B. Srinivas and others vs The University of Health Services, Vijayawada

The petitioners in all these writ petitions are students undergoing studies in Post-Graduate Diploma Courses in the various Medical Colleges in different subject-groups. The petitioners in the first four writ petition, viz., W.P. Nos. 9117/89, 9142/89, 9578/89 and 7298/89, seek a writ of mandamus declaring the notification F.No.6801/ PG/E2/88, dated 14-12-1988 issued by the respondent as illegal, arbitrary and discriminatory and to direct the respondent to permit the petitioners to appear for the Entrance Test for the year 1989 for admission into P.G, Medical Degree Course. In W.P. 9260/ 89 the petitioner prays for the issue issue of writ of mandamus declaring R.6 read with R.11(ii), particularly R.6(3) of the Rules for Admission to Post-Graduate Medical Courses in the Medical Colleges in A.P. University of Health Sciences for the year 1989-90, as arbitrary, illegal and unenforceable and seeks a direction to allow the petitioner to appear for the Post-Graduate Entrance Test to be held for the year 1989-90.

The main question arising for consideration in all these writ petitions is whether the petitioners, who are the Post-Graduate Medical Students, are entitled to appear for the entrance test for the year 1989-90 for admission into Post-Graduate Medical Degree Course. Notification F.No.6801/PG/ E2/88, dated 14-12-1988 is based upon the provisions of R.6(3) of the Rules for admission to Post-Graduate Medical Courses in the Medical Colleges in A.P. University of Health Sciences for 1989-90. Therefore, the purport of all the writ petitions is to seek permission for appearing in the ensuing entrance test for admission to the Post-Graduate Medical Degree Course. The facts in all these cases are not disputed and the main question which arises is of a purely legal nature which will have to be considered in all the writ petitions.

The petitioners in all the writ petitions are students in Post-Graduate Diploma Courses, who are now trying to better their prosspects by appearing in the entrance examination to be held for the Post-Graduate Medical Degree Course. It is an accepted fact that a Post-Graduate Medical Degree carries more weight in the field of Medical Sciences and it is supposed to be higher qualification as compared to Post-Graduate Diploma held by a person. Therefore, the endeavour of the petitioners is that they should be allowed to appear for the entrance examination to the Postgraduate Degree for the course and in case they succeed they would be eligible for admission to the Postgraduate Medical Degree Course. Therefore, the rule which fails for consideration in this batch of writ petitions is R.6(3) of the Rules for admission to Postgraduate Medical Courses in the Medical Colleges in A.P. University of Health Sciences for 1989-90, which will hereinafter be referred to as "the 1989-90 Rules", which is in the following terms:

"6. Eligibility :--

(1) and (2) xx xx xx (3) applicants who were admitted and registered for a postgraduate Degree or Diploma course in a subject during the academic year 1988-89, shall not be permitted to appear for P.O. Entrance Test for admission either in Post-graduate Degree or Diploma Course subject to R.11(ii)."

It would be necessary to examine the provisions of R.6(3) of the 1989-90 Rules in the light of the earlier rules of 1987-88 and 1988-89, along with R.11(ii) of the said Rules. It will be useful to re-produce hereunder R.6(3) of the 1987-88 Rules and also 1988-89 Rules. R.6(3) of the 1987-88 Rules is in the following terms:

"6. Eligibility :--

(1) and (2) xx xx xx (3) Applicants, who are already postgraduate diploma holders in a subject or admitted and registered for a postgraduate diploma course in a subject, shall not be considered for admission to postgraduate degree course in the subjects available in another group subject to R.11(ii)."

Rule 6(3) of the 1988-89 Rules is in the following terms:

"Eligibility:--

(1) and (2) xx xx xx (3) Applicants, who are admitted and registered for a postgraduate diploma course in a subject shall not be considered for admission to postgraduate degree course in the subjects available in another group subject to R.11(ii)."

