Parmender Kumar & Ors vs State Of Haryana & Ors

PARMENDER KUMAR & ORS. ... Appellants

Vs.

STATE OF HARYANA & ORS. ... Respondents

WITH

C.A.NO.9718/2011 @ SLP(C)NO.16075/2011,

C.A.NO.9719/2011 @ SLP(C)NO.16346/2011,

C.A.NO.9720/2011 @ SLP(C)NO.16228/2011,

C.A.NO.9721/2011 @ SLP(C)NO.16229/2011 &

C.A.NO.9722/2011 @ SLP(C)NO.16230/2011.

J U D G M E N T

ALTAMAS KABIR, J.

1. Six Special Leave Petitions, being

SLP(C)No.15974/2011, SLP(C)No.16075/2011, SLP(C)No.

16346/2011, SLP(C)Nos.16228-30/2011, have been

taken up together for hearing, as they involve

common questions of fact and law relating to the

eligibility of the Special Leave Petitioners, who

are members of the Haryana Civil Medical Services,

to be admitted to the Post-Graduate Courses

conducted by the Pt. B.D. Sharma University of

Health Sciences, Rohtak, Respondent No.2 herein,

against the reserved quota for such candidates.

2. Leave granted.

3. Before proceeding further, I.A.Nos.4 and 5 of

2011, filed by Dr. Rajeev Kumar and 10 others in

SLP(C)No.15974 of 2011, for impleadment in these

proceedings as respondents, are allowed.

4. For the sake of convenience, we shall refer to

the facts from SLP(C)No.15974/2011, filed by Dr.

Parmender Kumar and others. As indicated

hereinabove, the Appellants in all these appeals

are candidates for admission to the Post-Graduate

Courses conducted by the Respondent No.2 University

against the Haryana Civil Medical Services (HCMS)

reserved quota. As provided for by the prospectus

dated 6th January, 2011, a common entrance

examination was held for candidates who applied for

admissions against seats reserved for the HCMS

quota, as also seats under open merit category.

The prospectus sets out the total number of seats

in each course and the seats earmarked for the HCMS

reserved category and also in respect of open

merit. According to the prospectus, seats

available for the Post-Graduate Course in the

different disciplines indicate a total number of

145 seats available, of which 73 seats were

reserved for the All India quota, 29 seats were

reserved for the HCMS reserved quota and 43 seats

were reserved for the open merit category. As per

the prospectus, the last date of receipt of

application was 24th January, 2011 within 5 p.m.

The common entrance examination was held as per

schedule on 2nd March, 2011 and results were

declared on 3rd March, 2011. Counselling was

scheduled for 6th April, 2011 and the academic

session was due to commence on 10th May, 2011.

5. The eligibility criteria laid down in the

prospectus for candidates appearing in the entrance

examination in respect of the HCMS reserved quota

was included in Clause 5 of the prospectus, which

reads as follows :

"5. HCMS doctors sponsored by the State

Govt. will be eligible to appear in the

entrance examination against the reserved

seats for this category, provided they

submit the application through their

employer or submit their applications for

getting NOCs to the department/State

Government well in time and the

Department/State Govt. will ensure that

the NOCs where ever eligible, are issued

before the date of 1st Counselling i.e.

06.04.2011."

6. What is of importance is the method of

selection and admission which was made a part of

the prospectus, wherein, in Clause 6 relating to

determination of merit, in Sub-Clause (iii), it was

indicated as follows :

"6.(iii) The conditions for NOCs fixed by

the Govt. of Haryana vide letter

No.2/123/05/I-HB-I dated 5.12.2008 for

HCMS doctors who want to join PG-courses

are given at Annexure-D. (However, latest

Govt. instructions issued from time to

time will be followed)."

7. For, as per the aforesaid Sub-Clause, HCMS

doctors who wanted to join the PG-courses against

the HCMS reserved quota, required NOC in terms of

Government of Haryana instructions dated 5th

December, 2008. As per the said instructions, one

of the eligibility conditions was contained in

Clause 3, which is extracted hereinbelow :

"3. The basic condition for eligibility is

three years regular service with

successful completion of probation period

out of which two years service is

essential in rural areas for both reserved

and open seats in the case of HCMS

doctors. However, the condition of rural

service will not be applicable in the case

of a member of the HMES."

