Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13
PETITIONER:
DR. HARIHAR PRASAD SINGH AND ORS.
Vs.
RESPONDENT:
PRINCIPAL, M.L.N. MEDICAL COLLEGE ALLAHABADA
DATE OF JUDGMENT21/08/1990
BENCH:
RANGNATHAN, S.
BENCH:
RANGNATHAN, S.
SAIKIA, K.N. (J)
CITATION:
1990 SCR (3) 895 1990 SCC (4) 533
JT 1990 (3) 670 1990 SCALE (2)350
ACT:
Professional Colleges--Admission to: Residency
Scheme--Clause 5--Motilal Nehru Medical College--Admission
to P.G. Course--’Ussamay’ interpretation.
HEADNOTE:
The appellants are junior doctors who were in a house
job on 22.8.1989. They had been admitted to post-graduate
degree course (second year) in the M.L.N. Medical COllege
under the "Residency Scheme" for junior doctors, which was
notified on 22.8.1989 but was given retrospective effect
from 1.8.1987. They, however, lost their seats as a result
of the High Court’s decision allowing the writ petitions
flied by the respondent-doctors whose applications for
admission to the same course had been rejected.
The modifications introduced by the Residency Scheme
needed certain transitory provisions being made for two
purposes. The first was to devise a formula of equating
between the old and the new systems. This was done by redes-
ignating all students, junior doctors, house officers and
others in position in the manner set out in para 5 of the
scheme. The second provision necessary was in regard to
their admission to the post-graduate courses. This was done
by the second sub-para of para 5.
The respondent-doctors who had done their M.B.B.S.,
internship and house-job by April 1988 and who had even
obtained admission, in March 1989, into a diploma course,
sought admission in the M.L.N. College into the second year
of a degree course by taking advantage of clause 5 of the
Residency Scheme. Their applications were rejected on the
ground that the clause 5 of the scheme was a transitory
provision intended to benefit only persons who were on a
house job as on 22.8.1989; they alone could take advantage
of the scheme as soon as they completed the house job; and
not persons who had completed their house-job much earlier
to that date. Thereupon, these doctors filed writ petitions
in the High Court. A Division Bench of the High Court al-
lowed the petitions and held that clause 5 extended the
privilege of admission to
896
the second year of the degree course to all persons who were
working as house-officers on or after 1st August, 1987.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13
The State as well as certain doctors who were in house-
jobs as on 22.8.1989 and who had been admitted to post
graduate degree courses on the basis of the State’s inter-
pretation of the scheme but lost their seats as a result of
the High Court’s decision, have preferred these appeals.
So far as the present appeals are concerned, all parties
have proceeded on the footing that the residency scheme is a
valid one and that it envisaged that a person who had com-
pleted house-job for one year could get admission into the
second year of the course (whether degree or diploma). The
only controversy is whether this admission was open only to
those persons who were in a house-job as on 22.8.1989 and
had completed it before 30.10.1989.
Dismissing the appeals, this Court,
HELD: (1) There is no rule which prohibits a person
(even though he may already be a student in a post-graduate
course) from seeking admission to the second year of junior
residency, the eligibility clauses for admission to which he
fulfills. The High Court was, therefore, right in holding
that they could not be excluded from consideration for
admission to the second year of the degree course merely
because they were already students in a diploma course.
[901H; 902A-B]
(2) To ask persons, who had already completed a one year
house job, to undergo the three year degree/two year diploma
course would be a severe handicap to them as, earlier, they
could have got their postgraduate degree/diploma course
after two years/one year. In order to adjust them into the
new scheme the State designated holders of house jobs as
"junior residents (first year)" under the new scheme. This
enabled the holders of house-jobs to get into the second
year course under the residency scheme. [902H; 903A]
(3) The scheme, however, could not be stretched and
converted into a limitless provision making it possible for
all persons who had completed their house jobs at some
distant past to compete for admission to the second year of
the degree course. That is why para 5 limited the scope of
the redesignation and admission. The first part of it limit-
ed the equation only to persons who were working on house-
jobs since 1.8.1987. [903B-C]
897
(4) The date material for the purpose of their admission
was 30.9.1989, the last date by which the applications had
to be sent in. That being so, the words "ussamay" used in
the second sub-para of para 5 are the operative words. They
clearly embody a reference to an anterior point of time and
this can only be a reference to the period since 1.8.1987
which finds specific mention in the first sub-para and which
is the period subsequent to the scheme coming into opera-
tion. [905D-E]
(5) All persons doing house jobs after 1.8.1987 are
covered by the second sub-para of para 5. The words "after
completion of the tenure" had to be used here because the
class of persons referred to also included those who were in
house jobs as on 22.8.1989. [905F]
(6) It is clear that the words "House Officer", "Junior
Residents" and "Senior Residents" used against serial Nos.
