Bombay High Court

Dr. Dheeraj Padalalu And Dr. ... vs State Of Maharashtra, The ... on 15 February, 2003

Equivalent citations: 2003 (4) BomCR 560, 2003 (2) MhLj 524

Author: R Lodha

Bench: R Lodha, N Mhatre

JUDGMENT

R.M. Lodha, J.

1. The first Petitioner as well as the second Petitioner are qualified Ayurved medical practitioners. They have B.A.M.S. degree which enable them to practice in Ayurved. Both the Petitioners belong to non-teaching in service candidates. For the purposes of admission to the course of M.D./M.S. (Ayurved) for the year 2001-2002, the advertisement was issued on 18th February 2002. The Petitioners herein applied for admission to M.D./M.S. (Ayurved) course as in service candidates. The last date for submission of forms was 7th March 2002. As per the admission rules, 5% seats were reserved for non-teaching in service candidates. The qualification/eligibility for admission to M.D./M.S. (Ayurved) in respect of in service non-teaching candidates was also provided. The merit list for non-teaching staff for admission to post-graduate Ayurved course for the year 2001-2002 was published wherein first Petitioner was at Sr. No. 8, second Petitioner was at Sr. No. 18, the Respondent No. 3 was at Sr. No. 13 and Respondent No. 4 was at Sr. No. 9 in the merit list. Since the first Petitioner did not give the subject of his choice, the candidate next to him i.e. Respondent No. 4 was selected. In the merit list the candidates at Sr. Nos. 11 and 12 also did not give choice of their subjects and the next candidate being the Respondent No. 3 at Sr. No. 13 in the merit list, she was granted admission. The Petitioners by means of this Writ Petition seek directions to first and second Respondents to reconduct the admission for non-teaching in service candidates for the M.D./M.S. (Ayurved) for the educational year 2001-2002 and further direction to them to give admission to them in M.D./M.S. course.

2. In response to the Writ Petition, initially affidavit in reply was filed 2nd April, 2002 through Dr. A.B. Dharmadhikari, Dean, R.A. Podar Medical College (Ayurved), Worli, Mumbai. The case is set up by the Respondents in the said affidavit that although there was no column given separately for choice of subject/s it was expected of the candidate to mention their choice under Rule 2 Note. According to Rule 2 Note, as per the case set up by Respondents, the candidate was required to give three choices. The Petitioners did not submit their choices nor they raised any objections between the period from 18th March 2002 to 21st March 2002 and accordingly they could not be given admission. It is submitted by the Respondents that complete process of admission is over and therefore Writ Petition is liable to be dismissed. Thereafter the Respondents filed another affidavit in reply through Dr. K.R. Kohli, Dean, R.A. Podar Ayurved Medical College, Worli, Mumbai. It is reiterated in the said affidavit that Petitioners had not given their choices for subjects and accordingly their forms were liable to be rejected. As regard Respondent No. 3, it is submitted that she was found eligible in final merit list and her form was complete in all respects. In so far as Respondent No. 4 was concerned, it is submitted that initially name of Respondent No. 4 was not in the final merit list but at the time of interview she pointed out that she had applied for seat in the non-teaching Medical Officer category and not from the student category and after verification and detailed scrutiny, the Grievance Committee recommended to replace her name from student category to non-teaching Medical Officer category and place her name in the final merit list. Both, Respondent Nos. 3 and 4, according to Respondent Nos. 1 and 2, got their seats due to their merit. One more affidavit in reply was filed by K.R. Kohli, Dean, R.A. Podar Ayurved Medical College, Worli, Mumbai. It is stated therein that the admission rules of the concerned year provided that Medical Officers attached to Ayurved Colleges can opt for any of the four clinical subjects and exercising this choice was mandatory as per the Rules. These four subjects have been mentioned in the Rules because they are clinical subject having a bearing on the working of the Medical Officers working in the field. The choice is important because they could decide whether they wanted to go for Surgery, Gynaecology, ENT Ophthalmology or Medicine. The first Petitioner as well as the second Petitioner did not give their option and their forms were accordingly rejected. It is subjected that even if it be assumed that admission form of Petitioner No. 2 was valid, in the merit list her name finds place at Sr. No. 11 and she cannot get admission on the basis of merit for open category as only six seats were available in open category for non-teaching Medical Officers. As regards first Petitioner, in the reply affidavit of one Dr. G.V. Khati, Professor, R.A. Podar Medical College, Worli, Mumbai filed today, it is averred that he can be adjusted against one seat in Dravyaguna (Pharmacology) at R.A. Podar Medical College (Ayurved), Mumbai which has fallen vacant.

