Madras High Court
Dr.Gurubaran vs 5 National Medical Commission on 14 August, 2023
W.P.Nos.18430 and 18431 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.08.2023
CORAM :
THE HON'BLE MR.SANJAY V.GANGAPURWALA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.Nos.18430 and 18431 of 2023
1. DR.GURUBARAN
2 DR.MADESH RAMAMOORTHY
3 DR.SAKTHIVEL
4 DR.SANTHOSH KUMAR
5 DR.THAYANITHI
6 DR.VISHALI
7 DR.A.K.VARUNI .. Petitioners
in both writ petitions
Vs
1 THE UNION OF INDIA
REP. BY ITS SECRETARY TO GOVERNMENT
MINISTRY OF HEALTH AND FAMILY WELFARE
ROOM NO.201-D NIRMAN BHAWAN
NEW DELHI - 110 011.
2 THE STATE OF TAMIL NADU
REP. BY ITS PRINCIPAL SECRETARY TO GOVERNMENT
HEALTH AND FAMILY (MCA-1) DEPARTMENT
FORT ST. GEORGE, CHENNAI - 600 009.
3 THE DIRECTOR OF MEDICAL EDUCATION
DIRECTORATE OF MEDICAL EDUCATION
KILPAUK CHENNAI-600 010.
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4 THE SELECTION COMMITTEE
REP. BY ITS SECRETARY
DIRECTORATE OF MEDICAL EDUCATION
162 PERIYAR E.V.R. HIGH ROAD
KILPAUK CHENNAI-600 010.
5 NATIONAL MEDICAL COMMISSION
REP. BY ITS SECRETARY
POCKET 14 SECTOR-8
DWARKA PHASE I
NEW DELHI-110 077. .. Respondents 1 to 5
in both writ petitions
1. DR.RAMPRASATH
2. DR.HARSHITHA T.K.
3. TAMIL NADU MEDICAL OFFICERS ASSOCIATION
REP. BY ITS STATE SECRETARY, DR.AKILAN
25, MRJ COMPLEX, THIRUKKANURPATTI
NALROAD, VALLAM MAIN ROAD
THANJAVUR – 613 303 .. Applicants/Proposed
(Refer W.M.P.Nos.19853 and 19861 of 2023) respondents in
both WPs.
1. DR.DHINESH BABU .. Applicant/Proposed
(Refer W.M.P.Nos.19554 and 19556 of 2023) respondent in
both WPs.
Prayer in W.P.No.18430 of 2023: Petition filed under Article 226 of the
Constitution of India seeking issuance of a writ of declaration declaring
Regulation 9(4) of the Postgraduate Medical Education Regulations,
2000 as illegitimate, illegal and ultra vires the National Medical
Commission Act 2019 and the Constitution of India insofar as it
permits State Governments to provide incentives to in-service
candidates participating in the Open Category of Post Graduate
Medical Admission Counselling.
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W.P.Nos.18430 and 18431 of 2023
Prayer in W.P.No.18431 of 2023: Petition filed under Article 226 of the
Constitution of India seeking issuance of a writ of certiorarified
mandamus calling for the records of the 2nd respondent contained
in G.O.(Ms.) No.463, dated 07.11.2020 and to quash the same as
arbitrary, unjust, illegal and ultra vires Regulation 9(4) of the Post
Graduate Medical Education Regulations, 2000 and the Constitution
of India and to direct the 2nd respondent to treat “in service” and
“non-service” candidates on par in making admissions to Post
Graduate Degree seats 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 the Petitioners : Mr.Suhrith Parthasarathy
in both writ petitions
For the Respondents : Mr.R.Shunmugasundaram
in both writ petitions Advocate General
assisted by
Mr.P.Muthukumar
State Government Pleader
and Ms.A.G.Shakeena
for respondents 2 and 3
: Mr.J.Ravindran
Additional Advocate General
assisted by
Mrs.M.Sneha
for 4th respondent
: Mr.P.G.Santhosh Kumar
Senior Panel Counsel
for 1st respondent
: Mrs.Subharanjani Anandh
for 5th respondent
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W.P.Nos.18430 and 18431 of 2023
: Mr.P.Wilson, Senior Counsel
for Mr.Richardson Wilson
for the applicants (proposed
respondents) in WMP
Nos.19853 and 19861 of
: Mr.E.Manoharan
for the applicant (proposed
respondent) in WMP
Nos.19554 and 19556 of
COMMON ORDER
(Order of the court was made by the Hon'ble Chief Justice)
The petitioners herein are desirous of seeking admission to
the Post-Graduate Medical Courses.
2. The present writ petitions are filed assailing Regulation 9(4)
of the Postgraduate Medical Education Regulations, 2000
[hereinafter referred to as “the Regulations, 2000”] insofar as it
permits the State Governments to provide incentives to in-service
candidates participating in the open category of the Postgraduate
Medical Admission Counselling. The petitioners also assail
G.O (Ms.) No.463, dated 7.11.2020, by virtue of which the
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W.P.Nos.18430 and 18431 of 2023
in-service candidates are allowed to participate in the open
competition category with the advantage of additional weightage
marks allotted to them for serving in rural, remote and/or difficult
areas, so also by the direction mandating that 50% of the State
quota seats in the Post Graduate (MD, MS and MDS) Degree
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 be exclusively allocated for
in-service doctors serving in Government Health Institutions in the
State of Tamil Nadu.
3.1. Mr.Suhrith Parthasarathy, learned counsel for the
petitioners, during the course of his lucid submissions, canvassed
the following propositions:
(a) The policy of exclusively allocating 50% of seats for
in-service candidates and further allowing in-service
candidates to apply in the open category and awarding
incentive marks to in-service candidates in both categories
introduced since the year 2021-2022 is illegitimate on the
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grounds:
(i) The reservation of 50% in favour of in-service
doctors is arbitrary, unreasonable and
disproportionate. The State of Tamil Nadu is
the only State that reserves as many as 50% of
Postgraduate seats in favour of in-service
doctors. Reliance is placed on the judgment of
the Apex Court in the case of State of Tamil
Nadu v. T.Dhilipkumar, (1996) 5 SCALE 208
(2), to submit that the Apex Court in the said
case directed the State of Tamil Nadu to
appoint a highly qualified committee to
determine year to year what ought to be the
percentage-wise reservation required for
in-service category having regard to the then
prevailing situation and reduce the percentage
of 50%, if found appropriate. The State has
failed to appoint such a Committee to
re-consider the percentage-wise reservation on
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a yearly basis. It has also failed to reduce the
50% reservation granted to in-service doctors.
