Dr. Rita Sakharam Paravde vs Department
2011 Latest Caselaw 101 Bom

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pdp

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                 
                       CIVIL APPELLATE JURISDICTION




                                                         
                           WRIT PETITION NO. 9093 OF 2011

      Dr. Rita Sakharam Paravde                          .. Petitioner




                                                        
            Vs.

      The State of Maharashtra
      through the Public Health




                                              
      Department, Mantralaya,
      Mumbai - 400 032 and ors. ig                       .. Respondents

      Ms. Neeta Karnik for petitioner.
      Ms. S. S. Bhende, AGP for respondents.
                              
                                CORAM: B. H. MARLAPALLE &
                                       SMT.NISHITA MHATRE, JJ.

NOVEMBER 24, 2011.

ORAL JUDGMENT (PER B. H. MARLAPALLE,J.):

1. Heard Ms. Karnik, the learned counsel for the petitioner.

2. Rule.

3. Ms. Bhende, the learned AGP for respondents. The petition is heard finally.

4. This petition arises from the order passed by the Maharashtra

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Administrative Tribunal (the Tribunal for short) on 22/8/2011 thereby dismissing O.A. No. 569 of 2011 filed by the petitioner. The Tribunal has

accepted the contentions of the Presenting Officer that in view of the G.R.

dated 3/5/2011, the petitioner was not eligible for being admitted to the Post Graduate Course of MD (Gynecology) in the current academic year and that the cut-off date of 1/7/2011 was already over. The Tribunal in this

regard referred to the order passed by the Supreme Court on 30/6/2011 in I.A. No. 3 of 2011 in Writ Petition (Civil) No. 197 of 2011. However, it is pertinent to note that on 6/7/2011 the Tribunal had granted ad-interim relief

in O.A. No. 569 of 2011 and directed the respondents to give a provisional

admission to the original applicant (the present petitioner) to MD (Gynecology) in the current academic year.

5. The petitioner passed her M.B.B.S. Examination in the year 1995 and she completed the Post Graduate Diploma in Obstetrics and

Gynecology from the Grant Medical College, Mumbai in the year 2000.

She has also passed her LL.B. degree and completed the Diploma in Hospital Management. On her selection by the Maharashtra Public Service Commission (MPSC), she was appointed as Medical Officer in the pay

scale of Rs.8000-275-13500 in the Maharashtra Medical and Health Services Group-A as per the order dated 15/11/2002 and was posted at St.George Hospital, Mumbai. The Directorate of Health Services,

Government of Maharashtra, issued letters addressed to the Deputy Director of Health Services of different revenue divisions in the State of Maharashtra on 6/12/2010 inviting applications for admissions to Post Graduate Courses (MD/MS) from all eligible Medical Officers in the

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employment of the Government of Maharashtra so as to enable them to appear for the CET - February 2011. The petitioner forwarded her

application through proper channel for admission to MD (Gynecology) and

she appeared for the CET held on 6/2/2011. In the results of CET 2011 declared, her name appeared at Sr.No.103 in the merit list of DHS and at Sr.No.108 in the DMER list. The admission for MD/MS was for 57 seats

for in-service candidates and six of them were for MD (Gynecology). It is also an admitted fact that 50% of these six seats are reserved for the in- service doctors who have completed the Post Graduate Diploma (D.G.O.)

and seeking admission to MD in the very same subject. The distribution of

these seats on the basis of social reservation was as under:-

                              
      In-Service M.B.B.S. Doctors     In-Service PGDiploma holder Doctors


                Open - 2                           Open - 1
           


                VJ     -1                          VJ    - Nil
        



                ST     - Nil                       ST     - 1
                OBC - Nil                          OBC - 1

6. The MPSC had invited applications to fill in the post in the cadre of District Civil Surgeon (Health Services - Group A) in the month of March, 2010 and the petitioner had responded to the same. She was

declared successful in the selection process and vide order dated 3/3/2011 issued by the respondent no.1, she was appointed to the post of Medical Superintendent of Rural Hospital at Goveli, Taluka - Kalyan, Dist. Thane in the cadre of District Civil Surgeon with the pay scale of Rs.15600-39100

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+ Grade Pay of Rs.6600/-. She joined the said post on 13/4/2011.

