1993 ALLMR ONLINE 739
BOMBAY HIGH COURT
H.W. DHABE AND B.U. WAHANE, JJ.
Dr. Anil Vs. State of Maharashtra, and others
Writ Petition No. 378 of 1993
16th August, 1993
Respondent Counsel: B. T. Patil, G. P. Smt. Shinde, .
Constitution of India,Art. 226 Constitution of India,Art. 226, Nagpur University Ordinance No. 57,,Cl. 4(vii)
2. Briefly, the facts are that the respondent No. 5 was registered in January, 1992 in the post-Graduate Diploma Course in child Health (for short D.C.H.) in Indira Gandhi Medical College, Nagpur. She did two house jobs in the subjects of paediatrics and medicine of 6 months each. Her first house job in the subject of paediatrics was from 7th February 1992 to 13th August, 1992 and her second house job in the subject of medicine had commenced on 14-8-1992 and it was due to be completed on 7th February, 1993.
3. However, in the meanwhile on 14-1-1993, there was an advertisement issued for Post-Graduate registration for degree and diploma courses in the Government Medical College at Nagpur. In the said advertisement, in the subject of Paediatrics, there were two seats for Post-Graduate Degree course, one was open and another was reserved for the Scheduled Caste Candidate. Pursuant to the said advertisement, the respondent No. 5 made an application on 22-1-1993 for admission in the Post-Graduate Degree course in paediatrics in the reserved category of scheduled caste candidates for whom one seat was reserved. Similarly, the petitioner had also applied for registration for degree course in the said subject pursuant to the above advertisement dated 14-1-1993 in the reserved category of Scheduled Caste Candidates. However, the respondent No. 5 being above him in the merit list of the students seeking admission to Post-Graduate Degree course in paediatrics in the category of Scheduled Caste Candidates, the respondent No. 5 was given admission in the said Post-Graduate Degree Course by the respondent No. 3 on 6-2-1993.
4. Feeling aggrieved by the admission given to the respondent No. 5 in the Post-Graduate Degree Course in paediatrics in the post reserved for scheduled Caste candidates the petitioner has preferred the instant Writ Petition in this Court.
5. The learned Counsel appearing for the petitioner has urged before us that the claim of the respondent No. 5 could not have been considered for admission to the Post-Graduate Degree Course because she was already registered as Student for DCH in January, 1992 and therefore as required by Rule 6 of the Rules for admission for Post-Graduate Courses framed by the State Government under the Government Resolution dated 24-12-1991 notice of 3 months was necessary to be given by her before claiming the registration for Post-Graduate Degree Course in the subject of paediatrics. It is also urged before us that since the respondent No. 5 got registration in DCH as an open category candidate, it was not open to her to claim registration subsequently in Post-Graduate Degree course in the reserved category, in view of Rule 3 of the above Rules for admission to the Post-Graduate Courses.
6. The respondent No. 5 has appeared before us in person and has ably put forth, before us her submissions oral as well as written in contesing the above two contentions raised on behalf of the petitioner, Shri B. T. Patil, the learned Government Pleader appearing for the respondents 1 to 3 has supported the construction of Rule 6 of the Rules for admission as canvassed before us by the respondent No. 5. He has further justified the admission given to the respondent No. 5 in Post-Graduate Degree Course in the subject of Paediatrics.
"A candidate selected for registration will not in ordinary courses be allowed to change this registration from one subject to another. A candidate who desires to change registration from one subject to another will have to
give three months' notice before the commencement of the next term to enable notification of his vacancy for others. Such application will automatically terminate the existing registration and it will be created as a fresh application for registration in the new subject. Such applications shall bear the signatures of the teacher concerned with termination and should be made after full consideration as they are irrevocable once lodged with the Deans Office. Registration by itself has no special priority either in registration or in posts."
8. Turning to the question of construction of Rule 6 of the Rules for admission raised before us, the question to be considered by us is what the meaning of the word "Subject" used in the said Rule 6 is. Perusal of Rule 6 would show that ordinarily a candidate selected for registration in one subject is not allowed to change the registration from the said subject to another and if he has to do so then it provides for a three months' notice to be given by him, his notice or application as it is called in the said Rule 6, being itself treated as an application for change of registration. It appears that the object of the said Rule 6 is that there should be time for the authorities concerned to advertise the seat which the candidate is giving up.