8. The Appellants were allowed to participate in

the selection process on the basis of the above

criterion and as per the cases made out in the

several appeals, their names were published in the

merit list dated 3rd March, 2011. From the said

list it will appear that out of the total number of

38 candidates in the HCMS quota in the

M.D./M.S./P.G. Diploma course and 3 candidates in

the MDs course, all the Appellants in the various

appeals stood admitted along with similar

candidates.

9. However, on 31st March, 2011, the Government of

Haryana issued an instruction, which was circulated

on its website on 5th April, 2011, that changed the

eligibility conditions and applied the same to the

process of admission which had already been set in

motion on the basis of the Government instructions

dated 5th December, 2008, and that too just one day

before the date of counselling, i.e., 6th April,

2011. The amended provision is extracted

hereinbelow :

"MBBS doctors will be eligible for doing

Post-Graduate Course, both degree as well

as Diploma after completion of 5 years of

regular satisfactory service including 2

years of probation, out of which 3 years

service should be in one of the District

Hospital or a Sub-Divisional Hospital and

2 years in rural area institutions. Only

the persons fulfilling this condition will

be eligible for sponsorship against

reserved seat in PGIMS Rohtak or other

Government institution and against the

open seats in the Government Colleges of

Haryana or similar Government institutions

anywhere else in the country."

10. It is the changed conditions relating to

admission in the Post-Graduate Courses which

resulted in the filing of CWP No.6168 of 2011, by

Dr. Parmender Kumar and others and other writ

petitions were filed by the other Appellants in the

Punjab and Haryana High Court. Upon consideration

of the original conditions relating to eligibility

for admission in the Post-Graduate Course and the

changes effected by the Government instruction

dated 31st March, 2011, the learned Single Judge of

the High Court by order dated 6th April, 2011, while

listing the matter on 13th May, 2011, passed an

interim order to the effect that in the meantime

the Appellants would be permitted to take part in

the counselling as against the HCMS quota

candidates, subject to their own risk and

responsibility. It was made clear that the said

order would not confer any equitable right in

favour of the Appellants. It was further directed

that the result of the counselling of the

Appellants should be kept in a sealed cover and

would be subject to the outcome of the writ

petition.

11. Aggrieved by the interim order passed by the

learned Single Judge, Dr. Parmender Kumar and

others filed Letters Patent Appeal Nos.983 and 995

of 2011, before the Division Bench of the Punjab

and Haryana High Court. The appeals were disposed

of by the Division Bench by its order dated 2nd

June, 2011, upholding the order of the learned

Single Judge rejecting the challenge to the new

policy relating to grant of NOC, on the ground that

it was evident that the State had every right to

prescribe a policy for the grant of NOC, especially

when it was dealing with the cases of sponsorship

of in-service candidates for higher studies. The

logic behind the same is that the State was

committed to bear the expenses for the selected

HCMS candidates, as such incumbents were entitled

to full pay and the period spent by them in

pursuing these courses was to be treated as having

been spent on duty. The Division Bench also noted

that the underlying principle in accepting the

prospectus as correct is that the State does not

indulge in nepotism, nor has any allegation of mala

fide being made, nor are they even visible. The

Division Bench observed that the Appellants had not

been excluded from the zone of consideration, but

they had been denied consideration in HCMS

category. The Division Bench also took note of the

fact that in the prospectus it had been made clear

that NOC was to be issued by the State as per its

policy applicable from time to time and as a result

even if the Appellants passed the test for

admission to the Post-Graduate Courses, no vested

right accrued to them to either get the NOC from

the State of Haryana or to get full salary during

the period of Post-Graduate studies. The Division

Bench distinguished the decision of this Court in

State of Punjab & Anr. Vs. Dr. Viney Kumar Khullar

& Ors. [(2010) 13 SCC 481], by observing that

provisional NOC had already been issued before the

policy was revised, which was the distinguishing

feature of the judgment in its applicability to the

present case.

