REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.9717 OF 2011

(Arising out of SLP(C) No.15974 of 2011)

PARMENDER KUMAR & ORS. …   Appellants   Vs.

STATE OF HARYANA & ORS. …   Respondents WITH

C.A.NO.9718/2011 @ SLP(C)NO.16075/2011, C.A.NO.9719/2011 @ SLP(C)NO.16346/2011, C.A.NO.9720/2011 @ SLP(C)NO.16228/2011, C.A.NO.9721/2011 @ SLP(C)NO.16229/2011 & C.A.NO.9722/2011 @ SLP(C)NO.16230/2011.

J U D G M E N T

ALTAMAS KABIR, J.

1. Six  Special  Leave  Petitions,  being  

SLP(C)No.15974/2011, SLP(C)No.16075/2011, SLP(C)No.  

16346/2011,  SLP(C)Nos.16228-30/2011,  have  been

taken  up  together  for  hearing,  as  they  involve  

common questions of fact and law relating to the  

eligibility of the Special Leave Petitioners, who  

are members of the Haryana Civil Medical Services,  

to  be  admitted  to  the  Post-Graduate  Courses  

conducted  by  the  Pt.  B.D.  Sharma  University  of  

Health  Sciences,  Rohtak,  Respondent  No.2  herein,  

against the reserved quota for such candidates.  

2. Leave granted.

3. Before proceeding further, I.A.Nos.4 and 5 of  

2011, filed by Dr. Rajeev Kumar and 10 others in  

SLP(C)No.15974 of 2011, for impleadment in these  

proceedings as respondents, are allowed.

4. For the sake of convenience, we shall refer to  

the facts from SLP(C)No.15974/2011, filed by Dr.  

Parmender  Kumar  and  others.  As  indicated  

hereinabove, the Appellants in all these appeals  

are candidates for admission to the Post-Graduate  

Courses conducted by the Respondent No.2 University

against the Haryana Civil Medical Services (HCMS)  

reserved quota.  As provided for by the prospectus  

dated  6th January,  2011,  a  common  entrance  

examination was held for candidates who applied for  

admissions  against  seats  reserved  for  the  HCMS  

quota,  as  also  seats  under  open  merit  category.  

The prospectus sets out the total number of seats  

in each course and the seats earmarked for the HCMS  

reserved  category  and  also  in  respect  of  open  

merit.   According  to  the  prospectus,  seats  

available  for  the  Post-Graduate  Course  in  the  

different disciplines indicate a total number of  

145  seats  available,  of  which  73  seats  were  

reserved for the All India quota, 29 seats were  

reserved for the HCMS reserved quota and 43 seats  

were reserved for the open merit category.  As per  

the  prospectus,  the  last  date  of  receipt  of  

application  was  24th January, 2011 within 5 p.m.  

The  common  entrance  examination  was  held  as  per  

schedule  on  2nd March,  2011  and  results  were  

declared  on  3rd March,  2011.   Counselling  was

scheduled  for  6th April,  2011  and  the  academic  

session was due to commence on 10th May, 2011.   

5. The  eligibility  criteria  laid  down  in  the  

prospectus for candidates appearing in the entrance  

examination in respect of the HCMS reserved quota  

was included in Clause 5 of the prospectus, which  

reads as follows :

“5. HCMS  doctors  sponsored  by  the  State  Govt. will be eligible to appear in the  entrance examination against the reserved  seats  for  this  category,  provided  they  submit  the  application  through  their  employer or submit their applications for  getting  NOCs  to  the  department/State  Government  well  in  time  and  the  Department/State  Govt.  will  ensure  that  the NOCs where ever eligible, are issued  before  the  date  of  1st Counselling  i.e.  06.04.2011.”   

6. What  is  of  importance  is  the  method  of  

selection and admission which was made a part of  

the prospectus, wherein, in Clause 6 relating to  

determination of merit, in Sub-Clause (iii), it was  

indicated as follows :           

“6.(iii) The conditions for NOCs fixed by  the  Govt.  of  Haryana  vide  letter  No.2/123/05/I-HB-I  dated  5.12.2008  for  HCMS doctors who want to join PG-courses  are given at Annexure-D.  (However, latest  Govt.  instructions  issued  from  time  to  time will be followed).”

