Judgment:
T.D. Sugla, J.
1. The petitioners are the students of medical colleges under the management and control of Bombay Municipal Corporation (for short B.M.C). All of them passed M.B.B.S. examination in January 1987. By January 1988 they completed their internship and were registered with The Maharashtra Medical Council. Being desirous of pursuing studies in the Post Graduate Degree (M.D.) course in Radio Diagnosis in the colleges run by B.M.C., they applied for and qualified for the admission. However, as per Rule 4-B of the Rules for admission to BMC medical colleges then in vogue, when diploma and degree courses existed in a given subject, registration for the degree course was to be available on merit after completion of the terms for diploma course. All of them were, thus, admitted to diploma course in that subject (known as DMRD). In view of Rule 4A which then provided for institutional preference amongst B.M.C. medical colleges in the matter of admission to B.M.C. diploma as well as M.D. courses and the fact that there were equal seats in diploma and M.D. courses in almost all subjects, the petitioners were expected to be admitted to M.D. course in the subject as a matter of course on the completion of the diploma course. Assuming at a given time the number of students seeking admission in M.D. course was more than the seats available, the competition was going to be on merit amongst them only.
2. Rule 4B was deleted with effect from June 24, 1989. The result was that the admission to M.D. course thereafter was to be not only amongst those who had completed diploma course in that subject from B.M.C Medical Colleges, it was to be amongst all students who had passed M.B.B.S. degree course including those whose who had completed diploma course. This was to and in fact resulted in great prejudice to the petitioners and petitioner like others as their admission after deletion of Rule 4-B become a matter of tough competition as against admission as a matter of course under Rule 4-B. As Rule 4-A which provided for institutional preference was also struck down by the Supreme Court in March 1989 in the case of Municipal Corpn. of Greater Bombay v. T.A. Deokumar, : [1989]1SCR919 ; the competition for admission was to be not only amongst the students of the colleges run by B.M.C. but also amongst the students from any medical college recognised by the Medical Council of India. Another factor which added to difficulty of the petitioners and the petitioner like other students was while they would be entitled to or would ordinarily apply for admission to the M.D. course in a subject in which they completed diploma course, others particularly freshers, would be able to apply for admission in more than one subject and on selection be able to exercise choice.
3. In Writ Petition No. 2224 of 1989 filed by some students, the Dean, Faculty of Medicine, University of Bombay filed an affidavit in this Court. He admitted that hardship caused by deletion of Rule 4B was appreciated by the B.M.C. medical colleges and that in order to find a solution to the genuine problem of the affected students a meeting of the Deans of B.M.C. medical colleges and the Dean of Medical Faculty, Bombay University was held on July 21, 1989 in the Vice-Chancellor's chamber. It was decided that to meet the above unavoidable exigency due to peculiar and special circumstances, additional seats necessary to accomodate such students be created and that the University had agreed to the creation of necessary additional seats. In view of this statement in the affidavit and the unaimous decision to grant additional seats in different M.D. courses to accomodate all such students, the learned Single Judge Pratap, J., before whom the petition had come up for hearing issued the following directions at an interim stage :
'(a) The petitioners herein as also Dr. Manish K. Shah personally present in Court should be provisionally admitted to M.D. course at the G.S. Medical College, Bombay. The petitioners herein should be admitted to the M.D. Course in Radiology and Dr. Manish K. Shah to the M.D. Course in Skin and Veneral Diseases.
(b) The cases of all other students, whose names are disclosed at exhibit 'H' to the petition, will be considered for admission as soon as the additional seats equivalent to the aforesaid provisionally admitted students together with the students at Exh. H are created.
(c) The Deans of the three Municipal Medical Colleges viz. G.S. Medical College, Topiwala National Medical College and the Lokmanya Tilak Memorial Medical College are directed to urgently and in any event latest by Thursday, 7th September, 1989, send to the Vice-Chancellor of the University of Bombay, with a copy of the Dean Faculty of Medicine, University of Bombay, particulars asked for from them and which are referred to in paragraph 3 extracted supra from affidavit of Dr. S.N. Deshmukh.
(d) Cases of fresh M.B.B.S. graduates who have applied for admission to the M.D. Courses should be considered and decided on merits and in accordance with the prevalent rules and expressly subject to the result of this petition.
