IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27/04/2004 C O R A M THE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLA WRIT PETITION No.2151 of 2004 and W.P.Nos., 2152, 2161, 2170 TO 2174, 2175 TO 2179, 2376, 2407, 2457, 2551, 2568, 2581, 2704, 2796, 2846, 2847, 2852, 2885, 2893, 2929, 2968, 3014, 3289, 3567, 3571, 3627, 3653, 3675 AND 3676 OF 2004 and W.P.M.P.NOS.2427, 2428, 2430, 2431, 2433, 2434, 2436, 2437, 2439, 2440, 2777, 2949, 3379, 3476, 3835, 4194 AND 4343 OF 2004 W.P.NO.2151 OF 2004: 1. Dr.D.Narmadha 2. Dr.N.Uma 3. Dr.A.Mythily 4. Dr.A.R.Akilandeswari 5. Dr.V.Uma Maheswari 6. Dr.B.Malathi 7. Dr.V.Sharmila Devi 8. Dr.V.Jayanthi 9. Dr.K.Vanitha 10.Dr.C.Chandrakala 11.Dr.L.Lakshmi Prabha 12.Dr.U.Rasheedha 13.Dr.M.Rajni 14.Dr.P.Sumathi 15.Dr.R.Geetha 16.Dr.M.S.P.Uma Maheswari 17.Dr.K.Usha Krishnan 18.Dr.C.Umarani 19.Dr.D.Selvi 20.Dr.K.Sasi Rekha 21.Dr.R.Lalitha 22.Dr.V.Kanimozhi 23.Dr.G.Aruna 24.Dr.B.Suhasini 25.Dr.S.Kalpana 26.Dr.Sujatha Andrew 27.Dr.T.Latha Jagadeesan 28.Dr.S.Hemalatha 29.Dr.B.Valthuruchi 30.Dr.G.Thulasi Lakshmi 31.Dr.K.Jayanthi 32.Dr.S.Premalatha 33.Dr.V.Chitra Devi 34.Dr.T.Shanmugapriya 35.Dr.K.Kalyani 36.Dr.J.Priya 37.Dr.T.A.Aruna Devi 38.Dr.S.Shanmugavalli 39.Dr.V.Arthi 40.Dr.R.Muamaheswari .. Petitioners -Vs- 1. State of Tamilnadu, rep. by its Secretary to Government, Higher Education Department, St.George Fort, Chennai-600 009. 2. Director of Medical Education, Directorate of Medical Education, Kilpauk, Chennai-600 010. 3. Medical Council of India, rep. by its Secretary, AIWAN-E-Ghaliv Marg, Kotla Road, New Delhi-110 002. .. Respondents
!For Petitioners … Mr.R.Krishnamoorthi
for Mr.V.Ayyadurai, SC in
W.P.Nos.2968, 3289, 3014, 3571,
3627, 3653, 3675, 3676, 2151,
and 2152 of 2004
Mr.Ilanthiraiyan for
M/s.Sai, Bharathi & Ilan
In W.P.No.2929 of 2004
Mr.N.Ravishankar
Vallatharasu in
W.P.No.2551 of 2004
Mr.U.M.Ravichandran in
W.P.No.2893, 2568, 2885, 2581 and 2161 of 2004
Mr.N.Paul Vasanthakumar
in W.P.No.2704 of 2004
Mr.A.Thiruvadi Kumar
in W.P.No.2796 and 2376 of 2004
Mr.M.Muthappan
in W.P.No.2852 of 2004
Mr.R.Balakrishnan
in W.P.No.2457 of 2004
Mr.A.Arul Sagai
in W.P.Nos.2846, 2847, 2407, 2170 to 2174, 2176 to 2179
of 2004
Mr.S.T.Raja
in W.P.No.3567 of 2004
^For respondents … Mr.R.Muthukumarasamy
Addl.Advocate General
assisted by
Mr.V.R.Rajasekaran, Sp.G.P.
(Education)
for respondents 1 and 2 in
all Writ Petitions
Mr.V.S.Jagadeesan
for Mr.R.Singaravelan for R3
in all Writ Petitions
Prayer: These Writ Petitions are filed under Article 226 of The
Constitution of India for issuance of a Writ of Declaration for the reliefs as
stated therein.
