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The Director Of Medical … vs Dr. V. Ramalakshmi on 20 February, 1998

Madras High Court
The Director Of Medical … vs Dr. V. Ramalakshmi on 20 February, 1998
Equivalent citations: 1998 (2) CTC 244, (1998) IIIMLJ 520
Bench: M S Liberhan, C., D Raju


ORDER
Judgement pronounced by Raju, J.

1. The above appeal has been filed against the order of a learned Single Judge of this Court dated 24.4.1997, insofar as it related to WP No.2317 of 1997, which came to be disposed along with two other Writ Petitions in common, where under the learned Single Judge, while allowing the writ petition and declaring paragraph 4 in Clause VI of the Prospectus relating to the Admission to Postgraduate Diploma/Degree/MDS Courses for the year 1997-98 unconstitutional and violative of Article 14 of the Constitution of India, directed the appellants, who are respondents in the writ petition, to proceed with the further selection insofar as it related to Service candidates without taking into consideration the said paragraph. The said paragraph, which was held to be bad by the learned single Judge, reads as follows:-

“Service candidates should send their applications through proper channel
with forwarding authority’s remarks, if any disciplinary proceedings are
pending against them, service candidates should not send the application. This
is applicable to Tamil Nadu services, local body/public Sector of Tamil Nadu
or Central Government, Defence services candidates etc., forwarding officers
need not forward the application.”

2. The respondent herein, the writ petitioner before the learned single
Judge, is said to be a Medical Practitioner possessing a Degree in M.B.B.S.,
obtained by her in July, 1989, that she was temporarily appointed as Assistant
Surgeon in the Tamil Nadu Medical Service on 28.5.1990 and she was
selected by the Tamil Nadu Public Service Commission and regularly
appointed as such by a Government Order dated 26.4.1995. The respondent is
said to be no de-putation working as Assistant Surgeon, Government Primary
Health Centre, Sebathipuram. Without going into the details of the allegations
or the correctness or otherwise of the same, it may be stated that charges
containing allegations of misappropriation of public funds, based on some
audit objections, and enquiry into those charges are pending against the
respondent.

3. While the matter stood thus, pursuant to the notification; issued
inviting applications from the candidates in service as well as private
practitioners for admission to the Post Graduate Diploma/Degree/MDS
Courses in the Tamil Nadu Government Medical/Dental Colleges, the
respondent also made an application and submitted the same with the
enclosures to the Deputy Director of Health Services, Tuticorin on 7.2.1997
for transmission to the Secretary of the Selection Committee as required, she
being a service candidate. It appears the Deputy Director, the fourth appellant
herein, has, by his communication dated 13.2.1997, returned the application
stating that it shall riot be forwarded for the reason that she is ineligible in
view of the communication of the Secretary, Selection Committee, haying
regard to the departmental disciplinary proceedings pending against her. It is
at that stage, the writ petition came to be filed contending that the charges
covered under the Charge Memo issued on 20.7.1996 were referable to the
period 1990, that it cannot stand in the way of the respondent applying or
participating in the selection or getting selected for the Course in question, that
mere disqualification or a ground of ineligibility for any purpose and the
clause in the prospectus noticed above rendering persons like the respondent
ineligible for applying for higher educational course and thus preventing her
educational rights said to be enshrined in Articles 14, 19 and 21 of the
Constitution of India is unconstitutional and illegal and, therefore, the
respondents/appellants herein are bound to; entertain her application and
consider the same.

4. The appellants have filed a counter affidavit contending that the condition in the prospectus noticed above is not only legal and valid, but the same will also be binding on anyone who submits an application and who is an in-service candidate and the said provision is constitutionally valid and

cannot be said to be unconstitutional or arbitrary or unreasonable as to warrant interference in this proceeding. While adverting to the fact that departmental proceedings are pending against the respondent and the merits and demerits of the charges cannot be gone into in the present proceedings, reference is made to Clause 31, which obliges an applicant to state as to whether there are any criminal proceedings, enquiry or disciplinary proceedings, pending or contemplated, against an applicant and as a corollary to this provision only the condition in the Prospectus is envisaged for imposition and that the restriction, if any, imposed by the operation of the said condition is reasonable and in public interest. It is.also contended for the appellants in the counter affidavit that the claim of the respondent that even persons who are found or considered to be ineligible by virtue of the impugned clause or condition, would come under Clause VIII (7) and they will be to be considered under the Open Quota for general candidates is not correct and that Clause VIII (7) will have application only to an eligible candidate and not a candidate who is found to be ineligible for any reason or purpose to submit an application and, therefore, the respondent cannot be treated as an Open Quota Candidates or considered as against the same. The claim asserted in an attempt to compare the incident with reference to the applications submitted to the All India Institute Of Medical Sciences, New Delhi, is disputed on the ground that no such condition as is now challenged and provided for in the present application was available in the Application0/Prospectus to the All India Institute of Medical Science, Finally, it was contended for the appellants in the counter affidavit that the principles of estoppel would equally apply to disable the respondent from reprobating and challenging the conditions stipulated in the prosectus Under which the selection to the course is attempted to be made.