12. Appearing for the Appellants, Mr. Altaf Ahmad,

learned Senior Advocate, as also Mr. K.K. Tyagi,

learned Advocate, questioned the decision of the

learned Single Judge, as well as the Division Bench

of the High Court, on the ground that once a

criterion had been laid down in the prospectus, the

Respondents concerned had no authority to alter the

same once the process under the said prospectus had

already commenced and a select list of candidates

had also been published. Change of such conditions,

one day prior to counselling as to the discipline

to be pursued, was to the prejudice of the

candidates who had been selected, as they had been

selected on the basis of the unamended prospectus.

Mr. Ahmad submitted that one could possibly have

accepted the change in the criterion for admission,

if it had been made before the prospectus was acted

upon, but once the prospectus was acted upon, the

entire process of admission to the Post-Graduate or

Diploma Courses would be governed by the said

prospectus and any change and/or alteration of the

conditions of the prospectus thereafter, would

seriously prejudice the candidates who had already

been selected.

13. In this regard, reliance was placed on the

decision of this Court in Dr. Viney Kumar Khullar's

case (supra), wherein, while dealing with almost a

similar case altering the terms and conditions for

selection, this Court held that besides the earlier

circulars, the Amendment Circular ought to have

been mentioned in the prospectus. It was observed

that nothing prevented the Government from stating

that the NOC should be subject to the conditions

mentioned in the Circular dated 13th May, 1996, as

amended by Circular dated 30th July, 2007, which was

issued after the 2007 admissions and was sought to

be made applicable for the first time in respect of

2008 admissions. Consequently, the candidates for

the 2008 admissions would have no knowledge about

the Amendment Circular dated 30th July, 2007, unless

it was mentioned in the prospectus. This Court

further held that the candidates would have bona

fide proceeded on the basis of eligibility for the

NOC, in terms of the Government Circular dated 13th

May, 1996. Learned counsel submitted that a

similar view had been taken by this Court in Vinay

Rampal (Dr.) Vs. State of J & K & Ors. [(1984) 1

SCC 160], wherein this Court had held that since no

reference had been made in the advertisement about

the subsequent Government Order dated 23rd March,

1979, it was the requirement set out in the

advertisement which should have provided the basis

for selection and eligibility for admission of the

petitioner therein.

14. Mr. Altaf Ahmad pointed out that in yet another

case, namely, Rajiv Kapoor & Ors. Vs. State of

Haryana & Ors. [(2000) 9 SCC 115], this Court had

observed that the mess that had occurred leading to

the litigation seemed to be more on account of the

inept drafting and publication of the prospectus by

the University and not properly carrying out the

binding orders of the Government and of too many

orders passed from time to time, being allowed to

stand piecemeal independently. In fact, it was

also observed that the Government would do well in

future to publish at the beginning of every

academic year, even before inviting applications, a

compendium of the entire scheme and basis for

selection carrying out amendments up to date and

the prospectus also, specifically adopting them as

part of the prospectus, to avoid confusion in the

matter of selection, every year.

15. Mr. Ahmad submitted that since the subsequent

alteration of the criterion for admission to the

Post-Graduate and Diploma Courses in the various

disciplines had not been included in the prospectus

for admissions to the current year, no reliance can

be placed on the same and the submissions made on

that behalf are liable to be rejected.

16. Mr. P.S. Patwalia, learned Senior Advocate,

appearing for the added respondent Nos.2 to 11, on

the other hand, submitted that the object of

directing NOC to be obtained by the candidate

before he could be allowed to join a new session

was that the choice had to be made extremely

carefully before such candidates would get full

salary for the period during which they were to

pursue Post-Graduate studies and they would also be

deemed to be in service during the entire period.

Mr. Patwalia submitted that prior to the amendment

in the prospectus, Clause 3 thereof provided that

the basic conditions for eligibility would be 3

years' regular service, with successful completion

of probation period, out of which 2 years' service

was essential in the rural areas. An exception was

made in the case of a candidate who was a member of

HCMS. The said criteria was altered by the

Government Instruction dated 5th December, 2008,

whereby it was indicated that MBBS members would be

eligible for doing the Post-Graduate and Diploma

Courses after completion of 5 years of regular

service in place of 3 years, as stipulated earlier,

including 2 years of probation, out of which 3

years of service would have to be one of the

District Hospitals or the Sub-Divisional Hospital

and 2 years in a rural area institution. Mr.

