Dr. Pawan Malhotra vs State and Others

B.K. Khan, J.—The petitioner wants to get in to the Post-graduation course in the discipline of Pharmacology for which he is not ""otherwise

eligible under the existing rules. He consequently seeks quashment of the eligibility clause which stands in his way, or in the alternative a direction to

respondent-State to relax the requirement in his case and to admit him to one of the six vacant seats in the said discipline.

The controversy can be traced to the notification issued by the respondent-competent authority on 24-4-1992 inviting applications from eligible

candidates for admission to MD/MS courses in various clinical and non-clinical subjects in medical colleges of the State. As many as 8 seats were

notified in the discipline of pharmacology -- 6 seats in Jammu Medical College and 2 seats in Srinagar Medical College. The candidates had to

satisfy the eligibility as contained in the notification and laid down in SRO-3 of 1989 dated 3-1-1989 reference to which will be made later. Even

as the petitioner was hot eligible to apply in the discipline of pharmacology, he applied all the same on 21-5-1992 opting for the disciplines of

pharmacology and in order of preference. He claims to have done so after having made a representation to the Chairman of the competent

authority on 12-5-1992 seeking waiver of the ""proviso to Clause 5.5 of the eligibility clause"" and ""after having been assured"" by the respondents

that his case would be considered in this regard. He thereafter made an application on 7-10-1992 opting for the discipline of Dermatology without

indicating whether it was in place of pharmacology. Be that as it may, the admit card issued to him in the discipline of Dermatology and after his

result was proceeded in this discipline he failed to make the grade and was not selected.

The result was declared on 11-1-1993 and thereafter respondent No. 5 seems to have taken up the matter of vacant seats in the discipline of

pharmacology with respondent No. 4 by this communication dated 28-2-1993 requesting that the seats be got filled up from the candidates who

had appeared in the 1992 entrance examination. This led to a correspondence between respondent No. 4 and Chairman of the competent

authority with former seeking relaxation of the eligibility condition of experience as Demonstrator in pharmacology subject. Respondent No. 4 was

asked to submit a formal proposal on the subject matter which is stated to have been rejected by the Chief Secretary.

Before adverting to the rival contentions of the parties it would be beneficial to extract the relevant eligibility clause which reads thus:

4.5. Have completed one year's house job in a recognised institution out of which at least 6 months must be in the concerned subject for which

selection to PG course is applied for and six months in an allied speciality. However, this condition shall not be applicable to the candidates who

have served in the State/Central Government Medical Services for a period of 5 years;

OR

has served in the Army Medical Corps. For a period of 5 years;

OR

has worked for 3 years in a hospital recognised by the Medical Council of India for internship training;

OR

has conducted research work for at least two years under the auspices of National or International organisation (s) duly recognised by the Medical

Council of India or Indian Council of Medical Research and have produced a certificate to that effect from the Heads of such Institute;

OR

is serving Demonstrator in the subject (s) and has completed one year's service in the State Medical College for selection to any of the Post-

graduate course in the non-clinical subjects of pharmacology, physiology and anatomy;

OR

has worked as a Demonstrator for a period of not less than one year in the non-clinical subject in which admission for PG course is sought.

The petitioner's case in nutshell is that he fulfills all the requirements laid down in the eligibility criteria (viz. 4.1, 4.2, 4.3 and 4.4) but is rendered

ineligible for want of the requisite house job in terms of Clause 4.5 and this is so because there is no house job provided in the discipline of

pharmacology. He further submits that the options provided in place of the requirement of house job for non-clinical subjects like demonstratorship

in the subject concerned i.e., pharmocology, are also beyond his reach as no applications were invited by the respondent-State for the posts of

demonstrator for the last three years till advertisement notice dated 19-8-1992 was issued which also required a house job in the discipline

concerned, thus, rendering it possible to become a Demonstrator in Pharmacology.

The case of the petitioner was articulated by his counsel Mr. Thankur by urging that the requirement of the house job in the non-clinical subject

like pharmacology is both arbitrary and unjustified, same being impossible of performance. According to him, law does not compel a person to do

what is impossible to perform and always excuses such performance and wherever such requirement is to be satisfied necessarily it becomes

unconstitutional. He further contended that the controversial requirement was discriminatory in nature between those who opted for clinical

subjects; those who had no house job but satisfied the other options provided in place of. house job; and, those who had no way or means even to

fulfil the requirements of options so provided. The classification so made had no reasonable nexus with the object being sought to be achieved and

accorded a hostile treatment to the petitioner, as compared to those who are similarly stituated with him and infringed his rights guartanteed to him

by Articles 14 and 16 of the Constitution.

