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Judgment
Aniruddha Bose, J.—These two writ petitions involve controversy over admission in the course for Master degree in dental surgery, which is commonly known as MDS, for the year 2012. The petitioners in both these proceedings have obtained Bachelor degree in dental surgery, (BDS) and upon completing their internship had joined the West Bengal Dental Service. In pursuance of leave granted by an Hon''ble Single Judge of this Court, two other candidates, Saikat Mahata and Ritesh Aich also were impleaded as party-respondents to W.P. 8477(W) of 2012.1 shall refer to in this judgment the candidates who were impleaded as respondents in W.P. No. 8477(W) of 2012 as "added respondents". At the material point of time, all the petitioners as well as the added respondents were in the said service. For the MDS course, certain number of seats are specially allocated for those candidates who are in regular service of the Government of West Bengal and are sponsored by the State Government. These seats have come to be known as Government sponsored seats. Admission to the said course, conducted by The West Bengal University of Health Sciences (the University) is undertaken through a ''common admission test, being "West Bengal Post-Graduate Dental Admission Test," (WBPGDAT). In these two proceedings, the petitioners had appeared in the said test held in the year 2012, for the Government sponsored seats.
The rules and procedure relating to admission to the said course has been published by the University in the form of a booklet, titled "Information Booklet." A copy of this booklet, which contains "Regulation of admission to Post-Graduate course in Dental Sciences" for the year 2012 has been annexed to the Writ Petition registered as W.P. 8477(W) of 2012, and marked "P6", This writ petition, later in the judgment shall be referred to as the first writ petition, and the information booklet published by the university shall be henceforth described as "the booklet". Clause 6 of the booklet contains the rules relating to applications for reserved seats. Provisions relating to such seats for Government sponsored candidates is contained in Clause 6.1, which provides:--
"Candidate who is in regular service of the Government of West Bengal and is sponsored by the Govt. of West Bengal is eligible to apply for admission to the Govt. sponsored seats. Candidate is requested to consult relevant government notifications before applying for Govt. sponsored seats. If required, the candidate is advised to verify their eligibility from their employer. The choice regarding category, once exercised, cannot be subsequently changed. Candidate for the Govt. sponsored seats is required to produce sponsorship certificate from the Government of West Bengal before being considered for admission."
(quoted verbatim)
Clause 2 of the same booklet lays down the eligibility criteria for admission into the said course, and Clause 2.3 stipulates:--
Candidates applying for the Government sponsored seats must be is in regular service of the Government of West Bengal under the Health and Family Welfare Deptt. and is sponsored by the Government of West Bengal shall be eligible to apply for admission even if such candidates obtained, their B.D.S. degree from any other Institution located outside the State of West Bengal, which is recognized by DCI. Such candidates will be required to produce necessary sponsorship certificates from the Government of West Bengal before being considered for admission on the day of Counseling.
(quoted verbatim)
The petitioners as well as the added respondents had appeared in the admission test for the said course, and claim to be eligible to compete for the sponsored seats. The written examination was held on 22nd January, 2012. The six petitioners in the first writ petition claim to have figured in the top six positions of the merit list from that category. Their names appeared in the merit list published by the university as Government sponsored candidates. The petitioners in. the first writ petition, however, were not given any information as regards the Counselling process. The first writ petition was filed, as pleaded in the said petition, when the petitioners came to know from the office of health department that because they had not completed three years of service on the date of the admission test, they were to be treated as ineligible for admission as Government sponsored candidates. Main prayer of the petitioners in this writ petition is for a direction upon the university and the state authorities to permit them to participate in Counselling process and get admitted in the course for the 2012 session by issuing sponsorship certificate if they were otherwise eligible. In W.P. 21637(W) of 2012 (the second writ petition) also, the seven writ petitioners appeared in the admission process for the reserved category of seats for the Government sponsored candidates. Their prayer in this proceeding is for extension of the last date of admission to the said course for the seats reserved for sponsored candidates. The petitioners in W.P. 21637(W) of 2012 claim that-all of them had completed three years of service on the date the entrance test was held. The names of the writ petitioners in the second writ petition also are reflected in the merit list, but lower in position vis-a-vis the petitioners of the first writ petition. Their case is that if the six petitioners in W.P. 8477(W) of 2012 become ineligible, then their names would come within the zone of consideration.
