Dr. T. Manohar Vs. Selection Committee of Post-graduate Degree and Diploma Course of Medical Education - Court Judgment

Excerpt:
karnataka medical colleges & dental colleges (selection for admission to post - graduate courses) rules, 1989 - rules 7 & 11 : karnataka medical & dental entrance test for admission to post-graduate courses rules, 1987 - rule 7 (1a) - latter portion of rule 11, excluding even meritorious candidates already selected for any course, offending article 14 of constitution of india, struck down.; under rule 7 of the admission rules, selections shall be made on the basis of merit determined on the merit list prepared under the entrance test rules and such list shall be the first merit list. under sub-rule (1a) of rule 7 of the entrance test rules, after the publication of the first merit list, the seats falling vacant on account of non-reporting of candidates or rejection of candidates or any increase in seats shall be filled up by giving an option to the candidates who have been selected in the first merit list and got admitted to the colleges allotted by the selection committee, though it was provided that the option shall be limited to the college and course. the first portion of rule 11 of the admission rule is also similar in nature. it lays down that any vacancy due to the failure of the selected candidates who join the college within the last date and time specified by the selection committee shall be filled up by the selection committee from among the first available candidates. it is only the latter portion of rule 11 that appears to offend article 14 of the constitution of india, which excludes candidates who have already been selected for any course from being considered, even though they are meritorious than others. this portion of rule 11 runs contrary to clause (a) of sub-clause (1a) of rule 7 of selection test rules... there could be no hesitation in striking down the latter portion of rule 11 of the admission rules which reads as : 'however, while filling the vacancies, candidates who are already selected for the course shall not be considered'. the rest of rule 11 shall stand. - industrial disputes act, 1947. section 10: [s.r. bannurmath & a.n. venugopala gowda, jj] belated reference - delay of more than 13 years from the date of termination - revival of stale claim by single judge, on the ground that the claim of the workmen cannot be thrown out on grounds of delay writ appeal n- held, the conduct of the respondents/workmen viz., keeping quite for almost more than 13 years from the date of termination for raising industrial dispute and especially, when they accepted the wages for the period 1988-89 to 1991-92 in the year 1995, as per the pronouncement of the apex court in the slp of the management and still did not demand employment or questioned the termination, in the year 2000 they filing an application claiming for the gratuity and withdrawing the same, indicates that all along these workmen were award of not only their termination but also their rights or entitlement for reference challenging termination. having kept quite all along for more than 13 years, now rising the dispute only because the apex court had directed regularisation of other workmen, such a dispute amounts to a stale claim and such a stale claim of the workmen cannot be revived and given life. further, no doubt there is no limitation or time limit prescribed under the industrial disputes act for the appropriate government to exercise power under section 10 of the act, but, that does not mean that this power can be exercised at any point of time and to revive stale matters. order of the learned single judge is not justified -- section 10(2a) [as amended in karnataka]: reference - stale claim workmen were aware of not only their termination but also their rights or entitlement for reference challenging termination, but kept quiet all along for more than 13 years and raising dispute only because apex court had directed regularisation of other workmen held, stale claim of workmen cannot be revived and given life. - - any vacancy due to the failure of a selected candidate to join the college within the last date and time specified by the selection committee or for any other reason, such seats shall be filled by the selection committee from among the next available candidates. it lays down that any vacancy due to the failure of the selected candidates who join the college within the last date and time specified by the selection committee shall be filled up by the selection committee from among the first available candidates. it is clear that the said portion of rule 11 prohibits the authorities from considering more meritorious candidates and enables the authorities to prefer less, meritorious candidates, which clearly offends article 14 of the constitution of india. 