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PETITIONER: RAJIV KAPOOR & ORS.

       Vs.

RESPONDENT: STATE OF HARYANA & ORS.

DATE OF JUDGMENT:       28/03/2000

BENCH: R.C.  Lahoti, Doraiswamy Raju

JUDGMENT:

March 28,2000.

JUDGMENT

Doraiswamy Rajil.  J. L.....I.........T.......T.......T.......T.......T.......T..J

     The  method and criteria to be followed in the  matter of  selection  of candidates for admission to Post  Graduate Degree  and Diploma courses in Medicine from amongst Haryana Civil  Medical Service (for short ’HCMS’) candidates for the academic  session 1997 in Pt.  B.  D.  Sharma Post  Graduate Institute  of  Medical  Sciences   affiliated  to  Maharishi Dayanand  University is the subject matter of controversy in these  appeals.  The controversy is limited to admission  of 19  and  14 candidates respectively to Post Graduate  Degree and Diploma courses, in Medicine during the academic year in

     question  for HCMS candidates and does not include any consideration of candidates either in open merit category or to be filled up on Ail India basis.

     The  petitioners before the High Court claimed that as per  the  norms  and criteria proclaimed in  the  Prospectus issued  by  the  medical college m question,  selection  for admission  could be made only on the basis of marks obtained by  a  candidate  in the entrance examination held  for  the purpose.   But the contesting respondents, some of whom  are the  appellants  before this court as well as the  State  of Haryana  contended  that the marks obtained in the  entrance examination  only entitled them to be called tor  interview, being  only  a  qualifying  test  rendering  the  candidates eligible  for admission and that the final selection of  the HCMS  candidates against the reserved seats- was required to be  made  by  the Selection Committee  constituted  for  the purpose on the basis of the specified criteria stipulated by the  Government  from  time to time, based on  the  academic career,  experience,  rural   service,  annual  confidential reports and marks obtained at the interview.

     The  claim  of  die writ petitioners before  the  High Court  found  favour  with the Division Bench  of  the  High Court,  which  allowing  their Writ  Petition  directed  the cancellation   of   the  admission   given   to   contesting respondents before the High Court and directed selections of HCMS

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     candidates for admission to PG courses to be made only on  the  basis  of merit, as per the marks obtained  in  the written  entrance  examination  and to admit  the  selectees within  the stipulated time.  in coming to such a conclusion the  High Court appears to have been influenced by the  tact that  the  Prospectus, once issued had the force of law  and the  Government had no right to issue any contrainstructions in  the  matter.   It  was found .that .the  orders  of  the Government dated 21.5.1997 issued in restatement of the pre- existing  criteria  stipulated  by the  Government  had  the consequence  of upsetting the entire criteria for  selection of  HCMS candidates, as prescribed in the Prospectus and was impermissible.   Consequently,  C.W.P.  Nos-8158.  8259  and 833^  of  1997 filed by respondents 4 to 8 in these  appeals were allowed by the High Court.

     These  appeals by special leave have been filed by the affected  contesting  private  respondents before  the  High Court.   The  State as well as the University did  not  file appeals  against impugned order but they have supported  the stand  taken by the appellants, so far as the criteria to be adopted for selection and admission of HCMS Cadre candidates toP.G- courses is concerned.

     When the SLPs came up bcfore this court for hearing on 6.2.1998, learned counsel appearing for the State of Haryana stated  that  the  orders  of  tile  High  Court  have  been implemented  and that the State does not intend to  unsettle the  position insofar as the already selected candidates are concerned  but  that thejlidgmentofthe High Court  needed  a second look fo settle the law.  No interim orders/directions were therefore granted.

