Dr. Vasant S/O. Satwaji Babre vs The State Of Maharashtra Through ...
2003 Latest Caselaw 799 Bom

JUDGMENT

B.H. Marlapalle, J.

1. By resolution dated 16th November, 2000, the Government of Maharashtra announced the Rules for admissions to the Post-Graduate Courses in Medical Sciences for the in-service doctors/medical practitioners and this petition filed under Article 226 and 227 of the Constitution, has assailed the constitutional validity of Rule 2.1.4 and 7.9 of the Rules, It would be appropriate to reproduce these rules as under :-

2. The petitioner, on passing his M.B.B.S. Examination held in May, 1983, came to be registered as a Medical Practitioner with the Maharashtra Medical Council on or about 15th June, 1984 and he was admitted to the Post-Graduate Diploma Course in Anaesthesia at the Govt. Medical College, Aurangabad, around the same time as a regular student. On completion of the said Diploma course in 1986 he came to be selected by the Maharashtra Public Service Commission and appointed as Medical Officer. He was posted at Rural Hospital, Vashi in Osmanabad District on 22.2.1986. He had submitted applications for admission to the Post-Graduate courses in 1997, but was not successful on the ground that he had already acquired Post Graduate Diploma course in Anaesthesia. In response to his fresh application for admission to the Post Graduate Medical course for July, 2001 batch, he was interviewed and he had opted for admission to the M.S.(General Surgery) PG Course. In the merit list displayed, he was shown at Sr. No.41 whereas Dr. A.S. Thorat, Dr. Pathan, Dr. S.S. Deshpande and N.I. Bhosikar, were listed below the petitioner. However, the petitioner and Dr. Thorat were denied admission presumably relying upon the impugned rules.

3. Dr. Thorat approached the University and College Tribunal at Aurangabad in Appeal No. Adm.50/2001 and succeeded in the said appeal by decision dated 3.9.2001, as a result of which, he was granted admission to the M.S. (General Surgery) course. The petitioner had also sought similar relief in Appeal No. Adm.52/2001, but by judgment dated 28.9.2001 his appeal came to be dismissed solely for non-joinder of parties i.e. the Medical Officers who would be affected by displacement of Dr. Pathan ( respondent No.3), though the Tribunal observed that the petitioner was more meritorious than the candidates already admitted and that the provisions of Rule 2.1.4 and 7.9 of the Rules did not come in his way. The petitioner approached this Court challenging the said order and by an interlocutory order dated 22.1.2002, he was directed to be admitted to the M.S.(General Surgery) course for July 2001 Batch. This order was challenged by the State of Maharashtra in Special Leave to Appeal (Civil) No. 8359 of 2002 and it came to be disposed of by requesting this Court to decide the petition expeditiously and preferably within a period of 8 weeks and in the meanwhile, the impugned order came to be stayed. In the intervening period, the petitioner came to be admitted to the M.D. (Anaesthesia) PG Course in the July, 2002 Batch itself on or about 30th December, 2002 and the said Batch is almost at the fag end so far as the M.S.(General Surgery) course is concerned.

4. Shri Choudhari, the learned counsel appearing for the petitioner submitted that the provisions of the impugned rules have caused injustice to the in-service doctors and the restrictions put on them are not applicable to the other doctors, who are not in Govt. service to seek admission to the Post Graduate courses in Medical Sciences. He also submitted that there is no nexus between the restrictions put on in-service doctors and the end to be achieved by allowing them to join such courses so as to acquire better qualifications aimed at catering to more specialized medical care. If a doctor has acquired a Diploma in a particular medical speciality, there is no reason why he should not be allowed to join a Degree course in another discipline other than the discipline, in which he has acquired a Diploma course, so long as he finds his place in merit in the select list prepared by the competent authority. In support of these submissions, the learned counsel has relied upon the following cases :-

(1) "Pavai Ammal Vaiyapuri Education Trust Vs. Government of Tamil Nadu and others" .

(2)"Dr. Preeti Srivastava and another Vs. State of Madhya Pradesh and others" .

(3)"Dr. Vikrant Parihar Vs. State of Jammu and Kashmir and others." .

5. All these decisions reiterate the well-recognized principle of admissions on merit and the said principle has not been violated by the State Government in the Admission Rules framed for the in-service medical officers by the resolution dated 16th November, 2000 or in the amended rules of PGM-CET 2002.

6. Shri Golegaonkar, the learned counsel appearing for the respondent No.8, while supporting the petitioners challenge to the validity of the impugned rules has invited our attention to the preamble to the PGM-CET 2002 Rules, and submitted that when such a laudable objective of affording better opportunities to the in-service doctors so as to cater to more specialized medical needs in the rural areas, there is no justification in placing such unreasonable restriction that a doctor obtaining a Degree or Diploma in one course of Post Graduation, cannot switch over to another Diploma or Degree in a different discipline. He contended that this violates the guarantee of equality, as enshrined under Articles 14 and 16(1) of the Constitution. In support of the challenge to the Rules, he relied upon a Division Bench decision of this court in the case of " Dr. Varsha Shreedhar Ambalkar Vs. State of Maharashtra and others" 1994(2) Mh.L.J.1203.

