Writ Petns. Nos. 2777, 2940, 3033, 3101, 3747, 3748, 3625 and 3018 of 1993

30th November, 1993

Petitioner Counsel: S. M. Gorwadkar, Dr. Avinash Shivde, Kishor C. Sant, Anil V.Anturkar
Respondent Counsel: C. J. Sawant, V. S. Karker

JUDGMENT

S. P. KURDUKAR, J. :- This batch of writ petitions filed under Article 226 of the Constitution of India, can be disposed of by this common Judgment since the challenge in all these writ petitions is concerning to portion of a Rule bearing sub-heading "Waiting List" in Rule VIII titled as 'Selection Process'. The relevant portion of the said Rule will be set out at the appropriate place.

2. At the outset it may be stated that all these petitioners before us are admitted to MBBS Course on free seats but in private medical colleges. It is further made clear that the controversy in these petitions is restricted to the portion of Rule VIII having sub-heading "Waiting List" and in respect of free seats in Government medical colleges.

3. For the purpose of this Judgment, we may refer to the facts of Writ Petition No. 2777 of 1993.

4. The Government of Maharashtra, Department of Medical Education and Drugs framed Rules for admission to the Government and private Medical, Dental, Ayurvedic, Homoeopathic and Unani courses and prescribed Application Form. These Rules were prepared for the year 1993-94. The preamble states that these Rules were published on or about June 5, 1993. The preamble reads thus :

"The Supreme Court of India in Writ Petition No. 607/1992, Unnikrishnan and others vs. State of Andhra Pradesh and others has given a landmark judgment in the matter of admission process and admission fees of private professional colleges. The judgment inter alia mentions a scheme. The scheme is to be implemented from the year 1993-94.............."

5. The Government resolution of the aforesaid date recites that the State Government has decided to implement the scheme mentioned in the aforesaid judgment and on the basis of the said judgment has framed the Rules and Scheme. It is a composite scheme which is made applicable to the Degree Courses of the private colleges in the faculty of Medicine, Dental, Ayurved, Homoeopathy, Unani and Nursing. Paragraph 3 of the Government resolution reads thus :

"70% of the total seats excluding other reservations will be filled in by the candidates of the local University area and remaining 30% seats will be filled by the candidates from the State level common merit list."

Rule IV deals with distribution of seats. Since there is no challenge in the petition to the distribution of seats it is not necessary to set out the necessary details therein. Since the challenge is restricted to a part of the Rule VIII dealing with "Waiting List", we may reproduce the relevant portion of the said Rule which reads as under :

"At the time of selection, the applicant may opt to remain on waiting list, if he does not get admission to the course of his choice. In that case, his name will not be considered for admission to any other course. Such waiting lists will exist for all the courses till the last date of enrolment by Universities. As and when the vacancies will arise, the applicants on the waiting list will be given admission as per their merit. A backward class candidate is not permitted to remain wait-listed in open merit category, to be considered later on against reserved category of other course." (emphasis supplied).

According to the petitioners, the aforesaid Rule is arbitrary and discriminatory and therefore violative of Article 14 of the Constitution of India.

6. Respondents Nos. 3 to 5 are the candidates who were on the wait list and they have been given admission against the seats that fell vacant after completion of admission to the regular free seats not only in the Government medical colleges but also in the private medical colleges. There is also no dispute that these Respondents are much below the petitioners in the merit list.

7. The medical colleges falling within the jurisdiction of the Bombay University are :

(1) Grant Medical College (Government Medical College),

(2) Dr. D. Y. Patil Medical College, Nerul, New Bombay (Private Medical College),

(3) Mahatma Gandhi Mission Medical College, New Bombay (Private Medical College),

(4) K. J. Somaiya Medical Trust, Bombay (Private Medical College),

(5) Terana Medical College, New Bombay (Private Medical College).

It is also no more in dispute that Grant Medical College has got 71 free seats whereas Dr. D. Y. Patil Medical College and other three private medical colleges have each 23 free seats. Thus in all as far as Bombay University is concerned, there are 163 free seats to be filled in on the basis of open merit. The Petitioners were aspirants to get admission to the Grant Medical College but however in the order of merit they could not secure the admission in the Grant Medical College and consequently they were offered seats in the private medical colleges which they accepted. It may also be stated that in addition to the Grant Medical College and four private medical colleges, there are also few medical colleges run by the Bombay Municipal Corporation. However, no claim whatsoever has been made by the Petitioners to the seats in the medical colleges run by the Bombay Municipal Corporation.