7. For,  as  per  the  aforesaid  Sub-Clause,  HCMS  

doctors who wanted to join the PG-courses against  

the HCMS reserved quota, required NOC in terms of  

Government  of  Haryana  instructions  dated  5th  

December, 2008.  As per the said instructions, one  

of  the  eligibility  conditions  was  contained  in  

Clause 3, which is extracted hereinbelow :  

“3. The basic condition for eligibility is  three  years  regular  service  with  successful completion of probation period  out  of  which  two  years  service  is  essential in rural areas for both reserved  and  open  seats  in  the  case  of  HCMS  doctors.  However, the condition of rural  service will not be applicable in the case  of a member of the HMES.”

8. The Appellants were allowed to participate in  

the selection process on the basis of the above  

criterion and as per the cases made out in the  

several appeals, their names were published in the

merit list dated 3rd March, 2011.  From the said  

list it will appear that out of the total number of  

38  candidates  in  the  HCMS  quota  in  the  

M.D./M.S./P.G. Diploma course and 3 candidates in  

the MDs course, all the Appellants in the various  

appeals  stood  admitted  along  with  similar  

candidates.    

9. However, on 31st March, 2011, the Government of  

Haryana issued an instruction, which was circulated  

on its website on 5th April, 2011, that changed the  

eligibility conditions and applied the same to the  

process of admission which had already been set in  

motion on the basis of the Government instructions  

dated 5th December, 2008, and that too just one day  

before  the  date  of  counselling,  i.e.,  6th April,  

2011.  The  amended  provision  is  extracted  

hereinbelow :

“MBBS doctors will be eligible for doing  Post-Graduate Course, both degree as well  as Diploma after completion of 5 years of  regular  satisfactory  service  including  2  years of probation, out of which 3 years

service should be in one of the District  Hospital or a Sub-Divisional Hospital and  2 years in rural area institutions.  Only  the persons fulfilling this condition will  be  eligible  for  sponsorship  against  reserved  seat  in  PGIMS  Rohtak  or  other  Government  institution  and  against  the  open seats in the Government Colleges of  Haryana or similar Government institutions  anywhere else in the country.”    

10. It  is  the  changed  conditions  relating  to  

admission  in  the  Post-Graduate  Courses  which  

resulted in the filing of CWP No.6168 of 2011, by  

Dr.  Parmender  Kumar  and  others  and  other  writ  

petitions were filed by the other Appellants in the  

Punjab and Haryana High Court.  Upon consideration  

of the original conditions relating to eligibility  

for admission in the Post-Graduate Course and the  

changes  effected  by  the  Government  instruction  

dated 31st March, 2011, the learned Single Judge of  

the High Court by order dated 6th April, 2011, while  

listing  the  matter  on  13th May,  2011,  passed  an  

interim order to the effect that in the meantime  

the Appellants would be permitted to take part in  

the  counselling  as  against  the  HCMS  quota

candidates,  subject  to  their  own  risk  and  

responsibility.  It  was  made  clear  that  the  said  

order  would  not  confer  any  equitable  right  in  

favour of the Appellants.  It was further directed  

that  the  result  of  the  counselling  of  the  

Appellants should be kept in a sealed cover and  

would  be  subject  to  the  outcome  of  the  writ  

petition.   

