Judgment:
H.L. Gokhale, J.
1. First three of these petitions are filed by the students who have completed their M.B.B.S. In January, 2000 from the Mumbai University. They are students of the 2nd respondent Medical College and hospital which is run by the Thane Municipal Corporation. The 4th petitioner has done MBBS from Pune University. The 2nd respondent-hospital gave an advertisement for enrolling admissions to post-graduate diploma courses which were to begin from 1st Feb., 2001. Since the petitions are challenging selections by the respondent No. 2 and since the courses were to begin from 1st Feb., 2001, we are hearing these petitions finally at the admission stage itself. We have, therefore, heard the counsel for the petitioners as well as for the respondents at length and perused the material on the record including files and charts madeavailable by Mr. Ram Aptc, learned counsel appearing for respondent No. 2. The courses for which applications were invited and the number of posts under the respondent No. 2 were as follows :--
1. D.O.M.S. (1)
2. D.G.O. (1)
3. D.C.H. (2)
4. D.P.B. (1)
5. D.D.V. (1)
6. D.O.R.L. (1)
7. D.P.H. (1)
8. D.P.M. (1)
9. D.M.R.E. (1)
10. T.D.D. (1)
The petitioners applied for these posts but were not selected and according to them certain candidates got selected who were not eligible and were selected by following procedure which is not legal. Though the 2nd respondent hospital had issued the advertisement and was to carry out the selection process, the lecturers were to be held by and at the College of Physicians and Surgeons of Bombay which is joined as respondent No. 1. The said College is served with notices twice in both the matters and yet it has not caused any appearance, probably because principally relief is sought against respondent No. 2. The selected candidates have been joined as respondents thereafter. In writ petitions Nos. 846 of 2001 and 876 of 2001 selected candidates are respondent No. 3. They arc served. Affidavits of service are filed. They have not caused appearance.
2. The principal case of the petitioners is that these admissions have to be regulated under the procedure prescribed by the College of Physicians and Surgeons and they have been effected in gross violation thereof. In para 10 of these petitions they have alleged mala fides, political interference and influence and misuse of office by Dean of respondent No. 2 . The petitioners referred to a State Government Resolution (GR) dated 24th Oct.. 1991 providing rules for the selection of candidates to the postgraduate posts. The said GR refers to the directions given by Full Bench of this Court in Writ Petition No. 2469 of 1990 and other petitions on 16th Sept., 1991, that the admission to the post-graduates medical courses run by or under the control of the State Government shall be regulated in accordance with the rules to be provided. Para 1 of this GR makes a specific reference to the diploma courses of the college of Physicians and Surgeons. Para 3 provides for reservation and Para 7 provides for the basis of the selection as to how merit of the candidates is to be assessed.
3. Although this GR was issued way back in Oct., 1991, a number of complaints continued to be received by the college of Physicians and Surgeons. Hence a circular was issued by the Secretary of the said College on 17thJune, 1998 to all the Heads of Institutions affiliated to the said college. The respondent No. 2 is one such institution. The first four paragraphs of the said circular read as follows :
'We are happy that you are affiliated to our institution to Impart post-graduate training in various specifically subjects. We have already issued the selection criteria for the students to the various post-graduate diploma offered by this College and I am sure, you must be following the same methodology every time. In spite of that, number, of disgruntled students have been complaining to this College and alleging that the institutions are offering various posts without proper selection obviously for some other considerations.
I am confident that every one of you is honest and not a saleable commodity and hence such allegations are baseless but definitely leaves a bitter taste.
In order to avoid this bitterness, it is suggested that in addition to the previously circulated methodology of the recruitment, it is further directed that the following norms also be used :--
1. Out of 100 marks for selection 50 per cent should be given to the marks scored by the concerned students at M.B.B.S. University examinations in the concerned subject.
2. 30 marks should be allotted to the examination that you conduct.
3. 20 marks be reserved for interview which will obviously Include the aptitude as well as the suitability to the concerned postgraduate training.
