A.G. Qureshi, J.
1. The petitioners in this petition have passed their M.B.B.S. examination in September, 1987 and completed their internship on 17-11-1988. They also completed their house job in the Department of Paediatrics in the M. Y. Group ofHospitals attached to M. G. Medical College, Indore 17-11-1989. They are, therefore, desirous of getting admission in P. G. degree course in Paediatrics or in the alternative P. G. diploma course in Paediatrics leading to the diploma in DCH. According to the petitioners, in the Department of Paediatrics inthe M. G. M. Medical College, Indore, there are 11 seats in the post graduate courses. 5 of them are for degree course leading to degree of M. D. Paediatrics. Out of 5 seats, 3 are earmarked for merit candidates and one each for Assistant Surgeons and candidates coming from All India Pre P. G. quota. 6 seats arefor diploma course leading to diploma in DCH. Out of 6 seats, 2 seats each are reserved for merit candidates, Assistant Surgeons and All India Pre-P. G. candidates. The Government of Madhya Pradesh has framed rules for post graduation in clinical, para-clinical and non-clinical disciplines in Medical Colleges in M.P. These rules do not have statutory force but are executive instructions by way of guide lines issued by the State. Rule 4(a) provides for availability of seats in the Medical Colleges. The rule further says that the seats for admission shall be determined in accordance with the Medical Council of India Regulations and the strength shall be revised every January on the basis of the post-graduate teachers available as on 31st of December of the preceding year. The Medical Council's recommendations have been approved as Regulations under Section 33 of the Indian Medical Council Act, 1956 by the Government of India, according to which teacher and taught ratio has to be 1 : 1 in post-graduate degree courses and 1 : 2 in post-graduate diploma courses. According to the list givenby the petitioners in para 7 of the petition,there are seven qualified teachers in the M.G.M. Medical College. Therefore, the numberof seats in Paediatrics Department for thepost-graduate admission should have been 7in degree courses and maximum 12 fordiploma course. But only 5 post-graduateteachers have been shown by the respondentsignoring two teachers in the list who hadbecome eligible as post-graduate teachersduring the year 1988. Therefore, while revising the seats only 5 seats were made availablefor the P. G. courses in the M. G. M. MedicalCollege and 6 seats in the diploma course.Action of the respondents in not increasingthe seats is extremely arbitrary, unjust andimproper. It is not the sweet will of theGovernment whether to increase the seat ornot. On 16-11-1989 the petitioners represented for the increase of seats. The representation was forwarded and recommended by theDean, M.G.M. Medical College. Indore tothe Director, Medical Education, M. P.Bhopal. Therefore, the petitioners have prayed that the number of seats should be increased in accordance with All India MedicalCouncils recommendation and the petitionersbe admitted against the vacancy so created.One Dr. Sangeeta Dandwate has joined thepetitioners as an intervener and she supportsthe case of the petitioners except the prayerwherein she states that she being superior inmerit deserves to be admitted in preference tothe petitioners.
2. Resisting the case of the petitioners, the State in its return has stated that out of 10 persons getting admission, 7 get house job in H. Y. Hospital while 3 in Chacha Nehru Hospital. However, it is denied that there are 7 qualified teachers in the hospital. According to the respondents, 2 qualified teachers are posted in the Chacha Nehru Hospital and since the hospital is a separate entity it is only attached to the Medical College. Therefore, these two teachers cannot be considered for Paediatrics Department of the Medical College and can be withdrawn any time. As regards the creation of additional seats, it has been stated that seats can be created with the consent of the State Government and as there being an imbalance in the teacher-taughtratio, the Government has decided to freeze the number of seats in the medical colleges of the State. The State Government, therefore, cannot increase the number of seats. In an affidavit filed with the rejoinder by one of the petitioners, Dr. Goswami, it has been stated that the State has made a wrong statement while stating that there are only 5 qualified teachers. The teachers at Chacha Nehru Hospital are attached to M.G.M. Medical College, Indore and for the purpose of post-graduation they are recognized teachers. The house job done at Chacha Nehru Hospital is treated as house job done in the M.G.M. Medical College. Indore, and on the basis of that the P. G. seats are allotted to the candidates completing house jobs in Chacha Nehru Hospital. If, for the purpose of house jobs, Chacha Nehru Hospital is taken to be attached to M.G.M. Medical College, it cannot be deemed to be a separate hospital, unconnected with the M.G.M. Medical College for the purpose of counting the postgraduate teachers working in the Chacha Nehru Hospital in the strength of qualified teachers for the purpose of post-graduate courses in M.G.M. Medical College, Indore. The State is responsible of committing grave irregularities in the matter of admissions in post-graduate courses in Medical Colleges of the State. If the proportion of teacher taught ratio is disturbed by the State itself it cannot penalise the candidates at Indore by freezing the seats due to the increase in the number of seats in other medical colleges. Actually the imbalance created by the State may cause even derecognizing of the medical college in which the seats are in excess of the teachers. It has also been denied that the posts in Chacha Nehru Hospital are temporary. A list of teaching staff at Chacha Nehru Hospital has also been annexed.