(e) In view of the peculiar circumstances and exigencies as reflected in the present petition and the resultant injustice for no fault on the part of the petitioners and the other students similarly situated it is directed that the date of registration for the M.D. Course should be extended till and inclusive of 25th September, 1989.'
4. Similar writ petitions came up for hearing before the learned Single Judge Variava, J. in Writ Petition No. 2716 of 1989 with Writ Petition Nos. 2768, 2957 and 3397 of 1989. By his judgment and order dated December 5, 1989 Variava, J., also issued similar directions.
5. It appears that in pursuance of the above unanimous decision between the Deans of the Medical Colleges and the University, the Dean of Lokmanya Tilak Memorial Medical College, one of the three B.M.C. Medical Colleges respondent No. 3 herein had decided to create 7 additional seats (5 open merit, 1 S.C. and 1 O.B.C) in M.D. Radiology for January 1990 term. However, the Dean, if further appears, being not very sure about the directions of this Court, sought clarification from the Court before implementing the judgment. He therefore, made it clear in the notice that the creation of additional seats was tentative and subject to the clarification given by this Court. All the names of students who had completed diploma course and had applied for admission to M.D. Radiology were shown on the notice board on some basis not very clear from the notice. As the petitioner's names were shown in the notice at Sr. No. 10, 9, 12, and 6 respectively, they feared that they may or may not be admitted to the M.D. Course. It is for this reason that they have filed the present petition. It may be stated that the number of such students is 6, though the petitioners herein are 4 in number. The other two students who have also done DMRD course from MC colleges are Vaishali Jhaveri and Milind S. Gune who are neither amongst the petitioners nor amongst respondents.
6. The respondent students are, it may be mentioned, from two sources. Respondent Nos. 9 and 10 have completed their diploma course from Tata Memorial Hospital. Respondent Nos. 6, 7, 8, 11, 12 and 13 have their diploma course from Grant Medical College. Out of the six students belonging to the Grant Medical College respondents Nos. 6, 7, 8 and 13 were admitted to diploma course prior to June 1987 batch.
7. On going through the affidavit of Shri Deshmukh, Dean, Faculty of Medicine of University of Bombay reproduced in paragraph 7 of the petition and the statement made on behalf of B.M.C. reproduced in the judgment of Variava, J., it is evident that actually the additional seats were created for students of B.M.C. medical colleges who had undertaken diploma course in terms of Rule 4B in one of the 4 batches, namely, June 1987, January 1988, June 1988 and January 1989. As stated earlier, these were the students who joined diploma course in the legitimate expectation that their admission to M.D. course will practically be as a matter of course on their completion of diploma course. As a result of deletion of Rule 4B, however they were placed in a very awkward situation. In other words for admission to M.D. Course which was to be almost automatic they will now be required to compete along with M.B.B.S. students of all medical colleges in the country as Rule 4A had also been struck down in March 1989. Further the additional seats were to be created only for four terms commencing June 1989, January 1990, June 1990 and January 1991 being the terms in which the students falling in the above category would have obtained admission to M.D. course practically as a matter of course but for the deletion of Rule 4B. The number of the additional seats was to be fixed after ascertaining from the Dean of each B.M.C medical college the number of students so required to be accommodated, number of additional seats not exceeding the number of existing or original seats.
8. The case of the respondent-students from Tata Memorial Hospital and Grant Medical College is that they are also adversely affected by the deletion of Rule 4B and therefore additional seats created in B.M.C. medical colleges should be available to them as well.
Shri Rane, the learned Counsel appeared for respondent No. 7. He stated that the additional seats were not and could not have been created only for the students from B.M.C Medical Colleges who had undertaken diploma course. The students from Grant Medical College were, he contended, equally affected. In the circumstances, if additional seats created were available to the students from B.M.C. medical colleges only, it will amount to discrimination and violate Article 14 of the Constitution. In response to a query from the Bench Shri Rane fairly admitted that Rules for admission to M.D. courses in Grant Medical College did not contain rule like Rule 4B. He, however, stated that was not going to make such difference in the situation. After Rule 4A is struck down by the Supreme Court in March 1989, it will open for the students of all medical colleges all over India including Grant Medical College to compete for M.D. seats in B.M.C. Medical Colleges. There is no dispute that it is so in the case of original seats. Respondent No. 7 had also undertaken diploma course. With the deletion of Rule 4B he will also have right to compete for admission to M.D. course in B.M.C. medical colleges also with the students of M.B.B.S. degree. There was, thus, no material difference between the students of Grant Medical College and B.M.C. Medical Colleges in this regard. Both have completed diploma course.