(ii) Though such reservation was discontinued for
the academic years 2018-2019, 2019-2020 and
2020-2021, in-service candidates remained
largely unaffected and were, in fact, more in
number than non-service candidates during the
academic year 2018-2019.
(b) The policy decision to permit in-service doctors to
participate in the open competition category and to further
permit them to carry their weightage marks has caused a
disproportionate effect and is in the teeth of the judgments of
the Apex Court. Reference is made to the case of
K.Duraisamy and another v. State of Tamil Nadu and others,
(2001) 2 SCC 538. In the said case, 50% reservation was
confined for selection from in-service candidates and
remaining 50% of seats were exclusively earmarked for
non-service candidates. The same was held to be valid.
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(i) In State of M.P. and others v. Gopal
D.Tirthani, (2003) 7 SCC 83, the Apex Court
held that it was permissible to assign a
reasonable weightage to services rendered in
rural/tribal areas only for the purposes of
determining inter se merit within the class of
in-service doctors.
(ii) In the case of Satyabrata Sahoo v. State of
Orissa, (2012) 8 SCC 203, the Apex Court in
identical circumstances quashed the decision of
the State of Odisha to grant additional
incentive marks to in-service doctors competing
in the open competition category and held that
comparative merit should be the only basis for
admission in open category.
(c) The judgment of the Apex Court in the case of State of
Uttar Pradesh v. Dinesh Singh Chauhan, (2016) 9 SCC 749,
cannot be relied upon for the proposition that weightage
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marks can be awarded in the open competition category,
because the said judgment has been overruled by the
Constitution Bench judgment in the case of Tamil Nadu
Medical Officers Association v. Union of India, (2021) 6 SCC
(d) The judgments in the case of Gopal D. Tirthani and
Satyabrata Sahoo (supra) have been cited with approval in
the case of Tamil Nadu Medical Officers Association (supra).
In the said judgment, the Constitution Bench nowhere decided
that incentive marks can be carried over by in-service doctors
participating in the open competition category. In paragraph
3.15(c) of the judgment, it has been noted that the State's
submission to the effect that earmarking of seats would not by
itself dilute merit since the preferential weightage would
merely alter the order in which in-service candidates would
rank in the merit list prepared for in-service candidates and
thus would not be a case of double reservation.
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(e) A proper reading of Regulation 9(4) of the Regulations,
2000 makes it clear that the weightage that is accorded to
in-service doctors must necessarily be limited to the
determination of inter se merit within the category of seats
earmarked to in-service doctors. Regulation 9(4) of the
Regulations, 2000 uses the word “may” granting power to
State Governments to provide weightage to in-service
doctors. This calls for an exercise of discretion. The
discretion by an administrative authority must conform to the
basic principles of fairness and proportionality.
(f) The National Medical Commission, in its reply dated
17.7.2023 in the present writ petitions, has stated that
permitting in-service doctors to compete in the open
competition category with incentive marks would result in the
dilution of merit and would amount to a discrimination of non-
service doctors.
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(g) If Regulation 9(4) of the Regulations, 2000 is read to
permit the grant of weightage in the open competition
category, the upshot would be a complete elimination of
merit, which is meant to serve as the guiding criteria in
making admissions to postgraduate medical courses. The
dilution of merit will run directly counter to the outlined
function of the National Medical Commission. Allowing
weightage in the open category will effectively render the
uniformity mandated under Section 14 of the National Medical
Commission Act, 2019 a nullity.
(h) The number of public health centres and the government
hospitals in the State of Tamil Nadu that are awarded up to
30% weightage (2050 PHCs and GHs out of a total of 2596
faculties) is also the highest in the country.
(i) During the process of admission, students from the in-
service and non-service categories are admitted first to the
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seats allotted in the open competition category and thereafter
the remaining in-service candidates are admitted in the in-
service category. Therefore, non-service candidates not only
have to suffer the disadvantage of competing in a single
source of entry with in-service doctors (who have weightage
of marks), but are forced to compete with the top-ranking in-
service candidates.
(j) No other State in the country grants weightage to the
extent of 30% to in-service candidates in addition to the 50%
exclusive allocation granted to in-service category.
(k) The State of Tamil Nadu is the only State in the country to
have reserved all the government seats for DNB (Diploma of
National Board) courses for in-service candidates. Non-
service candidates are not even eligible to apply for DNB
courses.
3.2. Learned counsel for the petitioners further submits that
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when an administrative action is assailed on the ground of violation
of Article 14 of the Constitution of India, such action must
necessarily be tested on grounds of proportionality. Reliance is
placed on the judgment of the Apex Court in the case of Om Kumar
v. Union of India, (2001) 2 SCC 386.
3.3. It is further submitted that, in the present case, the
challenge is to the quantum of seats earmarked for a certain class
of doctors. The judgment in the case of State of Tamil Nadu v.
National South Indian River Interlinking Agricultural Association,
(2021) 15 SCC 534, relied upon by the impleading respondents,
makes it clear that when a policy is impugned on the ground of
non-classificatory arbitrariness, it would certainly have to conform
to principles of proportionality.
3.4. Relying upon the judgment of the Apex Court in the case
of Ramesh Chandra Sharma v. State of Uttar Pradesh, 2023 SCC
OnLine SC 162, wherein it is held that executive action that is
alleged to impinge on the right under Article 14 of the Constitution
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of India must equally conform to the traditional classification test
and the principle of proportionality, learned counsel for the
petitioners submitted that the doctrine of proportionality involves a
five-pronged analysis:
(i) the State must show that the basic aim of its
policy is legitimate;
(ii) the State must show that it has adopted the
“least restrictive” measure possible to achieve its
purported objective;
(iii) the State must establish that there exists a
rational nexus between the limitation imposed and its
purported aim;
(iv) the State must show that the policy adopted by
it balances the interests of those it seeks to protect
and those whose rights are impinged on account of
the limitations imposed; and
(v) the State should provide sufficient safeguards
against the possibility of an abuse of its policy.
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3.5. It is further submitted that the impugned government
order fails the aforesaid five-pronged test at four distinct levels.
(i) The State Government has not conducted an
independent analysis to make a demonstration
that it has chosen the least restrictive measure
possible to ensure that the interests of in-
service candidates are protected. The idea that
the earmarking of seats for in-service
candidates is the only way to incentivize
government service is wholly baseless. The
State Government has not considered alternate
ways to incentivize service.
(ii) The State has not demonstrated how in
earmarking 50% seats for in-service candidates
in Postgraduate medical courses in addition to
providing incentive marks in the open category,
public health in the State is being benefitted.