1, 2 and 3 in para 5 of the scheme redesignate all such
officers working since 1.8.1987 as "junior residents-1st,
2nd and 3rd year" respectively. That being so, both the writ
petitioners as well as the appellants are all "junior resi-
dents (1st year)" and should be eligible for admission to
the second year of the residency scheme course. [903D-E]
(7) It is clear from the judgments of the High Court on
the subject that the interpretation of the clauses on the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13
scheme is by no means an easy task. In this state of af-
fairs, it is upto the State to find out a practical solution
to ensure that the student community is not prejudiced by
the ambiguities in the scheme. [909H; 910A]
Mridula Avasthi and Others v. University of Delhi and
Others, [1988] 3 S.C.R. 762, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 432938 of
1990.
From the Judgment and Order dated 30.5. 1990 of the
Allahabad High Court in C.M.W.P. Nos. 18102, 18036, 22161,
22836 and 22877 of 1989.
Kapil Sibal, Additional Solicitor General, Satish Chan-
dra, Ms. Shobha Dixit, Pradeep Mishra, R.K. Virmani, Gopal
Subramaniam, Harish N. Salve and D.K. Garg for the appearing
parties.
The Judgment of the Court was delivered by
898
RANGANATHAN, J. We have come to the conclusion that the
.
High Court’s decision under appeal has to be upheld. But, as
the question raised is one of importance and difficulty, we
have heard the counsel at length. We grant leave in all the
petitions and proceed to give the reasons for our conclusion
in detail.
Both sets of appeals are the off-shoots of a "Residency
Scheme" for junior doctors introduced in the State of U.P.
and they can be conveniently disposed of by a common order.
In the State of U.P., post-graduate courses in medicine
were of two types: degree and diploma. The duration of the
degree course was two years and that of the diploma course,
one year. The minimum requirement for admission to a post-
graduate course (whether degree or diploma) was that the
candidate should have passed the M.B.B.S. degree examina-
tion, then done one year’s internship and then done a house
job for one year.
The "Residency Scheme" was notified on 22.8.89. This was
the culmination of a long period of agitation by junior
doctors in the State for better emoluments and conditions of
service. This scheme was given retrospective effect from
1.8.1987, for para 8 of the scheme says: "The above residen-
cy scheme shall be deemed to have been enforced from 1st
August, 1987". Under the scheme, every candidate selected
for a post-graduate degree course would have a tenure of
three years which would also be the tenure of the course
itself. All such candidates were to be called Junior Resi-
dents--1st year, 2nd year and 3rd year respectively during
their tenure. Each candidate selected for postgraduate
diploma course would have a tenure of two years which would
also be the tenure of the course and all such candidates
were to be called Junior Residents--1st year and 2nd year
respectively. In other words, the duration of the degree
course was raised to three years and that of the diploma
course to two years. However, simultaneously, the eligibili-
ty requirement of one year’s experience in a house-job was
dispensed with, the net result being that the total period
needed, after taking a M.B.B.S. degree, to acquire a post-
graduate degree/diploma remained the same as before.
The modifications introduced by the new scheme needed
certain transitory provisions being made for two purposes.
The first was to devise a formula of equation between the
old and the new systems. This was done by redesignating all
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13
students, junior doctors, house officers and others in
position in the manner set out in para 5 of the
899
scheme. The original notification is in Hindi but a free
translation of the first part of the above para, as set out
in the judgment of the High Court, reads thus:
"Upon enforcement of the above Residency Scheme,
all the House Officers, Junior Residents 1st year working
since 1st August, 1987 and similarly working all Juniors
Doctors ("all junior doctors similarly working" is perhaps a
better translation) shall stand converted to the following
new designation propose in the residency:
S. No. President designation Designation upon
enforcement of
residency scheme.