72, 75, 94, 106, 109 and 120, which is clearly discriminatory and violative of article 14 of the constitution of india.ordereswara prasad, j.1. the matter was heard at the preliminary hearing stage and at the request of learned counsel for the petitioner and the learned government advocate, the writ petition is finally disposed of.2. the petitioner seeks directions to the respondents to select him for the course of m.s. (general surgery) and admit him to the said course in any of the government medical colleges in the state of karnataka.3. the petitioner completed his m.b.b.s. course in the year 1991 and thereafter appeared at the entrance test for admission to the post graduate course in government medical colleges. in the merit list published and also notified in the college list, the ranking obtained by the petitioner is 67. the petitioner's first preference was m.s. (general surgery) and the second preference was diploma in medicine. the petitioner belongs to the general category and he was given a seat in d.m.r.d, which is a diploma course. as the last date for admission was 31-3-1994, the petitioner got himself admitted on 31 -3-1994 to the diploma course in the bangalore medical-college.4. subsequently, the second list of selected candidates in respect of the seats in post graduate course was published on 7-5-1994. in the said list, the name of the petitioner did not appear for m.s. (general surgery) whereas the names of 6 other persons who obtained ranks far below the petitioner is that he was not given an option before publishing the second list and he was denied admission into m.s. (general surgery), whereas persons who obtained lessor ranks in merit than the petitioner were given admission.5. the learned counsel for the petitioner submitted that the procedure for selection is laid down under rule 7 of the karnataka medical colleges and dental colleges (selection for admission to post-graduate courses) rules, 1989, (hereinafter refers to as the 'admission rules' for convenience) and that according to sub-rule, selections shall be on the basis of merit, subject to the reservation provided under rule 6 and that the petitioner should have been given an option as per rule 7(1)(a) of the medical and dental entrance test for admission to post-graduate courses rules, 1987, (entrance test rules for short). on the other hand, the learned government advocate submitted that sub-rule 1(a) of rule 7 of the admission rules was struck down by this court in dr. m. rajeshwari v. state of karnataka 1993(3) klj 193 and therefore, sub-rule 1 (a) of rule 7 of the dental [entrance test] rules which is in pari materia with sub-rule 1(a) of rule 7 of the admission rules also cannot be enforced and consequently, rule 11 of the admission rules comes into play. he further contended that under rule 11 while filling the vacancies, candidates who were already selected for any course shall not be considered and therefore the petitioner could not be given a seat in m.s. (general surgery),6. it is necessary to notice the relevant rules for the purpose of determination of the case. rule 7 of the admission rules lays down the procedure for selection and is in the following terms:-'subject to the reservation provided under rule 6, in respect of seats specified under sub-rule (3) or rule 5, the selection shall be on the basis of merit determined in the merit list prepared under the entrance test rules and such list shall be the first merit list.' from the reading of the above rule, it follows that the selection shall be based on the merit list prepared under the entrance test rules and such list shall be the first merit list, subject to the reservation provided under rule 6 in respect of seats specified under sub-rule (3) of rule 5, merit list shall be prepared under rule 7 of the entrance test rules.7. rule 7 reads as follows:-'7(1) subject to the reservation provided under rule 6, in respect of seats specified under sub-rule (3) or rule 5, the selection shall be on the basis of merit determined in the merit list prepared under the entrance test rules and such list shall be the first merit list.(1a) after publication of the first merit list, the seats falling vacant on account of non-reporting of candidates of rejection of candidates or any increase in seats be filled as specified below:-(a) the candidates who have been selected in the first merit list and got admitted to the colleges allotted by the selection committee shall be given an option to change their course or college or both.provided that such option shall be limited to the college and course specified in the application for admission.(d) the selection committee shall prepare such number of merit lists and modified lists as may be necessary to complete admission in the manner specified in clauses (a) and (b).(rest of the rule is not relevant).rule 11 of the admission rules is in the following terms:-'any vacancy due to the failure of a selected candidate to join the college within the last date and time specified by the selection committee or for any other reason, such seats shall be filled by the selection committee from among the next available candidates. however, while filling the vacancies, candidates who are already selected for any course shall not be considered.' 