Tejinder Singh Sidhu vs State of Punjab and others

Harjit Singh Bedi, J.—The facts giving rise to the present writ petition, which has been admitted to be heard by a Division Bench, are stated hereunder:

The petitioner obtained his MBBS Degree in the year 1979 and was thereafter selected in the PCMS Class II Service in 1981. While in service, the petitioner was selected for the duly completed a One-Year-Diploma Course in Clinical Pathology and Microbiology (DCPM) in June 1990. Respondent No. 3 by its notice dated 22nd February, 1991, Annexure P-1 to the petition, invited applications for admission to the Post Graduate Degree/ Diploma Courses in the Government Medical Colleges at Amritsar and Patiala. The Petitioner being fully qualified for being considered against the 60 per cent quota reserved for in-service candidates, duly applied for the Degree Course and made the following choice in order of preference:

i) M. S. (Surgery)

ii) M. D. (Tuberculosis & Chest)

iii) M. D. (Psychiatry)

The petitioner did not apply for being considered for admission to the Post Graduate Degree Course in Clinical Pathology and Micro-biology, i.e. the course in which he had already secured a Diploma. The petitioner along with others was interviewed by the selection committee, but was told at the time of interview that he could not be considered for any of the three specialities in view of clause 6 of Annexure P-1 which is reproduced hereunder:

"The candidates who have already done Post Graduate Diploma Course will only be eligible for admission to Post Graduate Degree Course in the same speciality."

The Committee basing its opinion on the aforesaid clause was of the view that the petitioner could be considered for a Degree Course only in Clinical Pathology and Microbiology and in no other speciality. The petitioner aggrieved by the stipulation provided in clause 6 of Annexure P-1 has filed the present writ petition. It is the conceded position that but for the embargo of clause 6, the petitioner would be entitled for admission to M.D. (Psychiatry).

Mr. H. S. Gill, learned Senior Advocate, appearing for the petitioner, has argued that the minimum qualification for the purpose of considering eligibility for admission to the Post Graduate Degree or Diploma Course was MBBS and, as such, all MBBS qualified doctors ought to be treated at par and the securing of a Diploma should not act as a demerit for the purpose of admission to the Post Graduate Courses. He has relied upon State of Punjab v. Dr. Harnek Singh Medical Officer 1989 (3) SLR 802, Dr. Bnupinder Singh v. State of Punjab 1990 (2) CLJ 559, CWP No. 2335 of 1988 Dr. Parveen Kumar v. State of Punjab decided on 26th July, 1988, CWP No. 5646 of 1989 Dr. Sunita Sharma v. State of Punjab, decided on 28th August, 1989. CWP No. 8381 of 1990 Dr. Shiva Ji Rai v. State of Punjab decided on 11th January, 1991. CWP No. 7378 of 1991 Dr. Sandeep Kumar v. State of Punjab decided on 30th July, 1991, and CWP No. 7379 of 1991 Dr. Harbhajan Singh Bhatia v. State of Punjab decided on 30th July, 1991.

In Dr. Harnek Singh''s case (supra) clause 7 of the impugned advertisement was challenged in the High Court. Clause 7 read as under:

"7(1)PCMS(II) Doctors who have done Post-Graduate qualifications whether Degree or Diploma shall be selected only for their respective speciality in which they have done Degree or Diploma."

The Division Bench held that the aforesaid clause was-voilative of Article 14 of the Constitution and, therefore, void as the securing of a higher qualification had the effect of making a candidate ineligible, whereas, in fact, it ought to have been considered as a merit. It was specifically observed as under:

"A person with higher qualifications in the speciality other than the one in which he is seeking appointment is ineligible whereas the other members of the service having lower qualifications are still eligible for appointment. It is an unreasonable discrimination. The members of the service having higher qualifications have been placed at a disadvantageous position qua the other members having lower qualifications. The condition is violative of Art. 14 of the Constitution."