In the first writ petition, an interim order was passed by an Hon''ble Single Judge hearing the matter on 27th April, 2012, directing the respondent No. 4 (the Director of Health Services, West Bengal) to issue sponsorship certificate to the writ petitioners provisionally to enable the petitioners therein to participate in Counselling. Equal number of candidates were directed to be kept in the waiting list so that in case the writ petition failed, the seats could be allotted to other deserving candidates from the waiting list. It was also made clear in the order that participation in Counselling would not create any equity in favour of the petitioners. The petitioners in the second writ petition appealed against this order before a Division Bench of this Court, which was registered as A.S.T. 159 of 2012. On 25th June, 2012, the Division Bench allowed the appeal and the interim order passed on 27th April, 2012, was set aside, with certain observations made on merit of the issues involved. The writ petitioners in W.P. 8477(W) of 2012 had applied before the Hon''ble Supreme Court with a petition for Special Leave to appeal against the order of the Division Bench, but on 28th September, 2012, the SLP was dismissed. Earlier, on 20th July, 2012, in a review petition (A.S.T. 195 of 2012), it was clarified by the Division Bench that the observations made by the Bench in the order passed on 25th June, 2012, were merely for the purpose of interim order. It was further clarified by the Division Bench:--
... the learned Single Judge while disposing of the writ petition, may not be influenced by any of the observations made by us in the order dated June 25, 2012, passed in AST 159 of 2012.
After the interim order was granted on 27th April, 2012, the petitioners in the first writ petition were issued provisional sponsorship certificates and trainee reserve certificates by the State authorities and they were also given admission to the said course. The entire exercise was invalidated after the order was passed by the Division Bench on 25th June, 2012, and a contempt action was initiated by the appellants in AST 159 of 2012 (being the petitioners in the second writ petition) alleging violation of the order of the Division Bench. The provisional sponsorship certificates issued in favour of the petitioners in W.P. 8477(W) of 2012 were cancelled by a memorandum issued by the Directorate of Health & Family Welfare bearing No. HAD/10M-21-2012/A-5583 dated 18th September, 2012, a copy of which has been annexed at page 110 of the second writ petition. It was in this background, the second writ petition was filed, seeking extension of time for Counselling and admission so that in the seats falling vacant on cancellation of admission of the petitioners in the first writ petition, eligible candidates with sponsorship certificates could be admitted on the basis of their ranking in the merit list.
The main dispute in these proceedings, as I have already observed, is as to what would be the criteria for determining the eligibility of the Government sponsored candidates in relation to completion of minimum period of service. Admitted position is that the admission test for the said course was held on 22nd January, 2012. The petitioners in W.P. 8477(W) of 2012 had joined different health centres in the cadre of the West Bengal Dental Service on different dates in the month of March, 2009. The said service is at present guided by the West Bengal State Dental Service Act, 2009. Provisions of Sections 11 and 19 of the said Act stipulate:--
Any person of the former West Bengal Dental Service appointed to a post included in the cadre of the West Bengal Dental Service, shall continue in such post on such terms and conditions as were immediately before the coming into force of this Act." "19. All rules, orders, and notifications made or issued by the State Government from time to time under the proviso to Article 309 of the Constitution of India or under any other law for the time being in force, applicable to the persons appointed to the former West Bengal Dental Service and continuing in force immediately before the coming into force of this Act, shall after the coming into force of this act, continue in force in so far as such rules, orders or notifications are not inconsistent with the provisions of this act until they are repealed or amended".
So far as the question of issuing sponsorship certificate to the cadres of the West Bengal Dental Service is concerned, there is no specific provision in the said Act, any Rule made under the said Act.
Under Memo No. H/MERT/242/2D-3194 dated 7th March, 1994, a guideline was framed for admission in the MDS. course of the University of Calcutta. As per this guideline, candidates belonging to the West Bengal Dental Service were required to obtain permission from the appropriate authority for undergoing the MDS course. Clause 5 of this guideline stipulates:--
...All applicants are required to serve the W.B.D.S. continuously for at least 3 (three) years including 2 (two) years'' service in non-CMDA area.
