# Dr. Nupur Singh v. State of U.P. and others

- **Citation:** (2011) 2 ILRA 840
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-13
- **Case number:** Civil Misc. Writ Petition No. 16718 of 2010
- **Bench:** Ashok Bhushan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-nupur-singh-v-state-of-u-p-and-others-41974
- **Pages:** 15

## Headnote

Constitution of India, Article 14-whether
provision of clause 8(h) of notification
dated
09.10.2010
as
amended
by
notification Dt. 08.07.1996 restricting
admission of Diploma Course in Degree
Course
in
different
tread
without
completing said Diploma or refunding
2 All] Dr. Nupur Singh V. State of U.P. and others
841
entire amount of stipend on the date of
entrance Test?-are ultra-virus hit by
Article 14?-held-'No'-clauses 3(iv) of
brochure are in accordance with G.O.
Issued
under
28(5)
of
the
State
Universities Act, 1973-view taken in Dr.
Rajesh Arora case-does not lay down
correct law while Dr. Sanjay Sharma
case hold good field of law.

Held: Para 12 and 31

From the Government order issued under
Section
28(5)
of
the
U.P.
State
Universities Act, 1973, it is clear that
Clause 3(iv) of the brochure is in
accordance
with
the
aforesaid
Government order. A perusal of the
aforesaid restriction imposed by Clause
8(h)
indicates
that
the
general
restriction which has been imposed is
that a candidate who is pursuing post
graduate diploma or degree course in
Government Medical Colleges or K.G.
Medical
College,
Lucknow,
shall
be
ineligible
for
appearing
at
the
subsequent entrance examination for
admission until the course in which he
has been admitted is completed and he is
not declared successful. The said general
rule is subject to two exceptions, (a) if
the resignation of the candidate is
accepted by Principal of the College
before the date of notification of the
examination and he has refunded the full
amount of salary/stipend received by
him during the said course; and (b) he
can apply for post-graduate degree
course in the subject in which he or she
is
pursuing
post-graduate
diploma
course.

It is true that judgment in Dr. Sanjay
Sharma's case (supra) did not notice the
earlier judgment in Dr. Rajesh Arora's
case (supra) and due to that reason the
said judgment cannot be said to be
binding authority but in view of the fact
that we have taken a view disapproving
the view expressed by the Hon'ble Single
Judge in Dr. Rajesh Arora's case (supra),
the view expressed by the Hon'ble Single
Judge in Dr. Sanjay Sharma's case
(supra) has to be approved.
Case law discussed:
Writ Petition No.286 of 1991 (Rajesh Arora
and another vs. State of U.P. and others)
decided on 21st October, 1991; 2010(1) S.C.C.
477; A.I.R. 1994 S.C. 1506; 1996(28) ALR 522

## Text

_Characters 0–39,650 of 49,414. This is a partial read: ask again with offset=39650 for what follows._

840 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
fresh inquiry having been initiated against
the petitioner.

6. In the counter affidavit of the State
Government, it has been stated in paragraph
4 that a fresh charge sheet has been issued
to the petitioner with regard to some other
matter on 24.5.2010. It is however, not
disputed that as on the date of passing of the
order by the Commission on 29.07.2009,
there was no inquiry pending against the
petitioner.

7. It is not understood as to on what
basis the Commission did not open the
sealed cover by merely stating that some
fresh inquiry is going on, whereas on the
record as well as counter affidavits filed, no
evidence of any such inquiry is there of
which the Commission has mentioned in its
communication dated 29.07.2009.

8. The Hon'ble Apex Court in the case
of Union of India vs K.V. Jankiraman,
1991 (4) SCC 109 has held that the sealed
cover procedure is to be resorted to only
after the charge-memo/ charge-sheet is
issued. In the present case, once the
petitioner had been exonerated of all the
charges in the departmental inquiry, which
had
been
accepted
by
the
State
Government, after the acceptance of the
report,
it
was
incumbent
upon
the
Commission to open the sealed cover with
regard to the promotion of the petitioner,
which has wrongly not been done under the
garb of a fresh inquiry having been started,
which is totally incorrect. The charge
memo/charge sheet in the subsequent
inquiry was issued after about a year. As
such,
there
was
no
basis
for
the
Commission to deny the petitioner the
benefit of opening the decision regarding
his promotion kept in sealed cover on the
ground of pending inquiry.

