MADAN, J. - (1.) THIS special appeal arises out of the order, dated 11. 01. 1994, passed by learned Single Judge of this Court in S. B. Civil Writ Petition No. 4241/1993, whereby the learned Single Judge dismissed the writ petition with the observations that seats lying vacant at Bikaner in the specialities of M. S. Gynaecology and Obstetrics shall be deemed to have been surrendered to the State Quota for doing needful and the writ petition filed by the petitioner-appellant was consequently dismissed. Feeling aggrieved by the aforesaid order of the learned Single Judge the appellant has preferred this appeal before this court which came up for hearing before us on 15. 03. 1994 when the appeal was admitted and notices were issued to the respondents. Subsequently the matter came up for hearing on 18. 03. 1994, after service of the notices to the respondents and subsequently on 22. 03. 1994 and 23. 03. 1994, when the arguments were heard and concluded.
(2.) THE facts giving rise to the filing of the present appeal briefly stated are as under : The petitioner-appellant had appeard in the All India Central Pre-P. G. Entrance Examination held in the year 1993 for MD/ms/diploma Courses (Post Graduate Course in Medicine ). For the year 1993, the Scheme in vogue for admissions in All India Quota was that merit lists were being issued from time to time according to preference given by the candidates. The first preference for the subjects given by the petitioner was Obstetrics and Gynaecology. It was contended by the appellant that she was declared successful in the aforesaid examination and on the basis of her performance and over all merit she was assigned position at serial No. 1816 in order of merit which was communicated to her vide letter dated 13. 04. 1993. It was further contended by the appellant that 25% seats out of total seats allocated for the State are reserved for MD/ms/ Diploma Courses which are to be filled up as per rules and regulations specified by the Government of India, Ministry of Health and Family Welfare and for which All India Entrance Examination was conducted by All Indian Institute of Medical Science (For short "ahms"), New Delhi. It is further contended by the appellant that the candidates have to fill his/her application forms on the basis of his/her choice as well as the College/institution which he/she desires to study within the successful candidates. In compliance with the requirements of the rules the appellant also submitted her choice for study and college in the following order of preference: Subjects Colleges 1. Gynaecology & Obst. Jaipur, Bombay 2.Paediatrics Ajmer, Udaipur. 3. Ophthalmology Jodhpur, Ahmedabad 4. Medicine Bikaner. During the course of hearing Shri Ajay Rastogy learned counsel for the appellant submitted before us that on the basis of performance of the appellant in the Pre-Entrance Examination for MD/ms/diploma Course in the year 1993, the appellant had secured position in order of merit at serial No. 1816; whereas candidates who were much lower in the merit were given admission for the above course by the respondents contrary to the criteria and the rules governing the admissions for the year 1993. In support of his contention Shri Rastogi placed reliance on Annexure 2 to the writ petition (Officer Order, dated 19. 6. 1993) issued by the office of the Principal and Controller of S. M. S. Medical College, Jaipur and attached Hospitals, Jaipur from the perusal of which it is clearly apparent that in continuation of the earlier officers order, dated 19. 05. 1993, issued by respondent No. 2 as many as 12 candidates ranging from Dr. Neha Mathur, merit No. 336 to Dr. Mini S. Nair, merit No. 1865, were given admissions to the subjects of their choice under the orders of Assistant Director General (ME), Directorate General of Health Services, Government of India, New Delhi vide order, dated 10. 06. 1993 on the basis of their performance in All India Entrance Examination for the year 1993. For the sake of convenience and ready reference the aforesaid candidates who were given admissions in terms of the aforesaid order are indicated below : Name of candidates Name of Speciality 1. Dr. Neha Mathur MS (Ophthal) 2. Dr. Asheesh Lal MD (Gen. Med.) 3. Dr. Preet Singh Kang MS (Gen. Sug.) 4. Dr. Sharad C. Agarwal MD (Gen. Med.) 5. Dr. Tilak Raj Dangwal MD (Gen. Med.) 6. Dr. Maneesha Jitendra Singhi (MB (Gynae. & Obst.) 7 Dr. Rajesh Purushothaman MD (TB & Chest) 8 Dr. Seema Chawla MD (Phsych.) 