{"id":250867,"date":"2002-11-21T00:00:00","date_gmt":"2002-11-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-k-janaki-vs-the-secretary-on-21-november-2002"},"modified":"2018-07-29T10:28:04","modified_gmt":"2018-07-29T04:58:04","slug":"dr-k-janaki-vs-the-secretary-on-21-november-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-k-janaki-vs-the-secretary-on-21-november-2002","title":{"rendered":"Dr.K.Janaki vs The Secretary on 21 November, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
Dr.K.Janaki vs The Secretary on 21 November, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 21\/11\/2002\n\nCORAM\n\nTHE HONOURABLE MR. JUSTICE K.P.SIVASUBRAMANIAM\n\nWRIT PETITION No.21565 of 2002\n\n\nDr.K.Janaki, B.D.S.                            .. Petitioner\n\n-Vs-\n\n1.The Secretary,\n  Selection Committee,\n  Directorate of Medical Education,\n  Kilpauk, Chennai-10\n2.The Secretary,\n  The Dental Council of India,\n  Alwan-E-Gallib Marg. Kotla Road,\n  New Delhi-110 002.\n3.K.Dinakaran                           .. Respondents\n(RR.2 and 3 are impleaded as per order\n of Court dt.31.10.2002 in WPMP No.49830\n of 2002)\n\n                Writ petition filed under Article 226<\/a> of the  Constitution  of\nIndia  praying  for  the  issue  of  a Writ of Mandamus for the reasons stated\ntherein.\n\nFor Petitioner         :  Mr.K.M.Vijayan  for\n                        M\/s.La Law.\n\nFor Respondent-1 :  Mr.V.R.Rajasekaran,\n                    Special Govt.  Pleader\n\nFor Respondent-2 :  Mr.Perumbulavil Radhakrishnan\n\n:O R D E R\n<\/pre>\n
                        The  petitioner  prays  for  the  issue  of  a Writ of
\nMandamus to direct the respondent to admit the petitioner  for  the  only  odd
\nvacancy available  in  M.D.S.    Course  for  the  year  2002-2003 by applying
\ncondition No.29 in the prospectus issued for the year 2002-2003, enabling  the
\nremaining  vacancy  seat  being filled on the basis of merit among the service
\nand non service candidates put together.\n<\/p>\n
                                2.  According  to  the  petitioner,  he  is  a
\ndegree holder and  had applied for M.D.S.  Course for the year 2002-2003.  The
\nexamination was conducted by the respondent on  6.4.2002  and  the  petitioner
\nparticipated in  the  examination.  As per the prospectus, candidates securing
\nless than 40% of aggregate mark will not  be  called  for  counselling.    The
\npetitioner  had secured a total of 57.96 marks at the entrance examination and
\nstood ranked in the 25th position in the merit list.   Though  the  petitioner
\nwas  intimated  about  the  counselling  to  be  conducted  of 2 4.4.2002, the
\npetitioner has not been declared as selected.  In terms of the prospectus, 50%
\nof the seats will be made available for open competition and the remaining 50%
\nwill be exclusively made available for  service  candidates.    For  the  year
\n2002-2003, fourteen seats  were  allotted for M.D.S.  Course.  Hence the seven
\nseats were to be allotted to service candidates.  As against the  vacancy  for
\nservice  candidates,  no  eligible  candidate  had opted for the course M.D.S.
