- (1.) D. K. Seth, J. The petitioner appeared in the Post Graduate Medical Entrance Examination of the year 1993 and having been successful was offered M. D. T. B. and Chest Diseases specialty on the basis of his merit in the list of the successful candidate though his subject of choice was Medicines in the Post Graduate Medical Course. Subsequently, on the basis of the directions of the Hon'ble Supreme Court the subjects were re allocated and the petitioner was offered the subject of his choice. The course consists of three years' The petitioner claims that the period of one year, which he had spent pursuing the course in specialty of T. B. and Chest Diseases, should also be reckoned and he should be, allowed to undergo the course of second year specialty in Medicines.
(2.) MR. Singhal, learned counsel for the petitioner contends that the M. D. /m. S. course really begin from the second year. The first year course is allied or equal in respect of the said two specialty. Therefore, he should be given benefit of being the student in T. B. and Chest Diseases discip line which is allied or equal to the first year course in Medicines as well. His representation was disallowed on the ground that such exemption should be against the recommendations of the Medical Council of India. MR. Singhal assailing the said order contends that the admission is to be governed by the regulation framed under Section 28 (5) of the U. P. State Universities Act. The recommendations of Medical Council of India are not regulations and, therefore, the order of refusal cannot be sustained. He also draws my attention to the order dated 28th January, 1995 which he has produced in the Court. A translation at the Bar from Hindi, to English was done by him for my understanding. The same appears, as I understand, to be an order passed by the Principal of the College which prescribes that the period spent in studying allied subjects shall be adjusted or exempted in case candidates shifting from one subject to another allied subject. Mr. Singhal further contends that the stand taken in the counter affidavit cannot be utilized to improve upon the order refusal to allow exemption to the petitioner. According to him, the order cannot be sup plemented by any other ground attempted to be created by means of an affidavit or otherwise. The order is to be scrutinised on the basis of the original ground to which the respondents had applied their mind. Mr. Singhal draws my attention to Annexure-5 of the writ peti tion which has been issued by U. P. Shasan Chikitsha Shiksha contained in a notification dated 9th October, 1990 under Section 28 (5) of the U. P. State Universities Act, and contends that the course have been regulated to 3 years instead of two years which prevailed earlier for the Post Graduate Degree (M. D. /m. S) and had enumerated the equivalent present posts with respect to the new course. The relevant portion of the said notification dated 9th October, 1990 is quoted below : "no. 8390-Sec-l4/v-250-82 October 9, 1990. " In exercise of the powers under sub-section (5) "of Section 28 of the Uttar Pradesh State Universities Act, 1973 (Presidents' Act No. 10 of 1973) as amended and re-enacted by the Uttar Pradesh Universities (Re-enactment and Amendment) Act, 1974 (U. P. Act No. 20 of 1974), and all other powers enabling him in this behalf, the Governor, keeping in view the judgment of the Supreme Court, regulations of the Medical Council of India and the recom mendations of the Committee constituted to suggest requisite improvements in post graduate education and training in all the Government Alopathic Medical Colleges and Dental College, and with a view to regulating the admissions in all the Government alopathic Medical Colleges and Associated Hospitals and K. G. Medical College including Dental College and Hospitals associated therewith, is pleased to order the implementation of the Junior Residency, Senior Residency and Dental Residency Scheme and to implement the said Scheme, prescribed the following policy and procedure for converting the posts presently available in the posts equivalent thereto, specifying the number of seats to various degree and diploma course and selection thereon : Scheme of Junior Residency.