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PETITIONER: DR. AJAY PRADHAN & ANR.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH & ORS.

DATE OF JUDGMENT09/08/1988

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) SHARMA, L.M. (J)

CITATION:  1988 AIR 1875            1988 SCR  Supl. (2) 281  1988 SCC  (4) 514        JT 1988 (3)   295  1988 SCALE  (2)532  CITATOR INFO :  R          1992 SC   1  (66)

ACT:     Madhya  Pradesh  Selection for Post  Graduation  Courses (Clinical,  Para  Clinical  and  Non-Clinical  Courses)   in Medical Colleges of Madhya Pradesh Rules, 1964-Rule  10-Seat in P.G. Course-Falling vacant ’in the midst of ’ towards the end of an academic year-Right to admission.

HEADNOTE:     A  seat in the P.G. course in M.D. in the  G.N.  Medical College, Gwalior, fell vacant due to the death of a student. The  appellant, Dr. Sanjay Pradhan, staked a claim  to  this seat under rule 10 of the Madhya Pradesh Selection for Post- Graduation Courses (Clinical, Para-clinical and Non-clinical Courses) in Medical Colleges of Madhya Pradesh Rules,  1984. Inasmuch  as  the  vacancy  arose towards  the  end  of  the academic year, the authorities took no steps to fill it  up. The appellant’s writ petition was dismissed By the M.P. High Court. The High Court construed the words ’filled up in that year’  in r. 10 as meaning that a vacancy in any  particular academic year must be filed up in that year.     One seat in the P.G. Course in M.S., which was  occupied by Dr. Smt. Dhurupkar, was transferred from Medical College, Jabalpur,  to  Medical  College,  Bhopal,  with  a  view  to accommodate her. The appellant, Dr. Sanjay Kumar, moved  the authorities  seeking admission against that seat  contending that  the seat had become available in terms of r.  10.  The authorities  disallowed  his claim. His  writ  petition  was dismissed by the High Court in limine holding that the  seat occupied by Dr. Smt. Dhurupkar had been transferred with her and hence the seat, in fact, was not available.     It  was submitted before this Court that the High  Court has consistently been taking a view that it has the power as well as the duty to issue an appropriate writ, direction  or order for the ’backlog’ of seats to be filled up whenever it finds  that the authorities have acted in violation  of  the norms  prescribed  by  the relevant rules  and  a  deserving candidate  has  been  wrongly denied  admission  to  such  a professional course of studies.                                                   PG NO 281

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                                                 PG NO 282     Dismissing the appeals, it was,     HELD:  (1)  Rule 10 must be interpreted by  the  written text. If the precise words used are plain and  un-ambiguous, the Court is bound to construe them in their ordinary  sense and give them full effect. The argument of inconvenience and hardship  is  a  dangerous one and  is  only  admissible  in construction where the meaning of the statute is obscure and there  are  alternative methods of construction.  Where  the language  is explicit its consequences are  for  parliament, and not for the Courts, to consider. [287C-D]     (2) On a plain construction, rule 10 stipulates that  if a  seat falls vacant for any reason, and due to inaction  on the part of the authorities the seat is not filled up in the academic year to which it pertains, there is no question  of the vacancy being carried forward to the next academic year. [288A-B]     (3)  Normally,  the question of a seat being  filled  up must arise at the commencement of the academic year or  soon thereafter.  When  a  seat falls vacant  in  any  particular academic  year  there is a corresponding duty  cast  on  the authorities  to  take immediate steps to fill up  the  same. There  is  no  question of a right of admission  to  a  seat falling  vacant in the midst of or towards the end  of,  the academic year. [288C]     (4) it is conceded by learned counsel appearing for  the State Government that there is no provision which  empowered the  State Government to transfer a seat in the M.S.  course in  MD/MS reserved for a medical college to another  medical college.  It must therefore follow that the High  Court  was obviously  wrong  in holding that the seat occupied  by  Dr. Smt.  Dhurupkar had been transferred with her when the  seat was, in fact, available. [285C-D]     (5)  On the construction placed on r. 10 of  the  Rules, the  appellants are not entitled to any  relief.  Obviously, the  seat  that became vacant in the academic  year  1986-87 cannot now be filed in terms of s. 10. [295B]     (6)  It  is  impressed upon  the  State  Government  the desirability of taking immediate steps under rule 10 of  the Rules to fill up the vacancy in the P.G. Course in MD/MS  or the  Diploma course of studies in a  particular  discipline, the  moment the seat in that discipline is available in  any particular academic year. [295C-D]                                                   PG NO 283     (7)   The  State  Government  should  ensure  that   the authorities  charged with the duty of granting admission  to students   under  rule  10  of  the  Rules  act   with   due promptitude,  and should not by their lethargy  or  inaction deprive or otherwise meritorious candidate admission to such a  higher  course  of  studies to  which  he  was  otherwise entitled.  Perhaps, the solution lies in making  a  suitable provision  in the Rules providing for a  reasonable  period, say  fifteen  days, within which the  authorities  ought  to exercise  their  power under rule 10 of the  Rules,  failing which the seat available would be deemed to have been filled by  the candidate placed first in the waiting list  strictly according to merit. [295D-E]     King  Emperor v. Bensari Lal Sarma, LR (1945) 72 IA  57; Dr. Mrs. Urmilla Shukla v. State of M.P., Misc. Petition No. 297/83  decided by M.P. High Court on 17.4.84; Rekha  Saxena v. State of M.P., [l985] MPLJ 142; Dr. Sunil  Gajendragadkar v.  State of M.P. (Misc. Petition No. 57/85 decided by  M.P. High Court on 11.3.85.

