Neeru Khajuria, Dr. and Another vs State and Others

Nirmal Singh, J.—Both these writ petitions shall stand disposed of vide this common order.

The facts in brief be noticed as under:

Vide notification No. 1-BPEE of 2006 dated 7th of Feb'06, issued by official respondents, applications were invited from all eligible candidates for

various MD/MS/PG Courses. In pursuance to the said notification, the respondent-Board of Professional Entrance Examination (hereinafter

referred to as the Board) conducted the examination on 26th of March'06. The category wise merit list of all the provisionally selected candidates

was notified vide Notification bearing No. 09-BPEE of 2006 dated 25th of April'06. In the said merit list, Dr Reena Gupta, who secured 80.80

points and whose name figured at Sl. No. 20 of the said list was allotted the discipline of Gynaecology & Obstetrics in Government Medical

College, Jammu. Petitioner in OWP No. 635/06-Dr Sunila Gupta, respondent No. 4 in OWP No. 607/06, who secured 77.17 points was shown

at Sl. No. 55 of the list. She was allotted the discipline of Ophthalmology in Government Medical College, Jammu. Petitioner in OWP No.

607/06-Dr Neeru Khajuria secured 78.99 points and was shown at Sl. No. 34 of the merit list. She was allotted the discipline of Gynaecology &

Obstetrics in Government Medical College, Srinagar. The said disciplines were allotted as per the option given by the aforesaid doctors.

The further fact is that Dr Reena Gupta and Dr Sunila Gupta who were allotted the disciplines of Gynaecology & Obstetrics and

Ophthalmology, respectively in GMC, Jammu, made a joint representation dt. 6th of June'06 to the Prinicipal, Government Medical College,

Jammu, requesting him to allow the said doctors to inter-change their respective streams. The Principal, Government Medical College, Jammu,

referred the said representation of the two doctors to the Chairman of the Board for further necessary action at his end. The Chairman on receipt

of the communication in this regard from the Principal, GMC, Jammu, along with the joint representation of the two doctors, conveyed its no

objection for mutual change of streams by observing as under:

The Board has no objection if the mutual change is effected.

Sd/-

Chairman, BPEE

As no final order was passed in this regard by the Principal, Government Medical College, Jammu, Dr Reena Gupta and Dr Sunila Gupta filed a

writ petition in this Court bearing OWP No. 477/06 with a prayer that the respondent-Principal, GMC, Jammu, may be directed to allow them to

continue their studies in inter-changed streams. The said writ petition was disposed of by this Court on 10th of July'06 with the following

observations:

Notice was issued to respondents on 29th June'06. No one has put in appearance on behalf of respondents. Therefore, this petition is being

admitted and disposed of with a direction to respondent No. 2 to pass a specific order either allowing the petitioners to change their streams

mutually as per their option now given by them or rejecting the same within five days of the receipt of a copy of this order. Before passing of order

by respondent No. 2, the petitioners shall also be given an opportunity of personal hearing. In case, any adverse order is passed, the petitioners

shall be at liberty to approach this Court again.

Disposed of accordingly.

In compliance to the aforesaid order, respondent-Principal, GMC, Jammu, issued an order bearing No. FAC/165 of 2D06 dated 12th of

July'06, whereby mutual change of streams between Dr Reena Gupta and Dr Sunila Gupta was allowed. Thereafter, when the mutual change of

streams was allowed between Dr Reena Gupta and Dr Sunila Gupta, a representation came to be filed by Dr Neeru Khajuria to the Chairman of

the Board who issued a communication to the Principal, Government Medical College, Jammu, bearing No. 436/BPEE/06 dated 23rd of Aug'06,

wherein it has been mentioned that Dr Sunila Gupta, appearing at Sl. No. 55 of the merit list has to be allotted the Government Medical College,

Srinagar, in view of her merit and mutual change of stream with Dr Reena Gupta. It has further been mentioned in the said communication that Dr

Neeru Khajuria who is at Sl. No. 34 of the merit list is entitled to be placed in GMC Jammu in accordance with her merit and option of colleges.

So far as Dr Reena Gupta is concerned, it has been stated that in view of her merit, she has to remain in Government Medical College, Jammu.

It is the aforesaid communication dt. 23rd of Aug'06 issued by the Chairman of the Board of Professional Entrance Examination, which is the

subject matter of challenge in writ petition OWP No. 635/06 filed by Dr Sunila Gupta. The said writ petitioner has sought a writ in the nature of

certiorari quashing aforesaid communication No. 436(BPEE)/06 dt. 23.8.2006 issued by respondent Chairman of the Board with a further writ of

mandamus/prohibition restraining respondents from changing the allocation made by respondent No. 2, Principal, GMC, Jammu to the petitioner in

the MD Course in the stream of Gynaecology and Obstetrics in Government Medical College, Jammu or in any manner disturbing order No.

