ORDER
D. G. Deshpande, J.
1. Heard Mr. Barlinge, Advocate for the petitioner, and Mr. Pradeep Deshmukh & Mrs. Smita Deshpande, Advocates for the respondent No. 4.
2. The dispute between the parties is regarding admission to post graduate course in medical faculty and the petitioner in this petition has challenged the order of the University College Tribunal dated 23-9-1997, by the which the Appeal filed by the petitioner was dismissed.
3. In the said appeal the petitioner had challenged the order dated 5-8-1997 issued by the respondent No. 1 selecting the respondent No. 3 for admission to M.D. (Medicine) against the seat of January, 1996. returned from All India Entrance Examination. The petitioner wanted the University Tribunal to cancel the admission given to the respondent No. 4 and to grant him admission against the returned seat.
4. I heard Mr. Barlinge and Mr. Pradeep Deshmukh Advocates at length. Both of them took me through all the relevant provisions and the Government Resolution dated 24th October, 1991, which contains Rules for selection of candidates lor admission to the post graduate degree course. This G.R. is dated 24-10-1991 and they also took me through the entire record of this petition and the case-laws referred to and relied upon by them. The facts giving rise to the petitioner’s claim are as under.
5. The petitioner passed M.B.B.S. examination held in November/December, 1994 and got registered under the Maharashtra Medical Council Act, 1965 on 29-2-96. He applied for admission to the post graduation course in Medicine for January, 1996 batch, but could not get admission against any of the eight regular institutional seats of M.D. (Medicine) on merit. One of the seats could not be filled up by All India Entrance Examination and, therefore, same was returned to the institute. It was offered to one Dr. C.R. Sarda and, thereafter to Dr. Mrs. Digraskar, but since both of them did not accept and join, then the admission came to be given to respondent No. 4 who has secured 252 marks and was standing in Sr. No. 19 of the merit list.
6. It is the claim and contention of the petitioner that the respondent No. 4 had already registered himself for Diploma in D.L.O. and joined the course on 23-4-1997 i.e. for January batch. According to the petitioner, the respondent No. 4 had no right of admission to M.D. Course seat that was returned to the institution. Firstly, because the respondent had already joined D.L.O. Course and secondly because Rule 6 of the G.R. at exhibit ‘K’ dated 24-10-1991 was coming in the way of the respondent No. 4, as it prevented a candidate from changing his registration from one subject to another and if at all such a change was desired then the candidate was required to give three months notice before the commencement of the next turn to enable notification of his vacancy for others. According to Mr. Barlinge, the respondent No. 4 did not give any such notice but submitted resignation on 5-8-1997. It was accepted on the same day and he was given admission to M.D. Medicine Thus, according to Mr. Barlinge is totally and completely illegal. This has deprived the petitioner of his right to get admission to M.D. (Medicine).
7. Further, according to Mr. Barlinge, after the institutional seat became vacant and was returned to the institution then in spite of giving offer to respondent No. 4, the offer should have been given to the petitioner, because the respondent No. 4 already opted for and joined D.L.O. Course. He also contended that the change of registration was not permissible and ultimately he submitted that if the admission given to the respondent cannot be cancelled then an additional seat is required to be created for the petitioner and necessary directions should be given to the Government in that regard.
8. The learned Assistant Government Pleaderfor the Dean, Government Medical College contended that, accepting the resignation of the respondent No. 4 in the absence of three months notice as contemplated by Rule 6. In the peculiar situation arising out of refusal of two other candidates to accept the offer, was not illegal since there was no option but to give the offer to respondent No. 4, accept his resignation and then give him admission to M.D. Medicine. He also contended that the criteria of merit and preference was both considered in the case of respondent and since he was at Sr. No. 19 in the merit list as against Sr. No. 23 of the petitioner and since the respondent No. 4 has given first preference to M.D. Medicine as against first preference of the petitioner to M.D. (Pediatrics), petitioner’s claim was rightly considered. Regarding creation of new post to accommodate the petitioner, the Asstt. Government Pleader took strong objection on the ground that creation of medical post was in the hand of the Medical Council of India and at any rate for that purpose the Medical Council of India was a necessary party, and in absence of Medical Council of India in the present petition prayer of the petitioner (or creation of additional seat was required to be rejected.