:COMMON ORDER
In all these Writ Petitions, the challenge is to Clause 23 of
the prospectus issued by the second respondent herein in respect of admission
to the Post- Graduate Degree /Diploma/ MDS/5-year M.Ch.(NeuroSurgery) Courses
for the Academic Year 2004-2005, to declare the said Clause as arbitrary and
unconstitutional and consequently direct the respondents to permit the
petitioners to apply for any Post-Graduate Degree/Diploma/MDS/5-year M.Ch.
(Neuro Surgery) Courses by fixing the completion of two year service as
eligibility criteria for applying for the academic year 2004-2005.
2. The relevant Clause 23 in the prospectus issued for the
year 200 4-2005 reads as under:-
“23. Those Service candidates who have put in less than Three
Years of satisfactory continuous service as on 01-02-2004 either in Tamil Nadu
Medical Service or in Local Bodies and Organisations mentioned in the
prospectus are not eligible to apply for PG Degree/ Diploma/ Five Year
M.Ch.(Neuro Surgery) Courses.”
3. The petitioners are all the candidates who were admittedly
in the services of either Tamil Nadu Medical Services or other Organizations
mentioned in the prospectus. All the petitioners are stated to have entered
service in the year 2001. It is relevant to state that till the year
2003-2004, the eligibility criteria for making the applications to PG Courses
was stated to be `completion of two years of continuity of service’ as on the
date fixed in the respective prospectus. It is also relevant to state that
some of the petitioners who were appointed in the month of February 2001,
joined the service in that month as from the date when the appointment was
made or the last date of that month viz., 28th day of February, 2001. Among
others, some of the petitioners are stated to have been appointed in the month
of November 2001. Therefore, the common grievance of these petitioners, while
challenging ‘Clause 23’ of the prosp ectus of the year 2004-200 5 is that by
virtue of the stipulation, viz., that in order to be eligible for making the
applications to any of the PG Courses, Service Candidate should have put in a
minimum of three years of service as against two years which was prescribed
till the last academic year, viz., 2003-2004, they were prevented from even
applying for any of the PG courses and thereby they have been put to serious
prejudice.
4. As far as those petitioners who happened to join in the
month of February 2001, the further contention was that while their batchmates
who happened to be appointed a little earlier than February 2001, were
fortunate enough to apply for such PG course in the academic year 2003-2004
itself inasmuch as, the prescription then was only ` completion of two years’,
the petitioners were prevented from even making the applications in the
present academic year 2004-2005 due to the increase in the number of years,
viz., from two years to three years as has now been stipulated in the
prospectus of the year 2004-2005.
5. In the light of the above factors, the contention put
forth on behalf of the petitioners was two fold. According to the
petitioners, in the first place, the enhancement of the minimum period of two
years to three years, had no nexus to the object to be achieved while the said
prescription was arbitrary in nature.
6. Mr.R.Krishnamurthy, learned Senior counsel appearing for
some of the petitioners in these Writ Petitions and also M/s.Paul Vasant
Kumar, and V.Ayya Durai, who appeared for other respective petitioners,
adopted the arguments of the learned Senior counsel. Of them, Mr. Paul
Vasanth made certain additional submissions.
7. Mr.R.Krishnamurthy in his submissions, contended that at
the time of recruitment through Tamil Nadu Public Service Commission, the
petitioners were informed as part of condition of their recruitment that in
the event of their selection, they should compulsorily serve in the zone in
which he/she would be posted after counselling, for a minimum period of ten
years, of which, he/she should have served for a period of not less than five
years excluding any period spent on training, leave, or higher education in
Government Primary Health Centres, that when the petitioners joined the
service by accepting the above stated condition, their service in the rural
areas got ensured and therefore, the respondents cannot take the stand that
unless the service candidates are mandatorily required to ensure three years
service, they would be ineligible to apply for PG Courses while seeking
admission to such courses. According to the learned Senior counsel, when the
very recruitment process, as well as, the appointment order made it clear that
the petitioners once entered the service of the State, they are liable to
serve in rural areas for a minimum period stipulated as a condition for such
appointment, a further stipulation in order to make them eligible to apply for
PG Course was un-called for and therefore, the same was an arbitrary
stipulation imposed in the prospectus of the year 2004-2005. For the very
same reasoning, it was further contended that it cannot be held that it had
any nexus to the object to be achieved by creating such a stipulation while
calling for applications for admissions to PG Courses. It was also contended
that while the prospectus of the year 2004-2005 was common for all applicants
both `the service candidates’ as well as ‘open category’, as a common entrance
test was being held for both categories, the prescription of a different cut
of date for the open category candidates visa-vis the service candidates would
amount to discrimination and therefore, on that ground as well, the impugned
Clause 23 is liable to be interfered with.