\nProsthodontics, for which the petitioner had applied.  Hence one seat  remains
\nvacant in the said course.  Therefore, the said seat h as to be declared as an
\nodd  seat and in filling up the odd seat, it has to be done in accordance with
\nmerit list, from both the service  and  non  service  candidates.    The  said
\nvacancy,  though  stands  reserved  for  service  candidates,  as there are no
\neligible candidates from the service category, the same has to be filled  only
\nby non  service  candidate  in  accordance  with merit.  The petitioner made a
\nrepresentation on 10.5.2002 to be considered  for  the  vacant  seat  but  the
\nrespondents have not favourably responded and hence the above writ petition.\n<\/p>\n
                        3.   In  the  counter  filed by the respondent, out of
\nfourteen number of seats, as per Clause 61, 50% of the seats  are  exclusively
\nset apart for admission from among the in service candidates.  The remaining 5
\n0% seats  have  to be filled up from the open competition.  Accordingly, seven
\nseats representing 50% of the total 14 seats are exclusively set apart for  in
\nservice candidates.    In terms of the said process, the seven candidates have
\nbeen selected as against non service quota.  The last of the candidate  having
\nsecured 61.65  marks.    As  against  the  quota  for  service candidates, six
\ncandidates had been selected, the last of the candidate having  secured  40.37
\nmarks.   As  one  more  vacancy  remain  to be filled up under the category of
\nservice candidates, Dr.K.  Dinakaran, who had secured only  36.86  marks,  was
\nselected and  he  was  placed as 7th in the service category.  Considering the
\nfact that there was no eligible candidate, who had secured total  marks  about
\n40%,  in  order  to  fill  up the 7th seat set apart for service category, the
\nGovernment decided  to  relax  the  minimum  eligible  criteria.    Therefore,
\nDr.K.Dinakaran.   who had secured 36.86 and placed at Serial No.286, was given
\nadmission in M.D.S.  Course under service category.  The relaxation thus given
\nto Dr.K.Dinakaran, was perfectly legal and necessitated to fill up the vacancy
\nunder service category.  The interpretation placed on the various  clauses  of
\nthe prospectus  by  the petitioner are incorrect.  There is no question of any
\nodd vacancy arising, since the vacancies are evenly  distributed  between  the
\ntwo categories  with seven seats for each category.  Therefore, the petitioner
\ncannot have the recourse to Clause 29 of the prospectus.\n<\/p>\n
                        4.   After  the  filing  of  the  writ  petition,  the
\nSecretary  to  the  Dental Council of India and K.Dinakaran, the candidate who
\nhad been selected and whose selection is in effect  questioned  in  this  writ
\npetition,  were  impleaded  as  R.2 and R.3 respectively in WPMP No.49830 of 2\n<\/p>\n
002.  While R.2 appears through counsel, R.3 is not represented.\n<\/p>\n
                        5.  Mr.K.M.Vijayan, learned  Senior  counsel  for  the
\npetitioner  contends  that  the  prospectus  for  the  year 2002-2003, clearly
\ndisqualifies candidates securing less than 40% of the aggregate marks and they
\nshall not called for counselling.  He would also submit  that  while  applying
\nthe  rule  of  reservation, in case of odd number of seat remaining vacant, it
\nshall be filled  up  only  on  the  basis  of  merit  among  the  service  and
\nnon-service candidates  put  together.  Therefore, the vacancy in the quota of
\nservice candidates which has fallen vacant as a result of absence of qualified
\ncandidates, the said vacancy should have been brought under  the  common  pool
\nand the petitioner should have been selected.\n<\/p>\n
                                6.   The  learned  Special  Government Pleader
\ncontends that fixation of quota in favour of the service candidates  had  been
\nupheld  by the Supreme Court in PRE-PG MEDICAL SANGHARSH COMMITTEE AND ANOTHER
\nVs.  DR.BAJRANG SONI AND OTHERS ((2001) 8 SCC 694).  In the same judgment, the
\nSupreme Court has also held that fixation of different\/lesser criteria for the
\nservice candidates was also permissible as long  as  the  Medical  Council  of
\nIndia has  not  stipulated  in  minimum eligibility mark.  In that case, it is
\nstated by the Supreme Court, the minimum cut off marks was reduced from 50% to
\n33% for service candidates and the same was approved by the Supreme Court.  He
\nwould also contend that  it  was  necessary  to  give  preference  to  service
\ncandidates,  as Doctors opting for Government Service were dwindling in number
\nand this has been approved by the Supreme Court in the said judgment.   It  is
\nonly  to  fill up the quota of service candidates, marks had to be reduced and
\nthe action of the respondents in granting relaxation to the  third  respondent
\nwas perfectly  legal.    There  was  no  ulterior  motive in the action of the
\nrespondents.\n<\/p>\n
                                7.  Mr.Perumbulavil  Radhakrishnan,  appearing
\nfor  The  Dental Council of India, represented that The Dental Council has not
\nprescribed any code of marks for being selected to Post Graduate Courses.\n<\/p>\n
                                8.  In reply,  Mr.Vijayan  contends  that  the
\ncase reported in (2001) 8 SCC 694, supra, dealt with different set of facts in
\nwhich  in  the  prospectus itself, the differential minimum marks in favour of
\nthe service candidates had been specified.  In the present case,  the  minimum
\nrequirement  as  disclosed  in  the prospectus itself was only 40% to both the
\ncategories.  Further more, in  a  later  judgment,  in  STATE  OF  PUNJAB  Vs.