8. Mr. H. D. Potnis, Chief Administrative Officer at Directorate of Medical Education and Research, Bombay, has filed the return on behalf of Respondents 1 and 2. In para 3, he has described the detailed computerised procedure that was allowed by Respondents 1 and 2 while giving admissions to the candidates as per the merit list. Relevant portion in the return relating to the proceeding followed reads thus :

"........At the turn of the key, instantly vacancy position of all colleges flashes on the screen.

Having perused the availability position, on various menus, the Applicant makes up his mind and comes to the final computer Terminal. Here, his identity and demand draft details as per Computer record is ascertained. The applicant demands choice of course and college which he has decided. The same flashes on the screen. The Applicant is required to ascertain the same twice. The Computer Screen flashes messages to warn the applicant that the decision which he is about to make is going to be final. Having confirmed thrice, the Computer gives the command to print out the selection letter of the applicant. (emphasis supplied)

The Applicant, in the meantime, also writes on his original application confirming his choice. The selection letter is now handed over to the Applicant along with the endorsement for Principal/Dean of the Institute where he is admitted".

In para 4, Mr. Potnis has set out the total number of application forms received and how they were processed by following the instructions as well as the guidelines laid down by the Supreme Court in the case of UnnikrishnanJ. P. vs. State of Andhra Pradesh, AIR 1993 SC 2178. It has been then stated that as many as 14559 application forms have been received by the Competent Authority in respect of five courses and on the basis of their merit position they have been allotted seats in the course of their choice subject to availability and eligibility. It is further averred in the return that Respondents 1 and 2 have decided to centralise selection process in the interest of time frame, convenience of the applicants and provision of widest possible choice to the applicant subject to availability.

9. It is alleged by the Petitioners that three free seats in the Grant Medical College (Government Medical College) fell vacant and these free seats were sought to be filled in by Respondents 1 and 2 from the "Waiting List" prepared in terms of Rule VIII. According to the Petitioners, the Rule relating to the waiting list framed by respondents 1 and 2 is arbitrary and discriminatory. The contention is that by the time the Petitioners' turn of interview came, the free seats in the Grant Medical College were exhausted/filled in and by way of compulsion they were required to give choice of private medical colleges. However, the seats which are now fallen vacant in Grant Medical College or Government Medical Colleges after admission of Petitioners in the private medical colleges, such vacant seats/drop outs must be filled in, in accordance with the merit list. The contention appears to be that such of the Petitioners who could not get admission to the Grant Medical College in the first instance as per the merit list, and were required to take admission in the private medical colleges, their claims were required to be considered first in order of merit in preference to the claims of candidates on the wait list. Wait list candidates are very much below the Petitioners in the merit list. According to the Petitioners not only they should have been given admission to the private medical colleges as per the merit list but they should have also been wait listed along with the other eligible wait listed candidates. Merit should be the sole criteria. Candidates who are placed higher in merit list should be allowed to re-exercise the choice of college. Mr. Gorwadkar, the learned Advocate appearing for the Petitioners urged that the private medical colleges are not yet recognised by the Indian Medical Council although the Government of Maharashtra has granted permission to start such medical colleges. By reason of non-recognition of such medical colleges by Indian Medical Council, students who pass their medical course from the Bombay University, are not considered eligible for post-graduate studies as also they do not get a certificate to practise in medicine outside the State of Maharashtra. It is not disputed before us that the students who pass their medical course from the private colleges are permitted to practise medicine in the State ofMaharashtra. It is in these circumstances, Mr. Gorwadkar urged that such of the Petitioners who stand higher in the merit list be preferred to Respondents Nos. 3 to 5 who were on the wait list. Mr. Gorwadkar strenuously urged and requested the Court to bear in mind the adverse impact on the future career and prospect of meritorious candidates including Petitioners while considering the validity of Rule VIII relating to "Wait Listing". Action of Respondents Nos. 1 and 2 is discriminatory while giving admission to Respondents Nos. 3 to 5 in Grant Medical College although they were below the petitioners in the merit list. Interpretation of "Waiting List" in Rule VIII given by the Respondents Nos. 1 and 2 is arbitrary and discriminatory and thus violative of Article 14 of the Constitution. This is the only contention which needed to be considered in these petitions.

10. Mr. Potnis who has filed the return on behalf of Respondents Nos. 1 and 2, in para 8 (Page 103) thereof after setting out how the wait list is prepared, has stated as under :

"Thus, there will be separate waiting lists for Medical, Dental, Ayurvedic, Homoeopathic and Unani Courses. The vacancies shall be filled from Wait-List until such date as will be prescribed for the purpose. If an Applicant desires to keep his name on the waiting list, he shall not be considered for allotment of a seat in any other course. In other words, an Applicant will either accept a seat exercising his choice of the course and college or desire to keep his name on the waiting list of any other course (By way of illustration, an Applicant desiring admission to Medical Course may choose to be on the Waiting List for medical Course. In that case, he will not be allotted any seat in any course and college. If he accepts a seat for any course, say Dentistry, he will not be eligible for being kept on the Waiting List of Medical Course)."