8. It was then contended that even in respect of in-service
candidates, while one group were fortunate enough to be eligible for making
the applications in the year 2003-2004, by virtue of the fact that they could
complete two years of service as on 1-2-2003, which was the cut of date
prescribed in the prospectus of the said year, in respect of the petitioners
who also came to be appointed along with those other persons, since because
their appointment orders came to be issued in the month of February and
November, 2001, they were deprived of even making the applications for the
academic year 2004-2005 by virtue of the enhancement of the minimum period
from two years to three years in the present prospectus. According to the
learned Senior counsel, even on this ground, a discriminatory treatment is
being meted out to the petitioners which would render the impugned Clause 23
invalid.
9. Mr.Paul Vasanth Kumar, learned counsel appearing for the
petitioner in W.P.No.2704 of 2004, contended that in the counter affidavit
filed on behalf of the respondents, it has been shown that as against 392
seats ear marked for the service candidates, only 316 Medical Officers got
selected in the last three years for admission in Post Graduate Degree/Diploma
Courses and in the said circumstances, when lot of seats earmarked for
in-service candidates remained unfilled, the further restriction imposed by
enhancing the period of service to be put in by the service candidates from
two to three years would only curtail the zone of consideration, on which
ground also, Clause 23 is liable to be interfered with.
10. It was then contended that the petitioner when joined
service along with others in the year 2001, was in the fond hope that she
would be able to apply for PG Course on completion of two years and that while
her other batch-mates were able to stake their claim in the previous years, by
virtue of the enhancement in the number of years of service made for the
academic year 2004-2005, her legitimate expectation has been demolished, and
on that ground, Clause 23 should be held to be invalid.
11. It was lastly contended on behalf of the petitioners that
even on the ground of equity and fair play, some of the petitioners in these
Writ Petitions, who joined the service in the month February 2001 should
atleast be permitted to avail the benefit in the year 2004-200 5.
12. In support of the above submissions, reliance was placed
upon “1981(2) All India Services Law Journal 578 (DR.SEMA SRIVASTAVA AND
OTHERS versus PRINCIPAL, BABA RAGHAV DAS MEDICAL COLLEGE, GORAKHPUR AND
OTHERS); 1983 (1) LLN 289 (NAKARA (D.S.) AND OTHERS versus UNION OF INDIA) and
2000(8)SCC 633 (PRAVEEN SINGH versus STATE OF PUNJAB AND OTHERS)
13. As against the above submissions, learned Addl.Advocate
General, appearing for the respondents, contended that in-service candidates
who were recruited afresh are primarily directed to render their service in
the rural areas, viz., in the Primary Health Centres, that out of 2893
sanctioned posts for Primary Health Centres as of 2004, only 2315 posts had
been filled, even of the posts filled up so far, 20% of the posts always lies
vacant due to various reasons while in the most backward areas, nearly 45% to
50% of the vacancies are always lying vacant. The learned Addl.Advocate
General would point out that unlike other States, in the State of Tamil Nadu,
a provision has been made for reserving 50% of the seats available in the PG
courses for the in-service candidates which prescription had also been upheld
by the Hon’ble Supreme Court in the Judgments reported in “2001(2)SCC 538
(K.DURAISAM AND ANOTHER versus STATE OF TAMIL NADU AND OTHERS)” and “2001(8)
SCC 694 (PRE-PG MEDICAL SANGHARSH COMMITTEE AND ANOTHER versus DR.BAJRANG SONI
AND OTHERS, ETC.)” that while there is large amount of competition in the
`open category’, the scope of competition is limited (i.e.,) to the extent of
1:3 as amongst the in-service candidates apart from the fact that such service
candidates are also entitled to count the period during which PG course are
studied, as part of their service apart from the fact that they were also
being paid the salary during the said period. According to the learned Addl.
Advocate General, the in-service candidates are therefore, treated differently
as compared to the open category candidates and therefore at the outset, there
can be no comparison of the criteria fixed for the open category candidates to
that of the in-service candidates.