(iii) The data on admissions to the batch of 2021-
2022 clearly demonstrates that the impugned
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government order has not balanced the interest
of the in-service candidates with those of the
non-service candidates and, as such, has acted
in an unfair, unjust and arbitrary manner.
(iv) The State has failed to ensure that sufficient
safeguards are installed in the policy to make
sure that its basic premise is not abused.
3.6. It is further submitted that the impugned government
order offends the rights of the petitioners not only under Article 14
of the Constitution of India, but also the rights under Articles
19(1)(g) and 21 of the Constitution of India. According to learned
counsel, the Supreme Court in the case of K.S.Puttaswamy v. Union
of India, (2019) 1 SCC 1, has observed that the rights under
Articles 14, 19 and 21 of the Constitution of India must be seen as
a part of a trinity and, as such, they take meaning from each other.
The law that offends the fundamental right must be demonstrated
to be proportionate, by meeting the five-pronged test. The
respondents have failed to demonstrate the consideration of any
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other measure that might have helped achieve the same objective.
There are several ways in which a robust public health system can
be constructed. Good doctors can be encouraged to join service by
affording to them pay scales comparative to private hospitals, even
if not at par with such doctors. They can also be offered other
perquisites and benefits, including enhanced terms of service. The
State can also conduct regular examinations for the Medical
Recruitment Board to invite applicants to join service. The State
can also offer other familial benefits such as free education and
health care to children of in-service doctors and other incentives to
encourage persons to join service. The State can also conduct
medical recruitment tests for postgraduates, which it has until now
failed to consider. To suggest that the provision of earmarking of
seats is the only means available to ensure robust public health care
system is thus a falsity.
3.7. Placing reliance on the judgment of the Apex Court in the
case of Internet and Mobile Association of India v. Reserve Bank of
India, (2020) 10 SCC 274, it is contended by learned counsel for
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the petitioners that failure to consider less intrusive alternatives by
itself vitiates the test of proportionality. In the present case, not
only the State has failed to show that it has conducted any such
study, but it has also arbitrarily earmarked seats and has created
an unprecedented imbalance in admissions to the State quota.
3.8. The impugned government order offends Article 14 of the
Constitution of India as it is manifestly arbitrary. The doctrine of
manifest arbitrariness posits that any governmental action when
done capriciously, irrationally, without adequate determining
principle, excessively and disproportionately, will run counter to the
tenets contained in Article 14 of the Constitution of India. The
impugned government order is a capricious piece of law that lacks
the determining principle. It seeks to accord weightage in the open
competition category based on recommendations that were made
by a Committee even before the law was settled by the Supreme
Court in the case of Tamil Nadu Medical Officers Association
(supra). The weightage has been accorded based on
recommendations that are predicated on a stated position of law
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that has since been declared incorrect by a Constitution Bench of
the Supreme Court in the case of Tamil Nadu Medical Officers
Association (supra). The State has not conducted an independent
study since the judgment in the case of Tamil Nadu Medical
Officers Association (supra) to show why weightage for in-service
doctors is required in the open competition category or indeed why
50% of seats ought to be earmarked for in-service doctors. The
impugned government order leads to wholly inequitable and unjust
results and, therefore, it ought to be declared ultra vires the
Constitution of India.
4.1. Mr.R.Shunmugasundaram, learned Advocate General
appearing on behalf of respondents 2 and 3, submits that
Regulation 9(4) of the Regulations, 2000 mandates that a merit list
has to be prepared on the basis of the National Eligibility cum
Entrance Test (NEET) marks for both All India and State Quotas for
the Post Graduate Degree/Diploma Courses. The Constitution
Bench in the the case of Tamil Nadu Medical Officers Association
(supra) declared that separate entry for in-service candidates is
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available for the Postgraduate Degree Courses also.
4.2. It is further submitted by learned Advocate General that
the Proviso to Regulation 9(4) of the Regulations, 2000 empowers
the State to give weightage marks to those in-service candidates
serving in difficult, remote and hilly areas. The power of the State
to provide separate source of entry for in-service candidates
seeking admission and to give weightage marks has been upheld by
the Constitution Bench of the Apex Court in the case of Tamil Nadu
Medical Officers Association (supra). The proviso to Regulation 9(4)
of the Regulations, 2000 is held to be a substantive provision by the
Constitution Bench in the case of Tamil Nadu Medical Officers
Association (supra). The judgments relied upon by learned counsel
for the petitioners in the cases of Gopal D.Tirthani and
K.Duraisamy and another (supra) were not rendered with regard to
Regulation 9(4) of the Regulations, 2000, which was introduced on
15.2.2012.
4.3. Learned Advocate General further submits that the policy
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of the State of Tamil Nadu for providing separate source of entry for
in-service candidates to the extent of 50% of the seats in Post
Graduate/Diploma course was placed before the Apex Court and the
same finds reference in paragraph 44 of the judgment. The Apex
Court in the case of Tamil Nadu Medical Officers Association (supra)
has held that Regulation 9(4) of the Regulations 2000 is ultra vires
of the Indian Medical Council Act, 1956 and it would be beyond the
legislative competence of the Union of India under List I Entry 66.
The Constitution Bench judgment in the case of Tamil Nadu Medical
Officers Association (supra) dealt with the issues in greater detail.
All the points available at that time were presumed to have been
considered by the Supreme Court while rendering the detailed
judgment. No further clarification is required.
4.4. It is further submitted that if weightage marks given as
per Regulation 9(4) of the Regulations, 2000 is not allowed to be
taken into consideration while competing in the open category, it
would result in selecting candidates merely based on the marks
obtained in the written examination, namely NEET, alone. The
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Nine-Judges Bench in Indra Sawhney and others v. Union of India,
1992 Supp (3) SCC 217, held that marks in one time oral or written
test do not necessarily prove the worth or suitability of an individual
to a particular post, much less do they indicate his comparative
calibre. In judging the merits of the individuals for the profession
of teaching as for any other profession, it is not the traditional test
of marks obtained in examination, but a scientific test based,
among other things, on the aptitude in teaching, the capacity to
express and convey thoughts, the scholarship, the character of the
person, his interest in teaching, his potentiality as a teacher judged
on the consideration indicated generally at the outset should be
adopted. The mere securing of high marks at an examination may
not necessarily make out a good administration.
