BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13/09/2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)NO.4249 of 2008
and
M.P.(MD)NOS.1 AND 2 OF 2008
Dr.P.Thangam Jesudian .. Petitioner
Vs.
1.The State of Tamil Nadu
rep. By its Secretary to Government,
Health Department,
Chennai-9.
2.The Director of Medical Education,
Directorate of Medical Education,
162, E.V.R. Periyar Salai,
Kilpauk, Chennai-10.
3.The Secretary,
Selection Committee for Medical Education,
162, E.V.R.Periyar Salai,
Kilpauk, Chennai-10.
4.Medical Council of India,
Aiwar-E Gabib Marg,
Kotla Road,
Opp. To Madasundari College for Women,
New Delhi. .. Respondents
This writ petition has been preferred under Article 226 of the
Constitution of India praying for the issue of a writ of mandamus to direct the
respondents to select the petitioner under service quota to the selection of
Post Graduate Degree/Diploma/ M.Ch.(Neuro Surgery) Course for the year 2008-2009
to which he would be entitled to as per the petitioner mark and rank in the
entrance examination and to grant admission accordingly.
!For Petitioner ... Mr.V.Panneerselvam
^For Respondents ... Mr.S.C.Herold Singh, GA for RR1 to 3
Mr.P.Krishnasamy, CGSC for R-4
- - - -
:ORDER
In this writ petition, the petitioner seeks for a direction to select him
under service quota for undergoing Post Graduate Degree/Diploma/M.Ch (Neuro
Surgery) course for the year 2008-2009 after ascertaining the marks obtained by
him in the entrance examination and grant him admission.
2.When the matter came up on 30.04.2008, this court directed one seat to
be kept vacant. Thereafter on 03.04.2009, this court held that since for that
academic year, number of seats are vacant, there is no necessity to reserve any
seat and hence the earlier order should be revoked.
3.It is the case of the petitioner that he is fully qualified in Bachelor
of Dental Surgery. He had also registered his name with the Tamil Nadu Dental
Council. The petitioner had joined as Dental Officer in the Ex-servicemen
Contributory Health Scheme (for short ECHS) in one of the polyclinic at
Tirunelveli after advertisement in the newspaper and attending an interview. He
has been discharging his duties as a Dentist. He wanted to do Post Graduate
Course either in M.D. or M.S. Hence he applied under the service quota for
selection for the year 2008-2009. Since respondents had not considered his
application, he also sent a detailed representation. Since reply was not
forthcoming, he has filed the present writ petition.
4.Under paragraph 55(3) of prospectus issued by the selection committee
for medical education for selection for the year 2008-2009, for the purpose of
service quota, it was defined as follows:
“55(3).Medical officers serving (for three years) in :-
(a)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 organizations under the control of
Government to Tamil Nadu or Government of India in Tamil Nadu.”
5.According to the petitioner, he is coming under paragraph 55(3)(c).
Therefore, he should be treated as a service candidate. A copy of the agreement,
dated 15.4.2004 executed at the time of appointment with the ECHS shows that he
was serving only in contractual capacity as a Dental Officer. The initial period
of contract was only 11 months from the date of joining in the polyclinic. It is
liable to be renewed upto maximum period of two years. Further, it is also shown
in clause 9 that the agreement is liable to be terminated by giving one month
notice or by offering one month salary. In petitioner’s case, a further term of
contract was executed on 17.2.2006 in which the term was slightly altered,
wherein for renewal, no period was specified. But, on the question of
termination, it could be done by one month notice. Further, contract, dated
18.01.2007 was also produced in the typed set with similar terms.
6.The contention of the petitioner that he also belongs to public sector
health institution under the control of the Government of India and therefore,
he is eligible to be considered under the service quota cannot be entertained.
7.On behalf of respondents 1 to 3, a counter affidavit, dated 25.3.2009
has been filed. In the counter affidavit, it was stated that the petitioner was
working on contractual term with an agreement for 12 months and he is not in any
regular service. Therefore, he cannot be considered as a service candidate. It
was also claimed that assuming that he was eligible, he had not rendered three
years of service which condition has been upheld by this court as not arbitrary.
8.The term “service candidate” found in the prospectus has definite
meaning and purpose. The term “service” came to be defined in many decisions of
the Supreme Court. The Supreme Court in Lucknow Development Authority Vs.
M.K.Gupta reported in 1994 (1) SCC 243 observed that the term has variety of
meanings. It may mean any benefit or any act resulting in promoting interest or
happiness. It may be contractual, professional, public, domestic, legal,
statutory etc. The concept of service thus is very wide. How it should be
understood and what it means depends on the context in which it has been used in
an enactment.
9.In order to avail the benefit of quota meant for service candidate, a
person must be in regularly constituted service and cannot hold any contractual
post, which is liable to be terminated at the will of parties. A perusal of the
entire prospectus will show that a candidate selected under the service quota
will have to be in the Government service till the end of his service so as to
utilize his knowledge obtained by the concession shown by the State. In sending
a candidate under service quota for P.G. Super speciality course, the State
incurs heavy liability not only providing him training, but also expenditure
involving the candidate’s three years’ absence in undergoing the course. In case
of contractual appointee, his obligation can never be enforced as his contract
can be terminated at the will of the parties and there is no obligation for
retaining such a candidate. Therefore, any person claiming to be coming under
the service category, must belong to the constituted service either under the
Government or under any public sector. It must be a career post and not a tenure
post. Therefore, denial of consideration of the petitioner’s request was fully
justified and no exception can be taken to the stand of the respondents.
10.In the light of the above, the writ petition will stand dismissed.
However, there will be no order as to costs. Consequently, connected
miscellaneous petitions stand closed.
vvk
To
1.The State of Tamil Nadu
rep. By its Secretary to Government,
Health Department,
Chennai-9.
2.The Director of Medical Education,
Directorate of Medical Education,
162, E.V.R. Periyar Salai,
Kilpauk, Chennai-10.
3.The Secretary,
Selection Committee for Medical Education,
162, E.V.R.Periyar Salai,
Kilpauk, Chennai-10.
4.Medical Council of India,
Aiwar-E Gabib Marg,
Kotla Road,
Opp. To Madasundari College for Women,
New Delhi.