14. The learned Addl.Advocate General then contended that
while earlier, the persons who entered the State service were called upon to
give an undertaking that they would serve a minimum period of five years in
the rural areas, a Government Order came to be issued in G.O.(2D).No.71 Health
and Family Welfare Department, dated 24-10-2002, wherein, the five year period
came to be altered as three years by taking into account very many practical
reasons such as to ensure that the period prescribed for rural service is duly
complied with by the persons who are being recruited for that purpose. It
was, therefore, contended that the prescription of three years now made in the
impugned prospectus for the academic year 2004-2005 had every nexus in the
sense that it was to ensure that at least for a minimum period of three years,
there was uninterrupted service in the rural areas which is in the interest of
the public at large. It was, therefore, contended that as against the
interest of the public at large, the interest of the petitioners should give
way and therefore, there can be no fault found with the prescription made in
the impugn ed Clause 23 while enhancing the minimum period of two years to
that of three years as from the academic year 2004-2005.
15. The learned Addl.Advocate General further contended that
prescription of such criterion are the policy of the State and so long as the
said policy was not arbitrary and when it has got relevance to the object to
be achieved, the same cannot be called in question. It was also contended
that the State is entitled to prescribe the eligibility conditions in the
light of various other liabilities of the State Government which are to be
meted out to the public at large.
16. The sum and substance of the contention of the learned
Addl. Advocate General was that the present prescription of three years in
Clause 23 was for twin objectives, viz., (a) to ensure that the Government
Doctors render uninterrupted continuous service in the rural areas for a
minimum period of three years in public interest and (b) to ensure that a
better qualified person from the point of view of experience is selected for
undertaking PG Course, so that his further service in the State Government
which is ultimately for the public at large would be more beneficial. In the
light of the above submissions, it was contended that the conditions
prescribed in the impugned Clause 23 of the prospectus was neither arbitrary
nor capricious in order to be interfered with the same.
17. The learned Addl.Advocate General relied upon “AIR 1971
SC 1762 (D.N.CHANCHALA, ETC. versus THE STATE OF MYSORE AND OTHERS, ETC.), 2
001(2) SCC 538 (K.DURAISAMY AND ANOTHER versus STATE OF T.N. AND OTHERS);
2001(8) SCC 694 (PRE-PG MEDICAL SANGHARSH COMMITTEE AND ANOTHER versus
DR.BAJRANG SONI AND OTHERS, ETC.); 1997(9)SCC 495 (KRISHNAN KAKKANTH versus
GOVERNMENT OF KERALA AND OTHERS); AIR 2002 SC 2642 ( STATE OF RAJASTHAN AND
OTHERS versus LATA ARUN); 2003(5) SCC 437 (UNION OF INDIA AND ANOTHER versus
INTERNATIONAL TRADING CO.AND ANOTHER)” in support of his submissions.
18. Having heard the learned counsel for either parties, at
the out set, it would be relevant to state that in matters of this kind, where
such prescriptions are made by the State Government for filling up the courses
offered by it, it is well settled that the State is entitled to prescribe and
lay down the standards of eligibility. Reliance can be placed upon the
judgment of the Hon’ble Supreme Court reported in “AIR 1971 SC 1762
(D.N.CHANCHALA ETC. versus THE STATE OF MYSORE AND OTHERS, ETC.)”, in
particular para 17 can be usefully referred to on this aspect.
“17. Since the Government has set up these colleges and
maintains them, it has prima facie the power to regulate admission in its own
institutions. Counsel for the petitioners pointed out to us no provision from
the University Acts which deprives the Government of the power of making rules
for admission in its own colleges. That being so, it cannot be said that the
Government has no power to regulate admission in its own colleges or that
because a student is eligible for admission under the University ordinances,
he automatically gets a right to admission which he can enforce in a Court of
law.”