4.5. It is further submitted that the reply affidavit filed by the
fifth respondent/National Medical Commission is contrary to the law
declared by the Constitution Bench in the case of Tamil Nadu
Medical Officers Association (supra). The inter se merit, as
observed by the Supreme Court in its judgment, is the overall merit
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and is not inter se seniority. In the case of Sudhir.N v. State of
Kerala, (2015) 6 SCC 685, the Apex Court disregarded inter se
seniority. The impugned government order does not offend Articles
14, 19(1)(g) and 21 of the Constitution of India.
5.1. Mrs.Subharanjani Anandh, learned counsel appearing for
the fifth respondent/National Medical Commission, submits that the
matters pertaining to reservation of in-service candidates will fall
within the domain and power of the State Government in view of
List III Entry 25 of the Constitution of India.
5.2. The Supreme Court in the case of Tamil Nadu Medical
Officers Association (supra) held that an interpretation of Regulation
9(4) of the Regulations, 2000 that there can be no reservation or
separate source of entry created by the State for in-service doctors
is erroneous. Regulation 9(4) of the Regulations, 2000 is an
enabling provision. It confers discretion, however does not
mandate grant of incentive and/or reservation. The challenge to
Regulation 9(4) of the Regulations, 2000 is misconceived because it
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is not vague. It provides minimum marks for weightage and ceiling
of 30%. Regulation 9(4) of the Regulations, 2000 is within the
legislative competence of the Medical Council of India. De hors
Regulation 9(4) of the Regulations,2000, the State always enjoyed
power to create separate source of entry. It is further submitted
that the present policy of the State of Tamil Nadu amounts to
double reservation, dilution of merit and discrimination.
5.3. It is submitted that the the Apex Court in the case of
Dr.Preeti Shrivastava v. State of Madhya Pradesh, (1999) 7 SCC
120, considered the powers and duties of the erstwhile Medical
Council of India and held that the Regulations of the Medical Council
of India have statutory force and are mandatory. The judgment
also followed the ratio in the case of State of Kerala v. T.P.Roshana,
(1979) 1 SCC 572 and held that the Medical Council of India has
been set up as an expert body to control the minimum standards of
medical education and to regulate their observance. It has implicit
power to supervise the qualifications or eligibility standards for
admission into medical institutions. There is, under the Act, an
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overall vigilance by the Medical Council to prevent sub-standard
entrance qualifications for medical courses. These observations
would apply equally to postgraduate medical courses.
5.4. It is submitted by learned counsel for the fifth respondent
that the challenge to Regulation 9(4) of the Regulations, 2000 be
negatived and the writ petitions be dismissed.
6. W.M.P.Nos.19853, 19861, 19554 and 19556 of 2023 are
filed by in-service candidates.
7.1. Mr.P.Wilson, learned Senior Counsel appearing for the
applicants in W.M.P.Nos.19853 and 19861 of 2023, submits that the
writ petitioners are challenging Regulation 9(4) of the Regulations,
2000 inasmuch as it provides for awarding weightage marks. It is
settled law that a subordinate legislation can be challenged only if
(i) it is contrary to any provisions of the Constitution of India; and
(ii) it is contrary to the parent statute or any other statute. The
writ petitioners have not been in a position to demonstrate as to
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how the provisions of the Constitution of India have been violated,
nor a single ground exists in the pleadings in the writ petitions as to
which provisions of the National Medical Commission Act, 2019 are
infringed by the impugned Regulation. There is a presumption of
constitutionality in favour of the legislation. The writ petitioners
have failed to dislodge the said presumption and demonstrate how
the National Medical Commission Act, 2019 is infringed by the
impugned Regulation.
7.2. It is submitted that Regulation 9(4) of the Regulations,
2000 was challenged and upheld by the Supreme Court in the case
of Tamil Nadu Medical Officers Association (supra). Regulation 9 of
the Regulations, 2000 has been upheld holding that the States have
the power to provide reservation for in-service doctors in PG
courses subject to clearing of NEET examination and for that
proposition alone overruled the judgment in the case of Dinesh
Singh Chauhan (supra). Once the Regulations, 2000 have been
upheld by the Supreme Court in a matter pertaining to the very
same issue, i.e., the provisions for separate source of entry for in-
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service candidates and weightage marks, it is not legally tenable to
challenge the same provision before this court, as it would amount
to reopening an issue settled by the Apex Court. It is incorrect on
the part of the writ petitioners to suggest that the weightage marks
given to in-service candidates was not considered by the
Constitution Bench of the Apex Court in the case of Tamil Nadu
Medical Officers Association (supra).
7.3. Learned Senior Counsel further submits that the
Constitution Bench of the Supreme Court in the case of Tamil Nadu
Medical Officers Association (supra) has already noticed that at the
time of deciding the case in Gopal D. Tirthani (supra), Regulation
9(1) as it stood then was differently worded. During Gopal D.
Tirthani case (supra), two separate lists were drawn up, one for in-
service candidates and one for non-service candidates. It is in that
context that the Supreme Court observed that weightage marks
given to in-service candidates will operate inter se in-service
candidates. After the enactment of the Regulations, 2000, the
decision in the case of Gopal D. Tirthani (supra) can no longer be
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cited as an authority, since Regulation 9(4) of the Regulations, 2000
contemplates a single merit list. The concept of dual merit list
within the State List is alien to the language of Regulation 9(4) of
the Regulations, 2000.
7.4. It is further submitted that the language employed in
Regulation 9(1) of the Regulations, 2000 that was in force at the
time of selections put to challenge in Gopal D. Tirthani case (supra)
uses the word “academic merit”, whereas in Regulation 9(4) the
word “academic” has been consciously omitted by the drafters of
the Regulations as it was understood that merit is not only the
marks obtained in the NEET examination, but encompasses merit in
other aspects as well. For example, a candidate who is in-service
would have obtained invaluable practical ability and the inclination
of the candidate to provide medical service in rural or difficult areas
in the interest of public health care system proves their social
outlook, etc.
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7.5. Learned Senior Counsel relies upon the judgment of the
Apex Court in the case of Neil Aurelio Nunes v. Union of India,
(2022) 4 SCC 1 and submits that the merit of a candidate has to be
adjudged keeping in mind the background, disadvantages, barriers,
difficulties they face while competing against the other categories.
In the present case, in-service candidates are employed full time
and often work up to 14 to 16 hours a day in difficult areas with no
access to libraries, internet, study resources, etc. Such candidates
cannot compete in a straight race with an urban non-service
student who may not even be working and who may be devoting his
entire attention to preparing for the examination. To have one
criteria for both these categories would be discrimination in its
truest sense. Therefore, the exclusion of incentive marks obtained
by an in-service candidate while determining his merit would be
unconstitutional, unreasonable and contrary to the objectives of
Regulation 9(4) of the Regulations, 2000.