(Underlining supplies)
4. Thus, the Secretary of the College of Physicians and Surgeons recorded in the said letter that in spite of issuing the selection criteria earlier, a number of complaints were received and hence to avoid any allegation in addition to the previously circulated methodology, the criterion provided therein was to be followed. It is very pertinent to note that in the 3rd paragraph the Secretary records that he had the confidence that every one of the affiliated institutions was honest one and not a saleable commodity.
5. WRIT PETITION NO . 830 OF 2001
The petitioner herein had applied for the post of diploma in Skin and Venerology (D.D.V.) . To this petition a copy of the letter written by the selected candidate i.e. respondent No. 3 to the Dean of the 2nd respondent hospital is annexed seeking permission to join the department. Below that letter however there is an endorsement of the Lecturer in the Skin Department dated 1st Feb., 2001 which is as follows :
'Noted and approved as per the candidates Selection list put by Deans order. However candidate was not interviewed during CPS DDV interview.'
The petitioner has pointed out that she had appeared for the interview and whereas she belonged to the same institution viz. the same medical college and the same University, the respondent No, 3 i.e. the selected candidate belonged to a College from Shivaji University, Kolhapur.
6. The Dean of respondent No. 2 hospital has filed an affidavit in reply. In para 10 of his reply it is stated that the marks given at the time of selection from 1st August, 2000 onwards were as follows :
1. Entrance examination -- 30 marks
2. Marks in the concerned subjects out of 20
3. 5 marks are deducted for each attempt of passing IIIrd MBBS examination from IInd attempt onwards.
4. Interview by the Head of the deptt.--10 marks.
5. Interview by Dean for aptitude and suitability 20 marks.'
7. Thus, it is clear that the formula laid down by respondent No. 1 College of Physicians and Surgeons is departed in following respects viz. (1) Total marks to be given as per respondent No. 1 were 100, but the respondent No. 2 is giving marks only out of 80. (ii) respondent No. 1 requires 50% out of 100 marks to be given on the basis of marks scored by the concerned student in the concerned subject at the MBBS examination. The 2nd respondent hospital has given only 20 marks for that subject : (iii) 30 marks out of 100 were allotted for the entrance examination whereas respondent No. 2 has allotted 30 marks out of 80; (iv) 20 marks were allocable to the interview. As against that, 30 out of 80 marks have been allotted to the interview. They are again split into two parts, 10 marks to the interview by the Head of the Department and 20 marks by the Dean to decide aptitude and suitability. Thus, the interview process was divided into two by the Dean by giving marks allocable by him later on. Thus, as it is seen instead of the local marks being 100, marks under the 2nd respondent were reduced 80 marks. Then the marks attained (sic) in the subject at MBBS were to be given from 50 out of total 100. As against that now they were to be only 20 out of 80 marks. Besides the marks for the Interview were only 20 out of 100 as per the formula of respondent No. 1. As against that now they were to be 30 out of 80, and 20 therefrom were to be given by the Dean himself.
8. The affidavit does not state as to who changed this formula and as to who is responsible therefor as far as the 2nd respondent-hospital is concerned. The result thereof is very obvious that the power of the Dean is increased and we see that it is reflected in the manner in which the marks for the Interview are allotted. Thus, in the present case, there is a clear allegation that respondent No. 3 was not Interviewed at all but there is no specific denial thereof. The respondent No. 3 has filed affidavit. In para 3 she has stated that she had given preference as follows :
a. Pediatric
b. Gynaecology
c. Diploma in Skin and Venereal Diseases. She states that she was interviewed for Pediatric only. Then there is no dispute that she was not interviewed for Diploma in Skin and Venereal Diseases. Mr. S.M. Oak, learned counsel for the petitioner, has shown us the charts of the marks given at the time of interview and what we find is that whereas the marks given by the Heads of the Departments are in a computerised form the marks given by the Dean are added in ink.. No explanation is given for this. As per Clause 5 of the advertisement, the local candidates are to be given preference. In the present case, that clause is given a complete go-by. Besides the record also appears to be created conveniently. In the list of selected candidates the names of Colleges of other students are mentioned correctly, whereas against the name of respondent No. 3, she is shown as resident of Thane. This is not incorrect, but the fact that she studied from Kolhapur is not mentioned.