It is pertinent to mention that in Grant Medical College rules for admission permitted admission direct to M.D. course. Respondent No. 7 could not get admission direct to M.D.; the reason was that his merit was found to be lower than the merits of those who were admitted direct to M.D. His case thus, cannot be compared with students of B.M.C. medical colleges who were meritorious but had to undertake diploma course because of Rule 4B. In B.M.C medical colleges there was no direct admission to M.D. Course. Under the rules then existed the students after completion of diploma course alone were entitled to admission to M.D. Course. As stated earlier number of seats in M.D. courses in B.M.C. medical colleges is almost equal to the seats in diploma course. Therefore, the admission of students who had taken diploma course in B.M.C medical colleges to M.D. course was be practically as a matter of course. Respondent No. 7 was even then required to compete for admission to M.D. course even in his own college i.e. Grant Medical College. With the striking down of Rule 4A and deletion of Rule 4B, respondent No. 7 has not been adversely affected. On the contrary he will now be able to compete for admission to M.D. course in all medical colleges in India including B.M.C. medical colleges. It is true that the admission to M.D. Course in Grant Medical College will also be open to the students from all medical colleges but then it is not possible to accept that his chances of admission to M.D. course are in any way adversely affected. In any event for the below mentioned two reasons his case is certainly not comparable to those of B.M.C. medical colleges :
1. Students of B.M.C. medical colleges were selected on merit but had to undertake diploma course because of Rule 4B whereas respondent No. 7 was not selected on merit for admission to M.D. course ; and
2. Students of B.M.C. medical colleges were to get admission to M.D. course practically as a matter of course whereas respondent No. 27 was to compete for it even then.
9. The case of respondent No. 8 is rather worse. Besides being from Government Medical College, he completed diploma course in October 1987. Rule 4B was then admittedly in vogue. But rule 4A also existed then. He had a bleak chance to get admission to M.D. course in B.M.C. medical college in January 1988, June 1988 and January 1989 sessions. It is difficult to appreciate how he is adversely affected by the deletion of Rule 4B. In any event, he is certainly not affected as adversely as the students of B.M.C. medical colleges who join diploma course due to Rule 4B in June 1987, January 1988, June 1988 and January 1989 batches.
10. Shri Singhavi, the learned Counsel appeared for respondent No. 6 stated that his client had also completed diploma course in Grant Medical College. According to Shri Singhavi, the judgments of Pratap, J. and Variava, J., clearly proved that the admission to the additional seats was to be open to all students who had completed diploma course and not restricted to such students of B.M.C. medical colleges only.
We are afraid we are not in agreement with his reading of the judgments. Justice Pratap's directions by way of interim order, to our mind are crystal clear and not capable of any view other than that the additional seats were created to be given to the students of the B.M.C. medical colleges who had to join diploma course in four batches, June 1987, January 1988, June 1988 and January 1989 because of Rule 4-B. It may be that if a line here and there from Justice Variava's judgment, is read out of context, one may get the impression that the additional seats were to be open to students of medical colleges and not restricted to the students of B.M.C. medical colleges only. However, the judgment read as a whole, leaves one in no doubt that the additional seats were created for the students of B.M.C. medical colleges only and there again for the students of the above mentioned batches only. Reference is, of course, made to the Supreme Court decision in the judgment and it is stated that admission on the basis of institutional preference will not be made. However, in the context in which it is said it cannot but mean that rule will not be followed.