9. In the aforesaid facts, in our view,
the writ petition deserves to be allowed and
it is accordingly allowed. The respondent
no.3 is directed to open the sealed cover
with regard to the promotion of the
petitioner
and
implement
the
recommendation
of
the
Departmental
Promotional Committee within a period of
two weeks from the date of receipt of
certified copy of this order. The petitioner
shall also be entitled all consequential
benefits, including payment of arrears of
salary, if any, to which he may be found
entitled if the recommendation made by the
D.P.C. is in favour of his promotion.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2011

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE NHON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 16718 of 2010

Dr. Nupur Singh

 ...Petitioner
Versus
State
of
U.P.
Thru.
P.S.
Medical
Education & others.
 ...Respondent

Counsel for the Petitioner:
Sri Pradeep Kumar
Sri Praveen Kumar
Sri Prem Kumar

Counsel for the Respondents:
Sri ,Mahendra Pratap
C.S.C.

Constitution of India, Article 14-whether
provision of clause 8(h) of notification
dated
09.10.2010
as
amended
by
notification Dt. 08.07.1996 restricting
admission of Diploma Course in Degree
Course
in
different
tread
without
completing said Diploma or refunding
2 All] Dr. Nupur Singh V. State of U.P. and others
841
entire amount of stipend on the date of
entrance Test?-are ultra-virus hit by
Article 14?-held-'No'-clauses 3(iv) of
brochure are in accordance with G.O.
Issued
under
28(5)
of
the
State
Universities Act, 1973-view taken in Dr.
Rajesh Arora case-does not lay down
correct law while Dr. Sanjay Sharma
case hold good field of law.

Held: Para 12 and 31

From the Government order issued under
Section
28(5)
of
the
U.P.
State
Universities Act, 1973, it is clear that
Clause 3(iv) of the brochure is in
accordance
with
the
aforesaid
Government order. A perusal of the
aforesaid restriction imposed by Clause
8(h)
indicates
that
the
general
restriction which has been imposed is
that a candidate who is pursuing post
graduate diploma or degree course in
Government Medical Colleges or K.G.
Medical
College,
Lucknow,
shall
be
ineligible
for
appearing
at
the
subsequent entrance examination for
admission until the course in which he
has been admitted is completed and he is
not declared successful. The said general
rule is subject to two exceptions, (a) if
the resignation of the candidate is
accepted by Principal of the College
before the date of notification of the
examination and he has refunded the full
amount of salary/stipend received by
him during the said course; and (b) he
can apply for post-graduate degree
course in the subject in which he or she
is
pursuing
post-graduate
diploma
course.

It is true that judgment in Dr. Sanjay
Sharma's case (supra) did not notice the
earlier judgment in Dr. Rajesh Arora's
case (supra) and due to that reason the
said judgment cannot be said to be
binding authority but in view of the fact
that we have taken a view disapproving
the view expressed by the Hon'ble Single
Judge in Dr. Rajesh Arora's case (supra),
the view expressed by the Hon'ble Single
Judge in Dr. Sanjay Sharma's case
(supra) has to be approved.
Case law discussed:
Writ Petition No.286 of 1991 (Rajesh Arora
and another vs. State of U.P. and others)
decided on 21st October, 1991; 2010(1) S.C.C.
477; A.I.R. 1994 S.C. 1506; 1996(28) ALR 522

(Delivered by Hon'ble Ashok Bhushan, J.)

1. These writ petitions have been
placed before this Bench under the orders
of Hon'ble the Chief Justice dated 18th
May, 2010 for answering the following
two questions as framed by the Hon'ble
Single Judge vide his order dated 17th
May, 2010:-

"(1) Which of the two decisions
namely Writ Petition No.286 of 1991
(supra) decided on 21st October, 1991
and Dr. Sanjay Sharma (supra) lays down
the correct law?

(2) Whether Clause 8(h) of the
Notification dated 9th October, 1990, as
amended by the Notification dated 8th
July, 1996, which restricts candidates
admitted to the Diploma Course from
seeking admission in the same speciality
in the Degree Course in the subsequent
year to the exclusion of all other Degree
or the Diploma Courses is violative of
Article 14 of the Constitution?"

2. Writ Petition No.16718 of 2010
(Dr. Nupur Singh vs. State of U.P. and
another) is being treated as leading writ
petition since in the aforesaid writ petition
counter affidavit and two supplementary
counter
affidavits
have
been
filed.
Reference of the facts of the aforesaid
writ petition shall suffice for answering
the questions referred.
842 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

3. Dr. Nupur Singh, the petitioner,
appeared in the U.P. Post Graduate
Medical Entrance Examination-2009 and
on the basis of her rank in general
category she appeared in the counselling
and
got
admission
in
diploma
in
Gynaecology and Obstetrics in Rani
Laxmiby Medical College, Jhansi where
she joined and was pursuing her diploma
course. The petitioner appeared in U.P.
Post
Graduate
Medical
Entrance
Examination-2010 as advertised on 8th
January, 2010. The petitioner appeared in
the examination and secured 183 rank in
the result against general category. In the
prospectus of the Examination-2010 there
was condition in Clause (iv)(b), which
provides as under:-

"(iv)(b). he/she is presently pursuing
P.G. Diploma course in any subject, with
the
condition
that
he/she
will
be
considered for the Postgraduate Degree
course in that subject only."