7. The Government of Maharashtra issued a GR on 3/5/2011

setting out the Rules for admissions to the in-service Medical Officers to the Post Graduate Degree as well as Post Graduate Diploma courses in medical sciences and for all Group-A Medical Officers. In the counseling

rounds for admission to MD started on 28/6/2011, the verification of her mark list and other documents was completed at about 8.30 p.m. as she was at Sr.No.103/108 and for counseling she was called before the

Selection Committee at about 10 p.m. The Chairman and Members of the

Selection Committee informed her that she was not eligible for admission for the reasons that she was appointed on probation on 3/3/2011 in the

cadre of District Civil Surgeon and she was disqualified for admission to MD (Gynecology) because she was placed in the pay scale of Rs. 15600-39100 + Grade Pay of Rs.6600/- (District Civil Surgeon) and as per

the Rules published vide the GR dated 3/5/2011, the Group - A Officers

with pay scale of Rs.15600-39100 + GP of Rs.6600/- were not eligible for admission to the Post Graduate courses. Despite the fact that she was the only Post Graduate Diploma holder who had qualified for being admitted

to MD (Gynecology) against the three seats reserved for PG Diploma holder Medical Officers, she was denied admission to MD (Gynecology) by the Selection Committee and, therefore, she approached the Tribunal by

filing O.A. No. 569 of 2011.

8. It is also pertinent to note, at this stage and as was pointed out before the Tribunal in the reply filed by the respondents, that the GR dated

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3/5/2011 has been challenged in Writ Petition No. 3348 of 2011 and the operation of the said GR has been stayed by this court with further

directions that the admission process for the current academic year shall be

conducted as per the existing GRs as were applicable on the date of the CET i.e. 6/2/2011. The Tribunal by its order dated 6/7/2011 passed in O.A. No. 569 of 2011 granted ad-interim relief in terms of prayer clause 11 (b)

which reads as under:-

"11(b) To direct the respondents to forthwith consider the

applicant for provisional admission to the post graduate

degree course in the subject of Obstetrics and Gynecology as in service medical officer."

The Tribunal also quoted in its order dated 6/7/2011 the order passed by this court in Writ Petition No. 3348 of 2011 on 5/5/2011, which reads as

under:-

" Rule.

Heard learned counsel on the question of interim relief.

1. After hearing learned counsel for the parties, we direct by way of interim relief that since the common entrance test for admission to post graduate medial courses was held on 6th

February, 2011 for the in-service candidates for the academic year 2011-12, the respondents shall apply the rules which were in force on the date of holding the Common Entrance Test (C.E.T.)."

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9. However, when O.A. No. 569 of 2011 came up before the

Tribunal on the next returnable date i.e. on 20/7/2011 there was no

variation in the interim order and finally by the impugned order dated 22/8/2011, the Tribunal dismissed the O.A. We deem it appropriate to reproduce para nos.4 to 6 of the impugned order dated 22/8/2011 passed by

the Tribunal:-

"4. Shri Rajpurohit, the learned Presenting Officer

appearing on behalf of the Applicant contended that the

Applicant was allowed to appear for the Common Entrance Test, which was conducted on 6th February, 2011, at that time,

she was eligible. However, she was subsequently promoted to the aforesaid Class-I post n Group "A" Civil Surgeon cadre on 13th April, 2011 with the above mentioned pay scale of Rs.

15600-39100 + Grade pay of Rs.6600/-. Shri Rajpurohit's

main contention that in view of the said G.R. dated 3rd May, 2011, the Applicant was not eligible and when the Applicant's case was considered at the time of counseling on 28th and 29th

June, 2011, it was found that she is not eligible.

5. In any event, Shri Rajpurohit pointed out that even if the

Applicant were to be eligible, she cannot be admitted in Post Gradutate Medical Degree Examination as various orders passed by Hon'ble Supreme Court, the last cut-off date fixed for such admission to Post Graduate Medical Degree Course is

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30th June of the relevant year. In that behalf Shri Rajpurohit referred to an order of the Hon'ble Supreme Court dated 30th

June, 2011 (I.A. No.3 in Writ Petition (Civil) No(s).197 of

2011) wherein the Hon'ble Supreme Court has also reiterated that the time for conducting counseling in order to complete the admission process was to be completed by 30th June, 2011.

