ of mandamus for quashing and setting aside the impugned notice at Annex. F and the fresh merit list at Ex. G. issued by the 1st respondent and for direction to the 1st respondent to implement the earlier merit list at Annex. E.

4. In this petition are also joined respondents Nos. 5, 6 and 7 who are some of the candidates who are likely to be affected by the result of this petition. One of them, respondent No 5 has filed his affidavit in reply and the stand of respondent No. 5 is that as per Ordinance No. M-4 found in the University Handbook No. 3, 70% of the marks obtained in the University examination are to be taken and 30% of marks obtained in the ward examination are to be taken and these are then added together and the total is known as aggregate marks. Thus according to respondent No. 5, the preparation of merit list placing sole reliance on the external marks obtained by the concerned candidates is the only sound basis. Consequently the merit list at Annex. E suffers from the vice of not applying the correct test. Mr. B.K. Amin, learned Advocate appearing for respondent No. 5, contended that the assessment of the internal marks has its own limitation and does not normally reflect the real merits of the concerned candidates and hence the preparation of Ihe merit list for being appointed as Housemen and Registrars solely on the basis of the external marks is the only scientific basis and it does not call for any interference. So far as respondent No. 1 is concerned, he has filed his affidavit in reply opposing this petition and in para 3 of the affidavit in reply he had refuted the contention of the petitioners that respondent No. 1 had made wrong interpretation of the judgment of this Court in Special C.A. 1516 of 1979. His contention is that even though the mark sheets supplied by respondent No. 3 University to the concerned candidates who have passed the final M.B.B.S. examination show the integrated total marks obtained by each candidate, subject wise, it is possible to work out external marks of each of the candidates on the basis of the internal marks given by his college to him. He says that he has made that attempt and he has arrived at the internal marks as well as the requisite external marks allowable to each candidate and thus prepared the reshuffled merit list at Annexure G.

5. In the light of the aforesaid stands of the respective parties, we will have to examine the question which has been raised for our consideration in the present petition. Mr. B.P. Tanna, learned Advocate appearing for the petitioners has raised the following contentions in support of his petition.

(1) The action of respondents Nos. 1, 2 and 4- vide Annex. D, does not get support from the judgment of this Court in Spl. C.A. No. 1516/79 decided on August 1, 1979.

(2) Respondent No. 3 is the sole authority to publish the marks and grant admission to various post-graduate courses. The action of the 1st respondent therefore in bifurcating the marks into external and internal marks of the concerned candidates is apparently without any authority of law.

(3) Action of the Dean, respondent No. 1 in abruptly cancelling the merit list Ex. E is totally without authority of law and arbitrary.

(4) Even on merits the impugned merit list Annex. G is required to be quashed on the grounds as put forward in para 22 of the petition and which have remained uncontroversial by the concerned respondents.

6. In order to appreciate the main controversy between the parties, it is necessary to have a look at the judgment delivered by this Court on August 1, 1979, in Special C.A. No. 1516 of 1979. It is pertinent to note that the sole defence of respondents Nos. 1, 2 and 4 in the present proceedings is based on their interpretation of the aforesaid judgment. According to the contesting respondents this Court in Ihe aforesaid judgment had totally struck down the Government resolution dated December 30, 1977 with the result that these respondents are left only with the previous resolution dated April 20, 1977 which laid down the criterion for selection of the eligible candidates for appointment to the post of Housemen, being the total external marks obtained by the concerned candidates at the final M.B.B.S. examination. We are not concerned with the modifications prescribed by the said resolution. Hence, according to the contesting respondents, if the modificatory resolution of December 30, 1977 is out of picture, then obviously only the resolution of April 20, 1977 holds the field and it directs the respondents to arrange for the selection of eligible candidates for the posts of Housemen and Registrar only on the basis of total external marks obtained by them at their final M.B.B.S. examination and accordingly the merit list at Annex. E was required to be reshuffled and the impugned list at Annex. G had to be prepared de novo by them in order to give effect to the decision of this Court. Thus the controversy between the parties really circumscribes itself into a very narrow compass. If the respondents are justified in their contention that this Court on a prior occasion bad struck down the resolution dated December 30, 1977 wholehog, then they would certainly be justified in preparing the merit list as per Annex. G. In that event the 1st respondent must be held justified in making an effort to split up the integrated marks supplied by the university and to delve into the past records of the concerned candidates to find out the external marks obtained by the concerned candidates at the final M.B.B.S. examination and then to prepare the merit list taking to account only the external marks of candidates. If on the other hand, the contention of the contesting respondents on the interpretation of the judgment of this Court is not justified the very basis of the preparation of the impugned list Ex. G will fall through and in that eventuality the earlier merit list at Annex. E based on the resolution of December 30, 1977, which has partially modified the prior resolution would clearly hold the field. As we shall presently point out, the first two contentions of the petitioners are well founded.