4. The petitioner has filed this writ
petition praying for quashing Condition
No.(iv)(b) of the Information Brochure of
U.P. Post Graduate Medical Entrance
Examination-2010 and further for a writ
of
mandamus
commanding
the
respondents to permit the petitioner to
appear in all subjects available at the time
of counselling as per her merit and not to
compel the petitioner to get admission
only in degree course of Gynaecology and
Obstetrics. The writ petition was filed on
26th March, 2010 whereas counselling
was to start from 11th April, 2010. The
Hon'ble Single Judge by order dated 9th
April, 2010 permitted the petitioner to
participate
in
the
counselling
in
accordance with Condition 3(iv)(b) of the
conditions mentioned in the Brochure
which was made subject to decision of the
writ petition. The writ petition was
subsequently permitted to be amended
permitting the petitioner to challenge
Clause 8(e) of the Notification dated 9th
October, 1990 as amended by notification
dated 30th March, 1994 and 8th July,
1996 as ultra vires to the Constitution of
India.

5. Learned counsel for the petitioner,
in support of the writ petition, has
contended that Clause 8(e) of the
notification dated 9th October, 1990
issued by the State Government in
exercise of power under sub-section (5) of
Section 28 of the U.P. State Universities
Act, 1973 is violaitve of Article 14 of the
Constitution since it restricts a candidate
pursuing a post-graduate diploma course
in a particular subject from appearing in
other specialities in the subsequent U.P.
Post
Graduate
Medical
Entrance
Examination.
It
is
contended
that
petitioner, who is pursuing a diploma
course,
has
every
right
to
obtain
admission
in
different
specialities
according to merit and option as exercised
in the subsequent entrance examination. It
is submitted that a candidate who is
pursuing diploma course in Medical
Colleges in other States selected on the
basis of All India Post Graduate Medical
Entrance Examination is not subjected to
such condition and he is free to appear in
the U.P. Post Graduate Medical Entrance
Examination for different specialities and
join a different speciality. Such facility is
not permissible to students of State
Medical Colleges as per Clause 8(e) and
Brochure 3(iv)(b) which is arbitrary and
violative of Article 14 of the Constitution
of India. Reliance has been placed by
learned counsel for the petitioner on a
judgment of Hon'ble Single Judge in Writ
Petition No.286 of 1991 (Rajesh Arora
2 All] Dr. Nupur Singh V. State of U.P. and others
843
and another vs. State of U.P. and others)
decided on 21st October, 1991 by which
order Clause 8(e) of the notification dated
9th October, 1990 as was existing at the
relevant time was quashed and a direction
was issued to the respondents to give
admission to the petitioners of the
aforesaid writ petition according to meritcum-option on the basis of result of
competitive entrance examination 1991.

6. Sri Mahendra Pratap, learned
counsel for the respondents, refuting the
submissions of learned counsel for the
petitioner, has contended that Clause 8(e)
as amended by notification dated 30th
March, 1994 and 8th July, 1996 does not
violate Article 14 of the Constitution of
India and the restriction imposed by the
said clause is fully justified. He submits
that permitting a candidate pursuing
diploma course in a subject to change her
or his speciality on the basis of next
examination not only causes financial
loss, it would also be against the public
interest. Permitting post graduate diploma
students to change the course midway will
keep large number of seats of diploma
unfilled causing setback to the public
interest and setback to the medical
education. It is submitted that insofar as
the State of U.P. is concerned, the
restriction applies both on the students
admitted in the medical colleges of the
State and on the students admitted in
private
recognised
medical
colleges
through State entrance examination as
well as All India entrance examination.
He submits that even according to
admission criteria of All India Entrance
Examination
if
according
to
the
regulations
of
the
University
the
candidates, who are already pursuing the
post-graduate course in their University,
are not eligible for admission till they
complete the course and admission is
denied there shall be no responsibility of
the Admission Agency. He submits that
even if the candidates, who have been
admitted on the basis of All India
Entrance Examination in other States and
they subsequently get admission on the
basis of U.P. Post Graduate Medical
Entrance Examination in the State of
U.P., they form a different class since
they get admission in other State on the
basis of All India quota, in respect of
which rules and regulations of such
admission the State of U.P. has no
control. It is submitted that benefit which
has been extended to the candidates, who
are pursuing postgraduate diploma course
in Medical Colleges outside the State to
take admission in the same speciality in
the degree course in the State of U.P. in
pursuance to subsequent examination, the
said benefit does not lead to any
arbitrariness or inequality.