A comparative study of these three rules reveals the fact that R.6(3) of the 1989-90 Rules is in different terms as compared to the rule framed for the earlier years, viz. R.(3) of the 1987-88 Rules and R.6(3) of the 1988-89 Rules. Under R.6(3) of the 1987-88 Rules it is provided that applicants, who are already postgraduate diploma holders in a subject or admitted and registered for a postgraduate diploma course in a subject shall not be considered for admission to postgraduate degree course in the subjects available in another group subject to R.11(ii). Similarly, under R.6(3) of the 1988-89 Rules also it is provided that applicants, who are admitted and registered for a postgraduate diploma course in a subject, shall not be considered for admission to postgraduate degree course in the subjects available in another group subject to R.11(ii). But, R.6(3) of the 1989-90 Rules is in a different form and provides that applicants, who were admitted and registered for a postgraduate Degree or Diploma course in a subject during the academic year 1988-89 shall not be permitted to appear for P.G. Entrance Test for admission either in Postgraduate Degree or Diploma Course subject to R.11(ii). Thus, there is a fundamental difference in the rule of ''Eligibility'' in R.6(3) of the 1989-90 Rules and the earlier rules. Under R.6(3) of the 1989-90 Rules for admission to Postgraduate Medical Courses in the Medical Colleges in A.P. University of Health Sciences for 1989-90 a bar is created for appearing in the P.G. Entrance Test for admission either in Post-graduate Degree or Diploma Course whereas in the earlier years, i.e., 1987-88 and 1988-89, referred to above, no such bar operates at the time of appearing for the entrance test, but there is an embargo that a person who has registered for a Postgraduate Diploma course shall not be considered for admission to Postgraduate Degree course. Under R.6(3) of the rules for the three years, 1987-88, 1988-89 and 1989-90 it has been consistently provided that all the candidates shall appear for entrance test and shall qualify themselves therein to be eligible for admission into Postgraduate course. Thus, it is clear that the stage for eligibility for admission into Postgraduate Degree Course will arise only after a student has appeared for the entrance test and qualified himself to be eligible in the entrance test for admission into Postgraduate degree course. The bar which was operating under the rules of 1987-88 and 1988-89, therefore, was at the stage of admission into Postgraduate Degree Courses after the candidates have appeared for the Postgraduate Entrance Test for admission to Postgraduate degree/diploma course.

Sri A. Gopala Rao, learned standing counsel for the respondent-University has strongly relied on the judgment of a learned single Judge of this Court made in W.P. No. 3812 of 1988 and batch dated 26-7-1988 in which it is held, inter alia, that the restriction imposed on those who have already registered for a course, either degree or diploma, cannot be held to be invalid as the restriction discourages giving up a seat to which one is already admitted. Therefore, an observation has been made in the said judgment that the authorities may review the entire question after taking the opinion of the experts including that of the Medical Council of India to ensure whether such a restriction is really reasonable from the point of view of the number of candidates and the courses that are involved in the matter. The essential point to be considered is that the rule which was considered by the learned single Judge in the above said batch is the eligibility rule of 1987-88 under which a bar has been created at the stage of admission to P.O. Degree Courses, subject to R.11(ii). The rule which is challenged in this batch of writ petition is the rule of 1989-90 which is a different rule altogether which creates a bar at the very threshold for appearing in the P.O. Entrance Test for admission into P.G. Degree Courses. Therefore, it cannot be said that the earlier judgment operates in the same field as in the present case.

The other judgment, which needs consideration, is one made in W.P. 5786 and 7489 of 1987 dated 21-10-1987. In that batch of cases the situation which arose for con- sideration is identical to what is existing in the instant batch of cases. In W.P. 5786 and 7589/87 the peitioners had applied for admission to common entrance examination on the results of which the of a candidate depended, After the receipt of the applications of the petitioners, the University changed the rules by an amendment dated 27-4-1987 to the effect that the students who are already prosecuting post-graduate course but wish to discontinue those post-graduate medical courses should give up those courses failing which they will be rendered ineligible for common entrance examination. It is, therefore, obvious that the matter arising in W.P. 5786 and 7489/87 was with regard to the eligibility of the candidates who were already pursuing Postgraduate Diploma Course and who wanted to discontinue those postgraduate medical courses and appear for the common entrance examination to qualify themselves for admission into Postgraduate Medical Degree Courses. In that batch of cases it was held by P.A. Choudary, J. that no useful purpose would be served by the insistence of the University to require the petitioners to surrender their existing postgraduate course even at the stage of their sitting for the common entrance examination. The learned Judge further held that by permitting the existing postgraduate medical students to appear for the common entrance examination on returning the stipendiary amount and paying Rs.1,000/- the University had not succeeded in saving a medical seat from going waste. The purpose of the rule as it stood was not supposed to save a medical seat in Postgraduate Medical Course but was only to prohibit these students from pursuing the postgraduate course. A more reasonable approach was ordained in that batch of writ petitions and the respondent-University was directed to permit the petitioners to appear for the common entrance examination and then in case of candidates who qualify themselves in such examination they may be required to produce proof of their surrender of the existing Postgraduate Course as require under R.11(ii) of the Rules. R.11(ii) which has to be read in conjunction with R.6(3) of the 1989-90 rules is in the following terms:--