Patwalia submitted that the said change was not a

change in regard to the criterion of eligibility

for admission, but it was a change of conditions of

service as the Government always has the power to

make such changes. In this regard, reliance has

been placed by Mr. Patwalia on two decisions of

this Court in i) Union of Public Service Commission

Vs. Gaurav Dwivedi & Ors. [(1999) 5 SCC 180] and

(ii) State of Orissa & Anr. Vs. Mamata Mohanty

[(2011) 3 SCC 436], in which it was emphasized that

the necessity of possession of prescribed

qualification by teachers, was extremely crucial

for an educational institution, since excellence of

instruction provided by an educational institution

mainly depends directly on excellence of teaching

staff. Hence, unless teachers themselves possess a

good academic record, the standard of education can

neither be maintained nor enhanced.

17. Mr. Patwalia also referred to the decision of

this Court in Rajiv Kapoor's case (supra), in which

the question of the right of in-service candidates

to be admitted from the reserved category of Post-

Graduate Courses was under consideration. It was

held that in regard to the method and procedure to

be followed in selection from amongst HCMS

candidates, the Government Orders providing

procedure other than those contained in the

prospectus were quite valid, since it had power to

issue such orders and the prospectus could not

prevail in exclusion of the Government Orders. The

learned Judges observed that both should be so

construed that inter se merits of the in-service

candidates were assessed on the basis of their

credentials and performance in service. It was

categorically held that even if the latest

Government Order was issued after declaration of

results of the entrance examination, the earlier

Order would still be required to be complied with.

18. Mr. Patwalia submitted that in view of the

aforesaid decision, the appeals were liable to be

dismissed.

19. On behalf of the State of Haryana, Mr. Vikas

Singh, learned Senior Advocate, pointed out that

the NOCs, which were given by the Government on 4th

April, 2011, had been given to the candidates from

the reserved HCMS category for 5 years, while NOC

was given for 3 years to the candidates from the

open category. As far as the Appellants are

concerned, they were given NOCs for the open

category and not for the reserved category and,

hence, their claim for being considered for

admission in the reserved HCMS category was without

any basis and was liable to be rejected.

20. From the facts as disclosed, the only question

which emerges for decision in these appeals is

whether the State Government had any jurisdiction

and/or authority to alter the conditions relating

to admission in the Post-Graduate or Diploma

Courses in the different disciplines in medicine

which had earlier been indicated in the prospectus,

once the examination for such admission had been

conducted and the results had been declared and a

select list had also been prepared on the basis

thereof. In other words, once the process of

selection had started on the basis of the terms and

conditions included in the prospectus, was it

within the competence of the State Government to

effect changes in the criterion relating to

eligibility for admission, when not only had the

process in terms of the prospectus been started,

but also when counselling was to be held on the

very next day, which had the effect of eliminating

many of the candidates from getting an opportunity

of pursuing the Post-Graduate or Diploma Courses in

the reserved HCMS category.

21. Although, Mr. Patwalia had placed a good deal

of reliance on the decision of this Court in Rajiv

Kapoor's case (supra), wherein, the facts were

almost similar to the facts of this case, there is

a singular distinction between the two. It has, no

doubt, been held by this Court in Rajiv Kapoor's

case (supra), that the High Court fell into serious

error in sustaining the claim of the petitioners

before the High Court that selection and admissions

for the course in question had to be only in terms

of the stipulations contained in Chapter V of the

prospectus issued by the University. It was further

held that such an error had been committed by

assuming that the Government had no authority to

issue any directions laying down any criteria other

than the one contained in the prospectus and that

the marks obtained in the written entrance

examination alone constituted proper assessment of

the merit performance of the candidates applying

for selection and admission. This Court also

observed that the High Court in allowing the writ

petitions had purported to follow an earlier

judgment of the Full Bench of the same High Court

reported in Amardeep Singh Sahota Vs. State of

Punjab [(1993) 4 SLR 673 (FB)], which, in fact, did

not doubt the competency or authority of the

Government to stipulate procedure for admission

relating to courses in professional colleges,

particularly, in respect of reserved category of

seats. This Court also observed that ultimately

the Full Bench had directed in the case decided by

it that selections for admission should be

finalised in the light of the criteria specified in

the Government Orders already in force and the

prospectus, after ignoring the offending

notification introducing a change at a later stage.