9. It is an admitted fact that, only one seat was returned to the institution. It is also an admitted fact that respondent No. 4 was at the top position in the merit list as compared to the petitioner’s position. It is also an admitted iact that the respondent No. 4 had given preference firstly to M.D. (Medicine), then in the following order DCH/ DMRD/MD-OBGY/ DLO/MD-Anaes, whereas the petitioner has given preferences as MD-Paed/MD-Med./DCH/ MD-Aneas/DA/LCP. It is also admitted fact that respondent No. 4 was admitted for January batch to DLO that he was given an admission to MD-Med. in January, 1997 and there is no dispute that offers given to Dr. Sarda, Dr. Ms. D.A. Digraskar were not accepted by them. It is also an admitted fact that the petitioner did not raise any dispute for giving offers to Dr. Sarda and Dr. Ms. Digraskar in preference to the petitioner’s claim.
10. In the background of the circumstances it has to be decided-whether petitioner’s claim for cancellation of admission to respondent No. 4 and giving admission to him to MD-Medicine can be considered and whether it can be considered after the respondent No. 4 has joined the Course MD-Med. in August, 1997, i.e. after seven months of his continuing the course, and whether any direction can be given for creating additional seat to accommodate the petitioner.
Exhibit ‘K’ is the Government Resolution which governs rules for selection of candidates for admission to P.G. Course in medicine. Rule No. 2 of the said Government Resolution provides that,
“Each recognised post-graduate teacher in Clinical, Para-clinical and Basic Medical subject shall admit for post graduate registration not more than two candidates per year in a Unit for University Post-Graduate Degree or diploma taken together, i.e. one per term of six months”.
It also provides that,
“Concurrent registration on same student in diploma and degree and 2 specialities at a time will not be permitted unless one registration period is over or is discontinued”.
Rule No. 6 of the said Government Resolution provides that,
“Ordinary registration of candidate from one subject to another will not be permitted and if a candidate wants to change his registration from one subject to another he will have to give three months notice before the commencement of the next term to enable notification of his vacancy for others. The rule further provides that, such appln. will automatically terminate the existing registration and it will be treated as a fresh application for registration in the new subject. It also provides that, such application should be made after full consideration. Registration by itself has no special priority either in registration or in posts”.
Rule No. 7 provides that,
“Basis of selection of student will be on merit basis as laid down in Rule 5”.
11. According to Mr. Barlinge, respondent No. 4 did not give three months notice before changing his registration from one subject to another subject. The respondent No. 4 submitted his resignation on 2-8-1997 and it was accepted on 5-8-1997 i.e. within three days, and on the same day he was offered MD (Medicine) seat. This according to Mr. Barlinge, is illegal (for want of three months notice and also because it amounted to concurrent registration in two specialities at a time).
12. If rule 6 is interpreted in its proper perspective, it appears that, provision of three months notice was made to enable other candidates to know in advance that the vacancy was likely to arise, so that they could apply for that vacancy in the next term. The Rule 6 or for that matter none of the rules contained in the said G.R. dt. 24-10-1991 envisaged or contemplated a situation which arose in the instant case namely (i) seat be returned to the institution (ii) persons i.e. two doctors (Dr. Sarda & Dr. Ms. Digraskar) to whom the seat was offered not claiming the seat. Admittedly the rules do not provide for such a contingency.
However, Rule 7 clearly lays down that selection of the student will be on the basis of merit, and as argued by both the Advocates, on the basis of preference given.
13. If the G.R. does not provide for such a contingency and situation arises for filling the post at a time when first term has recently started and the candidates are required to be admitted for the first term then the question is what the authorities concerned with admission were supposed to do, and the second question i.e. whether the procedure followed by the authorities i.e. the Dean, in the instant case in giving offer to the respondent No. 4 in accepting his resignation from O.L.O. Medicine for January batch without waiting for three months period is illegal and invalid (It is required to be borne in mind the petitioner has not alleged any motives to the Dean nor has alleged mala (ides against the Dean i.e. respondent No. 2 in the sole matter).
14. The case and contention of the petitioner is that, since respondent No. 4 had already registered himself for D.L.O. and joined that course, respondent No. 4 was not entitled to register himself for MD-Med.. As against this, it was argued by Mr. Pradeep Deshmukh learned Counsel for respondent No. 4 that, firstly there was no change of batch when respondent No. 4 changed from D.L.O. to M.D. (Medicine). Secondly, respondent No. 4 had already given preference to M.D. (Medicine) but as the seat was not available at that time, he had to opt for D.L.O.. Thirdly, according to him for other diploma courses there were degree courses, but there was no diploma course for M.D. (Medicine) and, therefore, respondent No. 4 could not have opted for any diploma course in Medicine.
