Mona Aggarwal Subhashkumar Aggarwal vs Mahatma Gandhi Institute of Medical Sciences, through its Dean,. . Sewagram District Wardha and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1995 Supreme(Bom) 289

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
M.B. Ghodeswar V.S. Sirpurkar, JJ.
Mona Aggarwal Subhashkumar Aggarwal.... Petitioner.
Versus
Mahatma Gandhi Institute of Medical Sciences, through its Dean,Sewagram District Wardha and others.... Respondents.
Writ Petition No. 855 of 1995, decided on 30-6-1995.
Advocates appeared :
D.K. Deshmukh, for the petitioner.
S.V. Manohar, for respondent No. 1.
Smt. A.P. Shinde, for respondent No. 2.
A.B. Choudhary, for respondent No. 3.

Headnote:Sections 3 and 58-See Rules for Admission to Post-Graduate Courses in Medicine, 1993-Rule 7(1).
       RULES FOR ADMISSION TO POST GRADUATE COURSES IN MEDICINE, 1993
       Rule 7(i)-Evidence Act, 1872, Sections 3 and 58-Choice for admission-Candidate accepted admission in subject of second choice without waiting reply regarding denial of admission in courses of her first choice-It cannot be said that she has gone up her claim for insisting on admission to course of her choice.
       Rule 7(i)(iii)-Scope of.
       The priorities regarding the rutal service as provided in the Rules would be applicable only if on merits the two candidates are on the same pedestal. This priority regarding the rural service cannot be used to by-pass the merit. If the petitioner and the respondent No.3 had the equal marks in the subject of Gyanecology and Obstetrics, then and then alone the further priorities could be seen, and in that case, the respondent No.3, who was covered by category (i) of Rule 7 governing the Rules of Admission could have been preferred to the present petitioner. But where the petitioner is clear a better candidate having secured more marks in the subject of Gyanecology an, Obstetrics, her - cannot be compared with the respondent No.3, nor could her claim for the registration be denied on the ground that she was placed in category (iii) of Rule 7. This is a plain and apparent meaning of Rule 7. The argument of learned Counsel that if both the petitioner and the respondent No. 3 were eligible for being admitted, then the priorities as envisaged in Rule 7 must be honoured, is obviously incorrect. It is needless to say that merit is a first consideration for admission to these courses. 1be priorities in Rule 7 would work only if there is a question of comparison between the two candidates, which comparison could be only on the basis of merits if the matter of merits, the petitioner being a better candidate her case is not comparable to the respondent No. 3 and, therefore, there is no question of the priorities being involved. 1be Court has also carefully seen the Rules for Admission. Rule No.9 clearly provides the method of calculation to determine the comparative merit of the candidates. It is an admitted position that the Selection Committee here, after calculating the comparative merit, in keeping with Rule 9 of the Rules, has found the petitioner to be a better candidate in comparison to the respondent No.3.
       It can be safely inferred that the petitioner had put in two years of private practice in the rural areas and as such she was covered in category (iii) of Rule 7.

JUDGMENT - V.S. SIRPURKAR, J. :--Rule, returnable forthwith. Heard learned Counsel.

The petitioner herein challenges the selection of respondent No. 3 for the graduate diploma course in Gynaecology and Obstetrics and claims the said registration for herself.

For understanding the controversy, the following background is necessary :--

2. Respondent No. 1-Mahatma Gandhi Institute of Medical Sciences has the facility for Post Graduate Disciplines in the medical education. The said institution is affiliated to the respondent No. 2-Nagpur University. The petitioner passed her final M.B.B.S. examination and admittedly is qualified to pursue the Post Graduate Study. It is the case of the petitioner, and it remains unchallenged, that the respondent No. 1-Institute is a "State" within the meaning of Article 12 of the Constitution of India, since it is run on the State Finances. The petitioner claims that she became eligible for admission for the Post Graduate courses in January, 1995. She points out that previously it was essential for a student to render two years of rural health service for being eligible to apply for registration for Post Graduate Degree or Diploma Courses. This was Rule 8 governing the Rules for Admission. However, this Rule was challenged by some students in Writ Petition No. 2951 of 1992. This Court had directed the respondent No. 1 to advertise the seats for Post Graduate courses beginning from academic year 1993. It was also directed to prepare the list of candidates who were to be admitted. However, the admissions were not to be made. The respondent No. 1, while issuing the advertisement, again amended the Rules governing the admission and introduced a new Rule No. 7, which runs as under :--

Definition of Rural Service :

The candidates must have resided and worked preferably for two years or more in order of priority.

(i) In non-Governmental voluntary organisation working for health care (Recognised by MGIMS, Sevagram).

(ii) Government Hospitals/Public Health Centres catering to rural population, and

(iii) In the case of private practice, the place of resident practice should be situated in rural areas (non-municipal notified area) away from cities (Detailed information to be given in the format attached with the application form).

The authority to issue certificates in the case of (i) and (ii) will be Medical Officer/appointing authority/incharge of the Hospital.

In case of (iii) the certificate should be issued by the Sarpanch of the Gram Panchayat and it should be counter-signed by a Government Official, viz., Tahsildar or any other equivalent officer."

The petitioner points out that this amended rule was also challenged in the pending Writ Petition No. 2951 of 1992 and the said rule came to be struck down by this Court and the respondent No. 1 was directed to fill in the seats for Post Graduate Courses on the basis of the Rule of merit, if necessary by issuing a fresh advertisement, in pursuance of the directions of this Court. However, the petitioner further points out that the said judgment of this Court was challenged before the Supreme Court, which has stayed the operation of the order of this Court. We shall, therefore, proceed on the basis that the original Rule 7 which we have already quoted above is in vogue.

2. It is the case of the petitioner that she sent a telegram on 24-1-1993 and informed the respondent No. 1 that she was doing private practice in village Nangal Choudhary in Haryana from 16-1-1993, and on that basis, the petitioner sought an approval letter from the respondent No. 1. The respondent No. 1 sought information from the petitioner regarding the rural service. It is the claim of the petitioner that she had supplied all that information alongwith a certificate. In fact, the respondent No. 1 had addressed a letter to an authority requesting it (the authority) to verify whether the petitioner was practising in the rural area and if so, to issue a certificate in that behalf. It is the case of th

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