Madras High Court
Dr.Parkaviyan R. .. 1St vs The State Of Tamil Nadu on 25 November, 2021
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W.P. Nos.22937-25749/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
12.01.2022 19.01.2022
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NOS.22937 & 25749 OF 2021
AND
W.M.P. NOS.24142, 24149, 24150, 27199 & 27200 OF 2021
1. Dr.Parkaviyan R. .. 1st petitioner in WP 22937/2021
.. Petitioner in WP25749/2021
2. Dr.Sellakannu
3. Dr.Jawahar S.R.
4. Dr.Karthck Raja S.
5. Dr.S.Sooraj Azarudeen
6. Dr.Arun Saravana
7. Dr. P.R.Jenifer Paul
8. Dr.Dhanvarshraaju C.
9. Dr. Fazil Arif M.
10.Dr.Baranidaran
11.Dr.Souther V.C. .. Petitioners 2 to 12 in
12.Dr.Sathish Kumar G. WP 22937/2021
- Vs -
1. The State of Tamil Nadu
rep. By its Prl. Secretary to Government
Health & Family (MCA-1) Department
Fort St. George, Chennai 600 009.
2. The Director of Medical Education
Directorate of Medical Education
Kilpauk, Chennai 600 010.
1/60
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3. The Selection Committee
rep. By its Secretary
Directorate of Medical Education
162, Periyar E.V.R. High Road
Kilpauk, Chennai 600 010.
4. National Medical Commission
rep. By its Secretary
Pocket-14, Sector-8
Dwarka Phase-I, New Delhi 110 077.
5. Dr. S.Muhamed Mujamil
6. Dr.Maharajan
7. Dr.Vaishnavi
8. Dr. J.Ragav
9. Tamil Nadu Medical Officers Association
25, MRJ Complex, Thirukkanurpatti
Nalroad, Vallam Main Road
Thanjavur 613 303.
10.Dr.K.Kaushik .. Respondents in both petitions
(R-5 impleaded vide order dated 25.11.2021
made in WMP No.26483/2021)
(RR-6 & 7 impleaded vide order dated
09.12.2021 made in WMP No.27657/2021)
(RR-8 & 9 impleaded vide order dated
23.12.2021 made in WMP No.27569/2021)
(R-10 impleaded vide order dated
23.12.2021 made in WMP No.29441/2021)
W.P. No.22937 of 2021 filed under Article 226 of the Constitution of India
praying this Court to issue a writ of certiorari calling for the records of the 3 rd
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respondent contained in its prospectus for admission to Post Graduate
Degree/Diploma courses in Tamil Nadu Government Medical Colleges and
Government seats in Self-Financing Medical Colleges affiliated to the Tamil Nadu
Dr. M.G.R. Medical University for 2021-2022 session dated 6.10.2021 and to
quash Serial No.29 (c) therein as arbitrary, unjust, illegal and ultra vires the
Constitution of India and Post-graduate Medical Education Regulations, 2000.
W.P. No.25749 of 2021 filed under Article 226 of the Constitution of India
praying this Court to issue a writ of certiorari calling for the records of the 1st
respondent contained in G.O. (D) No.1108 dated 4.10.2021 and to quash the
same as arbitrary, unjust illegal and ultra vires the Constitution of India and Post-
graduate Medical Education Regulations, 2000.
For Petitioners : Mr.Suhrith Parthasarathy
For Respondents : Mr. J.Ravindran, AAG for RR-1 to 3
( In WP 22697/21) Mr. P.Wilson, SC, for
M/s.Wilson Associates RR-5, 8 & 9
Mr. Issac Mohanlal, SC, for
M/s.Issac Chambers, for RR-6 & 7
Mr. E.Manoharan for R-10
(In WP 25749/21) Mr. J.Ravindran, AAG for RR-1 to 4
Ms. Subharanjani Ananth for R-5
M/s.Wilson Associates RR-6 to 8
Mr. Issac Mohanlal, SC, for
M/s.Issac Chambers, for RR-9 & 10
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COMMON ORDER
Assailing S. No.29 (c) of the impugned prospectus issued for filling up the
seats in the post-graduate degree courses in medicine, under the 50% State
quota, in and by which in-service candidates, who had put in service in difficult
terrains in the State, were permitted to carry on their weightage marks not only
for the reserved seats, but also permitted to compete for the seats under the
open category by carrying with them the weightage marks, which is in violation of
Article 14 of the Constitution and also the decisions of the Hon'ble Supreme
Court, the present petitions have been filed.
2. It is the case of the petitioners that they have completed the bachelors
degree in medicine and registered themselves with the Tamil Nadu Medical
Council and are aspiring to pursue their post-graduation for which they appeared
in the National Eligibility-cum-Entrance Test (NEET) for the year 2021-2022 by
securing marks and also securing all India ranks.
3. It is the further case of the petitioners that Regulation 9 (4) of the Post-
Graduate Medical Education Regulations, 2000 (for short 'Regulations, 2000)
issued by the 4h respondent provides that a merit list for admission to the post-
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graduate course will be prepared at All India level and at State level based on the
marks obtained by the candidates in NEET. In the State of Tamil Nadu, presently
50% of the seats to post-graduate degree courses are allocated towards the all
India quota and the remaining 50% seats are allocated to the Tamil Nadu
Government Medical Colleges and Government seats in Self-Financing Medical
Colleges. Further, admission for 2021-2022 are governed by the prospectus for
admission to post-graduate degree/diploma courses in Tamil Nadu Government
Medical Colleges and Government seats in Self-Financing Medical Colleges. The
grievance of the petitioners herein is to S. No.29 (c) of the impugned prospectus
wherein a stipulation has been made that “out of the 50% seats in State
Government quota, 50% of the seats will be exclusively allocated to in-service
candidates serving in Government health institutions in the State of Tamil Nadu
and remaining 50% of seats will be allocated to Open category which will be open
to both service and non-service candidates. The seats in above categories will be
filled up based on the marks already defined or such criteria to be defined by the
Government from time to time .....”.
4. It is the further case of the petitioners that the provision at S. No.29 (c)
is manifestly arbitrary, disproportionate and ex-facie illegal and the respondents
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have acted beyond the power granted to them as the Regulations, 2000 have not
only assigned weightage to in-service doctors from remote/difficult/hilly/rural
areas within the 50% seats allotted exclusively to in-service doctors, but also
permitted in-service doctors to apply in the open category and have granted the
same weightage to in-service doctors from remote/difficult/hilly/rural areas in
open category. The said provision, according to the petitioners, dilutes any
conception of merit in admissions and as such, unjust, unfair, arbitrary and
discriminatory and ultra vires the Constitution.
5. Learned counsel appearing for the petitioners submit that the
petitioners have no grievance insofar as reservation of 50% for in-service
candidates is concerned and also the weightage granted to the in-service
candidates for rendering service in remote/difficult/hilly/rural areas and adding
the said weightage to their NEET score to arrive at the overall merit within the in-
service quota, however, the said weightage cannot be carried over by the in-
service candidates through to the open category seats to the tune of 50%, as that
will be giving the said in-service an undue advantage over the open category
candidates.
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6. It is the further submission of the learned counsel for the petitioners
that the weightage is given to the in-service candidates serving in
remote/difficult/hilly/rural areas over their counterparts in the service of the
Government, who render service in urban and corporation areas. The said
weightage cannot be carried over by the in-service candidates to the open
category, as within the open category are persons, who render service in private
hospitals and are coming from such remote/difficult/hilly/rural areas and giving
weightage to the in-service candidates rendering service in
remote/difficult/hilly/rural areas will be in discrimination to persons rendering
service in other hospitals or are residents of such remote/difficult/hilly/rural
areas. Grant of such weightage outside the in-service quota is wholly arbitrary,
discriminatory and in violation of Article 14 of the Constitution.
7. It is the further submission of the learned counsel for the petitioners
that proviso to 9 (4) of Regulations, 2000, though provides for grant of weightage
marks as incentive by certain percentage for persons rendering service in remote
and/or difficult areas or rural areas as a percentage of their NEET score to be
added to their NEET score for determining the merit of candidates, who are in-
service, but the said score cannot be added to the NEET score of the individual for
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arriving at the merit insofar as open category candidates are concerned, as the in-
service candidates and the open category candidates, are two different modes of
selection of candidates to the post-graduate degree and the merit list of the open
category candidates along with the communal reservation is arrived at as per the
procedure contemplated u/r 9 (4) before application of the provisio clause.