Note : a) The period of service will be counted as it Stands an cut off dates.
b) The services rendered in State Government Institution prior to (8.6.1982) situated outside the territorial jurisdictions of Calcutta and Howrah Municipal Corporation shall be treated as services rendered in non-CMDA area.
The provisions relating to cut off date on completion of minimum service period has been specified in Clause 3 of the same guideline, which reads:--
Another memorandum, bearing No. HF/O/MERT/365/ME/TR-03-2005 was issued by the State Government on 31st March, 2005, altering the stipulations relating to cut-off date. This memorandum, specifies:--
It has been observed that several applications from the Surgeons belonging to West Bengal Dental Services who have completed more than two years but less than three years of the required qualifying length of service towards accord of permission for sponsorship for undergoing M.D.S. Courses are being received by this Department.
Under the circumstances, the undersigned is directed to say that the length of qualifying services of three years including two years services in Non-CMDA area is to be counted as on the date of actual date of P.G. Entrance Examination and only after considering the same, further action from the Directorate in relation to permitting the concerned Dental Surgeons to appear in Counselling for M.D.S. Courses as permissible in terms of this Department''s Memo. No. H/Mert/242/2d-3/94 dt. 07.03.1994 should be taken.
The eligibility criteria of the petitioners in W.P. 8477(W) of 2012 is questioned by the added respondents mainly relying on the above-referred memorandum. Claim of the petitioners in the said writ petition is, however, founded on another Rule, being the West Bengal Public Health-cum-Administrative Service (placement on Training Reservation) Rules, 2008, read with Clause 2.3 of the said booklet. The 2008 Rules have been framed in accordance with the provisions of Section 21 of the West Bengal Health Service Act, 1990. A copy of this Rule has been annexed at page 101 of the affidavit-in-opposition of the added respondents filed in W.P. 8477 (W) of 2012. Clause 3 of the said Rules lay down the criteria for placement on trainee reserve as Government sponsored candidates. Relevant part of this Clause provides:--
Criteria for placement on trainee reserve.- The following shall he the eligibility criteria for placement on trainee reserve as Government sponsored candidates.
a) for the Officers of the West Bengal Medical Education service, West Bengal health Service, and the West Bengal Public Health-cum-Administrative Services.--
(i) a minimum of three years qualifying service under the employment of the Government of West Bengal in the respective cadre as determined on the thirty-first day of March of the concerned year and for the officers who have been appointed in any of the three cadre service from any of the two other cadre services, they must have put in at least three years service in the west Bengal Public Health-cum-Administrative Service, the West Bengal Health Service and in the West Bengal Medical Education Service, taken together:
Provided that the minimum period of service required shall be two years in case of acquiring eligibility for trainee reserve in the dearth disciplines as enumerated in Schedule A of these rules:
Provided further that in case of officers of the West Bengal Health Service, the minimum period of qualifying service required shall have to be rendered, in rural areas in Primary Health Centres. Block Primary Health Centres and Rural Hospitals:
Provided also that the compulsory requirement of qualifying rural service may be relaxed or dispensed, with in case of such specialist Medical Officers in the disciplines other than Anesthesiology, Pediatrics and Obstetrics and Gynecology, who have been directly recruited through the Public Service Commission, West Bengal and appointed in State General Hospitals, Sub-divisional hospitals and district hospitals and for all other Medical Officers ''who could not serve in any Primary Health Centre or Block Primary Health Centre or any rural hospital for the reason of his posting elsewhere by the State Government, who may also be considered for placement on trainee reserve as Government sponsored candidate, based on merit of each case :
Reference was made to this Rule as under this Rule, the qualifying service was to be computed as on 31st March of the concerned year. It has been contended on behalf of the petitioners in the first writ petition that if 31st March, 2012 was treated to be the cut-off date, then all of them would meet the requirement relating to qualifying service.