\nDAYANAND MEDICAL COLLEGE AND HOSPITAL AND OTHERS reported in (2001) 8 SCC 664,
\nthe  same  Bench  of the Supreme has positively held that in dealing with Post
\nGraduation Courses, the sanctity of minimum qualifying marks prescribed by the
\nMedical Council of India must be maintained.  The said judgment is the  latter
\njudgment and therefore the requires to be followed.\n<\/p>\n
                                9.   I have considered the submissions of both
\nsides.  Under Clause-61, the selection will be made by  counselling  on  merit
\nand applying  rule  of reservation, wherever applicable.  50% of seats will be
\nmade available as open  competition  for  selection  among  both  service  and
\nnon-service candidates and 50% of the seats will be made available for service
\ncandidates.  Such reservation in favour of service candidates is not called in
\nquestion and  therefore there is no need to go into the said issue.  The issue
\nto be considered in this case is limited  as  to  whether  the  relaxation  in
\nfavour  of  the  service candidate (R-3) who did not admittedly secure minimum
\nmarks and his selection could be held as valid or not?\n<\/p>\n
                                10.  The relevant portion of Clause 29 of  the
\nprospectus is as follows:-\n<\/p>\n
Admission to P.G.    Degree\/Diploma\/Five  Year  M.Ch.   (Neuro-Surgery)\/M.D.S.
\nCourses shall be made by counselling on the basis of merit applying  the  rule
\nof reservation  wherever  applicable.  In case of odd number of seat remaining
\nvacant, that seat will be filled up based on  merit  only  among  Service  and
\nNon-Service candidates put together.\n<\/p>\n
Candidates will be called for counselling according to their rank in batches.
\n…  ….  ….  ….\n<\/p>\n
Candidates  securing  less than 40% of aggregate marks shall not be called for
\nCounselling”\n<\/p>\n
                                11.   As  regards  the  minimum   marks,   the
\nstipulation  is  very  positive and categoric and it is not possible to accept
\nthe contention that it is open to the Government to relax the minimum marks in
\nthe absence of any prescription of minimum marks by the Dental Council for the
\nfollowing reasons.  Even in the context of the judgment of the  Supreme  Court
\nas  mentioned  above,  there  is  actually no conflict as between the said two
\njudgements as it was perceived by the learned counsel for the petitioner.   In
\nthe  PRE-PG MEDICAL SANGHARASH COMMITTEE case, the first one in point of time,
\nthe decision by the State Government  in  fixing  a  different\/lesser  minimum
\nmarks  (50% to 33%) was taken even before the process of selection as could be
\nseen from the judgment.  It was a policy taken even before the invitation  for
\napplications, even though, there is no specific reference to any prospectus or
\napplication form.   Also in the background that the Medical Council of India (
\nM.C.I) had not stipulated any minimum cut off marks, the  Supreme  Court  held
\nthat the decision of the Government in fixing a lesser cut off criteria cannot
\nbe held  to  be invalid.  The selection related to the academic year 1997-1998
\nwhen the M.C.I had not prescribed  any  minimum  criteria.    But  the  second
\njudgment (State of Punjab Case) relates to the selection for the year 2001, by
\nwhich  time,  the  Post Graduate Medical Educational Regulation, 2000 had been
\nissued prescribing minimum criteria.  It is only in the  said  background,  in
\nthe second case, the Supreme Court held that the sanctity of the minimum marks
\nprescribed by  the M.C.I should be maintained.  In fact, in the first judgment
\nitself (PRE-PG MEDICAL SANGHARASH COMMITTEE) case, it was made clear in para-8
\nof the judgment that though in the year 2000, such a stipulation had been made
\nby the M.C.I, for the selection during the years which arose for consideration
