Judgment:
Nagendra Rai, J.
1. The petitioners, who are all M.B.B.S. and who have applied for their admission to the Post-Graduate Courses in the State of Bihar, have filed the present writ application to delete Condition No. 13 (i) of the Prospectus issued by the Department of Health, Medical Education and Family Welfare, Government of Bihar. A copy of the said Prospectus has been annexed as Annexure 1 to the writ application.
2. The admitted facts are that the petitioners have passed their M.B.B.S. examination from different Medical Colleges from Bihar. In the last week of January, 1998, a Press Communique was issued in the name of Controller of Examination, Health Services, Department of Health Medical Education and Family Welfare, Government of Bihar, inviting applications for appearing in the Post-Graduate Medical Examination Test, 1998. The petitioners obtained application forms and Prospectus from the concerned Medical Colleges and have applied for the same. The last date for receipt of the application had been fixed as 26-2-1998 and 22-3-1998 had been fixed as the date of the examination and the result has to be published in the third week of April, 1998. The last date of taking admission has been fixed as 30-4-1998 and the commencement of course will begin from 2-5-1998.
3. As the petitioner's main challenge is with respect to Condition No. 13 (i) of the Prospectus, it is apt to quote the same, which runs as follows:
13 (i) The application form must be correctly filed in the signed by the applicant. His/her signature must be attested by a Gazetted Officer. Candidate are instructed to give 30 choice of course in order of the preference and of four in situation in order of preference as per code No. allotted for each course and Institution. No alteration in the choice will be allowed subsequently.
Aforesaid Condition No. 13 is instructions for filling up application form and admit card and Condition No. 13(i), as quoted above, requires that the candidates should give 30 choice of course in order of preference and of four institution in order of preference as per code number allotted for each course and Institution. The said preference will be final.
4. The said condition has been challenged on the ground that the same is arbitrary and unworkable and its observance will result in nepotism and favouritism. It is also stated that this direction contained in Condition No. 13 (1) of the Prospectus is contrary to the direction of the Supreme Court in the case of Anand S. Biji v. State of Kerala, reported in MANiC/0517/1993, as well as of this Court in the case of Dr. (Mrs.) Suniti Sinha v. State of Bihar, C.W.J.C. No. 6134 of 1996 and other batch cases.
5. The stand of the State as appears from the counter-affidavit, is that the Prospectus has been prepared after consultation and approval of the Advocate General, Bihar. In the previous years, the students were counselled by showing the vacancy position of the subjects, category and institution on computer screen. The students were placed according to merit-cum-choice basis. They did not give their first, second and third choice in writing, and hence in the subsequent counselling, they used to change the subject, institution and category. Thereafter, this Court issued direction to follow the allotment procedure in the aforesaid writ applications and, thereafter, the Department, after consultation with the Advocate General, decided that as many as 30 choices of subject and institution be given to candidates so that there should not be any discontentment to them. Once the choice is given, that will be firm and final.
6. The only question, thus, for consideration is as to whether Condition No. 13 (i) as given in the Prospectus, is fair and in conformity with the law laid down by the Apex Court and the direction issued by this Court with regard to admission in the Post-Graduate Courses.
7. In Anartd S. Biji's case (supra), the question for consideration was with regard to admission of students selected on the basis of All India Competition. The admissions are to be made on the basis of merit-cum-preference-cum eligibility with the aid of computer. There the system in practice was that the candidate at the time of applying for admission was required to indicate eight Medical Colleges and six subjects in order of preference to which he wants admission. The Apex Court found that this system of giving preference to the candidates at the time of applying for admission will create injustice to them. Thereafter, the Apex Court directed that the counselling system, which is in practice in some of the States and is working satisfactorily, should be adopted. The system, which the Apex Court directed to be followed, is as follows:
After the examination is over, the results would be published in the order of merit. The selection committee will call 150 candidates a day in the order of merit. A chart will be kept ready and displayed at all relevant places indicating the colleges and subjects wherein the seats are available. Candidates will be called in the order of merit and asked to indicate his/her choice. The slot chosen by him/her then gets closed. This procedure will be gone through until all the seats are filled up. There would be no second or third list. Any seats remaining vacant thereafter will be surrendered to the State Government.