7. Before appreciating the first two contentions of the petitioners, it is necessary to keep in view certain salient facts which are well established and undisputed on the record. All the petitioner have completed their M.B.B.S. courses and have passed their final M.B.B.S. examination held by the 3rd respondents University in November 1978. The third respondents is a residential University. The pattern of examination held by the 3rd respondent is only one integrated pattern, namely, that it examines students at the final M.B.B.S. examination and once a students clears that examination he is given a marksheet showing the total number of marks obtained by him at the examination, Subjectwise. The 3rd respondent University does not have a system of internal examination and external examination as may be found with those Universities which are affiliating universities like Gujarat or Saurashtra University. In the background of this admitted position, the present controversy will have to be decided. So far as the decision in Spl. C.A. No. 1516/79 is concerned, a mere look at the said judgment by Mankad J, speaking for the Division Bench consisting of Divan C.J. and Mankad J. shows that the resolution of December 30, 1977 is not wholly struck down by this Court. In the said case the petitioner Dr. Vachharajani was the student of M.P. Shah Medical College at Jamnagar while he was studying for M.B.B.S. degree. He had passed his final M.B.B.S. examination with 6th rank in October 1976. The said college was one of the four medical colleges run by the Government of Gujarat, and it was affiliated to the Saurashtra University. The examinations held by it were governed and regulated by the rules framed by the Saurashtra University. The Saurashtra University had framed Rule 177 for the purpose of examining students at the final M.B.B.S. examination. The Saurashtra University had also followed the pattern of assessing the external and internal marks for the concerned students-External marks consisted of 70% Marks while internal marks consisted of 30% marks. So far as the Saurashtra University was concerned, prior to April 1976 candidates at the final M.B.B.S. examination were examined under both external and internal system of examinations. But from April 1976 the Saurashtra University bad discontinued that practice and system of only external examination was kept in force and the previous system of examination was given a go-ble. The case of petitioner Vachharajani before this Court this that at the time when he was admitted to the final M.B.B.S. examination, these seem in vogue was the assessment of external marks obtained by the concerned candidates at the said examination. The Saurashtra University had discontinued the previously prevalent practice of external and internal examinations after April 1976. The case of the petitioner was that after completion of his final M.B.B.S. examination under the system of external examination, he did internship for one year and thereafter he wanted to prosecute the post-graduate course in Master of Surgery and in General Surgery or Orthopedics. His grievance was that at that stage he was tried to be discriminated against as the impugned resolution of the Government, dated December 30, 1977, tried to treat unequals equally inasmuch as those candidates who had passed their examinations under both systems of examinations i.e. internal and external were treated equally with those candidates who had passed through a different and solitary system of external examination only. It was contended that the impugned resolution tried to give a discriminatory treatment by applying a uniform yardstick treating uaequals equally and at par, and that had resulted in, a discriminatory treatment to the petitioner. His contention was that the candidates who had applied for the post of housemen in response to the advertisement in September 1976 included the candidates who were examined under both the systems of examination and also those examined under a system solely of external examination. This was because the candidates who had passed the final M.B.B.S. examination before April 1976 were also eligible to be appointed as housemen. However, in view of the Government resolution at Annex. F dated December 30, 1977, the selection of candidates for the post of housemen was made on the basis of the system of marks prevailing at the final M.B.B.S. examination of the concerned candidate. In other words, as per the resolution of December 30, 1977, for the purpose of selecting houseman internal examination marks of candidates who had appeared at the final M.B.B.S. examination prior to April 1976 were not ignored and they were permitted to compete with other candidates who had appeared at the final M.B.B.S. examination after April 1976 and passed under the system of external examination only and who had to fall back upon the marks obtained by them at the external examination. The petitioner contended that thus the had to compete with those doctors who had passed their final M.B.B.S. examination prior to April 1976 and such doctors had got internal marks at their credit. Such candidates stood at a premium as for assessment of internal marks even regular attendance at college which had nothing to do with merits of a candidate had also its weight age. The petitioner who had passed his final M.B.B.S. examination after April 1976 had passed through only a solitary system of external examination and hence he had no internal marks to fall back upon. This resulted in serious prejudice and discrimination against the petitioner. Thus according to petitioner Vachharajani this was the root cause and genesis of the discriminatory treatment meted out to him. He, therefore, contended that the said resolution of December 30, 1977 was violative of Article 14 of the Constitution of India inasmuch as it treated unequals equally. It was submitted by the petitioners in that case that the candidates who were examined at the final M.B.B.S. examination under the system of external and internal examination, could not be compared with the candidates who were examined at this examination under the system of external marks of 1000 when 300 marks were for internal examination. It is pertinent to note that the grievance of the petitioner before this Court in that case was that the impugned resolution was treating unequals equally and to that extent the said resolution was bad especially when candidates for the post of houseman were drawn from two different streams, namely, those candidates who had passed M.B.B.S. examination on the basis of external and internal system of examination and those drawn from another stream, namely, the external system of examination only. Equal treatment of the candidates belonging to these two different streams and who were ipso facto unequals was violative of the fundamental right of the petitioner of that case under Article 14. This problem was tried to be resolved by this Court in the aforesaid decision.

