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Dr. Himanshu Purshottamdas Bavishi and ors. Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Judge
Reported in(1983)2GLR1414
AppellantDr. Himanshu Purshottamdas Bavishi and ors.
RespondentState of Gujarat and ors.
Cases ReferredM.R. Baloji and Ors. v. The State of Mysore and Ors.
Excerpt:
- - 5. it is necessary at this stage to set out precisely as to what were the norms prescribed from time to time for appointment as houseman and registrar and sr. 9. the gujarat university have accordingly enacted the rules for preparation of merit list for admission to post-graduate medical courses, though there is some debate as to whether the university has carried out these directions of the learned single judge in letter as well as in spirit of the aforesaid writ of this court. we are not setting out what precisely this preferential treatment is, since the question which has been debated at the bar is whether the rules have really and effectively prescribed such treatment as apprehended by the petitioners and/or as envisaged by the university. (ii) rule 5(b) of registration rules.....b.k. mehta, j.1. since the aforesaid two special civil applications challenge the rules for preparation of merit list for admission to the post-graduate medical courses (hereinafter described as 'the registration rules') enacted by the gujarat university in pursuance of the writ issued by this court in special civil application no. 3704 of 1982 dr. vikram k. shah v. state of guj. 24(1) g.l.r. 551 the judgment in which (per n. h. bhatt, j.) has been also questioned in the aforesaid letters patent appeal, raising the common questions of law and fact, we propose to dispose of all the three matters by this common judgment.2. we will refer to the contesting parties in these matters by their respective position in reference to the letters patent appeal.3. it is necessary to set out the material.....
Judgment:

B.K. Mehta, J.

1. Since the aforesaid two Special Civil Applications challenge the Rules for preparation of Merit List for admission to the Post-Graduate Medical Courses (hereinafter described as 'the Registration Rules') enacted by the Gujarat University in pursuance of the writ issued by this Court in Special Civil Application No. 3704 of 1982 Dr. Vikram K. Shah v. State of Guj. 24(1) G.L.R. 551 the judgment in which (Per N. H. Bhatt, J.) has been also questioned in the aforesaid Letters Patent Appeal, raising the common questions of law and fact, we propose to dispose of all the three matters by this common judgment.

2. We will refer to the contesting parties in these matters by their respective position in reference to the Letters Patent Appeal.

3. It is necessary to set out the material facts so as to appreciate the three dimensional dispute in proper perspective.

4. In order to provide for proper training in basic medical sciences either related to the disciplines concerned for M. D. M/S. Degree of the Gujarat University in clinical subjects or in their applied aspects for the said Degrees the system of Housemanship for one year and Registrarship for two years with Sr. Registrarship of one year was in vogue in two post-graduate teaching centres at B. J. Medical College attached to the Civil Hospital at Ahmedabad and N.R.L. Municipal Medical College attached to Vadilal Sarabhai Municipal Hospital. This system has been recently changed by the Government Resolution in Health and Family Welfare Department dated April, 28, 1981 (hereinafter described as 'the Residency system') introducing the new system of residency pattern with tenure of appointment of four years. This new system of residency pattern was made effective from January I, 1981. However, the detailed rules for appointment of Residents at the Government Medical Colleges and attached Hospitals in the State were approved by the State Government, Vide its Resolution in Health and Family Welfare Department dated May 26, 1982. In the new residency system, once a Medical Graduate having satisfactorily completed one year of rotating Housemanship is admitted, he is assured of continuous appointment for all the four years provided his work and post-graduate studies are found satisfactory.

5. It is necessary at this stage to Set out precisely as to what Were the norms prescribed from time to time for appointment as Houseman and Registrar and Sr. Registrar in the old system and the appointment of Residents in the new residency system. Broadly stated, under the Housemanship system, the norm which was originally prescribed was of preference method under which the order of preference was:

(i) Students passing each of the M. B.B.S. Examination at the first trial;

(ii) students passing final examination at the first trial but were repeaters at the 1st & 2nd Examinations; and

(iii) repeaters at all the three examinations.

This was so prescribed under the Government Resolution of 7th August 1975. However, by subsequent Government Resolution of April 28th, 1975, these norms were modified. According to the modified norm, the selection was to be made on the basis of the aggregate external marks as reduced having regard to the trial at which each of the examination was cleared. The method of selection for Registrarship was substantially same as that of Housemanship except to the extent that for Housemanship, the aggregate of marks obtained at the final M.B.B.S. Examination was considered and then preference given as indicated hereinabove; while in the case of Registrarship, marks obtained in the subject concerned was considered and then preference given in the same manner as prescribed for Housemanship. This was prescribed By Resolution of 7th August 1975. The method was, again modified by the subsequent Resolution of 28th April 1977. The Hew method adopted for Registrarship was preference method based on Merit List drawn having regard to his marks in the subject and his trials, first preference being allowed to those clearing the Final Examination at the first attempt, followed by those clearing at the second attempt, though passed in some subjects at first attempt and last by those clearing all subjects at second attempt. Under the new residency system, the norm of selection which was prescribed and adopted was the same method of selection as was prescribed for Housemanship under the Government Resolution of April 28th, 1977. It should be noted at this stage that admittedly there were no separate rules framed by the Gujarat University for selection from amongst the Students seeking admission to courses leading to M.D./M.S. Degrees.

6. Respondents Nos. 8 to 14 who are Medical Graduates of April 1981 Examination batch and who had completed their internship somewhere in September 1982, apprehending that the rules for appoint-ment of Residents under residency system sought to perpetuate the anomaly created tinder the earlier modified rules for Housemanship, moved this Court for appropriate writs, orders and directions by Special Civil Application No. 3704 of 1982 enjoining the respondents to prepare the Merit List of persons eligible to be appointed as Residents on the basis that those who pass the Final M. B. B.S. Examination at the first attempt should be given first preference and accordingly to suitably modify Rule 8.2 & Rule- 8.3 of the Rules governing the appointment of Residents and also directing the Gujarat University to frame Rules governing the selection for post-graduate studies and directing the Dean of B. J. Medical College to make selection for the post-graduate studies on the basis of the rules contained in the Government Resolution of Health and Family Welfare Department of 26th May 1982 for appointment of Residents in the Medical College and other consequential reliefs.

