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Judgment
Qadir Parray, J.—By this petition, petitioner seeks writ of mandamus commanding the respondents to admit and enroll the petitioner for
M.D. degree course in the discipline of Pathology and Bacteriology on the anology on which Demonstrators of the Government Medical College
Srinagar, similarly situated with the petitioner have been enrolled/admitted and registered, with further writ of mandamus commanding the
respondents to grant and extend all such facilities, to which the petitioner is entitled to as a registered post-graduate student and to complete all the
formalities essential or incidental to the convenient pursuit of M.D. course in the said disciplines.
The facts in brief which have given rise to the present petition are that the petitioner has been appointed as Field Demonstrator in the discipline
of Microbiology in the Government Medical College, Srinagar vide order No. GS/1579-1601/MC dated 4-4-1991 and that the petitioner is
continuing and working in the Department of Pathology and Microbiology till date. Petitioner has further submitted that one Dr. Naseema Chanda
and Dr, Rubi Rcshi quite alike the petitioner were appointed as Demonstrators in the discipline of Pathology in Government Medical College,
Srinagar vide order No. DS/ACAD/ D/2859-89/MC dated 12-12-1990 and as a matter of long practice in the Department, the Demonstrators
completing one year as such, would as a matter of course be registered for pursuit of studies in the discipline of Pathology and Bacteriology and
this policy is purported to have been based on a resolution purported to have been passed which finds its place in the minutes of the meeting of
board of Post-graduate Studies in Medicine held on 20-3-1989 in the office chamber of the Dean, Faculty of Medicine, Government Medical
College Srinagar, and a policy decision was taken which finds its place at item No. 6 of the minutes of the meeting which reads :--
Considered the question of granting registration for pursuit of studies leading to the award of MD/MS degree in favour of the doctors listed in
Annexure on the topics and under the supervisors Shown against each.
Resolved that the doctors listed in the annexure to these minutes be registered for pursuit of studies leading to the award of M.D. degree with
effect from 1-1-1988 or from the dates the Demonstrators concerned have completed or may complete the period of one year as Demonstrator,
whichever be later.....
Ld. counsel further projects that on the anology of Dr. Naseema Chanda and Dr. Rubi Reshi who had filed a writ petition (OWP No.-
893/1992 and CMP No. 1639/ 1992) for being considered/admitted to the discipline of Pathology for post-graduation. The said writ petition
seems to have been allowed by one of the benches of this Court, on 16-11-1992. In the said writ petition both the doctors (petitioners) had
projected their claim as being similarly situated with Dr. Munir Ahmad Laherwal and Dr. Nazir Ahmad Wazir, as such, they be admitted and
considered in the discipline of Pathology for M.D. course.
While disposing the petition, the learned bench has ordered the consideration of the petitioners therein for admission/registration to the M.D.
course in the discipline of Pathology. On the same anology, the learned counsel for the petitioner projects that the petitioner also being similarly
situated, be given consideration for admission/registration in the discipline of Pathology.
In the objections filed by the respondents to the admission of writ petition, it has been averred that admission to Post-graduation courses in the
discipline of Pathology and Microbiology in Government Medical College, Srinagar on the basis of resolution referred to in the petition is mis-
conceived and that the selection to MD/ MS courses has been wholly and solely entrusted to Competent Authority, Entrance Examination and the
respondent No. 1 is nowhere engaged in the selection of said course, as such, writ petition deserves dismissal on this count alone. The petitioner
has not arrayed Competent Authority as a party in the writ petition and on the principle of law of non-joinder of necessary party, warrants prima
facie dismissal of the writ petition. The petition also deserves to be dismissed as none of her fundamental and legal rights of the petitioner stands
violated. However, the matter of having obtained some decision by some doctors in their favour from the Hon'ble High Court was only due to the
fact that the State could not file their objections and project their case by production of records at the appropriate time and as such, admission to
the petitioners in those petitions before the learned bench were given admission as the Department has also failed to file any letters patent appeal
against the said judgment and the 'Department had no alternative, but to implement the judgment of the Court and so on.
