Dilip Septa vs Principal Secretary State of M.P. and 2 Others

Heard.

2.By this writ appeal, the appellant - writ petitioner is praying for setting aside of the order dated 21.09.2012 passed in Writ Petition No. 2613/2010, whereby learned Writ Court dismissed the writ petition by holding that as per the Madhya Pradesh Medical and Dental Post Graduate Entrance Examination Rules, 2007, Master of Dental Surgery (MDS) is a full time course and a candidate cannot be permitted to do a job; the question of permitting the petitioner to join the job in spite of the fact that he is from All India Quota, does not arise and dismissed the writ petition.

3.Brief facts of the case are that in pursuance to the advertisement issued by respondent No. 2 - an autonomous college, the appellant submitted an application for appointment on the post of Tutor in Oral Surgery Department. The minimum qualification for appointment is Bachelor of Dental Surgery (BDS) Degree from any Dental College, recognized by Dental Council of India. At the time of advertisement, the appellant was a student of MDS in Oral Surgery Department of respondent No. 2 - College. The application of the appellant for appointment was duly considered and he was selected by respondent No. 2 on the post of Tutor in Oral Surgery Department on 26.09.2009. As per Clause (3) of the appointment order dated 26.09.2009 (Annexure P/3), he has to submit his joining within a period of one month from the date of issuance of the appointment order. As he was doing MDS Course in respondent No. 2 and was admitted as MDS (PG) student in the month of May, 2007, he prayed for extension of joining time on the said post. At the time of his appointment, he has completed two and half years studies as MDS student in Oral Surgery Department and was to appear in MDS Examination in March/April of 2010 and therefore, prayed for extension of joining time on the said post till his MDS is completed. The Principal of respondent No. 2 - College of Dentistry granted him extension of time for joining on the said post till the decision of the Executive Council of the College of Dentistry, Indore, because as per the Rules, at one time, he is not permitted to do PG Course and Job. Clauses 1 and 2 of the letter dated 12.10.2009 (Annexure P/5) reads, as under:

4.The Executive Council of the College of Dentistry by Resolution No. 13 dated 09.11.2009 (Annexure P/6) extended the joining time of the appellant till his passing of the MDS Examination; the relevant Resolution No. 13 reads, as under:

5.The then Health Minister of the Government of Madhya Pradesh raised objection on Resolution No. 13 that the aforesaid proposed resolution is contrary to the rules and referred the matter for cancellation of his appointment; the relevant objection reads, as under:

In pursuance to the aforesaid objection raised by the then Health Minister, his appointment has been cancelled by order dated 28.01.2010. The stand of the State Government that as per Rule 3 (2) of the Madhya Pradesh Chikitsa Avam Dant Chiktsa Snatkottar Pravesh Niyam, 2007 (for short, Rules, 2007), if a candidate has taken admission in the MDS Course for three years, then he will not be allowed for private practice or any part time job and appellant was doing MDS Course in Oral Surgery Department. Therefore, as per Rules, 2007, he cannot be permitted to perform a job as Tutor and the appointment of the appellant has rightly been cancelled on 28.01.2010; on the same day, Dr. Triveni Patil (Respondent No. 3), who was on waiting list, has been appointed by respondent No. 2 as Tutor in respondent No. 2 - College.

The appellant in his rejoinder has stated that as per Dental Council of India Revised MDS Course Regulations, 2007, there is no specific provision that the appellant should take active participation in teaching and learning activities during his MDS Course and no option was given to the appellant whether he wants to join on the post of Tutor in Oral Surgery Department or wants to continue his MDS Course before passing the impugned order and his cancellation of the appointment is in violation of the principles of natural justice.

Learned Writ Court by order dated 21.09.2012 dismissed the writ petition by holding that as per Rules, 2007, a candidate doing PG Course cannot be permitted to do private practice or a job. Thus, the action of the State Government is just and proper and dismissed the writ petition.

It is submitted by the learned Senior Counsel for the appellant that no option has been given to the appellant, and therefore, cancellation of his appointment is contrary to the Rules and in violation of the principles of natural justice.

Learned Deputy Government Advocate supported the stand of the State and submitted that Rule 3 (2) of the Rules, 2007 is very clear; respondent No. 2 is an autonomous institution, and therefore, the action of respondents No. 1 and 2 is just and proper and prays for dismissal of the writ appeal.