8. In this regard, learned counsel for the petitioner drew the attention of
this Court to Regulation 9 (4) wherein it has been clearly detailed that an all India
merit list as well as a State-wise merit list of the eligible candidates shall be
prepared on the basis of the marks obtained in NEET and candidates shall be
admitted to post-graduate courses from the said merit list only. It is therefore
the submission of the learned counsel for the petitioners that proviso to 9 (4) of
Regulation, 2000, is, in effect, a stand-alone provision, as the fixation of merit for
open category comes by application of 9 (4) and that the proviso pertains only to
in-service candidates, whose inter se merit shall be determined after awarding
weightage incentive marks and adding the same to the NEET score of the
particular individual for arriving at the overall merit within the 50% quota
earmarked for in-service candidates.
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9. In this regard, learned counsel appearing for the petitioners placed
reliance on the decision of the Hon'ble Supreme Court in State of M.P. & Ors. -
Vs – Gopal D.Tirthani & Ors. (2003 (7) SCC 83), wherein the Hon'ble Supreme
Court, while approving the earmarking of 50% seats under the State-wise quota
for in-service candidates, had gone on to hold as under :
“Nature of 20% seats allocated for the in-service candidates
— reservation or channel of entry?
19. The controversy in the present litigation does not concern
the open category candidates; it is confined to the in-service
candidates. We, therefore, propose to preface our discussion by
determining the nature of 20% seats allocated to the in-service
candidates — whether it is by way of reservation or quota or is a
channel of entry. Our task stands simplified by the law laid down
by a three-Judge Bench decision of this Court recently in K.
Duraisamy v. State of T.N. [(2001) 2 SCC 538] The question arose
for decision in almost a similar factual background. The seats
were at the State level and not all-India quota seats. The State
Government had allocated 50% of the seats exclusively for in-
service candidates and left the remaining 50% seats as open
quota i.e. to be filled in from out of such candidates as were not
in State Government service. The classification was made as
“service quota” and “open quota”, for in-service candidates and
other candidates respectively, confining the respective
class/cadre candidates to the respective percentages earmarked
for the two of them exclusively. The Court held:
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(i) the Government possesses the right and authority to
decide from what sources the admissions in educational
institutions or to particular disciplines and courses therein
have to be made and that too in what proportion;
(ii) that such allocation of seats in the form of fixation
of quota is not to be equated with the usual form of
communal reservation and, therefore, the constitutional
and legal considerations relevant to communal
reservations are out of place while deciding the case based
on such allocation of seats;
(iii) that such exclusive allocation and stipulation of a
definite quota or number of seats between in-service and
non-service or private candidates provided two separate
channels of entry and a candidate belonging to one
exclusive quota cannot claim to steal a march into another
exclusive quota by advancing a claim based on merit. Inter
se merit of the candidates in each quota shall be
determined based on the merit performance of the
candidates belonging to that quota;
(iv) that the mere use of the word “reservation” per se
is not decisive of the nature of allocation. Whether it is a
reservation or an allocation of seats for the purpose of
providing two separate and exclusive sources of entry
would depend on the purpose and object with which the
expression has been used and that would be determinative
of the meaning, content and purport of the expression.
Where the scheme envisages not a mere reservation but is
one for classification of the sources from which admissions
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are to be accorded, fixation of respective quota for such
classified groups does not attract applicability of
considerations relevant to reservation simpliciter.
* * * * * * * *
21. To withstand the test of reasonable classification within
the meaning of Article 14 of the Constitution, it is well settled
that the classification must satisfy the twin tests: (i) it must be
founded on an intelligible differentia which distinguishes persons
or things placed in a group from those left out or placed not in
the group, and (ii) the differentia must have a rational relation
with the object sought to be achieved. It is permissible to use
territories or the nature of the objects or occupations or the like
as the basis for classification. So long as there is a nexus
between the basis of classification and the object sought to be
achieved, the classification is valid. We have, in the earlier part
of the judgment, noted the relevant statistics as made available
to us by the learned Advocate-General under instructions from
Dr Ashok Sharma, Director (Medical Services), Madhya Pradesh,
present in the Court. The rural health services (if it is an
appropriate expression) need to be strengthened. 229
community health centres (CHCs) and 169 first-referral units
(FRUs) need to be manned by specialists and block medical
officers who must be postgraduates. There is nothing wrong in
the State Government setting apart a definite percentage of
educational seats at postgraduation level consisting of degree
and diploma courses exclusively for the in-service candidates. To
the extent of the seats so set apart, there is a separate and
exclusive source of entry or channel for admission. It is not
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reservation. In-service candidates, and the candidates not in the
service of the State Government, are two classes based on an
intelligible differentia. There is a laudable purpose sought to be
achieved. In-service candidates, on attaining higher academic
achievements, would be available to be posted in rural areas by
the State Government. It is not that an in-service candidate
would leave the service merely on account of having secured a
postgraduate degree or diploma though secured by virtue of
being in the service of the State Government. If there is any
misapprehension, the same is allayed by the State Government
obtaining a bond from such candidates as a condition precedent
to their taking admission that after completing PG
degree/diploma course they would serve the State Government
for another five years. Additionally, a bank guarantee of rupees
three lakhs is required to be submitted along with the bond.
There is, thus, clearly a perceptible reasonable nexus between
the classification and the object sought to be achieved.”
10. On the strength of the ratio laid down above by the Hon'ble Supreme
Court, it is the submission of the learned counsel for the petitioner that the two
different sources of selection being found on intelligible differentia, the Hon'ble
Supreme Court had distinguished the persons or things placed in a group from
those left out or placed not in the group. That being the case, diluting the ratio
laid down in the aforesaid decision by the inclusion of S. No.29 (c) is nothing but
an affront attack on the said decision by administrative overreach.
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11. It is the further submission of the learned counsel for the petitioners
that similar issue, akin to the issue before this Court, has already been considered
by the Hon'ble Supreme Court in the case of Satyabrata Sahoo & Ors. - Vs –
State of Orissa & Ors. (2012 (8( SCC 203). In the said decision, in-service
candidates in the Orissa Medical Service competing in the open category were
also granted additional incentive marks if they had served in rural/tribal areas,
etc., thus restricting the scope of directory category candidates to gain admission.
In the said context, the Hon'ble Supreme Court held that giving weightage to in-
service candidates to gain admission through the open category in post-graduate
medical admission is invalid and it was held that the incentive marks granted not
only made inroads into the few open category seats available to the candidates
as it is also violative of Clause 9 (1)(a) of the MCI Regulations as per which
comparative merit is the only admission criteria permissible. In the said context,
the Hon'ble Supreme Court held as under :-
“13. Clauses 9(1)(a) and 9(1)(b) when read together would
indicate that 50% seats are earmarked for direct category
candidates and 50% seats are earmarked for in-service category.
Clause 9(1)(a) clearly states that students for postgraduate
medical courses shall be selected strictly on the basis of their
inter se academic merit and Rule 9(1)(b) states that 50% of the
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seats stand reserved for in-service candidates who have
rendered at least three years' service in remote and difficult
areas.
* * * * * * * *
15. Above Clause 9, therefore, stipulates the methodology to
be adopted for determining the inter se academic merit of
candidates who fall under direct category and of those
candidates who ultimately fall under 50% seats reserved for in-
service candidates. Clause 9(1)(a) clearly stipulates that students
for postgraduate medical courses shall be selected strictly on the
basis of “inter se academic merit”. The main controversy in this
case is whether the candidates from direct admission category
have to be selected strictly on the basis of their inter se
academic merit or whether it is legal to dilute the merit to the
extent as indicated in the third proviso to Clause 9(2)(d).
Candidates who fall in the direct candidates category, whether
they are fresh from the college or serving elsewhere, either on
government service or under public sector undertakings, working
in rural/tribal area or otherwise or doctors who are serving in
private hospitals or nursing homes, etc. situate in remote or
difficult area, all fall in that direct category and all of them have
to take a common entrance examination and admission criteria
is only comparative merit. When the comparative merit is the
only criteria in the open category, the question is whether a
weightage can be given exclusively to those candidates who are
in service of the State of Odisha/Government of Odisha
undertaking, whether contractual/temporary/ad hoc/regular on
the ground that they had worked in rural/tribal/backward areas.
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It may be noted that 50% seats have already been earmarked for
such category of candidates which they can always claim
depending upon the inter se merit after complying with other
eligibility criteria. Question is whether those in-service
candidates can appropriate seats from the open category where
seats are only few.