7. The aforesaid respondents have in their Special Civil Application challenged the Residency rules on the following grounds before the learned Single Judge:

(i) The impugned rules are framed by the Government without any participation of the University authorities in that regard and the rules are violative of the Regulations framed by the Medical Council of India under Regulation 33 of the Act.

(ii) The impugned rules of the Government are arbitrary and discriminatory and, therefore, they are violative of Article 14 of the Constitution of India.

(iii) The University has abdicated its function of laying down norms for registration with the result that the students of the same University but working at different centres are governed by different sets of norms and this also amounts to non-exercise of statutory powers and abdication of its functions by the University in favour of the Government.

8. The learned Single Judge upheld the validity of residency rules, since he did not find that they were arbitrary or unreasonable; but, he was of opinion that these rules cannot operate as rules for registration which is solely within the jurisdiction of the University which cannot abdicate the function. He was further of the opinion that there cannot be two sets of different rules for admission to post-graduate courses at the aforesaid two centres, viz. B. J. Medical College attached to the Civil Hospital & N. H. L. Municipal Medical College attached to the Municipal Hospital. The learned Judge, therefore, upheld the third contention urged on behalf of the respondent-petitioners. He, therefore, directed the University in the following terms:

issue a writ of mandamus directing the Gujarat University to frame the rules governing the selection for registration of post graduate students in different branches of medicine and direct the University to prepare the merit list of persons eligible to be registered as post-graduate students on the basis of those norms to be laid down by the University in the course of a week from to-day.

9. The Gujarat University have accordingly enacted the rules for preparation of Merit List for admission to post-graduate medical courses, though there is some debate as to whether the University has carried out these directions of the learned Single Judge in letter as well as in spirit of the aforesaid writ of this Court. This rules have been made effective from January, 1983. Pursuant to these rules, the authorities concerned have directed all those desirous of seeking admission to post-graduate courses to apply before December 22, 1982. The appellants Nos. 1, 4, 6 and 7 and 3 other eligible medical graduates, therefore, challenged these registration rules by their present Special Civil Application No. 5387 of 1982. Similarly, appellant No. 2, appellant No. 4 and appellant No. 5 have challenged by Special Civil Application No. 214 of 1983 these rules. These appellants have also filed the present Letters Patent Appeal, lest it may not be urged that till the order of the learned Single Judge stands, the University was duty bound to enact the rules. The appellants filed Special Civil Application since they apprehended that the State Government was to amend/change the residency rules so as to bring them in conformity with the registration rules.

10. Broadly state, the registration rules seek to accord some preferential treatment. We are not setting out what precisely this preferential treatment is, since the question which has been debated at the bar is whether the rules have really and effectively prescribed such treatment as apprehended by the petitioners and/or as envisaged by the University. However, we will refer to the controversial rule by which some preferential treatment is sought to be accorded at the appropriate place. Suffice it for the present purposes to refer to the method of selection. The method of selection has been prescribed in Rule 5. Two Merit Lists are to be drawn : one which is described as primary merit list and the second is intended to be final merit list. The preliminary merit list is to be drawn on the basis of the aggregate marks obtained in the final M.B.B.S. Examination as reduced by prescribed percentage for each trial. Each student included in primary merit list to be ranked in the final list according to his external marks obtained in the relevant subject as reduced by prescribed percentage for each trial in clearing the subject. It is said that this second list will entitle a student to registration for his post-graduate studies in different departments. Three broad GROUPS were prescribed in the rules, though the Rule 5(b) apparently provides for determination about the postings as residents in particular subject. GROUP-A consisted of subjects in which Degree of M.D. can be obtained; while GROUP-B comprised of those subjects except Anaesthesia in which Degree in M.S. can be obtained; and GROUP-C comprised of one subject of Obstetrics and Gynaecology in which M.D. Degree can be obtained. For the purposes of the posting in GROUP-A. GROUP-B and GROUP-C, the performance of the student in the subject of Medicine, Surgery and Obstetrics and Gynaecology respectively will be considered.

11. This is, in short, the background in which we have considered the rival contentions urged on behalf of the parties before us. In the course of the arguments, a number of subsidiary contentions were urged to which we will refer at the appropriate places.

12. On behalf of the appellants Nos. 1, 4, 6 and 7 and three other Doctors who are the petitioners in Special Civil Application No. 5387 of 1982 before us, the following two contentions have been raised:

(i) The respondent - State Government and the University are estopped on principle of promissory estoppel from enacting Rule 5 so as to introduce the criteria of subject performance for purposes of registration in post-graduate studies.

(ii) Rule 5(b) of Registration Rules is bad in law and void, since it is violative of Article 14 of the Constitution of India.

On behalf of appellants Nos. 2, 3 and 5 who are petitioners of Special Civil Application No. 214 of 1983, the following four contention have been raised. The first contention pertains to the dispute in appeal, though it has ultimately bearing on the challenge to the registration rules.

(i) The learned Single Judge has acted beyond the scope of relief prayed for by the respondents Nos. 8 to 14 in Special Civil Application No. 3704 of 1982 inasmuch as the learned Judge held that the respondent University was duty bound to frame common registration rules for both the post-graduate centres.

(ii) The registration rules are bad in law and void in so far as the respondent University did not carry out the direction in its spirit and letter.

(iii) The respondent - State Government and the University are estopped on principle of promissory estoppel from enacting registration rules or effecting change in residency rules till at least four years period expires from 1982-83.

(iv) Rules I and 5 of Registration Rule are bad in law and void since they are violative of Article 14 of the Constitution in as much as they are vague, unreasonable, arbitrary and there-fore, unworkable.

13. We do not think that there is any merit in the first three contentions urged on behalf of the appellant petitioners in Special Civil Application No. 214 of 1982 and similarly so far as the first contention is advanced on behalf of the petitioners in Special Civil Application No. 5387 of 1982 is concerned.

