IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21/11/2002
CORAM
THE HONOURABLE MR. JUSTICE K.P.SIVASUBRAMANIAM
WRIT PETITION No.21565 of 2002
Dr.K.Janaki, B.D.S. .. Petitioner
-Vs-
1.The Secretary,
Selection Committee,
Directorate of Medical Education,
Kilpauk, Chennai-10
2.The Secretary,
The Dental Council of India,
Alwan-E-Gallib Marg. Kotla Road,
New Delhi-110 002.
3.K.Dinakaran .. Respondents
(RR.2 and 3 are impleaded as per order
of Court dt.31.10.2002 in WPMP No.49830
of 2002)
Writ petition filed under Article 226 of the Constitution of
India praying for the issue of a Writ of Mandamus for the reasons stated
therein.
For Petitioner : Mr.K.M.Vijayan for
M/s.La Law.
For Respondent-1 : Mr.V.R.Rajasekaran,
Special Govt. Pleader
For Respondent-2 : Mr.Perumbulavil Radhakrishnan
:O R D E R
The petitioner prays for the issue of a Writ of
Mandamus to direct the respondent to admit the petitioner for the only odd
vacancy available in M.D.S. Course for the year 2002-2003 by applying
condition No.29 in the prospectus issued for the year 2002-2003, enabling the
remaining vacancy seat being filled on the basis of merit among the service
and non service candidates put together.
2. According to the petitioner, he is a
degree holder and had applied for M.D.S. Course for the year 2002-2003. The
examination was conducted by the respondent on 6.4.2002 and the petitioner
participated in the examination. As per the prospectus, candidates securing
less than 40% of aggregate mark will not be called for counselling. The
petitioner had secured a total of 57.96 marks at the entrance examination and
stood ranked in the 25th position in the merit list. Though the petitioner
was intimated about the counselling to be conducted of 2 4.4.2002, the
petitioner has not been declared as selected. In terms of the prospectus, 50%
of the seats will be made available for open competition and the remaining 50%
will be exclusively made available for service candidates. For the year
2002-2003, fourteen seats were allotted for M.D.S. Course. Hence the seven
seats were to be allotted to service candidates. As against the vacancy for
service candidates, no eligible candidate had opted for the course M.D.S.
Prosthodontics, for which the petitioner had applied. Hence one seat remains
vacant in the said course. Therefore, the said seat h as to be declared as an
odd seat and in filling up the odd seat, it has to be done in accordance with
merit list, from both the service and non service candidates. The said
vacancy, though stands reserved for service candidates, as there are no
eligible candidates from the service category, the same has to be filled only
by non service candidate in accordance with merit. The petitioner made a
representation on 10.5.2002 to be considered for the vacant seat but the
respondents have not favourably responded and hence the above writ petition.
3. In the counter filed by the respondent, out of
fourteen number of seats, as per Clause 61, 50% of the seats are exclusively
set apart for admission from among the in service candidates. The remaining 5
0% seats have to be filled up from the open competition. Accordingly, seven
seats representing 50% of the total 14 seats are exclusively set apart for in
service candidates. In terms of the said process, the seven candidates have
been selected as against non service quota. The last of the candidate having
secured 61.65 marks. As against the quota for service candidates, six
candidates had been selected, the last of the candidate having secured 40.37
marks. As one more vacancy remain to be filled up under the category of
service candidates, Dr.K. Dinakaran, who had secured only 36.86 marks, was
selected and he was placed as 7th in the service category. Considering the
fact that there was no eligible candidate, who had secured total marks about
40%, in order to fill up the 7th seat set apart for service category, the
Government decided to relax the minimum eligible criteria. Therefore,
Dr.K.Dinakaran. who had secured 36.86 and placed at Serial No.286, was given
admission in M.D.S. Course under service category. The relaxation thus given
to Dr.K.Dinakaran, was perfectly legal and necessitated to fill up the vacancy
under service category. The interpretation placed on the various clauses of
the prospectus by the petitioner are incorrect. There is no question of any
odd vacancy arising, since the vacancies are evenly distributed between the
two categories with seven seats for each category. Therefore, the petitioner
cannot have the recourse to Clause 29 of the prospectus.
4. After the filing of the writ petition, the
Secretary to the Dental Council of India and K.Dinakaran, the candidate who
had been selected and whose selection is in effect questioned in this writ
petition, were impleaded as R.2 and R.3 respectively in WPMP No.49830 of 2
002. While R.2 appears through counsel, R.3 is not represented.
5. Mr.K.M.Vijayan, learned Senior counsel for the
petitioner contends that the prospectus for the year 2002-2003, clearly
disqualifies candidates securing less than 40% of the aggregate marks and they
shall not called for counselling. He would also submit that while applying
the rule of reservation, in case of odd number of seat remaining vacant, it
shall be filled up only on the basis of merit among the service and
non-service candidates put together. Therefore, the vacancy in the quota of
service candidates which has fallen vacant as a result of absence of qualified
candidates, the said vacancy should have been brought under the common pool
and the petitioner should have been selected.