     The  learned  counsel fur the  appellants  strenuously contended  that the provisions contained in Chapter V of the Prospectus issued by the University for the academic session 1997  related to selection of eligible candidates at two and a  half times the number of seats available tor the  purpose of  interview  before  the  Committee  constituted  for  the purpose  of admission as against the seats reserved for HCMS candidates  in accordance with the policy criteria laid down therefor.   This  procedure and practice was said to  be  in vogue  and being consistently followed ever since 1988, with modifications,  if any, issued from time to time but without dispensing   with  the  requirement  of  interview  by   the Committee  and  selection of candidates according  to  their assessment  of  merit on the basis of the criteria  so  laid down  by  the  Government.  To substantiate  the  same,  the relevant  Government  orders issued from time to time,  were referred to in great detail.

     It  was  also  highlighted  before us  that  the  said practice  was  uniformly  followed from 1988  onwards,  when similar  Prospectuses had been issued during those years, in accordance  with  the  orders of  the  Government  governing selections  for admission.  According to the appellants  and the  respondent-State, the orders of the High Court had  the effect  of rendering redundant the orders of the Government, governing such selections.

     The  learned  counsel for the other  respondents,  who were  petitioners  before  the High Court and  who  had  got relief,  drawing  sustenance  from   the  reasoning  of  the Division  Bench of the High Court, contended before us  that

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so  far as selection for admission to the course in question is  concerned..   it  is only the Prospectus issued  by  the University  for  the academinc year in question which  could govern  and that the orders of the Government would have  no application.   Therefore,  it  was submitted that  the  High Court  did  not commit any error in directing results to  be finalised and admissions accorded solely on the basis of the procedure proclaimed in the Prospectus.

     We  have  carefully  considered   the  submissions  of learned counsel appearing on either side.

     In  our view, the High Court tell into a serious error in  sustaining the claim of the petitioners before the  High Court  that  selection  and  admissions for  the  course  in question  have  to  be  only in terms  of  the  stipulations contained  in  Chapter  V of the Prospectus  issued  by  the University.   Such an error came to be committed in assuming that the Government had no authority to issue any directions laying down any criteria other than the one contained in the Prospectus  and  that  the  marks obtained  in  the  written Entrance  Examination alone constituted proper assessment of the  merit  performance  of   the  candidates  applying  for selection  and admission.  The further error seems to be  in omitting to notice the fact that the orders dated 21.5.1997, which  came to be issued after the declaration of results of written   Entrance  Examination,  even   if  eschewed   from consideration the orders dated 20.3.96 and 21.2.97 passed in continuation  of the orders of the earlier years,  continued to  hold the field, since the orders dated 21.5.97 were only in  continuation  thereof.  Those orders dated  20.3.96  and 21.2.97  had,  admittedly been forwarded to the  University, with   a   request  to  make   necessary  entries   Ln   the Prospectus/syllabus.

     The  High  Court..   in allowing  the  Writ  Petitions purported to follow an earlier judgment of the Full Bench of the very High Court reported in Amar

     iep  Singh Sahota vs State of Punjab.  etc.   [1993(2) PLR  212].  On carefully going through that judgment we find that  the  Full  Bench  did  not  doubt  the  competency  or authority  of  the  Government to  stipulate  procedure  tor admission  relating  to  courses in  professional  colleges, particularly  in respect of reserved category of seats,  but on  the other hand, it specifically deprecated the  decision to do away with the requirement of minimum marks criteria in respect  of seats reserved for sports category and that  too by  passing orders after the examinations were lield under a scheme  notified in the Prospectus.  As a matter of fact the Full   Bench,  ultimately  directed  in  that  case,   tliat selections  for  admission be finalised in the light of  the criteria specified in the Government orders already in force and   the   Prospectus,  after    ignoring   the   offending notification introducing a change at a later stage.