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JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal  No.2560  of 1988.     From  the  Judgment  and Order dated  12.1.1988  of  the Madhya Pradesh High Court in Misc. Petn. No. 685 of 1987.                             AND     Civil Appeal No. 1639 of 1988.     From the Judgment and Order dated 8.6.1987 of the Madhya Pradesh High Court in Misc. Petition No. 1488 of 1987.     G.L.  Sanghi, M.N. Krishmani, Diwan Balak Ram  and  R.K. Singh for the Appellant in C.A. No. 2560 of 1988.     Rajender  Sachar,  Sanjay Sareen,  Vivek  Gambhir,  S.K. Gambhir for the Appellant in C.A. No. 1639 of 1988.     Ashwani  Kumar,  T.C.  Sharma and  S.N.  Khare  for  the Respondents.     The Judgment of the Court was delivered by     SEN, J. These two appeals by special leave brought  from the  judgments and orders of the Madhya Pradesh  High  Court dated June 8, 1987 and January 12, 1988 dismissing the  writ                                                   PG NO 284 petitions  filed  by each of the  appellants,  substantially involve  a question as to the interpretation of Rule  10  of the  Madhya  Pradesh Selection  for  Post-Graduation  Course (Clinical,   Para-clinical  and  Non-clinical  Courses)   in Medical Colleges of Madhya Pradesh Rules, 1984 (’Rules’  for short). The question raised is one of moment as it  involves the right to admission to a seat in the Post-Graduate course in  Medicine  & Surgery in a  Medical  college  (hereinafter referred  to as the PG course in MD/MS) falling  vacant  ’in the  midst  of’, or ’towards the end of’, an  academic  year which, we believe, is a problem facing all the States.     First  the facts. In these cases, the facts are  not  in dispute.  In Dr. Ajay Pradhan’s case, for the academic  year 1986-87  commencing  from September 1986,  there  were  nine seats reserved for the post-graduate course in the  clinical subject  of General Medicine for the G.R.  Medical  College, Gwalior. All the nine seats were filled by the Dean, Medical College  from  amongst candidates strictly on the  basis  of merit i.e. by candidates placed at serial Nos. 1 to 9 on the recommendation  of  the College and  Hospital  Council.  The appellant  Dr. Ajay Pradhan who was placed at serial No.  15 obviously could not be given admission to the P.G. course in M.D.  in General Medicine and was instead placed  at  serial No. 6 in the waiting list. Later on, he was given  admission to  the Diploma course in Radiology on 4. 10.86 and he  duly joined  that course on 6.10.96 but failed to appear  at  the examination. On 11.7.87 Dr. Arun Yadav, one Of the  Selected candidates,  who  stood  first in the  merit  list  and  was admitted to the P.G. course in M.D. in General Medicine  met with  a  tragic death in a road accident.  Inasmuch  as  his death  occurred  towards the end of the academic  year,  the authorities  took no steps to fill up the seat. However,  on the death of Dr. Arun Yadav, the appellant staked a claim to fill  up  the vacant seat under r. 10 of the  Rules  on  the ground  that  the candidates placed above him in  the  merit list  had been rendered ineligible having either  opted  for the Diploma course in Radiology or had left their house job. That  claim  of  his having been turned down  he  moved  the Gwalior  Bench  of  the High Court under  Art.  226  of  the Constitution.  A  Division Bench of the High  Court  by  its order  dated January 12,  1988 dismissed the  writ  petition holding  that the claim of the appellant in terms of  r.  10 was misconceived.     The  facts  in Dr. Sanjay Kumar Shrivastava’s  case  are

