P.G. Surya represented through her father and natural Guardian of Dr. P.R. Ganesh, M.D., D.B.M. vs The State of Tamil Nadu and Others

T. Raja, J.—By consent, the main writ petition itself is taken up for final disposal.

The petitioner viz., P.G. Surya, represented through her father and natural guardian of Dr. P.R. Ganesh, M.D., D.B.M., has filed the present writ petition seeking issuance of writ of mandamus, by directing the respondents 1 and 2, The Secretary, Health and Family Welfare Department and the Secretary, Selection Committee, Directorate of Medical Education, to cancel the admission granted for the students who are qualified persons of some other profession namely M.B.B.S., B.Ds., B. Pharmacy, B.Sc., (Nursing), BPT, BOT, BSMS, BSMS, Engineering, Law, Agriculture, Veterinary etc., or to those who are studying other professional courses, to reconsider the rank allotted to the petitioner''s daughter, allot a seat for the first year MBBS course either in the government college or in the self finance college for the academic year 2010-2011.

Mr. K. Jeganathan, the learned Counsel appearing for the petitioner has made two fold submissions before this Court for allowing the writ petition. Firstly, the respondents 1 and 2 have started initiating admission process without considering the ratio laid down by the Division Bench of this Court reported in 2007 (4) CTC 553 (C. Maria Arul Rex and 3 Ors. v. The State of Tamil Nadu, rep. by its Secretary, Health & Family Welfare Department), wherein, this Court, on considering the aspect of the disqualification of the students, who have got admissions in Medical, Dental course, directed to be disqualify them for getting fresh admission into the Medical Colleges for M.B.B.S. Though the S.L.P has been filed, challenging the correctness of the judgment passed by this Court mentioned above, the Honourable Apex Court, by an order dated 28.04.2008, dismissed the petitions for Special Leave to Appeal (Civil) Nos. 13126 - 13130 of 2007 and the order of the Apex Court is extracted for better perusal as follows:

Learned Counsel for the petitioner submits that the matter has become infructuous. Accordingly, the SLP is dismissed as having become infructuous.

By drawing the attention of this Court to the order passed by the Apex Court, the learned Counsel appearing for the petitioner would pray this Court to allow this petition as there is no case available to the respondents 1 and 2 for further consideration in this petition.

Secondly, he would further state that the petitioner applied for admission on the basis of the prospectus for the year 2010-2011, issued by the Selection Committee, Directorate of Medical Education, in which, at page No. 12, column No. 15, it has been mentioned that the government orders issued from time to time pertaining to any of the matters contained in the prospectus should be read as part and parcel of the prospectus and such terms and conditions in the Government Order are deemed to have been incorporated in the prospectus and the Government has also issued G.O.Ms. No. 184 Higher Education (J2 Department) dated 09.06.2005 referring the G.O.Ms. No. 657 Educational Department dated 29.05.1984 in which the Government abolished the common entrance test and discontinuation of improvement examination and some other rules. Subsequently, in the year 2006, the Government issued a circular dated 06.06.2006, wherein, the qualification and the eligibility for the candidates had been specifically mentioned stating that the candidates who have passed H.Sc., in the vocational stream and those candidates who are presently undergoing any of the professional courses such as M.B.B.S., B.D.S., B. Pharmacy, B.Sc., (Nursing), B.P.T., B.O.T., B.S.M.S., B.H.M.S., Engineering, Law, Agriculture, Veterinary etc., and those candidates, who have discontinued on any grounds, the professional courses mentioned, leading to waste of a seat, are not eligible to apply for Medical, Dental Courses. But, unfortunately, the government omitted to incorporate the above government order and the instructions given during the year 2006-2007 in the present prospectus. Therefore, when there is no specific mention of the disqualification for the candidates who are pursuing their studies or who have completed other professional courses to apply for admission for M.B.B.S Course, many of the students, who are pursuing their professional courses are also given admission, as a result, the petitioner was denied admission to the M.B.B.S., Course. It was specifically mentioned in her affidavit that one Rooban, who completed his +2 during the year 2003, that is about 7 years ago had joined B.E. Chemical Engineering Course and obtained B.E. Degree, yet has applied for admission to Medical College and appeared for counseling before the Selection Committee for 2010-2011, and got admission, therefore, the said admission given to Rooban should not have been granted to him in view of the Division Bench judgment of this Court cited supra. Since the respondents 1 and 2 have granted admission, to disqualified candidates as against the judgment of the Division Bench of this Court, the petitioner is well within the prayer for issuance of the writ of mandamus to the respondent 1 and 2 to reconsider her rank and allot a seat for 1st year M.B.B.S. Course. On this basis, the learned Counsel appearing for the petitioner prayed for allowing the petition by issuing a writ of mandamus.

Per contra, the learned Government Advocate appearing for the respondents 1 and 2 heavily submitted that the present writ petition has to be dismissed since the petitioner has not challenged the prospectus issued for the year 2010-2011. But so far as the main ground taken by the learned Counsel appearing for the petitioner is concerned, in respect of the Division Bench decision cited supra, he has no argument to support the case of the respondents 1 and 2.

Even according to the learned Government Advocate, it has been categorically mentioned in paragraph No. 13 of the counter affidavit that the present writ petition deserves to be dismissed for the simple reason that the Supreme Court has already admitted the S.L.P., challenging the correctness of the judgment of the Division Bench of this Court and therefore, the entire case made out in the counter for dismissing the writ petition filed by the petitioner is being only on the basis of the pendency of the SLP before the Honourable Supreme Court. The learned Government Advocate was again by repeating the averments made in the counter, prayed for dismissing the writ petition on the ground that the petitioner failed to challenge the correctness of the prospectus issued for the year 2010-2011.