1. House Officer/Demonstrator, Junior Resident
1st year. 1st year.
2. Junior Resident/RMO 1st year/ Junior Resident
RSO 1st year/RGO 1st year/ 2nd year.
Demonstrator 2nd year/P. G.
degree student 1st year/
P.G. Diploma student 1st year.
3. Senior Resident/RMO 2nd year/ Junior Resident
RSO 2nd year/RGO 2nd year/ 3rd year.
Demonstrator 3rd year/
Registrar/P.G. Degree
students 2nd year.
The second provision necessary was in regard to their admis-
sion to the post-graduate courses. This was done by the
second sub-para or para 5 which ran thus:
"At the same time ("Iske sath hi sath") the admis-
sion and registration of the House Officers, working at the
time ("us sumay") to post graduate courses (degree/diploma
course) shall be done after completion of their tenure and
on the basis of their merit at M.B .B .S. and house-job".
[Words in brackets give the original Hindi expressions used;
emphasis added by us. ]
900
The provisions of the scheme do not explicitly say that
the category of persons dealt with under the second sub-para
above will be admitted to the second year of the degree
course (junior resident--2nd year) of the residency scheme
on the basis of inter-se merit. A somewhat different line of
thinking seems to have been adopted by the High Court in Dr.
Sandeepa Srivastava’s case (to which we will be referring
later). But, so far as the present appeals are concerned,
all parties have proceeded on the footing that the scheme is
a valid one and that it envisaged that a person who had
completed house-job for one year could get admission into
the second year of the course (whether degree or diploma).
The only controversy is whether this admission is open only
to those persons who were in a house-job as on 22.8.89 and
completed it before 30.10.1989 (hereinafter referred to as
’the appellants’) or to all persons who had been in a house
job on or after 1.8.87. The question arose when a number of
doctors (hereinafter referred to as ’the writ petitioners)
who had done their M.B.B.S., internship and house-job by
April, 1988 and who (save for one) had even obtained admis-
sion, in March 1989, into a diploma course sought admission
in the Motilal Nehru Medical College at Allahabad (’M.L.N.
College’, for short) into the second year of a degree course
in the same or a different speciality by taking advantage of
clause 5 of the residency scheme. Their applications were
rejected on the ground that the relevant clause of the
scheme was a transitory provision intended to benefit only
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13
persons who were on a house job as on 22.8.1989. They alone
could take advantage of the scheme as soon as they completed
the house job; not persons who had completed their house-job
much earlier to that date. The writ petitioners went to
Court and this time they were successful. A Division Bench
of the Allahabad High Court held, interpreting rule 5, that
rule 5 extended the privilege of admission to the second
year of the degree course to all persons who were working as
house-officers on or after 1st August, 1987. The State, as
well as certain doctors who were in house-jobs as on 22.8.89
and who had been admitted to post graduate degree courses on
the basis of the State’s interpretation of the scheme but
lost their seats as a result of the High Court’s decision,
have preferred these appeals.
Four questions arose for the consideration of the High
Court--
(1) Is the concession contemplated by rule 5 of the scheme
limited only to doctors in house jobs as on 22.8.89 or
available to all those who were in house jobs as on 1.8.87
and later?
(2) Is a candidate who has already been admitted to, and is
901
undergoing a diploma course eligible to seek admission to a
degree course under rule 57
(3) Is it open to a candidate who is a student in a post-
graduate diploma course in one speciality to seek admission
to the postgraduate degree course in any particular special-
ity?
(4) Is it permissible for a candidate who is undergoing a
diploma course to abandon it in the middle and join a degree
course?
The High Court expressed no opinion on the latter two ques-
tions leaving it to the Principal of the College to decide
the same in due course but answered the first two questions
in favour of the writ petitioners. We are concerned here
only with these two questions.
We may take the second of these questions first. The
writ petitioners say that a direct answer to this question
is provided by a notification issued on 13.8.87 by the
Governor of the State in pursuance of the provisions of
Article 348 of the Constitution read with S. 28(5) of the
Uttar Pradesh State Universities Act (Act X of 1973), as
amended Act 29 of 1974. This notification effects an amend-
ment to an earlier notification dated 15.12.1982 (as subse-
quently amended) by adding a new para thereto. The new para
provides:
"(7A) If any candidate has been admitted in post graduate
Diploma or Degree Course in one speciality he shall not be
eligible for admission in Post Graduate Diploma or Degree
Course in any other speciality. For removal of doubts it is
clarified that if a candidate has been admitted in Post
Graduate Diploma Course in one speciality he may be allowed
admission in Post Graduate Degree Course in that very spe-
ciality."
