JUDGMENT
G.H. Guttal, J.
1. In this petition under Article 226 of the Constitution of India, the petitioner seeks an order that she is entitled to admission to the Post Graduate Degree Course namely : M.D. in Obstetrics and Gynaecology in the place of respondent No. 3 at Swami Ramanand Tirth Medical College at Ambajogai.
2. The facts relevant for considerations of the petition are these, the petitioner passed her M.B.B.S. Examination in December, 1982. On 4th January, 1984, she completed her Intership and registered as Medical Practitioner with Registration No. 51450.
After a short term as Houseman in Bombay, she was appointed as House Surgeon in Obstetrics and Gynaecology at the Swami Ramanand Tirth Medical College, Ambajogai, on 1st September, 1984, where she continued to work upto 15th February, 1985. From 26th February, 1985 to 31st July, 1985 she held House-Post in General Surgery in the same College. However, she continued to work in the House-Post in General Surgery for 12 days from 1st August, 1985 to 12th August, 1985, without a formal appointment. Her appointment for these 12 days awaits approval.
While she worked as Houseman, as stated in the last paragraph, she was on casual leave from 15-12-1984 to 21-12-1984 (7 days). However, she tagged on a “leave” of 20 days from 22-12-1984 to 10th January, 1985, on the ground of maternity. Under the Rules, no leave can be joined to casual leave. That is why the authorities did not grant her leave of any kind for these 20 days between 22-12-1984 to 10-1-1985 but treated her absence as leave without stipend.
On 20th August, 1985, she applied for registration for the Post Graduate Course in M.D. (Obstetrics and Gynaecology), on 29th August, 1985 a Committee of the College considered her application. The Committee held that the period of service of the petitioner as Houseman was only 4½ months as against 5½ months required by the relevant Rules. The Committee did not recommend her registration for the course of M.D. in Obstetrics and Gynaecology.
3. The Dean of the College-respondent No. 1 has made an affidavit, bringing out these facts:-
(i) The petitioner was appointed as Houseman in Obstetrics and Gynaecology from 1-9-1984 to 10-2-1985. This was one independent tenure. She was again appointed as Houseman in Surgery from 26-2-1985 to 31-7-1985. This was another tenure. For completion of House-post in Surgery she fell short by 12 days. Therefore, she was allowed to work for 12 days from 1-8-1985 to 12-8-1985 subject to the approval of the Director of Medical Education and Research, Bombay.
(ii) The leave without stipend from 22-12-1984 to 10-1-1985 (20 days) cannot be counted towards completion of the period of Housemanship.
(iii) Casual leave cannot be joined to any other leave. Therefore, her absence for 20 days cannot be counted towards completion of the Housemanship.
(iv) No maternity leave is admissible while working as a Houseman. The period was only 7 days.
4. The petitioner has urged two points :
(i) Dr. Ashwin Kulkarni was granted 12 days during his sickness. The period was counted towards completion of the housemanship. Similarly, there were two strikes by doctors, one from 21-2-1983 to 30-3-1983 and the other from 10-7-1984 to 6-8-1984. The absence of the striking doctors was condoned and the period of absence was taken into account for completion of their housemanships. The denial of 20 days maternity leave and the consequent refusal to add up 20 days to the period of her housemanship is thus discriminatory.
(ii) Maternity leave is admissible under the Maternity Benefit Act. Therefore, the respondent should be compelled to grant maternity leave of 20 days and hold that she has completed Housemanship as required by the rules.
5. The petitioner’s service for 12 days from 1-8-1985 to 12-8-1985 has not received the approval so far. In the absence of such approval it is not possible to conclude that the petitioner is entitled to include these 12 days for the completion of duties as Houseman.
Similarly, the Rule governing the service as Houseman do not permit her to join 20 days leave of any kind to earned leave which she took from 15-12-1984 to 10-1-1985. This position has not been controverted by reference to these rules. The petitioner has not even questioned the correctness of this position. Therefore, she is not entitled to include these 20 days as part of her period of service.