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these. For the academic year 1986-87 commencing from  August 1986, there were five seats reserved for the P.G. course  in M.S. in Obstetrics and Gynaecology for the Medical  College, Jabalpur.  On March 2, 1987, the State Government passed  an                                                   PG NO 285 order  transferring the seat occupied by Dr. Smt.  Dhurupkar in  Obstetrics  and Gynaecology from  the  Medical  College, Jabalpur   to  Medical  College,  Bhopal  with  a  view   to accommodate   her  and  presumably  because  such   transfer involved financial implications. On her transfer to  Medical College,  Bhopal, Dr. Smt. Dhurupkar continued to  draw  her stipend of Rs.800 per month reserved against one of the five seats in that discipline for Medical College, Jabalpur.  The appellant  Dr. Sanjay Kumar Shrivastava, who was  placed  at Serial  No.  7  in the waiting list  moved  the  authorities seeking  admission  to  the P.G. course  in  Obstetrics  and Gynaecology in Medical College, Jabalpur contending that the seat  had fallen vacant because of the transfer of Dr.  Smt. Dhurupkar and had therefore become available in terms of  r. 10  of  the  Rules. The authorities  having  disallowed  his claim,  the  appellant moved the High Court  by  a  petition under  Art. 226 of the Constitution. The High Court  by  its order  dated  June 8, l987 dismissed the  writ  petition  in limine holding that ’the seat occupied by Dr. Smt. Dhurupkar had  been transferred with her and hence the same, in  fact, was not available.     The main question that falls for determination in  these appeals is whether in terms of r. 10 of the Rules there is a right  to  admission  to a seat in the PG  course  in  MD/MS falling  vacant  in a medical college ’in the midst  of’  or ’towards the end of’ an academic year to which it  pertains. A  further  question arises in one of these  appeals  as  to whether  the  State Government has the power to  transfer  a seat  in  any of the disciplines in the PG course  in  MD/MS reserved for a medical college to another medical college in the State in order to accommodate a particular post-graduate student.     The  Medical  Council  of India  constituted  under  the Indian Medical Council Act. 1956 and one of whose duties  is to  prescribe  the minimum standards of  medical  education, made  recommendations  on February 12/13,  1971  prescribing uniform   standards  for  post-graduate  medical   education throughout   India  which  having  been  approved   by   the Government  of India and as revised from time to time,  have the  status  of  Regulations under s. 33  of  the  Act.  The Regulations  framed by the Medical Council of India  provide inter  alia  for  the different specialities  for  which  PG courses  in  MD/MS  as  also  Diploma  courses  in   certain disciplines may be conducted, and the norms for admission of students  to the PG courses in MD/MS as also to the  Diploma courses. According to the Regulations framed by the  Medical Council  of  India,  the student-teacher ratio  for  the  PG course  in  MD/MS is to be maintained at 1:1.  The  relevant regulation  prescribing a student-teacher ratio at  1:1  for                                                   PG NO 286 the  PG  course in MD/MS made with a view  to  maintain  the minimum standards of medical education for the PG course  in MD/MS insorfar as relevant, is as-follows:     "General     (1)  For  M.D./M.S. degree in clinical  subjects,  there shall  be proper training in basic medical sciences  related to  the  disciplines  concerned as well as  paper  in  these subjects  at the examination. In the case of M.D. & M.S.  in basic  medical sciences there should be training in  applied aspect of the subject and a paper on the subject.