11. Shri Madan, the learned Counsel for respondent No. 9 and Miss Madan, the learned Counsel for respondent No. 10 stated that the two students were from Tata Memorial Hospital. Rules for admission to Post Graduate Degree and Diploma Course in Tata Memorial Hospital contain a rule i.e. Rule No. 6 like Rule 4B in B.M.C. medical colleges and that rule has not been deleted. It was stated that the respondent Nos. 9 and 10 had also to complete diploma course before becoming eligible to apply for M.D. course. When the said Rule still exists in that college, it is not possible to accept that the deletion of Rule 4B from the Rules for admission to M.D. courses of the BMC medical colleges had adversely affected these students. There is one more aspect which requires to be borne in mind. When these two students got admission in 1987 both the rules i.e. 4A and 4B existed in the Rules for admission to M.D. course to the B.M.C. medical colleges. That being so to say the least, the respondents Nos. 9 and 10 in 1987 could not have expected their admission to the M.D. course in the BMC medical colleges. It was only in March 1989 when Rule 4A was struck down by the Supreme Court that they might have, if at all hoped to apply for admission to M.D. course in B.M.C. medical colleges as well as to all other medical colleges in the country. In June 1989 Rule 4B was abolished. So looked at from practical point of view their prospects for admission to M.D. course in BMC medical colleges became brighter as they became eligible to apply and compete for admission to M.D. course in BMC medical colleges for the first time. There is no dispute that for original M.D. seats in BMC medical colleges the respondent Nos. 9 and 10 are as much entitled to compete as any other student.
12. It is, thus, evident that respondent Nos. 6 to 13 are not similarly situated as the petitioner Nos. 1 to 4 and Milind S Gune and Vaishali Jhaveri are. As already stated, these are the students who were admitted to the diploma course in terms of Rule 4-B. They were entitled to have legitimate expectation that they will get admission to M.D. course in BMC medical college almost as a matter of course. With deletion of Rule 4B their chances became bleak. They are, thus, adversely affected. While creating additional seats the authorities have taken due consideration of the fact that the students belonging to four batches i.e. June 1987, January 1988, June 1988 and January 1989, alone have suffered substantially as by the time they completed or will be completing diploma course benefit of Rule 4-B under which they had originally got admission will not be available.
13. Shri Rane, it may be stated, had also contended that such students from BMC medical colleges had double advantage as they could compete for original seats and the additional seats were reserved for them. This, according to Rane, was unfair to the respondents. He suggested that at least to the extent such students got admission by open competition in the original seats, the number should be available for competition to all diploma holders irrespective of the medical colleges from which they have completed the course. In our judgment, the argument does not hold water. From that we have stated earlier, admission to diploma course in BMC medical colleges in terms of Rule 4B was practically an assurance of admission to respective MD courses on completion of diploma course in view of Rule 4A and 4B then existed. Had Rule 4B not been deleted, these students would have got admission, as a matter of course. As against that what is done now is that additional seats are created for those who are not able to obtain admission by competition for original seats. We fail to appreciate how does the creation of additional seats give them double advantage.
BMC medical colleges have agreed to and will create as many additional seats in M.D. Radiology as necessary to accommodate the adversely affected students of BMC medical colleges from the above said four batches.
An argument was advanced that the creation of additional seats exclusively for BMC medical college students as above amounted to institutional preference. In our view, the argument is devoid of merit. We have already stated how badly these students have suffered as a result of deletion of Rule 4-B from the Rules for admission to BMC medical colleges M.D course after their admission to diploma course under that rule. The students from Grant Medical College have not so suffered as in their college Rule 4B or equivalent Rule was never there. Students from Tata Memorial Hospital have also not suffered as in their college a similar rule was there earlier and exists even now. These students, thus, constitute a class apart. Additional seats created to ameliorate their difficulties of such a class of students can by no stretch of imagination be considered institutional preference.
14. It may be stated that Shri Milind S. Gune, one of the similarly affected students appeared in person. Besides supporting the petition he stated that though like petitioners his registration for M.D course got delayed on account of pending litigation, he was working as Registrar for one year i.e. from July 1989. He submitted that in that view of the matter his registration may be directed to be treated in January 1990 so that he does not lose one term. In the absence of necessary material we do not know whether it is permissible to do so. All the same his request appears to be reasonable. We accordingly direct the BMC and the University authorities to consider his request sympathetically.
In the result, Rule is made absolute with the directions as above.
No order as to costs.