8. At page 13 of the said judgment it has been clearly pointed out by this Court that the petitioner had contended before this Court that the resolution at Annex. H dated December 30, 1977, contra vence the provisions of Article 14 of the Constitution inasmuch as it treated unequals equally. The petitioner in that case contended that he did not belong to the same stream to which other candidates competing for the post of houseman belonged, that he had passed the final M.B.B.S. examination on the basis of a unitary system of examination, viz. external examination only and he was made to compete with other candidates who bad passed through double system of examination viz. internal and external systems of examinations. On that basis the petitioner in that case had contended before this Court that the impugned resolution violated his fundamental right under Article 14 of the Constitution, it has been in terms noted at page 14 of the said Judgment that inspite of various contentions being raised by the petitioner in that petition, the only contention pressed at the time of final hearing by his learned Advocate was referable to the challenge under Article 14 of the Constitution. It was that limited controversy which was resolved by this Court in the aforesaid decision and while resolving that limited controversy this Court observed at page 24 of its judgment that by modification of the Government resolution of April 28, 1977, by a later resolution, dated December 30, 1977 which was the impugned resolution, the Government directed that selection of eligible candidates for appointment to the post of houseman should be made in accordance with the system of marks obtained at the final M.B.B.S. examination held by different Universities. In that system the Government decided to select candidates for the post of houseman not on the basis of external examination as per the resolution of April 28, 1977 but on the basis of the marking system in vogue when the concerned candidate passed his final M.B.B.S. examination. As a result of this resolution dated December 30, 1977 the candidates who passed examination through the system of external examination were treated at par or as equals with the candidates who were examined under double system of examination i.e. external and internal. The basis of assessment of merits was not (he same in both the systems and, therefore, this Court found that the impugned resolution tried to treat unequals equally. The basis of assessment of the performance of candidates concerned under the two systems was not the same. Inequality in the assessment arose on account of the method of internal assessment. It is, therefore, obvious that as a result of the resolution dated December 30, 1977, unequals were treated as equals for the purpose of selection to the post of houseman and Registrar. There was no explanation for this abrupt change in the policy of the Government in making the appointment to the posts of houseman and Registrar. It was further observed by this Court that in such a situation the resolution dated December 30, 1977 violated Article 14 of the Constitution in a case where candidates examined at the final M.B.B.S. examination under two different systems of examination as stated above were competing with one another. In the light of the said conclusion reached by this Court it was ultimately held by this Court that the resolution dated December 30, 1977 in so In as it applied to cases where the candidates who appeared at the final M.B.B.S. examination under two systems of examination, viz. system of internal and external examination and system of only external examination had to compete with one another for the post of houseman was liable to be struck down as invalid being violative of Article 14 of the Constitution of India. The aforesaid resume of the salient features of the judgment of this Court in Vachharajani's case leaves no room for doubt that this Court had not struck down the impugned resolution in its entirety but it was struck down only to the limited extent of its application to a situation in which candidates drawn from different streams of different systems of examinations were sought to be brought on par when they had to compete for the posts of housemen and Registrar. This Court further found that the petitioner in that case, namely. Dr. Vachharajani belonged to one stream where there was a solitary system of examination, viz. external only and he was made to compete with other candidates at par when these other candidates belonged to entirely a different stream where they belonged to a class of candidates who had passed through a dual system of examination viz. external and internal examination. This method of recruitment treated unequals equally and hence was