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   (2)  In all post-graduate courses, whether  clinical  or basic medical sciences, preventive and social aspects should be emphasised.     (3)  This  should be a part of the  examination  in  the degree   courses   as  this  gives  training   in   research methodology.     (4)  The student teacher ratio should be such  that  the number  of  post-graduate teachers to the  number  of  post- graduate students admitted per year be maintained at 1:1.     For  the proper training of the post-graduate  students, there  should be a limit to the number of  student  admitted per  year.  For this purpose every unit  should  consist  of atleast 3 full time post-graduate teachers and can admit not more than 3 students for post-graduate teachers in the  unit is  more  than  three then the number  of  students  can  be increased  proportionately.  For this  purpose  one  student should associate with one post-graduate teacher.     (5) The selection of post-graduates both for degree  and diploma courses should be strictly on the basis of  academic merit."     In  most  of the States rules have been  framed  by  the various State Governments under Art. 162 of the Constitution regulating  the  manner of admission of students to  the  PG course  of  studies in MD/MS in the medical college  in  the State.  The number of seats available for the PG courses  in                                                   PG NO 287 MD/MS and for the Diploma courses in various disciplines  is therefore limited. There cannot be increase in the number of seats  without the sanction of the Medical Council of  India and  without corresponding increase in the strength  of  the teaching   staff,  which  necessarily   involves   financial implications.     The whole controversy turns on the purport and effect of r.  10  of the Rules prescribing the manner in  which  seats available in any particular year are to be filed, and is  in these terms:     "10. The seats available in any particular year will  be filled  up  in  that year. No candidates  will  be  admitted against the seats remaining vacant from previous year."     We  must  interpret r. 10 by the written  text.  If  the precise  words used are plain and unambiguous, we are  bound to construe than in their ordinary sense and give them  full effect.  The  argument of inconvenience and  hardship  is  a dangerous  one and is only admissible in construction  where the  meaning  of  the  statute  is  obscure  and  there  are alternative  methods of construction. Where the language  is explicit  its consequences are for Parliament, and  not  for the  Courts, to consider. "Where the language of an  Act  is clear and explicit", said Viscount Simon in King Emperor  v. Bensari  Lal  Sarma, LR (1945) 72 Ia 57 at p. 70,  "we  must give  effect to it whatever may be the consequences  for  in that  case the words of the statute speak the  intention  of the  legislature".  We  do  not see why  the  same  rule  of construction  should  not apply to the Rules framed  by  the State Governments under Art. 162 of the Constitution.     On  a  plain construction, r. 10 is in  two  parts.  The power to admit a student under the first part arises when  a seat falls vacant in a particular year. The words ’filled up in  that year’ necessarily qualify the preceding words  ’the seats  available in any particular year’. It must  logically follow  that a necessary concomitant of the power under  the first part of r. 10 is the ’availability’ of the seat  being filled  up  in the academic year to which it  pertains.  The words  ’filled  up in that year’which follow  clearly  imply that the vacancy cannot be carried over to the next academic

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year  or years. That construction of ours is  reinforced  by the  second  part  of r. 10 which, by the  use  of  negative language,  clearly  creates  a bar against  the  seat  being filled  up in the next or succeeding academic year. What  is implicit in the first part of r. 10 is made explicit in  the second  part.  The use of the negative words in  the  second part ’No  candidates will be admitted .... etc.’ are clearly                                                   PG NO 288 prohibitory  in nature and exclude the applicability of  the carry-for-ward rule. It follows that if a seat falls  vacant for any reason, namely, that the candidte selected in  order of  merit does not join the PG course in MD\MS in a  medical college  or by reason of his death or otherwise, and due  to inaction  on  the part of the authorities the  seat  is  not filled  up in the academic year to which it pertains,  there is  no question of the vacancy being carried forward to  the next academic year.     Rule 10 is a specific provision made for the benefit  of the  merit  candidates who are placed in the  waiting  list. Normally, the question" of a seat being filled up must arise at the commencement of the academic year or soon thereafter. In  our  considered  opinion on the terms of  r.  10  as  it exists, no other view is possible. When a seat falls  vacant in  any  particular academic year there is  a  corresponding duty cast on the authorities to take immediate steps to fill up the same. There is no question of a right of admission to a  seat falling vacant in the midst of, or towards  the  end of, the academic year.     As per the Regulations framed by the Medical Council  of India,  the  PG  course in MD/MS is  a  three-years’  course including  one year’s house job. This is followed by a  two- years’  degree  course. The two years’ degree  course  in  a medical  college  as prescribed by the  Medical  Council  of India  is  a period of intensive training.  A  post-graduate student has not only to write a dissertation or thesis under the supervision of the Professor or Associate Professor  who is  his guide, but has also to take part in seminars,  group discussions,  clinical meetings besides  attending  classes. There  is  also emphasis on in-service training and  not  on didactic  lectures.  The in-service  training  requires  the student to be a resident in the campus and he has the graded responsibility  in the management and treatment of  patients entrusted to his care. For this purpose, adequate number  of posts  of  clinical  residents or tutors  are  created.  The period also includes adequate training in the basic sciences of   Anatomy,   Physiology,   Bio-Chemistry,    Bio-Physics. Pharmacology  and Pathology in all aspects relevant  to  the speciality concerned. He is also required to participate  in the  teaching  and  training  programmes  of  under-graduate students  or interns in their subjects. The examination  for the   PG  course  in  MD/MS  consists  of  (i)   thesis   or dissertation, (ii) written papers. (iii) clinical, oral  and practical examination. There are four theory papers for  the post-graduate degree examination, of which one has to be  on Applied Basic Sciences. The clinical examination is aimed at eliciting   the  knowledge  of  the  student  to   undertake independent  work  as a Specialist. The oral  and  practical examinations   are   meant   to  test   his   knowledge   on                                                   PG NO 289 investigative  procedures, techniques and other  aspects  of the  speciality.  The  syllabus prescribed  by  the  Medical Council  of  India for the PG course in MD/MS  as  also  the student-teacher  ratio of 1:1 virtually negate the right  to admission  to  a  seat falling vacant in  the  midst  of  or towards the end of the academic year to which it pertains.