11. Aggrieved by the interim order passed by the  

learned  Single  Judge,  Dr.  Parmender  Kumar  and  

others filed Letters Patent Appeal Nos.983 and 995  

of 2011, before the Division Bench of the Punjab  

and Haryana High Court.  The appeals were disposed  

of by the Division Bench by its order dated 2nd  

June,  2011,  upholding  the  order  of  the  learned  

Single  Judge  rejecting  the  challenge  to  the  new  

policy relating to grant of NOC, on the ground that  

it was evident that the State had every right to  

prescribe a policy for the grant of NOC, especially  

when it was dealing with the cases of sponsorship

of in-service candidates for higher studies.  The  

logic  behind  the  same  is  that  the  State  was  

committed  to  bear  the  expenses  for  the  selected  

HCMS candidates, as such incumbents were entitled  

to  full  pay  and  the  period  spent  by  them  in  

pursuing these courses was to be treated as having  

been spent on duty. The Division Bench also noted  

that  the  underlying  principle  in  accepting  the  

prospectus as correct is that the State does not  

indulge in nepotism, nor has any allegation of mala  

fide being made, nor are they even visible.  The  

Division Bench observed that the Appellants had not  

been excluded from the zone of consideration, but  

they  had  been  denied  consideration  in  HCMS  

category.  The Division Bench also took note of the  

fact that in the prospectus it had been made clear  

that NOC was to be issued by the State as per its  

policy applicable from time to time and as a result  

even  if  the  Appellants  passed  the  test  for  

admission to the Post-Graduate Courses, no vested  

right accrued to them to either get the NOC from

the State of Haryana or to get full salary during  

the period of Post-Graduate studies.  The Division  

Bench distinguished the decision of this Court in  

State of Punjab & Anr. Vs. Dr. Viney Kumar Khullar  

&  Ors. [(2010)  13  SCC  481],  by  observing  that  

provisional NOC had already been issued before the  

policy was revised, which was the distinguishing  

feature of the judgment in its applicability to the  

present case.

12. Appearing for the Appellants, Mr. Altaf Ahmad,  

learned Senior Advocate, as also Mr. K.K. Tyagi,  

learned Advocate, questioned the decision of the  

learned Single Judge, as well as the Division Bench  

of  the  High  Court,  on  the  ground  that  once  a  

criterion had been laid down in the prospectus, the  

Respondents concerned had no authority to alter the  

same once the process under the said prospectus had  

already commenced and a select list of candidates  

had also been published. Change of such conditions,  

one day prior to counselling as to the discipline

to  be  pursued,  was  to  the  prejudice  of  the  

candidates who had been selected, as they had been  

selected on the basis of the unamended prospectus.  

Mr. Ahmad submitted that one could possibly have  

accepted the change in the criterion for admission,  

if it had been made before the prospectus was acted  

upon, but once the prospectus was acted upon, the  

entire process of admission to the Post-Graduate or  

Diploma  Courses  would  be  governed  by  the  said  

prospectus and any change and/or alteration of the  

conditions  of  the  prospectus  thereafter,  would  

seriously prejudice the candidates who had already  

been selected.   

13. In  this  regard,  reliance  was  placed  on  the  

decision of this Court in Dr. Viney Kumar Khullar’s  

case (supra), wherein, while dealing with almost a  

similar case altering the terms and conditions for  

selection, this Court held that besides the earlier  

circulars,  the  Amendment  Circular  ought  to  have  

been mentioned in the prospectus.  It was observed

that nothing prevented the Government from stating  

that the NOC should be subject to the conditions  

mentioned in the Circular dated 13th May, 1996, as  

amended by Circular dated 30th July, 2007, which was  

issued after the 2007 admissions and was sought to  

be made applicable for the first time in respect of  

2008 admissions. Consequently, the candidates for  

the 2008 admissions would have no knowledge about  

the Amendment Circular dated 30th July, 2007, unless  

it was mentioned in the prospectus.  This Court  

further held that the candidates would have  bona  

fide proceeded on the basis of eligibility for the  

NOC, in terms of the Government Circular dated 13th  

May,  1996.   Learned  counsel  submitted  that  a  

similar view had been taken by this Court in Vinay  

Rampal (Dr.) Vs.  State of J & K & Ors. [(1984) 1  

SCC 160], wherein this Court had held that since no  

reference had been made in the advertisement about  

the subsequent Government Order dated 23rd March,  

1979,  it  was  the  requirement  set  out  in  the  

advertisement which should have provided the basis

for selection and eligibility for admission of the  

petitioner therein.   