found to be violative of Article 14 of the Constitution. Thus, the impugned resolution in so far as it tried to apply a uniform pattern of approach to both these distinct classes of competitors was found to be violative of Article 14 of the Constitution in its application to such cases. It is pertinent to note that this Court was not concerned with the examination of !he legality of the impugned resolution dated December 30, 1977 in so far as it operated uniformly vis-a-vis a single class of candidates who had all passed through a single pattern of examination. The entire judgment proceeded on the examination of the limited problem which was posed for consideration before this Court, viz. when the students were drawn from different streams of systems of examinations whether they could all be treated at par by the impugned resolution and the emphasis was on the application of that resolution to the system of examinations prevailing in the Saurashtra University at the relevant time. This Court had no occasion to consider in that judgment the legality of the impugned resolution in its application to students belonging to various different patterns of examinations as adopted by other Universities in the State. This has been made distinctly clear at page 2 of the judgment where it has been in terms stated that for the purpose of deciding the question raised by the petitioner in that petition, the Court had made reference only to the system of examination prevailing in Saurashtra University at the relevant time. It was not thought necessary for this Court to refer to the systems of examination adopted by other Universities to which the other three Governmental Medical Colleges were affiliated. A reading of the entire judgment in this light leaves no room for doubt that the impugned resolution dated December 30, 1977, has been struck down in its limited application to the students passing from the Saurashtra University, especially when they were drawn from two distinct systems of examinations, one prevailing prior to April 28, 1976, and the other prevailing thereafter and thus in its application to this extent this resolution has been found to be vitiated on account of its conflict with Article 14. Nothing more can be read in the aforesaid judgment as is tried to be contended by respondents Nos. 1 and 2. The ratio of the aforesaid decision can never apply to the facts of the present case for obvious reasons. In the present case we are concerned with the petitioners who have all passed their final M.B.B.S. examination held by the 3rd respondent University following a common pattern of examination viz. the system of giving integrated total marks at the final examination to all the concerned respondents and other students whose names appear in the merit list at Annex. E, there is no occasion to invoke the provisions of Article 14 as they all have passed through only one system of examination. It has been made clear by Shri S.N. Shelat, the learned advocate appearing for the 3rd respondent University, that it follows only one pattern of giving integrated marks to students who are examined at the final M.B.B.S. examination conducted by that University. In fact, Mr. Shelat appearing for the 3rd respondent fully supported the case of the present petitioners. It is pertinent to note that respondent No. 3 has not filed any affidavit in reply. Thus, it is obvious that no question of any competition between the petitioners on the one side and other candidates who belonged to a different stream of examination ever arises for consideration in the present case. On the contrary, all the petitioners and other concerned candidates who have passed the final M.B.B.S. examination in November 1978 had by the 3rd respondent University form only one compact homo geneous class. In that view of the matter the judgment of this Court in Dr. Vachharajani's case can have no application whatever so far as the question of appointment to the post of houseman at the Government Medical College at Baroda is concerned. It is also interesting to note that the judgment of this Court in Dr. Vachharajani's case makes it clear that because of Rule 177 which was framed by the Saurashtra University it recognised the dual system of external examination and internal examination par to April 1976 and followed a pattern of distinct marking on that behalf. Hence the question regarding discrimination in that case arose. So far as the Baroda University is concerned, Mr. Shelat has made it clear that there is nothing like Rule 177 being applicable to the pattern of examinations conducted by the 3rd respondent at any time. As there is only one stream of students passing through only one system of examination so far as Baroda University is concerned, no question