(Underlining is mine)
19. The above proposition of law laid down by the Hon’ble
Supreme Court in respect of Government run medical colleges would make it
clear that it would be in order for the State Government to regulate
admissions in its own colleges, which would be in the interest of the public
at large. When it comes to the question of prescribing such stipulations, the
only other basis would be that it is the policy of the State Government in
making such stipulations which again is in the interest of the public at
large. As far as such policy decisions are concerned, it has been held that
so long as such policy decisions are not contrary to any statutory
prescriptions or such policies are not wholly unfair and unreasonable, there
is absolutely no scope for the Courts to interfere with such policy decisions
of the State. On this aspect, useful reference can be had to the judgment of
the Hon’ble Supreme Court reported in “1997(9) SCC 495 (KRISHNAN KAKKANTH
versus GOVERNMENT OF KERALA AND OTHERS)”, wherein, in para 36, the Hon’ble
Supreme Court has stated the legal position as under:
“36. To ascertain unreasonableness and arbitrariness in the context
of Article 14 of the Constitution, it is not necessary to enter upon any
exercise for finding out the wisdom in the policy decision of the State
Government. It is immaterial whether a better or more comprehensive policy
decision could have been taken. It is equally immaterial if it can be
demonstrated that the policy decision is unwise and is likely to defeat the
purpose for which such decision has been taken. Unless the policy decision is
demonstrably capricious or arbitrary and not informed by any reason whatsoever
or it suffers from the vice of discrimination or infringes any statute or
provisions of the Constitution, the policy decision cannot be struck down. It
should be borne in mind that except for the limited purpose of testing a
public policy in the context of illegality and unconstitutionality, courts
should avoid “embarking on uncharted ocean of public policy.” (
Underlining is mine)
20. Further in the judgment reported in “AIR 2002 SC 2642
(STATE OF RAJASTHAN AND OTHERS versus LATA ARUN)”, the Hon’ble Supreme Court
has stated the position more clear in para 9, wherein, it has been held as
under:
“9. The points involved in the case are two fold: one
relating to prescription of minimum educational qualification for admission to
the course and the other relating to recognition of the Madhyama Certificate
issued by the Hindi Sahitya Sammelan, Allahabad as equivalent to or higher
than +2 or 1st year of TDC for the purpose of admission. Both these points
relate to matters in the realm of policy decision to be taken by the Sate
Government or the authority vested with power under any statute. It is not
for the Courts to determine whether a particular educational qualification
possessed by a candidate should or should not be recognized as equivalent to
the prescribed qualification in the case. That is not to say that such
matters are not justiciable. In any appropriate case the Court can examine
whether the policy decision or the administrative order dealing with the
matter is based on a fair, rational and reasonable ground; whether the
decision has been taken on consideration of relevant aspects of the matter
whether exercise of the power is obtained with mala fide intention; whether
the decision serves the purpose of giving proper training to the candidates
admitted or it is based on irrelevant and irrational considerations or
intended to benefit an individual or a group of candidates.”
(Underlining is mine)
21. Therefore, in appropriate cases, the Court can examine
whether the policy decision dealing with any matter is based on a fair,
rational and reasonable ground and such decision was taken on consideration of
relevant aspects of the matter and whether such decisions in any way conflict
with any statutory provisions. Therefore, going by the guidelines set out
above, when the case on hand is analysed, it will have to be stated at the
outset that even while testing the various submissions made, it will have to
be confined to the case of service candidates alone as there would be no scope
for comparing the petitioners, who are all service candidates, with that of
Open Category who are governed by Clause 17 of the Prospectus. I say so
because a clear distinction has been already demarcated as between the open
category candidates for whom no prescribed minimum experience has been
stipulated for making an application, while for the in-service candidates,
they have to necessarily put in a minimum of three years of satisfactory
continuous service as on 1-2-2004 in order to be eligible for making the
application. As far as open category candidates are concerned, it is
sufficient that they complete their CRRI before the date of entrance
examination, meaning thereby that a fresh doctor who after completion of his
MBBS course and immediately after the completion of his internship, is made
eligible to apply under the open category. While such being the wide scope
for making the applications in respect of open category candidates, when there
is restriction placed among the in-service candidates and when 50% of the
total seats are ear marked for in-service candidates, the zone of
consideration as among the in-service candidates gets restricted while in the
case of open category candidates, it would be on a larger area. In fact, it
was stated that in the open category zone, there would be not less than 4000
to 5000 applications in a year, while the scope of consideration in respect of
the in-service candidates, would be to a limited extent, i.e. 1:3 alone only.
