1. These two appeals have been preferred both by Rajasthan University of Health Sciences as well as the State of Rajasthan against the interim order dated 23/07/2010 passed by the learned Single Judge. A writ petition came to be filed before the learned Single Judge being S.B. Civil Writ Petition No.8752/2010 by the four petitioners, who had appeared for Pre-DM/M.CH. Examination, 2010 conducted by the Rajasthan University of Health Sciences on 22nd July, 2010. Challenging the quota of 30% of the seats for in-service candidates.
2. The last date for submission of the application form was 12/07/2010 and the examination was notified for 22/07/2010. Annexure-4 was the notification issued by the Rajasthan University of Health Sciences which provided the instructions and the Scheme and criteria for the examination and consequent admissions in pursuance of the said entrance examination. The said Scheme [Annexure-4] which is available at Page No.71 of the Paper Book in Para 3 provided for reservation and bond for in-service candidates. The said Para 3 reads as follows:
3. Reservation and Bond for In-service candidates Out of Total seats 30% are reserved for In-Service candidates of Rajasthan State Government (Subject to approval by competent body of RUHS).
In-service eligible candidates of Rajasthan Medical Service [Collegiate branch] or Rajasthan State Medical and Health Services have to execute the bond of 20 lacs and same have to furnish on selection.
3. Broadly speaking out of the total number of seats, 30% of the seats were reserved for in-service candidates. The aforesaid reserved quota for in-service candidates was provided for persons serving in the State of Rajasthan under the Rajasthan Medical Service [Collegiate branch] and Rajasthan State Medical and Health Services constituted under the respective Rules framed under the proviso to Article 309 of the Constitution of India. The petitioners are not the candidates belonging to the in-service category. Their objection is against the aforesaid reservation for the in-service candidates to the extent of 30% of the total seats and therefore, the writ petitions were filed before the learned Single Judge challenging the aforesaid notification and the provision with the prayer to quash the provisions of 30% reservation for in-service category as provided in the prospectus. It was further prayed that if any amendment is made to Ordinance 278-D during the pendency of the writ petition, the same may be quashed and further that one common list be prepared of all the candidates irrespective of whether they are in-service or otherwise and admissions be made on the basis of aforesaid common merit list. The petitioner-respondents also made prayer for interim order and the learned Single Judge passed an interim order in the first instance on 21st July, 2010 i.e. the first interim order which has been incorporated in Para 4 of the impugned order. The said order reads as follows:
4. As has already been stated that the examination was to be held on 22/07/2010 and application came to be filed by the present appellant, Rajasthan University of Health Sciences for modification of the aforesaid order. On the said application the impugned order has been passed by the learned Single Judge. The learned Single Judge inter alia took into consideration the fact that the admission process, which was to be held in the year 2009, came to be challenged in the writ petition before this Court by means of S.B. Civil Writ Petition No.6890/2009, which is still pending before the Court and in which an interim order came to be passed on 24/07/2009 restraining the respondents in the petition not to fill up 10% quota of the seats from in-service candidates. It may be stated here that under the scheme of the examination for the year 2009 there was only a provision for reservation of 10% of the total number of seats for in-service candidates as against 30% in the present scheme of the examination of the year 2010. Before the learned Single Judge both the sides presented their respective submissions and the learned Single Judge after considering the same has passed the impugned order dated 23/07/2010 which reads as follows:
In view of the above, the order dated 21.7.2010 passed by this Court is modified as under:
The respondents are free to proceed further in accordance with Annexure-4 but till then the seats may not be filled up from amongst in-service candidates with regard to 30% seats because similar writ petitions are pending.
5. Learned Counsel appearing for the University and the learned Additional Advocate General for the State submitted that while it is true that the S.B. Civil Writ Petition No.6890/2009 in which the order 24/07/2009 which was taken note of by the learned Single Judge, is still pending before the Court. Subsequently, on 31st July, 2009 in the aforesaid writ petition, the Court passed another order which has not been taken note of in the impugned order but the reasons for the stay can be spelt out from the order dated 31/07/2010, which reads as follows:
6. The matter was taken up as a first case looking to the fact that on or before 31.07.2009, the admission for super-specially courses in medical have to be made. For that purposes, the interim order passed by this Court on 10.06.2009 was modified vide the order dated 24.07.2009 giving liberty to the respondent to conduct examination and accordingly, it is informed that examination was conducted on 30.07.2009 and the result of the candidates was brought in the Court. The controversy raised in the present matter is pertaining to the earmarking of 10% of seats for in-service candidates by rotation in super-specialties courses in medical.
7. While the matter was heard, learned Additional Advocate General was asked to explain as to without making amendment in statue of university, an administrative order can provide earmarking of the seats because it was admitted by learned Additional Advocate General that it is not a reservation for in-service candidates. The second question was asked to the learned counsel for the State that as to whether the course of super-specialty being of higher education, State can regulate the university in the manner, the order dated 03.06.2008 has been issued and third issue was as to what is the rational in issuing the order. So far as the issue of rationality is concern, it was argued and submitted that it is providing a room to the in-service candidates, who cannot generally compete with the fresher but other two issues could not be explained and time is sought.