9. WRIT PETITION No. 838 OF 2001.
The petitioner herein had applied for a seat in Diploma in Child Health (D.C.H.). In the hospital of the respondent No. 2 there are two posts for this course. In this matter also the grievance of the petitioner is the same namely that the procedure laid down by respondent No. 1 College of Physicians and Surgeons is not followed at all. Besides, under Clause 7(f) of the earlier mentioned GR dated 24th Oct., 1991, a student passing the subject concerned at third attempt is not eligible at all. Respondent No. 4 Dr. P.P. Karanjkar has passed the examination in Medicine at third attempt. This is apart from the fact that he is a candidate from the Marathwada University of Aurangabad and he passed the first, second and the third years examinations in the fourth attempt. In the written test also we find that he has received the marks much less than the petitioner and yet he was selected by giving more marks by the Dean in the interview. Similarly as far as respondent No. 3 Dr. S.B. Biradar is concerned, he is also student from the Shivaji University at Kolhapur. He had received less marks in Medicine. He passed the 2nd MBBS in 4th attempt, 3rd MBBS in 3rd attempt and the paper in Medicine in the 2nd attempt. As against that, the petitioner passed all the examinations in the 1st attempt. The respondent No. 3 is also given more marks by the Dean which are only added in ink.
10. WRIT PETITION No. 846 of 2001.
Here the petitioner had applied for Diploma in Obstetrics and Gynaecology (D.G.O.) for which there was only one post. The petitioner had received more marks in Gynaecology then the marks obtained by respondent No. 3. the selected candidate in the MBBS examination. The selected candidate has done her MBBS from Karnataka . Similarly here although the advertisement was only for one post, another student one Dr. Abhay Naik is granted a transfer to the course in D.G.O. though he was doing another course in the earlier year. Thus twoseats are given for D.G.O. I.e. one for respondent No. 3 and another for one Abhay Naik. The advertised post is only one., Besides, as per Clause 6 of the above referred GR dated 24-10-1991, a candidate selected for registration in one post is ordinarily not to be allowed to change the registration from one subject to another and he has to give a 3 months notice in advance to enable notification of his vacancy for others- Thus, one does not know in what capacity and in what circumstances this Abhay Naik has been permitted a transfer to D.G.O. and there is no explanation from the Dean of the 2nd respondent for that. The petitioners submission is that if second post was available it ought to have been advertised and it cannot be created by back door.
11. WRIT PETITION No. 876 of 2001.
Here the petitioner had applied for a post in Radiology (D.M.R.E.). He has been working in that very hospital for about a year and half. He was expected to be selected and since his name did not figure among the selected candidates, he approached the Head of the Department. The letter written by the Head of the Department to the Dean is annexed as Exhibit D to the petition. It reads as follows :--
'In the interview I had selected Dr. YogeshMahale for the post of D.M.R.E. (C.P.S.)considering his experience, CET marks andInterview.
However it appears that his name is not shown on the provisional Selection list, However, let us hope that his name will appear on the Final list.'
Here, what we find is that the Dean has given 15 marks out of 20 for the interview to respondent No. 3 thereby giving him in all 40 marks and giving an edged over the petitioner.
12. Thus, from all that is stated above, it is clear that there is a complete violation of the prescribed provisions for admissions which are as follows :--
(i) The total marks to be allotted were 100. The respondent No. 2 reduced them to 80.
(ii) The direction given by respondent No. 1 College of Physicians and Surgeons as to how 100 marks an to be allotted at the time of admission as per its letter dated 17th June, 1998 is substituted by the Dean of respondent No. 2 by his own formula under which he reduced the 50 marks for theparticular subject to 20.
(iii) Whereas under the circular of respondent No. 12 only 20% marks were reserved for interview. The 2nd respondent Dean provided for 30 marks out of 80 and in that also arrogated 20 marks to himself, Thus, the percentage for interview in total marks goes on to 37.5% and 25% of the marks are reserved for the Dean.