14. Mr. Altaf Ahmad pointed out that in yet another  

case,  namely,  Rajiv  Kapoor  &  Ors. Vs.  State  of  

Haryana & Ors. [(2000) 9 SCC 115], this Court had  

observed that the mess that had occurred leading to  

the litigation seemed to be more on account of the  

inept drafting and publication of the prospectus by  

the University and not properly carrying out the  

binding orders of the Government and of too many  

orders passed from time to time, being allowed to  

stand  piecemeal  independently.   In  fact,  it  was  

also observed that the Government would do well in  

future  to  publish  at  the  beginning  of  every  

academic year, even before inviting applications, a  

compendium  of  the  entire  scheme  and  basis  for  

selection carrying out amendments up to date and  

the prospectus also, specifically adopting them as  

part of the prospectus, to avoid confusion in the  

matter of selection, every year.  

15. Mr. Ahmad submitted that since the subsequent  

alteration of the criterion for admission to the  

Post-Graduate and Diploma Courses in the various  

disciplines had not been included in the prospectus  

for admissions to the current year, no reliance can  

be placed on the same and the submissions made on  

that behalf are liable to be rejected.   

16. Mr.  P.S.  Patwalia,  learned  Senior  Advocate,  

appearing for the added respondent Nos.2 to 11, on  

the  other  hand,  submitted  that  the  object  of  

directing  NOC  to  be  obtained  by  the  candidate  

before he could be allowed to join a new session  

was  that  the  choice  had  to  be  made  extremely  

carefully  before  such  candidates  would  get  full  

salary for the period during which they were to  

pursue Post-Graduate studies and they would also be  

deemed to be in service during the entire period.  

Mr. Patwalia submitted that prior to the amendment  

in the prospectus, Clause 3 thereof provided that  

the  basic  conditions  for  eligibility  would  be  3

years’ regular service, with successful completion  

of probation period, out of which 2 years’ service  

was essential in the rural areas.  An exception was  

made in the case of a candidate who was a member of  

HCMS.   The  said  criteria  was  altered  by  the  

Government  Instruction  dated  5th December,  2008,  

whereby it was indicated that MBBS members would be  

eligible for doing the Post-Graduate and Diploma  

Courses  after  completion  of  5  years  of  regular  

service in place of 3 years, as stipulated earlier,  

including  2  years  of  probation,  out  of  which  3  

years  of  service  would  have  to  be  one  of  the  

District Hospitals or the Sub-Divisional Hospital  

and  2  years  in  a  rural  area  institution.   Mr.  

Patwalia submitted that the said change was not a  

change in regard to the criterion of eligibility  

for admission, but it was a change of conditions of  

service as the Government always has the power to  

make such changes.  In this regard, reliance has  

been placed by Mr. Patwalia on two decisions of  

this Court in i) Union of Public Service Commission

Vs.  Gaurav Dwivedi & Ors. [(1999) 5 SCC 180] and  

(ii)  State  of  Orissa  &  Anr. Vs.  Mamata  Mohanty  

[(2011) 3 SCC 436], in which it was emphasized that  

the  necessity  of  possession  of  prescribed  

qualification  by  teachers,  was  extremely  crucial  

for an educational institution, since excellence of  

instruction provided by an educational institution  

mainly depends directly on excellence of teaching  

staff.  Hence, unless teachers themselves possess a  

good academic record, the standard of education can  

neither be maintained nor enhanced.  

17. Mr. Patwalia also referred to the decision of  

this Court in Rajiv Kapoor’s case (supra), in which  

the question of the right of in-service candidates  

to be admitted from the reserved category of Post-

Graduate Courses was under consideration.  It was  

held that in regard to the method and procedure to  

be  followed  in  selection  from  amongst  HCMS  

candidates,  the  Government  Orders  providing  

procedure  other  than  those  contained  in  the

prospectus were quite valid, since it had power to  

issue  such  orders  and  the  prospectus  could  not  

prevail in exclusion of the Government Orders.  The  

learned  Judges  observed  that  both  should  be  so  

construed that  inter se merits of the in-service  

candidates  were  assessed  on  the  basis  of  their  

credentials  and  performance  in  service.   It  was  

categorically  held  that  even  if  the  latest  

Government Order was issued after declaration of  

results of the entrance examination, the earlier  

Order would still be required to be complied with.  