7.

We
have
considered
the
submissions of learned counsel for the
parties and have perused the record.

8. The admission in postgraduate
medical course in State medical colleges
and the private recognised medical
colleges within the State of U.P. is
governed
by
the
Junior
Residency
Scheme
as
notified
by
the
State
Government order dated 9th October,
1990 in exercise of power under subsection (5) of Section 28 of the U.P. State
Universities Act, 1973. Sub-section (5) of
Section 28 clause (b) of the U.P. State
Universities Act, 1973 is as follows:-

"28(5)(b). admission to medical and
engineering colleges and to courses of
instruction for degrees in education and
Ayurvedic or Unani systems of medicine
844 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
(including the number of students to be
admitted), shall subject to clause (a), be
regulated by such orders (which if
necessary) may be with retrospective
effect, but not effective prior to January 1,
1979) as the State Govt. may by
notification, make in that behalf:

Provided that no order regulating
admission under this clause shall be
inconsistent with the rights of minorities
in
the
matter
of
establishing
and
administering educational institutions of
their choice:"

9. The Government order dated 9th
October, 1990 contained a condition in
Clause 8(e), which is as under:-

"8(e). A candidate if admitted to any
speciality in post graduate diploma or
degree course, he shall not be eligible for
admission to any other speciality in post
graduate diploma or degree course. For
removal of doubts it is hereby clarified
that if any candidate has been admitted to
any speciality in post-graduate diploma
course, he may be allowed to be admitted
in the same speciality in the post graduate
degree course."

10. After the clause 8(e) was struck
down vide judgment of the Hon'ble Single
Judge in Dr. Rajesh Arora's case (supra),
Clause 8(e) was deleted and substituted
by Clause 8(h) by Government order
dated 30th March, 1994, which is to the
following effect:-

"8(h). A candidate who is admitted
to any speciality in a post-graduate
diploma or degree course shall be
ineligible for appearing at the subsequent
entrance examination for admission to a
different speciality until the course in
which he has been admitted is completed.
Nothing in this sub-section shall apply to
a candidate who does not join the course
to which he is admitted."

Further amendment in Clause 8(h)
was made by Government order dated 8th
July, 1996 deleting earlier Clause 8(h)
and substituting following Clause 8(h):-

"8(h). A candidate who is admitted
in any speciality in a post-graduate
diploma or degree course in Government
Medical Colleges or K.G. Medical
College, Lucknow shall be ineligible for
appearing at the subsequent entrance
examination for admission to a different
speciality until the course in which he has
been admitted is completed and he is not
declared successful but he will be eligible
if his resignation is accepted by the
Principal of the College before the date of
notification of the examination and has
refunded the full amount of salary/stipend
received by him during the said Course.
However, nothing in this sub-section shall
apply to a candidate who does not join the
course to which he is admitted."

11. The brochure issued for U.P.
Post
Graduate
Medical
Entrance
Examination-2010 lays down conditions
for admission to Post-graduate courses;
Clause 3 provides for "Eligibility for
Admission". Clause 3(iv), which has been
challenged in the writ petition, is to the
following effect:-

"3(iv) A candidate who has already
taken admission on the basis of earlier
U.P.P.G.M.E.E./
A.I.P.G.E.E.
is
not
eligible to appear in the examination until
he/she completes and passes the course
where he/she is presently admitted.
2 All] Dr. Nupur Singh V. State of U.P. and others
845
However, such a candidate shall be
eligible if-

(a) he/she has resigned from the said
course, his/her resignation has been
accepted
by
the
Principal
of
the
Medical/Dental college or the Vice
Chancellor in the case of candidates of
CSM Medical University and he/she has
refunded the full amount of salary/stipend
received by him/her during the said
course, before the date of notification of
this examination, i.e. 1.1.2010.

(b) he/she is presently pursuing P.G.
Diploma course in any subject, with the
condition that he/she will be considered
for the Postgraduate Degree course in
that subject only."