8. the learned government advocate bases his contention on the later portion of rule 11, which excludes consideration of candidates already selected for any other course while filling up the vacancies mentioned in the earlier portion of rule 11.9. the learned counsel for the petitioned filed an application-i.a.no. for amending the prayer in the writ petition for adding additional grounds. the petitioner attacks rule 11 as violative of article 14 of the constitution of india as it confers an arbitrary power on the selection committee to deny admission to more meritorious candidates in preference to less meritorious candidates and rule-11 is sought to be struck down as violative of article 14. the learned government advocate filed objections to the said application and both the application and objections were considered and the amendment is allowed and the petitioner is permitted to raise the additional ground.10. sub-rule 1 of rule 7 was struck down by this court in dr. m.rajeshwari's case referred to above. sub-rule (1 a) of rule 7 of the selection rules still remains on the statute. learned government advocate contends that the judgment of this court in dr. m. rajeshwari's case is erroneous and requires reconsideration. while considering the writ petition, it is not necessary to go in to the said question which may arise at an appropriate stage later. here, we are only concerned with rule 7 of the admission rules and rule 7 along with sub-rule (1a) of the entrance rules which are still on the statute and rule 11 of the admission rules.11. under rule 7 of the admission rules, selections shall be made on the basis of merit determined on the merit list prepared under the entrance test rules and such list shall be the first merit list. under sub-rule (1a) of rule 7 of the entrance test rules, after the publication of the first merit list, the seats falling vacant on account of non-reporting of candidates or rejection of candidates or any increase in seats shall be filled up by giving an option to the candidates who has been selected in the first merit list and got admitted to the colleges allotted by the selection committee, though it was provided that the option shall be limited to the college and course. the first portion of rule 11 of the admission rules is also similar in nature. it lays down that any vacancy due to the failure of the selected candidates who join the college within the last date and time specified by the selection committee shall be filled up by the selection committee from among the first available candidates. it is only the latter portion of rule 11 that appears to offend article 14 of the constitution of india, which excludes candidates who have already been selected for any course from being considered, even though they are more meritorious than others. this portion of rule 11 runs contrary to clause (a) of sub-clause (1a) of rule 7 of the selection test rules,12. the learned government advocate submitted that keeping in view of various decisions of the supreme court of india, the authorities are framing comprehensive rules. be that as it may, the latter portion of rule 11 of the selection rules which offends article 14 of the constitution and also clause (a) of sub-clause (1 a) of rule 7 of the entrance test rules cannot be allowed to stand. it is clear that the said portion of rule 11 prohibits the authorities from considering more meritorious candidates and enables the authorities to prefer less, meritorious candidates, which clearly offends article 14 of the constitution of india. i have therefore no hesitation in striking down the latter portion of rule 11 of the admission rules which reads as:'however, while filling the vacancies, candidates who are already selected for the course shall not be considered.'(the rest of rule 11 shall stand.)13. the authorities are bound to give effect to rule 7(1a) of the entrance test rules and ought to have given an option to the petitioner before considering candidates who have obtained lesser ranks. it is to be seen that the petitioner obtained ranking no. 67, whereas, the selected candidates obtained ranking nos. 72, 75, 94, 106, 109 and 120, which is clearly discriminatory and violative of article 14 of the constitution of india. it therefore follows that the petition should be allowed and the respondents are directed to consider his application for admission to m.s. (general surgery).14. the writ petition is accordingly allowed, striking down the latter portion of rule 11 of the karnataka medical colleges and dental colleges (selection for admission to post-graduate courses) rules, 1987. the respondents are directed to consider admission of the petitioner to m.s. (general surgery) in accordance with the rank obtained at the entrance test for the ensuing course in m.s. (general surgery) within one week from the date of this order.

