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Gujarat High Court
Judgename :J.M.Panchal
HEMANT L.LEUVA - Appellant
Versus
H.S.SHAH, CHAIRMAN, ADMISSION committee and DEAN - Respondent
S.C.A. 10009 of 1996
Decided On : 01/08/1997
No direction can be given to respondents nos.1,2 & 3 to admit the petitioner in M.S. (Ortho) Discipline, more particularly when rule 7.9 which enabled the authorities to reshuffle the admissions, is deleted. Such a direction would amount to assuming role of rule-making authority and sitting in appeal over rule-making authority. Such a course is not open to High Court while exercising jurisdiction under Article 226 of the Constitution. Under the circumstances, in absence of rule, the prayer made by the petitioner cannot be granted.
[Para 9]
(b) Education - Admission - On vacant posts in the midstream - Not proper as it works as handicap to candidates themselves.
Even otherwise, in view of provisions of rules 1-A and 3.1, it is evident that the academic term has ended on December 31, 1996. Rule 7.8 of the Rules provides that all P.G. courses are full time courses and the candidates are forbidden from indulging in private practice or taking up employment of any nature. It is an admitted position that the petitioner has not undergone full time post graduate course in M.S. (Ortho) Discipline. As the petitioner has not completed full time course stipulated for post graduate studies in M.S. (Ortho) Discipline, I am of the opinion that the discretion vested in the Court under Article 226 of the Constitution cannot be exercised in favour of the petitioner.
[Para 10]
Admission in the midstream disturbs the courses and also works as handicap to the candidates themselves to achieve excellence and, therefore, the vacancies of the seats should not be taken as a ground to give admission. As the Supreme Court found that direction by the High Court to admit the candidates into those vacant seats in the midstream was bad in law, it was not sustained and set aside.
( 1 ) BY means of filing this petition under Art. 226 of the constitution the petitioner has prayed to issue appropriate writ or order directing respondent Nos. 1, 2 and 3 or any of them to forthwith grant admission to the petitioner as a student in N. H. L. Municipal Medical College, Ahmedabad in M. S. (Ortho.) Discipline.
( 2 ) THE petitioner passed 3rd M. B. B. S. (New) examination which was held in november, 1994 and is duly registered with Gujarat Medical Council, Ahmedabad. The petitioner belongs to Scheduled Caste. As the petitioner was interested in Post- graduate Studies, he applied to the Gujarat University for admission to Post-Graduate studies in M. S. (Ortho.) Discipline. The petitioner was called for interview on July 9, 1996 and at the interview also the petitioner indicated his inclination to be admitted in M. S. (Ortho.) Discipline. Respondent No. 2 prepared a merit list. In the merit list, name of the petitioner was shown at serial No. 216 so far as general category was concerned. Another merit list of students belonging to Scheduled Caste was also prepared wherein name of the respondent No. 4 was mentioned at serial No. 7 whereas petitioners name was shown at serial No. 8. The respondent No. 4 opted for M. S. (Ortho.) Discipline and was admitted in that Discipline in Smt. N. H. L. Municipal Medical College, Ahmedabad. The petitioner thus could not secure admission in M. S. (Ortho.) Discipline. As the petitioner, who was immediately next to respondent No. 4, could not get admission in the Discipline of his choice, the petitioner opted for M. S. (General Surgery) Discipline for his Post-Graduate Studies and was accordingly admitted to the said course.
( 3 ) IT is the case of the petitioner that in the month of August, 1996 the petitioner learnt that respondent No. 4 who was admitted in second academic term of academic year 1996, had left studies after about one week of joining the College and seat had fallen vacant. The petitioner, therefore, addressed a letter dated August 26, 1996 to the respondent No. 2 and requested respondent No. 2 to permit him to prosecute studies in M. S. (Ortho.) Discipline. A copy of the said letter is produced by the petitioner at Annexure A/1 to the petition. The petitioner has claimed that copy of letter was also sent to all members of Admission Committee including respondent nos. 1 and 3 with a request to do needful in the matter. As none of the respondents considered the request of the petitioner mentioned in the said letter, the petitioner addressed a notice dated November 4, 1996 through his Advocate to the respondent nos. 1 and 2 requisitioning them to admit the petitioner as a Post-Graduate student in M. S. (Ortho.) Discipline in Smt. N. H. L. Medical College, Ahmedabad. A copy of the said notice is produced by the petitioner at Annexure A/2 to the petition. It is averred in the petition that the petitioner requested his father to make inquiry whether respondent No. 4 was really interested to study in M. S. (Ortho.) Discipline or not and during inquiry made by the father of the petitioner it was learnt that respondent No. 4 is practising as a general practitioner at Satlasana. In order to substantiate this claim, the petitioner has produced prescription of medicines issued by respondent No. 4 to the father of the petitioner at Annexure A/3 to the petition. As the request made in the notice dated November 4, 1996 was not acceded to, the petitioner has filed the present petition and claimed reliefs to which reference is made earlier.
( 4 ) MR. M. P. Jadia, Registrar, Gujarat University has filed an affidavit-in-reply on behalf of the respondent No. 2-University. In the reply affidavit, it is emphasised that Rule 7. 9 of the Rules governing admission to Post-Graduate Degree and Diploma medical Courses other than M. Ch. and D. M. at the Affiliated Medical Colleges ("rules" for short), which enabled reshuffling in case of vacancy arising, is deleted by the facult
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