1992 Supreme(Raj) 729

RAJASTHAN HIGH COURT
I.S.Israni, V.K.Singhal, JJ.
Dr. Mahendra Vangani & Anr. - Appellants
Versus
State of Rajasthan - Respondent
Civil Special Appeal Nos. 135/92 and 164/92.
Decided On : 27-05-1992

The provisions of the Ordinance 278-E, as it existed in April, 1989, contemplated that there has to be reshuffling on the basis of merit-cum-preference list within 3 weeks. Reshuffling is a facility to the selected candidate and, therefore, the reshuffling has to be made from one speciality to the other in a situation where a particular candidates has not joined or opted their speciality and, therefore, a vacancy has fallen in that speciality. The work of reshuffling has to be made within 3 weeks from the last date, which was fixed for admission out of the candidates who were already admitted. The provisions of reshuffling are not applicable to those candidates who have not been admitted and are in the waiting list.

Headnote:

MEDICAL ADMISSION - POST GRADUATE COURSE - RESHUFFLING - ADMISSION AFTER LAPSE OF SIX MONTHS - INTERPRETATION OF ORDINANCE - EQUITABLE RELIEF - ADMISSION GRANTED PROVISIONALLY - REGULARIZATION - CONDITIONS.

Fact of the Case:

The appellants, who were not initially granted admission to the M.D. Anaesthesia (P.G. Course), challenged the order of the learned Single Judge, who had relied on the provisions of the Ordinance issued on 7.10.1989, whereas the provisions of the Old Ordinance issued in April, 1989 were applicable to the petitioners. They argued that if there was no reshuffling or filling up of the vacancies within a period stipulated in the Ordinance, the vacancies should not be allowed to lapse and that since there was no reshuffling within a period of 3 weeks, hence no second reshuffling is possible. They also submitted that the candidates who have not approached the court have no to claim any benefit and since provisional admission was granted to the petitioners they have studied and have appeared in the examination, they should be directed to continue their further studies in M.D. Course.

Finding of the Court:

The court held that the provisions of the Ordinance 278-E, as it existed in April, 1989, contemplated that there has to be reshuffling on the basis of merit-cum-preference list within 3 weeks. Reshuffling is a facility to the selected candidate and, therefore, the reshuffling has to be made from one speciality to the other in a situation where a particular candidates has not joined or opted their speciality and, therefore, a vacancy has fallen in that speciality. The work of reshuffling has to be made within 3 weeks from the last date, which was fixed for admission out of the candidates who were already admitted. The provisions of reshuffling are not applicable to those candidates who have not been admitted and are in the waiting list. The candidates who have already been admitted have a preference from those who are only in the waiting list and, therefore, the first exercise contemplated by the Ordinance is of re-shuffling. Admittedly, reshuffling was not done in the present case within a period of 3 weeks as contemplated by the Ordinance.

Issues: 1. Whether the decision of the learned Single Judge dated 18th February, 1992 is illegal on the ground that he has held that the amendment of 7th October, 1989 is applicable? 2. Whether the seats which fall vacant after six months should be allowed to lapse? 3. Whether there could be any second reshuffling? 4. Whether the persons who have not approached the Court have no right to be considered? 5. Whether the appellants who were granted provisional admission on equity/mercy ground, should be allowed to continue their further studies?

Ratio Decidendi: 1. The court held that the provisions of the Ordinance 278-E, as it existed in April, 1989, contemplated that there has to be reshuffling on the basis of merit-cum-preference list within 3 weeks. Reshuffling is a facility to the selected candidate and, therefore, the reshuffling has to be made from one speciality to the other in a situation where a particular candidates has not joined or opted their speciality and, therefore, a vacancy has fallen in that speciality. The work of reshuffling has to be made within 3 weeks from the last date, which was fixed for admission out of the candidates who were already admitted. The provisions of reshuffling are not applicable to those candidates who have not been admitted and are in the waiting list. The candidates who have already been admitted have a preference from those who are only in the waiting list and, therefore, the first exercise contemplated by the Ordinance is of re-shuffling. Admittedly, reshuffling was not done in the present case within a period of 3 weeks as contemplated by the Ordinance. 2. The court held that it is for the respondents to make a provision in this regard and if there is no such provision, the language used has to be strictly construed. The admission after lapse of a period of six months from the date of initial appointment can create number of problems to the institutions. The candidate has to attend the classes regularly besides the practical classes and the training which is imparted in the hospitals. This being the technical training if the admissions are allowed on the ground that the seat should not be allowed to remain vacant, would be either to out the respondents in a position to provide such further training so that the minimum training period in a particular speciality of 21/2 years is undergone or the candidate is deprived of such benefit of the Education in the regular classes or the practical classes or the training in the hospital. In these circumstances, it would not be proper to construe that simply because there is a vacant seat which has been created after lapse of a period of six months, the admission should be allowed to some candidate amongst the waiting list. 3. The court held that the Ordinance has not contemplated the second reshuffling. There is only one reshuffling which is contemplated a period of 3 weeks and, thereafter, it is only the filling of the vacancies from the waiting list and this second exercise cannot be considered to reshuffling. 4. The court held that the appellants have not disclosed that there were more meritorious persons in the said waiting list and it was only for this reason that on 28.2.1991 when this fact was brought to the knowledge of this court in Writ Petition No. 4787/91, it was observed that the court was not informed that there were more meritorious students than the two petitioners. The stay application however in Writ Petition No. 4787/91 was dismissed. For this reason no relief could be given to appellants. 5. The court held that in the special circumstances of the case, which should not create any precedence for future, it is proper to direct that Dr. Mahendra Vangani and Dr. Sushil Pokharna may be allowed to continue the further studies in M.D. Anaeshesia subject to the conditions that they shall have to complete the period of training of 21/2 years, which shall be counted from the date they have joined the Post Graduate Course i.e. 3rd June, 1991 or the subsequent date on which they have actually joined the course; they will be entitled to appear in the nearest examination after completion of training course of 21/2 years.

Final Decision: Appeal No. 164/92 is dismissed and appeal No. 135/92 is partly allowed as indicated above. Parties are left to bear their own costs.