"11. Admission Rules:--

(i) xx xx xx (ii)All the candidates joining the postgraduate degree, diploma courses should execute the bond on a stamped paper of Rs.5/- value as prescribed in Annexure III to ensure completion of the prescribed period of training or in default to pay Rs.10,000/- to the University of Health Sciences the amount mentioned in the bond and shall have to refund the amount received as stipend upto that date to the Government. But the candidates who resign the course under this clause, shall not be considered for any other subject on the basis of merit in the entrance test during the same academic year. The course imparted prior to resignation shall not be counted for any other purposes."

It may be noticed that under R.11(ii) of the 1989-90 rules the sum of money which will become payable a along with the stipend in case of a candidate who resigns the course is Rs.10,000/-. The material question to be considered in this batch of writ petitions, therefore, is what is the appropriate time to apply R.11(ii). Is it at the time of appearing in the common entrance examination that this rule should be applied or should the rule be applied at the time when the question of admission into the postgraduate degree course arises, after a candidate qualifies himself in the entrance examination. The earlier decision of P.A. Choudary, J. in W.P. Nos. 5786 and 7489 of 1987 clearly shows that the appropriate time to apply R.11(ii) is only after the candidate has qualified himself in the entrance examination and is eligible for admission into Postgraduate Medical Courses. The learned standing counsel for the respondent-University has argued vehemently that the rule of eligibility propounded under R.6(3) is with a view to save the seats from going waste in the Diploma Courses which the petitioners are already pursuing. I am afraid I cannot agree with this argument. A close scrutiny of the merits of this batch of cases shows that it does not stand to reason. By way of an illustration, the point involved in the matter may be considered. Suppose there are 10 candidates who are currently doing their P.O. Diploma Course and who are desirous of appering in the entrance examination for pursuing P.G. Degree Course. Under R.11(ii) there is no bar for anyone to resign the course by complying with the requirements of payment of Rs.10,000/- and refund of the stipend amounts received by the candidate upto that date. Therefore, if the 10 candidates in our example resign their courses by paying the money, they are entitled to appear for the P.G. Degree course. It is evident that all of them may not pass in the common entrance examination for admission into P.G. Medical Degree course. A few may get though the rest will be left in the lurch because they can neither do the degree nor the diploma course. Assuming that about 3 candidates pass in the entrance examination, the rest of the seven will not be in a position either to pursue their Diploma course or the Degree Course. The net result of this exercise would be that all the ten seats in the Diploma course will go waste albeit on payment of money as provided under R.1(ii). How does the University propose to put a stop to such wastage of seats by the promulgation of R.6(3) in the present form? It may be appropriate to lake another example, visualising that R. 11(ii) is to be imposed at the stage of admission into P.G. Course. This will be oh the assumption that there is no bar in appearing for the P.S. Entrance Test. It may be supposed that 10 candidates take the P.G. Entrance Test and say about 3 or 4 pass in the said test, the remaining 6 or 7 who have not qualified for the Degree Course will continue to do their Diploma course. Such of the candidates who have qualified, their number being 3 or 4, will have to satisfy the requirement of R.11(ii) before they are considered for admission into P.G. Medical Degree Courses. By this method, the total number of seats which are going waste -- if it can be called a waste at all -- will be only of those candidates who have qualified themselves for P.G. Medical Degree Courses and they will pay the money as required under R.11(ii). The element of waste, therefore, in the latter case is much less than what it is in the former. It is not as if the respondent-University will be successful in deterring all the candidates who are doing their Diploma Course from switch- ing over to the Degree Courses by the rigour of R.6(3). A sizable number of such candidates who are doing diploma course would still venture to take the examination even at the dint of making the payments under R.11(ii) which in no way helps to minimise the wastage, if any, by the seats going vacant. Moreover, it is interesting to note that under the Note to R.6(3) of the 1989-90 Rules what is postulated is that candidates seeking admission after resigning the course under R.11(ii) shall enclose a copy of the certificate of acceptance of resignation from the Principal of concerned Medical College. It does not speak of the candidates who are trying to appear for the P.O. Entrance Test. What it speaks about is the candidates seeking admission into the Postgraduate Medical Courses after qualifying themselves in the P.G, Entrance Examiation. In my opinion, therefore, the Note to R. 6 clearly postulates that R.11(ii) will come into play only at the time of admission to Postgraduate Degree Courses.