9 Dr. Nirupma Sharma MD (Pathology) 10 Dr. Hanish Sethi MD. RD. 11 Dr. Jatinder Kumar Soni (MD (RT) 12 Dr. Mini S. Nair D. G. O. Learned counsel for the appellant invited the attention of this court to the brochure/bulletin of information issued by AIIMS, New Delhi which pertains to All India Entrance Examination and admissions to MD/ms/diploma Course and MDS courses for the year 1993. The introductory portion of the said brochure reads as under : - "in COMPLIANCE OF THE DIRECTIVES OF THE HON'ble SUPREME COURT OF INDIA, the All India Institute of Medical Science will be conducting the competitive Entrance Examination of all India basis for admission to all Post-graduate Medical and Dental Courses on open merit for 1993. This entrance examination is being conducted exclusively for admission to 25% of seats of various Post-graduate Courses (MD/ms/diploma) in different Medical Colleges and MDS Courses against open seats as specified in the directives of the Hon'ble Court. It will be governed by the rules and regulations specified by the Government of India, Ministry of Health and Family Welfare for the same from time to time. " The said brochure which deals with MD/ms/diploma Courses at the first instance provides that the duration of MD/ms Course is for a period of three years commencing from the date of admission to the said course, the candidates are eligible for admission after completion of compulsory rotating internship. For Diplomas the said brochure provides that the duration of the Diploma Course shall be for a period of two years from the date of admission for candidates joining after completion of compulsory rotating internship. With regard to the Scheme of examination as contained in Rule 1 of the said brochure provides that the scheme for selection of candidates for admission to the Post-graduate Medical Courses against open seats on All India basis shall be applicable to all Medical Colleges/institutes throughout the country and no Medical College/institute shall hereafter conduct competitive entrance examination of its own for the open seats on all India basis except those exempted by the Hon'ble Supreme Court. The States of Jammu & Kashmir and Andhra Pradesh have been excluded by the Supreme Court from the purview of their judgments in this regard. Therefore the students Waving passed their MBBS Examination from an institution in these States shall not be eligible to participate in All India Competitive Entrance Examination for selection of candidates against open seats. Relevant clauses of Rule 5 of the aforesaid brochure deals with the eligibility criteria for admissions to Medical Colleges which are reproduced below : "eligibility Criteria :- (a) He/she must be an Indian National. (b) A candidate, who holds a recognised MBBS Degree from a recognised medical college or foreign medical degree included in the Schedules to the Indian Medical Council Act, 1956 and who has obtained full registration either from the Medical Council of India or any of the State Medical Councils after completing compulsory rotating internship shall be eligible to take up the-cdmpetitive entrance test for admission to Post-graduate Degree or Diploma Courses. The candidates who have obtained their MBBS degree from the Medical Colleges which are not recognised by Medical Council of India shall not be considered for admission.
(3.) PROVIDED that a candidate who after passing the final qualifying examination (MBBS or the Foreign Recognised Medical Degree), is undergoing compulsory rotating internship/practical training and is likely to complete the same by 31. 03. 1993, will be eligible to take up the competitive test, but he/she shall not be eligible for admission to the Post-graduate Course unless he/she has completed the compulsory rotating internship/practical training and obtained full registration on or before 31. 03. 1993 (whichever is earlier) before admission to the Post-graduate Medical Course to which he/she might have been selected. " Relevant clauses of Rule 6 of the said brochure dealing with the option for Medical Courses/medical Colleges provides as under : Each candidate will be allowed to give option in order of preference for admission to Post-graduate Medical Courses for maximum of 6 degrees and/or diploma courses and at a maximum of 8 medical colleges/institutions. (i) Options once given cannot be changed. (ii) The options given in the computer sheet will be considered as final. (iii) Some of the Universities are having regulations that candidates who are already pursuing the PG Course in their University or in another University are not eligible for admission till they complete the course. The candidates who are already pursuing the PG Course either through All India Quota or State Quota and are applying for a seat under All India Quota may confirm the eligibility condition of that University in this regard. Refusal of admission to such candidates shall not be the responsibility of DGHS. Such candidates may apply at their own risks and costs. ;