* * * * * * * *
20. Now by virtue of the third proviso to Clause 9(2)(d) and
Clause 11.2 of the prospectus, candidates who fall under the in-
service category are given a weightage through which they can
make an in-road into the direct candidates category while
retaining their rights to get admission for PG course through in-
service category. The appellants lament that already 66%
reservation is there in the State for PG admissions, including all
reservations and only 34% seats are available for direct
unreserved category on merit and if the third proviso to Clause
9(2)(d) of the MCI Regulations and Clause 11.2 of the prospectus
are given effect to then those seats would be occupied by the in-
service candidates in large number and candidates who come
strictly on the basis of merit through the competitive
examination will have to stand out.
* * * * * * * *
24. We have referred to the abovementioned judgments only
to indicate the fact that this Court in various judgments has
acknowledged the fact that weightage could be given for
doctors who have rendered service in rural/tribal areas but that
weightage is available only in in-service category, to which 50%
seats for PG admission have already been earmarked. The
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question is whether, on the strength of that weightage, can they
encroach upon the open category i.e. direct admission category.
We are of the view that such encroachment or inroad or
appropriation of seats earmarked for open category candidates
(direct admission category) would definitely affect the
candidates who compete strictly on the basis of the merit.
25. The purpose and object for giving weightage to in-service
candidates who have rendered rural/tribal service is laudable
and their interest has been taken care of by the Medical Council
of India as well as the prospectus issued for admission to the
various medical colleges in the State of Odisha but they have to
come through the proper channel i.e. the channel exclusively
earmarked for in-service candidates and not through the channel
earmarked for candidates in the open category. The in-service
candidates are also free to compete through the open category
just like any other who fall under that category. Further, it is also
relevant to note that those who get admission in postgraduate
courses through the open category have to execute a bond
stating that they would serve rural/tribal areas after completion
of their postgraduation. In fact, weightage is given to those
candidates who have rendered service in rural/tribal areas when
they compete for admission to PG (medical) courses in in-service
category for whom 50% seats are earmarked.
26. We also find another fallacy in Clause 11.2 read with
Clause 6.2.1 of the prospectus. Clause 6.2.1 of the prospectus
says that an in-service candidate is one who at the time of
application is in the employment in the Government of Odisha
and has completed a length of 5 years of service which includes
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all categories of employment like contractual/temporary/ad
hoc/regular by 31-12-2011. Therefore, a doctor who is doing
rural service on contract or on temporary basis or on ad hoc
basis by 31-12-2011 will also get the benefit. At the same time,
the candidates who pass out MBBS either in regular service or in
contractual/temporary/ad hoc service in a private hospital even
though serving in remote/tribal areas would not get that benefit
even though those doctors are also rendering the same service.
Every doctor who goes out of medical college after MBBS would
not get an opportunity to serve in a rural/tribal area by way of
contractual/temporary/ad hoc or regular service offered by the
State of Odisha or a public sector undertaking. Few may fall in
that category for various reasons and they get an advantage and
those who get that advantage of course can claim weightage
when they are being considered in the in-service category.
27. We notice that the seats earmarked for the open category
by way of merit are few in number and encroachment by the in-
service candidates into that open category would violate Clause
9(1)(a) of the MCI Regulations, which says that students for PG
medical courses shall be selected strictly on the basis of the inter
se academic merit i.e. on the basis of the merit determined by
the competent test. Direct category or open category is a
homogeneous class which consists of all categories of candidates
who are fresh from college, who have rendered service after
MBBS in government or private hospitals in remote and difficult
areas like hilly areas, tribal and rural areas and so on. All of them
have to compete on merit being in the direct candidate category,
subject to rules of reservation and eligibility. But there can be no
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encroachment from one category to another. Candidates of in-
service category cannot encroach upon the open category, so
also vice versa.
28. We find that except the State of Odisha and, to some
extent, the State of Tamil Nadu, none of the other States in India
has incorporated such a clause in any of their prospectus for
admission to the postgraduate medical courses and students
who fall under the open category in those States are, therefore,
not affected by such weightage.”
12. Learned counsel for the petitioners, taking further cue from the
aforesaid decision, further submitted that a candidate, practicing as a doctor in
the rural area or working in a private hospital in rural area would not get the
benefit which is being conferred on a Government doctor, who is in-service,
either on regular service or contractual/temporary/ad hoc service and, there
would arise a discrimination among two persons, who are equally placed, if
weightage is granted to one to the exclusion of the other.
13. It is the further submission of the learned counsel for the petitioners
that the Medical Recruitment Board had not conducted any exams for the past
two and half years and, therefore, every doctor, who goes out of medical college
after MBBS did not get an opportunity to serve in a rural/tribal area. That being
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the case, making inroads into the open category by persons from the service of
the Government carrying weightage incentive marks would further curtail the
scope of the persons in the open category and, therefore, the said S. No.29 (c),
which provides for the in-service candidates to compete in open category by
carrying on the incentive marks obtained by them would be wholly arbitrary,
discriminatory and in stark violation of Article 14 of the Constitution of India.
Therefore, it is prayed that the said provision, viz., 29 (c) of the impugned
prospectus deserves to be struck down or read down to the limited extent of
curtailing the in-service candidates from using the weightage incentive marks
only within the 50% quota earmarked for in-service candidates.
14. Per contra, learned Addl. Advocate General appearing for the State
while vehemently opposed the submissions advanced on behalf of the
petitioners, adverting to the counter filed by respondents 1 to 3, submitted that
incentive weightage marks is provided only in a miniscule proportion to in-service
doctors, discharging their duty in certain difficult terrains, as noted below :-
1 Difficult Areas in Hills - 10% marks per year
2 Difficult Areas in Plains - 9% marks per year
3 Remote Area - 8% marks per year
4 Rural Areas - 5% marks per year
5 Urban Areas (Municipal/Corporation Areas) - No incentive marks
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15. It is the submission of the learned Addl. Advocate General that the said
weightage incentive marks is given to the in-service persons, who discharge their
duties in places, foregoing all the comforts and their youthful time. It is not that
all the in-service candidates get the said incentive marks and, therefore, their
inclusion in the open category with the incentive marks would in no way hamper
the prospects of the petitioners in their selection process.
16. It is the further submission of the learned Addl. Advocate General that
the power of the State to provide for reservation has been upheld by the
Constitution Bench in T.N. Medical Officers Association & Ors. - Vs – Union of
India & Ors. (2021 (6) SCC 568), wherein the Hon'ble Supreme Court had upheld
the power of the State in the matters of admission in medical education flows
from Entry 25, List III of the Constitution. The Hon'ble Supreme Court has also
held that providing a separate channel for in-service candidates in the matter of
selection to post-graduate medical degrees, as held in Gopal Tirthani's case and
Duraisamy's case are good law, while overruling the three Judge Bench decision
in Dinesh Singh Chauhan's case upon which decision, reference was made to the
Constitution Bench. Therefore, in effect, the power of the State to provide for
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reservation and also for weightage marks for in-service candidates having been
recognized, the grievance of the petitioner that the respondents cannot provide
for S. No.29 (c) in the prospectus, as it infringes on their rights and equality, is
wholly misconceived.
17. It is the further submission of the learned Addl. Advocate General that
the testing times during COVID-19 pandemic had pushed the in-service doctors to
the brink of overburden and frustration and their union with their families during
the testing times speaks volumes about the sacrifices made by them for the larger
welfare of the general public and unmindful of the streesful times, the in-service
doctors, have put in their heart and soul for the good of the common man and,
therefore, their work was recognized by the State in the above manner by
providing for the said reservation and also for weightage incentive marks and for
carrying forward their marks to the open category seats as well. Placing reliance
on the information bulletin issued for NEET-PG-2021, wherein in clause 10.8 (3), a
clear provision has been made that State counselling will be conducted in
accordance with the applicable regulations, qualifying criteria applicable
guidelines and state reservation policies. That being case, the power for
conducting State counselling insofar as State quota seats are concerned, vests
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with the State Government, the State Government has prescribed the regulations
and qualifying criteria for selection to the open category and in-service seats to
the extent of reservation available to each category, which cannot be said to be
bad.