If this is correct, there can be no doubt that none of the
writ petitioners can be denied registration and considera-
tion for admission to the degree course merely on the ground
that he has earlier been admitted to a diploma course in
some speciality. It is urged on behalf of the appellants
that this rule has lost its force on the promulgation of the
new scheme. It is difficult to see why this should be so
because its principle could be applied, mutatis mutandis, to
the residency scheme as well. But even if this is correct
and this para is kept out of consideration altogether, there
is no rule which prohibits a person (even though he may
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13
already be a student in a post-graduate course) from seeking
902
admission to the second year of junior residency, the eligi-
bility clauses for admission to which he fulfills. The High
Court was, therefore right, while expressing no view on the
question whether any of the writ petitioners are eligible to
be admitted to any particular speciality, in holding that
they could not be excluded from consideration for admission
to the second year of the degree course merely because they
are already students in a diploma course.
The first question, however, is a more difficult one. We
have considered the contentions of both sides carefully and
we have come to the conclusion that there is no reason to
disturb the High Court’s conclusion. Prior to the enforce-
ment of the scheme, all candidates who had completed their
M.B.B.S. together with one year of internship and one year
of house job were eligible for admission to a postgraduate
degree or diploma course and a particular candidate could
make repeated attempts for being considered for admission to
a particular post graduate speciality, irrespective of the
batch to which he belonged or the particular year in which
he was admitted to the M.B.B.S. course or the particular
year in which he passed the final M.B.B.S. examination. That
liberty is available after the introduction of the new
scheme also to all M.B.B.S. graduates who have completed one
year of internship. Irrespective of the year in which they
qualified in the M.B.B.S. degree examination, it is open to
all such candidates to seek admission to the first year of
the new three-year degree/two year diploma course. That is
not in dispute. The question only is whether any of them are
entitled to claim admission in the second year of that
course on the ground that they had also completed their
house-job earlier. The answer to this question must depend
on the interpretation of--the none too clear--para 5 of the
Residency Scheme.
In interpreting the scheme, it is first necessary to
point out that the preamble to the notification sets out a
two-fold objective of prescribing a policy/procedure (a) for
the conversion of the existing designations in the depart-
ments to equivalent designations and (b) for specification
of the number of seats for various degree/diploma courses
and for "eligibility examination for selection thereon".
[sic: apparently, this should read: "eligibility, examina-
tion or selection thereto". ] One further important factor
to be borne in mind is that the scheme was given effect to
from 1.8.87. To ask persons, who had already completed a
one-year house job, to undergo the three year degree/two
year diploma course would be a severe handicap to them as,
earlier, they could have got their post-graduate
degree/diploma after two years/one year. In order to adjust
them into the new scheme
903
the State designated holders of house jobs as "junior resi-
dents (first year)" under the new scheme. This enabled the
holders of house-jobs to get into the second year course
under the residency scheme. It has been stated, in the
appellants’ rejoinder, that a large number of candidates who
had completed their M.B.B.S. even ten years earlier and some
candidates who were even on the verge of completing a post-
graduate degree course had applied for registration as
junior residents (2nd year) along with the appellants and
the writ petitioners. This kind of situation would be im-
practical. Obviously, the scheme could not be stretched and
converted into a limitless provision making it possible for
all persons who had completed their house jobs at some
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13
distant past to compete for admission to the second year of
the degree course. That is why para 5 limited the scope of
the redesignation and admission. The first part of it limit-
ed the equation above referred to only to persons who were
working on house-jobs since 1.8. 1987. The High Court was
clearly right in saying that the words "1st year" used in
column of the table in para 5 against serial No. 1 govern
only "demonstrator". It is clear that the words "House
Officer", "Junior Resident" and "Senior Resident" used
against serial Nos. 1, 2 and 3 redesignate all such officers
working since 1.8.87 as "junior residents--1st , 2nd and 3rd
year" respectively. That being so, both the writ petitioners
as well as the appellants before us are all "junior resi-
dents (1st year)" and should be eligible for admission to
the second year of the residency scheme course.
