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2011 Supreme(Gau) 454
IN THE HIGH COURT OF GAUHATI
Amitava Roy and A.K.GOSWAMI, JJ.
Dr. Sushil Agarwalla S/o Jagdish Agarwalla and Ors. - Appellants
Vs.
State of Assam represented by Commissioner and Secretary, Government of Assam, Health and Family Welfare (B) Department, Director of Medical Education and Selection Board represented by its Chairman, The Director of Medical Education - Respondent
AND
Dr. Chandra Kumar Das S/o Late Dhirandra Chandra Das and Ors. - Appellants
Vs.
State of Assam represented by the Chief Secretary to the Government of Assam and Ors. - Respondent
AND
Dr. Nayem Raja, S/o Taheruddin Ahmed - Appellants
Vs.
State of Assam represented by Commissioner and Secretary, Government of Assam, Health and Family Welfare (B) Department, Director of Medical Education,Selection Board represented by its Chairman, The Director of Medical Education and National Rural Health Mission, represented by its Mission Director - Respondent
Writ Petitions (C) 3280/2010, 1259 and 1260/2011
Decided on : 26.05.2011
For Appellant/Petitioner/Plaintiff: D.K. Mishra, Sr. Adv., S. Jahan, K. Agarwal and N. Deka, Advs. in Writ Petition (C) 3280/2010, K. Agarwal, N. Deka, P. Neog and P. Dutta, Advs. in Writ Petition (C) 1259/2011 and D.K. Mishra, Sr. Adv., M. More, P.K. Sharma and B. Prasad, Advs. in Writ Petition (C) 1260/2011
For Respondents/Defendant: G.N. Sahewalla, Sr. Adv., D. Saikia, Standing counsel, Health and Family Welfare in Writ Petition (C) 3280/2010, D. Saikia, Standing counsel, Health and Family Welfare, G.N. Sahewalla, Sr. Adv. and K.R Saruna, Adv. in Writ Petition (C) 1259/2011 and D. Saikia, Standing counsel, Health and Family Welfare in Writ Petition (C) 1260/2011
Headnote:
Bachelor of Medicine and Bachelor of Surgery (MBBS) - Total number of seats for both degree and diploma courses under State Quota is 170 and the percentage of seats allotted as well as actual seats allotted in respect of all the categories of candidates entitled to get admission in Post Graduate Courses are available in the Rules holding the field. Out of the 170, only 60 seats were made available for the General category being 35% of the total seats while 110 seats were reserved under various categories constituting 65% of the seats – Held, very language of Rule 6(vi) of the Amendment Rules of 2010, excludes its application to candidates belonging to 15% All India Quota. When the requirement of executing a Bond which is the foundation of 5 years service or 1 year service in rural areas, is not required to be executed by them, all consequence emanating from the Bond would have to held to be not applicable to such candidates - Therefore, we are unable to accept the contention that without fulfilling the norms, students completing MBBS course in the Medical Colleges of Assam under 15% All India Quota had been allowed to take part in the Entrance Examination. We also do not consider that absence of requirement of service of 5 years under the Government of Assam or to render 1 year rural service and in lieu thereof to pay compensation is of such a magnitude that necessarily the only conclusion that could be arrived at is such a classification is wholly antagonistic to the concept as embodied in Article 14 of the Constitution of India - Writ petitions are disposed of
A.K. Goswami, J.
1. The W.P (C) No. 3280 of 2010 was originally filed by 7 (seven) writ Petitioners. They had appeared in the Post Graduate Medical Entrance Examination, 2010, for short, PGMEE, 2010. On the prayer of learned Counsel for the Petitioners, the names of Petitioner Nos. 1,3,4 and 5 are struck off the record as they did not want to press the writ petition and therefore, the present writ petition survives so far as the writ Petitioner Nos. 2,6 and 7 are concerned. The case of the Petitioners is that after obtaining Bachelor of Medicine and Bachelor of Surgery (MBBS), being eligible, they had appeared in the PGMEE, 2010, for admission in the Post Graduate Courses in the 3 Medical Colleges throughout the State of Assam. In the rank wise merit list, the rank of the Petitioners (we have included all the Petitioners though they are not on record now) are 56, 64,73,74,76,78 and 83, respectively. The total marks of the examination was 300 and the marks obtained by the Petitioner Nos. 1 to 7 are 222, 220, 219, 218, 218, 217 and 217 respectively. The total number of seats for both degree and diploma courses under State Quota is 170 and the percentage of seats allotted as well as actual seats allotted in respect of all the categories of candidates entitled to get admission in Post Graduate Courses are available in the Rules holding the field. Out of the 170, only 60 seats were made available for the General category being 35% of the total seats while 110 seats were reserved under various categories constituting 65% of the seats. The seats reserved under the Teachers Quota and the North Eastern Council Quota were merged and adjusted in General category thereby portraying a picture that 82 seats were kept in the Unreserved General category. Adjustment of the seats under the State Health Quota as also the seats of Teachers Quota with the General category also could not succeed the percentage of reserved seats to be kept below 50%. The Petitioners claimed to be candidates belonging to the General category. Although they had secured comparatively very high position in the PGMEE, 2010, it soon became obvious to them that because of the many ills that beset the procedure for admission in the Post Graduate Courses due to the Rules which are in force and notifications issued by the Government in the field of procedure to be adopted for the purpose of admission into Post Graduate Courses, let alone being able to pursue the PG Courses in the subjects of their choice, the prospect of they being at all able to pursue the PG Courses was looming large with uncertainty.
2. The predicament that they face is due to certain provisions of the Rules of 2006, which, according to them are wholly arbitrary, discriminatory, unconstitutional and therefore, they say that such Rules should be declared ultra vires and null and void. According to the Petitioners, the offending Rules are:
(1) Rule 4(3)(i) of Rules of 2006 as amended by Amendment Rules of 2010
(2) Rule 4 (3)(vi) of Rules of 2006 as amended by Amendment Rules of 2010
(3) Rule 4(4)(i) of Rules of 2006 as amended by Amendment Rules of 2010
(4) Rule 7(2)(e) & Rule 7(2) (f) of Rules of 2006.
Therefore, they pray for striking down the aforesaid Rules. They have also made following additional prayers:
(5) Cancellation of seats allotted to physically handicapped candidate in 7 seats other than pool seats in violation of Sub-rule 7 of Rule 4 of Rules of 2006, which had been inserted by Amendment Rules of 2008.
(6) Inclusion of seats reserved under NEC quota under Rule 4(2) of Rules of 2006 within general category seats should be set aside.
(7) Inclusion of seats reserved for Teachers Quota under Rule 4(3) of Rules of 2006 within general category seats should be set aside.
(8) Direction to be used for restricting reservation/allocation of seats below 50% of the total seats available.
In this writ petition, State of Assam represented by the Commissioner and Secretary, Government of Assam, Health and Family