Regarding contentions Nos. 1 and 2 urged on behalf of petitioners in Special Civil Application No. 214 of 1983.

14. We are unable to agree with the learned Advocate for the petitioners that the learned Single Judge travelled beyond the scope and the reliefs prayed for in Special Civil Application 3704 of 1982. Respondents Nos. 8 to 14 who were the petitioners in Special Civil Application No. 3704 of 1982 did make grievance about the different norms being prescribed for registration to postgraduate (P. G.) course in the two post-graduate centres, though these two centres were conducted, coordinated and controlled by the Gujarat University. In fact, their grievance was that the residency rules were treated for all intents and purposes as post-graduate registration rules. This contention was precisely raised on behalf of the respondents and has been set out at point (c) in paragraph 10 of the judgment. The grievance was that the result of abdication of the function by the University of laying down the relevant norms for registration was that the University functioning through different centres adopted different norms for purposes of registration. The learned Single Judge has upheld this contention and the relevant discussion is to be found in paragraph 15 of his order. The learned Judge has, inter aha, stated as under:

It is an admitted position that the criteria adopted by the State Government and dutifully followed by the Dean of the B. J. Medical College, assuming that he is the agent of the University, is different from the criteria adopted by the Dean of the Municipal College for the very purpose. If the University had applied its mind at all to this problem, this different criteria would have at once struck its discretion and power to thinking. All that the University has been doing all these years is to give a green signal to the lists prepared by the respective Deans who in their other capacity as the employees of their masters, blindly and blissfully follow the criteria laid down by them. This is ex facie unreasonable. An august body like a University cannot adopt two different standard', in respect of the self same matter simply because the students seeking registration come from two different centres. Those who come from B. J. Medical College and those who come from the Municipal College are similarly situated and the different standards cannot be adopted by the University for the purpose of granting registration. This is a clear case of non-application of mind and also abdication of its functions by the University and, in my view, there is no escape from this legal position, which unfortunately was not taken with any serious challenge so far.

It is in that view of the matter that the learned Single Judge issued the directions which have been extracted and set out above. It was therefore, urged by Mr. A. H. Mehta as his second contention on behalf of the appellant-petitioners of Special Civil Application No. 214 of 1983 that the University has not carried out these directions scrupulously. It is his grievance that the registration rules are enacted only for those post-graduate (P.O.) teaching centres where there was residency system. He urged that this was not precisely the direction of the learned Single Judge. The spirit of the direction of the learned Single Judge was that there must be precisely one common set of rules for registration in all the University centres where post-graduate training is imparted and if, therefore, in disregard of this spirit of the direction the University has enacted rules for those centres where the residency centres prevails, it has failed to carry out the direction as it is given. We are afraid that this is too specious a contention which we must reject for the obvious reason that the two centres in Ahmedabad where the post-graduate teaching is imparted, there is a residency system and the direction which has been given by the learned Single Judge was clearly in the context of the grievance made that there cannot be two sets of norms for registration to post-graduate studies at the two centres at Ahmedabad conducted by the University. If, therefore, the University has enacted rules for registration of postgraduate students at the two centres where the residency system prevails, it cannot be said that the University has committed the breach in spirit or in the letter of the writ.

15. Regarding contention No. 3 : This contention of promissory estoppel has been advanced on behalf of the petitioners in both the Special Civil Applications, though the ground of promissory estoppel as urged by Mr. A. H. Mehta, the learned Advocate for the petitioners in Special Civil Application No. 214 of 1983 and by Mr. G. D. Bhatt, the learned Advocate for the petitioners in Special Civil Application No, 5387 of 1982 is slightly different. Mr. Mehta urged that the State Government as well as Dean B. J. Medical College attached to the Civil Hospital are estopped on principle of promissory estoppel from changing the residency rules till at least the four year's period expired from the academic year 1982-83. According to Mr. Mehta, the petitioners and similarly situated medical graduate have refused to avail of the admission to Residency Housemanship relying upon representation contained in those rules that they seek admission within a period of four years of the passing of the III M.B.B.S. Examination. If, relying on this representation, they have changed their position to their detriment on the basis that they could wait for a period of four years from the date of passing of the III M.B.B.S. Examination so that they might be able to obtain residency in the subject of their choice, the University cannot now enact rules which will preclude them from seeking admission to subject of their choice and consequently the residency in that subject. Mr. Bhatt on behalf of the petitioners in Special Civil Application No. 5387 of 1982 urged that the State Government and the Dean should not be permitted to change the present residency rules which operated for all intents and purposes for registration for post-graduate studies by introducing a norsm for assessment of the subject performance for purposes of registration as well as appointment as Residents. With respect to the learned Advocates, it is difficult, in spite of our best efforts, to comprehend as to what representation had been made by the University, so as to induce the appellant-petitioners to change their position to their prejudice. It is nobody's case that the University has made any representation which induced the appellants to change their position to their prejudice. In so far as the University enacted the Registration Rules in exercise of its statutory powers pursuant to the direction given by this Court in the writ issued in Special Civil Application No. 3704 of the University was, in effect and in substance, exercising legislative powers delegated to it by the Government and, therefore, there cannot be any estoppel against law.

It is axiomatic to say that the principle of estoppel is not available against the Government in exercise of the legislative sovereign or executive powers, vide M/s. Jit Ram Shiv Kumar and Ors. v. State of Haryana and Anr. : [1980]3SCR689 . According to the reply affidavit filed on behalf of the respondent University in these two Special Civil Applications, it has been, inter alia, stated that the impugned Registration Rules have been framed by the Faculty of Medicine in exercise of its powers under Section 32(2) and have been approved by the Executive Council (See Paragraph 7 of the reply affidavit of the Registrar of the Gujarat University in Special Civil Application No. 5387 of 1982). It is, therefore, difficult for us to agree with the learned Advocates of the petitioners that the University is estopped from enacting the Registration Rules which will prejudicially affect their position as contended by them. The third contention, therefore, must also be rejected.