22. In fact, when this allocation of 50% for in-service
candidates came up for challenge, the matter went upto the Supreme Court and
the Hon’ble Supreme Court, in the judgment reported in “2001(2) SCC 538
(K.DURAISAM AND ANOTHER versus STATE OF TAMIL NADU AND OTHERS)” has upheld the
reservation of 50% made for in-service candidates, but made it clear that
in-service candidates would not on the basis of the merit be considered
against the seats ear marked for non-service candidates. The Hon’ble Supreme
Court was pleased to hold that because the Government possess the right and
authority to decide from what sources, the admissions in the educational or to
particular discipline and courses therein have to be made and that too in what
proportion. Therefore, by now it is well settled that the in-service
candidates would be staking their claim only as amongst their counter parts in
the same service and there would be no scope for any outsider to compete with
them in the matter of such selection. Here again, when certain other
concessions were shown in the minimum marks prescribed for selection, when a
challenge came to be made, the Hon’ble Supreme Court was pleased to uphold
even such prescription, in the judgment reported in “2001 (8) SCC 694 (PRE-PG
MEDICAL SANGHARSH COMMITTEE AND ANOTHER versus DR.BAJRANG SONI AND OTHERS,
ETC.)”, wherein the Hon’ble Supreme Court has considered the said issue in
depth and has held as under in para 8:
“8. The learned counsel for the appellants, who filed the
appeals with the permission of the Court, also sought to challenge the
conclusion arrived at by the learned Single Judge in repelling the challenge
made to the reduction of the minimum cut-off marks for selection of the
in-service candidates from 50% to 33%. Apart from the tenability of the
objection taken by Shri Sushil Kumar Jain, learned counsel appearing for the
respondent private candidates, that if there was no challenge made to this
reasoning before the Division Bench of the High Court, it is not permissible
to take such a stand in this Court. We are are also of the view, on the
merits of the claim itself, that there is no substance in the same. It is not
in controversy that during the academic years in question, there was no
stipulation by the Medical Council of India of any minimum eligibility marks
to be secured in the entrance examination for admission to postgraduate
courses. Though it is said that in 2000 such a stipulation has been made, for
the obvious reason that during the years under our consideration there is no
such stipulation, the challenge in this regard does not merit our
consideration or acceptance, leave alone the question as to efficacy or
binding nature of the said stipulation, which we do not propose to adjudicate
upon in these cases. That apart, as rightly pointed out in one of the
judgments of this Court noticed above, mere theoretical excellence or merit
alone is no sufficient indicia of the qualitative merits of the candidates in
the field of actual practice and application. The doctors who are in-service
candidates in various medical institutions run and maintained by the
Government or government departments, have wide area and horizon of exposure
on the practical side and they may not have the required extra time to keep
themselves afresh on the theoretical side like an open candidate who may have
sufficient time at his disposal to plod through books. The in-service
candidates in contrast to the fresh or open candidates have to spend much of
their time on attending and treating the patients in the hospital they serve
gaining excellence on the practical side and, in our view, they would
constitute a distinct class by themselves to be given a special treatment and
no grievance can be made out on the ground that the minimum eligibility marks
for their selection in respect of seats earmarked for them should also be the
same as that of the fresh or open candidates. We could see no discrimination
or arbitrariness involved in the special provision made to meet a just and
appropriate need in public interest.”
(Underlining is mine)
23. Therefore, even while upholding the reduction of the
minimum cut of marks for selection of the in-service candidates from 50% to
33%, which in our case, it is 40%, the Hon’ble Supreme Court was pleased to
hold such a criteria had a reasonable nexus inasmuch as inservice doctors who
are in service in various institutions of the government have wide area of
exposure on the practical side, which enable them to have some special
consideration. That apart, as pointed out by the learned Addl.Advocate
General, in-service candidates enjoyed a further benefit of the salary given
for the period during which they would be attending to the PG courses to which
they get selected apart from the fact that even that period is counted for the
purpose of their service, which would be beneficial to them at the time when
their terminal benefits are to be worked out. Therefore, such special
concessions and advantages are made available to such in-service candidates
are also to be borne in mind while testing the validity of the impugned Clause
23 of the prospectus, which is under challenge in these Writ Pettiions.
Therefore, there is no scope to compare the case of the petitioners with that
of the open category candidates whose claims are dealt with differently in all
other respects except the common entrance test. As the common entrance test
is subject oriented, the prescription of the same in common alone would not in
any manner make them comparable with the petitioners or vice versa.
Therefore, the submissions made on that basis will have to be rejected in
limini.
24. When the impugned Clause 23 is thus tested in the anvil
of the above stated factors prevailing, it will have to be held that there
would be every justification in the State Government insisting that such
valuable service of its in-service candidates in rural service should be
ensured atleast for a minimum period before ever they are allowed to join PG
courses. In this context, the submission made by the learned Addl.Advocate
General on certain aspects required to be stated.