FAC/165 of 2006 dated 12.7.2006 whereby respondent No. 2 has allocated the stream in MD Gynaecology and Obstetrics to the petitioner in

place of Ophthalmology and exchanged with Dr Reena Gupta.

So far as the writ petition OWP No. 607/06 filed by Dr Neeru Khajuria is concerned, following substantive reliefs have been claimed by the

petitioner:

Writ of certiorari be issued thereby quashing order No. PAC/165/2006 dated 12.7.2006, passed by the respondent No. 2 and a writ of

mandamus commanding the respondents No. 1, 2 and 3 to shift the petitioner from Government Medical College Srinagar and adjust against the

stream and vacancy which has become vacant on surrendering of the stream by respondent No. 4 in Government Medical College, Jammu.

Mr Wazir, learned Counsel appearing for the petitioner Dr Neeru Khajuria (OWP No. 607/06) submitted that in terms of Rule 14(11) of the

Information Brochure of Entrance Examination for admission to Post Graduate Medical Degree & Diploma Courses, 2006, the decision of the

Board regarding allotment of streams/institution is final and once the option in this regard is exercised, the same cannot be changed subsequently. It

is further stated that once a course has been joined in the allotted institution, then the change of discipline/college is not to be allowed except in the

case of upgradation. It is stated that the recommendation made by the respondent-Board in the present case in allowing the mutual change of

streams by Dr Reena Gupta and Dr Sunila Gupta, and thereafter passing of order impugned dt. 12th of July'06 by the respondent-Principal, GMC,

Jammu, was not in accordance with the Statute. Reference in this regard has also been made to the observations made by the Chairman of the

Board in its letter dt. 23rd of Aug'06, written to the Principal, GMC, Jammu. The relevant observations for facility of reference are being

reproduced below:

It is a fact that the undersigned has initially recommended the mutual change of disciplines between the candidates bearing S. No. 20 (Dr.Reena

Gupta) and S. No. 55 (Dr Sunila Gupta) of the merit list of MD Course 2006. However, immediately after making recommendation, it was felt

that the said change of streams/disciplines might affect the merit of other candidates. As such, the Principal GMC, Jammu was verbally requested

immediately not to implement the recommendations of the undersigned, now that the change of streams/disciplines have been made under the

directions of the Hon'ble High Court, the BPEE has nothing to say in the matter. However, in terms of merit, S. No. 55 mentioned above gets

GMC Srinagar along with her changed stream and S. No. 34 (Dr Neeru Khajuria) with Gynae & Obst. Stream is entitled to be placed in GMC,

Jammu in accordance with her merit and option of colleges....

Mr KS Johal, learned Counsel for the petitioner in OWP No. 635/06-Dr Sunila Gupta, submitted that the petitioner and Dr Reena Gupta were

allowed to inter change their streams and they have continued their studies in the changed streams now for about an year and in case, order passed

by the Principal GMC, Jammu dt. 12th of July'06, whereby he has allowed Dr Sunila Gupta and Dr Reena Gupta to interchange their streams, is

quashed, the same would not be in the interest of either the institution or the petitioner Dr Sunila Gupta or Dr Reena Gupta and they will not be

able to continue their studies in the original streams which were allotted to them. It is contended that even if it is taken that inter-change has been

allowed under some misconception and in violation of the Brochure and Statute, even then, the students are not to suffer. Reliance in this regard

has also been placed on the judgments of the Apex Court reported as S.P. Gupta Vs. President of India and Others, Thaper Institute of

Engineering and Technology, Patiala (Deemed University) Vs. Abhinav Taneja and others, Dr. Subodh Nautiyal Vs. State of U.P. and others,

State of Uttar Pradesh and others Vs. Dr. Anupam Gupta, etc., .

Mr Johal, learned Counsel for the petitioner Dr Sunali Gupta, also made a statement at the bar that the said petitioner has no objection in case

an order is passed by this Court for allotment of Government Medical College, Srinagar in her favour or the observations made by the Chairman of

the Board in its communication dt.23rd of Aug'06, are directed to be implemented.

I have heard learned Counsel for the parties and perused the record.