Regarding contention No. 4:

16. So far as the validity of the Rules or some part of it is concerned, on the ground of it being violative of Article 14 of the Constitution, the challenge is slightly different in both these Special Applications. On behalf of the petitioners in Special Civil Application No. 214 of 1983 is concerned, Mr. A. H. Mehta assailed Rule I as well as Rule 5(b) of the Registration Rules as violative of Article 14 of the Constitution. So far as the petitioners of Special Civil Application No. 5387 of 1982 are concerned, Mr. Bhatt for the petitioners raised a limited challenge to Rule 5(b) of the Registration Rules in so far as it introduced the norm of the subject performance for purposes of granting the registration. It has been urged by Mr. Mehta that the learned Judge was not justified in directing respondent University to enact common rules for both the P.O. centres, since the students seeking admission at the respective post-graduate (P.O.) teaching centres constitute different classes having regard to its historical perspective of existence of two different sets of rules for appointment of the Housemen and Registrar or for that matter of Residents after the introduction of the residency system. In his submission, if these separate sets of rules for two classes of students seeking admission at the aforesaid centers were a historical fact, there cannot be any objection to two different sets of rules for registration to post-graduate studies at these two centres, since it cannot be objected on the ground of violation of the mandate enshrined in Article 14 of the Constitution. It is trite position in law that what Article 14 forbids is class legislation and not the valid classification having the rational nexus to the object of legislation or the measure in a given case. It is an admitted position according to Mr. Mehta that two different sets of rules operated for purposes of appointment of residents and for that matter, before the residency system was introduced for the purposes of appointment of Housemen and Registrar, the norms prescribed under the said Rules at the two centres were admittedly different and if, therefore, the learned Single Judge has, while issuing the writ, overlooked or dis-regarded this fact, the Division Bench can and must set the position right In the Letters Patent Appeal. He urged that the common rules framed by the University for the purposes of registration for its two post-graduate centres in pursuance of the directions of the learned Single Judge, expose them-selves to the vice of violating the mandate contained in Article 14 of the Constitution inasmuch as the Rules are trying to treat the Medical Graduates dissimilarly situated as if they are similar and, therefore, there is a reverse discrimination. Besides his challenge to Rule 5(b) on the same grounds, he as well as Mr. Bhatt urged that the weightage given to the special subjects for M.D. or M.S. Degree in the general paper of medicine or Surgery at the graduate level examination is so small and insignificant that to assess the potential of a student seeking admission to M.D. or M.S. course on the basis of his performance of the general of subject of Medicine or Surgery would be highly irrational and, therefore also. Rule 5(b) suffers from the vice of unconstitutionality. It is in the context of these rival contentions that we have to determine whether the challenge is well-founded. Before we consider these contentions in detail, it would be profitable to refer to certain provisions in the Gujarat University Act and its Ordinances and statutes as well to the general directions contained in the Regulations framed by the Medical Council of India under Regulation 33 of the Indian Medical Council Act, 1956.

Section 39 of the Gujarat University Act, 1949, provides for post-graduate teaching. It reads as under:

39(1). Within the University area all post-graduate instruction, teaching and. training shall be conducted by the University or by such affiliated colleges or institutions and in such subjects as may be prescribed by the Statutes.

Statute 121 A provides that 'All post-graduate instruction in the Gujarat University area shall be imparted by the University or on behalf of the University at such centres as may be fixed by the Executive Council' (Emphasis supplied). Order 65. P prescibes the requirements for recognition of a centre for imparting post-graduate instructions and/or teaching. O.65-p prescribes the method as to how the affiliated college or recognized institution desiring to have a post-graduate centre for a particular subject at their college or recognized institution shall apply to the University for permitting the post-graduate teaching at the College or the Institute. Order 65 Vis relevant for our purposes. It provides as under:

In the University departments in the respective subjects, the enrolment of students for those subjects in the Ahmedabad area shall be at and under these University departments. Heads of the University departments shall arrange to associate recognised post-graduate teachers and assistants in the Ahmedabad area with the work of teaching in their departments.

Order 65-X provides for registration of students at an approved Institution. It so far as material for our purposes, provides as under:

A graduate of this University working at an institution outside the University area, recognised as an approved Institution by the Executive Council of this University for the purposes of giving guidance in research and intending to register himself for the Master's or the Ph. D. degree of this University, shall forward his application in the prescribed form for admission and registration, provided he is eligible for such an admission. The forms shall be duly completed and signed by the guiding teacher and sent through the Head of the Approved Institution to the Registrar of this University....

In the pamphlet published by the Faculty of Medicine in Gujarat University on courses of studies prescribed, inter alia, for M. D. and M.S.O.M.D. 1 and O.M.D. 2 are relevant provisions. They provide as under : 'O.M.D. 1:

(a) The Degree of Doctor of Medicine shall be conferred by examination with dissertation in the following branches:

I. Medicine and Tharapeutics

II. Pathology and Bacteriology

III. Obstetrics, Gynaecology and diseases of the new born.

IV. Pharmacology

V. Paediatrics

VI. Anaesthesia

VII. Preventive and Social Medicine

VIII Physiology

IX. Radiodiagnosis, Radiology

X. Radiotherapy, Radiology

XI. Dermatology

XII. Psychological Medicine

XIII. Occupational Health

(b) The Degree of Doctor of Medicine shall be conferred by examination with dissertation in the following branches of speciality:

I. Neurology

II. Cardiology.

O. M. D.-2:

(a) Every candidate for the degree of Doctor of Medicine in the branches referred to in the Clause 'A' of Ordinance 273 must have taken the degree of Bachelor of Medicine and Bachelor of Surgery of this University or any university recognised by this University (reciprocity essential).

Such a candidate can appear thereat four academic years or eight academic terms after passing the M.B.B.S. Examination including compulsory rotating internship period of one year from the date on which he appeared for the examination which he passed.

A post-graduate medical student shall get himself registered within six months of the commencement of his post-graduate course and specify the branch of study for which he wants registration. However, he will be allowed to change the Branch if he 50 wishes during his rotating regular housemanship in the first year.