6. The learned Special Government Pleader
contends that fixation of quota in favour of the service candidates had been
upheld by the Supreme Court in PRE-PG MEDICAL SANGHARSH COMMITTEE AND ANOTHER
Vs. DR.BAJRANG SONI AND OTHERS ((2001) 8 SCC 694). In the same judgment, the
Supreme Court has also held that fixation of different/lesser criteria for the
service candidates was also permissible as long as the Medical Council of
India has not stipulated in minimum eligibility mark. In that case, it is
stated by the Supreme Court, the minimum cut off marks was reduced from 50% to
33% for service candidates and the same was approved by the Supreme Court. He
would also contend that it was necessary to give preference to service
candidates, as Doctors opting for Government Service were dwindling in number
and this has been approved by the Supreme Court in the said judgment. It is
only to fill up the quota of service candidates, marks had to be reduced and
the action of the respondents in granting relaxation to the third respondent
was perfectly legal. There was no ulterior motive in the action of the
respondents.
7. Mr.Perumbulavil Radhakrishnan, appearing
for The Dental Council of India, represented that The Dental Council has not
prescribed any code of marks for being selected to Post Graduate Courses.
8. In reply, Mr.Vijayan contends that the
case reported in (2001) 8 SCC 694, supra, dealt with different set of facts in
which in the prospectus itself, the differential minimum marks in favour of
the service candidates had been specified. In the present case, the minimum
requirement as disclosed in the prospectus itself was only 40% to both the
categories. Further more, in a later judgment, in STATE OF PUNJAB Vs.
DAYANAND MEDICAL COLLEGE AND HOSPITAL AND OTHERS reported in (2001) 8 SCC 664,
the same Bench of the Supreme has positively held that in dealing with Post
Graduation Courses, the sanctity of minimum qualifying marks prescribed by the
Medical Council of India must be maintained. The said judgment is the latter
judgment and therefore the requires to be followed.
9. I have considered the submissions of both
sides. Under Clause-61, the selection will be made by counselling on merit
and applying rule of reservation, wherever applicable. 50% of seats will be
made available as open competition for selection among both service and
non-service candidates and 50% of the seats will be made available for service
candidates. Such reservation in favour of service candidates is not called in
question and therefore there is no need to go into the said issue. The issue
to be considered in this case is limited as to whether the relaxation in
favour of the service candidate (R-3) who did not admittedly secure minimum
marks and his selection could be held as valid or not?
10. The relevant portion of Clause 29 of the
prospectus is as follows:-
Admission to P.G. Degree/Diploma/Five Year M.Ch. (Neuro-Surgery)/M.D.S.
Courses shall be made by counselling on the basis of merit applying the rule
of reservation wherever applicable. In case of odd number of seat remaining
vacant, that seat will be filled up based on merit only among Service and
Non-Service candidates put together.
Candidates will be called for counselling according to their rank in batches.
… …. …. ….
Candidates securing less than 40% of aggregate marks shall not be called for
Counselling”
11. As regards the minimum marks, the
stipulation is very positive and categoric and it is not possible to accept
the contention that it is open to the Government to relax the minimum marks in
the absence of any prescription of minimum marks by the Dental Council for the
following reasons. Even in the context of the judgment of the Supreme Court
as mentioned above, there is actually no conflict as between the said two
judgements as it was perceived by the learned counsel for the petitioner. In
the PRE-PG MEDICAL SANGHARASH COMMITTEE case, the first one in point of time,
the decision by the State Government in fixing a different/lesser minimum
marks (50% to 33%) was taken even before the process of selection as could be
seen from the judgment. It was a policy taken even before the invitation for
applications, even though, there is no specific reference to any prospectus or
application form. Also in the background that the Medical Council of India (
M.C.I) had not stipulated any minimum cut off marks, the Supreme Court held
that the decision of the Government in fixing a lesser cut off criteria cannot
be held to be invalid. The selection related to the academic year 1997-1998
when the M.C.I had not prescribed any minimum criteria. But the second
judgment (State of Punjab Case) relates to the selection for the year 2001, by
which time, the Post Graduate Medical Educational Regulation, 2000 had been
issued prescribing minimum criteria. It is only in the said background, in
the second case, the Supreme Court held that the sanctity of the minimum marks
prescribed by the M.C.I should be maintained. In fact, in the first judgment
itself (PRE-PG MEDICAL SANGHARASH COMMITTEE) case, it was made clear in para-8
of the judgment that though in the year 2000, such a stipulation had been made
by the M.C.I, for the selection during the years which arose for consideration
in that case, there was no such stipulation.
12. Therefore, there is no conflict between
the two judgments and in my opinion, the conclusions of the Supreme Court as
could be gathered from the said judgments can be detailed as follows:-
1. As long as there is no specific stipulation of minimum marks by the M.C.I
or D.C.I for admission into Postgraduate Courses, there is no bar on the
Government to prescribe lesser qualifying marks in favour of service
candidates.