18. Learned senior counsel appearing for the private respondents, who are
candidates in-service of the Government and working at various places, where
they would be entitled to get incentive marks, as the place of their work falls
within the board classification of difficult/hilly/remote areas, submitted that the
proviso to Regulation 9 (4) should be read in tandem with Regulation 9 (4) and
should not be read in isolation. It is the submission of the learned senior counsel
that the inter se merit of a candidate is arrived at after publication of NEET results
and the score obtained by the candidate in the merit list on the State-wise quota
is finalized after adding the incentive marks given to an in-service candidate for
his services rendered in difficult/hilly/remote/rural areas. It is the submission of
the learned senior counsel that the merit list, found in proviso to Regulation 9 (4)
is a consolidated merit list and it cannot be two different merit lists, one for the
open category and one for in-service candidates.
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19. It is the submission of the learned senior counsel for the respondents
that G.O. Ms. No.462, which forms the basis for inclusion of S. No.29 (c) providing
the incentive marks to be carried over by the in-service candidates to open
category having not been challenged at all by the petitioners, the adding of the
incentive marks to the NEET score for arriving at the merit list cannot be
questioned by the petitioner. Further, the inter se merit has to be arrived at only
after adding the incentive marks to the overall NEET score, whereinafter, the
overall inter se merit of the individuals are assessed and, accordingly, they are
placed in the respective categories as per the percentage of reservation provided.
In this regard, learned senior counsel for the respondents drew the attention of
this Court to Regulation 9 (4) and proviso appended thereto to the Regulations,
2000, which is quoted hereunder, and submitted that the determination of merit
of the candidates found in the proviso to Regulation 9 (4) is the overall merit of
the candidate in the State-wise merit list and it cannot be a merit list applicable
only to in-service candidates.
“9. .........
(4) The reservation of seats in medical colleges/institutions
for respective categories shall be as per applicable laws
prevailing in States/Union Territories. An all India merit list as
well as State-wise merit list of the eligible candidates shall be
prepared on the basis of the marks obtained in National
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Eligibility-cum-Entrance Test and candidates shall be admitted to
postgraduate courses from the said merit lists only.
Provided that in determining the merit of candidates who are
in service of government/public authority, weightage in the
marks may be given by the Government/Competent Authority as
an incentive up to 10% of the marks obtained for each year of
service in remote and/or difficult areas or rural areas upto
maximum of 30% of the marks obtained in National Eligibility-
cum-Entrance Test. The remote and/or difficult areas or rural
areas shall be as notified by State Government/Competent
Authority from time to time.”
20. Learned senior counsel appearing for the respective respondents
submitted that the object of providing for reservation for in-service doctors, was
held to be a laudable object even by the Supreme Court as early as in the decision
in Duraisamy's case and Gopal Tirthani's case. However, it is the contention of
the learned senior counsel for the respondents that the decision relied on by the
petitioner in Gopal Tirthani's case and Satyabatra Sahoo's case have not
considered Regulation 9 (4) and the proviso appended thereto and, therefore,
the said decisions cannot be taken in aid of by the petitioner to seek similarity
with the issue before this Court.
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21. It is the further submission of the learned senior counsel for the
respondents that the Hon'ble Supreme Court, in T.N. Medical Officers Association
& Ors. - Vs – Union of India & Ors. (2021 (6) SCC 568) had, in fact, held Regulation
9 (4) as constitutionally valid and has held that any infraction of Regulation 9 (4)
would defeat its purpose. It is the further submission of the learned senior
counsel that approval has been granted by the Hon'ble Supreme Court for
admission from within the State's own merit list, inspite of there being a slight
variation in the merit list of the State. Reference was drawn to the relevant
observations of the Hon'ble Supreme Court, which are extracted hereunder :-
“23.5. That Regulation 9 of the MCI Regulations, 2000 does
not deal with and/or make provisions for reservation and/or
affect the legislative competence and authority of the States
concerned to make reservation and/or make special provision
like the provision providing for a separate source of entry for in-
service candidates seeking admission to postgraduate degree
courses and therefore the States concerned to be within their
authority and/or legislative competence to provide for a
separate source of entry for in-service candidates seeking
admission to postgraduate degree courses in exercise of powers
under List III Entry 25.
23.6. If it is held that Regulation 9, more particularly,
Regulation 9(IV) deals with reservation for in-service candidates,
in that case, it will be ultra vires of the Indian Medical Council
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Act, 1956 and it will be beyond the legislative competence under
List I Entry 66.
23.7. Regulation 9 of the MCI Regulations, 2000 to the extent
tinkering with reservation provided by the State for in-service
candidates is ultra vires on the ground that it is arbitrary,
discriminatory and violative of Articles 14 and 21 of the
Constitution of India.
* * * * * * * *
80. The disadvantages spelt out by the in-service doctors are
of being out of touch with academic developments because of
their pressing duties often in remote locations. These
disadvantages were considered by this Court in AIIMS [AIIMS
Students' Union v. AIIMS, (2002) 1 SCC 428 : 1 SCEC 886] , and it
was recorded in that judgment, in reference to K. Duraisamy [K.
Duraisamy v. State of T.N., (2001) 2 SCC 538 : (2007) 1 SCC (L&S)
1004 : 5 SCEC 126] in para 31 of the report: (AIIMS case [AIIMS
Students' Union v. AIIMS, (2002) 1 SCC 428 : 1 SCEC 886] , SCC
pp. 447-48)
“31. … Some of them had done graduation sometime in
the past and were either picked up in the government
service or had sought for joining government service
because, may be, they could not get a seat in
postgraduation and thereby continue their studies because
of shortage of seats in higher level of studies. On account
of their having remained occupied with their service
obligations, they became detached or distanced from
theoretical studies and therefore could not have done so
well as to effectively compete with fresh medical
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graduates at the PG entrance examination. Permitting in-
service candidates to do postgraduation by opening a
separate channel for admittance would enable their
continuance in government service after postgraduation
which would enrich health services of the nation.
Candidates in open category having qualified in
postgraduation may not necessarily feel attracted to public
services. Providing two sources of entry at the
postgraduation level in a certain proportion between in-
service candidates and other candidates thus achieves the
laudable object of making available better doctors both in
public sector and as private practitioners. The object
sought to be achieved is to benefit two segments of the
same society by enriching both at the end and not so much
as to provide protection and encouragement to one at the
entry level.”
* * * * * * * *
91. Regulation 9(IV) of the 2000 Regulations stipulates entry
into the postgraduate courses from the two merit lists, one all-
India and the other that of the State. The same was the scheme
of Regulation 9(IV) in its erstwhile form. The dispute in these
proceedings, however, is mainly on admission norms to
postgraduate degree courses. If the State authorities provide
reservation for in-service doctors from within the State's own
merit list, our view is that such an exercise would be relatable to
the admission process and the same would not be in breach of
any prohibition flowing from the 2000 Regulations. This would
entail some form of variation of the merit list of the State, but
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we do not find any prohibition under the 2000 Regulations
against a State undertaking that exercise. Such step undertaken
by the State would be relatable to the State's legislative power
derived from Entry 25 of the Concurrent List and not covered by
the 2000 Regulations. We do not find any repugnancy with the
2000 Regulations if the State authorities create such a distinct
channel of entry.
92. In Gopal D. Tirthani [State of M.P. v. Gopal D. Tirthani,
(2003) 7 SCC 83 : 2 SCEC 301] , there was reservation for in-
service candidates. This was found to be a separate and
exclusive channel of entry or source of admission. As we have
already observed, having a separate entry-channel for in-service
candidates to postgraduate medical courses has been a long-
standing practice. The Bench of three Hon'ble Judges of this
Court in Dinesh Singh Chauhan [State of U.P. v. Dinesh Singh
Chauhan, (2016) 9 SCC 749 : 8 SCEC 219] sought to distinguish
this factor on the ground that the provisions of Regulation 9,
which was applicable at that time Gopal D. Tirthani [State of
M.P. v. Gopal D. Tirthani, (2003) 7 SCC 83 : 2 SCEC 301] was
decided, was different from its form as it subsisted when the
former case was decided. But the relevant clause, as reproduced
in the judgment of Gopal D. Tirthani [State of M.P. v. Gopal D.
Tirthani, (2003) 7 SCC 83 : 2 SCEC 301] did not contain any
provision for separate entry route for in-service candidates.
* * * * * * * *
94. The selection criteria as contained in Regulation 9 of the
2000 Regulations, which was considered by this Court in Gopal
D. Tirthani [State of M.P. v. Gopal D. Tirthani, (2003) 7 SCC 83 : 2
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SCEC 301] and the content of Regulation 9, which is the subject
of dispute in the present set of proceedings are no doubt not
identical. But the said clause which was examined in Gopal D.