(b) Every candidate for the Degree of Doctor of Medicine in the branches referred to in the Clause 'B' of Ordinance 273 must have taken the degree of Doctor of Medicine (General Medicine or Paediatrics only) of this University or any University recognised by this University (reciprocity essential).

Such a candidate can appear thereat two academic years or four academic terms after passing the M. D. (General Medicine or Paediatrics only) Examination.

A post-graduate medical student shall get himself registered within six months of the commencement of his post-graduate course and specify the branch of study for which he wants registration.

We have bet out both these Ordinances in extenso so that we may be able to appreciate the rival contentions urged on behalf of the parties before us. Similarly, Ordinance M.S.-I and M.S.-2 provide for the different subjects in which the Degree in M, S, is conferred by the Gujarat University and what is the eligibility criteria for admission to post-graduate course leading to Degree of Master of Surgery. The relevant part of said O.M.S.-1 and O.M.S.-2 are set out in extenso.

C. M.S.-1

(a) The Degree of Master of Surgery shall be conferred by examination with dissertation in the following, branches:

I. General Surgery

II. Otorhino-laryngology

III. Orthopaedics

IV. Ophthalmology

V. Anatomy.

(b) The Degree of Master of Surgery shall be conferred by Examination with dissortation in the following Branches of specialty;

I. Neurosurgery

II. Cardiothoracic Surgery

III. Geni to Urinary Surgery

IV. Plastic Surgery.

O. M.S.-2:

(a) Every candidate for the Degree of Master of Surgery in the branches referred to in Clause 'A' of Ordinance 286 must have taken the Degree of Bachelor of Medicine and Bachelor of Surgery of this University or any University recognised by this University (reciprocity essential). Such a candidate can appear thereat four academic years or eight academic terms after passing the M.B.B.S. Examination including compulsory rotating Internship period of one year from the date on which he appeared for the examination which he passed.

A post-graduate medical student shall get himself registered within six months of the commencement of his post-graduate course and specify the branch of study for which he wants registration. However, he will be allowed to change the Branch if he so wishes during his rotating regular housemanship in the first year.'

(b)...

The Indian Medical Council have framed Regulations under Section 33 of the Indian Medical Councils Act, 1956, which are in nature of recommendations. The pamphlet titled 'Recommendations on post-graduate Medical Education' published by Medical Council of India in 1980 and as revised upto 1978 set out the various recommendations made by the Council in respect of post-graduate medical education. At page 6 of the pamphlet, we find recommendations under the caption 'General' recommendations which state that 'For M.D./M.S. degrees in clinical subjects, there shall be proper training in basic medical sciences related to the disciplines concerned as well as paper in these subjects at the examination. In the case of M.D. & M.S. in basic medical sciences there should be training in applied aspects of the subject and a paper on the Subject.' In Clause (5) and Clause (6) of the General recommendations at pages 6 and 7, it has been provided as under:

(5). The selection of post-graduates both for degree and diploma courses should be strictly on the basis of academic merit.

(6). The training of post-graduates for degree courses should be of the Residency pattern with patient care. Both the in service candidates and the stipendaries should be given similar clinical responsibility. The participation of the students in all facets of the educational process should be insisted upon and training in basic medical sciences and laboratory and experimental work emphasised. In Basic Sciences adequate number of training posts of Demonstrator, Tutors etc., should be provided for.

The criteria for selection of candidates have been provided at page 9 of the pamphlet. The relevant part from this recommendation as contained in Clauses (a), (b) and (c) provide as under:

(a) Students for post-graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate Course. All selection for postgraduate studies should be conducted by the Universities.

(b) The candidates should have obtained full registration i.e., they must have completed satisfactorily one year of compulsory rotating internship after passing the final M.B.B.S. examination and must have full registration with State Medical Council.

(c) They must subsequently have done one year's housemanship prior to admission to the post-graduate degree or diploma course. Housemanship should preferably be for one year in the same subject or at least six months in the same department and the remaining six month in an allied department....

As regards the 'Evaluation of merit', at page 10, the relevant part is in following terms:

The Postgraduate Committee was of the opinion that in order to determine the merit of a candidate for admission to postgraduate medical courses, (if his performance at M.B.B.S. examinations, (ii) his performance during the course of internship and housemanship for which a daily assessment chart he maintained and (iii) the report of the teachers which is to be submitted periodically may be considered. Alternatively the authorities concerned may conduct competitive entrance examination to determine the merit of a candidate for admission to postgraduate medical courses. Period of Training

The period of training for M.D., M.S. shall be 3 years after full registration including one year of house job or equivalent thereof....

This is, in short, the relevant provisions which have a bearing on the question.

17. It should be also necessary to set out precisely the rules which are under challenge. Though it is difficult for us to appreciate the scheme of the rules, We have tried to understand them with the able as substance of the learned Advocates appearing for the parties and particularly of the University. The numbering of the different rules and their clauses also do not follow any recognised pattern which is employed in enacting those rules. Rules I and 5 (b) are under challenge. Notwithstanding the challenge to Rule I and Rule 5 (b), we have been compelled to set out Rules 1,2,3,4 and 5 and their material part so as to determine the contentions urged on behalf of the parties. The rules open up abruptly. The first four rules are prefixed with main enactment which is unnumbered. We read Rules I to 5 in their entirety together with the opening prefixing enactment.

The Selection of Post-graduate Registrations where Residency system exists will be made by the respective Medical Colleges and Post-graduate institutions in order of preference as under:

(1) For merit list the same academic year will be considered.

(2) Preference should be given to the candidates of their own institutions from amongst the students of the Gujarat University.

(3) Graduates of any other University of Gujarat State,

(4) Graduates of any other statutory Indian University recognized by the Medical Council of India.

