DR. Shankar Kumar and Another vs State of Bihar and Others

Lalit Mohan Sharma, J.—The petitioners in both these writ applications are desirous of getting admission for the M. S. Orthopaedic Course in the Rajendra Medical College, Ranchi, run by the State of Bihar. Since the facts and circumstances in which the applications have been filed are the same, both the applications have been, on the joint prayer of the parties, heard together and are being disposed of by this common judgment.

The total number of seats in the M.S. Orthopaedic Course in the Rajendra Medical College is only three and the two petitioners, the respondents nos. 5 and 6 and several other students applied for admission. The candidates who have been selected for admission are Dr. Kiran Shankar Prasad, who is not party to this case, and respondents nos. 5 and 6. Both the petitioners have been refused admission. They have prayed for issuance of a writ of mandamus directing the authorities concerned to admit the petitioners to the Course for the sessions 1977-79. Their claim is that the respondents nos. 5 and 6 have been wrongly admitted. Since they do not challenge the decision in regard to the admission of Sri Kiran Shankar Prasad, he has not been impleaded.

The common case of the petitioners in the two applications is that so far the respondent No. 5 is concerned, he is not eligible for admission. since he does not fulfil the qualifications laid down in the University Regulations. Besides, it is submitted, the respondent No. 5 was less meritorious than the two petitioners and could not have been admitted in preference to the petitioners. So far as the respondent No. 6 is concerned, it is said that he failed to comply with one of the conditions, mentioned in the Prospectus (annexure 1) and his application for admission was, therefore, not fit to be considered at all.

There is no appearance on behalf of the State. The respondents Nos. 2, 3 and 4, namely, the Ranchi University its Vice-Chancellor and the Principal of the College are represented by Mr. S. Roy. The respondents nos. 5 and 6 have appeared through Mr. Ramanandan Sahai Sinha. Several affidavit and counter-affidavits have been filed by the parties.

Mr. Debi Prasad, the learned Counsel for the petitioners, placed before us the Prospectus (annexure 1) which had been issued in connection with the admission and relied upon certain provisions towards the end of the document at page 13 of the paper book which reads as follows:

N.B. 1. Candidates who are State Government Employees or Employees elsewhere, must apply along with ''No Objection Certificate'' from appropriate authority. Application not accompanied by this certificate (where applicable) will not be considered.

The requirements for admission are subject to the regulation of Ranchi University.

Non-compliance with above requirements or incomplete application will lead to rejection of candidature.

The respondent No. 6 did not admittedly file a ''No Objection Certificate'' along with his application for admission, although he was employed in the Health Department of the State of Bihar. He, however, filed the certificate after he was selected and before he was admitted. The contention is that since he filed the required certificate belatedly, he had failed to comply with. the requirement of the Prospectus and his application was bound to be rejected. After hearing the learned Counsel for the parties, I am not in a position to accept this argument. The provisions, referred to above, do not indicate that a mandatory condition was mentioned in the Prospectus on the question of maintainability of the application for admission. The purpose of the requirement is to clothe the Government or any other employer with the right to object to the admission of an employee. And since a ''No Objection Certificate" has admittedly been issued by the State of Bihar in the case of the respondent No. 6 before he was admitted, the reason of the requirement has been satisfied. The language of the relevant provisions, as quoted above, does not appear to be mandatory in nature restricting the discretion of the authority in receiving the certificate later. It would have been a different matter, if the State Government had refused to issue the certificate or had raised an objection against the admission. The relevant provisions have not been put in the Prospectus for the purpose of a ground being raised by any body else other than the employer. Mr. Ramanandan Sahai Sinha relied on a decision in Jamuna Das v. The State of Bihar C.W.J.C. No. 227 of 1976 disposed of on the 2nd of September, 1977. In that case the respondent No. 6 had filed an application on 12-5-69 for grant of a mining lease under the Mines and Mineral (Regulation and Development) Act, 1957 read with the Mineral Concession Rules, 1960 but did not attach an Income Tax Clearance Certificate as required by the Act and the Rules. The certificate was filed later and it was contended on behalf of the petitioners that the respondents application should be deemed to have been filed on the date when the Certificate was filed, and the petitioners application was entitled to be allowed on the ground of priority of claims as mentioned in Section 11(2) of the Act. The argument was rejected and the decision, so far it is relevant to the case before us, helps the respondent No. 6 examining the entire Prospectus it appears that the authorities concerned have got the power to extend the time for removing any defect in the application by a candidate for admission and they could accept the ''No Objection Certificate'' on any later date before the admission. I, therefore, overrule the argument addressed on behalf of the petitioners against the respondent No. 6.

