Dr. Pramod Manohar Rewale vs The State Of Maharashtra, Medical ...
2002 Latest Caselaw 1267 Bom

JUDGMENT

R.K. Batta, J.

1. The petitioner seeks to challenge registration and admission of respondent No. 5, Dr. V.N. Rathod in M.S. (Surgery) seat in V.J. category advertised by advertisement dated 08.10.1999 and further directions to the respondent Nos. 1 to 3 to consider the case of the petitioner for grant of admission to him in M.S. (Surgery) in the said seat in V.J. category. By way of amendment, the petitioner has alternatively sought compensation of Rs. 12,00,000/- (rupees twelve lakhs only) for violation of the fundamental rights of the petitioner under Articles 14 and 21 of the Constitution of India, by not giving the admission to the petitioner in total violation of the rules for admission. The petitioner also prayed for interim order for reservation of one seat in M.S. (Surgery) for the petitioner. Rule was issued in the matter, but no interim relief was granted.

2. We have heard learned Advocate for the petitioner and learned A.G.P. for respondent Nos. 1 to 4. Non one appeared on behalf of the respondent No. 5 though he was served.

3. Learned Advocate for the petitioner submitted before us that the respondent No. 5 had obtained admission in M.D. (Anaesthesia) in July 1999 and after the vacancy for M.S. (Surgery) was advertised, he resigned his registration in M.D. (Anaesthesia) and opted for M.S. (Surgery). According to her, respondent No. 5 was admitted to M.S. (Surgery) course in total violation of rules applicable in that behalf inasmuch as the petitioner had not given three months notice as required thereunder. In this connection, our attention was drawn to Rule 6 and Rule 10 of the Rules for Admission to Post Graduate Courses formulated under Government Resolution dated 24.10.1991 which read as under :-

"6. A candidate selected for registration will not in ordinary course be allowed to change his registration from subject to another. A candidate who desires to change registration from one subject to another will have to give three months notice before the commencement of the next terms to enable notification of his vacancy for others. Such application will automatically terminate the existing registration and it will be treated as a fresh application for registration in new subject, such application shall bear the signature of the teacher concerned with termination and should be made after full consideration as they are irrevocable once lodged with the Deans Office.

Registration by itself has no special priority either in registration or in posts."

"10. The candidate who desires to discontinue his course has to give notice three months before commencement of next terms and full fees for next three months thereafter will be charged in absence of such notice, if certificate of terms put in is required."

4. In view of the above, it was urged by her that the admission of the petitioner to M.S. (Surgery) is required to be cancelled.

5. Learned A.G.P., on the other hand, submitted before us that the respondent No. 5 was more meritorious than the petitioner and that by now the respondent No. 5 has already completed the course and in the circumstances, no relief can be granted to the petitioner.

6. The petitioner was initially admitted in M.D. (Anesthesia) in July 1999. On 10.09.1999, respondent No. 3 issued notification intimating filling of A.I.E.E. surrendered seats and that vacant seats would be notified on 07.10.1999 for inviting applications. In said notification, it was also stated that those students who are registered for various subjects and want to change their subjects for registration should resign the present registration on or before 20.09.1999. One post under the said notification in V.J. category for M.S. (Surgery) was in Government Medical College, Nagpur. On 08.10.1999, respondent No. 3 advertised for admission against A.I.E.E. surrendered and vacant posts in G.M.C., Nagpur in M.S. (Surgery), one seat was reserved for V.J. category. The petitioner applied for M.S.(Surgery) seat in V.J. category and surrendered his registration in M.D. (Anesthesia). Ultimately, on the basis of merit, respondent No. 5 was selected.

7. Learned Advocate for the petitioner has urged before us that Rules 6 and 10 of the Rules quoted above are mandatory and in this connection our attention has been drawn to the Division Bench judgment of this Court in Ganpat Mashnajirao Wadekar v. State of Maharashtra and others (reported in 1998 (1) Mh.L.J.,

213) wherein it has been held that the said provisions are mandatory in nature. In this connection, we may refer to the case of Dr. Chandrashekhar Hood .v. State (Writ Petition No. 2774 of 1999) decided by Division Bench of this Court on 19.08.1999 wherein after considering Ganpat Wadekar v. State of Maharashtra (supra) the doctorine of Lex non cogix ad impossibilis (the law does not compel the doing of impossiblity) has been invoked with reference to Rule 6 of Government Resolution dated 24.10.1991 and the admission of the petitioner therein who had already registered himself for M.D. Biochemistry in March 1999 to the seat for M.S. (Surgery) was ordered on the basis of being more meritorious than the respondent No. 6 who had already been admitted to the seat of M.S. (Surgery).

8. In the petition under consideration, we have to bear in mind that the vacancy of M.S. (Surgery) was notified on 10.09.1999 which, it appears, did not give requisite time for giving three months notice and that is why the students who were registered for various subjects and wanted to change their subjects for registration were asked to resign the present registration on or before 20.09.1999. It is in pursuance of this notification that respondent No. 5 had resigned his present registration in order to seek registration for M.S. (Surgery). It is not disputed that the respondent No. 5 was more meritorious than the petitioner. We have also to bear in mind that no interim relief was granted to the petitioner and respondent No. 5 has in due course completed M.S. (Surgery) course. It appears that only thing which remains is that he has to appear for his final examination. It may also be mentioned here that the petitioner had applied for post graduate registration in January 2001 term in the subject of M.S. (Surgery) and M.D. (Pathelogy) for which he was considered but could not be selected in any of the subject on merit. The petitioners registration was also rejected on the ground that he had applied as in-service candidate and had not forwarded his application through the appropriate authority and had not resigned from the post of medical officer.

9. In the peculiar facts and circumstances of the case, we are not inclined to interfere with the admission of respondent No. 5 to M.S. (Surgery) course. In the facts and circumstances, we are also not inclined to grant any alternative relief of compensation sought by the petitioner which does not even disclose the basis and data on which the said relief is claimed. Accordingly, the writ petition is hereby dismissed. Rule is accordingly discharged with no order as to costs.