\nin that case, there was no such stipulation.\n<\/p>\n
                                12.  Therefore, there is no  conflict  between
\nthe  two  judgments and in my opinion, the conclusions of the Supreme Court as
\ncould be gathered from the said judgments can be detailed as follows:-\n<\/p>\n
1.  As long as there is no specific stipulation of minimum marks by the  M.C.I
\nor  D.C.I  for  admission  into  Postgraduate  Courses, there is no bar on the
\nGovernment  to  prescribe  lesser  qualifying  marks  in  favour  of   service
\ncandidates.\n<\/p>\n
2.   If  there is a specific stipulation by the M.C.I or D.C.I, it is not open
\nto the Government to reduce the marks and it should be maintained.\n<\/p>\n
                                13.  However, the above  conclusion  does  not
\nhelp  the  respondents in the present case, for the reason that the Government
\ndid not make  any  distinction  between  service  candidates  and  non-service
\ncandidates in  the  matter of minimum marks.  The prospectus clearly envisages
\nthat no one securing less than 40% shall be  called  counselling.    The  said
\ncondition  admits of no exception and there is no clause empowering relaxation
\nof the said basic condition either in favour of  the  service  or  non-service
\ncandidates  in  the  event  of  the quota remaining unfilled up to the maximum
\nstrength.  It may be open to the State Government to prescribe such a power of
\nrelaxation or differential cut off marks for the future years in favour of the
\nservice candidates in the absence of any minimum criteria by the D.C.I.    But
\nwe  are  concerned  with  the  prospectus issued for 2002-2003 which makes the
\nminimum mark of 4 0% as mandatory.  Having prescribed a minimum cut off  mark,
\nit is  not open to the respondent to give any relaxation.  We are dealing with
\nPostgraduate Medical Education and to borrow the  expression  of  the  Supreme
\nCourt  in the STATE OF PUNJAB case, it is not open to the Government to dilute
\nthe standards by fixing lower marks.    In  recent  years,  the  standard  and
\nefficiency  of the Doctors in Government Service are coming under considerable
\ncriticism of unsatisfactory performance and it would be unsafe  to  allow  the
\nless  than  average  Doctors  to  climb  into  the higher strata of Government
\nMedical Service for which post graduate qualification is a must.    Therefore,
\nrelaxation granted in favour of and selection of R-3 has to be held as bad and
\nto be set aside.\n<\/p>\n
                        14.   The  next  question  for  consideration is as to
\nwhether the vacancy earmarked for service candidate viz.,  the  seventh  seat,
\nnow  given  to  the  third  respondent  being  set aside can be filled up by a
\nnonservice candidate.  It is stated that there is no other  service  candidate
\npossessing the  minimum  required  mark  of  40%.    I am unable to accept the
\ncontention of the learned  Senior  Counsel  for  the  petitioner  that  on  an
\ninterpretation  of Clause-29, in the event of odd seat remaining, then the odd
\nvacancy should be filled up on the basis of merit from among the  service  and
\nnon-service  candidates  and  in  the present case, as a result of one vacancy
\narising under the category of service candidates, the said vacancy  should  be
\ntreated as  odd vacancy.  The reference to the odd seat is only in the context
\nof fixing the number of seats in terms of  the  reservation  quota.    In  the
\npresent  case, the total number of seats being fourteen, seven seats go to the
\nservice category and seven seats for non-service  category.    Therefore,  the
\nreference  to  the  filling  up of odd seat under Clause-29 does not arise for
\nconsideration.\n<\/p>\n
                                15.  But we have to see whether a  non-service
\ncandidate can be taken in to fill up the seat earmarked for service candidate.