Since no other point has been urged on behalf of the petitioners against the respondent No. 6 the application must be dismissed as against him.

In support of the case against the respondent No. 5 the counsel for the petitioners relied upon the following provisions of the Regulations which are relevant in this regard (omitting the irrelevant portions):

Eligibility

A person admitted to the degree of Bachelor of Medicine and Bachelor of Surgery of the University of Ranchi or M.B.B.S. Degree of any University if included in the first schedule of the Indian Medical Council Act and recognised by the Academic Council of Ranchi University as equivalent thereto may offer himself as a candidate for the examination for the degree of M.D. and M.S. provided that:

(ii) Subsequent to full registration with the State Council of Medical Registration a candidate must have worked for at least one year in an institutional hospital or an organisation approved by the Academic Council and Medical Council as detailed below, except that a candidate for basic sciences should have worked as Houseman for one year or should have worked as a Demonstrator or/Tutor or whole-time research worker or Research Assistant in an approved institution for one year in the subject offered by him for the Examination:

M.S. Orthopaedic Surgery--As Houseman for 12 months in Orthopaedic Surgery or 6 months in General Surgery and 6 months in Orthopaedic Surgery.

* * * * * * * The respondent No. 5 was a Houseman for 12 months in General Surgery but was not a Houseman in Orthopaedic Surgery for any period whatsoever. The argument is that 6 months experience as Houseman in Orthopaedic Surgery is a sine qua non for admission for M. S. Orthopaedic Surgery Course. The respondent No. 5 has, it is argued, failed to satisfy the conditions mentioned in the Regulations which have been framed under the provisions of Section 34 of the Bihar State Universities (Universities of Bihar, Bhagalpur and Ranchi) Act, 1960 (hereinafter referred to as the Act), applicable to this case and his admission is, therefore, illegal. It has been mentioned in the counter-affidavit of the respondent No. 5 as well as in the counter-affidavit of the other respondents that the respondent No. 5 has been a Resident Surgeon for more than 6 months in Orthopaedic Surgery in the Patliputra Medical College, Dhanbad affiliated to the Ranchi University and it should, therefore, be held that he has, in substance, satisfied the conditions. Mr. Debi Prasad, learned Counsel for the petitioners, has contended that the experience of a Houseman cannot be equated with that of a Resident Surgeon, specially in view of the language of the Regulations and it is not permissible therefore to hold that the respondent No. 5 has in substance satisfied the statutory qualification.

The Regulation, quoted above, lays down six months'' experience as a Houseman in Orthopaedic Surgery as a necessary condition for admission and no equivalent experience has been mentioned therein. In the Prospectus (annexure 1), however, it has been mentioned in this regard as follows:

3, The following criteria are also considered equivalent to the Housemanship requirement:

(a) Candidates must have worked as full time post graduate students in the department concerned before taking up the MD/MS Course in a manner, equivalent to Houseman -hip requirements.

(b) Candidates must have worked in Hospital approved by the Medical Council of India for Internship Training for a period of three years.

(c) Candidates must have worked in State Medical Service or Armed Forces Medical Service or other equivalent service for a period of 5 (five) years.

None of the learned Counsel for the parties has been able to tell us to the authority which has issued the Prospectus but submissions have been made on the assumption that the conditions mentioned in the Prospectus are binding. In that view it can be assumed that the condition in the Regulation quoted earlier has been modified by the Prospectus for the purposes of the admission to the M. S. Course for the sessions 1977-79. The modification which has been introduced by the Prospectus on the question of eligibility must, however, be limited to the term mentioned and quoted above. This term does not include the experience of a Resident Surgeon in a hospital. On these grounds, it has been contended on behalf of the petitioners that the experience of the respondent No. 5 as a Resident Surgeon in the Dhanbad Hospital cannot be considered as sufficient within the meaning of the Regulation. The experience of Internship Training has been, as quoted above, considered to be equivalent experience but only if the experience as such is for a period of three years, It has pot been claimed before us that the experience of the respondent No. 5 is covered by any of the three Clauses (a), (b) or (c) of the third paragraph of the Prospectus. The contention is that on general principle, it must be assumed that the experience of a Resident Surgeon is equivalent to that of a Housemanship. In view of the language of the Regulation it does not appear possible to do so. Besides, when the two rets of counter affidavits were filed by the respondents in response to the service of notice, no attempt was made to detail the duties of a Houseman and those of a Resident Surgeon. A bald assertion was made that the experience as a Resident Surgeon was a better qualification. If the respondents were desirous of inviting this Court to examine the question on merits and to come to an independent decision on this aspect, then it was necessary to have placed those details. The petitioners have of course challenged the assertion. This case was heard in part on the 3rd April, 1978 and was adjourned and was placed for further hearing on the 7th April, 1978, On this date fresh affidavits were filed by the parties and it was asserted on behalf of the respondents that the "nature of duties and functions of a Resident included all the duties and functions of a Houseman for example patient-care, ward procedures, emergency duties and record keeping". On the basis of this statement it has been attempted to argue that sufficient materials have been placed before this Court for coming to a decision in favour of the respondents. This belated statement also does not give the materials on the basis of which the High Court can examine the similar nature of the duties of a Resident Surgeon and a Houseman as asserted. The statements referred to above in the counter affidavits have been again denied by a fresh affidavit filed by the petitioners. In the course of arguments, we enquired from the counsel for the respondents as to whether they could produce any document showing the duties, but they were enable to do so. In these circumstances, it must be held that the respondents have failed to prove that the experience of a Resident Surgeon for six months could be treated as equivalent experience for the purpose of admission in the M. S. Orthopaedic Course.