At the hearing, when it was pointed out to Mr Wazir, learned Counsel for the petitioner-Dr Neeru Khajuria, that in case the order impugned in

writ petition preferred by the said doctor (OWP No. 607/06) passed by respondent-Principal, Government Medical College, Jammu allowing the

inter-change of streams by Dr Sunila Gupta and Dr Reena Gupta, is quashed, how the recommendations passed in favour of Dr Neeru Khajuria

by the Chairman of the Board vide its communication dt. 23rd of Aug'06 can be implemented. He very fairly conceded that then the said

recommendation/observations made in favour of Dr Neeru Khajuria cannot be implemented.

Now it is to be seen whether the order passed by the respondent-Principal, GMC, Jammu, dt. 12th of July'06, allowing interchange of streams

by Dr Reena Gupta and Dr Sunila Gupta can be quashed at this stage and whether the said two doctors can be directed to pursue their studies in

the streams originally allotted to them.

As per Rule 14(11) of the Information Brochure of Entrance Examination for Admission to the Post Graduate Medical Degree & Diploma

Courses, 2006, the stream/institution once allotted cannot be changed subsequently once an option in this regard is exercised. In the present case,

Dr Reena Gupta and Dr Sunila Gupta, as noticed above had filed a joint representation to the respondent-Principal for allowing them to mutually

change their streams. The respondent-Board had also conveyed its no objection in this regard but as the final order was not being passed by the

respondent-Principal, the said doctors filed writ petition OWP No. 477/06. This Court while disposing of the said writ petition on 10th of July'06,

as noticed above, had passed an order directing the respondent-Principal, GMC, Jammu to pass a specific order either allowing the said doctors

to change their streams mutually as per the new option given by them or rejecting the same within five days of receipt of copy of the order.

It seems that the aforesaid direction passed by this Court regarding deciding of the representation of Dr Reena Gupta and Dr Sunila Gupta, has

been taken as an order/direction for allowing the change of streams by the respondent-Principal. As noticed above, even the Chairman of the

Board had conveyed its no objection regarding change of streams by the said doctors. The petitioners in OWP No. 477/06 vide impugned order

dt. 12th of July'06, which is the subject matter of challenge in OWP No. 607/06 filed by Dr Neeru Khajuria, have been allowed to mutually

change their streams. They have joined the respective changed streams and have been continuing their studies in the said changed streams for the

last about one year. Though, this mutual change of streams is not in terms of the Rule 14(11) of the Information Brochure referred to above, but

the same has been allowed by the official respondents under mis-conception. Once the candidates have been allowed to join a Course due

interchange of streams and have studied in the said Course for about one year, may be erroneously, then it would not be in the interest of justice to

cancel their mutual change of streams at this stage as both the candidates will suffer and they will not be able to complete their course in the original

stream/discipline nor they can fulfill the terms and conditions of that course after a period of about one year. In case, the order impugned allowing

the mutual change of streams is quashed, then these two doctors (Dr Reena Gupta and Dr Sunila Gupta) will loose one year as the seats allotted to

them cannot be carried forward to the next year as no such rule has been provided in the Brochure referred to above.

In Shri Krishnan Vs. The Kurukshetra University, Kurukshetra, , the Apex Court has held as under:

...The last part of this statute clearly shows that the University could withdraw the certificate if the applicant had failed to attend the prescribed

course of lectures. But this could be done only before the examination. It is, therefore, manifest that once the appellant was allowed to take the

examination rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out

and the applicant cannot be refused admission subsequently for any infirmity which should have been look into before giving the applicant

permission to appear....

In Dr. Subodh Nautiyal Vs. State of U.P. and others, , where the petitioner was seeking a direction to allow him admission after four months

of commencement of the course, the Apex Court declined this relief by observing as under:

Even according to Mr. Pandey the course has started in September for the session. This is a technical course and to admit a student four months

after the commencement would not at all be correct. We accordingly reject the application.

In State of Uttar Pradesh and others Vs. Dr. Anupam Gupta, etc., , it has been held as under:

...To maintain excellence the P.G. Medical courses in medical colleges have to be commenced on schedule and to be completed within the

schedule, so that the students would have full opportunity to study full course to meet their excellence and come at par excellence. Admission in the

midstream would disturb the courses and also works an handicap to the candidates themselves to achieve excellence....