During the course of arguments Mr. Thakur shifted his ground and took conflicting stands. He first wanted the Court to give a reasonable and

workable interpretation to the terms of Clause 4.5 so as to prescribe the requirement of a house job wherever it was possible to acquire it. The

clause, according to him. should be so interpreted as to mean that no house job was required in those disciplines where it could not be acquired.

He, however changed his stand on realising that various options were provided in the eligible criteria clause in place of the requirement of house

job and contended that the first three options provided in Clause 4.5 should be so read as to be available only to candidates for clinical"" subjects

who possessed the house job and not to candidates in non-clinical subjects. He submitted that on this reasoning only two options viz. is a serving

demonstrator in the subject and has completed one year's service -- or has worked as demonstrator for a period of not less than one year in non-

clinical subject -- were available to a candidate in the non-clinical subject and since the respondent-State had not invited any applications for

demonstratorship for the last three years and as the house job was also a requirement for being a demonstrator, it was again not possible for the

petitioner to satisfy the requirement. Therefore, on both counts either the eligibility criteria deserved to be quashed or the same was required to be

relaxed to enable him to seek admission in the discipline of pharmacology. He sought support from Dilip Kumar Sharma and Others Vs. State of

Madhya Pradesh, , Smt. Shyam Kishori Devi Vs. Patna Municipal Corporation and Another, , The State of Rajasthan Vs. The Mewar Sugar Mills

Ltd., Bhopalsagar, to urge that the Court must place a reasonable construction on the eligibility clause to make it workable and fair.

Objections have been filed on behalf of the respondent-State and the Competent Authority also. Their stand is that the eligibility criteria laid

down is reasonable, fair and workable and does not need any interference. It is clarified that the requirement of house job is prescribed for clinical

subjects and that the demonstratorship is the condition precedent for the candidates in non-clinical subjects like pharmacology. It is also pointed

out that after the petitioner had changed his preference and opted for Dermatology he was considered in the same and having failed to secure the

berth was estopped from turning round and challenging the vires of the eligibility criteria prescribed. It is also submitted that since the petitioner had

approached the Court 8 months after the declaration of the results his cause was hit by latches.

In the objections submitted on behalf of the respondent-State it is added that the petitioner's request for relaxation of any requirement laid down

in the eligibility criteria can only be considered and disposed of by the government in accordance with the Business Rules; Mr. Raina, learned

counsel for the Competent Authority elucidated these contentions by relying upon Shri Ramesh Kumar and Others Vs. Technological Institute of

Textiles and Others, , Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, .

I have heard learned counsel for the parties and have considered the record.

The origin of the controversial eligibility clause can be traced to notification SRO-03 of 1993 dated 3-1-1993 (J. & K. Medical Colleges

Selection of Candidates for the Postgraduate Courses Procedure Order, 1969). A combined reading of various provisions of this clause (relevant

portion whereof has been extracted hereinabove) shows that Rule 4.5 prescribing the requirement of the house job is applicable to clinical subjects

only where such house job is capable of being acquired. This is so because along with prescribing of the requirement of house job, other options

are provided in the clause for those candidates who had no house job or for whom it is not possible to acquire it like the candidates in non-clinical

subjects. The very fact that alternatives and options have been provided in place of the requirement of house job, demonstrates that the house job

is not the sole requirement, and that its deficiency does not render a candidate ineligible because he has a number of other options to fall back

upon. It is also clear that the house job is intended to be a requirement for clinical subjects because of the options provided as a substitute for it

like demonstratorship are specifically meant for non-clinical subjects.

It is also not correct to contend that Clause 4.5 makes any hostile discrimination between the candidates of the clinical subjects and those of

the non-clinical subjects or between those who have no house job but are in Govt. service and those who could not make it in the Govt. service.

The plea of discrimination seems to be alien to the terms and tenor of the impugned clause. It suffers from no ambiguity whatsoever. The

question also does not arise in the circumstances because candidates of clinical and non-clinical subjects do not constitute one class. Therefore, the

classification made between them is a reasonable one and has nexus with the objective sought to be achieved -- object being to admit only those

candidates to the Post-graduate courses who have some experience at their back.