However, in that case, for the reasons mentioned therein, the date was extended by one day, by the Hon'ble Supreme Court to 1st July, 2011.

After hearing both the learned Counsel for the Applicant and the learned Presenting Officer for the Respondents, even

though the Applicant might be eligible for being admitted, however, in view of very categorical directions of the Hon'ble Supreme Court in various matters fixing the last cut-off date

for admission to Post Graduate Medical Degree Course as 30th

June, 2011, we are not granting any relief to the Applicant and unfortunately, the Applicant approached this Tribunal only on 4th July, 2011 subsequent to the last date fixed by the Hon'ble

Supreme Court being 30th June, 2011. Under the facts and circumstances, the Original Application stands dismissed."

10. Ms. Bhende, the learned AGP referred to the Information Brochure & Application Form for PGM - CET 2011 as published by respondent no.4 and submitted that after the cut-off date fixed for admission to MD/MS the Tribunal or the High Court cannot direct a

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candidate to be admitted to any such medical course as per the law laid down by the Supreme Court and in the instant case the last date for

admission was 1/7/2011. The interim relief granted by the Tribunal was on

6/7/2011 and even otherwise the petitioner was not eligible on her promotion to the cadre of District Civil Surgeon for admission to the said course. Ms. Bhende fairly conceded that the Rules for admission

published in the GR dated 3/5/2011 shall be prospective and would not be applicable to the admission as per the CET - 2011. Even otherwise, as noted earlier, the GR dated 3/5/2011 has been stayed by this court in Writ

Petition No. 3348 of 2011 and, therefore, the Tribunal seriously erred in

relying upon the same.

11. At the out set, we must note that the admissions pursuant to CET - 2011 would be governed by the Rules as applicable on 6/2/2011.

The petitioner having been appointed on probation as per the order dated

3/3/2011 and in the post of District Civil Surgeon would not disqualify for being eligible for admission to post graduate courses as an in-service candidate because she had joined the Government service initially in the

year 2000 as per the order dated 15/11/2002 and by selection through the MPSC. She had put in more than seven years of Government service when she appeared for the CET - 2011. It is also not in dispute that Medical

Officer - Group A has two different pay scales as per the 5th Pay Commission recommendations and both of them have been revised as per the 6th Pay Commission recommendations. These pay scales are reproduced as under:-

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5th Pay Commission 6th Pay Commission

(i) Rs.8000-275-13500 15600-39100+GP Rs.5400

(ii) Rs.10,000-15200 15600-39000+GP Rs.6600

12. The contentions of the respondents that even without the GR

dated 3/5/2011 the Medical Officers/Civil Surgeons appointed in the pay scale of Rs.10,000-15200 or Rs.15600-39000+GP Rs.6600/- is not

supported from the record and, in fact, the letter dated 31/10/2009 addressed by the respondent no.3 to all the Deputy Directors inviting applications for CET-2010 specifically stated as under:-

;kLro vki.kkal dGfo.;kr ;srs dh] mijksDr izek.ks ik= Bjr vlysY;k o lkekbZd izos'k ijh{ksl ¼ihth,e & lhbZVh½ clw

bfPN.kk&;k oS|dh; vf/kdkjh & xV v ¼osruJs.kh #i;s & 8]000 & 13]500 o 10]000 & 15]200½ ;aakps vtZ lkscr tksMysY;k foghr ueqU;kr ;k lapkyuky;kl fnukad 25 uksOgsacj 2009 i;Zar

[kkl nwrkekQZr lknj djkos- mf'kjk izkIr >kysY;k vtkZpk fopkj dsyk tk.kkj ukgh-

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Similarly, the letter dated 6/12/2010 addressed by the respondent no.3 to all the Deputy Directors, Health Services, inviting the

applications for CET-2011 of in-service Medical Officers stated thus about

the eligibility:-

mijksDr izek.ks ik= Bjr vlysY;k o lekbZd izos'k ifj{ksl

¼ihth,e & lhbZVh 2011½ clw bfPN.kk&;k oS|dh; vf/kdkjh xV&v] ¼osruJs.kh #i;s & 15600 & 39100½ ;aakps vtZ lkscr tksMysY;k foghr uewU;kr ;k lapkyuky;kl foukfoyac