5. On the above claims and counter claims, the learned single Judge came to the conclusion that the rule of estoppel will have no application to disentitle the respondent from challenging the condition in question and that the right to education being a fundamental right, the impugned condition has no relevance with the object of the rules governing admission or the admission to the course in question, and on the further view that no material has been produced before the learned Judge as to why such a condition is being insisted, the learned Judge held the condition to be arbitrary and Violative of Article 14 of the Constitution of India. Aggrieved, the State has filed the above writ appeal.

6. Mr.Murugesan, learned Special Government Pleader for Education, contended that the learned single Judge was in error in coming to the conclusion that the respondent was not estopped from challenging the condition in question, that the view taken by the learned single Judge that right to education is a fundamental right and consequently the restriction cannot be sustained is wrong and at any rate, the restriction is a just and reasonable restriction and, therefore, the condition under the clause impugned should not have been struck down as unconstitutional or void and unenforceable. The decision in Mohini Jain v. State of Karnataka, is said to

be not applicable to the case on hand and that the restrictive clause in question, apart from being a reasonable one, is claimed to be based on an intelligible differential and, therefore, neither illegal nor unconstitutional. The classification between service candidates with doubtful service record and those without any such blemish or mixed records is said to be a reasonable one and, therefore, could not be considered to be in violation of Article 14 of the Constitution of India. Having regard to the limited number of seats available and the need for training candidates, who, as far as possible, have no cloud or mixed record is stated to be within the rights and permissible limits of the State and, therefore, the condition, which is said to be a reasonable one based on an intelligible differentia or classification having sufficient nexus to object sought to be achieved, ought not to have been interfered with. Per contra, Mr.N.R.Chandran, learned Senior Counsel appearing for the respondent, while adopting the reasons assigned by the learned single Judge also contended that as long as there is no impediment for an in-service candidate and his claims being considered against the Open Category of seats meant for others who are not in-service candidates on the basis of the respective merits or performance in the selection process, there was no justification whatso ever to completely screen or prevent or deny the in-service candidate even on the basis postulated in the condition under challenge from making any application to the course even for consideration and that, therefore, no exception could be taken to the order of the learned single Judge; The learned Senior Counsel for the respondent also reiterated that the right to education is a fundamental right and the educational prospects of the citizen like the respondent for improving her educational prospects and career cannot be denied and any such move to deprive such rights would constitute violation of Articles 14, 19 and 21 of the Constitution of India. The imposition of such a clause is said to be neither relevant nor germane to the course of studies in question and, therefore, wholly unjustified. Finally, it has been contended for the respondent that by virtue of the orders of this Court, the respondent was able to participate in the selection process and on being selected also was allowed to join and continue the course and it would work great hardship, if at this stage in the midst of the course the respondent is made to discontinue the study.

7. The learned counsel on either side invited our attention to some of the judicial pronouncements, to which a reference could be usefully made before considering the respective contentions of parties made before us. In Miss Sathya Rao v. University of Madras, 1977 (2) MLJ 403, a Division Bench of this Court had an occasion to consider the legality as also the competency of the Syndicate of the University of Madras to prescribe the eligibility qualification to be admitted in to a course of study in the University of Madras, the challenge there being the prescription made of a particular percentage of marks to a candidate, who has undergone a Ten Year Course in what is known as the Indian Certificate of Secondary Education Examination, which is different from the percentage of pass marks fixed for pass or eligibility marks fixed for those who passed secondary School Leaving

Certificate Examination after undergoing an Eleven Year School Course. The Division Bench was of the view that the stipulation could not be said to be extraneous or unconnected, but as a matter of fact, intimately connected with the education policy and, therefore, the same cannot be held to be an unreasonable also.