Mr. Debi Prasad further relied upon the statement in the affidavit of the petitioners that there does not exist any separate Orthopaedic Department in the Patilputra Medical College where the respondent No. 5 claims to have worked as a Resident Surgeon. He drew our attention to the Certificate produced by the respondent No. 5 in this regard which has not been granted by the Principal of the College. The Certificate has been issued by the Superintendent of the Hospital and it has been stated on behalf of the petitioners that the Certificate can only show that the respondent No. 5 has been working as an Orthopaedic Surgeon in the Hospital but cannot prove the case that the respondent No. 5 has worked in a College. No reply has been attempted on behalf of the respondents on this point.

The question whether the respondent No. 5 is qualified for being enrolled as student for the M. S. Orthopaedic Course and whether his admission is legal must be for the treasure mentioned above decided against him.

The second argument addressed on behalf of the petitioners is based upon the relative merits of the candidates. The petitioners have relied upon annexure 2, a list of eligible candidates prepared by the head of the Department of Orthopaedic along with the total points allotted to them. The petitioner in C.W.J.C. 65 of 1978 obtained 57.98 total points the other petitioner 57.96 points, the respondent No. 6,60.19 points and the respondent No. 5,54.36 points. On the basis of this list, the petitioners have contended that the respondent No. 5 must be considered to be less meritorious than them. It was pointed out by the respondents that since annexure 2 emanated from the Head of the Department and its value has been challenged in the counter affidavit, the same should not be given any weight. But the petitioner have attached a copy of the merit list of the Selection Committee also under the signature of the respondent No. 4 which formed the basis for selection of the candidates for admission and has marked it as annexure 6 to the reply to the supplementary counter affidavit. This document also indicate that while evaluating the merits of the candidates, the petitioner Shankar Kumar, the petitioner Vishwanath Banerjee and the respondent No. 5 Shankar Prasad Sinha were given total points as 57-98,57.96 and 54.36 respectively. The heading of the column showing the total points is mentioned as "Evaluation". It has, therefore, to be held that the petitioner Shankar Kumar is more meritorious than the petitioner Bishwa-nath Banerjee and the respondent No. 5 Shankar Prasad Sinha. Reliance was placed by both sides on Regulation (5a), which is in the following terms:

5 (a). A selection of candidates for post graduate Training shall be made on the basis of merit preference may be given to the Graduate of Ranchi University and teacher in the affiliated Institution under Ranchi University.

The Regulation, quoted above, clearly lays down that relative merit would be taken into account for deciding the matter of admission. The respondents relied upon the second part of this Regulation and contended that since the respondent No. 5 was a teacher in an affiliated institution to the Ranchi University he had to be preferred. The case of the petitioners on this question is that since the petitioners also graduated from the Ranchi University they are also entitled to the preference and, the preference in favour of the petitioners on the one hand and in favour of the respondent No. 5 on the other cancel each other. The matter should, therefore, have been decided on merits. On the adjourned dated i.e. the 7th April, 1978, the University authorities filed a fresh counter affidavit stating that the Selection Committee called for the admission of the students in the M. S. Course for the session starting in 1973 resolved inter alia "that where there are three seats in a subject perference for two seats will be given to the Ranchi University graduates and one seat be declared open to all but the teacher of the Ranchi University would be preferred." A copy of the resolution has been annexed as annexure ''A'' to the affidavit, and annexure ''B'' is the letter written by the Registrar dated the 29th March, 1973 to Dean of the Faculty of Medicine stating that the Vice-Chancellor had approved the proposal. Mr. S. Roy appearing for the University argued that in view of annexures ''A? and ''B'' it must be held that the Regulation 5(a) quoted above stood amended in terms mentioned above and the result is that only the teacher of the Ranchi University was to be preferred in regard to One seat against which the respondent No. 5 has been admitted. This argument suffers from several fallacies. In the first instance, it will be seen that the proposal had been made by the Selection Committee for the admission in the year 1973 and it could not and was not a proposal for general application for all times to come. Then, the subject mentioned in annexure ''B'' along with the letter of the Registrar itself indicates that the decision was being taken in regard to the selection of the candidates for the M. S. Examination for 1974 alone. The said letter mentioned the subject, it was dealing with, in the following terms:

Sub.: Selection of candidates for the MD/MS Examination of 1974

Besides the Regulations have to be modified u/s 34 of the Act by a solemn order declaring that the Regulations were being amended. No orders by the Vice-Chancellor have been produced before us. If he desired to amend the Regulation, it is expected that he would have passed a categorical order saying so. The communication by the Registrar stating that, for the purposes of the admission to the M.S. Course in a particular year, a suggestion made by the Selection Committee was approved by the Vice-Chancellor, cannot amount to amendment of the Regulation. This is probably the reason that on the 3rd of April, 1978 when arguments were addressed on behalf of the respondents, reliance was placed on Regulation 5(a), quoted above, and it was not suggested that it had undergone a change. I, therefore, reject the suggestion on behalf of the University that the Regulation 5(a) has been modified.

Assuming in favour of the respondents that the Regulation 5(a) underwent a change as asserted in the belated supplementary affidavit, still the position does not improve for the respondent No. 5. It is not mentioned in the modification suggested by the Selection Committee as to the amount of weightage to be given to a teacher of the Ranchi University. In that view it must be assumed that the preference would be given only if the merits of the competing candidates were found to be at par. Since the petitioners were evaluated as more meritorious than the respondent No. 5 by the Selection Committee no preference could be given to the respondent No. 5. It has not been and cannot be suggested that the petitioners were ineligible for being considered for the third post, for that post was open to all. In that view the preference given to the respondent No. 5 by rejecting the more meritorious candidates was illegal.

Mr. Ramnandan Sahai Sinha appearing for the respondents No. 5 and 6 next urged that the petitioners have an alternative remedy u/s 9(4) of the Act before the Chancellor, and the Writ applications should not therefore be entertained. Alternatively he said that if the remedy u/s 9(4) be deemed to be inapplicable, it must be held that the writ applications are not maintainable against the Ranchi University its Vice-Chancellor or the Principal of the Rajendra Medical College. The argument is misconceived since the Rajendra Medical College, Ranchi in which the question for admission is arising is run by the State of Bihar and is affiliated to the Ranchi University. The order in regard to the admission cannot be considered as a proceeding of the University so as to attract the remedy u/s 9(4) of the Act. The Writ application is clearly maintainable against all the respondents. The objection is therefore, overruled.

The next question is as to the nature of the orders which should be passed in these cases. In reply to the supplementary counter affidavit it has been mentioned that the other candidates who were found more meritorious than the petitioners, vide annexure 6, were not desirous of being admitted and were thus not necessary parties. Dr. Arvind Jayswal who obtained 66-33 total points did not appear in the interview. Dr. Alok Kumar Mishra has already been admitted in Orthopaedic in the vacancy of the previous year and is not, therefore, a candidate for the present session. So far Dr. Shree Kumar Narayan was concerned he was not considered for some other reason and according to the petitioner he was not eligible for admission in preference to the petitioners. No reply has been given to these statements and it has, therefore, to be assumed that the two petitioners are the only persons who have a preferential right over the respondent No. 5. Since the application is being dismissed against the respondent No. 6 and only one place is now available on the finding that the respondent No. 5 is not eligible and was not fit for admission, only one of the two petitioners can be admitted. Comparing their relative evaluation, it has to be held that Dr. Shankar Kumar is more meritorious than Dr. Banerjee and has to be admitted in the place vacated by Dr. Shankar Prasad Sinha. Consequently C.W.J.C. 51 of 1978 has to be dismissed in its entirety, but the writ application of Dr. Shankar Kumar in C.WJ.O. 65 of 1978 has to be allowed against the respondent Nos. 1 to 5.

In the result C.W.J.C. 51 of 1978 is dismissed but without costs. G.W.J.C. 65 of 1978 is allowed against the respondents No. 1 to 5 but without costs. The respondents 1 to 4 are directed to admit the petitioner Dr. Shankar Kumar in M. S. Orthopaedic Course for the sessions 1977-79 in place of the respondent No. 5. The application is, however, dismissed as against the respondent No. 6 but without costs.