15. After considering the submissions made by Mr. Barlinge and Mr. Deshmukh I do not find any illegality in the whole matter. Respondent No. 4 by opting for M.D. (Medicine) does not change his batch. He has given admission to M.D. (Medicine) in January batch and his admission to D.L.O. was also in January batch. Admittedly, one term of one batch was for six months and if rule of three months notice as contemplated by Rule 6 was to be followed/observed by every one irrespective of the batch, that it would mean that for a six months term batch, a candidate would be required to give three months notice meaning thereby that a candidate cannot, after getting admission and completing the same, in one batch change his batch. This does not appear to be the intention of Rule 6. If a candidate wants to change registration for another subject for the next batch then insistence of three months notice in proper. Rule 6 also shows that three months notice is required to be given so that others who are waiting in queue come to know about the vacancy that is to arise on account of a candidate desiring to change the registration from the next batch. Once he register himself in one particular discipline or subject of M.D. Medicine then the registration continues throughout the four term. However, if a candidate after having taken admission in one subject for M.D. and after having registered himself he wants to change his registration from the next batch, then he has to give three months notice. Because this change of registration creates a vacancy in his subject and for that vacancy those who are interested can apply.
16. However, as referred to above, the Government Resolution dated 24-10-1991 is silent regarding the change of registration for filling vacancies which arise in peculiar circumstances, like the present one. Further, there is no bar in the G.R. that if an offer is made by the Dean, to a particular candidate in the circumstances prevailing in the present case, the candidate has to decline the offer because he has been given admission to some other diploma or post graduate course for which he had not given first preference.
17. A close scrutiny of Rule 6 shows that, candidate who desires to change registration from one subject to another will have to give the three months notice as contemplated by Rule 6, and Rules further provides that such application will automatically terminate the existing registration (stress added). This shows that Rule 6 does not speak about any resignation being offered by the candidate nor it speaks of any acceptance of the registration by the Dean or the authority giving appointment. What the rule provides is that the application will automatically terminate the existing registration. This clearly means that merely because a candidate registers himself in one subject, cannot, if opportunities become available to him, be asked to continue his subject till the completion of six months nor does not the rule lay down that if he desires to change registration, the same will be subject to acceptance of his resignation at the discretion of the authorities. The use of the word “such application will automatically terminate the registration” shows that once a decision is taken by student to change his registration and he has given three months notice then nothing prevents him from terminating his existing registration.
If this is the right given to the candidate by Rule 6 then and since there is no other contradictory rule, then it becomes clear that rules did not require respondent No. 4 to give his resignation and its acceptance.
18. So far as three months notice is concerned, the findings and observations of the College tribunal cannot be said to be perverse, because Dr. Sarda & Mrs. Digraskar did not accept the offer given to them, the seat was remaining vacant and there was no time to ask for three months notice from the respondent No. 4. It was well within the discretion of the Dean to accept the resignation and give admission to the respondent No. 4. If respondent No. 4 was required to give three months notice then the valuable time of three months would have been wasted. He would have been required to continue his education for three months and then change his subject from the second term resulting in loss of six months period and also loss of getting admission to the offered subject.
Regarding Ihe right of the respondent No. 4 for being given admission to the vacant seat, admittedly he stands at a better place than petitioner because as per the merit list he is at Sr. No. 19 whereas petitioner is at Sr, No. 24. Further, respondent No. 4 had given preference to M.D. Medicine-I whereas petitioner has given preference to M.D. Paed-I. Therefore, as per the preference the respondent No. 4 was rightly given admission.
19. Mr. Barlinge, relied upon a decision oi Division Bench of this Court , Sheela Laxmikant Kulwal Dr. v. State of Maharashtra & others, in support of his contention. However, the facts of that case and the present case are totally different. In that case all the petitioners were already admitted and had already registered for diploma course and they wanted to join a degree course by showing their willingness for resigning from diploma course. The Court considered Rule 2, 6, and 10.
In para 10 it is observed that,
“Time and again, this rule (Rule-6) came to be considered by this Court and it was held that the bar created by Rule 6 in 1971 Rules applies only for the students who wanted to change from one subject to another and it
did not apply to the candidates who wanted to remain in the same subject but desired to change the course from diploma to degree.”
The Court has also further held that, because the advertisement given by the Dean was not published in time, the petitioner could not have a choice of not joining the diploma course at all or discontinuing the same.