8. In Rohidas Marutirao Waghmare v. State of Maharashtra, , a Division Bench of the Bombay High Court had an occasion to deal with an issue relevant to the one before us. That was a case wherein the claim was in respect of selection of candidates for admission to super-speciality course in Medical Education, particularly in respect of seats reserved for in- service candidates. The application form prescribed obliged an in-service candidate to submit a certificate from the competent authority to the effect that the candidate is in the service of the concerned institution and fulfils the requirements fixed for an in-service candidate. The petitioner before the Court in that case did not submit the certificate in the prescribed form within the stipulated time, but merely submitted a certificate containing only the details of his service. The applicant before the Court in that case was not selected as against the quota reserved for in-service candidates and he – approached the Court to vindicate his rights as such. On behalf of the applicant, the case projected before the Division Bench there was that not only the applicant was in fact in the employment of the Director of Health Services to be treated as an in-service candidate, but the subsequent certificate produced containing the service records and the non-furnishing of the prescribed certificate in the prescribed form was a mere technicality and on that account alone, he should not have been deprived of the reserve seat. In considering such a claim, Mrs. Sujatha Manohar, J., as the learned Judge then was, who spoke for the Division Bench, held that the essential requisite for being treated as an in-service candidate is the factum of approval from the employer, who has to sponsor the in-service candidate and since such approval was lacking in that case, the non-selection of the applicant before Court as against the quota reserved for in-service candidate was correct. The sum and substance of the judgment of the Division Bench, though it did not involve any question of constitutional validity therein, has great relevance in appreciating the plea raised before us that the mere fact of the respondent herein being in-service is sufficient to consider her claim as an in- service candidate without any right in the department to withhold her application. The ratio of the decision of the Bombay High Court appears to be that permission and approval of the employer for going in further studies was considered to be essential apparently for the reason that being a full time course, and the service of the candidate concerned has to be spared for such course, the employer cannot be denied of their voice in the matter.

9. In A.Balasubramaniam v. Secretary to Government, Education Department, , a Division Bench of this Court had an occasion to consider a challenge to a prescription fixing the upper age limit of 21 years for all other candidates than Scheduled Castes and Scheduled Tribes

and Tamilian repatriates from Burma and Srilanka, violative of Articles 14 and 16 of the Constitution of India. The Division Bench, after considering the decision of the Apex Court in Unni Krishnan, J.P. v. State of A.P., repelled the challenge made on the ground of alleged violation of fundamental right of education in the following terms:-

“7. The next question for consideration is whether the prescription of age limit can be held to be violative of Arts. 14 and 21 of the Constitution. As long as there is an avenue open to the diploma-holder who are age barred for the course in question, to pursue, their higher studies the question of their fundamental right under Art. 21 being affected, does not arise: Moreover, it has been held in Unni Krishnan, J.P. v. State of A.P., that the fundamental right to education is guaranteed only upto the age of 14 years and not beyond that, in other words, there is no fundamental right to claim higher education. As far as Art. 14 is concerned, it depends upon whether there is a power vested in the Authority to prescribe the age limit. This question is no more res integra. Division Bench of this Court in P.Nithiyan & P.Prasanna v. State of Tamil Nadu, 1994 WLR 624 held that age limit can be prescribed for admission to educational courses. This has been approved by a Full Bench of this Court in S.R.Bhupeshkar v. The Secretary, Selection Committee, Sambarmathi Hostel, Kilpauk Medical College, Hostel Campus, Madras-10 and another, WP 12517 of 1994 and connected with petitions decided on 23rd December, 1994.”

10. Though the learned Judge appears to have placed strong reliance to sustain the plea of freedom to education as a fundamental right, relying upon what is known as Mohini Jain’s case, , the larger Bench of the Apex Court in the decision reported in J.P.Unni Krishnan v. State of A.P., in unmistakable terms held that a citizen’s fundamental right to education flowing from Article 21 of the Constitution of India is not an absolute right, but its content and parameters have to be determined in the light of Arts. 45 and 41 of the Constitution of India and that every child/citizen of the country has a right to free education until he completes the age of fourteen years and thereafter, the right is subject to the limits of economic capacity and development of the State. It is only adverting to the said aspect, the Division Bench of this Court in the decision in A.Balasubramaniam v. Secretary of Government, Education Department, , has held that the fundamental right to education guaranteed is only upto the age of fourteen years and not beyond that.

11. We have carefully considered the submissions of the learned counsel on either side, in the light of the relevant facts as also the governing principles of law and the decisions brought to our notice. The view taken by the learned single Judge to declare the stipulation in question contained in Para 4 of Clause VI of the prospectus cannot have our approval and the same has been done on an erroneous view of the governing principles of law. Equally, the learned Judge was in error in assuming and also proceeding on an hypothesis that right to education is fundamental right, in absolute terms. That the decision in Mohini Jain v. State of Karnataka, has taken such a view, can no longer the sustained or given credit to after the