18. Mr.  Patwalia  submitted  that  in  view  of  the  

aforesaid decision, the appeals were liable to be  

dismissed.

19. On behalf of the State of Haryana, Mr. Vikas  

Singh, learned Senior Advocate, pointed out that  

the NOCs, which were given by the Government on 4th  

April, 2011, had been given to the candidates from  

the reserved HCMS category for 5 years, while NOC  

was given for 3 years to the candidates from the

open  category.  As  far  as  the  Appellants  are  

concerned,  they  were  given  NOCs  for  the  open  

category  and  not  for  the  reserved  category  and,  

hence,  their  claim  for  being  considered  for  

admission in the reserved HCMS category was without  

any basis and was liable to be rejected.   

20. From the facts as disclosed, the only question  

which  emerges  for  decision  in  these  appeals  is  

whether the State Government had any jurisdiction  

and/or authority to alter the conditions relating  

to  admission  in  the  Post-Graduate  or  Diploma  

Courses in the different disciplines in medicine  

which had earlier been indicated in the prospectus,  

once the examination for such admission had been  

conducted and the results had been declared and a  

select list had also been prepared on the basis  

thereof.   In  other  words,  once  the  process  of  

selection had started on the basis of the terms and  

conditions  included  in  the  prospectus,  was  it  

within the competence of the State Government to

effect  changes  in  the  criterion  relating  to  

eligibility for admission, when not only had the  

process in terms of the prospectus been started,  

but also when counselling was to be held on the  

very next day, which had the effect of eliminating  

many of the candidates from getting an opportunity  

of pursuing the Post-Graduate or Diploma Courses in  

the reserved HCMS category.   

21. Although, Mr. Patwalia had placed a good deal  

of reliance on the decision of this Court in Rajiv  

Kapoor’s  case  (supra),  wherein,  the  facts  were  

almost similar to the facts of this case, there is  

a singular distinction between the two.  It has, no  

doubt, been held by this Court in  Rajiv Kapoor’s  

case (supra), that the High Court fell into serious  

error in sustaining the claim of the petitioners  

before the High Court that selection and admissions  

for the course in question had to be only in terms  

of the stipulations contained in Chapter V of the  

prospectus issued by the University. It was further

held  that  such  an  error  had  been  committed  by  

assuming that the Government had no authority to  

issue any directions laying down any criteria other  

than the one contained in the prospectus and that  

the  marks  obtained  in  the  written  entrance  

examination alone constituted proper assessment of  

the merit performance of the candidates applying  

for  selection  and  admission.   This  Court  also  

observed that the High Court in allowing the writ  

petitions  had  purported  to  follow  an  earlier  

judgment of the Full Bench of the same High Court  

reported  in  Amardeep  Singh  Sahota Vs.  State  of  

Punjab [(1993) 4 SLR 673 (FB)], which, in fact, did  

not  doubt  the  competency  or  authority  of  the  

Government  to  stipulate  procedure  for  admission  

relating  to  courses  in  professional  colleges,  

particularly, in respect of reserved category of  

seats.  This Court also observed that ultimately  

the Full Bench had directed in the case decided by  

it  that  selections  for  admission  should  be  

finalised in the light of the criteria specified in

the  Government  Orders  already  in  force  and  the  

prospectus,  after  ignoring  the  offending  

notification introducing a change at a later stage.  