Tirthani [State of M.P. v. Gopal D. Tirthani, (2003) 7 SCC 83 : 2
SCEC 301] had a merit based approach. Reservation of in-service
candidates was made through executive orders of the State
Government. We are not to undertake a word to word
comparison of Regulation 9 as it prevailed at different points of
time. What matters here is that in its original or earlier version,
no provision for reservation or separate entry-channel for in-
service doctors has been shown to us by any of the learned
counsel appearing for the parties. The State Government orders
laid down such distinct source of entry. Interpretation of the
same clause in its present form should also be based on the
same underlying reasoning.”
22. It is therefore the submission of the learned senior counsel for the
private respondents that the Hon'ble Supreme Court having given its seal of
approval to providing of a separate channel for selection of in-service candidates
(doctors) under the State quota, the State is clothed with power under Entry 25
List III of the Constitution to frame any scheme for selection of candidates under
its quota and further Regulation 9 (4) and the provisio thereto having been held
to be constitutionally valid by the Hon'ble Supreme Court, the case of the
petitioners that the State cannot impose double reservation by counting the
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weightage incentive marks obtained by the in-service doctors, for services
rendered by them in difficult/hilly/remote/rural areas while considering their
case under the open category falls foul of the decision of the Hon'ble Supreme
Court in T.N. Medical Officers Association case and, therefore, the petitions
deserve to be dismissed.
23. In reply to the submissions advanced by the respective learned counsel
for the respondents, learned counsel appearing for the petitioners submitted that
the Hon'ble Supreme Court upholding Regulation 9 (4) and the proviso appended
thereto does not in any way imply that the Hon'ble Supreme Court has endorsed
double reservation to a group of persons to the exclusion of others. Learned
counsel for the petitioners submitted that in Satyabatra Sahoo's case, the
Hon'ble Supreme Court, in unequivocal terms has held that importing the
incentive marks granted to in-service candidates to be considered for their merit
being assessed in the open category is per se impermissible as the two avenues of
selection to the post-graduate degree courses are separate and one does not
lean over the other. It is the further submission of the learned counsel for the
petitioners that merely because Regulation 9 (4) and proviso thereto were not
the point for consideration in Satyabatra Sahoo's case would in no way be
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termed that the said decision cannot be taken as a binding precedent for giving a
finding in the present case.
24. It is the further submission of the learned counsel for the petitioners
that nowhere the petitioners question the reservation granted to in-service
candidates, nor they question the incentive marks granted to persons rendering
service in difficult/hilly/remote/rural areas amongst the persons in-service. The
grievance of the petitioners is only to the limited extent of the said incentive
marks being considered for drawing the merit list in the open category, as that is
not what is envisaged under Regulation 9 (4) and the proviso thereto. It is the
further submission of the learned counsel for the petitioners that the Hon'ble
Supreme Court, in T.N. Medical Officers Association case, while held that
Regulation 9 (4) to be constitutionally valid, had only spoken about the two
modes of selection and in fact, the Constitution Bench, in the said decision, has
affirmed the ratio laid down in Duraiswamy, Gopal Trithani and Satyabatra
Sahoo's case and had overruled only that portion of the decision in Dinesh Singh
Chauhan's case. Once the decision in Duraiswamy, Gopal Trithani and
Satyabatra Sahoo's case have not in any way been disturbed by the Constitution
Bench, the necessary inference that flows from the same is that the ratio laid in
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the said decisions have received the approval of the Constitution Bench. In such
a scenario, it is the submission of the learned counsel for the petitioners that the
said decisions having held that the State has power to grant reservation to in-
service candidates and also award incentive marks to such of those doctors, who
are in the service of the Government, discharging their service in
remote/hilly/difficult/rural areas, while arriving at the inter se merit of the said
persons in-service as valid, in equal terms had held that the two avenues of
selection, viz., open category and in-service are two separate channels and that
inter se merit has to be assessed in the respective channels and the inter se merit
of one channel cannot be imported to the inter se merit of the other channel. In
this regard, reference was made to para 3.14 and 3.15 of the decision in
T.N.Medical Officers Association case in which the Constitution Bench, while
referring and affirming the decision rendered by a Constitution Bench of
equivalent composition in Modern Dental College & Research Centre – Vs –
State of M.P. (2016 (7) SCC 353), held as under :-
3.14. In Modern Dental College & Research Centre [Modern
Dental College & Research Centre v. State of M.P., (2016) 7 SCC
353 : 7 SCEC 1] , the Constitution Bench of this Court has
affirmed that even though List III Entry 25 is subject to List I
Entry 66, the power of States to enact laws concerning
admissions would not stand extinguished so long as such laws
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did not have the effect of wiping out the law enacted by the
Union under List I Entry 66.
3.15. When the States create a separate source of entry for
in-service candidates, the standards of medical education are
not impinged inasmuch as:
(a) Only eligible in-service candidates can qualify i.e. those
have obtained minimum eligibility marks;
(b) Amongst eligible in-service candidates admission is made
based on inter se merit;
(c) The preferential weightage would merely alter the order in
which in-service candidates would rank in the merit list prepared
for in-service candidates. Thus, it would not be a case of “double
reservation.”
25. It is therefore the submission of the learned counsel for the petitioners
that the ratio in Modern Dental College case having been affirmed by the Hon'ble
Supreme Court and the Hon'ble Supreme Court has categorically held that the
separate source of entry for in-service candidates by giving incentive marks and,
thereby, assessing the inter se merit between similarly placed persons in the
service of the Government, the attempt on the part of the official respondents to
read something into Regulation 9 (4) and the proviso appended thereto is
nothing but trying to set at naught the decision rendered by the Hon'ble Supreme
Court in Duraisamy, Gopal Tirthani and Satyabatra Sahoo's case, which have
since been affirmed by the Constitution Bench in T.N.Medical Officers Association
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case. It is therefore the submission of the learned counsel for the petitioner that
the impugned S. No.29 (c) of the prospectus is in clear contradiction to the
dictum laid down by the Hon'ble Supreme Court in the aforesaid decisions.
26. It is the further submission of the learned counsel for the petitioners
that Regulation 9 (4) and proviso thereto were inserted in Regulations, 2000 on
15.2.2012, whereas the decision of the Hon'ble Supreme Court in Satyabatra
Sahoo's case was rendered on 3.8.2012 much after the introduction of the
aforesaid provision. The Hon'ble Supreme Court, while laying down the above
ratio, would definitely have been conscious of Regulation 9 (4) and the proviso
thereto and would have rendered the said decision holding that the incentive
marks granted to in-service candidates for discharging duties in
difficult/hilly/remote/rural areas should be counted only within the 50% quota
earmarked for in-service candidates, which will be only for the purpose of putting
them on an equivalent footing with the in-service candidates, who have had the
luxury of working in urban centres of the Governmental machinery and it is not
intended for the purpose of putting them on an equivalent footing with the
persons belonging to open category, as the two category of persons are not an
equatable denomination. Therefore, it is prayed that this Court may strike down
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Rule 29 (c) to the limited extent that it channelises the incentive marks obtained
by the in-service candidates to be taken into consideration for the purpose of
arriving at the merit list of the open category candidates.
27. This Court paid its careful consideration to the erudite submissions
advanced by the learned counsel on either side and perused the decisions as also
the relevant provision of law to which this Court's attention was drawn.
28. In extenso, decisions which have a bearing on the case, as relied on by
the respective counsel have been extracted adjacent to the relevant portion of
the submissions advanced by the respective counsel. Therefore, it would not be
necessary for this Court to once again extract the said portions, except to cull out
the ratio laid down in the said decisions to arrive at a decision one way or the
other.
29. The pith and substance of the argument advanced by the respondents
is that the proviso to Regulation 9 (4) of Regulations, 2000, providing incentive
marks should be taken into account while finalising the composite merit list for
filling up the seats under the State-wise quota through both modes of selection,
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viz., open category and in-service. To this end, the respondents draw the
requisite assistance from the decision of the Constitution Bench in T.N. Medical
Officers Association case.
30. However, the petitioners lay their hands on the decisions in
Duraisamy, Gopal Tirthani and Satyabatra Sahoo's case to put forth their case
that the incentive marks should be taken into consideration only for the purpose
of arriving at the inter se merit of the in-service candidates for the 50% quota
earmarked for in-service candidates and the said incentive marks cannot be
added to the NEET score for finalising the merit list insofar as open category seats
are concerned.