After filing of the writ petition, on behalf of the petitioners (in W.P. 8477(W) of 2012 four supplementary affidavits have been filed. In the first of these four affidavits, affirmed on 27th April, 2012, a memorandum issued by the university (Memo No. OG/UHS/506/2012) on 25th April, 2012, has been referred to. This memorandum is entitled
Notice for allotment of seats by personal appearance (Counselling) for admission to post-Graduate. Medical (Degree and Diploma) in Modern Medicine and Post-Graduate Degree in Dental Sciences under the ''West Bengal University of Health Sciences,'' Kolkata
Paragraph 8 of this Memorandum specifies:--
The candidate appearing for Counseling will have to bring the following documents in original along with attested copies of all relevant documents: (I) WBPGMAT/WBPGDAT Admit Card, (ii) MBBS/BDS Degree original/Provisional passing certificate, (iii) Internship completion certificate, (iv) Permanent/provisional Registration Certificate issued by MCI/State Medical Council, (v) School leaving certificate as proof of age, (vi) Sponsorship for availing of the West Bengal Government sponsored seats (vii) PC certificate (issued from IPGME & R)/SC/ST certificate, (viii)(a) Course completion certificate from the Principal/Director of the Institution those who are pursuing any PC Course for ''open'' category candidates and (b) Relevant certificate, from competent authority for Govt. sponsored candidates who are pursuing any PG Course as per provision of WBMES - WBHS - WBPHAS (Placement on Trainee Reserve) Rules 2008 (ix) Admission slip for those who have been offer seats during All India Counselling (if any) and (X) Any other relevant document
Paragraph 14 of this Memorandum is also relevant so far as the present proceedings are concerned and the said paragraph stipulates:--
In-service candidate who is sponsored by the Department of Health & Family Welfare Govt. of West Bengal is eligible to apply for admission to the Govt. Service - sponsored seats. Candidate for the Govt. sponsored seats is required to produce sponsorship certificate from the competent authority of the Department of Health and Family Welfare, Government of West Bengal before taking entry at the Counselling premises and being considered for admission about his/her eligibility in exercising option. Before selecting the discipline, the candidate is requested to be sure that the option exercised must conform the provisions laid down in the WBMES - WBHS - WBPHAS (Placement on Trainee Reserve) Rule 2008 and subsequent orders of the Department of Health & Family Welfare Government of West Bengal.
The second supplementary was affirmed on 30th July, 2012. This Supplementary Affidavit was filed mainly to bring on record the position relating to in-service candidates belonging to West Bengal Dental Service for pursuing the MDS course pertaining to the present set of candidates. On behalf of the added respondents, it was contended that the candidates from the Dental Service were not covered by the 2008 Rules. Learned Counsel for the added respondents argued that the 1994 guideline read with the memorandum dated 31st March, 2005, ought to determine the cut-off date. A notification dated 31st May, 2010, issued by the Government of West Bengal, Department of Health and Family Welfare bearing No. HF/O/MERT/767/HAD/12-D-03-2006 has been annexed as "P17" to this affidavit. This notification provides:--
All rules, orders and notifications made under the proviso to Article 309 of the Constitution of India or under any other law which were applicable only to the persons appointed to the former West Bengal Dental Service as defined in Clause (b) Section 2, of the West Bengal State Dental Service Act, 2009 (West Bengal Act V of 2009), shall stand repealed on and from the 1st day of Jane, 2010.
The added respondents filed affidavit-in-opposition to this Supplementary Affidavit. Their stand, as reflected in this affidavit-in-opposition, is that the 2008 Rules do not cover the cadre of the West Bengal Dental Service and till new rules are prescribed for placement on trainee reserve for the Dental Service, the 1994 Rule ought to prevail.
The third supplementary Affidavit, affirmed on 6th August, 2012, steks to correct certain statements made in the writ petition, which in effect records that the 2008 Rules do not apply in case of the petitioners. By this affidavit, the petitioners of the first writ petition sought to clarify their stand that they were relying on the said Rules. In this Supplementary Affidavit, it has also been pleaded that the memorandum of 31st May, 2010 nullifies the memorandum of 31st March, 2005. The added respondents have filed affidavit-in-opposition to this Supplementary Affidavit as well, reiterating their stand that the 2008 Rules do not relate to the candidates belonging to the West Bengal Dental Service. It has also been urged that proper procedure to bring these facts on record would have been amendment of the writ petition, and I should not take cognizance of these pleadings and materials sought to be introduced through Supplementary Affidavits.