Sri A. Gopala Rao, learned standing counsel for the respondent-University has relied on the provisions of R.4 and the NB thereto. The NB to R.4 is in the following terms:

"Relevant certificates must be attached to the application in respect of their claim. In respect of residence, the certificate should be obtained from the Revenue Authorities not below the rank of Tahsildar/Mandal Revenue Officer."

On the strength of the above said NB, it is contended that the relevant certificates are required to be attached to the application made for sitting in the P.G. Entrance Test and, therefore, the certificate as required under R.11(ii) should also be submitted at the time of the Entrance Examination and not at the time of admission to P.G. Medical Courses. I am afraid I do not see much point in this contention for the simple reason that in the presence of a special note under R.6, it would be futile to look at a general rule provided under R.4NB which is applicable to cases of students who are applying for admission into the entrance test. It is a well settled principle of law that a specific provision will exclude a general omnibus clause in a particular matter. Specialia Generalibus Derogant, the Latin Maxim, therefore, applies with full force to this batch of cases, which means special words derogate from general words. A special provision as to a particular subject matter is to be preferred to general language, which might have governed in the absence of such special provision. Further more, it may be stated that the note to R.6(3) appears consistently in all set of rules for the year 1987-88, 1988-89 and 1989-90 and even though an amendment has been introduced to R.6(3), the note still continues to be in the same form as it was earlier.

Sri A. Gopala Rao, learned standing counsel for the University has relied upon a Full Bench decision of this Court reported in M. Narasimha Rao Vs. Secretary to the Government Medical and Health Department Government of Andhra Pradesh and Others, in which the rules for admission to Postgraduate Courses in Medical Colleges of Andhra Pradesh State contained in G.O. Ms. No. 624 M & H dated 26-9-1979 and R. 5(b) came up for consideration. Suffice it to stale that the above said decision deals with the qeustion of a candidate who was already admitted for M.D. Course (Degree Course) in a particular subject and was desirous of doing a degree course in another subject. In other words, it was a case of change of a subject from one degree course to another degree course. It was not a case of person trying to improve his prospects in life by making a change from a diploma course to a degree course which is obviously a coveted qualification in the field of medical science. In that view of the matter it was held that a candidate who is already doing a degree course should not be allowed to switch over to another subject in the degree course which will result in unnecessary wastage of the money spent by the State on the candidate. I do not see any parallel to be drawn in the decision in M. Narasimha Rao Vs. Secretary to the Government Medical and Health Department Government of Andhra Pradesh and Others, and the present batch of cases before me. In M. Mohan Reddy and Others Vs. Government of Andhra Pradesh, Hyderabad and Others, which has been referred to by the learned single Judge, Upendralal Waghray, J. in W.P. 3457 of 1988 and batch, D/-26-7-1988 the question arising for consideration was about the petitioners therein admitted and registered for a Postgraduate Diploma course of study in one of the groups. Under R.5(4) they were not considered for admission to the Postgraduate course in the subjects available in any other group. The petitioners claimed admission to subjects in groups other than those in which they were admitted. The validity of the rule was upheld on the ground that the applicants cannot be considered for admission to the Postgraduate Degree Course in the subjects available in the group other than the one to which the subject of their choice is included. The restriction was held to be reasonable because the purpose of the rule is to increase the proficiency and efficiency of a candidate in a particular subject. The subjects in the several groups are allied subjects and if a candidate after having studied a particular subject in the Diploma Course in one group for a considerable period is permitted to go to any subject in another group which is unconnected with the subject, the entire study made go waste. It is evident that there is nothing common in the matter arising in the batch of writ petitions on hand and the judgment in M. Mohan Reddy and Others Vs. Government of Andhra Pradesh, Hyderabad and Others, . The matter on hand requires consideration of the problam arising in the way of a student who is pursuing a Diploma Course and who is trying to switch over to a degree course to improve his prosepects by appearing in the Postgraduate Medical Entrance Test.