3. We have heard Mr. A.V. Anturkar, learned Counsel for Petitioners, at quite some length and also considered the relevant Rules and the various affidavits.

4. The thrust of argument of Mr. Anturkar is that i the application form meant for in-service non-teaching candidates, there is no column for choice of subject and therefore the candidates were not expected to give their option of subject and on that ground the Petitioners' application forms could not have been rejected. In this connection the leaned Counsel invited our attention to the relevant form. It is true that in the form there is no specific column for choice of subjects in so far as in service non-teaching candidates were concerned. This is in clear contrast to the form applicable for student candidates which provides for subject as per choice for admission. The Respondents in their replies have set up a case that in-service non-teaching candidates were required to give their options and exercising of this choice was mandatory as per the Rules but this aspect set up by Respondents is not supported by the form prescribed for in-service non-teaching candidates. How can for want of specific column in the prescribed form, the in-service non-teaching candidates were not expected to give their choices of subjects. If that was mandatory, as is sought to be contended by Respondent Nos. 1 and 2, then there ought to have been column for such purpose in the form as has been provided for student-category candidates. The perusal of the forms for student-candidates, teacher-candidates and in-service non-teaching candidates clearly show that form for each category is different. Since there was no specific column in the prescribed form for in-service non-teaching candidates providing for "name of the subject as per choice for admission", the Respondent Nos. 1 and 2 were not justified in rejecting Petitioners' forms on the ground that the said Petitioners did not state the choice of subjects. The infirmity pointed out by Respondent Nos. 1 and 2 in respondent of forms filled in by Petitioners is no infirmity, as per the forms prescribed and moreover it was creation of said Respondents because of misleading form. How can a candidate be asked to suffer because of mistake of Respondent No. 1 and 2 in not providing suitable column for choice of subjects in the form prescribed by them. To this extent, the submission of the learned Counsel for Petitioners can be accepted.

5. The question, now, arises whether the Petitioners are entitled to any relief at this stage and if yes, to what extent. It transpires from the affidavit of Dr. K.R. Kohli dated 14th August 2002 that there were twelve seats for non-teaching Medical Officers for admission to post graduate Ayurved course for the year 2001-2002. Out of the said twelve seats, six seats were for open category while the other six seats were in the reserved category for OBC, SC, ST, VJ and NTI. Both Petitioners admittedly fall in the open category candidates. The final merit list for non-teaching staff for admission to post graduate Ayurved course for 2001-2002 is thus:

Admissions To Post Graduate Ayurved Courses For 2001-2002

Final Merit List For Non Teaching Staff

Date 06/02/2002

Merit No. Form No. Comp. No. Name Category Appointment Date Date of Birth Selected Rejected Remarks

194 /D SHINDE GOVIND VITTHAI RAO OPEN 15/05/1996 08/05/1972

YES SUBJECT NOT MENTIONED

80 /D KHANDARF KIRAN BHANUDAS SC 01/04/1998 15/07/1975 YFS

166/C JADHAO SAHDEEP RUPLAL VJ 01/01/1999 02/07/1975 YES

353/C SHTRODF PRAVTN VASANTRAO OPEN 01/01/1999 10/05/1974 YES

761/A PATTL RAVINDRA PANDURANG OPEN 10/031999 16/05/1976 YES

309/A KHUDF SUNTTA SIDDHAI.ING OPEN 30/05/1999 11/06/1975 YES

791/d VAIOYA SOMESH RAHCHANORA OPEN 27/01/2000 03/08/1976 YES

349/B SUBJECT NOT MENTIONFD OPEN 01/02/2000 17/07/1976

YES SUBJECT NOT MENTIONED

NALINDE SWATI SULOCHAHA OBC 01/03/2OOO 14/01/1977 YES

10.

331/D KHANDIZOD SHIVAPAL GOPAI RAO SC 01/04/2000 13/04/1964 YES

11.

181/A TELGANE SHARADKUMAR KACHARU OBC 27/04/2000 08/04/1974

YES SUBJECT NOT MENTIONED

12.

157/B JADHAV NARAYAN SHAMRAO OPEN 27/04/2000 01/06/1975

YES SUBJECT NOT MENTIONED

13.