It appears from this judgment that the petition was allowed by this Court only because of delay in advertisement, and non-availability of opportunity to the students to give three months notice. It also appears from the judgment that the Court has considered the possibility of the petitioner’s giving required three months notice of discontinuance so as to seek admission to the degree course.
20. In the instant case respondent No. 4 had given his resignation for seeking admission to M.D. (Medicine) for the same January batch. Firstly, there was no change of batch. Secondly, respondent No. 4 was in better position in merit list than the petitioner. Thirdly, he has given first preference for M.D. Medicine and fourthly, his resignation was accepted. Therefore, there was discontinuance as contemplated by Rule 2 and, therefore, the aforesaid judgment is of no help to the petitioner. The Counsel for the petitioner also relied upon Dr. Jeevak Almast v. Union of India and others. The Counsel for the petitioner also relied upon a Division Bench Judgment Ganpat Mashnajirao Wadekar v. State of Maharashtra & others.
It is held that,
“Candidate belonging to the Schedule Caste category was granted admission to the M.S. (E.N.T.) Post-Graduate Course in January, 1996 batch on 27-9-1996. Subsequently, on the basis of an advertisement issued for the January, 1997 batch, the said candidate sought admission in the M.S. (General Surgery) Course on the ground that in his original application he had given preference for M.S (General Surgery) but there was no seats available at that time. He showed willingness to resign from the M.S. (E.N.T.) Course. On the candidate’s representation having been turned down by the authorities, he approached the High Court by writ petition under Article 226 of the Constitution of India contending that he was the most meritorious amongst all the applicants and was entitled for admission.”
Here also three advertisement i.e. on 6th April, 1996, 13-6-1996, and 16-11-1996 were published for admission against July, 1996 batch. The petitioner in that case who was admitted to January, 1996, batch to M.S. (E.N.T.) post graduate course. He wanted to secure admission for the July, 1996, batch and was willing to resign for M.S. (E.N.T.) Course. His representation in that regard was not considered and in the merit list petitioner’s name for admission to M.S. (General Surgery) for one seat reserved for S.C. Category, his name was not shown and, therefore, he filed the petition, for a direction to the respondent to admit the petitioner for M.S (General Surgery) Course against batch 1997.
The aforesaid ruling relied upon by Mr. Barlinge is required to be distinguished, because of the different set of facts and circumstances in that case where, petitioner was already granted admission in January, 1996 batch, and he wanted to secure admission against January, 1997, batch without giving three months notice. In the present case before the Court the respondent No. 4 did not change his January, 1996 batch, while getting admission to M.D. (Medicine) after submitting his resignation for D.L.O. Jan., 1997, batch. This Division Bench Court, in the aforesaid rulings held, in the background of that case that, Rule 6 of the Government Resolution would come in
the way of the petitioner that the petitioner was seeking change from M.S. (E.N.T.) Course to M.S. (General Surgery) and that too for change of his registration in January, 1996 batch to January, 1997 batch and, therefore, petitioner’s claim was disallowed.
21. It is pertinent to note that the Division Bench also took into consideration the fact that the petitioners before them have completed almost one year of course i.e. M.S. (E.N.T.) category for admission to M.S. (General Surgery) Course.
22. On the other hand Mr. Pradeep Deshmukh relied upon the Judgment of the Supreme Court 1988 pg. 1812 in support of his contention that admission to post-graduation is to be given only on the basis of merit. In para 8 of the judgment the Supreme Court has directed the Selection Committee operating in the State or in the Union territory to draw a list of candidates on the basis of marks secured, and in the event of no selection test in the State relating to the 75 per cent quota, then at the M.B.B.S. examination. The Supreme Court has further directed that the admission rule is on the basis of merit.
Considering all the facts the petition is required to be dismissed.
23. Lastly, it was argued by Mr. Barlinge that for accommodating the petitioner an additional seat should be created and for that purpose necessary direction be given to the respondents No. 1 to 3, I am afraid that, such suggestion cannot be accepted. If the admissions are to go by merit and preference, then admittedly the petitioner did not stand in merit. If additional seat is to be created claim of candidates in between the respondent at Sr. No. 19 and petitioner at Sr. No. 24 will have to be considered their preference in merit will have give weightage. Apart from this as argued by the learned A.G.P. for the respondent that the Medical Council of India is not a party to this petition and consequently additional seats cannot be created in a case like this.
(i) The petition is dismissed.
(ii) Ad interim relief, if any, is vacated.
(iii) There will be no order as to costs.
24. Petition dismissed.