(iv) The advertisement clearly stated that local candidates were to be preferred. In Writ Petition No. 830 of 2001, the Dean preferred a candidate from the Shivaji University. Kolhapur to one from the Mumbai University. In Writ Petition No. 838 of 2001, he selected a student from the Shivaji University (respondent No. 3) and the Marathwada University (respondent No. 4) over a local candidate. In Writ Petition No. 846 of 2001, he selected a candidate from the Karnataka University over a one from the Mumbai University. This was done when the local candidates have better marks in all respects except the interview marks given by the Dean.
(v) As far as the interview is concerned, it is clear that in Writ Petition No. 830 of 2001, the 3rd respondent was selected without any interview. In Writ Petition No. 838 of 2001, respondent No. 3 is given 14 marks and respondent No. 4 is given 16 out of 20 marks by the Dean to give them edge over the petitioner. As against that marks given by Head of Department are uniform. In Writ Petition No. 876 of 2001, the Head of the Department had selected the petitioner at the time of the interview. Surprisingly enough, his name did not appear in the Select List but what we find is that the Dean has given 15 marks out of 20 to respondent No. 3 which marks are added in ink.
(vi) In Writ Petition No. 838 of 2001, respondent No. 2 selected a candidate (respondent No. 4) who was totally ineligible inasmuch as he had passed in the concerned subject at MBBS examination at the 3rd attempt and he was ineligible under Clause 7(f) of the Government Resolution.
(vii) In Writ Petition No. 846 of 2001, what we find is that the 2nd respondent granted a transfer to one Dr. Abhay Naik who was pursuing another course in earlier year to the Diploma in Obstetrics and Gynaecology thereby granting one extra seat. Thus he recommended filling of two posts when the advertisement was only for one and that wasalso without following the procedure under Clause 6 of the GR dated 24th Oct., 1991.
13. Thus, it is very clear that the Dean, of respondent No. 2 Dr. M. R. Jape has completely misused his position. He has bypassed better candidates when they were available. He has by passed the local candidates in preference to the outside candidates contrary to the rules. He created his own rules providing for more marks at the time of interview which he would given, What we find is that all these marks are given by the Dean of respondent No. 2 subsequently and they are added in ink in the various charts to the selected candidates whereas the Professors and Heads of the Departments have given interview marks allocable by them which figure in the typed column in the computerised charts. Besides his marking for the selected candidates is very general and for the petitioners very stringent.
14. Mr. Ram Apte, learned counsel for the respondent No. 2 submitted that the rules prescribed by respondent No. 1 College of Physicians & Surgeons were not binding on respondent No. 2 and that respondent No. 2 was free to have its own selection procedure. Now, what is to be noted is that respondent No. 2 is only selecting the candidates but they are to be selected for the courses to be conducted by respondent No. 1 College. Respondent No. 1 was expected to adhere to some uniform system and, therefore, the earlier Government Resolution was issued which specifically mentions the regulatory position of respondent No. 1 in para 3 thereof. In fact the said GR was issued in view of the directions given by Full Bench of this Court as stated in the GR itself. Now. If the College of Physicians and Surgeons gives further guidelines in view of the complaints received by it with respect to uniform procedure, respondent No. 2 hospital cannot say that it will not follow it. In any event, what is to be noted is that respondent No. 2 hospital is run by the Thane Municipal Corporation which is an authority within the meaning of Article 12 of the Constitution of India. It has not placed any correspondence on record to respondent No. 1 as to why it was not following the procedure laid down by respondent No. 1. In fact any such departure by respondent No. 2 from the procedure laid down by respondent No. 1 can invite disqualification by respondent No. 1 from accepting the candidates to its courses forwarded by respondent No. 2. We would, therefore,, like to make it clear to respondent No. 2 that no such departure would be permissible and to say the least, we are shocked to hear this submission coining from a hospital run by a Municipal Corporation.
