Decided on November 07,1990

Sumanha Gajendragadkar Appellant


- (1.)The case has been placed on board today for preliminary hearing. We have heard the learned counsel for the petitioner at considerable length and, in our opinion, the writ petition is fit to be dismissed in limine. We proceed to briefly indicate our reasons.
(2.)According to the case of the petitioner she has applied for admission to the MS course in Ophthalmology and her name stands on the top of the waiting list. She is, however, being denied admission on the ground that there is no vacancy. The contention is that the authorities are not justified in limiting the total strength of the seats on the basis of Rule 4 of the Madhya Pradesh Selection for Post-graduation Courses (Clinical, Paraclinical and Non-clinical Courses) in Medical Colleges of Madhya Pradesh Rules, 1984 (hereinafter referred to as "the Rules") which reads as follows (as mentioned in Annx. 'd' to the writ petition) :
"4.(A) The total number of seats available for admission shall be, 299 determined in accordance with the Medical council of India regulations. This strength shall be revised every January on the basis of the post-graduate teachers available as on December 31 of the preceding year. However, the existing strength shall remain frozen till such time as the Medical council of India requirements with regard to post-graduate teachers are fulfilled.

Categorywise number of seats available in clinical subjects in 1984 are given in Annx. I. "it is said that the State, respondent 1 has erroneously frozen the seats since 1984 in pursuance of this rule which is ultra vires. In support of the argument the petitioner has alleged that in the departments other than Ophthalmology respondent 1 has arbitrarily increased the seats from time to time and for that reason the Rule 4 (a) must be struck down. We cannot agree with the petitioner as we do not find any justification for striking down the rule on the ground that the State under the cover of the rule is misusing its position. It cannot be suggested that the power under the rule is unbridled. It directs the existing strength to "remain frozen till such time as the Medical council of India requirements with regard to the post-graduate teachers are fulfilled". If the State has at any point of time in another department exercised the power in violation of this provision the same may be vulnerable, but for that reason no fault can be found with the rule.

(3.)The learned counsel has also referred to ground (F) in paragraph 71 of the writ petition challenging Rule 3 of the Rules which, as mentioned in Annx. 'd' to the writ petition, is quoted below:
"3.These courses shall be open to-

A. Merit candidates graduating from Medical Colleges in M. P.

B. Assistant Surgeons serving under the State government.

C. Armed Forces Personnel, and

D. Private Medical Practitioners practising and settled in Madhya Pradesh and Medical Officers employed in central government institutions and Public Undertakings located in Madhya Pradesh and medical officers of para-military forces posted in Madhya Pradesh, in accordance with the allocation of seats described for each category. "it is argued that the Rule 3 does not allot any quota to the four different groups mentioned therein. But still the authorities have reserved one seat for Assistant Surgeon as per Annx. 'c'. This argument again, even if assumed to be correct, shall render the step taken by theauthorities in Annx. 'c' to be open to objection but will not render the rule itself ultra vires. We, therefore, do not find any merit in the challenge to Rules 3 and 4 (a) of the Rules on the grounds urged,


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