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   In  Ajay  Pradhan’s case, the High Court  dismissed  the writ petition principally on the ground that in terms of  r. 10 of the Rules he was not entitled to any relief. Dr.  T.N. Singh,  J.  speaking for himself and Ram Murti  Rastogi,  J. construed  the  words ’filled up in that year’ in r.  10  as meaning that a vacancy in any particular academic year  must be  filled up in that year. According to him, the  power  to admit a student under r. 10 must be availed of either before the academic year commences or very soon thereafter, so that a candidate placed in the waiting list admitted under r.  10 does  not  suffer  serious  loss of  study  due  to  belated admission.  Further he rightly observes, the second part  of r.  10 mandates that if any seat has not been filled  up  in the academic year to which it pertains, the exercise  cannot be  undertaken in the succeeding year and it  furnishes  the rationale behind the provision, and said:     "An academic course cannot be compressed to  accommodate any  particular  candidate  who  comes  late.  Because,   no separate  or  ’special’  arrangement  can  be  made  for   a latecomer for imparting instructions to him. Any other  view would  not make a reasonable reading or construction of  the Rule in its context and setting for each candidate has to be not only examined periodically with respect to  instructions imparted,  the  pre-requisite  therefore  has  also  to   be fulfilled by rendering instructions to him during the  whole period  of the course. We have no doubt that when a seat  is allotted  a date has to be specified by which it has  to  be availed. Therefore, it shall not be deemed ’filled up’ if it is not availed. Indeed, it would then become the duty of the concerned  authority to fill up the same by offering  it  to any  other eligible candidate according to merit. In such  a case,  a decision has obviously to be taken to do so  either before the session commences or very soon thereafter so that the new-comer does not suffer serious loss of studies due to belated admission."     We are in complete agreement with the view expressed  by the learned Judge.                                                   PG NO 290     We shall now deal with a couple of decisions to which we were  referred  to  by learned counsel  for  the  appellants during the course of their arguments. It was submitted  that the  High Court has consistently been taking a view that  it has  the power as well as the duty to issue  an  appropriate writ,  direction or order for the ’backlog’ of seats  to  be filled up whenever it finds that the authorities have  acted in  violation of the norms prescribed by the relevant  rules and a deserving candidate has been wrongly denied  admission to  such  a  professional course of  studies.  It  seemingly appears  to  be  so, but on closer  scrutiny  the  decisions relied upon are clearly distinguishable on facts.     There  are  three decisions we must  mention:  Dr.  Mrs. Urmilla Shukla v. State of M.P. & Ors., (Misc. Petition  No. 297/83 decided on 17.4.84); Rekha Saxena v. State of M.P.  & Ors., [1985] MPLJ 142 and Dr. Sunil Gajendragadkar v.  State of  M.P., (Misc. Petition No. 57/85 decided on 11.3.85).  In Dr.  Urmilla Shukla’s case, the facts were these.  Dr.  Mrs. Urmilla Shukla had applied for admission to the PG course in MS  in Gynaecology and Obstetrics as well as to the  Diploma course  in that discipline in G.R. Medical College,  Gwalior for  the academic year 1983-84. It was not in  dispute  that there  were 7 Lecturers in Obstetrics & Gynaecology in  that College and as such 7 students had to be admitted for the PG course in MS in Gynaecology and Obstetrics. As per r. 2.2 of the Rules the State Government had fixed the ratio of  2/3rd for  the  merit candidates and 1/3rd for the  candidates  in