     So  far as the cases before us are concerned, the High Court, not only held that the Government order dated 21.5.97 issued  after the declaration of the results of the entrance examination held pursuant to the Prospectus issued for 1997, could  not be followed but went a step further to hold  that except  the  Prospectus  in question nothing else  could  be looked into and that the Government orders had the effect of varying the criteria laid in the Prospectus in the matter of

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.selections to the seats reserved for HCMS

     candidates.    We  are  unable   to  appreciate   this reasoning.   The  Government  orders dated 21.5.97  did  not introduce,  for die first time, either the constitution of a Selection  Committee or evolving the system of interview for adjudging  the  merits of the candidates in accordance  with the  laid down criteria.  It merely modified the pattern for allotment  of  marks  under variousi heads  from  the  total marks.  Therefore..  even if the modified criteria envisaged under  the  orders  dated  21.5.97 is to  be  eschewed  from consideration, the earlier orders and the criteria laid down therein  and  the  manner  of assessment  of  merit  by  the Selection Committee after interview.  were still required to be  complied  with  and  they could not have  been  given  a complete go-bye, as has been done by the High Court.

     Both  the  orders of the Government dated 20.3.96  and 21.2.97 in unmistakable terms stipulated that after issue of no  objection certificate againt reserved seats to the  HCMS Medical  Officers, they had to appear not only in the common Entrance Test and obtain at least 20^0 of inarks or above to become  eligible  for  consideration but the  merit  of  the candidates  had to be determined by the Selection  Committee constituted  for the purpose, as per the criteria  specified in Annexure ’A.’, thereto after interview.  Chapter V of the Prospectus, apart from envisaging the preparation of a

     merit  list,  at  two and a half times the  number  of seats  available  in cach category on the basis  of  written examination;   contemplates  also  the award  of  marks  and determination  of merit in respect of open seats and so  far as  candidates  of  HCMS rescued seats are  concerned  after specitving the marks stipulated for the written examination, leaves  the  matter for further assessment of merit  without specifying  any further marks, apparently on account of  the applicability’  of  the  Government orders  notified  above, which  takes  care  of  the weightage to be  given  to  such candidates  in  respect  of the assessment  of  their  merit before  actual selection for admission against the  reserved category of seats earmarked tor HCMS candidates.

     The  fact that the list to be prepared on the basis of marks  in  written test had to be two and a half  times  the number  of  seats  available  in each category  also  is  an indicator  that  it  was not by itself, the  final  list  of selection  for  admission  to   professional  courses  in  a college.   Even if there had been any default on the part of the  University  in properly specifying this aspect  despite communication  of  the Government orders every time  to  the University  with  a  direction to incorporate  them  in  the Prospectus/syllabus,  the efficacy and binding force of  the Government  orders  and the necessity to apply the  criteria laid down therein to finally determine the merit of the

     candidates  to  be selected for admission against  the seats  reserved for HCMS candidates in terms of the criteria laid  down in those orders cannot be overlooked or given  up once  for all.  The Prospectus as well as the orders of  the Government in our view have to be construed in such a manner that  the  infer  se  merits of the  sendee  candidates  are properly  assessed  on  the basis of their  credentials  and performance  in  service  and   not  merely  of  theoretical knowledge  of  the  subject as in the  case  of  non-service candidates   belonging  to  the   other   categories.    The

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construction  placed  by  the High Court,  if  accepted  may result  in  discrimination on account of applying  different criteria  of total marks for open candidates and in  service candidates  without  noticing  the  distinguishing  features relevant  for the purpose of assessment of merit in the case of  HCMS candidates.  We find no reason or justification  to allow  any deviation from the method of assessment uniformly followed  in all the previous years for such selection.  For all  the  reasons  stated above, we have  no  hesitation  in holding  that  the High Court committed a serious  error  in tills  regard  which vitiates its judgment and the  same  is accordingly  set aside.  We hold that the merits ot the HCMS candidates  are  required  to be adjudged in  terms  of  the criteria  contained  in the Government orders noticed  above and  the  selections  can bemade for admission  against  the reserved

     seats,  as  per  the  determination of  merit  by  the Selection Committee constituted for the purpose.

