Dr. Anup Razdan vs Union Of India (Uoi) And Ors.
1999 Latest Caselaw 438 Del

JUDGMENT

K.S. Gupta, J.

1. Aggrieved by the order dated 15th July, 1998 of learned Single Judge dismissing the writ petition, the petitioner/appellant has filed this appeal.

2. Petition under Article 226 of the Constitution of India was filed, inter-alia, alleging that the petitioner is a Dental surgeon in regular service with the Jammu & Kashmir Government. There are four seats in the course of Masters of Dental Surgery (MDS) in the specialities of (1) Orthodontics (2) Oral Surgery (3) Operative Dentistry, and (4) Prosthodontics in King George Medical College, Lucknow which had been offered by the State of Uttar Pradesh to the Central Government for being filled up by candidates from the central pool. Pursuant to a letter dated 8th/15th April, 1997 issued by the Ministry of Health, Government of India to the Health Secretaries of the States/UTs, which did not have the facilities for MDS course, asking to nominate one candidate each from their States/UTs for the course, the petitioner forwarded his bio-data which was duly recommended by the Government of Jammu & Kashmir, Health and Medical Education Department to the Ministry of Health & Family Welfare, Government of India. Last date of 30th April, 1997 for receipt of nominations was later on extended to 15th June, 1997. On 22nd October, 1997 respondent No. 1 issued a letter nominating Dr. Radhika Chopra (respondent No. 3), Dr. Rohit Jain (respondent No. 4), Dr. (Mrs.) A. Balmani (respondent No. 5) and Dr. (Mrs.) Neena Baria (respondent No. 6) for the said course.

3. It is stated that as per the criteria stipulated in the letter dated 8th/15th April, 1997 seats to the MDS course were only to be filled up by the nominated candidates of the notified States/UTs where facilities for the course did not exist. Despite that, admission was given to respondent No. 3 who had been treated as a sponsored candidate of AIIMS, which itself has got the Post Graduate Dental Education facility. Respondent No. 3 was not an "in-service" candidate as stipulated in the said letter dated 8th/15th April, 1997 at the time of nomination and further that her candidature had been recommended by the letter dated 29th July, 1997 by the Registrar, AIIMS much after the expiry of the last date as fixed for receiving nominations.

4. It is also stated that respondent No. 4 could not have been nominated to the said course as he was not a regular "in-service" candidate but was only working on ad-hoc basis as Demonstrator (Dental) with Maulana Azad Medical College, New Delhi. Application for nomination was made by him on 18th June, 1997 after the expiry of the last dale for receipt of nominations. Furthermore, as Post Graduate Dental facilities already exist in Delhi, respondent No. 4 could not have been nominated to the said course by the Delhi Government. It is alleged that as the States/UTs were required to nominate one candidate each only from their respective States/UTs, the nominations of respondents 3 & 4 from Delhi were contrary to the guidelines as contained in the aforesaid letter dated 8th/15 April, 1997.

5. At the time of issuing show cause notices to respondents 1 to 5 in the appeal on 7th September, 1998, the name of respondent No. 6 was ordered to be deleted from the array of the parties when it was conceded that she was an eligible candidate. Case against respondent No. 5 was also not pressed during the course of arguments on behalf of the petitioner/appellant and, therefore, the averments made in the petition qua both these respondents need not be referred. Prayer made in the petition is that by issue of appropriate writ and directions, nominations of respondents 3 to 6 for the MDS course against the seats reserved for Central Government nominees at King George Medical College, Lucknow for the academic year 1995-96 be quashed and respondents 1 & 2 be directed to frame suitable guidelines/criteria in the matter.

6. In the reply filed on behalf of respondent No. 1 on the affidavit of Vineet Chawdhry, Director, Medical Education, Ministry of Health and Family Welfare, it is admitted that respondent No. 1 maintains a central pool for 4 MDS seats contributed by the Government of Uttar Pradesh in King George Medical College, Lucknow. In each academic year the States/UTs which are not having MDS teaching facility, are requested to sponsor one candidate. Nomination was invited from the Government of NCT of Delhi as there is no institution under its control having MDS teaching facility. AIIMS, New Delhi, which is offering MDS course, is a central institution where admissions are made on all India basis. Nomination of the candidates and allotment of speciality are made in order of merit and preference) by respondent No. 1. Only one candidate from each of the States/UTs is nominated. An exception to this practice was, however, made in the year 1993-94 when it was decided to expand the scope of the scheme with the approval of the them Health Minister to include the candidates working in Central/State Governments or Centrally/State funded institutions. The final selection was made by a committee consisting of the then D.G.H.S., HOD of Dentistry, AIIMS and President, D.C.I. Among the candidates recommended by the committee, one was from AIIMS, New Delhi. Letter inviting nomination from the Government of NCT of Delhi was issued on 22nd April, 1997 as Delhi was an eligible State.