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Government  Service  as  Assistant  Surgeons  or  equivalent posts, for admission to Post-Graduate course in Gynaecology. No rules had been framed for working out the ratio of  2/3rd and 1/3rd. Dr. Mrs. Urmilla Shukla stood fifth in the  merit list.  However, the authorities did not select her  for  the studies  in  MS course in Obstetrics & Gynaecology  for  the academic  session  starting from August 1983  but  gave  her admission  to the Diploma course. She made a  representation that  she should have been given admission to the PG  course in  MS  in Obstetrics & Gynaecology and not to  the  Diploma course,  contending that there was no justification now  the ratio  of  4:3 had been worked out. The  Government  however rejected  the representation and there- upon she  moved  the High  Court.  The High Court allowed the writ  petition  and struck  down  the  decision of the  State  Government  dated August  30,  1983 fixing the ratio at 4:3  as  being  wholly arbitrary and without any rational basis, and held that  the ratio should have been 5:2.     C.P. Sen, J. speaking for himself and R.C.  Shrivastava, J.  explained that 2/3rd of 7 came to 4.666 while 1/3rd  was 2.333. and the question was now the figure had to be rounded                                                   PG NO 291 off for filling up the 7 seats. The learned Judge  explained that  the proper method would be that if the figure is  more than  half the same has to be rounded off as 1 while if  the figure is less than half it is not to be reckoned. The  High Court  accordingly issued a writ in the nature  of  mandamus directing  the  Government  to give admission  to  Dr.  Mrs. Urmilla  Shukla to the Post-Graduate course in Obstetrics  & Gynaecology  and permit her to appear at the MS  examination in that discipline. It is however necessary to observe  that the  learned Judge mentioned that out of 7 seats for the  PG course of studies in Obstetrics & Gynaecology, one seat  had been kept vacant probably because of the filing of the  writ petition  by  Dr. Mrs. Urmilla Shukla  and  therefore  there could be no impediment to the grant of admission to her  and cited  a  precedent under similar circumstances  during  the earlier year. Dr. Miss Sushma Dixit had been admitted to the MS  course  in Obstetrics & Gynaecology because one  of  the candidates  selected had gone abroad without permission  and her  admission  had been cancelled. He further  pointed  out that Dr. Mrs. Urmilla Shukla was pursuing her studies in the Diploma course in Obstetrics & Gynaecology and the  syllabus in the MS in that discipline for the first year was the same and  therefore  there could be no difficulty in her  way  in determining  the  percentage  of  attendance  to  make   her eligible  to appear at the examination. The decision in  Dr. Mrs.  Urmilla  Shukla ’s case therefore turned  on  its  own facts.     The decision in Rekha Saxena’s case was an aftermath  of the  decision  in Dr. Mrs. Urmilla Shukla’s case  Dr.  Rekha Sexena had applied for admission only to the Diploma  course in  Gynaecology & Obstetrics and she rightly contended  that the ratio for the P.G. course in MG between merit candidates and  Assistant Surgeons should have been 5:2 and  she  being placed  at serial No. 4 in the merit list, should have  been admitted  to the Diploma course. She complained  that  after Dr. Urmilla Shukla was given admission to the MS course, she made an application that she be given provisional  admission to  the Diploma course on the assurance that  if  ultimately Dr.  Urmilla Shukla had to come back to the  Diploma  course she would walk out and further that she could not claim  any stipend  for the period of her studies, and that though  the High  Court allowed the writ petition of Dr. Urmilla  Shukla and  the College Council recommended her case for  admission