of Article 14 vitiating the impugned resolution of 30-12-1977 can ever arise for consideration in the present case. It is pertinent to note that the petitioners clearly averred that the M.S. University of Baroda since 1951, on the basis of Dr. Radhakrishna University Committee Report had decided to implement the examination reforms which included the marks for college record of the University students. It is also well known that M.S. University of Baroda is a residential university and the system of examination initiated and developed there has been consistently followed and no major change has been brought by the University authorities in their method of assessment since 1951 when the first examination of M.S. University was taken. This averment in the petition has not been controverted by respondent No. 3. University. It has fully supported the petitioners' case. In that view of the matter, it is clear that the impugned notice at Ex. D. proceeds on a complete mis-conception of the judgment by this Court in Dr. Vachharajani's case. The said judgment had no application to the facts of the present case and it is obviously inapplicable and consequently the very foundation of the said notice at Annex. D is totally lacking and hence there was no cause for the respondents to reshuffle the merit list which was prepared as per Annex. E and consequently the reshuffled list at Annex. G is completely misconceived and involves a patent error of law on the part of the 1st respondent who has tried to artificially read dichotomy in the uniform pattern of examination conducted by Baroda University when in fact no such dichotomy exists. Consequently no occasion arose in law for respondent No. 1 to reshuffle the merit list at Annex. E. and to substitute it by the impugned merit list at Annex. G. On the contrary it appears that the earlier merit list at Annex. E was properly prepared on the basis of the total marks obtained by each candidate at the final M.B B.S. examination and on that basis the merit list was validly prepared. It is interesting to note that as per the resolution dated December 30, 1977, which we have held to be not excluded in its application to the facts of the present case, in terms states that the selection of eligible candidates for appointment to the post of Registrar and houseman shall be made in accordance with the system of assessment of marks prevailing at the final M.B.B.S. examination in different universities in the State of Gujarat from where the concerned candidate passed his final M.B.B.S. examination. Hence it is obvious that the merit list of the candidates to be appointed to the post of Houseman has to be prepared on the basis of the system of assessment of marks obtained at the final M.B.B.S. examination conducted by the concerned University. In the present case the concerned University is respondent No. 3. It has followed a uniform system of assessment of marks of the concerned candidates, viz. in assessing their integrated total marks subjectwise obtained by them in final M.B.B.S. examination. On the basis of these total marks obtained by the concerned candidates, the merit list has to be prepared in the light of the modification resolution of December 30, 1977. The merit list at Ex. E fully complied with the requirements of the said resolution dated December 30, 1977 and no infirmity can be found therein on the supposition that the said resolution does not apply to the facts of the present case in as much as it was wrongly assumed (o have been set aside by this Court in the above said case. We have shown that the resolution dated December 30, 1977 fully and squarely applies to the facts of the present case and it has not been struck down by this Court in its application to the systems of examination as prevailing in the Universities other than Saurashtra University, and there too, it was struck down to a limited extent in its application to the situation prevailing in October 1976 in the background of which the controversy posed by Dr. Vachharajani came up for consideration of this Court. Once it is held that the merit list at Annex. E is fully and properly prepared as per the resolution dated December 30, 1977, it must be held that the basis of the impugned notice at Annex. D as well as the subsequent notice at Annex. F is non-existent and consequently, the reshuffled merit list at Annex. G. will be totally redundant and incompetent as well as without any force. Hence, the first submission of Mr. Tanna for the petitioners, has got to be accepted and it must be held that the action of respondents Nos. 1, 2 and 4 in issuing the notice at Annex. D does not get support from the judgment of this Court in Dr. Vachharajani's case and consequently, the said action is patently bad.