31. Before proceeding further to analyse the contentions and counter
contentions advanced on behalf of the contesting parties as also the State for
inclusion of S. No.29 (c) in th prospectus, an overall picture of the need to the
quota for in-service candidates, which has been carved under the State-wise
quota necessitates a look.
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32. The reason for providing for reservation of 50% in the State quota for
in-service candidates is mainly for the purpose of sustaining the objective of the
State in providing critical and necessary health care to the public and provide
valuable medical care to the poor and vulnerable members of the society. The
incentive marks and reservation of 50% in the state quota is mainly provided for
taking care of the welfare of the people by the State by improving the health
system and improving the overall quality and ability of the doctors, manning the
primary health centres to render timely service to the poor and needy.
33. It is also to be remembered that more than 50% of the population in
Tamil Nadu live in villages, where the basic medical facilities are below par.
There are about 1885 primary health centres in Tamil Nadu and many of the
primary health centres are located in the remotest part of the State, where giving
even the basic medical facilities is a herculean task. The State, with the laudable
object of improving the health care system and to provide the public with good
medical services at the opportune point of time has carved out the reservation
from among its quota in the medical seats in post-graduate and super specialty
courses for in-service candidates, so that such of those persons, would attach
themselves to the services of the Government in taking the necessary health
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facilities to the doorstep of the common man. The idea of providing the
reservation and incentive marking for in-service candidates is clear from the
observation made by the Constitution Bench in T.N. Medical Officers Association
case based on the submissions made therein and for better appreciation, the
relevant portion of the order is quoted hereunder :-
“3.18. It is submitted that so far as the State of Tamil Nadu is
concerned, the Hon'ble Chief Minister of Tamil Nadu in his Letter
dated 25-4-2017 to the Hon'ble Prime Minister, has highlighted
that providing only 30% weightage to in-service candidates
seeking admission to postgraduate degree course is not enough
since if this procedure is followed, out of the 557 postgraduate
government seats available under the State quota in Tamil
Nadu, only 20 seats would go to in-service quota candidates. It is
submitted that vide Letter dated 6-2-2019, the State of Tamil
Nadu wrote to the Ministry of Health and Family Welfare and
highlighted the contribution of the policy to provide 50%
reservation for in-service candidates in postgraduate degree
courses in attracting meritorious doctors to government service
and also enabling the State Government to provide
uninterrupted healthcare in rural, difficult and remote areas of
the State. It is submitted that it was further highlighted that this
reservation was critical for the maintenance of quality
healthcare in the government medical facilities.
3.19. The learned counsel appearing on behalf of the State of
Tamil Nadu has highlighted the benefits to be achieved by
providing 50% reservation for in-service candidates in
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postgraduate degree/diploma courses. It is submitted that
continuance of given incentive marks and reserving 50% seats
for in-service candidates who performed duty in remote, rural
area, hilly terrain, etc. in postgraduate courses will sustain the
achievement made by the State Government in the health sector
and provide valuable medical care to the poor and vulnerable
society. It is submitted that therefore, it is in the larger public
interest of the State that there is a provision for 50% reservation
in postgraduate degree/diploma courses/seats for in-service
candidates.”
34. It is to be pointed out that the State of Tamil Nadu is called the health
capital of India for the medical facilities that it boasts of and the numerous
advances that have taken place in the medical field in the State. Persons,
suffering ailments, from all parts of the country, reach the doorsteps of Tamil
Nadu for getting themselves treated with the vast and rich experience of the
doctors in the State. Further, it is also to be not lost sight of that the
infrastructure provided for the Government Hospitals is one of the highest in the
country. The Government, keeping in mind that a healthier society is the fulcrum
of a developing society, is continuously trying to improve the medical facilities
that it provides to the public so that the health of the public is maintained,
thereby, the State marches forward in all fronts and be a pioneer in all the fields
of excellence.
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35. It is only in this backdrop that reservation of 50% of the seats from the
State quota and also provision of incentive marks to the in-service candidates
performing their duty in remote/hilly/difficult/rural areas has been envisaged,
which is only to enable such in-service candidates to acquire higher and advanced
education in specialized fields to improve their professional talents for the
benefit of the patients to be treated in such medical institutions where the in-
service candidates are expected to serve. Further, permitting the in-service
candidates to do postgraduation by opening a separate channel for admittance
would enable their continuance in government service after postgraduation
which would enrich health services of the nation. Therefore, the object sought to
be achieved is to benefit the two segments of the same society by enriching both
at the end and not so much as to provide protection and encouragement to one
at the entry level.
36. Further, it is also not to be lost sight of that the villages are the
backbone of the country and developing the villages alone would pave the way
for further development of the country. The health of the villages and its
villagers is of foremost importance in securing the health of the nation. The
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degradation of the villages and villagers would have a cascading effect on the
physical health of the nation and the degradation of the physical health of the
public in the rural areas would have far reaching consequences in uplifting the
country on the global frontiers. Therefore, keeping in mind the necessity to
enrich the capabilities of the in-service candidates and making them acquire
higher academic qualification for the purpose of rendering better services to the
poor and needy public in the remotest part of the State, the State has stitched
together various provisions in the prospectus so that the public health is
maintained in higher standards by improving the quality and service of the
doctors, who render their service in such of the difficult terrains in the State and
this Court has to keep in mind the necessity for such a policy having been drafted
by the State while addressing the issue raised before this Court.
37. It is fairly conceded by the learned counsel on either side that
Regulation 9 (4) and proviso thereto were not subjected to discussion in the
decisions in Gopal Tirthani and Satyabatra Sahoo's case. However, in T.N.
Medical Officers Association case, the Constitution Bench had deliberated on
Regulation 9 (4) of Regulations, 2000 and held it to be valid in the context of the
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MCI Regulations. For better appreciation, the relevant portion of the decision of
the Constitution Bench is quoted hereunder for easy reference :-
“85. Regulation 9 of the 2000 Regulations is no doubt a self-
contained code. But as we have already observed, it is not an
exhaustive code covering all aspects of admission in
postgraduate medical degree courses. The scope of this code and
extent of its operation has been explained by this Court in
Yatinkumar Jasubhai Patel [Yatinkumar Jasubhai Patel v. State of
Gujarat, (2019) 10 SCC 1] .
* * * * * * * *
91. Regulation 9(IV) of the 2000 Regulations stipulates entry
into the postgraduate courses from the two merit lists, one all-
India and the other that of the State. The same was the scheme
of Regulation 9(IV) in its erstwhile form. The dispute in these
proceedings, however, is mainly on admission norms to
postgraduate degree courses. If the State authorities provide
reservation for in-service doctors from within the State's own
merit list, our view is that such an exercise would be relatable to
the admission process and the same would not be in breach of
any prohibition flowing from the 2000 Regulations. This would
entail some form of variation of the merit list of the State, but
we do not find any prohibition under the 2000 Regulations
against a State undertaking that exercise. Such step undertaken
by the State would be relatable to the State's legislative power
derived from Entry 25 of the Concurrent List and not covered by
the 2000 Regulations. We do not find any repugnancy with the
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2000 Regulations if the State authorities create such a distinct
channel of entry.”
(Emphasis Supplied)
38. The Constitution Bench has further held that Regulation 9 (IV) of the
MCI Regulations making provision for reservation of in-service doctors by the
State from the State-wise merit list published in pursuance of that provision
would result in deviation from a mandatory statutory scheme. The aforesaid sub-
clause is required to be construed in the light of the State's power to make
provision over the admission norms, provided the candidates fulfill the basic
admission criteria contained in the MCI Regulations. In the above context, the
Constitution Bench held as under :-
“83.3. Having regard to the legal and factual context of this
case and considering the fact that the issue of legislative
competence arises in respect of an entry belonging to shared,
and not exclusive field of legislations, in our opinion the said sub-
clause cannot be interpreted to mean that the State is denuded
of the power to make a separate channel of admission to the
said courses for in-service doctors from the State merit list. This
is an issue of legislative competence and the Nazir Ahmad [Nazir
Ahmad v. King Emperor, 1936 SCC OnLine PC 41 : (1935-36) 63
IA 372 : AIR 1936 PC 253 (2)] dictum does not come into conflict
with the interpretation we are giving to this clause. Application
of that principle solely on the basis of a Union legislation,
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without examining the scope of the State's legislative power in
the given context, would be contrary to the constitutional
scheme in having concurrent field of legislation. The said sub-
clause does not prescribe specific bar on the State authorities in
providing for such reservation or such separate entry channel.”