16. Last but not the least at the fag end of the argument, Mr. Ram Apte, learned counsel appearing for respondent No. 2 fairly pointed out to us that the Municipal Commissioner of Thane has stayed this selection process by his order dated 12th of Feb., 2001. The order passed by the Municipal Commissioner was brought to our notice and it states that because there were large number of complaints received , the selection was being stayed. What is more disturbing is that although the affidavit-in-reply is affirmed by the Dean on 13th of March, 2001. In para 7 of the reply he very cleverly states as follows :
'I say that it is true that the names are not sent for registration to respondent No. 1 as yet and the matter is under consideration of the Commissioner which is not finalised as yet the process is to be completed and otherwise also within one month from the final selection. I deny that the selection process was interfered with by influential persons and politicians and that the respondent No. 2 carried out the entire selection process by violating the conditions laid down by it, as alleged.'
Thus, respondent No. 2 did not state the whole truth to the Court and has suppressed the fact that the selection had been stayed by the Municipal Commissioner. In the absence of any specific material, we cannot say anything about the selection process being interfered by Influential persons and politicians. However, it is undoubtedly clear that the entire selection process was carried out by violating the conditions laid down by respondent No. 1.
16. Mr. S.M. Oak appearing for the petitioner submitted that first these petitioners were belonging to reserved categories and there were special provisions for their benefit in the Government Resolution and they had to be considered at least where the posts to be filled in were more than one , i.e. two as in the D.C.H. Course for which the petitioner in Writ Petition No. 838 of 2001, had applied. It was then pointedout by Mr. S.M. Oak, learned counsel for the petitioner that whereas the students are required to pay fees to respondent No. 1 College, an additional amount of Rs. 6,000/-was also collected for each term by respondent No. 2 hospital. Mr. Oak submits that this is in the nature of capitalisation fees. As against that, Mr. Ram Apte points out that respondent No. 2 was allowing these students concerned to have their practical experience in the hospital run by respondent No. 2, and for which these fees were expected . He also points out that an additional stipend of Rs. 5,000/- to Rs. 5,500/ - per month is paid to the selected candidates. In any event, since these petitions are essentially concerning the procedure for selection, we do not express any opinion, on these two aspects. It would be open to the petitioners to raise these issues before respondent No. 1 College of Physicians and Surgeons and/or the Municipal Commissioner of respondent No. 2 for their decision and if aggrieved, take necessary steps thereafter.
17. In the circumstances, we have no option but to set aside this selection to the concerned posts in all these four petitions: viz. one post for D.D.V., two posts to D.C.H., one post to D.G.O. and one post for D.M.R.E. (Radiology). As far as the other posts advertised and filling of those vacancies is concerned, it is prima facie contrary to the rules prescribed by respondent No. 1. The said fact very much remains. However, since no petitions have been filed to challenge those selections and the selected candidates are not before us, it will not be possible for us to pass any order. It will however be within the powers of the Municipal Commissioner to cancel all those selections by applying the same principles. He may however do so after hearing the selected candidates. The Commissioner has as such stayed the selection. It will be within his powers to act as above. As far as the transfer proposed by the Dean for one Shri Abhay Naik to one additional post of D.G.O. Is concerned , prima facie, it is in violation of Rule 6 of GR dated 24th Oct., 1991. This is apart from the fact only one post was advertised. It will be within the powers of Municipal Commissioner not to transfer him for this additional seat and of respondent No. 1 not to register him.
18. Although these selections are set aside as above, we must provide for a curative mechanism which is as follows :--
(i) As per the circular of respondent No. 1 dated 17thJune, 1998 in all 100 marks were to be allotted. Respondent No. 2 allotted in all 80 marks only. Now, they will have to be revised to 100 marks as follows :--
(ii) Out of 100 marks, 50% were to be given for the marks in the concerned subject at the MBBS examination. Respondent No. 2 has given only 30 marks out of 80. We direct that the marks received in the MBBS examination for the concerned subject be revised out of 50.
(iii) 30% marks were to be given to the entrance examination out of 100 marks. Respondent No. 2 has given 30 marks for the entrance examination out of 80. They will have to be appropriately corrected.
(iv) 20% marks were reserved for the interview. As against that, respondent No. 2 gave 30 marks for Interview out of 80 and from these marks, 20 marks were reserved to be allotted by the Dean himself. That shall not be done. The marks will be restricted to 20% out of 100 and they will be given at the time to Interview itself. They shall not be split up.