[email protected]@2010 i;Zar lacaf/kr fyihdkekQZr lknj djkos- Åf'kjk

izkIr >kysY;k vtkZpk fopkj dsyk tk.kkj ukgh ;kph d`i;k uksan ?;koh-

The letter dated 6/12/2010 left it open for all the Medical Officers in the pay scale of Rs.15600-39100 to appear for the CET - 2011

and did not make a distinction between the officers who are drawing the

Grade Pay of Rs.5400/- or Rs.6600/-. Whereas the earlier letter dated 31/10/2009 issued by the respondent no.3 specifically stated that the Group A Officers in both the pay scales i.e. Rs.8000-13500 and Rs.10,000-15200

were eligible to apply for CET-2010. Thus, tested on any ground the contentions of the respondents that the petitioner was not eligible for admission to MD (Gynecology) is unsustainable and the Selection

Committee wrongly held her ineligible on 28/6/2011 when she appeared before it.

13. The petitioner approached the Tribunal at the earliest possible

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by filing O.A. No. 569 of 2011 i.e. on 4/7/2011. It is also to be noted that the petitioner was called for the second round of counseling on 29/6/2011

but was again informed that she was not eligible for admission to MD

(Gynecology) for the very same reason i.e. the appointment on probation in the next higher grade. This appointment of probation in the next higher grade is no disqualification as the same is by way of promotion. Being on

probation would be a disqualification only if appointed by nomination.

14. Ms. Bhende the learned AGP pointed out that all the six seats

for MD (Gynecology) for the in-service candidates have been filled up and

as at present there is no vacancy against which the petitioner could be admitted. She also urged that even otherwise the cut-off date was 1/7/2011

and beyond the said date, the Tribunal could not have directed the petitioner to be admitted to MD (Gynecology). The six seats during the current academic year for MD (Gynecology) have been distributed as

under:-

                (a) Grant Medical College, Mumbai                      - 1
                (b) Government Medical College, Solapur                - 1





                (c) Government Medical College, Nagpur                 - 1
                (d) Government Medical College, Aurangabad             - 1
                (e) Government Medical College, Nanded                 - 1

(f) Indira Gandhi Govt. Medical College, Nagpur - 1

The admitted candidates to the above mentioned six seats are not before us. But, it is clear from the record that none of them is a Post Graduate Diploma

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holder. Thus against the three seats reserved for in-service doctors, holding the Post Graduate Diploma in Gynecology (DGO), no one has been

admitted and the petitioner was the only candidate qualified to be admitted

against the said 50% reservation. Ms. Bhende, the learned AGP, relied upon the following decisions of the Supreme Court in support of her contentions that after the cut-off date of 1/7/2011, the petitioner cannot be directed to be

admitted to MD (Gynecology):-

(a) State of Uttar Pradesh and ors. vs. Dr. Anupam Gupta and

ors. [1993 Supp (1) SCC 594]

(b) Mridul Dhar (Minor) and anr. vs. Union of India and ors.

[(2005) 2 SCC 65]

Ms. Bhende also relied upon the subsequent order passed by the Supreme Court in Writ Petition (Civil) No. 197 of 2011 on 13/5/2011 in

support of her contention that the cut-off date was 30/6/2011 and after the

said date no candidate could be directed to be admitted by this Court either to the M.B.B.S. Course or the MD Course.