Shri L.C. Patne, learned counsel, who is appearing for respondent No. 3 - Dr. Triveni Patil, supported the impugned order and submitted that in intra court appeal, no new ground regarding giving an option, as submitted by the learned Senior Counsel for the appellant, can be taken for the first time in writ appeal; and supported his arguments with the decisions of the Apex Court in the case of (1) P. Vaikunta Shenoy and Co. Vs. P. Hari Sharma, and (2) Food Corporation of India and Others Vs. Bhanu Lodh and Others, .

It is further submitted by the learned Senior Counsel for the appellant that in identical circumstances, PG Students of MBBS Course have been granted extension of joining up to 30th July, 2011 vide Annexure P/11 dated 20.05.2011. He further submitted that the Rules of Medical and Dental Students are the same and they are governed by the Rules, 2007, and therefore, the same treatment be given to the present appellant. He further submitted that because the then Minister wanted to appoint respondent No. 3, and therefore, after Resolution No. 13 he raised an objection and stated to cancel the appointment of the appellant, without granting any option / opportunity of hearing to him, but straightway, an order of cancellation of the appointment of the appellant has been issued on 28.01.2010 and simultaneously on the same day, respondent No. 3, who was on waiting list, her appointment order was issued. In respect of grant of option, learned Senior Counsel for the appellant has further submitted that a rejoinder was filed before the Writ Court on 21.02.2011 and ground of option was taken in paragraph No. 5 of the said rejoinder; which reads as under:

"5.That, respondent has not given any option to the petitioner that whether petitioner wants to join the post of tutor in Oral Surgery Department or wants to continue his MDS course before passing impugned order (P1). This action of the respondent is against the principle of natural justice." 13. Therefore, the aforesaid two decisions cited by the learned counsel for respondent No. 3 will not be applicable in the facts and circumstances of the case and prayed that the impugned order be set aside.

In the decision of the Division Bench of MP High Court in the case of Dr. Zakiuddin Malik Vs. State of M.P. and Others, , a private medical practitioner, though not eligible for selection for PG Course was selected, the selection was challenged on the ground that to be eligible for admission to the Post Graduate Course, private medical practitioners have to fulfill the requirements; (1) that they should have five years'' standing in the profession after completion of internship; and (2) that they should have practiced for at least one year continuously in Madhya Pradesh immediately prior to applying for Post Graduate Course. The petitioner therein, who was studying in Diploma Course of DGO, which was a full time course of two years during which the student was not allowed to serve or practice, but she was selected to the said course for the year 1984, the selection of that candidate could not be said to be proper, as she could not be said to have fulfilled the eligibility requirement stipulating five years standing in the profession. The study period of two years of DGO Course by the said petitioner had to be excluded in computing the period of two years of her standing in the profession; and the writ petition was allowed. The respondents No. 1 and 2 therein were allowed to offer vacant seat in PG Department in ENT to the next eligible candidate, in accordance with merit.

It is not in dispute that no option was given to the petitioner for either to join on the post of Tutor in Oral Surgery Department or to continue his MDS Course. The impugned order was passed in violation of the principles of natural justice; secondly in identical circumstances, in the case of M.D. Students, after appointment of the candidates on the post of Medical Officer, the State Government of Madhya Pradesh has issued order dated 20.05.2011 (Annexure P/11) and directed that those selected candidate who are pursuing their studies in Post Graduate Courses may join their posting place up to 30.07.2011 i.e. they have been granted extension for a period of more than three months; as is evidence from copy of their appointment order dated 19.04.2011 (Annexure P/10) and copy of order dated 20.05.2011 (Annexure P/11). The order dated 20.05.2011 (Annexure P/11) reads as under:

For the ongoing reasons, we are of the view that it is a fit case to allow the writ appeal on the ground that the order of cancellation of the appointment of the appellant was passed in violation of the principles of natural justice and in identical circumstances, the State Government granted extension of joining time for a period of more than three months in violation to the provisions of Rules, 2007.

On due consideration, we allow the writ appeal and set aside the order dated 21.09.2012 passed in Writ Petition No. 2613/2010. Consequently, we allow the writ petition and set aside the impugned order dated 28.01.2010 (Annexure P/1), but without any orders as to costs.