The judgment of the Division Bench which pertained to selection of Registrar/ Demostrator was, however, followed in Dr. Bhupinder Singh''s case (supra) which was specifically a case pertaining to admission to the Post Graduate Courses. The learned single Bench considering the matter in the light of Dr. Harnek Singh''s case, quashed clause 6 which had been impugned before him. It is to be highlighted that clause 6 in Dr. Bhupinder Singh''s case (supra) is pari materia with clause 6 impugned in the present case. A similar view had been taken by this Court in Dr. Sunita Sharma, Dr. Shiva Ji Rai and Dr. Harnek Singh''s case (supra) and all these cases also pertained to admission to Post Graduate classes.

Mrs. Jaishree Anand, learned Deputy Advocate General, appearing for the respondent State, has argued that in view of clause 7 of Annexure P-1 it was incumbent on the petitioner to have exercised three options towards his choice of speciality, but one of the options was required to be of Clinical Pathology and he not having done so, could not be considered for any speciality. This argument is misplaced as clause 7 is not attracted in this case. Moreover, even if it was held to be applicable, even then in view of the clear stipulation in clause 6, the petitioner would not have been entitled to be selected against any speciality other than the one in which he had secured a Diploma.

Shri Puneet Kansal, Advocate, appearing for the private respondent, has stressed that the aforesaid judgments do not lay down the correct law inasmuch as the courts have not appreciated that it is for the State Government to lay down the requisite criteria for the purpose of eligibility for admission to the Medical Courses as it is the Government which incurs expenditure for imparting this education. He has also argued that it is in the public interest that a person who has secured a Diploma in a particular speciality and has, therefore, achieved a measure of expertise in that speciality, should be confined to securing a degree also in the same speciality. He has referred to a Division Bench judgment of this Court reported as Gulshan Kumar v. M.D. Rohtak 1990 (4) SLR 398 in support of the argument.

We have heard the learned counsel for the parties in the light of the judgments cited above and are of the view that the matter in hand is fully covered by the judgments of this Court, referred to above. Mr. Kansal''s efforts to either distinguish the judgments to show them as having been wrongly decided have not been fruitful. Gulshan Kumar''s case on which reliance has been placed by Mr. Kansal has no relevance to the facts of the present case inasmuch as the observations in para 6 of that judgment were made as the petitioner in that case wished to drop out of the Diploma Course midway so as to secure admission in another Diploma Course which was contrary to the Rule. While deprecating this effort and upholding the rule court observed that it was for the Government to determine the criteria for admission and as such the rule could not be successfully challenged. We are, therefore, of the view that no fault can be found in the earlier judgments of this court and, as such, the present writ petition has to be allowed.

We are, however, of the view that keeping in view the facts and circumstances of the present case, it will be inequitable to deprive respondent No. 5 of the seat against which he had been selected, but could not be admitted because of the interim order of this Court. Admittedly, the notice inviting applications Annexure P-l was issued on 22nd February, 1991, and the results of selection for the Post Graduate Courses were declared on 14th June, 1991, in which respondent No. 5 was selected for the M.D. Course in Psychiatry. However, before the actual admission could be made, the interim order was made in the present writ petition reserving a seat against which respondent No. 5 had been selected. There is undoubtedly some delay on the part of the petitioner in approaching this Court but he cannot be non-suited on this short ground as clause 6 which has been impugned in the present writ petition has been specifically struck down by this Court in a number of cases and yet the State Government persisted in re-introducing the said clause for admission in the 1991 Post Graduate Courses.

Keeping in view the facts and circumstances of the case, we arc of the view that the petitioner and respondent No. 5 should be given admission in M.D. Psychiatry Course forthwith and, whereas, the petitioner will be adjusted against the seat that has been kept reserved, the authorities concerned will ensure the creation of an additional seat against which respondent No. 5 will be adjusted.

In view of the observations made above, the present writ petition is allowed but with no order as to costs.

Petition allowed.