There can be no two opinions that it is for the authority concerned to lay down the eligibility criteria provided such criteria is rational and

reasonable. That being so it cannot be said that it is unreasonable or irrational to require a candidate seeking admission to MD/MS courses in

clinical subjects, to possess one year's house job to satisfy the requirement provided as substitute thereof. It is for the candidate to satisfy any of

the optional requirements and it is immaterial whether or not he had the occasion to do it. It does not appeal to any logic to contend that since a

candidate does not fulfil any of the optional requirements provided in place of house job, he should be given a free passage. Viewed thus, Mr.

Thankur's submission that it is impossible for a candidate to acquire house job in the non-clinical subject of pharmacology, is grossly misconceived.

This is so for the simple reason that wherever it is not possible for a candidate to acquire the requisite house job, he has various other options to

fall back upon. It would be different if he had been rendered completely ineligible for want of house job. That surely is not the case.

It is also wrong to suggest that even demonstratorship, which is the substitute requirement for a house job is beyond the reach of the petitioner

because the same also requires house job in the concerned subject. I have seen the advertisement notice dated 19-8-1992, inviting applications for

appointment to the post of demonstrators. It prescribes certain qualifications for candidates to be eligible and also requires one year's experience

as house officer or equivalent recognised experience. It nowhere prescribes that a candidate must have one year's house job in the discipline in

which he is to be appointed as demonstrator.

Mr. Thakur's reliance on some judgments of the Supreme Court relating to the norms of interpretation of statutes also, does not advance his

case. I have gone through these judgments which lay down well known principles of norms of interpretation of a statute and emphasize that where

two constructions are possible upon the language of a statute, the court must choose the one which is consistent with the goodness and fairness and

must eschew the other which makes its operation harsh or unreasonable. There can be no quarrel with the well established propositions on the

subject but there is no occasion for their application in the instant case. In my view the controversial eligibility clause admits of no confusion. It is

capable of only one construction and that is, the requirement of house job is one of the optional requirements to be satisfied by a candidate for

being eligible to seek admission in the MD/ MS courses.

It also remains to be seen whether the petitioner can be allowed to challenge the constitutionality of the rules after he had taken entrance

examination under these rules and had also taken a chance of being selected. According to Mr. Raina, he is debarred from doing so on the basis of

the law laid down in D. Nagaraj and Others Vs. State of Karnataka and Others, after he had acquiesced to the rules in question by seeking

selection and appearing in the entrance examination. I feel no need to enter this arena after having taken the view in favour of the validity of Clause

4.5.

The matter, however, does not rest at that and needs to be examined from yet another angle viz. whether the respondent-State can be directed

to relax the eligibility criteria in favour of the petitioner? The petitioner's case is that such a relaxation has been made in the past also in case of

some candidates whose particulars he has given in his supplementary affidavit. Confronted with this, Mr. Raina submitted that the cases relied upon

are anterior to the coming into being of the Competent Authority and, therefore, respondents cannot be accused of giving any differential treatment

on that basis.

It is the domain of the rule-making authority to grant or refuse relaxation of the rule. The Court cannot substitute its satisfaction or opinion in

such matters or look into the sufficiency or otherwise of the material on the basis of which any such relaxation is granted or refused. The Court,

however, has the competence to interfere wherever such action suffers from any illegality or is tainted with any mala fides or looks perverse on the

face of it. In the instant case, it is premature to say anyting on this aspect because the record submitted to me reveals that the petitioner's request

for waiver of the requirement of demonstratorship has been rejected by the Chief Secretary, who, admittedly is not the competent authority to

grant of refuse the Relaxation in such cases keeping in regard the stand of the respondent-State taken in the objections that such an action can only

be taken by the Government. For the present it is not the respondent's case that the Chief Secretary constitutes the Government according to the

business rules. The inescapable conclusion is that the petitioner's case for relaxation of eligibility criteria is still pending consideration by the

competent authority i.e. the Government. That being so, ends of justice would be met if the Government is directed to finalise its consideration in

the matter within the prescribed time frame. I accordingly direct the respondent-State to consider and dispose of the petitioner's case for relaxation

in eligibility criteria and to consider his candidature for admission to the Post-graduation course in the discipline of Pharmacology against any one of

the available seats within one month from the date of receipt of this order. All concerned authorities involved in the process shall ensure that

appropriate orders are passed within the prescribed period to enable to petitioner to catch up with the on going course in the event the decision

goes in his favour.

With these directions this petition is disposed of along with C.M.P. No. 298 of 1993.