9. Turning to the submissions for the parties, the learned Counsel for the petitioner in construing the word "subject" used in Rule 6, has sought to draw assistance from Ordinance 56 and ordinance No. 57 of the Nagpur University relating to registration of the candidates for Post-Graduate Diploma and Degree Course respectively. The submission is that for the purposes of Rule 6, the subjects for diploma course should be held as separate subjects from the subjects for degree course. The learned counsel for the petitioner has also based his aforesaid submission upon Clause 16 of Ordinance No. 57 in which it is provided that :
"A candidate who has registered himself for the Post-Graduate Diploma/Degree Course in a subject shall not be allowed to register himself for the Post-Graduate Degree/Diploma Course either in the same subject or any other subject or viceversa unless he passes the examination leading to that particular course or he foregoes it. This concurrent registration shall not be allowed under any circumstances."
It is urged on behalf of the Petitioner that since Clause 16 of the University Ordinance No. 57 does not permit change of Registration from Diploma to Degree Course, Rule 6 of the Rules for admissions should also be construed similarly.
10. The learned Counsel for the Petitioner has then independently relied upon the provisions of sub-clause (vii) of Clause 4 and in particular its proviso, and Clauses 5, 6 and 16 of the Ordinance No. 57 of the Nagpur University in support of his submission that the admission given to the respondent No. 5, in Post-Graduate Course in Paediatrics is contrary to the said clauses of the said Ordinance No. 57 and is thus illegal and improper.
11. In answer, the respondent No. 5 has urged before us that the subject of Child Health in Post-Graduate - Diploma Course is not different from the subject of paediatrics for degree Course to necessitate notice of 3 months before change of registration from one subject to another as required by Rule 6 of the Rules for admission to Post-Graduate Courses. She has submitted before us that there is no difference in the course of study for diploma and degree Course in the same subject. She has contended that One year in house job is spent in both the Diploma and the degree course. However, for degree course one additional paper in Essay is prescribed, otherwise in all other papers, the questions are even the same according to her. It is her case that even after completion of the diploma course successfully, if the registration is to be sought in the degree course, the degree course is of 2 years and not of 3 years duration inclusive of the year of house job. As
regards the application of sub-clause (vii) of Clause 4 of the University Ordinance No. 57 in her case, it is urged by her that the said provisions does riot disentitle her from admission to the Post-Graduate Degree Course but curtails her course of study by one year, which she has spent in doing two house jobs of six months duration each.
12. In the light of the rival submissions, the first question which needs to be considered is whether the subject of Child Health is different from the subject of paediatrics for the purposes of Rule 6. As per the affidavit filed by the respondent No. 5 the said subjects are the same although in diploma course it is called Child health and in degree course it is called paediatrics. It is clear from the dictionary meaning of the word paediatrics that it is relating to the diseases of children. So merely because of the difference in the nomenclature it cannot be said that the subject of Child Health is different from the subject of paediatrics.
13. The next question to be considered is whether the subject of Child Health in Post-Graduate Diploma Course is different from the subject paediatrics in Post-Graduate Degree Course by reason of the actual courses of study prescribed for the said subjects. As regards the said question, the respondent No. 5 has submitted before us that the courses are the same except that there is one additional paper in Essay for M. D. paediatrics. She has further submitted before us that the lessons are common for both the courses and thus according to her, the courses are more or less similar.
14. The learned counsel for the Nagpur University has however brought to our notice the actual question Papers in the DCM Course and M.D. Course in paediatrics to show that the question papers therein are different and that for DCH Papers in theory the marks are allotted and the candidate has to get minimum marks for passing in the said papers whereas so far as degree course is concerned there is no marking system in the said course.
15. Be that as it may, we are not concerned for the purpose of Rule 6 to know whether the standard required of a candidate in particular subject and his evaluation in the said subject is higher in M.D. Course as compared to the Diploma Course in the said subject as it is bound to be so because the M.D. Course is a degree course which is an intensive course of 2 years duration excluding one year of house job as compared to Diploma Course in the same subject which is of one year duration excluding one year of house job. What we are concerned' with is whether by reason of the M. D. Course being more intensive than the Diploma Course in the same subject, the same subject itself can be treated as different for M.D. Course and the Diploma Course for the purpose of application of Rule 6 of the Rules for admission.