7. It is further stated that name of respondent No. 4 was sponsored by Government of NCT of Delhi. It was decided by the competent authority to consider all the applications received as delay in submitting applications could have occurred due to the circumstances beyond the control of the candidates. Name of respondent No. 3 was considered as there was precedent of selection of a candidate from AIIMS, New Delhi in 1993-94. Respondents 3 & 4 for the said course were nominated by respondent No. 1 on the basis of their merit.

8. Respondent No. 3 in her reply has alleged that she completed BDS course in 1996 from V.S. Dental College & Hospital, Bangalore, which is affiliated to the Bangalore University. She obtained over all 67.08% marks. After completing internship from the said College, she applied in AIIMS, New Delhi for Junior Residency (non-academic) in the Department of Dental Surgery. She was, however, appointed as a trainee in the Dental Department w.e.f. 9th January, 1997 and she continued as trainee till 8th July, 1997. While undergoing training, she made a representation dated 8th May, 1997, which was duly forwarded by the Registrar, AIIMS, New Delhi for being nominated for MDS course either in Orthodontics or Prosthodontics out of the central pool, to the Minister of State for Health & Family Welfare. It is further stated that in the meanwhile, she was appointed as a first year Junior Resident (Non-academic) in Dental Surgery on regular basis and her appointment continued upto 31st December, 1997. She again made representation dated 29th July, 1997. It was forwarded to the Minister of State for Health & Family Welfare by the Registrar, AIIMS, in continuation of the earlier representation dated 8th May, 1997 for nomination to MDS course out of the central pool. She being most meritorious, out of the candidates who had applied for nomination for the said course, was placed at No. 1 in order of merit. It is stated that though AIIMS offers MDS course but the same is not restricted to candidates from Delhi only. Anybody from any part of India can compete and get admission to the MDS course run by AIIMS. Dr. Vikram Gandhi who was working as a Junior Resident (Non- academic) in the Department of Dental Surgery in AIIMS was also nominated for a seat in MDS course out of the central pool in the year 1993-94.

9. In his reply respondent No. 4 has stated that at the material time, he was working as a Demonstrator-cum-Lecturer in the Dental wing of MAMC, New Delhi on ad-hoc/temporary basis and he being an 'in-service' candidate was eligible to apply for nomination to MDS course out of central pool at King George Medical College, Luck-now. In Delhi State, there is no facility available for pursuing MDS course. It is further alleged that respondent No. 4 made application in time, which was duly forwarded by MAMC, New Delhi to the Health Secretary, Delhi Government who in turn forwarded the same lo respondent No. 1 vide letter No. F.5/110/97-H&FW dated 1.8th June, 1997 recommending his name as the candidate sponsored by the Government of NCT of Delhi.

10. We have heard learned counsel for the appellant/petitioner, respondent Nos. 1, 3 & 4 and have also been taken through the record.

11. In the aforementioned letter dated 8th/15th April, 1997 (copy of page 27) the criteria for nominating candidates to 4 seals of MDS in the central pool, is given as under :-

"(i) Only the candidates belonging to those States/UTs where post-graduate dental education facility is not available, will be considered. A copy of domicile certificate may be attached by the candidate,

(ii) The candidate should be a regular 'in-service candidate' in the concerned Stale/UT Government.

(iii) Applications of the candidates should be recommended by the concerned State/UT Government."

12. In short, Sh. Prashant Bhushan, Advocate, appearing for the appellant/petitioner has challenged the nominations of respondents 3 & 4 to the said course of MDS mainly on the following grounds :-

1. Dr. Radhika Chopra, respondent No. 3 was sponsored by AIIMS, which itself has post graduate dental education facility and the AIIMS was not competent to recommend a candidate for nomination to the central pool.

2. Respondent No.3 was not an 'in-service' candidate as she was appointed as Junior Resident in Dental Surgery in AIIMS only after 15th July, 1997. Infact, her candidature had been recommended by the Registrar, AIIMS dated 29th July, 1997 much after the expiry of the last date for receiving nominations, i.e. 15th June, 1997.

3. Dr. Rohit Jain, respondent No. 4 has been nominated from the State of Delhi which already has post graduate dental education facility in AIIMS.

4. Respondent No. 4 was not a regular 'in-service' candidate but was only working on ad-hoc basis as Demonstrator (Dental) with MAMC and not with the Delhi Government,

5. Application of respondent No. 4 was forwarded on 18th June, 1997 by the Delhi Government whereas the last date for receiving nominations was 15th June, 1997.

6. Both respondents 3 & 4 belong to Delhi and as per the letter dated 8th/15th April, 1997 only one candidate could have been nominated from Delhi.