9. That takes us to the consideration of the second contention of Mr. Tanna for the petitioners. He contended that the University of Baroda is the sole authority to publish the marks to grant admission to various courses and the action of the 1st respondent, Dean of the Medical College, in trying to bifurcate the marks of the concerned candidates into external and internal marks is totally without authority of law. In order to appreciate this contention of Mr. Tanna, it is necessary to have a look at the relevant Ordinance promulgated by the 3rd respondent. The said Ordinance. No. 194 which has been reproduced in the petition at page 14 reads as under:

194. A statement in a printed form showing the marks obtained by a candidate in each head of passing will be supplied in him on payment of a fee of Rs. 2/- per examination. Marks obtained by a candidate in individual papers will also be supplied on payment of a fee of Rs. 5/- per examination, provided an application is mide within six months after the date of the declaration of the results. Mark sobtained by a candidate in individual questions or in sections of a paper will not be supplied.

A mere look at the said Ordinance makes it clear that the University supplies the marksheet to the concerned candidates on the basis of each head of passing. It is an integrated marksheet and it nowhere provides for any sub-classification into external and internal marks. The University being the examining body is entitled to follow its own method of conducting examinations and supply marks to the concerned candidates. It has also been averred in the petition in para 23 that the University, as a matter of practice, does not keep the records beyond six months of the college record marks sent by the college concerned. In absence of any such details, the University does not break-up marks of candidates. Whenever a student asked for the marksheet, the total marks as shown at Annexure A are given. In absence of exact details of college record and marks from the University, the petitioners fail to understand how the college authorities can break up the marks into two classifications which are artificially created. In absence of any exact details it is difficult to appreciate how break-up can be made of these total marks by respondent No. 1. Respondent No. 1 has tried to justify his aforesaid action in his affidavit in reply. In para 16 he stated 'while the University may not be keeping records as averred by the petitioners, it is possible to work out external marks from the total marks given by the University in respect of each candidate by deducting the internal marks given by the respective colleges. I say that the college maintains the record of internal marks given by it to each of the candidates. I say that the University takes into consideration the marks of internal evaluation furnished by the college authorities. I say that it is easy to find out the external marks by deducting the internal marks from the total subjectwise marks as certified by the University'. The question is whether it is open to respondent No. 1, Dean of the Medical College, to undertake this exercise when the University as the examining body to its wisdom has not thought it fit to do so, by holding examination in that manner. It is, therefore, obvious that in the light of Ordinance 194 which governs the present controversy, where the University as the examining body does not supply the break-up of external and internal marks of the candidate, it would not be open to the Dean to work oat the break-up of marks in an artificial manner. Consequently it must be held that respondent No. 1 had no authority to undertake such an attempt to artificially sub-classify the total marks supplied by the University into external and internal marks by undertaking the process of artificial calculation. This was all exercise in futility and not falling with in the contemplation of the relevant ordinance and the pattern of examination conducted by the University. It is further interesting to note that so far as the resolution dated December 30, 1977 is concerned it enjoins upon the concerned respondents to prepare the merit list of candidates fit to be posted as houseman only in accordance with the system of assessment of marks prevailing at the final M.B.B.S. Examination. This resolution postulates that the system of assessment of marks at the final examination must be the sole basis for preparation of merit list. In that view of the matter, it was not open to the 1st respondent to depart from the resolution and to embark upon an enquiry about the supposed internal marks which the concerned candidate may have got on the basis of the private record of the college. Such attempt is totally de hors and extraneous to the scope of the resolution. Hence it must be held that the 1st respondent had no jurisdiction or authority to try to split up the marks supplied by the University to the concerned candidate. The second submission of Mr. Tanna has, therefore, a lot of substance and has got to be accepted.

10. This leaves out the consideration of the third and fourth contentions of Mr. Tanna for the petitioners but in view of our decision on the first two contentions, it is not necessary for us to express any opinion in respect of the third and four contentions of Mr. Tanna Hence, we express no opinion of these contentions.

11. As a result of the aforesaid discussion, it must be held that the petitioners have made out a case for the grant of necessary relief to them in the present proceedings Consequently, this petition is allowed and a writ of mandamus is issued for quashing and setting aside the impugned notices at Annexures D and F in so far as they affect the petitioners and pertain to the selection of housemen at Govt. Medical College & S.S.G. Hospital Baroda. They will stand quashed to that extentr(Consequently the merit list at Annexure G will also be quashed and set aside to that extent. The respondents are directed to implement the merit list at Annexure E and to effect the appointments of housemen at the Government Medical College & S.S.G. Hospital at Baroda, in the light of the said merit list at Annexure E, Rule is accordingly made absolute with costs. Respondents Nos. 1, 2 and 4 shall pay the costs of the petitioners. Rest of the respondents shall bear their own costs.


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