7.6. It is submitted that the challenge to G.O (Ms.) No.463 in
W.P.No.18431 of 2023 is not maintainable in view of the fact that
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G.O (Ms.) No.463 is only a government order to implement the
policy decision already taken in G.O.Ms.No.86, dated 6.3.2019.
Pursuant to the direction of a Division Bench of this Court in
W.A.No.1051 of 2018 and other appeals, the Government
constituted a Committee headed by Hon'ble Mr.Justice A.Selvam, a
Retired Judge of this court, to study and identify the remote, rural
and difficult areas for awarding the incentive marks. The said
Committee recommended that no incentive marks be awarded in
urban areas and recommended the percentage of marks to be
awarded for service rendered in hills, plains, remote and rural
areas. Accordingly, the government took a policy decision to award
incentive marks in line with the recommendations of the Committee
in the said G.O.Ms.No.86, dated 6.3.2019. The said government
order has not been challenged by the writ petitioners. As such, it is
not open to challenge the implementation government order alone.
The prospectus is also not challenged.
7.7. A policy decision cannot be challenged unless it is
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unconstitutional. Reliance is placed on the following judgments:
(i) State of Punjab and others v. Ram Lubhaya
Bagga and others, (1998) 4 SCC 117;
(ii) Ugar Sugar Works Ltd v. Delhi Administration
and others, (2001) 3 SCC 635;
(iii) Federation of Railway Officers Association and
others v. Union of India, (2003) 4 SCC 289;
(iv) Directorate of Film Festivals and others v.
Gaurav Ashwin Jain and others, (2007) 4 SCC
737;
(v) Parisons Agrotech Private Ltd and another v.
Union of India and others, (2015) 9 SCC 657;
(vi) Vasavi Engineering College Parents
Association v. State of Telangana and others,
(2019) 7 SCC 172;
(vii) Krishnan Kakkanth v. Government of Kerala,
(1997) 9 SCC 495;
(viii) Jacob Puliyel v. Union of India, 2022 SCC
OnLine SC 533;
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(ix) Maharashtra State Board of Secondary and
Higher Secondary Education and another v.
Paritosh Bhupeshkumar Sheth and others,
(1984) 4 SCC 27; and
(x) Balco Employees Union (Regd.) v. Union of
India and others, (2002) 2 SCC 333.
7.8. It is also submitted that the writ petitioners have not
discharged the burden that lies on them to challenge the policy
decision. It is not sufficient to show that there could have been a
better policy or that the petitioners are adversely affected by the
policy decision of the State, but the petitioners must plead and
prove that the policy is arbitrary, unreasonable or in violation of the
Constitution of India or any other law. If there is a challenge based
on Article 14 of the Constitution of India, then it is for the person
who alleges discrimination to plead and prove that he has been
singled out and unfavourably treated. In support of the said
submission, reliance is placed on the judgment of the Apex Court in
the case of Deena Dayal v. Union of India, (1983) 4 SCC 645.
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7.9. Learned Senior Counsel further submitted that the writ
petitions are barred by the principles of res judicata. For the very
same contention and relief, other petitioners had filed
W.P.Nos.22937 and 25749 of 2021 for the academic year 2021-
2022, which were dismissed by this court by order dated 19.1.2022.
The petitioners therein filed W.A.Nos.93 and 94 of 2022 and it was
dismissed by order dated 27.1.2022. In the judgment passed in the
writ appeals, the Division Bench of this court has held that it is open
to the State in exercise of its policy making powers to provide for
such preferential source of admission (PRESA) and additional
incentive marks and that the working of a policy cannot be
questioned at the nascent stage of the policy. The said judgment of
the Division Bench was carried to the Supreme Court. The Supreme
Court disposed of S.L.P.Nos.18225 and 18226 of 2022 observing
that “it would be open to the appellants to move a fresh writ
petition before the High Court of Judicature at Madras based on the
working out of the policy, as clarified in the judgment of the
Division Bench of the High Court dated 27 January 2022. In such an
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event, neither the judgment of the Division Bench dated 27 January
2022 nor the judgment of the Single Judge dated 5 September
2022 will come in the way of a fresh adjudication on merits.” The
liberty to challenge the policy was granted only to the appellants
therein on the basis of the working out of the policy as clarified in
the Division Bench order dated 27.1.2022. Thus, only when a
challenge is made before this court after working out of the policy
with sufficient data, the challenge can be entertained. There are no
new data or grounds raised by the petitioners herein to justify
invocation of the liberty given in paragraph 6 of the order passed by
the Supreme Court.
7.10. It is contended that for the subsequent academic year
2022-2023 a different set of petitioners challenged the same policy
before a learned Single Judge of the Madurai Bench and, by order
dated 5.9.2022, the challenge was repelled and the SLP arising out
of the said order was also before the Supreme Court and was
decided vide the order dated 20.3.2023.
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7.11. It is further submitted that the applicants seeking
impleadment have worked out specialisation-wise allocation of seats
in the 2022-2023 counselling session and it clearly shows that even
with the 50% PRESA and the weightage marks, the open category
students obtain a larger share of the seats. The case projected by
the petitioners is illusory when confronted with data.
7.12. It is also submitted that the State of Tamil Nadu has a
policy to prefer in-service candidates already working in the
government hospitals and primary health centres in admission for
Postgraduate Degree/Diploma Courses from the year 1991 onwards.
In the year 1991, 60% of the seats were given to the in-service
candidates as PRESA and only 40% was for the non-service
category. Almost three decades of this policy has made the public
health infrastructure in Tamil Nadu the best in the country. In the
data released in 2021 by NITI AAYOG, the State of Tamil Nadu is in
second place in the health index. Nearly 40-50% medical tourists
from abroad and 40% of domestic medical tourists come to Chennai
for health care. The government colleges and hospitals in Tamil
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Nadu are considered among the premium health care institutions in
India as well as globally. The doctor to patient ratio in Tamil Nadu
is the best in the country. The State of Tamil Nadu has one doctor
for every 253 patients. The Tamil Nadu public health care
infrastructure is far ahead of other States in India and this is
because of the consistent, conscious policy adopted by successive
governments in the State. The Governments in the State of Tamil
Nadu have been conscious that in order to have a robust public
health care system, it is important to incentivise doctors to serve in
government hospitals and not drive them away to the private sector
which is unaffordable for the masses. In order to incentivise service
in the government hospitals, the Government of Tamil Nadu has
adopted various policies. The chief amongst them is to have PRESA
for in-service candidates in PG Degree and Diploma courses. The
importance of this incentive cannot be overstated. Unlike other
States, the in-service candidates who take up this option are bound
to government service till their superannuation. This is the key to
maintaining the public health infrastructure. The State expends its
public resource for the establishment of these seats. Therefore, the
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State has a right to make a policy decision to have PRESA in
government seats to augment its public health infrastructure.