Rule 5 provides for the MERIT LIST. It appears that two types of merit lists are envisaged. The first Merit List has been described in Rule 5 as primary merit list. Thereafter in the rules we do not find any reference about the final merit list nor as to how the primary merit list is to be operated and for what purpose. What Rule 5 (b) provides is order of merit of posting in particular subject. In spite of these apparent infirmities in the structure of the rule, we have tried to understand and analyse as to what is precisely envisaged by the University authorities and what actually they have provided- in the rule. Rule 5 reads as under:

Primary merit list of candidates will be prepared on the basis of total marks obtained in final M.B.B.S. examination, which will be corrected as follows:

(a) Deduction in Total Marks

From total marks obtained 2, % (two and half percent) of the total will be deducted for each extra trial, i.e.

1st trial No deduction2nd trial 21% (two and half percent) deduction3rd trial 5 % (five percent) deduction4th trial 7 % seven and half percent) deduction(b) Order of Merit of Posting In Particular subject

The order of merit shall be determined by the actual number of external marks obtained in the subject as shown below at the University Examination duly modified with debit marks as staled under these rules.-------------------------------------------------------------------------------Departments to which the Name of the subject of posts belong which marks will beconsidered.-------------------------------------------------------------------------------(a) Medicine, Pediatrics; Dermatology & Venereology, MEDICINE Psychiatry, Neurology, Cardiology, Intensive coronarycare Unit, Nephrology, Gastroanterology, Haematology.Endocrinology, Chest Diseases including tuberculosis. Radiology, Pathology etc.(b) Surgery E.N.T. Surgery, Orthopadics Ophthalmology. SURGERY Plastic Surgery Thoracic Surgery, Neurosurgery,Uro-surgery, Gastroanterology surgery Cardiac Surgery. Padiatric Surgery and Anaesthesia.(c) Obsterics and Gynaecology MIDWIFERY-------------------------------------------------------------------------------DEDUCTION IN SUBJECT MARKS :First trial in all the subjects No deductionFirst trial in the subject and second trial in final 2 1/2% deduction, marksexamination obtained in subject.Second trial in subject and - 5 0/0 deductionsecond trial in final examination. from marks obtained insubject and so on upto4th trial. xx xx xx xx xx

18. Since we could not comprehend what was meant to be provided, in Rule I which is in the very nature of the entire preference provision comprising of the main enactment and Rules 2, 3 & 4, we asked the learned Advocate for the University as to what was at the back of the mind of the University authorities in enacting Rule 1. The learned Advocate for the University stated that the authorities envisaged that the students passing M.B.B.S. Examination and qualifying after completing intership in the same Academic Year are to be preferred to be students who became eligible on completing intership in previous years. He invited our attention to paragraph 9 of the reply affidavit of the Registrar filed on behalf of the University wherein it has been stated as under:

The Facility limited the admission to a student who has passed at the final M.B.B.S. examination at the same academic year. The academic year under Order 75 consists of two terms the first commencing from 15th June to 15th October and the second term commencing from 10 November to 15th March. In the Faculty of Medicine, the academic year is normally understood from July to December and January to end of June. In view of the regulations of the Medical Council, the University has very limited facilities for post-graduate training, the admission of the students being limited to the availability of post-graduate teachers and other facilities at the hospital. At every academic year, the experience is that the students of the same year are left out because of non-availability of seats for them. The Faculty had considered the rules for admission to medical course of the State Government, colleges and the N. II. L. Municipal College. B. J. Medical College and N. H. L. Municipal Medical College have limited seats for first M.B.B.S. course for candidates who have passed their Higher Secondary Examination of the same year and the students who have passed their Higher Secondary Examination prior to the year of admission are not considered eligible, the rationale being that in view of the limited number of seats and in view of the fact that the student has already had an opportunity to compete for admission in the year when he had passed out his examination he would not be entitled to compete for admission again for the next year. The Faculty was of the opinion that the same consideration should be applied in respect of post-graduate medical course also.

In other words, the University authorities intended to exclude the Medical Graduates who would have become eligible by completing their internship in the academic years preceding the relevant academic year in which they seek admission to post-graduate course.

19. Now, the first question, therefore, is: Is this intention on the part of the University effectively carried out in the Rules?

20. The main enactment preceding Rules I to 4 provides for an order of preference. If, therefore, Rules I to 4 provide for order of preference, they are mutually exclusive groups. Now, Rule I on its plain reading is not group at all, since it enjoins that for Merit List, the same Academic Year will be considered. The learned Advocates for the University as well as the respondents Nos. 8 to 15 who are supporting these rules, since it is at their instance that these rules were required to be framed, attempted to persuade us that for the Merit List, the other academic years were irrelevant. This effort to explain these rules as laudable, but we are unable to read the rule in the manner in which it is suggested to us. The learned Advocate would have been justified in this submission if Rule I had provided appropriately that the Merit List of only those students becoming eligible in the same academic year in which they seek admission to P.S. courses will be considered. In our view. Rule I does not fit in at all in the Rule where order of preference' is prescribed. The structure, sequence and substance of Rule I is such that it is not capable of being implemented at all. It is difficult to comprehend as to how the Merit List of the same 'Academic Year' will be preferred to other alternatives provided in Rules 2, 3 & 4. It is really unfortunate that the entire exercise of enacting the proper rules for drawing the Merit List for admission to post-graduate medical courses has misfired so far as the main enactment to Rules I to 4 is concerned. What has been envisaged by the University authorities as set out in paragraph 9 of the reply affidavit has not been properly incorporated in the Rule in the main enactment prescribing the order of preference in general or Rule I in Particular. If Rule I is not capable of comprehension' much less of implementation, the other orders prescribed in Rules 2 3 & 4 are of no consequence. If it really means what is envisaged by the University authorities and we doubt very much that it really does, it might attract vice of violation of Article 14 of the Constitution. In so far as it excludes, if at all, the medical graduates who have become eligible by completing their internship in the academic years preceding the relevant 'Academic Year' in which they seek admission to post-graduate courses, it seeks to make classification which has no rational nexus to the object of selection.

21. It was urged on behalf of the University and the respondents who support these rules that for purposes of admission, the University is entitled to classify different sources and if these sources are based on some rational basis, and if it bears a reasonable nexus with the object of admission, it would be beyond pale of challenge under Article 14 of the Constitution.