- (1) This scheme shall be applicable tq post-graduate degree (M. D. /m. S.) and post graduate diploma course in all Government Medical Colleges and K. G's Medical College, and its name and term shall be as under : Designation Term Equivalence of present post (a) Junior Resi dent One Year House Officer/demonstrator, First Year 1st year (b) Junior Resident One Year M. D. /m. S. First Year, P. G. Diplo ma One Year IInd Year student : Junior Resident, R. M. O. First Year/r. S. O. First Year/ Demonstrator Second Year. (c) Junior Resident One Year M. D. /m. S. Second Year/senior One Year IIIrd Year Resident/r. M. O. Second Year/ R. G. O. Second Year/demontrator Third Year/registrar. (2) This Scheme shall be deemed to have come into force on August 1, 1987. (3) The terms of every candidate to be selected for the post graduate degree courses (M. D. /m. S.) in this Scheme shall be three years which is also the term for the courses of M. D. /m. S. All such candidates during their term shall be called the Junior Resident First Year, Junior Resident Second Year, Junior Resident Third Year, respectively. The total term of every candidates to be selected for post graduate diploma courses shall be two years which shall also be the term for post graduate diploma courses, All such candidates during their term shall be called the Junior Resident First Year, and the Junior Resident Second Year respectively. "
(3.) IT appears that the first years course of Junior resident is equi valent to house officer/demonstrator First Year. Mr. Singhal lays much stress of this enumeration of equivalent post. The second year is shown to be equivalent to M. D. /m. S, first year student Junior Resident R. M. O. First Year/demonstrator Second Year. IT further appears that Illrd Year is to be shown to be equivalent to M. D. /m. S. Second Year/senior resident/ R. M. O. Second Year/r. G. O. Second Year/demonstrator Third Year/regis trar. Relying on this equivalent post Mr. Singhal contends with great emphasis that the M. D. /m. S. course really starts from second year and there was no difficulty with regard to any discipline as has been sought to be contended by the respondents on the basis of recommendations of the Medical Council of India. Drawing my attention to Anuexure-6 to the writ petition, Mr. Singhal further contends that the said notification dated October, 9, 1990 was further amended by notification dated 30th June, 1993 issued under the same provision of the said Act. The necessary amendment is to be quoted which is as follows : "no. 4702 Sec. 14/five-750/82 Dated : Lucknow 30 June, 1993. NOTIFICATIOn Miscellaneous In exercise of the powers under sub-section (5) of Section 28 of the Uttar Pradesh State Universities Act, 1973 (President's Act No. 10 of 1973) as amended and re-enacted by the Uttar Pradesh Universities (Re- enactment and Amendment) Act, 1974 (U. P. Act No. 29 of 1974) lead with Section 21 of the Uttar Pradesh General Clauses Act, 1904 (U. P. Act No. 1 of 1904), the Governor is pleased to make the following amendments in Government notification No. 8390 Sec. 14/five-250/82 dated October 9, 1990 hereinafter referred to as the said notification, namely : AMENDMENTs Amendment of Scheme of. In the said notification for Junior Residency clauses (1), (4), (6), (7) and (8) of the Scheme of Junior Residency set out in column 1 below, the clauses as set out in column II shall be substituted namely : Column 1 Column Ii Existing Clause Clause as hereby substituted. Scheme of Junior Residency Scheme of Junior Residency (1) This (1) This scheme shall be scheme shall be applicable to post applicable to post graduate graduate degree (M. D. /m. S.) and degree (M. D/ M. S.) and post- post graduate diploma course in graduate dip loma course in all all Government Medical college, Government Medical College and K. G. Medical College, and its and pc. G. 's Medical College, name and term shall be as under : and its name and term shall be as under : Designation Term Equivalance of Present post Designation Term (a) Junior Resi- One Year House Officer/ Junior Res- One dent 1st Yr. Demonstrator ident 1st Year First Year Year (b) Junior Resi- One Year M. D. /m. S. First Junior Res One dent 2nd Yr. Year : P. G. Dop- ident IInd Year loma student : Year Junior Resident R. M. O. First Year/r. S. O. First Year Demo- nstrator second year (c) Junior Resi- One Year M. D. /m. S. Second Junior Resi- One dent 3rd Yr. Year/senior Resi- dent IIIrd Year dent/r. M. O. Second Year Year/ Demonstrator/ Third Year/registrar. It appears that the equivalency of the present post, which is existing in the earlier notification has altogether been deleted. Relying on this, he further contends that the speciality in Medicines and Speciality m T. B. and Chest Diseases are allied subjects and as such refusal is illegal void and invalid.;