7. Mrs. Gondhalekar, the learned AGP, on the other hand has referred to the affidavit-in-reply filed on behalf of the State authorities and submitted that challenge to the validity of Rule 2.1.4 and 7.9 of the Rules is required to be rejected, more so because the in-service candidates have already been given a preferential treatment in the admission rules framed and they are allowed to join these P.G. Courses as if on duty (while being student of such P.G. courses they are treated to be on duty and paid full salary). The State Govt. has invested huge salary amounts on these doctors and the Government has a better knowledge and authority regarding their utility in a particular discipline. It would not be in public interest to allow a medical officer with M.D.(Medicine) to switch over to M.S.(General Surgery). The health care of the rural masses is the prime consideration and the professional advancement or advancement in academic achievements of the Govt. servants, cannot outweigh the public interest. She has pointed out that there is a fixed quota of seats available for the in-service doctors and relaxation, even the Entrance Test, has been incorporated and made compulsory for the in-service doctors as well. She concluded her arguments by submitting that the restriction put by the impugned rules is a reasonable restriction in public interest and , therefore, it does not violate the guarantee of equality enshrined under Article 14 and 16(1) of the Constitution.

8. In the case of "Dr. Varsha Ambalkar" (Supra), Rule 10 and 11 of the Rules for admission to P.G. Dental Courses, were under challenge. The provisions of the said Rules did not put restrictions, which are envisaged in the impugned rules before us and, therefore, reliance on the said decision is totally misplaced. We have noticed that though the in-service doctors are also required to appear for the Central Entrance Test like the private medical practitioners while seeking admission to P.G. Medical Courses, they cannot be treated to be equal to such private medical practitioners. In the Govt. Resolution dated 16th November, 2000, 25 % seats were reserved for the in-service candidates. However, by Corrigendum dated 24th January, 2001, Rule 2.1.5 was incorporated in the rules announced by the Govt. Resolution dated 16th November, 2000 and the 25% quota for the in-service candidates has been increased to 50%. The in-service medical officers, who are allowed to join the P.G. Courses, are treated to be on duty and paid full salary. Thus, the State Govt. invests its financial resources on them and also for making alternative arrangements to cater medical services in their places. It is also noticed that the written test, for PGM - CET, has prescribed less subjects for the in-service candidates as compared to the private medical practitioners seeking such admissions. The PGM CET for private candidates has prescribed 21 subjects for the written test, whereas, for the in-service candidates, the subjects are limited to 14. In addition, the private candidates are evaluated for 300 marks in the test, whereas the in-service candidates are evaluated against 200 marks.

9. A medical officer, who has already obtained a P.G. Diploma in a particular discipline is allowed to improve his qualifications by joining a Post Graduate Degree course in the same discipline and thus, there is no ban as such, on improvement of qualifications. However, if a medical practitioner, who has obtained a Diploma course in Gynaecology, is not permitted to join M.S. (General Surgery) or M.D.(Medicine) but has the freedom to join a P.G. Degree course in Gynaecology itself. The Govt., by taking into consideration, the needs of medical care in the rural areas, has kept a definite objective in mind and the exigencies of service as well and prescribed the restrictions. These restrictions, therefore, cannot be called as unreasonable and un-connected with the aim to be achieved. We have no doubt in our mind that the impugned restrictions certainly have a reasonable nexus with the aim to be achieved and the equals are not being treated as un-equals. On the other hand, there are no two equal groups in the instant case and the challenge is, by the in-service medical officers, who cannot compare themselves with the private medical practitioners while seeking admissions to the P.G. Medical courses. Right from June 1995, the State Govt. framed new rules for admission to the P.G. Medical courses and no applicant from the in-service candidates has been permitted to register for a Degree course when he has been already in possession of another Degree. The in-service candidates are also governed by the Maharashtra Civil Services Rules and the State Govt. is required to incur more financial commitments on the in-service candidates than it has already incurred on them, while they were students for the M.B.B.S. Course. We are also mindful of the fact that by allowing such change of discipline, the tenure of medical officer as a specialist in a particular faculty is either reduced, changed or terminated and he starts afresh in a new speciality. One may argue that if the restrictions are removed, the medical officers may have a flexibility or added knowledge of another faculty. However, these arguments would not be in public interest and, therefore, it cannot be considered, keeping in mind the Governments commitment to cater to the health care in the rural areas and the Govt. hospitals in all other places. In case the medical officer is keen to change over the speciality, he is at liberty to leave the Govt. service and seek such change over by appearing for the CET as a private medical practitioner. The impugned restriction is applicable only while he is in the Government service. The constitutional guarantee available to a private citizen may be restricted to a Government Servant, keeping in mind the needs of State service and so long as such needs have a prime consideration over the Govt. servants rights as a citizen, they cannot be treated to be unreasonable.

10. In the premises, the challenge to the validity of rules 2.1.4 and 7.9, is unsustainable and we hold that these rules are valid and intravires. The petition must, therefore, fail and the same is hereby dismissed.