In the case in hand, as indicated above, on the joint representation of Dr Reena Gupta and Dr Sunila Gupta, the official respondents have

allowed them to inter-change their streams. At the hearing, the learned Counsel for the parties very fairly made a statement that this mutual

exchange of streams has been allowed before the commencement of the course. Further-more, the said two doctors who have been allowed to

mutually change their streams, have not played any fraud or concealed any material fact from this Court or from the authorities concerned, but the

authorities who are competent to give admission, without looking into the Statute, have allowed them to inter-change their streams. Therefore,

keeping in view the above judicial precedents and taking into consideration the fact that the Dr Reena Gupta and Dr Sunila Gupta have continued

their studies in respective changed streams now for about one year, it will not be in the interest of justice to quash the order passed in their favour

allowing them to inter-change their streams and directing them to join the original streams allocated to them.

The next point which is very material in this case is whether Dr Neeru Khajuria, who was allotted the discipline of Gynaecology and Obstetrics

in Government Medical College, Srinagar is entitled to be placed in Government Medical College, Jammu, on the basis of her merit position after

the exchange of streams has been allowed between Dr Reena Gupta and Dr Sunali Gupta?

From the record, it is clear that Dr Neeru Khajuria is higher in merit than Dr Sunali Gupta, therefore, when Dr Sunali Gupta has been allowed

the stream of Gynaecology & Obstetrics by mutual interchange, then she cannot be allotted Government Medical College, Jammu, in view of her

less merit than Dr Neeru Khajuria.

It is pertinent to mention here that on the joint representation of Dr Reena Gupta and Dr Sunali Gupta, they have been allowed to mutually

interchange their streams but the Chairman of the Board had insisted that both the doctors should swear an affidavit to the effect that in case any

candidate possessing higher merit approaches the Board, then the decision of the Chairman of the Board in that case shall be final and binding

upon both the said doctors. The said two doctors accordingly swore the affidavits that in case any dispute arises, the decision of the Board will be

final and the parties will not contest the same. The Chairman of the Board, as noticed above, on the basis of inter-se merit of the candidates i.e. Dr

Reena Gupta, Dr Sunali Gupta and Dr Neeru Khajuria, has issued the aforementioned communication No. 436/BPEE/06 dt. 23rd of Aug'06 to

the Principal, GMC, Jammu wherein it has been stated that due to the mutual change of streams between Dr Reena Gupta and Dr Sunali Gupta,

Dr Sunali Gupta figuring at Sl. No. 55 has to get Government Medical College, Srinagar and Dr Neeru Khajuria, figuring at Sl. No. 34 with Gynae

& Obst. Stream is entitled to be placed in GMC, Jammu in accordance with the merit and option of colleges. It has further been stated that the

doctor figuring at Sl. No. 20 i.e. Dr Reena Gupta has to remain untouched in GMC, Jammu.

The said observations made by the Chairman of the Board already stand reproduced above. This order of change of institution has been

passed by the Chairman of the Board in continuation of the order passed with regard to allowing of mutual change of streams between Dr Reena

Gupta and Dr Sunali Gupta, therefore, this order of the Chairman of the Board regarding entitlement of Dr Neeru Khajuria to be placed in GMC,

Jammu and the allotment of Government Medical College, Srinagar to Dr Sunali Gupta, on the basis of her merit and change of streams, has to be

implemented by the respondent-Principal, Government Medical College, Jammu. This is more so, when the said two doctors (Dr Reena Gupta

and Dr Sunali Gupta) as noticed above, had already sworn the affidavits to the effect that in case of any dispute, the decision of the Board shall be

final.

For the reasons mentioned above, these petitions are disposed of with the following directions:

That in view of the order dt.12th of July'06, passed by the Principal, Government Medical College, Jammu, Dr Reena Gupta and Dr Sunali

Gupta, who have been allowed to mutually change their streams and have continued their studies in the respective changed streams for the last

about one year shall be allowed to continue as such.

That the order passed by the respondent-Chairman of the Board dt.23rd of Aug'06, whereby it has been communicated to the Principal,

Government Medical College, Jammu, that Dr Sunali Gupta, in view of her merit and change of stream is to be allotted Government Medical

College, Srinagar, and Dr Neeru Khajuria, who has been allotted the discipline of Gynaecology & Obstetrics is entitled to be placed in GMC,

Jammu, shall be implemented by the respondent-Principal, Government Medical College, Jammu. This would be done within a period of fifteen

days from the date, a copy of this order is made available to the said respondent by the petitioner-Dr Neeru Khajuria.

That Dr Reena Gupta, in view of her merit position and as per the observations made by the Chairman in the aforesaid order dt.23rd of Aug'06,

shall not be disturbed and allowed to pursue her studies in the changed stream in Government Medical College, Jammu.

As a result of this, interim direction dated 12th of Sept'06, passed in OWP No. 635/06 shall stand vacated. Disposed of accordingly along

with connected CMPs.