- (1.) G. P. Mathur, J. All the three Special Appeals arise out of Writ Petition No. 41814 of 1999 filed by Dr. Arvind Kumar Kankane and, therefore, they are being disposed of by a common order.
(2.) THE controversy involved in the appeals relates to admission in Post Graduate courses in the State Medical Colleges. Under the current system an entrance test is held and separate merit list of general and reserved category candidates is prepared. THE candidates are then called for a counselling strictly according to their ranks in the merit list. THEy are shown the list of the seats which are available in different Medical Colleges. THE candidate may opt for one of the available seats in which case the slot chosen by him gets closed for the candidates who are lower in rank. A candidate has the option not to opt for any seats, which is available at the time of the counselling, and in such a case he is kept in the waiting list. A candidate opting to remain in the waiting list is not considered again in that round of counselling. Sometimes the candidates after having opted for a seat do not join the course or leave the course within a short time. THE seats left vacant after the first round of counselling and also such seats which have fallen vacant on account of non-joining or leaving of a candidate are determined. In order to fill in these vacant seats, a second round of counselling is held in which candidates lower in rank than the candidates who had been given opportunity in the first round of counselling and also those candidates who had opted for being kept in the waiting list are allowed to participate in order of their rank in the merit list. However, those candidates who had opted for a seat in the first round of counselling are not allowed to appear in the second counselling. The writ petitioner Dr. Arvind Kumar Kankane appeared in U. P. Post-Graduate Medical Entrance Examination, which was conducted by Medical College, Meerut, on 10-1-1999. The result of the said examination was published on 1-4-1999 in which the petitioner secured 179th rank. The appellants of Special Appeal No. 1282 of 1999 viz. Dr. Naveen Jamval, Dr. Prakash Kumar Khaitan and Dr. Km. Sudha Yadav secured 86,215 and 238 rank respectively. The writ petitioner wanted admission in Master of Surgery Course (M. S.) but by the time his turn came in the first counselling held on 17-8-1999, the seats in the said course had already been allotted to those candidates who had secured higher rank in the merit list. He, therefore, opted for admission to Doctor of Medicine Course (hereinafter referred to as M. D.) and was given admission in Medical College, Gorakhpur where he joined on 24-8-1999. About a month thereafter, an advertisement was issued on behalf of Director General, Medical Education and Training, U. P. notifying that a second round of counselling would be held in Medical College, Meerut on 6th and 7th of October, 1999 and only such candidates who had not been allotted or had not opted for any seat in the first round of counselling would be allowed to participate. In view of the aforesaid condition, the petitioner was excluded from consideration in the second round of counselling. He then filed the writ petition praying that the condition which prohibits those candidates who had already been allotted seats in the first round of counselling from consideration in the second round of counselling be quashed and he may also be considered for allotment of seat in the second round of counselling according to his rank in the merit list. A learned Single Judge disposed of the writ petition by the judgment and order dated 30-9-1999 and the operative part of the order in which certain directions were given to the authorities is being reproduced below:- "wherever after first counselling any subsequent counselling is decided to be held by the respondents for allocation of remaining seats as well as the seats which have been fallen vacant subsequent to the first counselling because of candidates who were allotted seats during first counselling refusing or failing joining, the respondents will issue a public advertisement at least in one daily newspaper, which in any case is normally done for every counselling. The advertisement will disclose the seats which have fallen vacant out of seats which were allotted during first counselling. A copy of the said advertisement may also be transmitted to each of the Medical Colleges which are covered by combined entrance test and copy of the same will be pasted on the notice board of the college for information of the students of that college. The first date of each subsequent counselling will be reserved for the candidates who were allotted seats at the earlier counselling and who wish to change their seats. It will not be necessary for the respondents to notify each candidate, who has opted for a seat during first counselling, individually. Out of the candidate, who were allotted seats at the first counselling, who turn up for subsequent counselling on the first date which is reserved for such students, distribution of seats which have fallen vacant subsequent to first or earlier counselling will be done according to merit. The change of seat to these students who have been allotted seats during first or earlier counselling will be permitted only in respect of seats which have been fallen vacant after first counselling and not of the left over seats. "
(3.) THE appellants of Special Appeal No. 1282 of 1999, who were not parties to the writ petition, but felt aggrieved by the judgment and order of the learned single Judge moved an application for recalling of the judgment but the same was rejected with certain clarification on 11-11-1999. Special Appeal No. 1282 of 1999 has been filed by them challenging the main judgment and order dated 30-9-1999 of the learned single Judge and Special Appeal No. 1301 of 1999 has been filed challenging the order dated 11- 11-1999 passed on the recall application. THE Director General of Medical Education and Training, U. P. has also preferred Special Appeal No. 1374 of 1999 against the judgment and order dated 30-9-1999 by which the writ petition was disposed of. In order to appreciate the contention raised at the bar, it is necessary to notice the relevant provisions laying down the scheme for admission to Post-Graduate Courses in Medical Colleges. In exercise of power conferred by Section 28 (5) of U. P. State Universities Act, 1973, as amended from time to time and other powers enabling him in this behalf, the Governor of U. P. issued a notification on 9-10- 1990 for implementation of Junior Residency, Senior Residency and Dental Residency Scheme and also laid down the policy and procedure for filling in the seats, and also specifying the number thereof, in various Degree and Diploma Courses in all the Government Allopathic Medical Colleges, Dental College and K. G. Medical College, Lucknow. Clause 8 of the notification provides that a competitive entrance examination shall be held every year for registration and residency admission to three years' Post- Graduate Degree Courses and the said examination shall be held for 75 per cent institutional seats after excluding 24 per cent seats specified for All India Entrance Examination. It further provides that departmentwise selection and registration of Residents in the colleges under the scheme shall be made on the basis of merit-cum-option and the said merit shall be determined on the basis of marks obtained in the competitive examination. The scheme was amended by notification dated 30-3-1994 and the amended clause Gha and Anga reads as follows:-;