8. According to the Apex Court, to be fair to all the students, the counselling system is to be followed, a chart is to be kept ready and displayed at the place at the time of selection indicating Colleges and subjects where the students are available and the candidates are required to give their preference then and there.
9. No doubt, the said direction of the Apex Court was with regard to admission of students selected on the basis of All India Competition, but the same principle has to be applied, in my view, to the cases of admission by the State also as that will eliminate the chances of favouritism and will give more transparency and fairness to the system of admission. In case of admission for filling up the State quota, there is no question of surrendering of left out seats but the system of giving choice of selection of subject and institution can very reasonably be done after publication of the result and the position of the candidates in the merit list.
10. A learned Single Judge of this Court has already considered the matter in controversy in the case of Dr. (Mrs.) Suniti Sinha (C.W.J.C. No. 6134 of 1996 and other batch cases) as mentioned above and has issued following
directions:--
(i) After a list of successful candidates is published based on P.G.M.A.T. the concerned candidates have to be called for counselling in order of merit. All the seats available must be clearly displayed and in order of merit the candidates shall make their choice of the subject and the College. The candidates should also be required to give their preference so that in the event the subject of their first choice is not available, they may be admitted to the Post-Graduate Courses relating to the subject of their second choice or third choice as the case may be. Before the counselling begins, each candidate called for counselling must give his preference in writing and the admission should be granted in accordance with the choice given by the concerned candidates, who shall be granted admission in order of merit.
(ii) Moreover a candidate is not able to secure admission to the subject of his first choice, and is granted admission to the subject which is his second or third choice, a note should be made of the first choice offered by him.
(iii) After the counselling is over, if within the period prescribed by the prospectus it appealed that some adjustment may be necessary in view of the fact that some of the selected candidates have not joined the courses or release of the seats by the central pool, only those candidates will be called for adjustment who have not been granted subject of their first choice. In no case shall a candidate be called for adjustment if he has been admitted to the course of his first choice. His admission becomes final. Similarly, no candidate shall be permitted to change his preference of subject given at the time of first counselling.
(iv) A list of seats remaining vacant or becoming available shall be prepared in the first instance. In regard to each subject, the persons, who had given their first preference for the said subject but could not be admitted, must be called and their claims shall be worked out in order of merit following the same procedure as in the case of first counselling. After this exercise is under-taken and the persons got admission to a particular course on the basis of second preference or third preference, they will not again be called for adjustment, even if time permits the authorities to hold another adjustment to fill up seats still remaining unfilled.
(v) If this procedure is followed, the admission of those who get admitted to the subject of their first choice will get finalised after first counselling. The remaining candidates who are eligible for adjustment will also be admitted to the courses of their choice in order of preference and in order of merit, after the exercise is undertaken for adjustment. It will not be necessary to recall such candidates again. If this procedure is not followed, there will be no finality to the admissions granted because a candidate may change his mind later and opt for another subject. The process of selection will, therefore, become an unending process.
11. I do not want to add further condition as, in my view, those conditions are consistent with the direction of the Supreme Court in the said case. But I want to clarify that the question of choice of institution and subject is to be given by the candidates in writing at the time of counselling after the results of the candidates are published. If the same are followed, that will minimise the chance of confusion.
12. The stand of the State that on the advice of the Advocate General, aforesaid Condition No. 13 (i) of the Prospectus was added, is fit to be rejected for the simple reason that the opinion of the Advocate General cannot be followed ignoring a judgment/direction of this Court so long that judgment/direction holds the field. Once this Court has issued direction, that has to be followed.
13. Thus, I am of the view that the respondents were not justified in asking the candidates to give their preference of institution and subject in the manner as given in Condition No. 13 (i) of the Prospectus. However, as the candidates have applied and given their preference in the present case, I am not quashing the aforesaid Condition, but I am disposing of this writ application with this direction that the preference of the institution and subject given in the application form in accordance with the requirement of Condition No. 13 (i) of the Prospectus shall not be treated to be a choice given by the candidates of the institution and subject and after the results of the Post-Graduate Admission Test, 1998 are published, the students will be called for counselling in order of merit and at that time, they will be asked to give choice of subject and institution in the manner as determined by the respondents and the institution and subject should be allotted to them on the basis of choice given by them and in terms of the direction given by this Court as quoted above.
14. With the aforementioned observation/direction, this writ application stands disposed of.