22. If the aforesaid decision of this Court is to

be relied upon, it, in fact, favours the case of

the Appellants, since, while observing that

selections or admissions for the Courses in

question will have to be effected only in terms of

the stipulation contained in the prospectus issued

by the University, the orders issued by the

Government from time to time would also have to be

taken into consideration. An exception was,

however, made by this Court in relation to orders

which came to be issued after the declaration of

results of the written entrance examination. In

that context, it was observed as follows :

"............The further error seems to be in

omitting to notice the fact that the

orders dated 21-5-1997, which came to be

issued after the declaration of results of

written entrance examination, even if

eschewed from consideration the orders

dated 20-3-1996 and 21-2-1997 passed in

continuation of the orders of the earlier

years, continued to hold the field, since

the orders dated 21-5-1997 were only in

continuation thereof."

23. As has also been pointed out hereinbefore, this

Court took notice of the fact that the Full Bench,

on whose decision the High Court had relied,

ultimately directed that the selections for

admission should be finalised in the light of the

criteria specified in the Government Orders already

in force and the prospectus, "after ignoring the

offending notification introducing a change at a

later stage." In fact, this is what has been

contended on behalf of the Appellants that once the

process of selection of candidates for admission to

the Post-Graduate and Diploma Courses had been

commenced on the basis of the prospectus, no change

could, thereafter, be effected by Government Orders

to alter the provisions contained in the

prospectus. If such Government Orders were already

in force when the prospectus was published, they

would certainly have a bearing on the admission

process, but once the results had been declared and

a select list had been prepared, it was not open to

the State Government to alter the terms and

conditions just a day before counselling was to

begin, so as to deny the candidates, who had

already been selected, an opportunity of admission

in the aforesaid courses. It is no doubt true that

the benefits of admission in the reserved category

are many, but the same is the result of the policy

adopted by the State Government to provide for

candidates from the reserved category and since the

Appellants had been selected on the basis of merit,

in keeping with the results of the written

examination, the submission made by Mr. Patwalia

that such admissions in the reserved category will

have to be made keeping in mind the necessity of

upholding the standard of education in the

institution, as was observed in Mamata Mohanty's

case (supra), is not applicable in the facts of

this case. The Appellants have shown their

competence by being selected on the basis of their

results in the written examination. The submission

made by Mr. Vikas Singh for the State, that the

NOCs had been given to the Appellants from the open

category, also does not appeal to us, since the

Appellants were candidates in respect of the

reserved category of the HCMS.

24. We, accordingly, have no hesitation in allowing

the appeals and setting aside the judgment and

order of the Division Bench of the Punjab and

Haryana High Court. However, we appear to be

facing the same problem, as was faced by this Court

in Dr. Vinay Rampal's case (supra). The

counselling process in these appeals was to be

conducted on 6th April, 2011 and the academic

session was to commence on 10th May, 2011. In other

words, the Appellants have already lost about six

months of the courses in question. As was observed

in Dr. Vinay Rampal's case (supra), the sands of

time had run out which is inevitable in judicial

process. Following the same reasoning, as was

adopted in the aforesaid case, we direct that the

Appellants shall be admitted in the Post-Graduate

or Diploma Courses, for which they have been

selected, for the new academic year without any

further test or selection.

25. The Appeals are disposed of accordingly. There

will be no order as to costs.

...............................................................J.

(ALTAMAS KABIR)

...............................................................J.

(CYRIAC JOSEPH)

...............................................................J.

(SURINDER SINGH NIJJAR)

New Delhi

Dated: 14.11.2011