22. If the aforesaid decision of this Court is to  

be relied upon, it, in fact, favours the case of  

the  Appellants,  since,  while  observing  that  

selections  or  admissions  for  the  Courses  in  

question will have to be effected only in terms of  

the stipulation contained in the prospectus issued  

by  the  University,  the  orders  issued  by  the  

Government from time to time would also have to be  

taken  into  consideration.   An  exception  was,  

however, made by this Court in relation to orders  

which came to be issued after the declaration of  

results of the written entrance examination.  In  

that context, it was observed as follows :

“…………The  further  error  seems  to  be  in  omitting  to  notice  the  fact  that  the  orders dated 21-5-1997, which came to be  issued after the declaration of results of  written  entrance  examination,  even  if  eschewed  from  consideration  the  orders  dated  20-3-1996  and  21-2-1997  passed  in  continuation of the orders of the earlier

years, continued to hold the field, since  the  orders  dated  21-5-1997  were  only  in  continuation thereof.”   

23. As has also been pointed out hereinbefore, this  

Court took notice of the fact that the Full Bench,  

on  whose  decision  the  High  Court  had  relied,  

ultimately  directed  that  the  selections  for  

admission should be finalised in the light of the  

criteria specified in the Government Orders already  

in force and the prospectus, “after ignoring the  offending notification introducing a change at a  later stage.”   In fact, this is what has been  contended on behalf of the Appellants that once the  

process of selection of candidates for admission to  

the  Post-Graduate  and  Diploma  Courses  had  been  

commenced on the basis of the prospectus, no change  

could, thereafter, be effected by Government Orders  

to  alter  the  provisions  contained  in  the  

prospectus.  If such Government Orders were already  

in force when the prospectus was published, they  

would  certainly  have  a  bearing  on  the  admission

process, but once the results had been declared and  

a select list had been prepared, it was not open to  

the  State  Government  to  alter  the  terms  and  

conditions  just  a  day  before  counselling  was  to  

begin,  so  as  to  deny  the  candidates,  who  had  

already been selected, an opportunity of admission  

in the aforesaid courses.  It is no doubt true that  

the benefits of admission in the reserved category  

are many, but the same is the result of the policy  

adopted  by  the  State  Government  to  provide  for  

candidates from the reserved category and since the  

Appellants had been selected on the basis of merit,  

in  keeping  with  the  results  of  the  written  

examination, the submission made by Mr. Patwalia  

that such admissions in the reserved category will  

have to be made keeping in mind the necessity of  

upholding  the  standard  of  education  in  the  

institution, as was observed in  Mamata Mohanty’s  

case (supra), is not applicable in the facts of  

this  case.   The  Appellants  have  shown  their  

competence by being selected on the basis of their

results in the written examination.  The submission  

made by Mr. Vikas Singh for the State, that the  

NOCs had been given to the Appellants from the open  

category, also does not appeal to us, since the  

Appellants  were  candidates  in  respect  of  the  

reserved category of the HCMS.

24. We, accordingly, have no hesitation in allowing  

the  appeals  and  setting  aside  the  judgment  and  

order  of  the  Division  Bench  of  the  Punjab  and  

Haryana  High  Court.   However,  we  appear  to  be  

facing the same problem, as was faced by this Court  

in  Dr.  Vinay  Rampal’s  case  (supra).   The  

counselling  process  in  these  appeals  was  to  be  

conducted  on  6th April,  2011  and  the  academic  

session was to commence on 10th May, 2011.  In other  

words, the Appellants have already lost about six  

months of the courses in question.  As was observed  

in  Dr. Vinay Rampal’s case (supra), the sands of  

time had run out which is inevitable in judicial  

process.  Following  the  same  reasoning,  as  was

adopted in the aforesaid case, we direct that the  

Appellants shall be admitted in the Post-Graduate  

or  Diploma  Courses,  for  which  they  have  been  

selected,  for  the  new  academic  year  without  any  

further test or selection.   

25. The Appeals are disposed of accordingly.  There  

will be no order as to costs.       

………………………………………………………J.    (ALTAMAS KABIR)

………………………………………………………J.                     (CYRIAC JOSEPH)

………………………………………………………J.                             (SURINDER SINGH NIJJAR) New Delhi Dated: 14.11.2011