12. From the Government order
issued under Section 28(5) of the U.P.
State Universities Act, 1973, it is clear
that Clause 3(iv) of the brochure is in
accordance
with
the
aforesaid
Government order. A perusal of the
aforesaid restriction imposed by Clause
8(h) indicates that the general restriction
which has been imposed is that a
candidate who is pursuing post graduate
diploma or degree course in Government
Medical Colleges or K.G. Medical
College, Lucknow, shall be ineligible for
appearing at the subsequent entrance
examination for admission until the
course in which he has been admitted is
completed and he is not declared
successful. The said general rule is
subject to two exceptions, (a) if the
resignation of the candidate is accepted by
Principal of the College before the date of
notification of the examination and he has
refunded the full amount of salary/stipend
received by him during the said course;
and (b) he can apply for post-graduate
degree course in the subject in which he
or she is pursuing post-graduate diploma
course.

13. The petitioner in this writ
petition has come up with the prayer that
above restriction being violative of
Article 14 of the Constitution of India be
struck down and she be permitted to take
admission in any other speciality apart
from one in which she is pursuing her
diploma course on the basis of her merit
and option exercised in the subsequent
entrance examination.

14. The question for consideration is
as to whether the restriction is violative of
any rights of the petitioner of equality as
guaranteed under Article 14 of the
Constitution of India. The reasons, which
has been given by the State for imposing
the
aforesaid
condition,
have
been
explained
in
paragraph
15
of
the
supplementary counter affidavit of Dr.
K.C. Rastogi, Additional Director of
Medical Education dated 14th April,
2010.
In
paragraph
15
of
the
supplementary counter affidavit following
reasons have been given:-

"15. That, the prohibition contained
in the brochure is in consonance with the
notification dated 9.9.1990 as amended
on 30.3.1994 & 8.7.1996. The amended
notification has been brought on the basis
of the experience gained and the direction
of this Hon'ble Court and also requests
made by the students. The prohibition has
been created to curb an unfair practice of
leaving a course of one speciality midway and joining another speciality on the
basis
of
the
subsequent
Entrance
Examination. The State Govt. found that
this practice has resulted in serious
financial loss to the Govt. and also
846 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
resulted in unfairness and disadvantage
to those who could not join the course as
the candidate who secured better merit
opted to join. Such practice has also not
been found in public interest and only to
curb this practice, prohibition has been
provided in the Brochure on the basis of
the notification mentioned above. It is
also pointed out that bar is also not
absolute, it only regulates and compels
the candidates to complete the course
which he joined on the basis of the option
exercised by him. Such terms and
conditions which are regulatory in nature
cannot be termed to violative of article 14
& 21 of the Constitution of India. If
petitioner wants to improve his merit for
purpose of joining another speciality, the
opportunity
may
be
availed
after
completing the course. The Medical
Colleges are run and maintained at the
public expense. The prime object is the
public service. If this kind of migration
from one course to another course is
allowed to be resorted to appearing in
further examination, it shall highly
prejudicial to the medical eduction. If a
candidate allowed to leave the course mid
way, the seat on which he was allowed
admission on the basis of the earlier
examination shall remain vacant for
remaining period of the course as no
admission can be granted at that advance
stage of the course. The principal object
behind the prohibition is that candidate
joined
a
particular
speciality
must
complete that course. There is no
violation of the Article 14 of the
Constitution of India."

15. The State Government as per
statutory power given under Section 28(5)
of the U.P. State Universities Act, 1973 is
entitled to regulate the terms and
conditions of admission to post-graduate
medical course. The restriction, which has
been imposed, is due to valid reasons as
explained
in
paragraph
15
of
the
supplementary counter affidavit 14th
April, 2010, as quoted above.

16. Every speciality in a medical
discipline has its own importance and is
relevant for health of a person. Having
skilled persons in every discipline in
medical science is in the interest of
general public. The seats in post-graduate
diploma courses and degree courses in
medical colleges are limited. The teacher
taught ratio as per regulation of the
Medical Council of India for postgraduate courses is 1:1. For running postgraduate medical courses, the State also
provides stipend to all the students. It is in
the interest of the State that all candidates
who takes admission in diploma course
should complete the course, permitting
the students pursuing diploma courses to
leave diploma courses in midway shall
affect both State exchequer as well as
interest of the medical colleges where
they are pursuing the course and the
general interest of the public. The seats
which are vacated in midway cannot be
filled and shall remain unfilled which is
not in public interest looking to the need
and scarcity of qualified post-graduate
doctors. Leaving the seats in midway
shall also affect the rights of candidates
who could not get admission and were
next lower in merit. Thus the restriction
imposed by the State cannot be said to be
arbitrary or violative of rights guaranteed
under Article 14 of the Constitution of
India.