In the parawise reply, it is emphatically pleaded that right to grant of admission in Post-graduation course to different faculties/ disciplines is
being conducted by the Competent Authority, Entrance Examination arid the candidates on the basis of merit are being selected in both clinical and
non-clinical subjects, Respondent/ State is nowhere involved in the said selection process.
The fact that prior to coming into being of the Competent Authority and holding the field for conducting entrance examination for admissions to
different disciplines in post-graduation courses both in clinical and non-clinical subjects, the method of selection on the basis of resolution for said
post-graduation course was stopped as the field has been occupied by the competent Authority, entrance examination.
Heard learned counsel for the parties at length and also perused the relevant law on the subject.
It is an admitted fact that it was not only in the discipline of non-clinical subjects but even in clinical subjects that the candidates were being
admitted to undergo M.D. courses by provisionally admitting deserving candidates as the very resolution to which reference has been made does
speak of the practice that admission to post-graduation studies in Medicine wherein number of doctors were provisionally admitted as per item
No. 2 of Annexure-P4 not to speak of non-clinical subjects and these admissions were being done provisionally by the Board of Post-graduate
studies in Medicine. However, that does not mean that it is now the practice to be followed. M.D. courses require specialisation, be it clinical or
non-clinical. The eligibility clause required was that persons who had put in whole time as Demonstrators in some non-clinical disciplines were
being recommended and admitted or registered for Such disciplines to undergo M.D. course, was the requirement of the hour. The Medical
Colleges as well as the supporting staff was in deficiency and as such, they were trying to come up to make provisions for admissions in clinical and
non-clinical subjects by nomination.
Now that the competent Authority had come into being on various directions passed by different benches of the Courts of the country and
even by the appex court, wherein need was felt that admission to MD courses should be done on the basis of some competitive test/examination
and the persons wh6 are eligible should be allowed to compete. Demonstrators who have put in their service as Field Demonstrators also become
eligible for non-clinical subjects like Pathology, Microbiology, Antomology, preventive medicines etc. but nevertheless the notifications for notifying
such disciplinies which are shown in the Information Brochure for MD/ MS / Diploma entrance examination for admission in session 1992 do
speak the relevant codes for such non-clinical subjects like 12, 13, 14, 15, 16 and 17 put for advertisement. The petitioner was also competent
and she should have responded to the said notification and faired at the competitive examination.
Number of petitions on identical grounds for admission to MD/ MS/ Diploma courses have been filed before the court and good number of
such petitions have been considered by this bench also and in those petitions, even records have been produced by the State/respondents or the
petitioners have been able to place on record relevant notifications and impugned selection lists.
From the perusal of records and other notifications produced in those petitions, I do find that admissions in the subject of Pathology have been
made vide notification dated 15-3-1993 issued by the Government of Jammu and Kashmir, Competent Authority, Entrance examination and in the
said notification at serial No. 13 under the code 14 (Pathology), three candidates having roll Nos. 109, 110 and 111 have been admitted in
Pathology. Similarly in the other disciplines of non-clinical subjects like Pharmacology, Physiology, Anatomy, Microbiology, Social and Preventive
Medicines respectively, candidates seem to have been admitted by the competent Authority after qualifying the competitive examination. So the
contention of learned counsel for the petitioner by dating back upon some practice which was prevalent prior to coming into existence of the
Competent Authority and holding of examinations of the disciplines in non-clinical subjects also for consideration/admission for MD/MS courses
should not be made as guidelines on the pretext of equality clause as projected by the petitioner. In fact the Demonstrator petitioner is similarly
situated with the persons who competed for the entrance examination and no practice was adopted which was prevalent prior to coming into being
the Competent Authority for undergoing MD course in non-clinical subjects. Even if one of the benches on that anology has given direction in the
above referred writ petition, but that will not be construed to be made rule for ail times to come because it is the efficiency and the competence of
a person which should be measured by competing with other eligible candidates available in the field for admission to MD/MS courses in the
discipline of non-clinical subjects not to speak of clinical subjects.