19. Since the main problem has come up through the above referred departure, by adopting the curative mechanism suggested hereinabove, the situation can be remedied. After cancelling the selections to the above courses as directed above, there will be fresh Interview for filling those posts. These fresh interviews shall be held by inviting all the applicants by sending letters by Speed Post. The date of Interview shall be at least 10 days subsequent to the date of despatch of these letters. We specifically direct that the Dean shall not participate in the selection. We direct that the Municipal Commissioner will appoint a panel of two persons for each selection. Since nobody has appeared for respondent No. 1, we asked Mr. V.S. Gokhale, learned AGP as to whether the Director of Medical Education will help by either becoming himself available or sending representation at the stage of this selection and Mr. Gokhale has stated that the Director will participate in this interview or will send his nominee. One of the members of this panel will therefore be the Director of Medical Education or his nominee. As far as merit of the candidate in the particular subject is concerned. Clause 3 of para 4 ofthe Circular of respondent No. 1 dated 17th June, 1998 provides as follows :
'20 marks be reserved for interview which will obviously Include the aptitude as well as the suitability to the concerned post graduate training.
Thug as far as the other member of the panel of selection is concerned, he will have to be from the proper discipline to which the candidate has applied and suitability of the candidate and his aptitude is to be decided in the interview.
20. Mr. Jamdar, learned counsel for the respondent No. 3 in Writ Petition No. 838 of 2001, submitted that to remove all doubts, it would be desirable that the Heads of Departments and Professors from respondent No. 2 College be kept out of the Interview panel. We have seen the marks given by the Heads of Departments or the Professors who have participated at the time of interview and prima facie, we do not find any bias or partiality in their marking. In the circumstances, it will not be possible for us to presume any bias on their part and to rule them out. Hence the second representative at the time of interview shall continue to be the Head of Department/ Seniormost Professor and as stated above, the marks at the interview will be given at the same time by both the participants. Both of them will given marks out of 20.
21. The Municipal Commissioner of Thane will see to it that these interviews are held and finalised at the earliest, The above noted illegalities in the selection process, inter alia, have delayed the starting of the new courses, by a few months. Mr. Abhay Oak appearing for respondent No. 3 submitted that appropriate directions be given for this purpose. We except respondent No. 1 College of Physicians and Surgeons either to extend the term appropriately or to permit the selected students to give examinations at the relevant time by condoning the shortfall in the course necessitated by this situation. The respondent No. 1 is directed to act accordingly, it will have liberty to apply in case there is any difficulty.
22. Although we are allowing those petitions in the above terms, before we part with the matter. We must express our shock and distress at the manner in which the Dean of respondent No. 2 hospital has functioned in this matter. He has misused his position. The Secretary of respondentNo. 2 in his letter to the Heads of Institutions dated 17th June. 1998 prescribing the selection formula had expressed his confidence that every one of them was honest and not a saleable commodity, What we have observed with respect to the conduct of respondent No. 2 shatters one's confidence in any such belief. It is said that in a hospital run by a Municipal Corporation the selections are being made by the by-passing the relevant rules and more meritorious students. It ought to be noted that this shatters one's confidence in the system. It is not merely the confidence of the students and the candidates which is important. The public at large also ought to have a confidence in the selection system that the best candidates are selected. This is because they are going to be the Specialists in the particular medical discipline. W e except the Municipal Commissioner to go into these aspects very seriously and if necessary to take appropriate action against all concerns including the Dean of respondent No. 2 hospital Dr. M. R. Jape.
23. Rule made absolute as above. Respondent No. 2 hospital will pay costs of Rs. 5,000/- to each of the petitioners in these four petitions. It would be open to the Municipal Commissioner to recover these costs from the Dean of the hospital if the Commissioner comes to the conclusion that the Dean is responsible personally for the situation which led to these petitions.
24. Mr. Jamdar requests for stay of this order. Request is rejected.
25. Authenticated copy of this order be given to all the parties and all concerned including the College of Physicians and Surgeons. Thane Municipal Commissioner. Dean of the 2nd respondent Hospital and the Director of Medical Education are excepted to act on the authenticated copy.