375/B NAGDA RUPAl KISHORE OPEN 1/12/7000 06/04/1977 YES

14.

117/C CHAVAN SURYAKANT RATANBHAl OPEN 79/12/2000 01/05/1976

YES

15.

364/D KULKARNI ANIRUDOHA SHHREFDHAR OPEN 01/01/2001 11/08/1961

YES

16.

373/D KULKARNI SACHIN SURESH OPFN 01/02/7001 07/06/1978

- :-

YES

17.

370/D EKATPURE DEEPASHRI RAJESH OBC 01/07/7001 07/05/1975 YES

18.

379/D JOSHI ASHWINT ASHOK OPEN 01/02/2001 09/09/1977

YES SUBJECT NOT MENTIONED

19.

733/A PATIL SACHINKUMAR SAHEBRAO OBC 02/06/2001 70/01/1973 YES

20. 709 1 495/B DHONF SUDHBIR SHRJDHARRAO OBC 11/07/2001 02/08/1974 YES

21.

797/B PANAGE SAHFBRAO NAMDFV NT 7 01/09/2001 01 /06/1974

YFS

22.

768/D DEVAIF SARTKA ARUN OPFN 15/12/2001 02/02/1977

YES

6. It would be seen from the aforesaid statement that candidates at merit Nos. 1, 4, 5, 6, 7, 8, 12, 13, 14, 15, 16, 18 and 22 are in the open category. The candidates at merit Nos. 1, 8, 11, 12 and 18 were rejected since subjects of choice were not mentioned in their application forms. Out of these five candidates, candidates at merit Nos. 8 and 18 are Petitioners Nos. 1 and 2 herein, the other three candidates whose application forms were rejected on the ground that they did not give choices of subjects have not challenged the action of Respondent Nos. 1 and 2. Thus, candidates at merit Nos. 1, 11 and 12 whose application forms were rejected on the ground of non-mention of choices have to be ignored. Now coming to the final merit list in the aforesaid backdrop, it would be seen that the candidates at merit Nos. 4, 5, 6 and 7 having better merit than the first Petitioner have been selected and given admission. Next in the merit as per list is first Petitioner and he was wrongly denied the admission to post graduate Ayurved course for 2001-2002. Luckily for him there is one seat available even today in Dravyaguna having fallen vacant. But the Petitioner wants the clinical seat allotted to Respondent No. 4. The question arises whether the first Petitioner can insist for the subject which has been given to the candidate next to him i.e. Nalinde Swati Sulochana (Respondent No. 4) at R.A. Podar Medical College, Mumbai or the subject of his choice. Even if we accept the contention of the learned Counsel for the first Petitioner that the first Petitioner being on merit higher to Respondent No. 4 in the final merit list but for wrongful rejection of his application would have got the subject which has been given to Respondent No. 4, at this stage we hardly find justification in disturbing the admission of Respondent No. 4 who has completed almost one year of the two year course and is due for final examination of the first year next moth. The reliance placed by the learned Counsel for Petitioners in this connection to the judgment of the Supreme Court in Kumari Madhuri Patil and Anr. v. Additional Commissioner, Tribunal Development and Ors., , particularly paragraph 17 can hardly be made applicable to the facts of the case in hand. The first Petitioner can only be accommodated against the vacant seat i.e. Dravyaguna (Pharmacology) at R.A. Podar Medical College (Ayurved), Mumbai. It is upto him to accept this seat or not. The Petitioner also cannot insist that he must be given admission on particular subject because he admittedly did not give choice of subjects while filling his admission form. In so far as the second Petitioner is concerned, obviously he being on merit No. 18 shall not be entitled to any relief as the Respondent No. 3 being higher on merit in the final merit list to him has been selected for the sixth seat available in open category.

7. We accordingly dispose of this Writ Petition by following order:

(a) The first Petitioner is entitled to admission to post graduate Ayurved course for 2001-2002 against the seat in Dravyaguna (Pharmacology) presently available at R.A. Podar Medical College (Ayurved), Mumbai. We direct Respondent Nos. 1 and 2 to issue necessary order in that regard within one week from today. If the first Petitioner does not join the course aforestated within one week from the date of issuance of such order, the said seat shall lapse.

(b) The second Petitioner is not entitled to admission to post graduate Ayurved course for 2001-2002 on the basis of low merit in the final merit list for non-teaching staff.

No costs.

Certified copy expedited.