But, it is said, this cannot be, for two reasons. One is
that the second sub-para of para 5 is restricted only to
those who were House Officers on 22.8.89. We think that this
contention has been rightly repelled by the High Court. To
accept this construction would mean a segregation of the two
parts of para 5 and the substitution of the words "on 22nd
August 1989" for the words "since 1st August 1987" used in
the first para of para 5. The words "us sumay" clearly
establish a nexus between the two parts of para 5 and can
only refer to the period referred to in the first part viz.
"since 1st August 1987". It is difficult to see how a refer-
ence to two different periods could have been intended by
the two parts of para 5. That this could not be so is also
clear for the scheme, though announced on 22.8.89, was to be
effective from 1.8. 1987. That is why a line is drawn as on
that date and all persons who are working as house officers,
junior resident doctors or senior resident doctors since
that date are all assimilated into the new scheme. There is
no justification to read such assimilation as partial, as
contended for by the State. It was contended that the scheme
was the outcome of negotiations with junior doctors in the
State who were
904
agitating for better conditions of service and higher emolu-
ments and that the settlement with them was only that higher
emoluments will be paid w.e.f. 1.8.87. Necessary material to
substantiate this plea was not placed before the High Court
or before us. But even assuming that the negotiations and
agreement had a limited scope, we have to interpret the
scope of para 5 on its language. The reference to the period
since 1.8. 1987 in para 5 fits in with the declaration in
para 8 that the scheme should be deemed to have come into
force on 1.8.87. In this context, it is of significance that
the scheme notified on 22.8.89 states that the scheme has
been introduced in pursuance of proposals submitted to the
State Government "for the desired improvement in under
graduate/post graduate training" in all colleges and hospi-
tals but makes no reference to the revision of the scales of
pay of the junior doctors. It is, therefore, difficult to
accept the plea that the date 1.8.87 has significance only
in the matter of pay scales and nothing else. This objection
is not, therefore, sustainable.
The second point made by the State and the appellants is
that the writ petitioners, under the scheme, are already
"junior residents--2nd year" as they are already in the
first year of a post graduate diploma course and they can-
not, therefore, be eligible for admission to the second year
of the degree course where also they will be designated as
"junior residents--2nd year". In our view, the objection is
untenable. In the first place, it is only a variation of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13
argument that a person already undergoing a diploma course
cannot be admitted to a degree course, which we have reject-
ed already. But that apart, there is’ nothing wrong in the
writ petitioners being admitted to the second year degree
course and being called "junior residents--2nd year" there
instead of in the diploma course. In this context, it is
necessary to point out that they have been admitted into the
diploma course only in March 1989 and that they are not
seeking any credit for the period of education they have
undergone in the diploma course.
It is then argued that the words "ussamay" occurring in
the second part of para 5 of the scheme is really a mistake
for "at this time" or "is sumay" or "vartman mein". In
support of this contention, it is pointed out that the
Director of Medical Education had written to the secretary
to the Government on 2.11.1989 requesting that the word
"vartman" be substituted in place of "us samay" in the
notification of 22.8.89 "so that the meaning of the above
lines shall be clear". It is also submitted that the refer-
ence to such persons being eligible for admission "after the
completion of the tenure" in the house-job also makes it
clear that persons who had already completed
905
their house jobs in 1987 or 1988 are not within contempla-
tion. We are unable to agree. When the notification talks of
"us samay", we cannot read it differently. The letter of
Director of Medical Education dated 2.11. 1989 finds a
reference only in the appellants’ rejoinder affidavit and
the writ petitioners have had no opportunity to meet it. The
State has not referred to this letter, or the action taken
on it, anywhere. These difficulties apart, the letter pat-
ently seeks to bring about a change in the contents of the
notification and is not a simple request for clarification
as it purports to be. At best, it only reflects the Direc-
tor’s understanding of the notification and cannot bind the
writ petitioners or the Court. Also, no information has been
furnished by the appellants or the State as to whether the
request of the Director has been accepted and an amendment
published by the Government for the amendment suggested can
become effective only on such publication. It may be pointed
out a propose this contention that the notification of
22.8.89 itself had been published in the Gazette only on
25.11.89, much subsequent to the Director’s letter. Even
assuming that her suggestion has since been accepted and the
words "at that time" stand replaced by the words "at the
present time" by a proper notification later, that amendment
cannot affect the parties before us. The date material for
the purposes of their admission was 30.9.89, the last date
by which the applications had to be sent in. That being so,
the words "us samay" used in the second sub-para of para 5
are the operative words. They clearly embody a reference to
an anterior point of time and this can only be a reference
to the period since 1.8.87 which finds specific mention in
the first sub-para and which is the period subsequent to the
scheme coming into operation. Thus, all persons doing house
jobs after 1.8.87 are covered by the second sub para of para
5. The words "after completion of the tenure" had to be used
here because the class of persons referred to also included
those who were in house jobs as on 22.8.89. Indeed this was
how the scheme was understood by the Principal of the M.L.N.