3. The Court vide its order dated 15-12-1989 directed that the State should take decision about the increase in the number of seats and the case was directed to be listed on 4-1-1990, The State came up with the reply that in view of Rule 4(a) of the Rules of the M. P. admission, the seats cannot be increased because the rules provide for freezing of the seats. The State has in a lengthy reply to therejoinder set forth the principles in the matter of determination of the number of seats and has clearly said that although Dr. Thora is found to be a qualified teacher and the State is not certain about Dr. Jain still the seats cannot be increased because of the total imbalance of the teacher taught ratio in the State. Thereupon this Court had directed the State to state whether after the decision of freezing the seats by the State Government in accordance with Rule 4(a), whether any seats have been increased in the State in any discipline, in reply to which the State has filed the statement pertaining the increase in the seats which shows that the number of seats have been increased in different medical colleges despite the decision of the Government to freeze the seats as contained in Rule 4(a) of the Rules of admission in medical colleges.
4. Learned counsel for the petitioners Shri V.S. Kokje has in support of his arguments contended that, the document placed on record clearly shows that the State has adopted a discriminatory policy in the matter of allocating the seats in different medical colleges. On one hand the State says that Rule 4(a) of the rules provides for total freeze in the increase of number of seats in medical colleges, whereas the statement shows that the seats have been increased in utter violation of Rule 4(a) of the rules for P. G. degree and diploma admissions. Rule 4(a) has also been attacked on the ground of unreasonableness and arbitrariness. The learned counsel Shri R, R. Waghmare appearing on behalf of intervener has also supported the arguments advanced by Shri Kokje.
5. On the other hand, learned Government Advocate, Shri Surjeet Singh supporting the stand taken by the State argues that the freezing of the seats became necessary in view of the imbalance of the teacher taught ratio in the State. According to the learned counsel, Shri Singh even if the seats are increased, such increase shall not benefit the petitioners. The petition has also been opposed by Shri Singh that the financial implications are also involved in the decision of increasing the seats. Therefore, the govern-eminent has rightly taken a decision of not increasing the number of seats as prayed by the petitioners. He has also placed reliance on a recent Supreme Court decision in support of his argument that the Court should not direct to increase the number of seats.
6. The first point arises for consideration is whether the Chacha Nehru hospital is a part of the M.G.M. Medical College, Indore and whether the post created in that hospital can be treated as the post of teacher in the M.G.M. Medical College, Indore. The petitioners have filed the details of the teachers available in the M.G.M. Medical College, Indore and the Chacha Nehru Hospital. According to Clause 2(x) of the recommendations of the Medical Council of India on the minimum qualification of the post-graduate teachers, all the 7 teachers enumerated in para 7 of the petition are qualified post-graduate teachers and, therefore 7 seats should have been created in the Paediatrics Department and 12 seats should be created for the diploma course in the said discipline. According to the State on the other hand, two teachers out of 7 enumerated in the list given by the petitioners are posted in Chacha Nehru hospital and since the hospital is a separate entity which is run by a trust it is attached to the Medical College Indore only for administrative purposes. Therefore, these two teachers cannot be considered as the post-graduate teachers in the M.G.M. Medical College, Indore. This is an issue which has to be decided by the Government itself. However, the petitioners have filed a list of the teachers prepared by Dr. K.P. Belapurkar, Reader and Acting Head of Paediatrics Department of the M.G.M. Medical College, and M.Y.H. Indore, in which 7 teachers as shown by the petitioners have been mentioned as the teachers in the Department. However, in the same list teachers at serial Nos. 6 and 7 are mentioned as teachers, who are not eligible as post-graduate teachers according to the recommendations of the Medical Council of India. As such, this being a controvertial issue of fact, this can best be decided by the Government itself and we hope that the Government shall decide this issue objectively keeping in mind the interest of the medicaleducation and the students at large because in a country like ours with limited resources cannot afford to allow two qualified medical teachers to be wasted without utilizing their services for training at least two post-graduate doctors and 4 doctors in diploma course.