Apart from the technicalities of the above said rules, there is yet another principles of improvement which may be applied to this batch of cases. It is a well-known fact that candidates pursuing professional courses, particularly in the field of medicine try to improve their prospects by obtaining higher qualifications. The rule of improvement, which is an accepted rule of the academic institutions, gives freedom to such students who are capable enough to improve their prospects by take the examinations which they have already passed once again to obtain a better class or a higher division. Similarly, people who are pursuing Diploma Courses, which are definitely regarded as inferior to that of the degree courses, are allowed liberally to switch over to the degree courses subject to their eligibility and proficiency under the rules which may be promulgated by the institutions. If a candidate, who has not been successful in getting admission into a Postgraduate Degree Course in an entrance examination, has taken up a Diploma Course and is desirous of obtaining postgraduates Degree by going through the mill of appearing in the entrance examination once again, there seems to be little reason why he should be denied the opportunity subject to the applicability of R.11(ii) that he should make necessary payments in case he qualifies himself in the entrance examination. But to take the converse view and to hold that he must first resign his diploma course, make the payment and then gamble for a seat in Postgraduate Degree Course will be, to say the least, an extremely harsh step to be taken against such students. A young man, who may comply with R.11(ii) by paying the required money and resigning his diploma course, may fail in the entrance examination for admission to Postgraduate Degree Course. What happens in such a case? The University loses a seat in the Diploma Course. The candidate loses his money and he is neither in a position to pursue his Diploma Course nor can he do his postgraduate degree course as he had failed in the entrance examination. Can the essence of the rule in question, viz., R.6(3), be interpretted in a manner where it affects adversely the academic interest of not merely the candidate concerned but the University also. The obvious answer is that the rule should be applied only at the time of admission to Postgraduate Degree Courses after the candidate has passed and qualified in the entrance examination. The situation arising in this batch of writ petitions is similar to that of the situation arose in W.P. 5786 and 7489/87 dated 21-10-1987 (Judgment of P.A. Choudarym, J.), referred to above.

In view of the above discussion, W.P. Nos.9117.89, 9142/89, 9578/89 and 7298/89 are allowed and the respondent-University is directed not to insist on the petitioners'' compliance with R.11(ii) of the 1989-90 Rules at the very stage of their appearing in entrance test but to apply the provisions of the said R.11(ii) only at the time of their admission the Postgraduate Medical Degree Course after they have appeared and qualified in the Postgraduate Medical Entrance Test. There will be no order as to costs.

W.P, No. 9260 of 1989.

In W.P. No. 9260/89 the petitioner has challenged the validity of R.6 read with R.11(ii), particularly R.6(3) of the 1989-90 Rules as being arbitrary, illegal and unenforceable. In view of the interpretation of the rule as given above, it is not considered necessary to strike down the rule as being arbitrary. The only question is that the rule of eligibility subject to R.11(ii) is to be applied only at the time of admission to Postgraduate Medical Degree Courses and not at the time of Postgraduate Medical Entrance Test. This does not call for the striking down of the rule in any manner. However, the relief given in the earlier writ petitions will be available to the petitioner in this writ petition also, without holding the rule arbitrary or illegal.

W.P. No. 9260/89 is allowed to the extent as indicated above. There will be no order as to costs.

Order accordingly.