College and, perhaps, by the other principals too. We find
that the terms of the advertisement issued by the Principal,
M.L.N. College, to which the writ petitioners had responded
said this:
"Candidates must have passed M.B.B.S. Degree from
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13
a University recognised by M.C.I., should have completed one
year compulsory rotatory internship training and should have
completed/will be completing one year house manship in the
subject concerned by 30th October, 1989 ...... "
906
This was the understanding of the scheme by the College
Principal and, admittedly, the writ petitioners fulfilled
these requirements. There is, therefore, no substance in the
second contention either.
Ms. Sobha Dixit, appearing for the State, submitted that
the interpretation placed by the High Court creates two
types of major difficulties. The first is that though the
High Court’s decision related only to M.L.N. College at
Allahabad, similar claims have also been made for admissions
into post-graduate courses all over the State and, in some
cases, the High Court, following the present case, has
issued directions to a like effect with the result that a
large number of candidates who have secured admissions are
now facing the loss of their seats and of the benefit of
almost one year of study which they have already undergone
by now. This argument, in our opinion, has no force. It does
not appear to be correct to say that the High Court’s deci-
sion in the present case will affect admissions all over the
State. The respondents have stated thus in para 13 of their
counter-affidavit:
The admission in other Medical Colleges of U.P.
have been done on the basis of old rules i.e. on the basis
of Govt. Notification dated 15.12. 1982 and 13.8.1987 and
the students who have completed their house job much earlier
prior to 22.8.89 were given admission in 2 year degree and 1
year diploma course according to their respective merits
after the introduction of residency scheme dated 22.8.89."
(underlining ours)
This remains uncontroverted. Further, the validity of the
admissions made to the other colleges would depend on those
who had applied for admission there. If earlier batches of
house-officers had also applied for admission to those
colleges and been refused admission, as in the M.L.N. Col-
lege, the position may be similar to that in the present
case. If, however, such persons had not at all applied or
had been duly considered, no question can arise now for
their consideration. No unjustified revision of completed
admissions is, therefore, likely to result. The plea that
the appellants have already completed about a year in the
course and should not lose the benefit thereof cannot also
be given much weight because, by interim orders passed in
the writ petitions, the High Court had made it clear that
they were being allowed to continue in the course only on
the specific understanding
907
that their admissions will be subject to the result of the
writ petitions.
The second point made by the State counsel is that it
compels the batch of students working in a house-job as on
22.8.89 to face competition from earlier batches and this
according to her, is contrary to law. In support of this
contention, she referred to certain observations made by
this Court that it would not be correct to compare the
merits of candidates in different examinations and different
States. We see no force in this contention. As pointed out
earlier, before and after the introduction of the scheme,
admission to the first year of the scheme was and will by
open competition between medical graduates who had completed
house-jobs or internships irrespective of the batch to which
they belong. It is stated in an affidavit filed on behalf of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13
the appellants that, though the writ petitioners, while
getting admission to the postgraduate diploma course earlier
had to compete with earlier batches of students, they were
given some preference. We do not know on what basis such
preference was given and it is too late now to examine that
aspect. But the fact remains that they were considered along
with candidates of earlier batches. We, therefore, see no
justification for contending that great injustice will be
caused to the appellants because it has become necessary for
them to face competition from two earlier batches of stu-
dents.