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to the Diploma course, the authorities turned down her claim on the ground that she could not be given admission in  1984 against  the  quota  for  the  academic  year  1983-84.  The petitioner in her rejoinder pointed out the instance of  Dr. Miss  Sushma Dixit who was given admission to the MS  course in  Gynaecology  &  Obstetrics in the month  of  March  1983                                                   PG NO 292 though  she  was doing her Diploma course for  the  academic year  1982-83,  and  made a grievance  that  she  was  being discriminated  against  as  the  authorities  were  adopting different yardsticks in her case. In the return filed by the State Government, the facts were not disputed. All that  was said  was  that against the aforesaid judgment of  the  High Court   in  Dr.  Mrs.  Urmilla  Shukla’s  case,  the   State Government  had  taken an appeal to the  Supreme  Court  and therefore her seat in the Diploma course was kept vacant and had  not  been  declared  to  be  available  for  any  other candidate.  Upon this basis, it was asserted that  as  there was  no  seat vacant, no admission could be granted  to  Dr. Rekha  Saxena.  At  the hearing of  the  writ  petition  the Government’s  appeal in Dr. Mrs. Urmilla Shukla’s  case  was still pending.     G.L  Oza,  Actg.  CJ. speaking for  himself  and  Rampal Singh,  J. allowed the writ petition and directed  that  the petitioner  Dr. Rekha Saxena be given provisional  admission to  the  Diploma course in the vacancy caused  on  admission being  granted to Dr. Mrs. Urmilla Shukla to the MS  course. The  High Court repelled the contention that the  petitioner was  a candidate for admission to a course for the  academic year 1983-84 and could not be admitted in the year 1984, and observed:     "It is strange that this request of the petitioner dated 26.8.1983  was ultimately turned down by the respondents  by an  order  dated 25.4.1984, practically eight  months  after this prayer was made by the petitioner. This delay in taking a decision on such matters when every day that passes in the life  of  a  professional  candidate  is  materially  speaks volumes  about  the efficiency of this  department  and  the rejection is on this basis that the petitioner was  selected for  the  year 1983 and could not be admitted  in  the  year 1984. This logic of this order, it appears, is not  defended in  the  return  and a new defence has been  raised  in  the return  that as the case of Dr. Smt. Urmilla Shukla  is  not yet finally decided and is pending in the Supreme Court, the seat  has  not  been  declared vacant  although  it  is  not disputed  that  the seat is and was vacant in  fact.  It  is peculiar  that if Dr. Smt. Urmilla Shukla could be  given  a provisional  admission,  why the petitioner could  not  have been  given provisional admission immediately when  she  had herself  offered in terms which would throw no liability  on the  respondents  if ultimately she had to go back,  but  it appears   that  her  application  was  not  considered   and ultimately practically major part of the session was  wasted                                                   PG NO 293 and  then the refusal was on the ground of delay  for  which the   authorities  themselves  were  responsible.   It   is, therefore,  plain  that this kind of attitude could  not  be justified."     It was then observed:     "It is also interesting that in fact the selection of  a candidate  for  admission to a course is  for  the  academic session which is August 1983 to August 1984 and,  therefore, when  this order in April 1984 was passed, the  session  was still  in  the  offing and if  the  petitioner  was  granted admission,  there was no question of consideration of  merit