17. It is to be noted that there is no
complete prohibition in doing the post
graduate course in another speciality. A
candidate after completing the course can
2 All] Dr. Nupur Singh V. State of U.P. and others
847
very well compete for different speciality
and take admission. Learned counsel for
the petitioner sought to contend that two
exceptions, which have been created in
the aforesaid general restriction frustrate
the object since in case of acceptance of
resignation as well as in permitting the
degree course in the same speciality for a
diploma student, the result is the same,
i.e. leaving the diploma seat midway. The
exceptions which have been created by
the State are to give limited benefit to the
students and are in the interest of the
student. The exceptions are permitted
only in few cases where the conditions are
fulfilled and the exception does not
completely
annihilate
the
general
restrictions and may form only a small
percentage. Moreso, the petitioner has
principally come up in the writ petition
praying for quashing the restriction in
taking admission in different speciality.

18. Learned counsel for the
petitioner has laid much emphasis on the
fact
that
hostile
discrimination
in
violation of Article 14 of the Constitution
of India takes place since the students
who have passed M.B.B.S. from State
Medical
Colleges
and
have
taken
admission on the basis of All India Post
Graduate Medical Entrance Examination
in different States are not bound by such
restriction of taking admission in same
speciality on the basis of subsequent U.P.
Post-graduate
Medical
Entrance
Examination. It is relevant to note that
students pursuing the course in another
State after taking admission through All
India Post-graduate Medical Entrance
Examination are governed by different set
of rules framed by the Government of
India and the respective State where such
institutions are situate. As far as State of
U.P. is concerned, the restriction applies
to the students pursuing their courses in
the State Medical Colleges after obtaining
admission both on the basis of U.P. Post
Graduate Medical Entrance Examination
as
well
as
All
India
Entrance
Examination.

19. The Government order issued by
the State of U.P. in exercise of power
under Section 28(5) of the U.P. State
Universities Act, 1973 and the brochure
of admission issued accordingly regulate
admission to post-graduate courses in the
State Medical Colleges and the Private
Recognised Medical Colleges in the State
of U.P. These rules do not regulate
admission of the students in other States
on the basis of All India Entrance
Examination. The students, who have
taken admission on the basis of All India
Entrance Examination and have joined
other States form a different class. The
classification is founded on an intelligible
differentia and the differentia is in relation
to the object sought to be achieved. The
State of U.P. which has control over
admission to be made in the Medical
Colleges in the State of U.P. with the
object, as noted above, has put reasonable
restriction in the matter of admission. It is
also relevant to note that even in All India
Post-graduate
Medical
Entrance
Examination-2010 the eligibility criteria
as contained in Clause 4(i), is to the
following effect:-

"4. ELIGIBILITY CRITEIRA

...........

...........

(i) Some of the Universities are
having regulations that candidates who
are already pursuing the PG Course in
848 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
their University or in another University
are not eligible for admission till they
complete the course. The candidates who
are already pursuing PG Courses either
through All India Quota or State Quota
and are applying for a seat under All
India Quota may confirm the eligibility
conditions of that University in this
regard. Dte. GHS shall not be responsible
if such candidates are refused admission.
Such candidates may opt for the subject
and the college at their own risk and
cost."

20. The above clause of the
eligibility criteria of All India Entrance
Examination also recognises restriction in
admission regarding students who are
pursuing a post-graduate course. All India
eligibility criteria recognises that if in the
concerned
University
there
is
any
restriction qua the student to complete the
diploma course before admission to any
other speciality, he maynot be admitted in
different speciality. The denial on the said
ground cannot be complained. Thus even
All
India
Entrance
Examination
recognises the restriction which has been
substantially imposed by the State of U.P.

21. In the counter affidavit it has
also been mentioned that in some other
States there are also restrictions with
regard to admission in different subjects
in the post-graduate courses on the basis
of subsequent examination. In paragraph
16 of the counter affidavit reference has
been specifically made to the Post
Graduate Medical Entrance Examination2010 of Gujarat and Punjab Universities.
In Gujarat University restriction is to the
effect that a candidate who is currently
engaged in post-graduate medical studies
is not eligible before completion of the
course to admission in any speciality. The
conditions as referred, are quoted below:-

"A candidate who is currently
engaged in P.G. medical studies in
Gujarat
University
or
any
other
University or equivalent body is not
eligible. On completion of the course that
is after passing the University exam for
that course, he/she becomes eligible for
another
P.G.
medical
course.
A
candidate, who, in the past, selected and
admitted to any P.G. medical course of
this or any other University or any
equivalent body and did not complete that
course that is, if the candidate has not
cleared the University examination of that
course, is not eligible."