Then she says that she is entitled to maternity leave by virtue of the Maternity Benefit Act, 1961. The Act applies to “every establishment being a factory, mine or plantation….” (Section 2(1) of the Act). The petitioner admittedly does not belong to any establishment of this nature. The proviso to section 2(1) of the Act enables the State Government with the approval of the Central Government, to declare that all or any of the provisions of the Act shall apply also to any other establishment or class of establishments. No such notification extending the application to the Houseman of Medical Colleges or to Doctors employed in Hospitals and Medical Colleges has been shown to us. The notification No. MBA-1063-Lab-III, dated 9th August, 1965, of the Government of Maharashtra merely notifies the date on which the Act came into force in Maharashtra. Therefore, we hold that the Act does not apply to the petitioner. The submission that she is entitled to maternity leave under the Act is unsound.
6. The petitioner’s argument that the refusal to admit her to M.D. course in Obstetrics and Gynaecology is the result of discriminatory treatment is well founded. Although we have held that she is not entitled to maternity leave or any kind of leave, we are of the opinion that in view of the circumstances which we will presently set out, the denial of registration for M.D. in Obstetrics and Gynaecology to the petitioner is unjust. The reasons are as follows :
The Rule on which the petitioner and the respondents rely has been set out as an Annexure to the affidavit-in-reply filed by the Dean, Medical College, Ambajogai, who is respondent No. 1 Rule 7(c) which lays down the criteria for selection to the Post Graduate Course reads thus:
“They must subsequently have done one year’s Housemanship/Residency prior to admission to the post-graduate degree or diploma course. Housemanship/Residency should preferably be for one year, in the same subject or at least six months in the same department and the remaining six months in an allied department. Provided that in departments like Radiology/Anaesthesiolgy where generally very few house jobs are provided, the housemanship may be in general in medicine/and or in General Surgery”.
It is common ground that though the above quoted Rule requires housemanship of “at least six months” in the same department and the remaining “six months in an allied department”, in actual practice the requirement is taken to have been complied with if the housemen completes a total tenure of five and half months in the same department. This is clear from paragraph 13 of the affidavit-in-reply by the Dean which reads:
“The case of the petitioner was reviewed by the College Council and after discussion the Council came to the conclusion that her total tenure of houseman post in Obstetrics and Gynaecology was 4 ½ months and not 5½ as required”.
During the arguments this petition was conceded by Council for all the respondents. We, therefore, hold that the petitioner is required to complete 5 1/2 months tenure as house-surgeon in Obstetrics and Gynaecology.
7. The requirement of completion of 5½ months in the same department is directory and not mandatory. The Circular No. PG/VI/9/80-81, dated 14th August, 1980, which is annexed to the affidavit of respondent No. 1 Dean of the Medical College, notifies that the registration of students for post-graduates courses in the faculty of Medicine ”be done as per the norms recommended” by the Executive Council. It is thus intended to be a recommendation and not an imperative command. The word used is ‘norms’ which is weaker in its meaning than the expression which would imply an imperative. Therefore, the University authorities themselves never considered that ”recommendation of the ”norms” should be strictly complied with and should be made a condition precedent to the registration of students for post-graduate courses. This would be clear if one considers Rule 7(c) itself. The rule requires that the students should complete total housemanship of one year ”preferably” in the same subject or at least six months in the same department. The use of the word ”preferably” suggests that the University would prefer the candidates who completed five and half months tenure in the same department but may relax this requirement in appropriate cases. The rule does not require that it shall be obeyed invariably in all circumstances. The rules of construction as to whether a provision is mandatory or directory are well settled. The nature, design and the consequence of the provisions which are construed are considered as a whole. Ordinarily, where the mandatory expression like ‘shall’ is used the provision is construed as imperative. Even where