25. It was submitted that while the in-service candidates at
the time when they enter into service are made to bound to render service
earlier initially for a minimum period of five years which has now been
reduced to three years after G.O.(2D).No.71 Health and Family Welfare
Department, dated 24-10-2002, the hard fact remains that such candidates once
they acquire their PG qualifications, are tend to aspire for bettering their
prospects by switching over to the education side of the service, where they
are also freely accommodated even by the Statement Government itself. That
hard reality cannot be ignored while considering the challenge made to the
impugned Clause 23. Further, in G.O.(2D).No.71 Health and Family Welfare
Department, dated 24-10 -2002, it is stated that the period of five years of
continuous service in Primary Health Centres which was earlier made as a
compulsory stipulation in respect of the Assistant Surgeons appointed in the
Tamil Nadu Medical Service, had to be reduced to three years in order to
ensure that uninterrupted health care facilities are provided to the rural
public and also to ensure regular attendance of the Medical Officers in the
Primary Health Centres. In this context, it is also relevant to refer to the
details furnished by the respondents in the counter affidavit, wherein, it has
been shown in paragraph 6 that overall vacancy position in the Primary Health
Centres in the State, is always constantly maintained at 20%, while the
vacancy position in certain most back ward areas, is at the rate of 45 to 50%.
Such statistical particulars furnished by the respondent-State are also to be
borne in mind while considering the challenge made in these Writ Petitions in
regard to prescription of three years made in the impugned Clause 23 of the
prospectus.
26. When it was largely considered by the State Government
while prescribing the condition of not less than three years to be rendered as
a `satisfactory continuous service’ in order to make the inservice candidates
to be eligible to apply for PG courses and when such consideration came to be
made in the light of the fact that in the rural areas invariably, the Primary
Health Centres remain un-served due to various other factors, it will have to
be held that it cannot be lost sight of that the very enthusiasm shown by the
fresh medical graduates in entering the state service is also due to the fact
that such status acquired by them would enable them to seek for admission to
the PG courses by getting better preference than competing with the open
category candidates, where the competition would be on a larger perspective.
Therefore, when such other better preference could be availed of by the
in-service candidates including special consideration in the matter of
admission to PG courses, it cannot be held that the perspective of the State
Government in prescribing minimum standard limit of three years of
uninterrupted satisfactory service would fulfil its avowed object of ensuring
uninterrupted continuous rural service, which objective if could be achieved
by such a prescription, no fault can be found with the State Government in
prescribing such a period of three years as a minimum period in order to be
eligible for the in-service candidates to apply for PG courses offered by the
State Government in its institutions.
27. Therefore, when there is no statutory prohibition for
making such a prescription of three years as against two years prescribed in
the prospectus of the previous years, it will have to be held that the present
prescription of three years was not only against any statutory or
constitutional provision, but also in consonance with the benevolent objective
to be achieved by the State Government, viz., rendering of minimum period of
service in the rural areas. However much it may be stressed on behalf of the
petitioners that the condition of service imposed at the time of appointment,
could be ensured and that after completion of their PG courses also they could
be compelled to serve in the rural areas as stipulated at the time of
appointment for a minimum period of five years or three years as the case may
be, it will have to be stated that when the hard realities disclose that such
a contingencies could never be achieved by the respondent-State, and when the
real sufferers are the rural masses, the Court can take judicial note of the
said relevant factor while upholding the present prescription made in the
impugned Clause 23 to the effect that three years of satisfactory continuous
service alone would enable the inservice candidates to be eligible to apply
for PG courses. Therefore, I am unable to accept the various contentions
raised on behalf of the petitioners that the objective to be achieved, viz.,
rural service to be performed by the in-service candidates had no nexus to the
prescription made in the impugned Clause 23 in order to interfere with the
said prescription made in the said clause.
28. Having regard to my above said reasoning, I am unable to
countenance any of the contentions raised on behalf of the petitioners while
challenging the above said impugned clause. For the very same reasoning, I do
not find any arbitrariness also in the prescription of the three years
criteria while making such in-service candidates eligible for applying to the
PG courses.
29. The submission made on behalf of the petitioner in
W.P.No.2704 of 2004 is two fold. In the first place, it was contended that
while the State would not fill up all the seats in a year by prescribing the
present criteria, the zone of consideration would get further narrowed down
and therefore, on this ground, the prescription of three years is liable to be
set aside. On this aspect, a direct decision of the Hon’ble Supreme Court was
relied upon by the learned Addl. Advocate General reported in “2004(2) CTC
227 (STATE OF TAMIL NADU AND ANOTHER versus S.V.BRATHEEP (MINOR) AND OTHERS)”,
wherein, this very contention was negatived by the Hon’ble Supreme Court
holding that the mere fact that there are vacancies in the institutions would
not be a matter which would go into question of fixing the standard of
education. Therefore, merely because all the seats did not get filled up in a
year, cannot be a ground for testing the validity of the clause or a
prescription made in the impugned Clause 23 of the prospectus.