(Emphasis Supplied)
39. As already extracted supra, the Constitution Bench has held that if
Regulation 9, more particularly Regulation 9 (IV) of MCI Regulations deals with
reservation for in-service candidates, in that case, it will be ultra vires of the
Indian Medical Council Act, 1956 and it will be beyond the legislative competence
under List I Entry 66. The Constitution Bench has, therefore, held that the States
cannot be precluded from providing for reservation to in-service candidates
under its quota in exercise of its powers under List III Entry 25. For better clarity,
the relevant portion is extracted hereunder :-
“12.1. As held by this Court in earlier decisions, Regulation
9(IV) is limited only to reservation in favour of SC/ST/OBC and as
per the prevailing laws in the States. If that be so, then the
proviso which as such is not dealing with the reservation cannot
be said to be in the form of an exception to first part of
Regulation 9(IV) and it can be seen that it is an independent
provision dealing with the in-service candidates and that too for
the purpose of preparing the merit list. Thus, the proviso
becomes the substantive provision and is more concerned with
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the marks to be allocated which is the concern of Regulation
9(III). It is also required to be noted that even this proviso confers
a discretion on the State to provide for weightage in marks for
the services rendered in remote or difficult areas. The proviso
only enables the States by conferring the discretion for
weightage. The proviso has nothing to do with the reservation in
the postgraduate degree courses and therefore it shall not
negate the State's power to make reservation and/or make
special provision to provide for a separate source of entry for in-
service candidates seeking admission to postgraduate degree
courses. Thus, Regulation 9(IV) as such cannot be said to be
taking away the power of the States under List III Entry 25, to
provide for a separate source of entry for in-service candidates
seeking admission to postgraduate degree courses. Any contrary
view would affect the right of the States to make reservation
and/or to make special provision for admission in exercise of
powers under List III Entry 25. If it is construed that Regulation 9
of the MCI Regulations, 2000, more particularly Regulation 9(IV)
provides for reservation and/or deals with the reservation for in-
service candidates, in that case, it will be beyond the legislative
competence of the Union as well as it will be ultra vires to the
Indian Medical Council Act, 1956. As observed hereinabove,
Section 33 of the Indian Medical Council Act, 1956 does not
confer any power on MCI to make regulations with respect to
reservation. At the cost of repetition, it is observed that
“institutional preference”, despite the MCI Regulations, 2000,
has been upheld and held to be permissible by the States
concerned.
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* * * * * * * *
13.5. That Regulation 9 of the MCI Regulations, 2000 does not
deal with and/or make provisions for reservation and/or affect
the legislative competence and authority of the States concerned
to make reservation and/or make special provision like the
provision providing for a separate source of entry for in-service
candidates seeking admission to postgraduate degree courses
and therefore the States concerned to be within their authority
and/or legislative competence to provide for a separate source
of entry for in-service candidates seeking admission to
postgraduate degree courses in exercise of powers under List III
Entry 25.
13.6. If it is held that Regulation 9, more particularly,
Regulation 9(IV) deals with reservation for in-service candidates,
in that case, it will be ultra vires of the Indian Medical Council
Act, 1956 and it will be beyond the legislative competence under
List I Entry 66.
40. From the above, it is crystal clear that the Constitution Bench, in the
aforesaid case, has clearly held that the State is within its legislative competence
to create channels for filling up the seats which fall under the State-wise quota.
In exercise of the said power, the State had created two channels, not disputed,
being the open category and in-service category apportioning 50% of the seats to
each of the category of persons.
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41. To achieve the objective of catering to better public health,
Regulations 2000 is pressed into service, more particularly Regulation 9 (4), which
prescribes that State-wise merit list of eligible candidates shall be prepared on
the basis of the marks obtained in the National Eligibility-cum-Entrance Test and
candidates shall be admitted to post-graduate courses from the said merit lists.
From the above, it is amply evident that initially the merit list is based on the
NEET score obtained on all India basis. The said merit list would form the basis
for being considered for selection under the all India quota. Insofar as the State-
wise quota is concerned, based on the said merit list, after giving the 50% quota
to the all India merit list, the balance 50% quota is taken over by the State for
being given in accordance with the State-wise merit list. At this point, comes into
play the proviso to Regulation 9 (4) and the provisio thereto.
42. There is no quarrel with the fact that the candidates shall be admitted
to postgraduate courses from the two merit lists only as provided in Regulation 9
(4) and the same has been affirmed by the Constitution Bench in its judgment at
para-83.
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43. In the above backdrop of the affirmation by the Constitution Bench, it
is further evidenced from the said decision that the power of the State to make
provisions over the admission norms, provided the candidates fulfil the basic
admission criteria contained in the Regulations has been held to be valid by the
Constitution Bench. For better appreciation, the relevant portion of the said
finding is extracted hereunder :-
“83.2. But having regard to Regulation 9(IV) of the 2000
Regulations, we do not think the provision for reservation of in-
service doctors by the State from the State-wise merit list
published in pursuance of that provision would result in
deviation from a mandatory statutory scheme. The aforesaid
sub-clause is required to be construed in the light of the State's
power to make provisions over the admission norms, provided
the candidates fulfil the basic admission criteria contained in the
2000 Regulations.
83.3. Having regard to the legal and factual context of this
case and considering the fact that the issue of legislative
competence arises in respect of an entry belonging to shared,
and not exclusive field of legislations, in our opinion the said sub-
clause cannot be interpreted to mean that the State is denuded
of the power to make a separate channel of admission to the
said courses for in-service doctors from the State merit list. This
is an issue of legislative competence and the Nazir Ahmad [Nazir
Ahmad v. King Emperor, 1936 SCC OnLine PC 41 : (1935-36) 63
IA 372 : AIR 1936 PC 253 (2)] dictum does not come into conflict
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with the interpretation we are giving to this clause. Application
of that principle solely on the basis of a Union legislation,
without examining the scope of the State's legislative power in
the given context, would be contrary to the constitutional
scheme in having concurrent field of legislation. The said sub-
clause does not prescribe specific bar on the State authorities in
providing for such reservation or such separate entry channel.”
(Emphasis Supplied)
44. The Constitution Bench has approved the decision ratio laid down in
Gopal Tirthani and Satyabatra Sahoo's case relating to the two modes of
selection, but insofar as the additive value of the incentive marks given to in-
service candidates to be carried over by the said in-service candidates even to the
open category, which has been held to be not correct as per the aforesaid
decisions, have been diluted by the Constitution Bench in the aforesaid
paragraphs to hold that the State's power to make provision over the admission
norms stand secured so long as the candidates fulfill the basic admission criteria.
The Constitution Bench, in T.N. Medical Officers Association case to the limited
extent, as aforesaid, has divested the said ratio laid down in Gopal Tirthani and
Satyabatra Sahoo's case and approved the stand of the State to allow the in-
service candidates to import the incentive marks given to them to be carried over
to the open category. To arrive at the said finding, the Constitution Bench has
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adverted to the reasoning adopted in Gopal Tirthani's case wherein the nature of
work rendered by the said in-service candidates unmindful of the nature of the
terrain and the difficulties faced by them and their family members, definitely
warrant a different yardstick to be adopted by the State in considering their case
for allowing them to carry their incentive marks even to the open category. The
relevant observation of the Constitution Bench on the aforesaid aspect is
extracted hereunder :-
“.............
14.9. However, this Court in Gopal D. Tirthani case [State of
M.P. v. Gopal D. Tirthani, (2003) 7 SCC 83 : 2 SCEC 301] has
further held that there shall be only one common entrance test.
In paras 25 to 28, it is held as under: (Gopal D. Tirthani case
[State of M.P. v. Gopal D. Tirthani, (2003) 7 SCC 83 : 2 SCEC 301],
SCC pp. 103-04)
“25. The eligibility test, called the entrance test or the
pre-PG test, is conducted with dual purposes. Firstly, it is
held with the object of assessing the knowledge and
intelligence quotient of a candidate whether he would be
able to prosecute postgraduate studies if allowed an
opportunity of doing so; secondly, it is for the purpose of
assessing the merit inter se of the candidates which is of
vital significance at the counselling when it comes to
allotting the successful candidates to different disciplines
wherein the seats are limited and some disciplines are
considered to be more creamy and are more coveted than
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the others. The concept of a minimum qualifying
percentage cannot, therefore, be given a complete go-by.
