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IN THE HIGH COURT OF BOMBAY
S.P. Kurdukar S.M. Jhunjhunuwala, JJ.
H.U. Vaidya others.... Petitioners.
Versus
The Government of Maharashtra Medical Education Drugs Department and others.... Respondents.
Writ Petition Nos. 2777, 2940, 3033, 3101, 3747, 3748, 3625 3018 of 1993, decided on 30-11-1993.
Advocates appeared :
S.M. Gorwadkar, for petitioner in W.P. 277 of 1993.
Dr. Avinash Shivada, for petitioners in W.Ps. 2940, 3033, 3101, 3747 3748 of 1993.
Kishor C. Sant, for petitioner in W.P. 3625 of 1993.
Anil V. Anturkar, for petitioner in W.P. 3018 of 1993.
C.J. Sawant with V.S. Karker, for the respondents in all matters.
Rule VIII-Scope of.
Fair reading of Rule VIII relating to "Waiting List" in our judgment is that although it does not specifically deal with the choice of a college but such a choice is inherent in its application and the procedure which is followed by the Respondents Nos. 1 and. 2 at the time of finalization of the admission list this procedure does indicate that a choice of college was offered to the candidate as per the availability of a section the basis of merit list. The expression the courses of his choice" is circumscribed by the availability of a set in that course in the colleges.
It is true that the Petitioners before was in the circumstances had a limited choice of the colleges where vacancies were shown on the computer screen. It is not denied that each Petitioner has in his own hand writing given a choice of a college. It may be true that for a choice of a course, choice of college is narrowed down or limited but such a Situation is inevitable if the scheme is required to be enforced within in time bound program. However the fact remains that the Petitioners did exercise the choice of a college and did not state on the application from that they would be taking provisional admission subject to their right to lap claim on a seat falling vacant in future in a college of their choice m terms of the merit list.
Respondents Nos. 3, 4 and 5 are were on the wait list and they have been given admission against casual vacancies drop-outs which occurred after process on 26th October, 1998. Respondents Nos. 3, 4 and 5 on the wait list have given up their claims to any other medical course and preferred to remain on the waiting list and taken a chance. It is to their luck that the casual vacancies arise in the Government Medical College i.e. Grant Medical College and they secured admission in the said college, If we accept the con ten lion of the Petitioners. It would result into re-opening the admission in all courses although to the limited extent. Respondents Nos. 1 and 2 will have to go through not only the same comber some process of selection once again but they will have to give opportunity to such of the candidates in the merit list who have opted for any other medical course and would stand a chance of getting admission to one or the other Government Medical College or the private medical colleges.
Some of the students figuring in the merit list have preferred to go the Dental College then to remain on the wait list. Some of the candidates have also preferred to go to Ayurvedic or Unani College according to the availability of the seats instead of preferring to be wait listed. If the respondents Nos, 3, 4 and 5 were to he dislodged in order to accommodate three of the petitioners who stand higher in order of merit, then the same process will have to be reapeated in all the Private Medical Colleges as also the Dental College, Ayurvedic College and Unani College.
As per the existing Rule the other candidates in the merit list did not think it proper to take a chance and remain on the wait list and therefore they opted for another choice of the course and secured admission. In order to accommodate three candidates from amongst the Petitioners as per the merit list, in the Government Medical College, Respondents Nos. a, 4 and 5 who are already admitted will have to be dislodged and their admissions wil1 have to be again recycled on the computer in the other Private Medical Colleges by following the same procedure. On the same principle students who have taken admissions in other medical courses inter-se placement in the merit list will have to be reopened and then follow the procedure of Rule VIII "Waiting List". Moreover, Petitioners will have to be treated as if they were on the waiting list. Rules for admission for 1293-94 do not provide for such dual position. It this is done, it will disturb the time schedule.
In the facts and circumstances of the case, it would not be appropriate to disturb the completed admission process which may involve dislodging of students from the colleges where they are settled more particularly when students who are likely to be affected ate even not before the High Court,
2. At the outset it may be stated that all these petitioners before us are admitted to M.B.B.S. course on free seats but in private Medical Colleges. It is further made clear that the controversy in these petitions is restricted to the portion of Rule VIII having sub-headng "Waiting List" and in respect of free seats in Government Medical Colleges.
3. For the purpose of this Judgement, we may refer to the facts of Writ Petition No. 2777 of 1993.
4. The Government of Maharashtra, Department of Medical Education and Drugs framed Rules for admission to the Government and Private Medical Dental, Ayurvedic, Homeopathic and Unani courses and prescribed Application Form. These Rules were prepared for the year 1993-94. The preamble states that these Rules were published on or about June 5, 1993. The preamble reads thus :
"The Supreme Court of India in Writ Petition No. 607 of 1992, (Unnikrishnan and others v. State of Andhra Pradesh ors.)1, has given a landmark judgment in the matter of admission process and admission fees of private professional colleges. The judgment inter alia mentions a scheme. The scheme is to be implemened from the year 1993-94.........."
5. The Government resolution of the aforesaid date recites that the State Government has decided to implement the scheme mentioned in the aforesaid judgment and on the basis of the said judgment has framed the Rules and Scheme. It is a composite scheme which is made applicable to the Degree Courses of the private colleges in the faculty of Medicine, Dental, Ayurved, Homeopathy. Unani and Nursing. Paragraph 2 of the Government resolution reads thus:
"70% of the total seats excluding other reservations will be filled in by the candidates of the local University area and remaining 30% seats will be filled by the candidates from the state level common merit list."
Rule IV deals with distribution of seats. Since there is no challenge in the petition to the distribution of seats it is not necessary to set out the necessary details therein. Since the challenge is restricted to a part of the Rule VIII dealing with "Waiting List", we may reproduce the relevant portion of the said Rule which reads as under:
"At the time of selection, the application may opt to remain on waiting list, if he does not get admission to the course of his choice. In that case, his name will not be considered for admission to any other course. Such waiting lists will exist for all the courses till the last date of enrolment by Universities. As and when the vacancies will arise, the applicants on the waiting list will be given admission as per their merit. A backward class candidate is not permitted to remain wait-listed in open merit category, to be considered later on against reserved category of other course." (emphasis supplied)
According to the petitioners, the aforesaid Rule is arbitrary and discriminatory and therefore violative of Article 14 of the Constitution of India.
6. Respondent Nos. 3 to 5 are the candidates who were on the wait list and they have been given admission against the seats that fell vacant after completion of admission to the regular free seats not only in the Government Medical Colleges but also in the Private Medical Colleges. There is also no dispute that these respondents are much below the petitioners in the merit list.
7. The Medical Colleges falling within the jurisdiction of the Bombay University are:
(1) Grant Medical College (Government Medical College),
(2) Dr. D.Y. Patil Medical College, Nerul, New Bombay (Private Medical College),
(3) Mahatma Gandhi Mission Medical College, New Bombay (Private M
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