16. In considering the above question, it may be seen that the subjects for Post-Graduate Diploma Courses and the Degree Course are given in Ordinance No. 56 and Ordinance No. 57 respectively framed by the Nagpur University. Their perusal shows that broadly speaking the nomenclature of the subjects is the same in the said ordinances such as medicine, surgery, Gynaecology and Obstetric etc. except that instead of Diploma in paediatrics, the name of the subject in Diploma Course is Child Health although for Degree Course it is paediatrics. Similarly, rule 5 of the Rules for admission framed by the State Government, itself mentions common subjects for Post-Graduate Studies in Post-Graduate Diploma and Degree Courses as broad specialities. The relevant Rule 5 is as follows :
"Selection of the students amongst those who have applied for admission to the Post-Graduate Degree or diploma will be on the basis of the marks obtained in the subject at University Examination modified with specified deduction for the number of attempts taken to press that subject as well as the final M.B.B.S. Examination. Broad specialities for the purpose of these rules are Medicine, Surgery, Obstetrics and Gynaecology and
paediatrics etc. Super specialities will be Neurology Cardiology, Neachrology Enducarinology, Gastroenterology, Neuro-Surgery, Plastic Surgery, Cardio Vascular and Thracis Surgery, paediatric Surgery Urology etc. While psychiatry, Optholmalogy Orthopaedic E.N. T. T.U. Radiology, Anesthesia Skin and, V. D. shall be ancillary broad specialities. When further super-specialities or broad specialities develop the staff Committee will notify the category to which now development is assigned. Selection to super-specialities courses shall be made by Board of Examination constituted for the purpose under Government Resolution No. MED 2087/319 MED 4 A of 10-9-1987 and other Government orders in this regard."
17. In construing the word "Subject" in Rule 6 of the Rules for admission, it is necessary to bear in mind that the rules for admission are common to both i.e. the Postgraduate Diploma and Degree Courses. Further Rule 5 of the Rules for admission refers to common subjects for Post-Graduate studies, whether for Diploma or Degree course. Similarly, in the University Ordinances 56 and 57, the subjects for Post-Graduate studies are the same although the courses of study may be different. It is, therefore, clear that the word "Subject" used in Rule 6 of the admission is not used with reference to the course of study therein as such. In fact Rule 16 of University Ordinance No. 57 was there when the rules for admission were framed by the State Government. Still rules for admission framed by the State Government have not dealt with the question of change of registration from Post-Graduate Diploma to Degree course whether in the same or the different subject which would show that such change of registration is not intended to be covered by Rule 6 of the Rules for admission this is the stand taken by the State Government also in its Written Submissions.
18. Although the learned Counsel for the petitioner has sought to draw assistance from clause 16 of the University Ordinance about concurrent registration in Diploma and Degree course in the same or different subject in interpreting Rule 6 of the Rules for admission framed by the State Government, it is difficult to see how the said clause can help him in interpreting the said Rule 6. It is clear from reading Clause 16 of the University Ordinance No. 57 that when it prohibits concurrent registration in the same subject in Post-Graduate Diploma and Degree Course, it contemplates that irrespective of the nature of courses of study in the said courses, the subject is common in both the courses, i.e. Diploma and Degree. The courses for study therefore, does not make the same subject different in Diploma or Degree Course for the purpose of prohibiting concurrent registration.
19. There is thus no reason why the word "Subject" used in Rule 6 of the Rules for admission for the purpose of change of registration from one subject to another should be interpreted in different manner viz. that the same subject should be treated as a different subject for the Diploma Course and Degree Course for the purpose of change or registration. It is pertinent to see that in Rule 6 of the Rules for admission since the emphasis is upon the "change of registration" in the subject as such, the said rule is not as comprehensive as Clause 16 to the University Ordinance No. 57 which is explicit in not allowing concurrent requirements for Diploma Courses or Degree Courses in the same or different subjects. It cannot, therefore be held in view of the language used in Rule 6 of the Rules for admission that it covers a case of change of registration in the same subject from Diploma to Degree course.
20. The learned Counsel for the Petitioner, has however, relied upon the Rules 4 (vii), 5 and 6 of the University Ordinance No. 57 of the support of his construction of Rule 6 of the Rules for Admission. It is difficult to see how that said provisions are of any assistance in construing Rule 6 of the Rules for admission. Firstly, it has to be seen that the ordinance framed by the University in regard to the examination leading to the Post
Graduate degree course in the faculty of medicine. Clause 4 of the said Ordinance No. 57 prescribes the basic criteria for admission to the Post-Graduate Degree course in the faculty of Medicine, and the courses of studies and their duration. Rule 5 requires the student to prosecute the courses of studies under an approved Supervisor and Rule 6 lays down the eligibility criteria for appearing at the examination in the said Degree course viz. that he is registered student and that he has prosecuted his studies for the requisite minimum period. The above provisions clearly have no relevance in interpreting Rule 6 of the Rules for admission. It is the candidate is not in a position to complete this course of instructions as provided in the said ordinance he would be ineligible for appearing in the examination for the said Degree course.