Concluding his arguments, it is submitted that the instant writ
petitions do not deserve consideration and, as such, deserve to be
dismissed.
8.1. Mr.E.Manoharan, learned counsel for the applicant in
W.M.P.Nos.19554 and 19556 of 2023, submits that the weightage
marks form part of the merit of the in-service candidates who have
provided service in remote and difficult areas. The same finds
support in Proviso to Regulation 9(4) of the Regulations, 2000.
8.2. Reliance is placed on the judgment of the Apex Court in
the case of Dinesh Singh Chauhan (supra) to contend that providing
incentive marks is a procedure prescribed under the Regulation for
determining merit. The Regulation subserves larger public interest.
Incentive marks are awarded in recognition of services rendered in
remote and difficult areas of the State and they are provided based
on the marks obtained in NEET. This is a legitimate and rational
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basis for encouraging doctors to serve in those areas. The academic
merit of the candidate must also reckon the services rendered for
the common or public good.
8.3. Reliance is placed on the judgment of the Apex Court in
the case of Neil Aurelio Nunes (supra) to submit that scoring high
marks alone cannot be construed as merit.
8.4. It is further submitted that the Constitution Bench
judgment in the case of Tamil Nadu Medical Officers Association
(supra) overrules the judgment in the case of Dinesh Singh
Chauhan (supra) only with regard to the issue of whether
Regulation 9(4) of the Regulations, 2000 affects the right of the
States to earmark 50% reservation. It has not overruled the
finding in the case of Dinesh Singh Chauhan (supra) with regard to
the validity of procedure for determining merit prescribed under
Regulation 9(4) of the Regulations, 2000.
8.5. It is further contended that since the incentive marks are
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the merit of the in-service candidates working in remote and
difficult areas, it cannot be said that while competing in open
category, the said merit will be taken away from the candidates.
Regulation 9(4) of the Regulations, 2000 provides only for one
merit list and while preparing this list, weightage marks which form
part of merit are also added. The same is also approved in the case
of Dinesh Singh Chauhan (supra).
8.6. It is submitted that the judgment of the Supreme Court
in the case of Gopal D. Tirthani (supra) is not applicable to
Regulation 9(4) of the Regulations, 2000, as the same was not in
force at the time when the said judgment was delivered. The
Supreme Court in the case of Tamil Nadu Medical Officers
Association (supra) has affirmed the decision in Gopal D. Tirthani
(supra) only with respect to the issue of permissibility of earmarking
seats for in-service candidates and not on the point of weightage
marks.
8.7. It is argued that when the decision in Satyabrata Sahoo
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(supra) was rendered, merit was considered to be limited to only
marks in the entrance exam. Now, with the introduction of
Regulation 9(4) of the Regulations, 2000 and judgment of the Apex
Court in the case of Dinesh Singh Chauhan (supra), merit includes
the weightage marks as well. Therefore, in-service candidates
competing in open category on the basis of their merit can be said
to be reasonable.
8.8. It is submitted that 50% seats earmarked for in-service
candidates is permissible. The same was affirmed by the Apex
Court in the judgments rendered in the cases of Tamil Nadu Medical
Officers Association and T.Dhilipkumar (supra).
8.9. It is contended that it is for the appropriate authority/
State to consider how much percentage of seats are to be reserved
and it will be in the realm of policy decision. To buttress the said
argument, reliance is placed on the judgment of the Apex Court in
the case of Yatinkumar Jasubhai Patel and others v. State of
Gujarat, (2019) 10 SCC 1.
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8.10. Relying upon the judgment of the Apex Court in the
case of National South Indian River Interlinking Agricultural
Association (supra), it is submitted that the test of doctrine of
proportionality is not applicable to test the validity of a classification
provision, which is not under Article 15 of the Constitution of India.
The earmarking of seats for in-service candidates is not reservation
under Article 15 of the Constitution, but a separate source of entry.
Earmarking of seats for in-service candidates has been held to pass
the test of intelligible differentia in the case of Tamil Nadu Medical
Officers Association (supra) and, therefore, the earmarking done by
the government is valid. As such, the writ petitions be dismissed.
9. We have considered the submissions canvassed by learned
counsel for the parties.
10. Before we deal with the contentions of the respective
counsel, it would be appropriate to refer to Regulation 9(4) of the
Regulations, 2000 and the relevant portion of G.O.Ms.No.463, dated
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7.11.2020 hereunder:
Regulation 9(4) of the Regulations, 2000
“9. Procedure for selection of candidate for
Postgraduate courses shall be as follows:-
(1) to (3) ...
(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 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 up to 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
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notified by State Government/Competent authority
from time to time.”.
G.O (Ms.) No.463, dated 7.11.2020:
“8. The Government have examined the proposal of
the Director of Medical Education based on the
orders the Hon'ble Supreme Court of India in Writ
Petition (Civil) No.196 of 2018 and also based on the
opinion of the Learned Advocate General of Tamil
Nadu, decided to agree with the same and
accordingly, the Government hereby issue the
following orders:-
i. The existing method for 50% of seats
allocation to Government of India / Director
General of Health Services be continued and
the remaining 50% of seats be allocated to
State Government.
ii. Out of 50% of the 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.
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The seats in above categories will be filled up
based on the marks obtained in the NEET-PG
Examination along with eligible incentive marks
already defined or such criteria to be defined
by the Government from time to time as per
the decision of the Committee headed by
Hon'ble Thiru A.Selvam, High Court Judge
(Retd.) constituted based on the orders of the
Hon'ble Division Bench of High court of Madras,
in W.A.Nos.1051, 1117 to 1124 of 2018 in
W.P.Nos.7231, 7857 to 7861, 8116 and 8117
of 2018;
iii. The Director of Medical Education is directed
to obtain a bond from the in-service candidate
after completion of their Post Graduate Degree
(MD, MS & MDS) courses in the Tamil Nadu
Government Medical College with the condition
to serve in Government till their
superannuation.
iv. The Director of Medical Education, the Director
of Medical and Rural Health Services and the
Director of Public Health and Preventive
Medicine are directed to post the above said in-
service candidates in hospitals located in rural
or remote or difficult areas already defined or
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such criteria to be defined by the Government
from time to time to access specialist care for
treatment for a minimum two years or the
conditions to be fixed by the Government
subject to the availability of vacancies in the
respective specialities.”
