W.P. Nos. 2089, 2267, 3100, 3101, 3792, 3985 and 5078 of 2009 and M.P. Nos. 1, 1, 1, 1, 1, 1, 1, 2, 2, 2, 3 and 3 of 2009. Case: Dr. J. Sathiya Vijayan and Ors. Vs The Secretary, Selection Committee, Directorate of Medical Education, The Directorate of Medical Education and The State of Tamil Nadu, represented by its Secretary to Government, Health and Family Welfare Department. High Court of Madras (India)
| Case Number | W.P. Nos. 2089, 2267, 3100, 3101, 3792, 3985 and 5078 of 2009 and M.P. Nos. 1, 1, 1, 1, 1, 1, 1, 2, 2, 2, 3 and 3 of 2009 |
| Counsel | For the Appellants: R. Muthukumaraswamy, Sr. Counsel for K. Kalyana Sundaram, Adv., S. Kasirajan, Adv., K.M. Vijayan, Sr. Counsel, Kavitha Deenadayalan, Adv. and For the Respondents: G. Sankaran, Special Government Pleader (Education) Assisted by E. Ranganayaki, Government Adv. |
| Judges | V. Ramasubramanian, J. |
| Issue | Constitution of India - Article 12, 14, 309 and 313 |
| Judgement Date | April 01, 2009 |
| Court | High Court of Madras (India) |
Order:
V. Ramasubramanian, J.
1. Admission to Post Graduate Medical Courses, without fail, has been the subject matter of litigation year after year, under one pretext or the other and the batch of cases on hand belongs to the same genre.
2. For the first time, the Government of Tamil Nadu introduced a reservation of 50% of seats in Post Graduate Medical Courses, for in-service candidates in the academic year 1999-2000. The stipulation was challenged in a batch of writ petitions, which eventually landed up in the Supreme Court. The reservation was upheld by the Supreme Court in K. Duraisamy v. State of Tamil Nadu 2001 (2) SCC 538. Therefore, the said pattern is in vogue in the State of Tamil Nadu since then.
3. However, until the last academic year {2008-2009}, several categories of employees came under the quota meant for service candidates as seen from Clauses 54.b and 55 of the Prospectus for admission to Post Graduate Diploma/Degree/MDS/5 Year M.Ch. {Neuro Surgery Courses} for the year 2008-2009. They read as follows:
54.b. 50% of seats in each branch and in each college are reserved for service candidates, in addition to those service candidates selected in the open category. In case of an odd number of vacancy, the vacant seats shall be filled up by consideration of merit among both Service and Non-Service candidates put together. The seats in MD/MS/5 year M.Ch. (Neuro Surgery)/MDS in the following specialities will be exclusively reserved for service candidates:
Non-Clinical Clinical
1) MD Pathology 1) MD Psychiatric Medicine
2) MD Physiology 2) MD Radio Diagnosis
3) MD Bio-Chemistry 3) MD Radiotherapy
4) MD Microbiology 4) MD Anaesthesia
5) MD Forensic Medicine 5) MD TB & Chest Diseases
6) MD Pharmacology 6) 5 year M.Ch. (Neuro Surgery)
7) MD SPM 7) DMRD
8) MS Anatomy 8) DMRT"
MDS
1) Community Dentistry"
55. The following categories of Medical Officers will be treated as Service Candidates for the purpose of allotment of seats.
1. Medical Officers selected by the TNPSC and appointed in Tamil Nadu Medical Services on regular basis, who have put in minimum of Three Years continuous service as on 31.3.2008. This is subject to the final verdict of the Supreme Court of India in the SLP No. 2229/2005 filed by this Government against the orders passed by the Bench of the High Court of Madras dated 23.12.2004 in W.A. No. 2091/2004 etc.
2. Medical Officers who are approved probationers and who have put in minimum of Three Years of continuous service as on 31.3.2008. This is subject to the final verdict of the Supreme Court of India in the SLP No. 2229/2005 filed by this Government against the orders passed by the Bench of the High Court of Madras dated 23.12.2004 in W.A. No. 2091/2004 etc.
3. Medical Officers serving (for three years) in:
(
-
Local Bodies in Tamil Nadu (Except Medical Officers working in Panchayat Union part time or full time as the case may be, who have to be treated as Non-Service Candidates).
(b) Government of India Institutions in Tamil Nadu.
(c) Public Sector Undertakings or Organisations under the control of Government of Tamil Nadu or Government of India in Tamil Nadu.