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for  the year 1984. It is also plain that the seat  remained vacant  as Dr. Smt. Urmilla Shukla had been admitted in  the M.S. Course.’’     Incidentally, the High Court was not impressed with  the submission  made on behalf of the Government that there  was no  declaration  that  the seat in the  Diploma  course  had fallen vacant and therefore there was no question of  giving admission   to   the  petitioner,  observing   that   formal declaration of vacancy was too abstract a concept to deprive a  candidate admission to the P.G. Course or Diploma  course to  which  he  is entitled, merely on the  ground  that  the vacancy pertained to the academic year which had gone by  or that  no  additional seat in the new year could  be  created without sanction of the Medical Council of India. In  coming to the conclusion that it did, the High Court mainly  relied on  certain  observation  made  by  this  Court  in   Punjab Engineering  College v. Sanjay Gulati & Ors., [1983]  2  SCR 801, and in particular to the following observations:     "Those  who infringe the rules must pay for their  lapse and  the wrong done to the deserving students who  ought  to have  been admitted has to be rectified. The  best  solution under  the circumstances is to ensure that the  strength  of seats  is  increased in proportion to the  wrong  admissions made."     We  need  not enter into this controversy.  What  is  of significance  is  that  in  Rekha  Saxena’s  case  the  seat occupied  by  Dr. Urmilla Shukla in the  Diploma  course  in Obstetrics & Gynaecology was kept vacant and therefore there was no legal impediment for the High Court to have issued  a direction for the admission of Dr. Rekha Saxena.                                                   PG NO 294     In  Sunil Gajendragadkar’s case, the facts were more  or less these. One Dr. Laxmi Jain did not join the P.G.  course in MD in General Medicine for the academic year 1983-84  and the  College Council on December 22, 1984 decided to  cancel her admission w.e.f. August 1, 1984. But the vacancy  caused thereby  was  not  notified or advertised.  The  High  Court relying  on Rekha Saxena’s case repelled the  contention  of the Government based on r. 10 that a seat falling vacant  in a particular year can only be filled up in that year and the Sunil  Gajendragadkar could not be admitted in the  academic session 1983-84 which commenced from August 2, 1983.     Oza,  CJ.  speaking for himself and Ram  Pal  Singh,  J. repelled   the  contention  of  the  Government   that   the petitioner  being  a  candidate for admission  to  the  P.G. course in MD in General Medicine for the academic year 1983- 84, could not be considered for admission in the year  1984- 85  relying on the earlier decision in Rekha  Sexena’s  case based on the observation of this Court in Punjab Engineering College  that  "those who infringe the rules  must  pay  for their lapse and the wrong done to the deserving students who ought  to have been admitted has to be rectified.  The  best solution  under  the  circumstances is to  ensure  that  the strength  of seats is increased in proportion to  the  wrong admissions made", and quoted from Rekhu Saxena’s case:     "In the present case, as it is clear that in the vacancy of  Dr.  Urmilla  Shukla  the  petitioner  was  entitled  to admission  immediately  in August l983 itself,  and  if  the respondents  had chosen to keep her away by not  considering her  prayer,  it could not be contended that now it  is  too late for her to be admitted."     The learned Chief Justice largely relied on the  concept of  justice and fairness. He adverted to the fact  that  the College  Council  took  a  decision  on  December  22,  1984 creating  a vacancy w.e.f. August 1, 1984 i.e.  commencement

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of  the next academic session. Although Dr. Laxmi  Jain  did not join the P.G. course in MD in General Medicine in August 1983,  her  seat was in fact vacant, but due to  apathy  and lethargy  of the authorities no steps were taken to fill  up the seat in that year in terms of r. 10. On the language  of r.  10,  we find it difficult to sustain the action  of  the authorities in making the seat available from August 1, 1984 i.e.  commencement  of the next academic year, or  the  view expressed by the High Court.     In the appeal preferred by Dr. Sanjay Kumar Shrivastava, it  is conceded by learned counsel appearing for  the  State Government  that there is no provision which  empowered  the                                                   PG NO 295 State  Government to transfer a seat in the P.G.  course  in MD/MS  reserved  for a medical college  to  another  medical college.  It must therefore follow that the High  Court  was obviously  wrong in holding that the seat occupied  by  Smt. Dhurupkar  had been transferred with her when the same  was, in fact, available. On the construction that we place on  r. 10  of  the Rules, the appellants are not  entitled  to  any relief.  Obviously,  the  seat that  became  vacant  in  the academic year 1986-87 cannot now filed in terms of r. 10.     We  wish to impress upon the State Government of  Madhya Pradesh the desirability of taking immediate steps under  r. 10 of the Rules to fill up the vacancy in the P.G. course in MD/MS  or  the  diploma course of studies  in  a  particular discipline, the moment the seat in a medical college in that discipline  is  available  in  a  medical  college  in   any particular academic year. The State Government should ensure that  the  authorities  charged with the  duty  of  granting admission to students under r. 10 of the Rules must act with due  promptitude,  and  should  not  by  their  lethargy  or inaction   deprive   an  otherwise   meritorious   candidate admission to such a higher course of studies to which he was otherwise  entitled. Perhaps, the solution lies in making  a suitable  provision in the Rules providing for a  reasonable period, say fifteen days, within which the authorities ought to  exercise their powers under r. 10 of the Rules,  failing which the seat available would be deemed to have been filled by  the candidate placed first in the waiting list  strictly according to merit.     In the result, the appeals must fail and are  dismissed. There shall be no order as to costs.      R.S.S.                          Appeals dismissed.