11. In this background of the pleadings and submissions of the parties we have to consider the true import and object of part of the Rule VIII dealing with Waiting List. Close scrutiny of this Rule would indicate that when the Applicant is called for an interview as per the merit list he will be asked to give his option to the course. For instance if he opts for medical course then availability of seats in all the medical colleges including Government Medical College, i.e. Grant Medical College, will be shown on the screen. If any vacancy is available in the Government college, i.e. Grant Medical College, the same will be offered to him but if no vacancy is available in the Government Medical College and the vacancy is available in any other private medical college, the applicant will be required to choose the college. If vacant seat is offered to the applicant, he is required to make a choice of college and if he does not exercise choice and expresses his desire for other medical course and if no seat is available in such course then he can be wait listed provided he foregoes his claim in other medical courses. The result therefore is that if the applicant who is offered the available seat in the private medical college but he does not choose to accept the said seat then such a candidate cannot be wait listed. On the other hand if no seat is made available to a candidate either in the Government Medical College or private medical colleges, then such a candidate may request the Competent Authority to put him on the waiting list of the said course. If he/she is kept on the waiting list, then such a candidate foregoes claim in respect of other medical courses.

12. Bearing in mind the above import of waiting list contained in Rule VIII, we may now examine the contention of Mr. Gorwadkar relating to interpretation of part of Rule VIII dealing with waiting list. According to Mr. Gorwarkar, every candidate is entitled not only to choose the course but also the college. If at the relevant time he has no choice of the college and is required to take admission to a course of his choice in a college of his dislike or in a college not preferred by him then such a candidate as and when the vacancy arises in a college of his choice must be considered in accordance with the merit list although he/she is not wait listed. According to Mr. Gorwadkar, merely because a candidate has chosen a college for the course of his choice does not preclude him from going on the waiting list and wait for his turn if it comes to his luck. This, according to Mr. Gorwadkar, would be proper and correct interpretation of the Rule relating to Waiting List and this would be consistent with the spirit of the Rule viz., that merit alone should be preferred and nothing else.