In case courts allow this practice of back door entry on the doctrine of equality clause and try to accommodate the future generations to come
under the same clause of equality, as was being done way back when the competent authority was not holding the test in the clinical or non-clinical
subjects, for admission to MD/MS courses, then that would amount to make the Competent Authority defunct and this practice should not be
made guideline for making admission. It would mean a digression from the mandates of the apex court and will not achieve the professional
excellence, which is sin-quo-non for specialisation.
For the above discussions, I do not think that the petitioner is or can claim that she be given same consideration as was being done way back
and was practice in the Medical Colleges as per resolution forming annexure-PIV to the petition and that practice should not be the rule. The rule
is that all eligible candidates whosoever faces competition and competes the same should be given admission and thereby efficiency will be ensured
in the special fields particularly where the human beings are to be treated or their pathological examinations are to be conducted. One should not
compromise with the efficiency and it is on that count that even the apex court had time and again laid down judgments which have evolved coming
into being of the Competent Authority. In one of the judgments, the apex Court has observed that entrance examination for MD/MS courses
should be held by the Medical council of India on National basis for the whole country only to ensure that no back door entry to the specialisation
field is encouraged. It will be very bad practice in case court will allow these nominations/registration for MD/MS courses leaving the competing
persons yawning for waiting for their turn, even if they may be efficient, eligible and competent and the posts which are very meagre in number for
such disciplines are being filled by nomination/back door entries and nothing is left for the competing persons to occupy, that will be to their
detriment and cause miscarriage of justice.
It may be noted that in the year 1992, under notification No. 2/PG/CAEE dated 24-4-1992, the discipline of Pathology was also put to
advertisement under Code 14 and as per Information Brochure for the said entrance examination, it has been notified that a candidate who seeks
admission in post-graduation course in the non-clinical subjects of Physiology, Pathology, Pharmacology or Anatomy etc. he must have been
serving as a Demonstrator in the subject(s) and has completed one year's service in the State Medical College for selection to any of the
postgraduate courses in the non-clinical subjects of Pharmacology, Physiology and Anatomy or in the subject or has worked as Demonstrator for
a period of not less than one year in non-clinical subject in admission for P.G. course is sought.
The petitioner admittedly was appointed as Demonstrator vide order No.GS/1579-1601/MC dated 4-4-1991 and has been in the college as
Demonstrator from April 1991 and on the date of issuance of notification, she was fully eligible for applying to undergo post-graduation in the
discipline of Pathology, but she has not choosen to apply and compete in the competition. The admissions in Medical courses throughout India is
governed by different statutory provisions, including regulations framed thereunder. Efforts have been made to regulate the admission to post-
graduate courses also, but a counter attempt is also apparant and discernible by which the candidates who are not able to get admissions by
competition, file writ petitions and interim applications for such admission and negates professional excellence.
Now the contention raised by the petitioner that she be given same treatment as was given to similarly equally situated persons is not well
founded. It may he noted that the persons appointed with her numbering about 15 in different disciplines as Demonstrators including Pathology,
Microbiology, Anatomy, Physiology etc. none of the persons in the said list have been considered till date or prior to filing of this writ petition by
the respondent/State in pursuance to any resolution forming Annexure-P6 to the petition on which reliance is being placed or on the anology of
judgment referred to hereinabove. So in case the contentions of the petitioner are to be accepted, that would mean that a flood gate will be opened
for persons appointed with her in different disciplines, bye-passing the Competent Authority, which will virtually amount to withdrawal of the
discipline of Pathology from MD course from competition which is neither intention nor fair play in making selection to the said discipline who must
have special knowledge for diagonosis as per clinical examinations of different diseases which have now assumed tremendous dimentions. So the
contentions raised by the petitioner are misconceived.
For the foregoing reasons, no good ground is made out for admission of this writ petition, which is accordingly dismissed in limine.