15. It is not in dispute that for doctors with only M.B.B.S. Qualifications, the MD course is of 3 years whereas for the doctors with the Post Graduate Diploma in the respective specialized course, the MD

Course is of two years duration. There is nothing on record to indicate that a minimum attendance in theory classes is prescribed in each year before the admitted candidate to MD is allowed to appear for the annual examination. The first interim order passed in favour of the petitioner was on 6/7/2011

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and with the cut-off date - 1/7/2011, it could not be said that the admission was belated so as to affect the specialized study in MD. All the six seats for

MD (Gynecology) have been filled in is also a fact. However, the illegality

committed by the respondents and more particularly the Selection Committee in denying the petitioner admission to MD (Gynecology) continued from 28/6/2011. We cannot cancel the admission of any of the

admitted candidates and more so when none of them is before us. We have also noted that none of the six candidates are the doctors with Post Graduate Diploma qualification (PDGM) i.e. the candidates admitted against 50%

quota for Post Graduate Diploma holders. Hence, the only way out is to

direct the respondents to create an additional post in MD (Gynecology) over and above the six posts already filled in. The Government of Maharashtra

has more than 10 Medical Colleges where the Post Graduate Courses are available and in the following Medical Colleges no in-service Medical Officers has been admitted to MD (Gynecology):-

(a) B.J. Medical College, Pune

(b) Government Medical College, Miraj

(c) Shri Vasantrao Naik Government Medical College,

Yavatmal.

(d) Swami Ramanand Teerth Rural Medical College, Ambajogai.

(e) Government Medical College, Latur

16. In the case of Dolly Chhanda vs. Chairman, JEE and ors. [(2005) 9 SCC 779], which has been relied upon by Ms. Karnik, the learned

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counsel for the petitioner, a three Judge Bench of the Supreme Court considered the challenge to the Judgment and Order dated 31/10/2003 of the

High Court of Orissa and dealing with the admission to M.B.B.S. Course

pursuant to the JEE 2003. Though the admissions were finalized even before the impugned order dated 31/10/2003 was passed by the High Court, the Supreme Court directed, while setting aside the order dated 31/10/2003,

to give admission to the appellant in any one of the State Medical Colleges forthwith. This order of the Supreme Court was dated 5/10/2004 and it noted that those who had secured lower rank than the appellant were already

admitted and the view taken by the authorities in denying admission to the

appellant was wholly unjust and illegal. In para 10 of its judgment, the Apex Court noted,

"10. The appellant had qualified in JEE-2003 but the said academic year is already over. But for this situation, the fault

lies with the respondents, who adopted a highly technical and

rigid attitude, and not with the appellant. We are, therefore, of the opinion that the appellant should be given admission in MBBS course in any of the State medical colleges in the current

academic year."

These observations made by the Apex Court in Dolly

Chhanda's case (Supra) are applicable in the instant case with equal force.

17. We are, therefore, satisfied that on no count the petitioner could be denied admission to MD (Gynecology) in the current academic year and

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the order passed by the Tribunal has resulted in grave injustice to her. It would be necessary for the respondents to seek post facto approval from the

Medical Council of India for an additional seat over and above 57 seats for

MD/MS sanctioned by the said body for the current academic year and we are sure that the MCI will consider the said proposal in the totality of the circumstances elaborately set out by us in this judgment.

18. Hence, this petition succeeds. The impugned order dated 22/8/2011 passed by the Tribunal in O.A. No. 569 of 2011 is hereby quashed

and set aside. We direct the respondents to admit the petitioner to MD

(Gynecology) in the current academic year in any of the following three colleges:

                (a)    B. J. Medical College, Pune
                (b)    Government Medical Collge, Miraj and
            


                (c)    Swami Ramanand Teerth Rural Medical College,
         



                       Ambajogai.

The admission shall be granted to her within one week from today. The

respondents shall forward a proposal to the MCI for seeking approval to this additional seat in MD (Gynecology) over and above the 57 seats already allotted/approved for MD/MS for the current academic year 2011-2012. The

respondents will also forward the petitioner's admission proposal to the University concerned i.e. Maharashtra Health University.

19. Original Application No. 569 of 2011 stands allowed in terms

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of the above directions and Rules is made absolute accordingly. No costs.

20. In case the MCI rejects the proposal for creation of an

additional seat for MD (Gynecology), liberty to approach this court.

21. At this stage, Ms. Bhende, the learned AGP, submitted an oral

application for stay to the operation of this order. Ms. Karnik has opposed the said oral application. The application is rejected.

                                            
    (SMT.NISHITA MHATRE, J.)
                              ig                      (B. H. MARLAPALLE, J.)