7. The second question which has to be decided is whether in accordance with Rule 4(a) of Post-Graduation Admission Rules framed by the Government of M.P. there has actually been a freezing in the number of seats in the different medical colleges in Madhya Pradesh. Although Rule 4(a) provides that the number of seats shall stand freezed but from the record and specially the letter of the Director of Medical Education, Madhya Pradesh dated 7-2-1990 to the Dean of the Medical College, Indore clearly shows that despite the revision of post-graduate rules in July, 1984 wherein Rule 4(a) was incorporated, the P.G. degree seats were increased by 2 in Surgery at Raipur and 2 in Surgery at Indore for the 1985 batch of house officers, by 1 each in Ophthalmolory, Anaesthesia and Radiology at Raipur for the 1986 batch, and again by 2 in Medicine at Raipur for the 1987 batch. In all, 7 additional seats have been created at Raipur and 2 at Indore. Some seats were made time bound. It means that they were available only for specific period but even the time-bound seats were renewed every year subsequent to their creation. 6 time-bound seats were renewed for the year 1989 although a decision Was taken regarding freezing of seats in 1984 and a rule was incorporated in post-graduation admission rules to that effect but it is manifest from the above that the seats were increased from time to time in different medical colleges despite Rule 4(a) of the rules for post-graduate admission. As such, the freezing of the seats is only on the paper and actually not implemented. As such, the State cannot press that rule in service for claiming that because of freezing additional seats cannot be created at Indore. Therefore, we are of the view that Rule 4(a) has been rendered ineffective by the actions of the State government itself and that is why that rule is not available to the State to justify the refusal for creation of additionalseats. However, we find some impediments in directing the State Government to create additional seats. The first impediment is pertaining to the factual position of the number of qualified post-graduate teachers available in the Department concerned. As held above that decision has first to be taken by the State Government in the light of what we have observed above. The second impediment is the absence of the opinion of the informating Medical Council in this behalf. Medical Council of India is not a party before us and we are not aware of the financial implication also in respect of creation of seats. The Supreme Court in State of Maharashtra v. Minoo Noazer Kavarana, AIR 1989 SC 1513 has held as under (at P. 1515):-
'There is considerable force in the contention of Mr. Ramaswamy that the High Court was also not justified in directing creation of additional seats. The additional seats can be created only if the Indian Medical Council approves of such creation. In the instant case, the Indian Medical Council has vehemently opposed before us the creation of the additional seats. There is also the question of bearing the cost of creation of additional seats. The High Court, in our opinion, should not have directed the creation of additional seats. In exceptional circumstances and for ends of justice, the Court may direct the creation of one or two seats after giving the Indian Medical Council an opportunity of being heard, but surejy the Court should not direct the creation of so many additional seats when neither the Government nor the Indian Medical Council consents to such creation. In the circumstances, it is difficult to sustain the impugned judgment of the High Court.'
In view of the aforesaid, the Court can direct the creation of additional seats only when the Indian Medical Council has an opportunity of being heard in the matter and the Court also takes into consideration the final implications of the Government.
8. Therefore, we direct that the Government should take a decision in respect of increasing of the seats after consultating the Indian Medical Council in this respect and also considering the financial implication inrespect of creation of seats. We do hope and expect that the Government shall take a decision objectively in this matter also and in the public interest. If the teachers are available in the M.G.M. Medical College, Indore in the said discipline and the Indian Medical Council also does not object to the creation of additional seats coupled with the financial consideration, the State Government should take a decision in that behalf expeditiously in view of what has been observed about the waste of the teachers for non-availability of the students in the ratio, provided by the' Indian Medical Council which is I : 1 ratio in the case of post-graduate seats and 1 : 2 ratio in diploma seats. After taking a decision in this behalf if the additional seats are created; then the case of the petitioners and intervene? shall be considered by the State Government for their admission to the course desired by them in accordance with the rules. It has been1 stated by the Government Advocate before us' that even if the seats are increased the petitioners shall not be benefited by such increase.' We are at present not concerned with the issue as to who shall be benefited. Principally we' are of the opinion that if the number of teachers are available in a particular Medicat College, then the ratio of the student in that college should be in accordance with the guide lines of the Indian Medical Council. In view of what has been discussed above, the relief as sought by the petitioners cannot be granted to them. However, in view of the directions, the State Government shall decide the matter within a period of one month. The petition is disposed as above with no order as to costs.