Judgment:
ORDER

Eswara Prasad, J.

1. The matter was heard at the Preliminary Hearing stage and at the request of learned Counsel for the petitioner and the learned Government Advocate, the Writ Petition is finally disposed of.

2. The petitioner seeks directions to the respondents to select him for the Course of M.S. (General Surgery) and admit him to the said course in any of the Government Medical Colleges in the State of Karnataka.

3. The petitioner completed his M.B.B.S. course in the year 1991 and thereafter appeared at the Entrance Test for admission to the Post Graduate Course in Government Medical Colleges. In the merit list published and also notified in the College list, the ranking obtained by the petitioner is 67. The petitioner's first preference was M.S. (General Surgery) and the second preference was Diploma in Medicine. The petitioner belongs to the general category and he was given a seat in D.M.R.D, which is a Diploma Course. As the last date for admission was 31-3-1994, the petitioner got himself admitted on 31 -3-1994 to the Diploma Course in the Bangalore Medical-College.

4. Subsequently, the second list of selected candidates in respect of the seats in Post Graduate Course was published on 7-5-1994. In the said list, the name of the petitioner did not appear for M.S. (General Surgery) whereas the names of 6 other persons who obtained ranks far below the petitioner is that he was not given an option before publishing the second list and he was denied admission into M.S. (General Surgery), whereas persons who obtained lessor ranks in merit than the petitioner were given admission.

5. The learned Counsel for the petitioner submitted that the procedure for selection is laid down under Rule 7 of the Karnataka Medical Colleges and Dental Colleges (Selection for Admission to Post-Graduate Courses) Rules, 1989, (hereinafter refers to as the 'Admission Rules' for convenience) and that according to sub-rule, selections shall be on the basis of merit, subject to the reservation provided under Rule 6 and that the petitioner should have been given an option as per Rule 7(1)(a) of the Medical and Dental Entrance Test for Admission to Post-Graduate Courses Rules, 1987, (Entrance Test Rules for short). On the other hand, the learned Government Advocate submitted that sub-rule 1(a) of Rule 7 of the Admission Rules was struck down by this Court in Dr. M. RAJESHWARI v. STATE OF KARNATAKA 1993(3) KLJ 193 and therefore, sub-rule 1 (a) of Rule 7 of the Dental [Entrance Test] Rules which is in pari materia with sub-rule 1(a) of Rule 7 of the Admission Rules also cannot be enforced and consequently, Rule 11 of the Admission Rules comes into play. He further contended that under Rule 11 while filling the vacancies, candidates who were already selected for any course shall not be considered and therefore the petitioner could not be given a seat in M.S. (General Surgery),

6. It is necessary to notice the relevant Rules for the purpose of determination of the case. Rule 7 of the Admission Rules lays down the procedure for selection and is in the following terms:-

'Subject to the reservation provided under Rule 6, in respect of seats specified under sub-rule (3) or Rule 5, the selection shall be on the basis of merit determined in the merit list prepared under the entrance test rules and such list shall be the First merit list.'

From the reading of the above Rule, it follows that the selection shall be based on the merit list prepared under the Entrance Test Rules and such list shall be the first merit list, subject to the reservation provided under Rule 6 in respect of seats specified under sub-rule (3) of Rule 5, merit list shall be prepared under Rule 7 of the Entrance Test Rules.

7. Rule 7 reads as follows:-

'7(1) Subject to the reservation provided under Rule 6, in respect of seats specified under sub-rule (3) or Rule 5, the selection shall be on the basis of merit determined in the merit list prepared under the entrance test rules and such list shall be the First merit list.

(1a) after publication of the first merit list, the seats falling vacant on account of non-reporting of candidates of rejection of candidates or any increase in seats be filled as specified below:-

(a) the candidates who have been selected in the first merit list and got admitted to the colleges allotted by the selection committee shall be given an option to change their course or college or both.

Provided that such option shall be limited to the college and course specified in the application for admission.

(d) the selection committee shall prepare such number of merit lists and modified lists as may be necessary to complete admission in the manner specified in Clauses (a) and (b).

(Rest of the Rule is not relevant).

Rule 11 of the Admission Rules is in the following terms:-

'Any vacancy due to the failure of a selected candidate to join the college within the last date and time specified by the selection committee or for any other reason, such seats shall be filled by the selection committee from among the next available candidates. However, while filling the vacancies, candidates who are already selected for any course shall not be considered.'

