ORDER
1. Leave granted.
2. These appeals by special leave have been preferred against the
judgment and order dated 11th November, 2002 of a Division Bench of High
Court of Madhya Pradesh.
3. The appellants appeared in the Madhya Pradesh Medical and Dental
Post-Graduate Entrance Examination which was held on 24th March, 2002.
The appellant No. 1 Dr. Paramjeet Gambhir secured 141 rank while appellant
No. 2 Smita Lakhotia secured 75 rank. The first counselling was held on 8th
and 9th May, 2002. According to the appellants certain seats had been
surrendered from All India quota much before 8th May but the same were not
included in the counselling. Under MP Medical and Dental Post-Graduate
Examination Rules, 2001 a candidate who stood higher in the merit list and
who did not get a course of his/her choice could forego his/her claim in the
first round of counselling and had a right to appear again in the second
counselling. This was commonly known as “opt for waiting”. Subsequently
in the year 2002 new Rules were made and Rule 15.8 of the said Rules
abolished the system of opt for waiting and provided that a candidate who
due to any reason did not opt for any course, subject and college available at
his/her turn as per merit shall forfeit all the rights for allotment of a seat.
The appellants did not opt for any seat in the first round of counselling.
Initially they filed writ petitions before the Indore Bench of Madhya Pradesh
High Court challenging the vires of Rule 15.8 of 2002 Rules. Since the MP
High Court Rules do not permit any question regarding vires being raised
before the Indore or Gwalior Bench and the same can only be done at the
principal seat at Jabalpur, the petitioners preferred fresh writ petitions at
Jabalpur. In the reply filed on behalf of the State Government it was pleaded
that a latter had been issued to the Director Medical Education on 19.8.2002
to provide equal opportunity to all the candidates including those who were
bound to accept the subjects offered to them in the first counselling as per
Rule 15.8 Pre PG Rules, 2002 despite their disinclination. It was further
averred that Rule 15.8 had been amended by deleting the present rule and
reviving opt for waiting system. The High Court disposed of the writ
reviving opt for waiting system. The High Court disposed of the writ
petitions with certain directions and one of the main direction is that the
counselling for seats which had fallen vacant before the first counselling
which was held from 8th to 10th May, 2002 need not be done. In pursuance
of the direction issued by the High Court, second counselling was done on
2nd/3rd December, 2002. A statement regarding the seats which are lying
vacant and have not been filed up in view of the orders passed by the High
Court has been given in the affidavit of Dr. GC Dixit, Professor, Department
of Community Medicine, Mahatma Gandhi Medical College, Indore, which
has been filed in this Court on 14th February, 2003. The statement shows
that 11 seats including 4 in the discipline of Radio-diagnosis have not been
filled up and they are lying vacant.
4. Learned counsel for the appellants has submitted that the appellants
did not opt for any seat in the first round of counselling as certain seats in
the prized disciplines of Radio-diagnosis, Orthopedics and Pediatrics which
had been surrendered from All India quota had not been included in the
aforesaid counselling. He has further submitted that in view of the clear
stand taken by the State Government in the counter-affidavit filed in the
High Court that the prohibition contained in the 2002 Rules to the affect that
if a candidate due to any reason did not opt for any course, subject or college
available at his/her turn as per merit shall forfeit all the rights for allotment
of a seat had been withdrawn and the system of “opt for waiting” in the
2001 Rules had been revived, the appellants should have been given an
opportunity to participate in the second counselling and in the said
counselling all the vacant seats including those surrendered from All India
quota should have been made available to them. Learned counsel for
respondent Nos. 1 to 3 has urged that the second counselling has already
been done in December, 2002 and any direction for admitting the appellants
at this stage would disturb the academic session. Learned counsel has
further submitted that some candidates who had secured higher rank than the
appellants had opted for disciplines/colleges which were made available at
the time of the first counselling in view of 2002 Rules and any direction in
favour of the appellants at this stage would result in injustice to such
candidates.
5. We have given our careful consideration to the submissions made by
the learned counsel for the parties. It is true that in a series of decisions of
this Court starting from Dr. Dinesh Kumar v. Motilal Nehru Medical
College, Allahabad and Ors. : State of Bihar v. Dr. Sanjay
Kumar Sinha and Ors., : State of U.P. v. Dr. Anupam
Gupta etc. and finally Medical Council of India v. Madhu
Singh and Ors., it has been held that the time table for the
course should be strictly adhered to and there is no scope for admitting
students midstream which would be against the very spirit of the statute
governing the medical education. However, in the present case what we find
is that certain seats which had been surrendered from All India quota even
before the first counselling had been done were not included in the aid
counselling. The second feature is that the State Government made a
provision in the 2002 Rules whereby the system of opt for waiting was
abolished but subsequently in the counter-affidavit filed in the writ petition it
was pleaded that Rule 15.8 had been deleted and the old system of opt for
waiting had been revived. In view of this stand of the State Government the
appellants were entitled to participate in the second counselling wherein all
the vacant seats/colleges should have been made available. The appellants
filed the special leave petitions prior to the holding of the second
counselling.
6. In view of the peculiar facts and circumstances of the case and in the
interest of justice the appeals are disposed of with a direction to the
respondent to consider the candidature of the appellants for giving them
admission in a Post-Graduate course in the disciplines in which seats are still
lying vacant taking into consideration their rank and choice. This may be
done within 10 days of presentation of a certified copy of this judgment
before the appropriate authority.
7. We make it clear that this order will not be used as a precedent either
for holing third counselling or for granting mid term admission.