the imperative expression ‘shall’ is used, the concerned rule or legislation is not always mandatory. Even then it would depend upon the intent of the draftsman and not upon the language in which the intent is clothed. While several tests have been propounded for determining the question whether a provision is mandatory or directory, no universal rule can be laid down. The totality of factors like subject-matter, language employed, its purposes and consequences of its violation decide this question. In the instant case there is a total absence of imperative language. The language is permissive as would be clear from the word ”preferably” used in the rule. The consequences of the failure to comply with this requirement have not been set out. The key to the interpretation of this rule is the intent of the draftsman. The draftsman intended that before admission to the post-graduate degree course in Medicine the student should have completed six months to equip himself or herself with adequate experience in that department. But the experience of 5½ months, 7½ months or 4½ months has not been made a part of the basic qualification of a candidate to take up the post-graduate course. The duration is flexible at the discretion of the authorities. A candidate may adequately equip himself within a period of four months, another candidate may do so within a period of six months. If the authorities in charge of the department are satisfied that the candidate is sufficiently experienced, the authority may consider that he or she is fit for registration as post-graduate student. The absence of consequences of failure to comply with this is an index of the recommendatory nature of the Rule 7(c).
8. We are of the opinion, therefore, that Rule 7(c) requires substantial compliance and not strict, rigid and mathematical compliance. We should not be understood to have held that in every case where a candidate does not fulfil the required 5½ months tenure, he is entitled to the registration as post-graduate student. The decision in this matter is always left to the authorities of the University and not to the courts except in the case where the decision is tainted by illegality.
9. The petitioner has admittedly completed 4½ months tenure in the department of Obstetrics and Gynaecology and has complied with Rule 7(c) as modified by the practice which requires her to complete 5½ months tenure. She falls 20 days short of this requirement.
The instances of relaxation of Rule 7(c) have been cited by the petitioner in paragraph 9 of her petition. Dr. Ashwin Kulkarni failed to complete 5½ months tenure in General Surgery as he was admitted in the medical ward because of sickness between 1-11-1984 to 12-11-1984. The University nevertheless condoned this short-fall and granted him the registration. Secondly, the housemen and Registrars of this very Medical College were on strike from 21-2-1983 to 30-3-1983, a period of 37 days. The authorities, pursuant to the Government decision condoned this absence of Housemen and admitted them to the post-graduation courses. Thirdly, in 1984, the Housemen and Registrars went on strike from 10-7-1984 to 6-8-1984 a period of 27 days. This too was condoned and the housemen were admitted to the post-graduate courses.
10. These averments have been answered by the Dean of the College in paragraph 7 of his affidavit. In regard to the case of Dr. Ashwin Kulkarni all that he says is that ‘his case was considered by the Head of the Surgery Department and in that case he was allotted the registration required by him.”
11. There is no denial of the fact of admission of Dr. Ashwin kulkarni nor have any special circumstances justifying the admission of Dr. Ashwin Kulkarni, default notwithstanding, been set out. It has been stated that though Dr. Ashwin Kulkarni did not complete five and half months housemanship, his performance during the period that he worked as houseman was so good that the authorities considered it fit to relax Rule 7(c) in his favour. In the case of the Houseman and Registrars who were on strike there is no explanation as to why and in what circumstances exception was made in their case. The Dean goes on to say ”the analogy referred to by the petitioner of Dr. Ashwin Kulkarni and the Doctors who were on strike is not applicable in this case as these are based on different state of facts”. What those ”different” facts were has not been stated. Reliance is placed on the fact that it was the Government by its Resolution (MED/EDN & Drugs DEPARTMENT) No. MED/1085/6196/MED-4, dated 5-9-1984 that took the decision to admit the striking housemen to the post-graduate course. This offers no explanation at all for the exception made in the case of these doctors.