In the fourth Supplementary Affidavit affirmed on 9th October, 2012, application of the 2008 Rules in the case of the petitioners has been reasserted. It has been pleaded in this Supplementary Affidavit that the Director of Medical Education, Director of Health Services and Deputy Secretary (Dental) had taken a collective decision by passing a resolution on 3rd September, 2012, that the 2008 Rules would be applicable to the candidates belonging to the Dental Service as well, till placement on Trainee Reserve Rules for the said Service was framed, and a candidate in 2011 was admitted on that basis. Certain queries made by some of the added respondents with the State Government on the issues in controversy and replies thereto under the provisions of the Right to Information Act, 2005 have been referred to in this affidavit. The important features of these queries relate to cut-off dates. In replies to these queries, the cut-off date has been specified to be the "actual date of PG Entrance Examination". However, in reply to a letter of the learned Advocate for the petitioners, the Deputy Secretary to the Government of West Bengal, Department of Health & Family Welfare clarified their position on 10 September 2012:--
"Following reply to R.T.I. reply No. ME/RTI-13-12/M/854 dated 13th April, 2012 in column No. 1 & 2 it was stated ''The cut out date is the actual date of P.G. Entrance Examination and it has not yet been revoked so the question does not arise''. The Sponsor certificates has been issued to the service candidates whose length of qualifying service is 3 years on the date of commencement of M.D.S. examination according to Memo of March 2005. A provisional Sponsor certificates has also been issued to the services candidates whose length of qualifying service is 3 years on the 31st march, 2012 as per Order of Hon''ble Justice Mr. G.C. Gupta.
Now subsequently it has been found vide HF/O.MERT/767/HAD/12D-03-2006 Dated 31.5.2010 that ''Ail rules, orders and Notifications to the West Bengal Dental Service shall stands repealed on and from 1st day of June 2010. Therefore there is no framed T.R. Rule at present, and framing of new T.R rule in under process,"
(quoted verbatim).
Affidavits have been filed in response to the fourth Supplementary Affidavit, affirmed on 9th October, 2012, by the added respondents as also the State respondents. The affidavit-in-opposition of the added respondents in substance seeks to negate the claim of the petitioners about applicability of 2008 Rules in respect of a candidate who took admission in the year of 2011. On behalf of the State respondents, reference has been made to another affidavit filed on their behalf, affirmed on 29th, November, 2012. I shall consider the content of the said affidavit later in this judgment.
So far as procedural objection of the added respondents is concerned over consideration of facts and materials sought to be brought on record by way of different sets of affidavits, I accept that the proper course for the petitioners should have been to apply for amendment of the pleadings. At the stage of hearing of these two writ petitions, the first writ petition, as originally framed, has significantly altered its course, and substantial reliance is being placed on behalf of the petitioners on the notification dated 31st May, 2010. But since the materials which are being introduced subsequently form part of official records, and parties to these proceedings have had sufficient opportunity to address the Court on these additional materials, I do not think on technical ground I should decline to consider impact of these materials on the present proceedings. Hence I shall take cognizance of the Supplementary Affidavits filed on behalf of the petitioners in W.P. No. 8477(W) of 2012.
There is a further communication, originating from the Director of Medical Education & Ex-officio Secretary, Government of West Bengal on 11th October, 2012 addressed to the learned Advocate for the State Government, which, it appears, reflects the present stand of the State Government on the subject of controversy. A copy of this letter has been annexed to an affidavit filed on behalf of the State respondents affirmed by one Rabindranath Maity on 29th November, 2012. The said letter has been described as a memorandum, and records:--
In response to your letter dated 10.10.2012 the undersigned likes to clarify that there is no framed T. R. Rules for the Dental Surgeons of West Bengal Dental Service at present point of time for securing sponsorship from Government of West Bengal for purpose of Post Graduate Dental entrance Test (M.D.S. Entrance Test). New T.R. Rules have been necessitated following official Gazette publication on 31st May, 2010 in which all previous Rules, Orders & Notifications have been repealed, but new T.R. Rule has not been framed so far. However the Government is in process of framing new T.R. Rules for the Dental Surgeons of West Bengal Dental Service as per the same guideline of T.R. Rules for the Post Graduate Medical Entrance Examination made in 2008.