8. Looking to the aforesaid, let this case be kept on 10.08.2009 as prayed. In the meanwhile, the respondent university is directed to fill up the seats of super-speciality courses strictly as per the merit of all candidates, who appeared in the examination.
9. Learned Counsel for the appellant based on the aforesaid order contended that the order dated 24/07/2009 was modified and merged in the order dated 31/07/2009 and the learned Single Judge passed the aforesaid order on account of the reasons stated therein namely; that prima facie it appeared that the admissions were being made after reserving 10% of the seats without amendment in the Ordinance of the University. The learned Single Judge also raised a query as to whether the course of super- specialty being of higher education, the State could regulate the University in the manner that is to say to direct for reserving seats for in-service candidates. Learned Counsel also pointed out the third aspect which came to be noticed of the learned Single Judge which was that by the aforesaid method it provided room to the in-service candidates, who cannot generally compete with the fresher students who have just completed their post graduation course. Taking note of these three aspects, the learned Single Judge vide order dated 31/07/2009 passed an interim order and directed the respondent-University to fill up all the seats of super-speciality as per merit of all the candidates, who appeared in the examination which resulted in not permitting the University to fill any seats out of 10% reserved quota for the in-service candidates. Learned Counsel appearing for the appellant contended that the circumstances, which prevailed at the time when the order dated 31/07/2009 was passed, have changed inasmuch as the University has already framed Ordinance 278-D which was amended, as per the stand of the learned Counsel for the appellant by 16th July, 2010 and Ordinance 278-D (ii) provides for reservation of 30% of the seats of super-specialities for in-service candidates. Learned Counsel also produced for the perusal of the Court the relevant Ordinance as well as the letter of the University dated 21/07/2010, which reads as follows:
The Board of Management in its meeting dated 6.07.2010 (Table Agenda Item No.-1) had approved the amendment in Ordinance O.278-D regarding 30% reservation of seats of superspeciality courses (D.M./M.Ch.) for in-service candidates from the Academic Session 2010-11. The State Government communicated vide letter No.F.6(2)M.E./Gr.1/10 Jaipur dated 16.07.2010 (Copy enclosed) to delete the last line and should be below the age of 45 years under clause (II) Reservation in the approved amendments in Ordinance 278-D by the Board of Management in its meeting dated 6th July, 2010. In the light of the State Government communication and looking towards the exigencies of the matter, it was decided to send a fresh agenda item for amendments in Ordinance O.278-D. The agenda was forwarded to the members of the Academic Council and Board of Management by circulation. The approval of the members of Academic Council and Board of Management had been received. Therefore, please find herewith the amended Ordinance duly approved by the Academic Council and Board of Management members for your necessary action.
10. On the basis of above, it was contended by the learned Counsel appearing for the appellant that so far as first ground which persuaded the learned Single Judge to pass the order dated 31/07/2009 is concerned, the same does not survive and the shortcomings which was there with regard to the instructions issued in the year 2009 have been cured after the Ordinance 278-D has been brought into force by the University providing 30% reservation for in-service candidates for admission to DM/M.CH Courses. So far as the second and third points are concerned, which find mentioned in the order dated 31/07/2009, learned Counsel appearing for the appellant contended that with regard to providing reservation for in-service candidates, the matter came up for consideration before the Hon'ble Supreme Court in the case of K.Duraisamy & Anr. v. State of Tamil Nadu & Ors. reported in (2001) 2 SCC-538 and Their Lordships after consideration of the entire matter laid down in Para 12 of the report that providing reservation for in-service candidates was permissible in the medical institutions and this reservation should not be equated with the reservations on the communal lines as properly understood where reservation is provided for the members of the scheduled castes, scheduled tribes and other backward classes and in contrast to the same reservation for in-service candidates envisaged is not by way of a mere reservation, but is one of classification of the sources from which admissions have to be accorded and the principles at times applied in construing provisions relating to reservation simpliciter will have no relevance to such classification of the sources. Learned Counsel therefore, contended that reservation for in-service candidates must not be equated with the reservation as understood on the communal lines, but is a classification of the sources from which the admissions are to be made. The learned Counsel for the appellant, therefore, contends that the reliance, which was placed by the learned Single Judge in the impugned order on the case of Preeti Srivastava v. State of Madhya Pradesh reported in AIR 1999 SC 2894, is distinguishable as Preeti Srivastava's case was a case of reservation on communal lines in contrast to the present case in which sources from which admissions are to be made have been specified by mentioning as reserved for in-service candidates. Learned Counsel for the appellant further contended that both the cases i.e. Preeti Srivastava v. State of Madhya Pradesh [supra] and K.Duraisamy & Anr. v. State of Tamil Nadu & Ors. came up for consideration before the Hon'ble Supreme Court in the case of State of M.P. & Ors. v. Gopal D. Tirthani & Ors. reported in (2003) 7 SCC-83 wherein their Lordships after consideration of both these cases approved the reservations for in-service candidates after explaining and distinguishing the case of Preeti Srivastava. The attention of the Court was invited to Paras 20, 21, 22 & 23 of the report. Learned Counsel for the appellant, therefore, submitted that after the order dated 31/07/2009 was passed, the change of circumstances has not been noticed by the learned Single Judge while passing the impugned order dated 23/07/2010, particularly, the fact that Ordinance 278-D incorporating the provision of reservation for in-service candidates has been brought into force and that the second and third points which were raised by the learned Single Judge in the writ petition of 2009 stood answered by the judgment in the case of K.Duraisamy & Anr. v. State of Tamil Nadu [supra] and Preeti Srivastava's case had no application to the present case.