13. In our considered opinion above interpretation of Mr. Gorwadkar cannot be accepted as it would result into more chaotic situation. Fair reading of Rule VIII relating to "Waiting List" in our judgment is that although it does not specifically deal with the choice of a college but such a choice is inherent in its application and the procedure which is followed by the Respondents Nos. 1 and 2 at the time of finalisation of the admission list. This procedure does indicate that a choice of college was offered to the candidate as per the availability of a seat on the basis of merit Isit. The expression "the courses of his choice" is circumscribed by the availability of a seat in that course in the college. If Mr. Gorwadkar's contention is accepted there will be no finality to the admission in the course as well as college. It will have adverse impact on the admission of all colleges in that course. It may be restricted to limited sets i.e. drop outs, vacant seats, but this cycle will affect all colleges in that course. It is true that the Petitioners before us in the circumstances had a limited choice of the college where vacancies were shown on the computer screen. It is not denied that each Petitioner has in his own handwriting given a choice of a college. It may be true that for a choice of a course, choice of college is narrowed down or limited but such a situation is inevitable if the scheme is required to be enforced within time bound programme. However, the fact remains that the Petitioners did exercise the choice of a college and did not state on the application form that they would be taking provisional admission subject to their right to lay claim on a seat falling vacant in future in a college of their choice in terms of the merit list. The question is whether the admission process which was completed by 26th of October 1993, should be reopened again. In this behalf it would be relevant to refer to the additional affidavit of Dr. S. M. Sapatnekar, Officer on Special Duty in the office of the Director of Medical Education and Research, Bombay, filed on behalf of Respondents 1 and 2. This additional affidavit begins from page 182 to 198. Exhibit 'A' to this affidavit is the computerized true copy of the extract of the merit list of the medical course. It starts with Serial No. 1240. The Petitioners 2, 3 and 4 stand in the merit list at Sr. Nos. 1245, 1247 and 1249 respectively. This merit list also indicates that there are some students above the Petitioners. As stated earlier Respondents 3, 4 and 5 were on the wait list and they have been given admission against casual vacancies/drop-outs which occurred after completion of admission process on 26th October 1993. Respondents 3, 4 and 5 on the wait list have given up their claims to any other medical course and preferred to remain on the waiting list and take a chance. It is to their luck that the casual vacancies arose in the Government Medical College, i.e. Grant Medical College and they secured admission in the said college. If we accept the contention of the Petitioners, it would result into reopening the admission in all courses although to the limited extent. Respondents 1 and 2 will have to go through not only the same cumbersome process of selection once again but they will have to give opportunity to such of the candidates in the merit list who have opted for any other medical course and would stand a chance of getting admission to one or the other Government Medical College or the private medical colleges. Dr. Sapatnekar in his affidavit has indicated, and which we have verified from Ex. 'A' to the said affidavit, that some of the students figuring in the merit list have preferred to go to the Dental College than to remain on the wait list. Some of the candidates have also preferred to go to Ayurvedic or Unani College according to the availability of the seats instead of preferring to be wait listed. If the Respondents 3, 4 and 5 were to be dislodged in order to accommodate three of the Petitioners who stand higher in order of merit, then the same process will have to be repeated in all the private medical colleges as also the Dental College, Ayurvedic College and Unani College. The claim of the Petitioners is that they should be given admission to a course of their choice in colleges where the seats were then available as also their names should have been kept on the wait list. It is difficult to accept this claim. As per the existing Rule the other candidates in the merit list did not think it proper to take a chance and remain on the wait list and therefore they opted for another choice of the course and secured admission. In order to accommodate three candidates from amongst the Petitioners as per the merit lsit, in the Government Medical College, Respondents 3, 4 and 5 who are already admitted will have to be dislodged and their admissions will have to be again recycled on the computer in the other private medical colleges by following the same procedure. On the same principle students who have taken admissions in other medical courses inter se placement in the merit list will have to be reopened and then follow the procedure of Rule VIII "Waiting List". Moreover, Petitioners will have to be treated as if they were on the waiting list. Rules for admission for 1993-94 do not provide for such dual position. If this is done, in our opinion, it will disturb the time schedule which is laid down in the guidelines framed by the Supreme Court in the case of Unnikrishnan (supra). It will again create an uncertainty in the matters of admission, readmission, etc. It must also be emphasised that reopening of the admission as contended by the Petitioners would be against the very ratio of the decision of the Supreme Court in Unnikirshnan's case wherein emphasis has been laid to the finality of the admission within a prescribed time. Time schedule has been adhered to by the respondents 1 and 2 and the admissions were completed by 26th October 1993. It is in these circumstances despite our anxiety to maintain the merit being the only criteria for the admission to the medical course with reference to the choice of a course and college, but in the facts and circumstances of the case recyclying of the process will cause more damage to the scheme of admission.

14. As regards the contention of the Petitioners relating to their prospects of getting admission to the post graduate course, it may be stated that this is at best only a legitimate expectation. On the basis of such an expectation which is to arise after about 5½ years the impugned Rule cannot be struck down. It would also be wrong to assume that the private medical colleges will not be recognised by the Indian Medical Council. In the facts and circumstances of the case, we are of the opinion that it would not be appropriate to disturb the completed admission process which may involve dislodging of students from the colleges where they are settled more particularly when students who are likely to be affected are even not before us.

15. Dr. Avinash Shivade, the learned Advocate appearing for the Petitioner in Writ Petition No. 2940 of 1993 while adopting the aforesaid arguments urged by Mr. Gorwadkar, contended that Respondents 1 and 2 have failed to follow the ratio of the Supreme Court decision in Sharwan Kumar vs. D. G. of Health Services, (1933) 3 SC 332. He drew our attention to para 7 of the said judgment. This decision, in our opinion, has no application to the facts of the present case because it deals with 15% quota reserved for All India Entrance Examination. This decision is distinguishable and not applicable to the facts of the present petitions. Dr. Shivade then drew our attention to another decision of the Supreme Court in Amarjit Singh Gill vs. Director General, Health Services, AIR 1989 SC 386. He read out to us para 3 thereof. This decision is rendered by the Supreme Court in respect of All India Reserved Seats and inter se State transfers. In the case before us, the controversy is altogether different and, in our opinion, this judgment also will not assist the Petitioners.

16. Thus after going through pleadings of the parties and the Rules and Scheme framed by Government of Maharashtra for admission to the Medical Courses for 1993-94, we are of opinion, that rule VIII dealing with Waiting List is neither arbitrary nor discriminatory nor violative of Article 14 of the Constitution of India.

17. It will not be out of place to state that Respondents 1 and 2 for the next year admission may think over the problems reflected in the present batch of petitions and try to find out some device to minimize the hardship to the students seeking admission to the medical courses.

18. In the result, all Writ Petitions are dismissed. Rule in each Petition to stand discharged. In the circumstances, parties are directed to bear their own costs.

C. C. expedited.

Petitions dismissed.