22. Insofar as Punjab University is
concerned, there is more stringent clause
i.e. if a candidate is admitted to the Postgraduate Medical Course and leaves
before completion of full period, he shall
be debarred for next three years from
admission to any post-graduate course.
The conditions as referred, reads as
under:-

"Important notes: If a candidate
admitted to the course, leaves before
completion of full period he/she shall be
debarred for next 3 years from applying
for admission to any PG course in
GMCH. Candidates in employment of
govt./semi
govt./autonomous
bodies/corporation must submit their
application form through their employer
or produce no objection certificate
from/through their employer on or before
the last date of receipt of application
forms."

23. Thus the conditions, which have
been imposed in the State of U.P. as
2 All] Dr. Nupur Singh V. State of U.P. and others
849
compared to the above conditions is not
that strict.

24. It is relevant to notice a recent
judgment of the Apex Court in the case of
Gulshan Prakash (Dr.) and others vs.
State of Haryana and others reported in
(2010)1 S.C.C. 477. In the said case the
State of Haryana did not provide for
reservation in post-graduate courses of
MD/MS/PG diploma and MDS. Writ
petitions were filed under Article 32 of
the Constitution of India before the Apex
Court challenging the said order. It was
contended that in the in the All India
Entrance examination reservation has
been provided for same courses, hence the
State of Haryana be also commanded to
provide
reservation.
Repelling
the
aforesaid contention, following was laid
down in paragraphs 23 and 24 of the said
judgment:-

"23.
Learned
counsel
for
the
appellants next contended that, inasmuch
as
even
in
All-India
Entrance
Examination for Post-Graduate Courses,
the Government of India itself has made a
provision for reservation for SC/ST
candidates, the State of Haryana is bound
to follow the same and issue appropriate
orders/directions providing reservation in
the Post-Graduate Courses. He further
contended that the prospectus de hors any
provision for reservation is bad and is
liable to be quashed.

24. In our view, this contention is
also liable to be rejected. It is true that
Government of India itself has made a
provision
for
reservation
of
SC/ST
categories. This was a decision by the
Government of India and it is applicable
in
respect
of
All-India
Entrance
Examination for MD/MS/PG Diploma
and MDS Courses, and reservation for
SC/ST candidates in All-India quota for
PG seats. However, the same cannot
automatically
be
applied
in
other
selections where State Governments have
power to regulate."

25. It is clear from the above
pronouncement that the condition of
admission where the State has power to
regulate has to be examined on the basis
of the regulations of the State and any
other condition for admission provided in
the
All
India
Medical
Entrance
Examination shall not be automatically
attracted.

26. The Apex Court had the
occasion to consider restrictions as
contained in Civil Services Examination
Rules, 1990 with regard to candidates
who had already been selected qua
appearance in the next examination or to
opt for other service in the case of Arti K.
Chhabra and others vs. Union of India
and others reported in A.I.R. 1994 S.C.
1506. Before the Apex Court the validity
of proviso to Rule 17 of the Civil Services
Examination Rules, 1990 was challenged
on the ground that it violates Article 14 of
the Constitution of India. The said proviso
contained certain restrictions with regard
to candidates' right to appear in the next
examination and change to other service
as compared to one in which they have
already been selected. It is useful to quote
paragraphs 7, 8 and 9 of the said
judgment whereby the Apex Court
repelled the contentions that restrictions
being violative of Article 14 of the
Constitution of India, are discriminatory
in nature. The relevant paragraphs of the
judgment read as follows:-
850 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

"7. The attack against the second
proviso to Rule 17 of the 1990 Rules is
based, as we have pointed out above, on
two grounds. The first is that the
restriction on the horizontal mobility from
one service of Group 'A' to another
service in the said Group, by itself is
unreasonable and arbitrary. Secondly,
while it permits those who are selected for
I.P.S. to move to any Service in Group 'A',
those who are selected in any Service in
Group 'A' are prevented from doing so.
Hence, there is a discrimination between
the candidates selected for I.P.S. and
those selected for any of the Group 'A'
Services.