11. The challenge raised by the petitioners in the present writ
petitions can be culled out as under:
(i) Reserving 50% seats for in-service candidates
from the State quota does not satisfy the test
of proportionality; and
(ii)The weightage marks given to in-service
candidates cannot be applied for admission
from the open category (other than seats
reserved for in-service candidates).
12. The reservation and/or separate channel of entry for in-
service candidates in Postgraduate Degree courses is prevalent in
various States. The extent of seats earmarked for in-service
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candidates differ from State to State. Since the year 1989, the
State of Tamil Nadu had a policy of providing separate source of
entry for in-service candidates to the extent of 50%. The same
continued uninterruptedly until the decision of the Apex Court in the
case of Dinesh Singh Chauhan (supra). The same is reintroduced
after the decision in the case of Tamil Nadu Medical Officers
Association (supra).
13. It appears that challenging the policy of the State
Government regulating admission to the postgraduate medical
courses by Stipulation 29(c) of the Admission Prospectus for the
academic year 2021-2022, W.P.Nos.22937 and 25749 of 2021 were
filed. The impugned Stipulation 29(c) reads thus:
“Out of 50% of the 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
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such criteria to be defined by the Government from
time to time as per the decision of the Committee
headed by Hon'ble Thiru A.Selvam, High Court Judge
(Retd.) constituted based on the orders of the
Hon'ble Division Bench of High Court of Madras, in
W.A.Nos. 1051, 1117 to 1124 of 2018 in W.P. Nos.
7231, 7857 to 7861, 8116 and 8117 of 2018.”
14. A learned Single Judge dismissed the writ petitions under
the judgment and order dated 19.1.2022. The writ petitioners
therein filed appeals bearing W.A.Nos.93 and 94 of 2022 before the
Division Bench. The Division Bench disposed of the appeals by
concluding that no interference is required in the impugned
Stipulation 29(c). The Division Bench observed that no material is
placed on record either by the appellants or the State. It also
observed that this being the first year of implementation of the
impugned policy, it did not question the wisdom of the State as
translated in its policy decision, i.e., Stipulation 29 (c). It further
clarified that in the event the said policy ultimately turns out to be
impermissible in any of the parameters of judicial scrutiny, including
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on the test of doctrine of proportionality, and if any material is
produced before the Court by the aggrieved party, this question will
be examined by the court and, in that event, it would not be open
to the State and/or to in-service doctors to contend that the said
issue is concluded by this judgment. The Division Bench of this
court which was dealing with the appeal has observed that
G.O (Ms.) No.463, dated 7.11.2020 was not subject matter of
challenge.
15. The aforesaid order of the Division Bench was assailed
before the Apex Court. The Apex Court clarified that it will be open
to the appellants to move a fresh writ petition before the High Court
of Judicature at Madras based on the working out of the policy, as
clarified in the judgment of the Division Bench dated 27.1.2022,
and in such event, neither the judgment of the Division Bench dated
27.1.2022, nor the judgment of the learned Single Judge dated
5.9.2022 will come in the way of a fresh adjudication on merits. All
the rights and contentions of the appellants and of the State of
Tamil Nadu were kept open to be urged before the High Court on
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the validity of the policy, if it is questioned.
16. In the light of the aforesaid, in our opinion, the judgments
delivered in the earlier round of litigation would not come in the way
of either of the party to canvass their contentions.
17. The subject matter of consideration in the earlier
judgments in the cases of Satyabrata Sahoo and Dinesh Singh
Chauhan (supra) was Regulations 9(4) of the Regulations, 2000, as
it stood then, much prior to the amended provision impugned
herein.
18. In the case of K.Duraisamy and another (supra), the Apex
Court observed that the government possess 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.
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19. In a catena of judgments such as K.Duraisamy and
another, Gopal D. Tirthani; and Sudhir.N (supra), the policy of the
State Government in creating a separate channel of admission for
in-service candidates has been upheld observing that there is a
legitimate and rational basis in providing a separate channel/source
of entry for in-service candidates in order to encourage them to
offer their services and expertise to the State.
20. The Constitution Bench of the Apex Court in the case of
Tamil Nadu Medical Officers Association (supra) has held that there
is a legitimate and rational basis in providing a separate
channel/source of entry for in-service candidates in order to
encourage them to offer their services and expertise to the State.
It also held that when the States create a separate source of entry
for in-service candidates, the standards of medical education are
not impinged. Providing a separate source of entry and/or a
separate channel for in-service candidates is not a reservation. The
Constitution Bench, in the said case, was not called upon to decide
the percentage of seats to be earmarked for in-service candidates.
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21. The Apex Court in the said judgment further held that
there is no bar in Regulation 9 of the MCI Postgraduate Medical
Education Regulations, 2000, as it prevailed on 15.2.2012 and
subsequently amended on 5.4.2018, of individual States in
providing for reservation for in-service doctors for admission into
Postgraduate Degree Medical Courses. The Apex Court further
observed that to take benefit of such a separate channel, the
aspiring in-service doctors must clear NEET Examination with the
minimum prescribed marks as stipulated in the Regulation. In the
said case, the Apex Court held that the view taken by the Apex
Court in the case of Dinesh Singh Chauhan (supra) to the extent it
has held in the said decision that reservation for the said category
of in-service doctors by the State would be contrary to the
provisions of the Regulations, 2000, is not the correct view.
22. The bone of contention of learned counsel for the
petitioners is that 50% of the State quota seats earmarked for the
in-service candidates is disproportionate and is arbitrary.
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Arbitrariness certainly has no role in the society governed by rule of
law. Arbitrariness is antithesis to the rule of law, justice, equity and
fair-play and arbitrary action cannot be sustained.
23. The question would be whether reserving and/or
earmarking 50% of the State quota seats for in-service candidates
is disproportionate and does not conform to the theory of
proportionality.
24. The Apex Court in the case of Tamil Nadu Medical
Officers Association (supra) expected that the statutory instruments
of the respective State Governments providing for a separate
channel of entry should make a minimum service in rural, remote or
difficult areas for a specified period mandatory before a candidate
could seek admission through such separate channel and also
subsequent to obtaining the degree and on completion of the
course. To ensure the successful candidates serve in such areas,
the State shall formulate a policy of making the in-service doctors,
who obtain entry in postgraduate medical degree courses through
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independent in-service channel, execute bonds for such sum the
respective States may consider fit and proper. The impugned
Government Order mandates that a candidate seeking admission
from in-service quota has to serve till his superannuation with the
government, throughout the State. There is no contra material
placed on record by the petitioners to suggest that 50% of the seats
earmarked for in-service candidates is arbitrary or disproportionate.