22. In support of these contentions, the learned Advocates for the University as well as the respondents placed heavy reliance on the decision of the Supreme Court in Kumari Chitra Ghosh and Anr. v. Union of India and Ors. : [1970]1SCR413 . Rule 4 of College Prospectus of the Maulana Azad Medical College, Delhi, in so far as it permitted the admission from different categories specified at (c) to (h) was challenged and in that context, the Supreme Court speaking through Grover. J. upheld the validity of the Rule. The Supreme Court ruled that the Government which bears the financial burden of running the Medical College cannot be denied the right to decide from what sources the admission will be made, since this is essentially a question of policy and depends inter alia upon an overall assessment and survey of the requirements of residents of particular territories and other categories of persons for whom it is essential to provide facilities for medical education. The Court further ruled that if such sources are properly classified on some reasonable basis, it is not for the Courts to interfere with the manner and method of making the classification. In Chitra Ghosh's case, the earlier decision in P. Rajendran v. State of Madras : [1968]2SCR786 was distinguished on the ground that the restriction of the students for purposes of admission to a particular district was violative of Article 14 since the object of selection for admission is to secure the best possible material.

23. The decision in Chitra Ghosh's case (supra) was referred with approval in D. N. Chanchala v. State of Mysore : AIR1971SC1762 , where Shelat, J. speaking for the majority Court said that the power to lay down sources from which selection would be made as expressly conceded to the Government by the decision of the Supreme Court in Chitra Ghosh's case (supra). Since it was the Government which have borne the financial burden of running the Medical Colleges, it could lay down the criteria for eligibility for admission in its Colleges and to decide the sources from which admission would be made, provided of course such classification is not arbitrary and has a rational basis and a reasonable connection with the object of the rules. From the very nature of things, it is not possible to throw the admission open to students from all over the country. In Chanchala's case (supra), the Court was concerned with the question as to the validity of Rule 9 (1) of the Mysore Medical Colleges (Selection for Admission) Rules. 1970, where University-wise distribution of seats was attacked on the ground of violation of Article 14 of the Constitution. The Court negatived the challenge as, in its opinion, such a selection was not a disadvantage of district-wise selection, particularly because the rules conferred a discretion on the Selection Committee to admit outsiders upto 20% of the total available seats in any one of these Colleges.

24. We have not been able to appreciate as to how these two decisions can assist the cause of the University or of the respondents who are supporting the impugned registration rules. It cannot be gain-said that the registration rules have not made any distinct classification of sources either expressly or by necessary implication. Even if that had been the intention, it has not been properly incorporated in the rules. The learned Advocate for the University, therefore, attempted to persuade us that if rule I gives preference to students on the Merit List of the same Academic Year, it, by necessary implication, excludes the students who have become eligible in earlier years. We must admit that it is really a strenuous exercise for us to appreciate this contention advanced on behalf of the University. Apart from intention not being properly expressed in Rule 1, we fail to understand that even if we agree with the learned Advocate for the University, assuming that this was in the nature of reservation, for the medical graduates being eligible after completing their internship in the same academic year in which the admission to P.G. course open, even then, it may amount to a reservation of 100% for the students of last two examination batches who become eligible after completing their intern-ship in the same academic year in which the admissions open to P. G. courses. It is likely to be assailed, if at all that intention of the University has been incorporated in Rule I as reserving entirely for one class of students and that reservation may be unreasonably excessive, vide M.R. Baloji and Ors. v. The State of Mysore and Ors. : AIR1963SC649 . We must make it clear at this stage that we are not expressing any final opinion on this point, since, in oar opinion. Rule I is not precise and is not capable of implementation. As we have stated, if it says what was meant by the University authorities, it suffers from vice of Article 14 inasmuch as it excludes the medical graduates who have become eligible in the academic years preceding the relevant academic year in which admissions open to post-graduate medical classes, since they form one class alongwith those students who become eligible in the same academic year in which the admissions are to be given to P.G. courses. This position is concluded so far as this Court is concerned by the decision of the Division Bench of Divan and M. U. Shah, JJ. in Special Civil Application No. 963 of 1972, rendered on 5-7-1972.

25. We are, therefore, of opinion that Rule I is, in precise, not capable of being implemented properly and effectively, and, in any view of the matter, if it says that it means as was sought to be urged on behalf of the University, it is violative of Article 14 of the Constitution of India.

26. That takes us to the challenge to Rule 5. Here also. We find a number of difficulties. The title of Rule 5 is 'MERIT LIST'. It opens with drawings of primary merit list of candidates on the basis of total marks obtained in the Final M.B.B.S. examination as reduced by 2% for every trial going upto the maximum of four trial as prescribed in Clause (a) of Rule 5. When we come to Clause (b) of Rule 5, we are confronted with a provision meant essentially for purposes of posting in particular subject. What is to happen to that primary merit list is nowhere stated in the subsequent clauses of Rule 5. Clause (b) of Rule 5 provides for the order of merit to be determined by the external marks obtained in the subject as again reduced by 2% for every trial going upto the maximum four trials. After so providing in Clause (b), the University has ground some departments of the Medicine, Surgery and Gynaecology as GROUP-A, GROUP-B and GROUP-C. This appears to have been so grouped to find out as to in which department the posting should be made. The order of merit is to be determined with regard to the marks obtained in the subjects mentioned against each of these GROUPS. For department's Group under GROUP-A, the basic marks in the subject of MEDICINE is to be considered. Similarly, for department's GROUP in GROUP-B basic marks in the subject of SURGERY are to be considered and for Department of GROUP-C in OBST & GYNEC, basic marks in the subject of MIDWIFERY is to be considered. Thereafter the University has prescribed what should be the percentage of deduction of subject marks. Then we come to Clause (c) which is said to be an enabling clause. It provides as under:

A candidate registered for any of the subjects may be permitted to hold a post in another subject of the same group as given below for the purpose of deciding allied subjects.