8. We are not impressed by either of
the said contentions. As regards the first
contention, the restriction is eminently
justified since, as has been pointed out on
behalf of the respondents, all Services in
Group 'A' stand at par with each other.
Hence, there is no question of bettering
prospects or seeking an upward mobility
when a candidate wants to move from one
service in Group 'A' to another service in
that Group. Further, if those who are
appointed to any of the Group 'A' Services
which are as many as 45, are allowed the
mobility, a large number of posts would
remain unfilled at any particular point of
time resulting in a chaos in the
administration. The contention that this
will be the case even when the candidates
appear for the next examination for
upward mobility loses sight of the fact
that the posts in I.A.S., I.F.S. and I.P.S.
are limited in number compared to those
in Group 'A' services and those selected
for the I.A.S., I.F.S. and I.P.S. are few.
The dislocation on that account is thus
marginal if any. What is more, there is no
absolute restriction on a candidate
selected to any of the services in Group
'A' from moving to any other service in
the same Group. The only condition is
that if he does so, he has to resign from
that Service before he appears in the next
examination. For these reasons, we are of
the view that the restriction placed on the
said mobility cannot be said to be either
unreasonable or arbitrary.

9. As regards the discrimination
between the candidates appointed to
I.P.S. and those appointed to any of the
Group
'A'
Services,
it
must
be
remembered that from the very inception
the Services were classified into following
three categories:

Category I - I.A.S. and I.F.S.
Category II - I.P.S. and Class II Police
Service s Category III - Central Civil
Services, Class I and Class II [now Group
'A' & ' B']

According
to
the
Examination
Scheme in force prior to 1979, a
candidate who opted for I.A.S./I.F.S. was
required to appear in two additional
optional subjects of Master's Degree
standard in addition to three optional
subjects and the compulsory subjects of
General English, Essay and General
Knowledge. The candidates opting for
Central Services [Category III above]
were not required to appear in the
additional optional subjects; they were
required to appear only in three optional
subjects in addition to the compulsory
subjects. The candidates competing for
the I.P.S. were required to appear in two
optional subjects only in addition to the
compulsory subjects. Apart from the two
additional subjects, higher marks were
prescribed in the viva-voce examination
for candidates competing for I.A.S. and
I.F.S. The maximum marks prescribed for
2 All] Dr. Nupur Singh V. State of U.P. and others
851
candidates competing for I.A.S. and I.F.S.
were 400 whereas the maximum marks for
viva-voce in the case of candidates
competing for other services were only
300.
There
was
a
single
unified
examination for recruitment to different
services. In the case of candidates
allocated to the I.P.S., they were and are
allotted to particular States and they have
to spend their entire career in the State to
which they are allotted except when they
are on deputation to the Government of
India. As far as other Services are
concerned including Industrial Security
Force and Railway Protection Force,
being Central Services, the candidates
appointed to them get transferred/posted
anywhere in the country. It is, therefore,
felt necessary to give an option to those
who are selected for I.P.S. to consider the
conditions in the State to which they are
allocated, and not only to move upward
but also to any Service in Group 'A' and
have an opportunity to be a member of a
Central Service, if so desired. It is also
possible that the I.P.S. candidate may not
like the State-cadre which is allotted to
him in which case, unless he is provided
with the mobility as is done by the proviso
to the impugned Rule 17, he would remain
vegetating.
That
would
affect
the
efficiency of administration. Further, the
I.P.S. has very little in common with the
other services and they stand on different
footing. It is for this reason that he is not
only given upward mobility but also
mobility
towards
the
less favoured
services when he can opt for the Category
III service which compared to I.A.S.,
I.F.S. and I.P.S. is certainly less prized."

27. We may now consider the
judgment of this Court in the case of
Rajesh Arora (supra) which had struck
down Clause 8(e) as it existed at the
relevant time. In Rajesh Arora's case
(supra) following was laid down in
paragraph 9:-

"9.
From
a
perusal
of
the
Government notification dated October 9,
1990 which has statutory base under
Section 23(5), empowering the State
Government to regulate admission, it will
appear that it satisfied the test that equal
opportunity should be provided to all
concerned seeking admission to postgraduate medical degree and diploma
courses by enabling them to appear in the
competitive entrance examination which
may be held for the purpose. It also
provides that admission to the medical
colleges shall be made according to
merit-cum-option on the basis of the
result of such examination. But this
provision has been made in regard to
some of the candidates and those who
have
appeared
in
any
previous
examination and have already been
admitted in any speciality have been put
in a different class and have been denied
the benefit of that provision. It has been
declared that a candidate, if admitted to
any speciality in post-graduate diploma
or degree course shall not be eligible for
admission to any other speciality in postgraduate diploma or degree course. This
cuts at the root of the right of such
candidates to equal opportunity in the
matter of appearing in the entrance
examination and getting admission on the
basis of merit-cum-option. If this was the
real intention of the State Government,
then there was no use permitting the
candidate to appear in the subsequent
entrance examination. The bar should
have been clearly laid down.