If at all there can be departure, that has to be minimal and
that too only by approval of experts in the field of medical
education, which for the present are available as a body in
the Medical Council of India.
26. The Medical Council of India, for the present, insists,
through its Regulations, on a common entrance test being
conducted whereat the minimum qualifying marks would
be 50%. The State of Madhya Pradesh must comply with
the requirements of the Regulations framed by the
Medical Council of India and hold a common entrance test
even if there are two separate channels of entry and allow
clearance only to such candidates who secure the
minimum qualifying marks as prescribed by MCI
Regulations. If the State has a case for making a departure
from such rule or for carving out an exception in favour of
any classification then it is for the State to represent to the
Central Government and/or the Medical Council of India
and make out a case of justification consistently with the
aforequoted observation of this Court in Dayanand
Medical College & Hospital case [State of Punjab v.
Dayanand Medical College & Hospital, (2001) 8 SCC 664 : 1
SCEC 940] .
27. The in-service candidates may have been away from
academics and theories because of being in-service. Still
they need to be assessed as eligible for entrance in PG. For
taking up such examination, they must either keep
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updating themselves regularly or concentrate on
preparatory studies to entrance examinations but without
sacrificing or compromising with their obligations to the
people whom they are meant to serve on account of being
in State services.
28. Clearly, the State of Madhya Pradesh was not
justified in holding and conducting a separate entrance
test for in-service candidates. Nor could it have devised a
formula by combining clauses (i) and (iii) of Regulation 9(1)
by resorting to clause (iv). Recourse can be had to clause
(iii) when there is only one University. When there is only
one University in one State, the standard of assessment
can reasonably be assumed to have been the same for
assessing the academic merit of the students passing from
that University. When there are more universities than one
in a State, the standards of different universities and their
assessment methods cannot obviously be uniform and
may differ. Then it would be futile to assess the
comparative merit of individual performances by reference
to clause (iii). The High Court is, therefore, right in forming
an opinion that in the State of Madhya Pradesh, where
five universities exist, the method of evaluation
contemplated by clause (iii) is not available either in
substitution of or in addition to clause (i). The candidates
qualified at the pre-PG or PG entrance test held in
common for in-service and open category candidates,
would then be divided into two separate merit lists to be
prepared for the two categories and merit inter se of the
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successful candidates shall be available to be assessed
separately in the two respective categories.”
(Emphasis Supplied)
45. Not only the reason for providing incentive marks to the in-service
candidates has been approved by the Hon'ble Supreme Court, but the State's
power to recognise the services rendered by such of the in-service candidates
have also been considered by the Hon'ble Supreme Court. In the above
backdrop, the Constitution Bench, holistically has held that the State is not
denuded of its power to to make a separate channel by prescribing norms for
admission to post-graduate courses from the State's merit list on the state-wise
quota.
46. The Constitution Bench also has quoted with approval the observation
made in Duraisamy's case by holding that providing two sources of entry at the
postgraduation level in certain proportion between in-service candidates and
other candidates thus achieves the laudable object of making available better
doctors both in public sector and as private practitioners. In the aforesaid
context, the Constitution Bench held as under :-
“80. The disadvantages spelt out by the in-service doctors are
of being out of touch with academic developments because of
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their pressing duties often in remote locations. These
disadvantages were considered by this Court in AIIMS [AIIMS
Students' Union v. AIIMS, (2002) 1 SCC 428 : 1 SCEC 886] , and it
was recorded in that judgment, in reference to K. Duraisamy [K.
Duraisamy v. State of T.N., (2001) 2 SCC 538 : (2007) 1 SCC (L&S)
1004 : 5 SCEC 126] in para 31 of the report: (AIIMS case [AIIMS
Students' Union v. AIIMS, (2002) 1 SCC 428 : 1 SCEC 886] , SCC
pp. 447-48)
“31. … Some of them had done graduation sometime in
the past and were either picked up in the government
service or had sought for joining government service
because, may be, they could not get a seat in
postgraduation and thereby continue their studies because
of shortage of seats in higher level of studies. On account
of their having remained occupied with their service
obligations, they became detached or distanced from
theoretical studies and therefore could not have done so
well as to effectively compete with fresh medical
graduates at the PG entrance examination. Permitting in-
service candidates to do postgraduation by opening a
separate channel for admittance would enable their
continuance in government service after postgraduation
which would enrich health services of the nation.
Candidates in open category having qualified in
postgraduation may not necessarily feel attracted to
public services. Providing two sources of entry at the
postgraduation level in a certain proportion between in-
service candidates and other candidates thus achieves the
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laudable object of making available better doctors both in
public sector and as private practitioners. The object
sought to be achieved is to benefit two segments of the
same society by enriching both at the end and not so much
as to provide protection and encouragement to one at the
entry level.”
47. Therefore, from a careful analysis of the decision of the Constitution
Bench in T.N. Medical Officers Association case vis-a-vis the decisions in Gopal
Tirthani and Satyabatra Sahoo's case clearly reveal that the scope, which was
kept minimised in Gopal Tirthani and Satyabatra Sahoo's case has been expanded
by the Constitution Bench in the decision in T.N. Medical Officers Association
case. The reasons for expanding the scope and armouring the State with the
necessary ammunition to lay down relevant guidelines for filling up the seats in
the state-wise quota for the in-service candidates by awarding incentive marks
and considering the said marks even while considering their case in open
category is only with the laudable object of enabling the in-service doctors, to
pursue higher studies and, thereafter to serve in rural and difficult areas, which
otherwise would weaken the public health system and make medical assistance a
distant dream for such of those general public co-habiting in
difficult/hilly/remote/rural areas.
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48. In the above backdrop of the legal position coupled with the
reasonable and intelligible differentia in classifying the two groups of persons
aspiring for post-graduate admission in the State-wise quota, this Court is of the
considered view that not only the State is empowered to create channels of
selection by prescribing quotas for open category and in-service candidates, but
the State is also within its powers to lay down norms with regard to the basis in
which the merit list is to be prepared for determining the inter se merit of the
candidates competing in the two different categories and how the inter se merit
is to be arrived at by considering the marks obtained by the candidates in the
eligibility test conducted by the testing agency coupled with the incentive marks
awarded to the in-service candidates. Precluding the State from exercising the
powers conferred on it by the Constitution, more especially Entry 25 List III of the
Constitution would be denuding the State of its power, which has been given to it
by the Constitution and as approved by the Hon'ble Supreme Court.
49. Further, it is also to be pointed out that the petitioners have not
challenged G.O. Ms. No.463 in and by which the incentive marks, that were
awarded to the in-service candidates were allowed to be counted while finalising
the inter se merit of the candidates in the open category. Without there being a
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challenge to the said Government Order, the basis on which the subsequent
order has flown resulting in grant of incentive marks and counting the same along
with the eligibility marks obtained in NEET while arriving at the inter se seniority
in the open category cannot be tested on the touchstone of the Constitutional
provisions and in the case on hand, Regulation 9 (4) and the provisio thereto
having already received the affirmation from the Constitution Bench, testing the
said G.O. No.463 would in no way alter the findings arrived at by this Court.
50. For the reasons aforesaid, this Court is of the considered view that the
norms prescribed under S. No.29 (c) of the impugned prospectus and the
consequential Government Order in G.O. (D) No.1108 dated 4.10.2021 issued for
selection of candidates to the post-graduate medical degree courses under the
State-wise quota does not suffer the vice of any illegality, irrationality,
arbitrariness or perversity and the same is founded on well guided principles and
application of law and, therefore, the said norm does not require any
interference at the hands of this Court.
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51. In the result, both the writ petitions fail and the same accordingly
stands dismissed. Consequently, connected miscellaneous petitions are closed.
In the circumstances of the case, there shall be no order as to costs.
19.01.2022
Index : Yes / No
Internet : Yes / No
GLN
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W.P. Nos.22937-25749/2021
To
1. The Prl. Secretary to Government
Health & Family Welfare (MCA-1) Department
Fort St. George, Chennai 600 009.
2. The Director of Medical Education
Directorate of Medical Education
Kilpauk, Chennai 600 010.
3. The Secretary
Selection Committee
Directorate of Medical Education
162, Periyar E.V.R. High Road
Kilpauk, Chennai 600 010.
4. The Secretary
National Medical Commission
Pocket-14, Sector-8
Dwarka Phase-I, New Delhi 110 077.
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M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN
W.P. NOS. 22937 & 25749 OF 2021
Pronounced on
19.01.2022
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