On the contrary, as pointed out by the High Court, it is
the interpretation pleaded for by the State that may offend
article 14 of the Constitution. We have held earlier that
the scheme, though introduced in 1989 is effective from
1.8.87. If that be so, to place house-officers working on
22.8.89 alone in a better position than those who had com-
pleted house jobs in 1987, 1988 or earlier in 1989 would
result in a discrimination in their favour and against the
writ petitioners unrelated to--indeed, contrary to--the very
object and purpose of giving the scheme retrospective effect
from 1.8.87.
One further contention raised on behalf of the state and
the appellants is based on a decision of the High Court in
the case of one Dr. Sandeepa Srivastava (Civil Miscellaneous
Writ Petition No. 13419/89), a petition for special leave
against which was dismissed by this Court (SLP 1380/89
dismissed on 6.4.90). Dr. Srivastava had completed M.B.B.S.
in 1987 and one year internship in June 1988 and had applied
for admission to a house job but before the admission could
be decided upon, the Residency Scheme had been introduced.
She challenged the admission to the first year of the degree
course granted by the M.L.N. College, in preference to her,
to one Dr. Surabhi Rai who
908
had completed her M.B.B.S. in 1987, completed her internship
in 1988 and was in a house job as on 22.8.89. A very pecul-
iar situation seems to have arisen in that case. Dr. Surabhi
Rai had applied for admission to the first year and not the
second year of the new residency course though she was on a
house job as on 22.8.89. It appears she could not apply for
the 2nd year like the writ petitioners here as her house job
could not be completed by 30.10.89, the date mentioned in
the advertisement with which we are concerned. Dr. Srivasta-
va contended before the High Court (a) that only the 1983
batch of students who had passed M.B.B.S. in 1988 were
eligible for admission to the degree course and not those
who had passed out earlier; and (b) that Dr. Surabhi Rai
should have sought admission to the second, and not the
first, year of the Junior Residency course. The court re-
jected the first contention which was patently untenable and
this was sufficient to dispose of the writ petition. The
court, however, also proceeded to consider the second con-
tention and dealt with it as follows:
"The second contention of the petitioner has also no force.
For this proposition, the petitioner has relied on the last
part of para 5 of the Government order dated 22.8.89. Para 5
of the Government Order has laid down that house officers
and Junior doctors working since August 1, 1987 will be
converted into Junior Residents of First Year. Second year
etc. in accordance with the chart given in this para. Last
part of this para lays down about these house officers, who
were working since 1.8.87. This para does not provide for
the criteria or deal with the admission of those candidates,
who have joined the First Year House Job and have not yet
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13
completed even first year. The cases of those, who have
joined the course of house job but could not complete till
the introduction of the new scheme of the residency, has
been considered in the meeting of the Principals of all the
Medical Colleges of U.P. and Director of Medical Education
and Training on 16.9.1989. Para 6 of this resolution laid
down that as the course of house job has been abolished
after the enforcement of the residency scheme and the candi-
dates, who are undergoing training of house job cannot
pursue their studies and training any more and as such. all
those candidates, who are undergoing training of house job
should be admitted in the first year course of Junior Resi-
dency on the basis of merit. This resolution of the Princi-
pals of all the Medical Colleges appears to be fair and
909
most reasonable.’ As the course of house job has been abol-
ished and the candidates undergoing this course cannot
possibly pursue their studies and if they are not admitted
in the first year of the Junior Residency, they will suffer
great hardship and irreparable loss, because they have been
deprived of their right to persue their course of house job
in the middle of the session.
When the course of house job has been abolished, it
is impossible for the persons undergoing the course of house
job to persue their studies any more. In fact respondent No.
3 would have been happy, if she was permitted to continue
and conclude the one year course of house job, because in
that case after few months she would have got admission in
the second year of Junior Residency and would have become
senior to the petitioner and all others, who will be joining
the first year of Junior Residency course now, but on ac-
count of the abolition of the system of house job it became
impossible for the Respondent No. 3 to continue with the
course and as such, she had to be contended with the admis-
sion in the first year of Junior Residency course."