2. If there is a specific stipulation by the M.C.I or D.C.I, it is not open
to the Government to reduce the marks and it should be maintained.
13. However, the above conclusion does not
help the respondents in the present case, for the reason that the Government
did not make any distinction between service candidates and non-service
candidates in the matter of minimum marks. The prospectus clearly envisages
that no one securing less than 40% shall be called counselling. The said
condition admits of no exception and there is no clause empowering relaxation
of the said basic condition either in favour of the service or non-service
candidates in the event of the quota remaining unfilled up to the maximum
strength. It may be open to the State Government to prescribe such a power of
relaxation or differential cut off marks for the future years in favour of the
service candidates in the absence of any minimum criteria by the D.C.I. But
we are concerned with the prospectus issued for 2002-2003 which makes the
minimum mark of 4 0% as mandatory. Having prescribed a minimum cut off mark,
it is not open to the respondent to give any relaxation. We are dealing with
Postgraduate Medical Education and to borrow the expression of the Supreme
Court in the STATE OF PUNJAB case, it is not open to the Government to dilute
the standards by fixing lower marks. In recent years, the standard and
efficiency of the Doctors in Government Service are coming under considerable
criticism of unsatisfactory performance and it would be unsafe to allow the
less than average Doctors to climb into the higher strata of Government
Medical Service for which post graduate qualification is a must. Therefore,
relaxation granted in favour of and selection of R-3 has to be held as bad and
to be set aside.
14. The next question for consideration is as to
whether the vacancy earmarked for service candidate viz., the seventh seat,
now given to the third respondent being set aside can be filled up by a
nonservice candidate. It is stated that there is no other service candidate
possessing the minimum required mark of 40%. I am unable to accept the
contention of the learned Senior Counsel for the petitioner that on an
interpretation of Clause-29, in the event of odd seat remaining, then the odd
vacancy should be filled up on the basis of merit from among the service and
non-service candidates and in the present case, as a result of one vacancy
arising under the category of service candidates, the said vacancy should be
treated as odd vacancy. The reference to the odd seat is only in the context
of fixing the number of seats in terms of the reservation quota. In the
present case, the total number of seats being fourteen, seven seats go to the
service category and seven seats for non-service category. Therefore, the
reference to the filling up of odd seat under Clause-29 does not arise for
consideration.
15. But we have to see whether a non-service
candidate can be taken in to fill up the seat earmarked for service candidate.
It is true that Clause-62 of the prospectus states that 50% of the seats made
available for service candidates under service quota shall be filled up
exclusively by service candidates. But in the event of there being no
qualified service candidate, I am inclined to hold that the said provision has
to be ignored and should be read down and interpreted in a reasonable manner.
It is not a statutory provision but a regulation intended for proper
distribution of the seats and cannot be assigned any rigid meaning leading to
anomalous situations either that it should be filled up by an unqualified
candidate or should be allowed to remain vacant. It will not be a healthy or
proper policy to leave any seat vacant in the Postgraduate Medical Course, in
the face of hundreds of qualified candidates waiting to acquire postgraduate
qualification. Postgraduate qualification has now become very essential for
any practitioner and a mere M.B.B.S degree is for all practical purposes does
not provide scope for private practice. It must also be borne in mind that
the number of seats in Postgraduate Courses in the Medical Colleges is
proportionately very much lesser compared to the number of under-graduates.
Entering into Government Service has also become very difficult, considering
the limited number of vacancies in proportion to the undergraduates.
Therefore, it will not be in public interest to interpret Clause-62 rigidly to
the effect that the vacancy should remain unfilled.
16. But the petitioner’s claims to be
admitted in the course cannot be automatic in view of the fact that the
vacancy has to be filled up only in accordance with merit. The petitioner
cannot be given the benefit of admission only because she has approached the
Court. In the counter, it is stated that she stands 25th in the ranking list
whereas the rank of the last candidate selected as against non-service quota
is 11 (eleven). Therefore, if in between there is any other candidate or
candidates, the offer has to go to them first and the claim of the petitioner
can be considered only in the event of such candidates not responding.
17. With the result, I am inclined to allow the writ petition,
subject to the following observations:-
1. The relaxation of the minimum marks in favour of and the selection of R-3
is set aside.
2. In the absence of any service candidate satisfying the minimum marks of
40%, the vacancy shall be filled up by a non-service candidate in accordance
with merit/ranking list. The petitioner’s claim can be allowed only if the
other candidates above her in the ranking are not willing or they fail to
respond. The first respondent is directed to send intimation to all the
candidates ranked above the petitioner and proceed further accordingly. No
costs. Consequently, connected WPMP No.29822 of 2002 is closed.
Index : Yes.
Internet : Yes.
21-11-2002
svn
The exercise may be completed within a period of four weeks from the
date of receipt of a copy of this order.
21.11.2002
Sg
To
1.The Secretary,
Selection Committee,
Directorate of Medical Education,
Kilpauk, Chennai-10
2.The Secretary,
The Dental Council of India,
Alwan-E-Gallib Marg. Kotla Road,
New Delhi-110 002.