\nIt  is true that Clause-62 of the prospectus states that 50% of the seats made
\navailable for service candidates  under  service  quota  shall  be  filled  up
\nexclusively by  service  candidates.    But  in  the  event  of there being no
\nqualified service candidate, I am inclined to hold that the said provision has
\nto be ignored and should be read down and interpreted in a reasonable  manner.
\nIt  is  not  a  statutory  provision  but  a  regulation  intended  for proper
\ndistribution of the seats and cannot be assigned any rigid meaning leading  to
\nanomalous  situations  either  that  it  should be filled up by an unqualified
\ncandidate or should be allowed to remain vacant.  It will not be a healthy  or
\nproper  policy to leave any seat vacant in the Postgraduate Medical Course, in
\nthe face of hundreds of qualified candidates waiting to  acquire  postgraduate
\nqualification.   Postgraduate  qualification has now become very essential for
\nany practitioner and a mere M.B.B.S degree is for all practical purposes  does
\nnot provide  scope  for  private practice.  It must also be borne in mind that
\nthe number of seats  in  Postgraduate  Courses  in  the  Medical  Colleges  is
\nproportionately  very  much  lesser compared to the number of under-graduates.
\nEntering into Government Service has also become very  difficult,  considering
\nthe   limited  number  of  vacancies  in  proportion  to  the  undergraduates.
\nTherefore, it will not be in public interest to interpret Clause-62 rigidly to
\nthe effect that the vacancy should remain unfilled.\n<\/p>\n
                                16.   But  the  petitioner’s  claims   to   be
\nadmitted  in  the  course  cannot  be  automatic  in view of the fact that the
\nvacancy has to be filled up only in accordance with  merit.    The  petitioner
\ncannot  be  given the benefit of admission only because she has approached the
\nCourt.  In the counter, it is stated that she stands 25th in the ranking  list
\nwhereas  the  rank of the last candidate selected as against non-service quota
\nis 11 (eleven).  Therefore, if in between there  is  any  other  candidate  or
\ncandidates,  the offer has to go to them first and the claim of the petitioner
\ncan be considered only in the event of such candidates not responding.\n<\/p>\n
        17.   With  the  result,  I  am  inclined  to allow the writ petition,
\nsubject to the following observations:-\n<\/p>\n
1.   The relaxation of the minimum marks in favour of and the selection of R-3
\nis set aside.\n<\/p>\n
2.  In the absence of any service candidate satisfying the  minimum  marks  of
\n40%,  the  vacancy shall be filled up by a non-service candidate in accordance
\nwith merit\/ranking list.  The petitioner’s claim can be allowed  only  if  the
\nother  candidates  above  her  in  the ranking are not willing or they fail to
\nrespond.  The first respondent is directed  to  send  intimation  to  all  the
\ncandidates ranked  above  the  petitioner and proceed further accordingly.  No
\ncosts.  Consequently, connected WPMP No.29822 of 2002 is closed.\n<\/p>\n
Index :  Yes.\n<\/p>\n
Internet :  Yes.\n<\/p>\n
21-11-2002
\nsvn<\/p>\n
        The exercise may be completed within a period of four weeks  from  the
\ndate of receipt of a copy of this order.\n<\/p>\n
21.11.2002
\nSg<\/p>\n
To<\/p>\n
1.The Secretary,
\nSelection Committee,
\nDirectorate of Medical Education,
\nKilpauk, Chennai-10<\/p>\n
2.The Secretary,
\nThe Dental Council of India,
\nAlwan-E-Gallib Marg.  Kotla Road,
\nNew Delhi-110 002.\n<\/p>\n
\n","protected":false},"excerpt":{"rendered":"
Madras High Court Dr.K.Janaki vs The Secretary on 21 November, 2002 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-250867","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nDr.K.Janaki vs The Secretary on 21 November, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dr-k-janaki-vs-the-secretary-on-21-november-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dr.K.Janaki vs The Secretary on 21 November, 2002 - 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