What are the allied subjects for GROUP A, B and C have then been enumerated. We have asked the learned advocates appearing for the University as to whether Clause (b), in effect and in substance, provides for registration or for posting. On the plain reading of Clause (b), it provides for posting. It cannot be gainsaid that it would be difficult for us to lake a charitable view in the matter. Since the University was specifically directed to frame rules for registration in post-graduate courses. In our opinion, it is on account of the fact that the authorities concerned have not been able to clearly distinguish between these two concepts, viz. that of Residency and that of Registration in post-graduate studies. It may be that the recedency and post-graduate studies is, by the large, linked up since the training for post-graduate students is necessary. Nonetheless the two fields in which this concepts operate are entirely different.

27. Why was it necessary for the University while enacting the rules for registration that they have to provide for posting in the subjects or for a provision so as to enable the students to hold post in allied subjects ?

28. In our opinion, the Rule as has been drawn does not provide for the effective drawing of the MERIT LIST as envisaged by the University, since the learned Advocate appearing for the University stated that the purpose of the rule is to assess the 'potential' of the student seeking admission on a post-graduate, course on the basis of his 'general performance' having regard to the aggregate marks' obtained at his MBBS Examination and having regard to his 'performance' in the 'particular subject' for his admission to a 'speciality' post-graduate studies.

29. Rule 5(b) is also challenged on the ground that it is irrational and, therefore, violative of Article 14 of the Constitution. The argument on behalf on the petitioners runs like this. The scheme of 'assessment' adumbrated in Rule 5, in so far as it seeks to assess the 'capacity' of a student seeking admission to a post-graduate (P.G.) course in a particular special subject on the basis of his performance in subject of MEDICINE, SURGERY or GYNEACOLOGY - since the 'speciality' in which admission is sought is a part of overall relevant subject - is hardly a scheme which can be said to be reasonable. The weighatage which that particular special subject enjoys as a part of the general SUBJECT of MEDICINE, SURGERY or GYNEACOIOGY is so small having regard to the total marks of that subject that it is hazardous to assess the 'real potential' of the eligible Medical Graduate seeking admission to the special subject for post-graduate studies. According to the Registrar of the University who has filed his reply affidavit in Special Civil Application No. 5387 of 1982 and which have been permitted to be treated as a reply affidavit in Special Civil Application No. 214 of 1983, what Rule 5 seeks to do is to provide for assessing the potential of an eligible medical graduate seeking admission to post-graduate course by applying twin criteria.

(a) Firstly, deciding the order of merit on the basis of his general performance at a graduate level examination by considering his aggregate marks reduced by 2 1/2% for every trial if he has not cleared the subject at first chance.

(b) Secondly, by drawing order of merit on the basis of the marks obtained at one of the relevant subjects as reduced by 2 1/2% for each trial in the subject.

30. We do not think that the assessment procedure, if at all this Rule 5 effectively incorporates it as claimed by the Registrar in his reply affidavit, can be said to be arbitrary or irrational. We appreciate that, in marginal individual cases, this method may not work to the full satisfaction of all. 'Inadequacy of a system of assessment' to meet all the expectations and claims of all 'conflicting interests' can hardly be said to be a ground for 'invalidating' a rule as irrational. We, however, do feel that Rule 5(b) does not say what University meant and it is thus uncertain and vague.

31. The challenge to the rule on the ground of it being not in conformity with Regulation 33 has not impressed us. It cannot be gainsaid that Rule 5 envisaged for providing eligible medical graduates to P.G. (post-graduate) course on the basis of the merit assessed as a result of his performance at under-graduate examination.

32. The contention that the Municipal College authorities have understood and, therefore, could implement the impugned registration rules also does not impress us for three reasons:

(i) Firstly, the University admittedly adopted, by and large, the similar scheme of assessment contained in the residency rules of the Municipal Hospital; on the basis of those residency rules, admissions to P. G. course in Municipal post-graduate centres were used to be granted.

(ii) Secondly, no student from Municipal Medical College has come forward so far to challenge the admission to post-graduate courses.

(iii) Thirdly, it will be difficult to envisage that any Court would upset the admission already granted by the Municipal Hospital authorities to P.G. course at Municipal post-graduate centre after one term is practically over.

33. What is a 'better assessment method' is always a matter of opinion and whether the impugned registration rules could have prescribed such a method is a matter apart.

34. We are, therefore, of the opinion that:

(i) Registration Rule I and 5 (b) as they stand are uncertain and vague. They do not say what is envisaged by the University. If what the Registrar has deposed to in the reply affidavit is the intention of University in respect of Rule I, it may expose itself to the vice of discrimination and violation of Article 14 of the Constitution inasmuch as it would seek to exclude Medical Graduates who have become eligible in academic years preceding to the relevant Academic Year in which they seek admission to post-graduate courses.

(ii) Whether any preference can be given to a batch of students who have become eligible in the same Academic Year in which they seek admission to post-graduate courses is a matter of policy which the University alone can decide in light of expert advice and subject to correct legal principles.

(iii) The term 'Academic Year' is nowhere defined and is capable of being understood as synonymous for the period of two terms. The University may clarify if it so advised.

(iv) Rule 5 also requires to be amended so as to bring about a scheme of assessment fully and clearly so as to be capable of being effective implementation.

(v) The State Government is also directed to make appropriate amends in the Residency Rules so as to bring it in conformity with the Registration Rules that may be ultimately enacted by the University.

35. The result is that, in Special Civil Application No. 214 of 1983, Rule is issued. The service of the Rule is waived by the Advocates of the respective respondents who have filed their appearance.

36. Both the Special Civil Applications are allowed. We declare as above as stated in paragraph 34 and grant writ of mandamus directing the University to amend, clarify and enact appropriate registration rules in light of the observations in this order and according to the correct legal principles within four weeks from to-day. Rule is made absolute accordingly,

The University shall also decide as to the term from which the Rules be made effective.

Letters Patent. Appeal stands dismissed. Interim relief modified so as to permit the respondents Nos. 1 and 2, i.e. the State Government and the Dean of B. J. Medical College, Ahmedabad, to make locum appointments as Residents if so advised.

37. Having regard to the facts and circumstances of the case, there should be no order as to costs.


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