We do not wish to say anything about this part of the
judgment as we are not aware whether any appeal has been
sought therefrom. It is sufficient to point out that all the
appellants before us are persons who were in a house job on
22.8.89 and are claiming admission to the second year of the
degree course. We shall, therefore, simply content ourselves
by saying that, since all the parties before us have pro-
ceeded on the footing that persons in the position of the
appellants are eligible for admission as Junior
Residents--2nd year, we are not called upon to consider the
correctness of the judgment in Dr. Sandeep Srivastava’s case
on this point. That was a case which dealt with an admission
to the first year of the degree course and, since there is
nothing in the scheme which prohibits any person in the
position of the appellants or Dr. Surabhi Rai from applying
for admission as junior resident--1st year, the decision of
the High Court was clearly correct. The dismissal of the SLP
in that case does not, therefore, affect our present discus-
sion.
The Judgment of the High Court in appeal before us, the
judgment in Dr. Sandeepa Srivastava’s case and the other
judgments to which Ms. Sobha Dixit made a reference, howev-
er, make it clear that the interpretation of the clauses of
the scheme is, by no means, an easy
910
task. In practice also, the basis on which the
principals--at least the principal of the M.L.N.
College--proceeded does not appear consistent with the
letter of the Director of Medical Education dated 2.11.89.
In this state of affairs, we think that it is upto the State
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13
to find out a practical solution to ensure that the student
community is not prejudiced by the ambiguities in the
scheme. In this context, our attention was drawn to the
directions of this Court in the case of Mridula Avasthi and
Others v. University of Delhi and Others, [1988] 3 SCR 762:
"In this background we are of the view that the
impasse created on account of the rival claims advanced by
the freshers and the seniors has to have a rough and ready
solution-yet not arbitrary and as acceptable and satisfying
as possible. We find that the two-year degree course spe-
ciality-wise has 149 seats while the three-year degree
course has 139 seats. For convenience we extract the partic-
ulars made available at page 4 of the Bulletin of Informa-
tion. It may be pointed out that there are 1003 candidates
as against total 270 vacancies (degree and diploma courses
together) for the seniors; and there are 33 1 candidates as
against 205 vacancies for the two courses for the freshers.
With a view to providing some more seats for seniors we
suggested to Mr. Rao appearing for the University that the
number of seats may be increased and he has on instructions
agreed, provided the Union of India provides funds and the
Medical Council agrees to accommodate. There are 21 special-
ities as indicated above. We direct that the University
shall create one seat in every speciality and thus 21 addi-
tional seats will be available over and above the 149 seats
fixed by the University representing the 75% quota. To this
enhanced number of seats the 25% reservation of All India
Selection shall not apply. From the reserved seats made for
the freshers, 21 seats being one from every speciality shall
be taken away and made available to the seniors. Thus 42
seats in all will be available for the seniors in the Post-
Graduate course to be filled up on the basis of inter se
merit keeping the senior group apart.
The creation of the 21 seats will involve addi-
tional funds to be provided by the Union of India. It will
also require approval of the Medical Council of India and
there
911
will perhaps also be necessity for permitting the variation
of guide-student ratio. Since it is for one year and there
would be no scope for recurrence and this has arisen in
peculiar circumstances explained above, we direct the Gov-
ernment of India to take our order made without hearing it
with a sense of understanding and make the necessary provi-
sions. We also suggest to the Indian Medical Council to
provide the necessary accommodation by relaxing the require-
ments. These may be done quickly so that the time schedule
may not be affected."
Based on the above observations, an application has been
filed before us praying that directions may be issued to the
State of create, with the approval of the Medical Council of
India, an adequate number of additional seats to accommodate
all the applicants in the second year of the degree course
in some speciality subject to the other rules in force in
the State in this behalf. We do not know how far this will
be feasible having regard to the position prevalent not only
in the M.L.N. Medical College but also elsewhere in the
State. We do not know how many additional seats will have to
be created on this footing and whether it is at all possible
to do so. We, therefore, give no specific directions but
leave it to the State Government to review the situation in
the entire State and see if any solution that will accommo-
date all the contestants, who qualify on merit, can be found
out. However, any such review should not stand in the way of
the immediate consideration-subject to other rules in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13
force--of the writ petitioners for admission as "junior
residents--2nd year". They have already lost almost one year
of the degree course though, presumably, (except perhaps for
one) they have been continuing their studies in the post-
graduate courses where they had been earlier admitted. This
should be set right and such of those as are admitted should
be enabled to make up for lost time and to complete their
post graduate course, if possible, by the end of 1991.
With the above observations, these appeals are dis-
missed. We, however, make no order as to costs.
R.S.S. Appeals dismissed.
912