Heard the parties on either side.

The issue raised by the petitioner is that whether the candidates, who have secured admission in other professional courses like M.B.B.S., Engineering, B.D.S., Law, Agricultural, B.Sc., (Nursing) etc. should be disqualified, so that the admission to the present year 2010-2011 could be given for the genuine candidates to pursue their M.B.B.S., Course. Precisely, the same issue has been squarely covered by the Division Bench judgment of this Court. It is also relevant to mention that even though the respondents 1 and 2 did not challenge the correctness of the judgment of the decision of the Division Bench of this Court, only a private individual went in appeal before the Honourable Apex Court, by filing petitions for Special Leave to Appeal (Civil) Nos. 13126 - 13130 of 2007, in any event, the respondents 1 and 2 are bound by the decision of this Court. The Honourable Apex Court, by considering the matter, though granted stay of the operation of the decision of the Division Bench of this Court, subsequently, by an order dated 28.04.2008 dismissed the above mentioned petitions on the ground that the matter has become infructuous, since the S.L.Ps, have been filed, challenging the correctness of the judgment of the Division Bench of this Court cited supra came to be dismissed on the ground that their challenge turned to be infructuous nothing survives for the respondents to resist the prayer, therefore, this Court has to allow the present writ petition by issuing direction to the respondents.

Secondly, though the Division Bench, in its judgment mentioned supra has held that the students, who have already applied and admitted in different professional courses in previous academic year, cannot be allowed to compete with the fresh come outs for admission into MBBS and BDS courses for the current academic year. Yet again, on the ground of stay granted by the Supreme Court in SLP Nos. 13126 - 13130 of 2007 against this judgment, once again included Clause (6) stating that the candidates who are presently undergoing any of the professional courses such as MBBS, BDS, B. Pharmacy, etc., are ineligible to apply to Medical/Dental Courses. In spite of the Clause (6) in the prospectus, the respondents 1 and 2 have not applied to the judgment of this Court against the candidates, who are undergoing professional courses such as MBBS, BDS, etc., and also those candidates, who have discontinued on any grounds, the professional courses mentioned which will ultimately a waste of seat.

At this juncture, it is relevant to refer para 13 of the counter filed by the respondent which is given as under:

It is submitted that the contention of the petitioner that the candidates undergoing professional courses should be prevented for admission to MBBS/BDS courses 2010-2011 session is not acceptable in view of the stay order of Hon''ble Supreme Court is in force. The petitioner should have challenged Clauses at the time of notification itself and not after publication of merit list to her advantage.

In view of the dismissal of the SLPs by the Supreme Court, the admission granted to the post of medical and dental courses to those candidates, who are presently undergoing any of the professional courses, which are against the judgment of this Court, in view of paragraphs 8, 9 and 10 which are given as under:

We find considerable substance in the submissions of the learned Counsel appearing for the petitioners. In our view, the students who have already applied and admitted in different professional courses in previous academic years cannot be allowed to compete with the fresh come outs for admission into MBBS and BDS courses for the current academic year. It is well known that the Government is spending lakhs of rupees for these students and if a student leaves the course in the entire amount becomes waste. The provision in the previous year prospectuses disqualifying the candidates who have already taken admission in professional courses is really in public interest in the sense that it prevents public money get wasted. By permitting such students to discontinue their studies in midway, the students already admitted not only causes loss to the public exchequer but also deprives other meritorious candidates for admission to the said courses. Moreover, under the admission rules for previous academic years choice exercised was considered as final and no change was thereafter could be entertained. Even the prospectus for the year 2007-2008 provides that if the candidate discontinues the course after six months of joining in Government Medical/Dental Colleges he/she is not eligible to apply for MBBS/BDS Courses in Government Colleges, for two years from the date of discontinuance. In view of these rules, it is clear that no candidate who had exercised a choice and accepted a seat allotted to him in the previous year cannot change his course or college. On this account also the students belonging to the above said courses cannot be held to be eligible for admission to the MBBS and BDS courses for the academic year 2007-2008. They cannot be permitted to do indirectly what they could not have done directly. It is also brought to our notice that even for the academic year 2007-2008 Clause 6(ii) has been continued in respect of all the professional courses except MBBS and BDS courses. On consideration of the entire matter we are of the opinion that it is impossible to sustain the decision of the respondents to delete various professional courses other than MBBS and BDS courses from Clause 6(a)(ii) of the prospectus for the academic year 2007-2008.

The learned Advocate General appearing for the respondents in all fairness and on instructions submitted that it is not possible to support the impugned Clause 76(a)(ii) of the prospectus for the academic year 2007-2008 and the following categories of candidates will not be eligible to apply for MBBS and BDS course.

The candidates who are presently undergoing any of the professional courses such as MBBS, BDS, B. Pharmacy, B.Sc., (Nursing), BPT, BOT, BSMS, BHMS, Engineering, Law, Agriculture, Veterinary etc., and those candidates who have discontinued on any grounds, the professional courses mentioned, leading to waste of a seat.

In the light of the statement made by the learned Advocate General, the Writ Petition stand disposed of. In view of the undertaking, it is made clear that the Admission Committee will enforce the aforesaid statement scrupulously for this academic year 2007-2008 and the admissions will be granted accordingly.

In view of the above observations, the writ petition is disposed off with a direction to the respondent 2 to reconsider the rank of the petitioner and allot a seat for the 1st year M.B.B.S., Course in any of the Government College or in the self finance college for the academic year 2010-2011 for the petitioner alone, provided petitioner''s daughter comes within the zone of consideration. No costs. Consequently, connected miscellaneous petition is closed.