In this regard the Government likes to clarify the Memo of 2005 regarding T.R. Rules for the Dental Surgeons of West Bengal Dental Service has no significance following gazette publication on 31st May, 2010.
All concerned are being informed.
(quoted verbatim)
This document has been annexed to the affidavit of the State Government affirmed on 29th November, 2011, and marked "D".
The position of the respective parties before me, thus is this. The writ petitioners in W.P. No. 8477(W) of 2012 want to be guided by the 2008 Rules, which sets the cut-off date as 31st March for every year. If that is the case, then all the writ petitioners in the first writ petition would qualify for being sponsored, on completion of three years'' service, provided of course, they meet all other eligibility requirements. They rely on two official documents in support of their stand. First, learned Counsel for the petitioners refer to paragraph 2.3 of the information booklet, which requires production of sponsorship certificate on the day of Counselling. For the 2012 session, 30th April was the day fixed for Counselling, if the aforesaid clause could be construed to mean that they were entitled to claim and obtain sponsorship certificate on any day prior to the date of Counselling, then they could have had cleared the three year period, as all the writ petitioners had joined the service on various dates in the month of March 2009. Relying on the memorandum of the University dated 25th April, 2012, they contend that by this memorandum, the 2008 Rules stood extended to their cases.
The stand of the added respondents, on the other hand, is that the 2008 rules do not relate to the dental surgeons in the Dental Service. My attention in this regard has been drawn to Clause 2 of the said Rules, which provides:--
Application of the rates - These rules shall be applicable for all categories of medical teachers under the employment of the West Bengal Medical Education Service, the Medical Officers of all ranks in the West Bengal Health Service and the officers of the, West Bengal Public Health-cum-Administrative Service.
The added respondents want the cases of the petitioners to be tested on the basis the 1994 Rules, read with the notification dated 31st March, 2005. If this course is found to be applicable, then all the writ petitioners would stand disqualified for not satisfying the eligibility criteria of completing three years of service on the date of the entrance examination.
The stand of the State as also of the University have been noncommittal on the question of specific eligibility criteria that may cover the cases of in-service candidates to be entitled to sponsorship of the State Government for the MDS course. It has however been argued on behalf of the State that the memorandum of 31st March, 2005 would be of no significance, at present,, having regard to the notification dated 31st May, 2010 repealing all previous rules, orders and notifications. It has also been submitted that the State Government is in the process of framing a new Trainee Reserve Rules for the Dental Surgeons under the West Bengal Dental Service. Learned Counsel for the State has urged this Court to adjudicate on the claims of the respective sets of candidates in this factual background. In the affidavit of the State respondents affirmed on 29th November, 2012, upon indicating the stand of the State, it has been submitted:--
This deponent states that this Hon''ble Court may be pleased to decide on the question of sponsorship after taking into account the foregoing circumstances.
Learned Counsel for the University has submitted that his clients have no role to play in determining the eligibility status of the State Government employed dental surgeons for their sponsorship to pursue the MDS course. Referring to an order of the Hon''ble Supreme Court in Writ Petition (Civil) No. 252 of 2012 (Dr. Isha Karwarsa v. Union of India & Ors.) passed on 17th July, 2012, it has been submitted that the petitioners in the second writ petition cannot be admitted in the current session as the last date for filling up of vacancies was 15th July, 2012.
So far as the memorandum of 31st March, 2005 is concerned, the same has lost its strength after issue of the subsequent notification dated 31st May, 2010, it was sought to be contended on behalf of the added respondents that the memorandum of 31st March, 2005 still survives, as the same was not made in exercise of power under the proviso to Article 309 of the Constitution of India. But the notification of 31st May, 2010, is explicit in its terms that the same repeals all orders, rules and notification made under Article 309 of the Constitution or under any other rule which were applicable to persons appointed to the former West Bengal Dental Service as defined in Section 2(b) of the West Bengal Dental Service act, 2009. The saving clauses contained in Sections 11 and 19 of the 2009 Act also cannot preserve the 1994 Rule or the notification of 31st March, 2005, as an all pervasive "repeal" notification has been issued on 31st May, 2010. I do not think the Writ Court, or for that matter any Court has the jurisdiction to revive a repealed Rule or notification to apply the same in respect of a particular set of candidates seeking to pursue an academic course. Thus, the rule that three years of qualifying service should be completed before the date of the entrance examination, cannot be made applicable in the cases of the petitioners in the first writ petition.