This is subject to the final verdict of the Supreme Court of India in the SLP No. 2229/2005 filed by this Government against the orders passed by the Bench of the High Court of Madras dated 23.12.2004 in W.A. No. 2091/2004 etc.
4. But in the Prospectus for admission to the very same Courses for the year 2009-2010, a restricted meaning was given to the expression "service candidates" under Clause 51 of the Prospectus. It will be useful to extract Clauses 54.b and 51 of the Prospectus for 2009-2010 as they correspond to Clauses 54.b and 55 of the Prospectus for 2008-2009. They are as follows:
54.b. 50% of seats in each branch are reserved for service candidates, in addition to those service candidates selected in the open category. In case of an odd number of vacancy that vacant seat shall be filled up by consideration of merit among Service candidates only."
51. The following categories of Medical Officers will be treated as Service Candidates for the purpose of allotment of seats.
1. Medical Officers selected by the TNPSC and appointed in Tamil Nadu Medical Services on regular basis, who have put in minimum of two years of continuous service as on 31.3.2009.
2. Medical Officers serving (for two years) in Local Bodies of Tamil Nadu.
5. Aggrieved by such a restriction imposed upon the expression "service candidates", a few candidates working as Medical Officers in Institutions such as Ordnance Factory, Tiruchirapalli, Employees' State Insurance Corporation Hospitals, Central Government Health Scheme Hospitals, Railway Hospital and Tuticorin Port Trust Hospital, have come up with the writ petitions W.P.Nos.2089, 2267, 3100, 3101 and 3792 of 2009, seeking either a direction to treat the Medical Officers serving in the hospitals of the Government of India, Public Sector Undertakings etc., as service candidates entitled to compete under the 50% quota or a declaration that the restriction of the benefit only to those serving in the hospitals of the Government of Tamil Nadu or local bodies as ultra vires Article 14 of the Constitution. The petitioners in these five writ petitions are on common ground.
6. The petitioner in W.P. No. 3985 of 2009 is a candidate to whom the benefit of the quota applies. Therefore, he is not aggrieved by the restriction of the benefit only to the employees serving in the hospitals of the Government of Tamil Nadu and the local bodies. But he is aggrieved by the stipulation contained in the Prospectus for the award of additional marks for rural service.
7. In contrast to the other writ petitions, the petitioner in W.P. No. 5078 of 2009 does not claim to be employed in any hospital of the Central Government or State Government or any Public Sector Undertaking. Therefore he has not challenged either the prescription of 50% quota for in-service candidates or the restriction now imposed in the current academic year. However, he is aggrieved by the award of marks for services rendered in rural areas and hill areas under the caption "Experience" in the Prospectus.
8. Thus, in effect, we have on hand, 3 sets of writ petitions viz., (i) a batch of 5 writ petitions in which, the petitioners working in the hospitals of the Central Government and Public Sector Undertakings, seek the continuation of the benefit of the quota reserved for in-service candidates that they have enjoyed till last year (ii) one writ petition by an in-service candidate challenging the award of marks for service in rural areas and (iii) one writ petition by an unemployed (or perhaps privately employed) candidate challenging the award of marks for service in rural areas and hill areas.
9. Since the counselling for in-service candidates is slated to begin from 1.4.2009, all the writ petitions were taken up for disposal, by the consent of parties and I have heard Mr. K.M.Vijayan and Mr. R. Muthukumaraswamy, learned Senior Counsel, and Ms. Kavitha Deenadayalan, learned Counsel appearing for the petitioners and Mr. G. Sankaran, learned Special Government Pleader (Education).
10. As stated earlier, the vires of the very quota reserved for in-service candidates, for admission to Post Graduate Medical Courses, has already been upheld by the Apex Court in K.Duraisamy's case. The ratio laid down in K. Duraisamy's case, was encapsulised by the Supreme Court in paragraph-19 of its decision in State of M.P. and Ors. v. Gopal D. Tirthani and Ors. 2003 (7) SCC 83 as follows:
(i) the Government possesses the right and authority to decide from what sources the admissions in educational institutions or to particular disciplines and courses therein have to be made and that too in what proportion;
(ii) that such allocation of seats in the form of fixation of quota is not to be equated with the usual form of communal reservation and, therefore, the constitutional and legal considerations relevant to communal reservations are out of place while deciding the case based on such allocation of seats;
(iii) that such exclusive allocation and stipulation of a definite quota or number of seats between in-service and non-service or private candidates provided two separate channels of entry and a candidate belonging to one exclusive quota cannot claim to steal a march into another exclusive quota by advancing a claim based on merit. Inter se merit of the candidates in each quota shall be determined based on the merit performance of the candidates belonging to...
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