12. Thus, on considering the affidavit of the Dean of the Medical College, Ambajogai and the petition, we conclude that the following facts are proved:—
(a) Notwithstanding Rule 7(c) of the respondents which include not only the Dean of the Medical College, Ambajogai but also the Government of Maharashtra and the Registrar of the University granted admission to the three sets of candidates to post-graduate courses though they had not completed the required tenure of housemanship;
(b) The petitioner could not complete five and half months tenure because of the fact that she delivered a child in the same Hospital has been denied admission,
(c) No reason much less rational explanations have been disclosed by the respondents for the relaxation made in the cases of Dr. Ashwin Kulkarni and the two sets of striking doctors whose period of absence was longer than the petitioner.
13. In Principal of King George’s Medical College v. Dr. Vishan Kumar Agrawal and another, , a candidate by name Mrs. Saxena had been admitted to the M.D. Course though she had not completed one year’s house job as Demonstrator as required by the rules. Similarly, another candidate by name Dr. (Mrs.), Ratnaprabha Gupta who was not qualified under the rules was admitted to the course by the University. As in the case before the Supreme Court, in this case too, the petitioner has been picked up for a differential treatment though her case is not different from the case of Dr. Ashwin Kulkarni. Similarly, there is no reason why the respondents relaxed the rule in the case of the striking doctors and denied it to the petitioner. The respondents have plainly applied unequal standards in the case of Dr. Ashwin Kulkarni and the striking doctors on the one hand and the petitioner on the other. It is not permissible for the University to deny to the petitioner equal treatment with the others who in similar circumstances were admitted to the post-graduate course. This is particularly so because the respondents have not urged that the petitioner’s case suffers from any other short-coming.
14. The application of different standards to the petitioner and to other students is not based on any rational differences in their situations. She has been denied admission merely on the ground that she failed to satisfy the requirement of Rule 7(c) and no other. No other fact which would make her eligible has been urged by the respondents. Denial of admission to her in these circumstances is plainly discriminatory and unjust. The exercise of discretion in selecting Dr. Ashwin Kulkarni and the striking doctors for the purpose of relaxation of Rule 7(c) or refusal to relax the Rule 7(c) in the case of the petitioner must be guided by standards or norms so that it does not degernate into arbitrariness and operate unequally on persons who are similarly situated. The manner in which and the reason for which the petitioner has been denied admission show that the discretion has been exercised in a discriminatory manner. The power of relaxation vested in the authority like the University or the Government must be exercised reasonably and fairly and not in a discriminatory manner. The objective of the requirement of 5½ months’ housemanship in the same department is to equip the candidate with adequate experience to go in for post-graduate education. The differentiation made between the case of the petitioner and the cases in which the Rule was relaxed bears no nexus with this objective. There is no rational explanation as to why the petitioner on the one hand and Dr. Ashwin Kulkarni and the striking doctors on the other should be grouped in separate categories. No special peculiarities or features of the respective cases have been brought to our notice.
15. For all these reasons we hold that the denial of admission to the petitioner in the circumstances of the case is tainted with arbitrariness and discrimination. Though we have held that the petitioner is not entitled to the leave of 20 days as she has claimed and though in our opinion she has not completed the requisite 5½ months of housemanship, she cannot be denied admission to the post-graduate course because the denial is discriminatory and therefore, violative of equality of clause of Article 14 of the Constitution of India.
16. We, therefore, make the following order.
Order
(i) The petition is allowed in terms of prayer Clause (B). However, respondent No. 3 Dr. Deshpande shall not be displaced from his seat into which he was admitted for post-graduate course in Obstetrics and Gynaecology;
(ii) Respondents Nos. 1, 2 and 4 shall take all steps to admit the petitioner to M.D. Course in Obstetrics and Gynaecology and actually admit her to that course in the academic year beginning in June, 1987, at Swami Ramanand Tirth Medical College, Ambajogai.
(iii) Rule made absolute in above terms.
(iv) There will be no order as to costs.