21. Similarly, it is difficult to see how the sub-clause (vii) of Clause 4 of the University Ordinance No. 57 is of any assistance to the Petitioner in changeling the admission given to the respondent No. 5 or in interpreting Rule 6 of the Rules for admission. Sub-clause (vii) of the University Ordinance No. 57 lays down that the regular course of study for Post-Graduate degree should be of three years after completion of 1 year's rotational internship. However, the proviso to the said sub-clause (vii) of Clause 4 provides for the cases in which the period of study can be less that three years. Sub-Clauses (a) and (b) of the said proviso to sub-clause (vii) of Rule 4 which are relevant for our purpose are reproduced below :
It is clear from the above sub-clauses (a) and (b) that the period of study is reduced by the period spent by the student in completing his hose hob prior to registration as shown in the said sub-clauses.
22. In the instant case, it is material to see that after registration for DCH course, the respondent No. 5 started her first house job which she completed on 13-8-1992. She started her second house job on 14-8-1992 which was due to be completed on 9-2-1993. However, before completion of the said house job, the advertisement in question in the instant case appeared on 14-1-1993 for Post-Graduate Registration, pursuant to which the respondent No. 5 made an application on 22-1-1993 for admission in Post-Graduate Course in Paediatrics and was granted admission on 6-2-1993 which is just 3 days prior to her completion of second house job on 9-2-1993. The question thus would be whether as provided in sub-clause (a) of sub-clause (vii) of Rule 4 of the University Ordinance No. 57, the regular course of study of the petitioner can be reduced by one year or not or whether it should be reduced only by six months as provided in sub-clause (b) thereof. In our view, the above question has no relevance either in interpretation of Rule 6 of the Rules for admission or on the question whether the petitioner is or is not entitled to apply for admission to the degree course.
23. Keeping in mind the provisions of the proviso to sub-clause (vii) of Clause 4 of the University Ordinance No. 57 and in particular sub-clauses (a) and (b) thereof, which are attracted in the instant case, it is for the University to decide whether the period of study for the respondent No. 5 should be less by the one year or not since her second house job is short by three days, which question the University, we are sure, will consider in the context of the relevant rules relating to the completion of house job and reasons why the Second house job was not completed before the advertisement was issued for Post-Graduate Courses. However, as already pointed out the said question is not relevant in interpreting either Rule 6 of the Rules for admission or on the question of eligibility of
24. As held by us above, if Rule 6 of the Rules for admission is not applicable for change of registration from Diploma to Degree course in the same subject, it is necessary to consider only the question whether Clause 16 of the University Ordinance No. 57 would prohibit the petitioner from applying for admission to the degree course.
25. In our view, perusal of Clause 16 of the University Ordinance No. 57 would show that although it does not permit concurrent registration, it is open to the candidate to forgo his registration in the subject in which he is registered for either Post-Graduate Diploma or Degree Course and claimed registration in the same subject for Degree Course or registration in any other subject either for the Diploma or Degree Course as the case may be. There is however, no mode like Rule 6 of the Rules for admission provided in Clause 16 of the University Ordinance No. 57 for forgoing registration in the subject, in which the candidate is registered before seeking registration in the same or in any other subject for the Diploma or Degree course as the case may be. The student can therefore, forgo his registration at the time, when he is seeking new registration. It is brought to our notice that in the instant case, the respondent No. 5 had in the Application form for admission to the Post-Graduate Degree Course in Paediatrics mentioned that he was registered for D.C.H. already and the competent Authority was aware of the above fact, and had in fact, filled in the Seat of the respondent No. 5 in D.C.H. Course. There is thus no question of any concurrent registration in the above facts and circumstances of the instant case, because the registration of the respondent No. 5 in D.C.H. Course stands cancelled, when she was granted registration in Degree Course. Rule 16 of the University 'Ordinance No. 57 is thus not attracted in the instant case.
26. As regards the question whether Rule 6 of the Rules for admission regarding giving of three months' notice for change of registration is applicable to the respondent No. 5 or not, apart from the fact that, the State Govt. itself had admitted that it is not applicable in her case, the respondent No. 5 has brought to our notice that there are other cases, in which without being required to give three months' notice, the students are allowed to change their registration from Diploma to Degree Course in the same subject. In her affidavit filed on 17-8-1993, she had given the names of nine students in various subjects, who are allowed to change the registration from Diploma to Degree Course in the same subject. The submission on behalf of the respondent No. 5 thus is that, if she is not allowed to such change of registration, the action of the State would be arbitrary, discriminatory and violative of Article 14 of the Constitution of India. It is not necessary for us to go into the said question since we have held that Rule 6 of the Rules for admission is not applicable for change of registration from Diploma to Degree course in the same subject.