13. Reliance was placed on the decision in Gurdeep Singh Vs. State of J & K & Ors., .

14. Needless to say that on the said grounds of challenge, respondent No. 1's stand is that the competent authority decided to consider all the applications received as delay in submission thereof could have occurred due to the circumstances beyond the control of the applicants. It is further stated that there is no institute under the control of Government of Delhi having MDS teaching facility and, therefore, nomination was also invited from Government of NCT of Delhi on 22nd April, 1997. Likewise is the stand taken by respondent No. 4 in his reply. In her reply respondent No. 3 has further stated that the MDS course offered by AIIMS is on all India basis and anybody from anywhere in the country can compete and get admission in the institute.

15. Respondent No. 3 in her reply has also stated that she was appointed as a trainee in the Dental Department in AIIMS w.e.f. 9th January, 1997 and she continued to work in that capacity till 8th July, 1997. In the meantime, she was appointed as first year Junior Resident (Non-academic) in the Dental Surgery on regular basis in AIIMS, which appointment continued uptill 31st December, 1997. According to her, representation dated 29th July, 1997 was made in continuation of the representation dated 8th May, 1997 for being nominated for MDS course out of the central pool, to the Minister of State for Health & Family Welfare and she was an 'in-service' candidate on the date her candidature for nomination to the said course was considered by the Ministry by virtue of her working as a Junior Resident (Non- academic). Respondent No. 3's stand further is that Ministry of Health & Family Welfare had approved allotment of a scat in the said course out of the central pool to Dr. Vikram Gandhi who was working as a Junior Resident (Non-academic) in AIIMS in 1993-94 and she was placed at No. 1 being most meritorious out of the candidates who had applied for the nomination for the said course, which case also finds support from the reply of respondent No. 1

16. As noted earlier, the stand taken by respondent No. 4 in the reply is that he was an 'in-service' candidate by virtue of his working as Demonstrator (Dental) in the dental wing of MAMC, New Delhi on ad-hoc/temporary basis after having been selected by a duly constituted Selection Committee and the application for nomination though forwarded by the Government of NCT of Delhi on 18th June, 1997, was made in time on the prescribed format to MAMC, New Delhi by him. According to him, he was placed at serial No. 2 on the basis of merit.

17. It may be noticed that the candidates whose names appear at serial No. 5 & 6 in the list, finalised in order of merit by the Ministry of Health & Family Welfare for the purposes of nomination to the aforesaid course of MDS, have not challenged the nominations of respondents 3 & 4 as being arbitratory and illegal. In the event of quashing the nominations of respondents 3 & 4 as claimed in the petition, the petitioner/appellant cannot be considered against those seats as his name appears at serial No. 11 in the list nor such a prayer has even been made in the writ petition. The nominations in question were for the academic session 1996-97. Substantial part of the duration of the course has already expired by now. It will not be out of place to state that during the pendency of the appeal, Ministry of Health & Family Welfare (respondent No. 1) has revised the guidelines on the criteria of eligibility and the selection process to be followed in nominating candidates against central pool MDS seats for the academic session 1997-98 onwards. As per these revised guidelines, amongst others, Delhi has been deleted from the list of sponsoring States/UTs and 'in- service' candidate has been defined to be a candidate with five years regular service and must have completed the period of probation successfully. Having perused the relevant file on the subject which was made available by respondent No. 1, we are satisfied that respondent No. 1 had not acted mala fide in nominating respondent No. 3 whose candidature was sponsored by the Registrar, AIIMS, New Delhi in view of the precedent in the year 1993-94 in respect of Dr. Vikram Gandhi and in considering all the application including those received after 15th June, 1997. There is no arbitrariness or illegality in the decision making process.

18. As regards decision in Gurdeep Singh's case (supra), the appellant and respondent No. 6 in that case had secured 118 marks each and respondent No. 6 was selected on the basis of the provisions regulating admissions which contemplated a preference in favour of a candidate who had secured higher marks in Biology in 12th standard examination. Both the appellant and respondent No. 6 claimed to be entitled for selection against 3% reservation in "sports category". The Supreme Court observing that the real question was that the sports of "mountaineering" was not included in the list of approved sports at the cut off date when the applications were invited and on the basis of which candidates responded, held respondent No. 6 not eligible against 3% reservation in "sports category" and accordingly quashed his selection and the seat vacated by him was offered to the appellant. This decision obviously is not applicable to the facts of the present case.

19. With the formulation of the revised guidelines by respondent No. 1, prayer (b) as made in the writ petition has been rendered infructuous. Considering the facts noticed in the above last but one paragraph, it is not necessary to go into the merits of the grounds of challenge referred to above which pertain to prayer (a) and the appeal deserves to be dismissed.

20. Consequently, the appeal is dismissed. No order as to costs.