     The next question to be considered is about the relief which  may  be granted in thege appeals.  Reliance has  been placed by iearnedco’insci tor the appellants on the decision reported  in  Punjab  EW!S.  College  Chandigarh  vs,  Sajay Gulati  AIR 1983 SC 580] and an unreported judgment of  this court  in  Civil Appeal No.6896 of 1997 dated 29.9.1997  (R. Nithyapriya vs Revenue.  Divisional Officer & Ors.), wherein consequential directions were found to liave been issued for admitting those students who had succeeded before the court, in  the  subsequent  academic year, if need be  by  creating additional  seats.   Leaving  aside the fact that  in  those decisions  the  students who had succeeded before the  Court were  found to be victims of irregularities and illegalities committed  by  the  authorities entrusted with the  task  of selections  for admissions or on ac-count of some wrong done to  the candidate by an officer of the State in refusing  to issue  a certificate which disabled the concerned  candidate from joining the course to which the candidate concerned was actually  selected  for admission in those cases  the  court gave  interim  orders by issuing a direction to reserve  one seat  to  facilitate  her  admission.  It  was  an  entirely different fact situation.  So far as

     the  case  on  hand  is  concerned.,  the  authorities concerned  with  selection for admission could not be  found fault  with  in  any  manner.   It  was  due  to  the  wrong interpretation  placed on Hie rules governing admissions  by the court that they could not get admission for the academic year  in  question  in  time.  We  are  unable  to  persuade ourselves to accord a similar treatment lo the appellants in these  appeals,  as was granted to the appellants  in  those cases relied upon before us.

     We  are not, at this point of time, inclined to accede to  the claim of the appellants for issuing any direction to the  respondent  authorities  to  accord  admission  to  the appellants  to  the Post Graduate Degree course in  question for more than one reason.

     The  dispute  relates to the academic session  of  the year  1997  and we are in 2000.  To utilise the seats  meant for   the  next  academic   year,  by  accommodating   those candidates  of 1997 vintage, would amount to deprivation  of the  legitimate rights of those who would be in the fray  of contest  for selection, on the basis of their inter se merit

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for the session of 2000, taking into account the performance of  the candidates of 1997 in that year.  The suggestion  to create additional seats, apart from the objections

     frorn  the  State, cannot also be acceded to  for  the purpose  of admitting only the appellants in as much as  any additional  seats  even  if allowed to be created  during  a particular  year must be filled up only on the basis of  the standards   and   merit  performance   of   the   candidates participating in the contest tor the said year.  That apart, some  of  die  appellants appear to have got  admitted  into Diploma courses, having not been selected for degree courses and  there is no scope for adjusting the period of study put by  them while pursuing Diploma course, as one spent for  PG Degree  course.  There is also a positive prohibition tor  a candidate  pursuing  PG  Diploma   course  in  a  particular discipline  to claim to do PG Degree course in a  di.ffercnt discipline.

     The  mess  that  has occurred leading to  the  present litigation  seem to be more on account of the inept  drawing and  publication of the Prospectus by the University and not properly  carrying out the binding orders of the  Government and  of  too  many orders passed from time  to  time,  being allowed  to  stand piecemeal independently.  The  Government would do well in future lo publish at the beginning of every academic   year,  even  before   inviting   applications   a compendium  of  the  entire scheme and basis  for  selection carrying  out amendments up-to-date anid the Prospectus also specifically

     adopting  them  as  part of the Prospectus,  to  avoid contusion in the matter of selections, every year.

     Consequently,  though  the appeals are allowed to  the extent  of setting aside the judgment of the High Court  and settling the principles which should govern the selection of candidates for admission to the PG Degree/Diploma courses in Medicine  in respect of seats reserved for candidates of HCM Services;   the  appellants cannot be granted any relief  in their favour.  In view of the statement made at the stage of SLP  by  learned counsel on 6.2.1998, the admission  of  the respondents, however, is not interfered with.  Having regard to  the role of the University in the matter which only lead to all these confusions, the appellants would be entitled to costs  in  a  sum  of Rs.  10..000/-’- (one  set)  from  the University.