Now the question arises as to what would be the eligibility criteria for state-sponsored in-service candidates who are with the West Bengal Dental Service in relation to length of service, for pursing the post-graduate course of MDS? A Trainee Reserve Rule is not something inherently attached to a service, so that in the absence of such Rule being spelt out, it could be held to be implicitly incorporated into a particular service. In my opinion, the 2008 Rules also cannot be made applicable in the petitioners'' case, as applicability of the said Rule has been confined to three cadres only, and does not extend to the West Bengal Dental Service. The notice for allotment of scats issued by the University on 25th April, 2012, which has been made annexure "P12" to the Supplementary Affidavit of the petitioners dated 27th April, 2012, compositely deals with admissions to Post-Graduate Medical Degree and Diploma course in modern medicine as well as dental science. The clauses to which reliance has been placed on behalf of the petitioners in W.P. 8477(W) of 2012 specify that on the date of Counselling, the documents are required to be brought in original. There is reference to production of certificates under the 2008 Rules for sponsored candidates who are pursuing any Post-Graduate course as per the said Trainee Reserve Rules of 2008. There is no specific reference to any certificate which a Government sponsored candidate for MDS course should produce. In this notice, there appears to be an omission to mention the nature of certificate a Government sponsored MDS candidate ought to produce. But such omission cannot be construed to imply that an MDS candidate would be required to produce, or would be covered by the 2008 Rules. The Rules have not been framed to cover the Dental service. The University, in any event, is not the authority to make such Rules for Government sponsored candidates. In my opinion, 2008 Rules cannot be supplanted to cover the West Bengal Dental Service.
The 1994 Guideline also stands revoked in view of the notification dated 31st May, 2010. It has been conceded on behalf of the State that at present there is no Trainer Reserve Rules for Government sponsorship covering the Dental Service cadre. Thus, question arises as to whether the candidates from the West Bengal Dental Service can be considered at all for the said course as Government sponsored candidates. Both the University and the State Government have proceeded so far on assumption that there should be reservation for in-service candidates in the Post-Graduate course for dental surgeons. In the absence of any Rule in that regard, I do not think any Government sponsored candidate could be admitted into the said course.
This state of affairs, however, leads to a vacuum in the process of conducting the said course. Learned Counsel appearing for the State respondents sought to project this anomalous situation as conflict between two sets of candidates, both belonging to the West Bengal Dental Service, but having joined the service on different dates. But in reality, this is not a conflict between two rival groups within the West Bengal Dental Service for berth in the seats reserved for in-service candidates. Both sets of the claimants would get disqualified from that category as there is no Rule to determine their eligibility criteria. If inaction on the part of the State on this count is permitted to prevail, then several seats in the said Post-Graduate course would lie vacant. That would be a state of affairs mired with arbitrariness, and cannot be permitted to continue in public interest. Neither the State, nor the University has argued for these seats to be kept vacant, and the State expects this Court to decide which of these two sets of candidates ought to fill up these vacant seats.
To cure this anomaly, in my opinion, the Government should frame appropriate Rules so that the persons who have qualified on the basis of merit list can be admitted in the said course for the 2012 session. The petitioners in W.P. No. 8477 (W) of 2012 it is admitted, have obtained higher ranks. They were sought to be disqualified on the ground that they did not complete three years'' service on the date of entry test. But since the notification of 2005 stands repeal, they cannot be held ineligible solely on that ground. The only clause guiding these two sets of petitioners now is the admission regulation contained in the said booklet which requires production of sponsorship certificate on or before the date of Counselling for being considered for admission. The petitioners in W.P. 8477(W) of 2012 would have completed three years of service on the date of Counselling, if the Rule postulated completion of three years of service on the date of Counselling as pre-qualification for being admitted in the said course as Government sponsored candidates.