8. The learned Government Advocate bases his contention on the later portion of Rule 11, which excludes consideration of candidates already selected for any other course while filling up the vacancies mentioned in the earlier portion of Rule 11.

9. The learned Counsel for the petitioned filed an application-I.A.No. for amending the prayer in the Writ Petition for adding additional grounds. The petitioner attacks Rule 11 as violative of Article 14 of the Constitution of India as it confers an arbitrary power on the Selection Committee to deny admission to more meritorious candidates in preference to less meritorious candidates and Rule-11 is sought to be struck down as violative of Article 14. The learned Government Advocate filed objections to the said application and both the application and objections were considered and the amendment is allowed and the petitioner is permitted to raise the additional ground.

10. Sub-rule 1 of Rule 7 was struck down by this Court in Dr. M.Rajeshwari's case referred to above. Sub-rule (1 a) of Rule 7 of the Selection Rules still remains on the statute. Learned Government Advocate contends that the Judgment of this Court in Dr. M. Rajeshwari's case is erroneous and requires reconsideration. While considering the Writ Petition, it is not necessary to go in to the said question which may arise at an appropriate stage later. Here, we are only concerned with Rule 7 of the Admission Rules and Rule 7 along with sub-rule (1a) of the Entrance Rules which are still on the statute and Rule 11 of the Admission Rules.

11. Under Rule 7 of the Admission Rules, selections shall be made on the basis of merit determined on the merit list prepared under the Entrance Test Rules and such list shall be the first merit list. Under Sub-rule (1a) of Rule 7 of the Entrance Test Rules, after the publication of the first merit list, the seats falling vacant on account of non-reporting of candidates or rejection of candidates or any increase in seats shall be filled up by giving an option to the candidates who has been selected in the first merit list and got admitted to the Colleges allotted by the Selection Committee, though it was provided that the option shall be limited to the College and Course. The first portion of Rule 11 of the Admission Rules is also similar in nature. It lays down that any vacancy due to the failure of the selected candidates who join the College within the last date and time specified by the Selection Committee shall be filled up by the Selection Committee from among the first available candidates. It is only the latter portion of Rule 11 that appears to offend Article 14 of the Constitution of India, which excludes candidates who have already been selected for any Course from being considered, even though they are more meritorious than others. This portion of Rule 11 runs contrary to Clause (a) of Sub-clause (1a) of Rule 7 of the Selection Test Rules,

12. The learned Government Advocate submitted that keeping in view of various Decisions of the Supreme Court of India, the authorities are framing comprehensive Rules. Be that as it may, the latter portion of Rule 11 of the Selection Rules which offends Article 14 of the Constitution and also Clause (a) of Sub-clause (1 a) of Rule 7 of the Entrance Test Rules cannot be allowed to stand. It is clear that the said portion of Rule 11 prohibits the authorities from considering more meritorious candidates and enables the authorities to prefer less, meritorious candidates, which clearly offends Article 14 of the Constitution of India. I have therefore no hesitation in striking down the latter portion of Rule 11 of the Admission Rules which reads as:

'However, while filling the vacancies, candidates who are already selected for the course shall not be considered.'

(The rest of Rule 11 shall stand.)

13. The authorities are bound to give effect to Rule 7(1a) of the Entrance Test Rules and ought to have given an option to the petitioner before considering candidates who have obtained lesser ranks. It is to be seen that the petitioner obtained ranking No. 67, whereas, the selected candidates obtained ranking Nos. 72, 75, 94, 106, 109 and 120, which is clearly discriminatory and violative of Article 14 of the Constitution of India. It therefore follows that the Petition should be allowed and the respondents are directed to consider his application for admission to M.S. (General Surgery).

14. The Writ Petition is accordingly allowed, striking down the latter portion of Rule 11 of the Karnataka Medical Colleges and Dental Colleges (Selection for Admission to Post-Graduate Courses) Rules, 1987. The respondents are directed to consider admission of the petitioner to M.S. (General Surgery) in accordance with the rank obtained at the Entrance Test for the ensuing Course in M.S. (General Surgery) within one week from the date of this order.