Judgment

G.S. Singhvi, J.

Leave granted.

Whether the appellant, who joined service under the Government of Madhya Pradesh as Assistant Surgeon on contract basis in November, 1999 and whose services were regularised with effect from 31.12.2005 under the Madhya Pradesh Regularisation of Public Health and Family Welfare Medical Cadre Contract Appointment Rules, 2005 (for short, "the 2005 Rules") was eligible to appear in Pre-P.G. Examination held in 2007 under the Madhya Pradesh Medical and Dental Post-Graduate Course Entrance Examination Rules, 2007 (for short, "the 2007 Rules") is the question which arises for consideration in this appeal.

The appellant was appointed as Assistant Surgeon in District Hospital, Raisen on contract basis vide order dated 26.10.1999. The term of her contractual appointment was extended from time to time. After about four years, she filed Writ Petition No.2158 of 2004 for issue of a mandamus to respondent Nos.1 and 2 to regularise her service. The same was disposed of by the learned Single Judge vide order dated 21.4.2004, the relevant portion of which (as contained in Annexure P-1) is extracted below:

"Having heard Mr. Shroti, learned senior counsel for the petitioners and learned Government Advocate, I am inclined to direct the respondent No.1 to consider the cases of the petitioners for the purpose of regularization. If any intervention of higher authority is sought the same shall be taken recourse to by the respondent No.1. The entire exercise shall be completed by end of July, 2004. At the time of regularization the authority shall also keeping view the spectrum of salary. I may hasten to add I have not adverted to the merits of the case. All other aspects relating to merits are kept open. If there are a set of rules the State Government shall keep in view the same while deciding the case of regularization."

Although, in terms of the High Court's order the concerned authorities were required to consider the appellant's case for regularisation of service within next three months, it took them almost three years to do the needful and by an order dated 10.4.2007, her services were regularised with effect from 31.12.2005.

In the meanwhile, the appellant applied for admission to Post-Graduate course as an "in-service candidate". Her application was accepted by the concerned authorities and she was allowed to appear in the Entrance Examination, 2007. She secured 98.50 marks out of 200 but was not given admission because of non-award of marks in lieu of her 7 years' service.

Apprehending that she may not get admission in Post Graduate course, the appellant filed Writ Petition No.5157 of 2007 with the prayer that Rule 9.1 (a) and (b) of the 2007 Rules may be struck down and the respondents be directed to admit her against the quota of "in-service candidates". By an interim order dated 26.4.2007, the Division Bench of the High Court directed the respondents to allow the appellant to participate in the counselling as an "in- service candidate". In compliance of that order, the appellant was allowed to take part in counselling and she appears to have been admitted in the Post-Graduate course as an "in-service candidate". This inference is being drawn from the contents of last paragraph of the impugned order wherein it has been mentioned that the appellant has spent two years in her education as an "in-service candidate".

The respondents contested the writ petition by asserting that the appellant was not eligible to apply as an "in-service candidate" because at the relevant time, she was serving on contract basis. In support of this assertion, the respondents relied upon Rules 2(d) and 9.1(a) and (b) of the 2007 Rules. They also pleaded that regularization of the appellant's service with effect from 31.12.2005 was inconsequential because order for that purpose was issued one day after declaration of the result of entrance examination.

The Division Bench of the High Court dismissed the writ petition by