I am of the view that in the given factual context, the State Government ought to formulate a Regulation or Guideline until they frame the fresh Trainee Reserve Rule for the Dental Service of West Bengal for issue of sponsorship certificate to the said writ petitioners (i.e. W.P. 8477(W) of 2012) having retrospective operation, making their candidature valid on the date of Counselling. Such Rule shall be formulated within a period of six weeks, and admission should be effected within a period of two weeks thereafter. I am directing the State respondents to make these provisions as the petitioners in W.P. 8477(W) of 2012 have ranked higher in merit list vis-a-vis the private respondents and all the parties in these two writ petitions have proceeded on the basis that three years'' qualifying service would be the eligibility criteria for being admitted in the MDS course as Government sponsored candidates. The dispute which originally accrued in these proceedings was what would be the cut-off date for computing the three year period. In course of hearing, it transpired that there was no Rule surviving to guide the admission of Government sponsored candidates in the MDS course. It was also submitted on behalf of the university that it would be possible to regularize admission of the petitioners in W.P. 8477(W) of 2012 considering the legal position relating to outer limit of time for effecting admission in Post-Graduate medical course. The petitioners had also participated in the Counselling process.
In normal circumstances, I would not have issued such direction. It is not within the ordinary jurisdiction of the Writ Court to mandate the executive to formulate a Rule covering service conditions of a particular set of candidates. But in the instant case, I have been invited to take decision on the question of sponsorship after taking into account the peculiar circumstances of these cases. A vacuum which has resulted after issue of the notification of 31st May, 2010, if allowed to prevail, not only would deprive the present set of in-service candidates, but jeopardize the fate of all Government sponsored dental surgeons who have been admitted in the said course after 31st May, 2010. To allow the vacuum to remain would subject such candidates already admitted and aspiring to be admitted for the said course to arbitrary inaction on the part of the State authorities, which, it is the duty of the Writ Court to prevent.
So far as the writ petitioners in W.P. No. 21637(W) of 2012 are concerned, for the reasons already spelt out, I do not they can be granted relief. Reference was made to the decision of the Supreme Court in the case of Bedanga Talukdar Vs. Saifudaullah Khan and Others, on behalf of the added respondents to contend that advertised conditions relating to admission cannot be relaxed at a later date. But ratio of this decision cannot assist the added respondents as the course of action, which is being directed by me to be followed by the State in W.P. 8477(W) of 2012 would not result in breach of any condition of the advertisement. The other judgment cited is also a decision of the Supreme Court in the case of Government of Andhra Pradesh and Others Vs. N. Subbarayudu and Others, to argue that a specified cut-off date ought to be adhered to. In relation to the subject dispute, so far as candidates from the West Bengal Dental Service are concerned, there is no valid stipulated cut-off date. On behalf of the petitioners in the second writ petition, another judgment of the Supreme Court in the case of Parmender Kumar and Others Vs. State of Haryana and Others, was relied upon in support of their submission that if there is illegal denial of admission, relaxation of the time frame would be permissible. In the facts of this case, I do not think there was illegal denial of admission to the writ petitioners in the second writ petition. Thus the ratio of this judgment also does not assist them.
The first writ petition, being W.P. 8477(W) of 2012 is accordingly disposed of directing the State respondents to formulate, as an interim measure, a Regulation or issue a directive providing for issue of sponsorship certificates to the candidates originating from the West Bengal Dental Service who have qualified in the entrance examination for MDS course conducted by the West Bengal University of Health Sciences, if the candidates complete three years of qualifying service on or before the date of Counselling. The writ petitioners, if they are otherwise eligible shall be admitted in the said course for the 2012 session. This exercise shall be taken within the timeframe prescribed above.
The writ petition, being W.P. 21637(W) of 2012 shall stand dismissed.
There shall he no order as to costs. Urgent photostat certified copy of this judgment, if applied for, be handed over to the parties on compliance of necessary formalities.
Later:
Prayer is made for stay of operation of the order by the learned Counsel for the respondents. I have considered such prayer. Such prayer is rejected.