11. In reply to the aforesaid, the learned Counsel for the respondents-petitioners contended that there were several flaws so far as enactment of Ordinance 278-D is concerned and therefore, the appellant cannot take shelter of the fact that they have amended the Ordinance 278-D and lacuna of absence of statutory sanction for the provision of reservation of 30% of the seats for in-service candidates which was there in the year 2009 has been cured. Learned Counsel further contended that the judgment in Preeti Srivastava's case [supra] dis-approving of reservation in the courses of super-speciality being a judgment of the Constitution Bench of the Hon'ble Apex Court still holds the field and therefore, the aforesaid provision providing for reservation for in-service candidates is contrary to the mandate and the law laid down by the Hon'ble Supreme Court in Preeti Srivastava' case [supra]. We have given our thoughtful consideration to the rival contentions. Since the matter has come up before us in appeal against the interim order on the said matter passed by the learned Single Judge and the writ petition is still pending consideration on merits before the learned Single Judge, we would not like to go into the details of the submissions which have been raised before us which we leave for the learned Single Judge to decide on merits. However, prima facie it does appear from the material which was placed before us though the same had not been placed on record formally in the writ petition that the appellants have introduced by way of amendment, Ordinance 278-D providing reservation for in-service candidates for admission to the super-speciality courses of DM/M.CH. We may not be understood as curtailing the right of the respondents to make the challenge before the learned Single Judge with regard to validity or any infirmity in enacting the aforesaid Ordinance as no such ground exists in the petition. So far as the submission of the learned Counsel for the appellant is concerned, that while passing order dated 31/07/2009 in S.B. Civil Writ Petition No.6890/2009 by the learned Single Judge, the primary consideration and the ground which prevail do not survive in the light of the present situation appears to be justified as in the present circumstances the appellants have brought to our notice that Ordinance 278-D has been enacted by the University providing for the aforesaid reservation to support the provision made in the Scheme of Examination Annexure-4. In the light of the above, we are in agreement with the learned Counsel for the appellants that the order impugned passed by the learned Single Judge in S.B. Civil Writ Petition No.6890/2009 pertaining to the scheme of examination in 2009 cannot be sustained.
12. So far as the second and other points which were raised and taken note of by the learned Single Judge in the order dated 31/07/2009 are concerned, we refrain from making any observation with regard to same as any observation in the present appeal made by this Court may prejudice the rights of either of the parties at the hearing of the writ petition which is pending before the learned Single Judge. It has also been brought to our notice by the learned Counsel for the appellant as well as by the learned Counsel appearing for Medical Council of India that a time schedule has been framed by the Hon'ble Supreme Court with regard to admissions to DM/M.CH. Courses, which was also noticed by the learned Single Judge while passing the order dated 31/07/2009, according to which as also in the case of Mridul Dhar & Anr. v. Union of India & Ors. reported in (2005) 2 SCC-65 the time schedule framed by the Medical Council of India was approved by the Hon'ble Supreme Court and according to the aforesaid time schedule the admission process must be completed before 31st of July every year and the academic session must commence from 1st August every year. Since by the impugned order the learned Single Judge has restrained the respondents from filling up 30% of the seats, a situation may arise where 30% of the seats which have been notified in the scheme of examination of 2010 for in-service candidates may remain unfilled and this benefit may not reach the public as it is intended to give opportunity to in-service doctors in the State to upgrade their academic and professional skills. Prima facie we are of the view that in the light of the change circumstances as mentioned above of the framing of the Ordinance the doubts which prevailed with the learned Single Judge while passing the order dated 31/07/2009 have been cured and there is, therefore, no impediment prima facie for the respondents to fill up the aforesaid 30% seats from the in-service candidates. We may however, add that the aforesaid admission to the extent of 30% seats from in-service candidates would be subject to the decision in the writ petition. Accordingly, both the appeals are allowed as indicated above. The impugned order dated 23/07/2010 is vacated and is set aside.
13. We may also add that any observations made by us in this order would not affect the rights of either of the parties and the learned Single Judge may decide the case on merits of the submissions raised before the learned Single Judge. Accordingly, both the appeals as well as the stay applications stand disposed of. Application No.31406 dated 26/07/2010 has been filed under Order 1 Rule 10 CPC by some of the in-service candidates with the prayer that they may be allowed to intervene in the above matter.
14. So far as the aforesaid application is concerned, we direct in the light of the above order that it will be open for the applicant to move an application for the aforesaid relief before the learned Single Judge. Subject to the above, the application No.31406 also stands disposed of.