decision of the larger Bench of the Apex Court reported in J.P.Unni Krishnan v. State of A.P., , which has held in unmistakable terms that the right to education guaranteed is only upto the age of 14 years and not at all stages and in respect of all classes and courses of studies and that too even at the post-Graduate level. The learned single Judge has also overlooked the further vital fact that as long as the respondent is in Government service, it is open to the Government to impose any stipulations or conditions on her right to pursue other avocations or studies – as long as she continues in service and she cannot claim for equal treatment in this regard with a person who is not in such service. A person in Government Service can be told that without the permission of the employer, he cannot make any application for pursuing further studies while in service, and if the Government thought fit that such permission should be accorded only to a person with clean record of service and not to one who has mixed record of service or at any rate under a cloud on account of pending departmental disciplinary proceedings, till the conclusion of the same and clearance by way of exoneration from charges, it is not for the Courts to interfere with the same, on any assumed and absolute fundamental rights of such a person. Matters of the nature will pertain to the area of policy and unless any discrimination is alleged and substantiated, there is hardly any scope for interference with the decision of the Government in such matters. It is not the case of the respondent that any differential treatment or discrimination is meted out among the class of persons who are in-service of Government and against who departmental disciplinary proceedings are pending. The decision of the Government in this regard, as noticed supra, partakes a decision of policy depending upon exigencies of situation, such as desirability of allowing a service candidate to pursue higher studies while continuing in service with service benefits, and to what extent such permission could be granted and subject to what conditions and stipulations the limited number of seats available. The financial commitments to the Government in providing such education, the need for regulating admissions to such courses, and the wisdom or otherwise of such decisions well within the discretion of the Government are not matters for this Court to be adjudicated in proceedings under Article 226 of the Constitution of India.

12. Further, we are also unable to accept the general assertion of the learned senior counsel for the respondent of the alleged violation of Article 14, 19 and 21 of the Constitution of India. As noticed earlier, such right has been construed to flow out of Article 21 of the Constitution of India and that too not in absolute terms or extent but confined up to the age of 14 years. The alleged violation of Articles 19 and 21 of the Constitution of India has no meaning or merit of acceptance in our hands. The respondent’s Counsel was unable to substantiate any plea of discrimination and except asserting that it is arbitrary and has no nexus or relevance to the object of selection of candidates for admission to undergo the studies in question, nothing illegal has been pointed out and no violation of any other law has been pleaded or proved. The right of the Government to impose restrictions or regulate the conduct while continuing in service, and as part of such rights to deny permission for persons like the respondent, to pursue further studies while in-service, has been considered by us supra and upheld and cannot be said to be violative of any of

the statutorily protected rights of the respondent. Having regard to the limited number of seats available and the financial commitments involved for the State, it is open to the Government to regulate admission of candidates who are already in service, to such courses in higher studies, of only those who have no cloud around them and who has no mixed or adverse record of service. While so, there is no rhym or reason in the mere cry of arritrariness, pleading some hardship only, since such claims of arbitrariness could be countenanced and rights of the Government asserted denied only if some provision of law or of Constitution is found to have been violated. In this case, no such violation having been substantiated, the alleged violation of Article 14 of the Constitution of India has no merit what so ever and has to be and is rejected. For all the reasons stated supra, we are unable to subscribe to or approve of the view taken by the learned Single Judge and we allow the writ appeal, upholding the condition imposed in para 4 of the Clause VI of the prospectus, and set aside the judgment of the learned Single Judge under challenge before us.

13. Having regard to the view taken by us on the above issue on merits, we consider it unnecessary for us to adjudicate on the issue relating to estoppel pleaded against the respondent/Writ Petitioner on account of her having opted to apply for the post agreeing for the terms and conditions stipulated in the prospectus from reprobating and challenging anyone of the clauses in the prospectus.

14. The learned counsel for the respondent contended that irrespective of the result of the appeal, in as much as the respondent has joined the course, she may be allowed to purpose the same, particularly having regard to the fact that the course has commenced on 8.5.1997 itself and disturbing her from continuing the same will cause irreparable loss and damages. On going through the materials on record, we find that the selection was in respect of the Academic year 1997-98. The respondent was selected and admitted to the Post Graduate Diploma Course in Child Health and it is stated that the duration of the course is two years. Indisputably, the candidate has joined the course on 8.5.1997 and she is undergoing the same in Tirunelveli Government Medical College and, as a matter of fact, two Semesters are over. Taking into account all these peculiar aspects of the case and the fact that the particular seat allotted to her would go waste and lapse and the time spent as also the money spent on her so far would also equally go without any fruit and as a consequence, public interest may also suffer on that account, we are of the view that interests of Justice will be better served to allow her, as a special case, to complete the Course. CMP 10703 of 1997 is dismissed.

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