30. As far as the submissions made on legitimate expectation
by relying upon the Division Bench judgment of this Court reported in “2002
(1) MLJ 590 (POOVIZHI versus THE GOVERNMENT OF TAMIL NADU AND OTHERS)”, the
said judgment as demonstrated by the learned Addl.Advocate General could be
easily distinguished. That was a case where the students of the academic year
2001-2002 were deprived of the benefit to write improvement examinations in
individual subjects in the month of September or in the subsequent month of
March, 2002, by virtue of the notification impugned therein, which was
introduced in the month of September, 2001. In fact, the concerned students
were allowed to pay the fees for the examination to be held in September 2001
and such payments were made in the month of July 2001 itself, i.e., even two
months prior to the issuance of the said notification. Therefore, it was in
those circumstances, the principle of legitimate expectation was held in their
favour when the application of the notification impugned therein was directed
to be postponed only in respect of those students till the month of March
2002. Therefore, the benefit granted to those petitioners covered by the said
Division Bench Judgment cannot be applied to the case on hand who cannot be
said to have made any advancement in their service by virtue of any situation
which was offered at the instance of the State Government while in service
immediately prior to the issuance of the present prospectus, viz., 2004-2005.
It will have to be held that the eligibility or the scope for aspiring to get
admitted into PG courses itself was made known only after the issuance of the
present prospectus which came to be issued for the academic year 2004-2005.
Therefore, when the prescriptions now made in the present prospectus were made
applicable, it cannot be held that that would in any way crate a right of
legitimate expectation in favour of the petitioner in order to hold that on
that score, the petitioner has derived any advantage to her benefit to
invalidate the impugned Clause 23 of the prospectus of 2004-2005.
31. Looked at from any angle, I do not find any scope to
approve of the challenges made to the validity of the impugned Clause 23 of
the prospectus of the academic year 2004-2005 and grant any relief as prayed
for in these Writ Petitions.
32. However, it will have to be stated that in respect of
those petitioners who were stated to have joined the services of the
respondent state in the month of February 2001, considering their plight,
inasmuch as in the year 2003-2004 though the prescribed minimum period of
service was only two years, they were ineligible to make their applications,
inasmuch as, as on the cut of date, viz., 1.2.2003, they had not put in the
required numbered of two years as their appointment commenced after 1-2-2001,
as they could join the service only before the end of that month i.e.
28-2-2001. The other fact remains that the candidates who came to be
recruited along with them in that batch were fortunate enough to enter into
service prior to 1-2-2001 and thereby they became eligible to apply for PG
courses as per the prospectus announced in 2003-2004. By virtue of the
interim orders of this Court, since all those petitioners were permitted to
attend the common entrance test and by the subsequent orders of this Court
their results were also directed to be published to enable them to participate
in the counselling, it was directed in the said order dated 23-3-2004 that if
the petitioners come under the zone of consideration in the counselling and
they record their option, their allotment of seats alone are to be withheld
awaiting the disposal of the Writ Petitions.
33. In such circumstances, in respect of those limited cases,
where the petitioners who were stated to have joined in between 1-2-2001 and
28-2-2001, the learned Addl.Advocate General on instructions, fairly stated
that without being quoted as a precedent, they would be allowed to participate
in the counselling and allotments would also be made in their favour. This
gesture shown by the State Government is recorded, which however, is
absolutely de- hors the justification of the prescription made in the impugned
Clause 23 of the prospectus of the year 2004-2005.
In the result, all the Writ Petitions fail and the same are
dismissed. No costs. Consequently, all the connected W.P.M.Ps. are closed.
Index: Yes
Internet: Yes
suk
To
1.The Secretary to Government,
State of Tamilnadu,
Higher Education Department,
St.George Fort,
Chennai-600 009.
2. Director of Medical Education,
Directorate of Medical Education,
Kilpauk, Chennai-600 010.
3. Medical Council of India,
rep. by its Secretary,
AIWAN-E-Ghaliv Marg,
Kotla Road, New Delhi-110 002.