25. In the case of K.Duraisamy and another (supra), the State
had earmarked 50% seats for in-service candidates. The Apex Court
upheld the policy of earmarking 50% of seats for in-service
candidates to be valid and observed that the percentage of seats for
in-service candidates can be changed depending upon the facts and
circumstances. In the case of AIIMS Students' Union v. AIIMS,
(2002) 1 SCC 428, the Apex Court observed that there is nothing
wrong in the State Government setting apart a definite percentage
of seats at postgraduation level consisting of degree and diploma
courses exclusively for in-service candidates. To the extent of the
seats so set apart, there is a separate and exclusive source of entry
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or channel for admission. It is not reservation. It was further
observed that 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. The Apex Court in the case of Tamil Nadu Medical Officers
Association (supra) finally observed as under:
“17. The object and purpose of providing separate
source of admission for in-service candidates is
noted by this Court in K. Duraisamy v. State of T.N.,
(2001) 2 SCC 538; State of M.P. v. Gopal D.
Tirthani, (2003) 7 SCC 83 and Sudhir N. v. State of
Kerala, (2015) 6 SCC 685. Even the same is noted
by this Court in Dinesh State of U.P. v. Dinesh Singh
Chauhan, (2016) 9 SCC 749 while upholding the
reservation for in-service doctors in postgraduate
diploma courses. It has been consistently held by
this Court that there is a legitimate and rational
basis in providing a separate channel/source of entry
for in-service candidates in order to encourage them
to offer their services and expertise to the State.
There is a sufficient nexus with the larger goal of
equalisation of educational opportunities and to
sufficiently prefer the doctors serving in the various
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hospitals run and maintained out of public funds, in
the absence of which there would be serious dearth
of qualified postgraduate doctors to meet the
requirements of the common public. It is stated that
the Government is facing public health crisis. The
effective and competent medical treatment is not
available in the rural and difficult areas. In-service
doctors who pursue higher studies would naturally
serve in rural and difficult areas if such incentive in
the form of reservation is provided.”
26. The respondents have placed on record the data about the
number of public health centres and government hospitals available
in the State of Tamil Nadu. The number of such public health
centres and government hospitals is certainly large in the State of
Tamil Nadu as per the statistics provided. As per the data provided,
the State of Tamil Nadu has 2266 public health centres and 330
government hospitals. Naturally, more doctors are engaged in such
government hospitals and primary health centres. In view of that,
it would not be appropriate to compare the number of seats that are
reserved for the in-service candidates by other States. It was
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suggested that the State of Kerala so also the State of Haryana
reserve 40% of the seats for in-service candidates and the State of
Maharashtra reserves 20% of the seats for in-service candidates.
No effective material is placed on record to conclude about the
disproportionality in earmarking 50% of the seats for in-service
candidates.
27. This takes us to another issue raised in the present writ
petitions, viz., the in-service candidates carrying weightage marks
given to them while seeking admission for the seats in open quota
category.
28. The Government constituted a Committee headed by
Hon'ble Mr.Justice A.Selvam, a Retired Judge of this court, to study
and identify the remote, rural and difficult areas for awarding the
incentive marks. The said Committee was constituted pursuant to
the judgment of a Division Bench of this court in the case of
The State of Tamil Nadu & Ors. vs. Dr.P.Pravin & Ors. in
W.A.Nos.1051, 1117 to 1124 of 2018 in W.P.Nos.7231, 7857 to
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7861, 8116 and 8117 of 2018, to which, one of us
(P.D.Audikesavalu,J.) was a member. The said Committee
conducted the survey and categorized the hilly, difficult and remote
areas and advised the government to give marks to the different
categories for each year, subject to maximum ceiling of 30 marks.
The government, it appears, has accepted the same. Accordingly,
weightage marks are allotted to the in-service candidates for each
year of service rendered in the area as under:
Sl.No. Area % of marks to be awarded
1 Difficult Areas in Hills - 10% of marks per year
2 Difficult Areas in Plains - 9% of marks per year
3 Remote Area - 8% of marks per year
4 Rural Areas - 5% of marks per year
5 Urban Areas (Municipal/ - No incentive marks.
Corporation Area
29. As far as the weightage marks for computing the merit
while dealing with the seats reserved for in-service candidates is
concerned, there is no dispute.
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30. It is a fact that only one merit list is prepared. The merit
list is prepared keeping in mind the weightage marks for in-service
candidates also. The grievance of the petitioners is that because of
the weightage marks, the merit is diluted and though a non-service
candidate has secured more marks in the examination, the in-
service candidate, because of the weightage marks given for having
worked in a particular area, is placed above the more meritorious
non-service candidate.
31. According to the respondents, obtaining marks in the
examination is not only the merit, but the experience gained by
working in the hospitals situated in difficult, remote and rural areas
will also add to the merit. It would be within the realm of the
State Government to provide 50% of seats for in-service
candidates.
32. In the case of Gopal D. Tirthani and Satyabrata Sahoo
(supra), it has been held that the weightage of marks to in-service
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candidates is to be provided while competing in the 50% seats
meant for in-service candidates and those weightage marks cannot
be carried while competing in the open category (seats not reserved
for in-service candidates). Regulation 9 of the MCI Postgraduate
Medical Education Regulations, 2000, as it stood then, is not
couched in similar words as amended in 2018. Regulation 9, as it
stood then, provided admission on the basis of academic merit.
Regulation 9, as it stood then, is reproduced as under:
“9.(1)(a) Students for postgraduate medical courses
shall be selected strictly on the basis of their inter se
academic merit.
(b) 50% of the seats in postgraduate diploma
courses shall be reserved for medical officers in the
government service, who have served at least three
years in remote and difficult areas. After acquiring
the PG diploma, the medical officers shall serve for
two more years in remote and/or difficult areas.”
“9.(2) For determining the ‘academic merit’, the
university/institution may adopt the following
methodology—
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(a) on the basis of merit as determined by a
‘competitive test’ conducted by the State
Government or by the competent authority
appointed by the State Government or by the
university/group of universities in the same State; or
(b) on the basis of merit as determined by a
centralised competitive test held at the national
level; or
(c) on the basis of the individual cumulative
performance at the first, second and third MBBS
examinations provided admissions are university-
wise; or
(d) combination of (a) and (c).
Provided that wherever ‘entrance test’ for
postgraduates admission is held by a State
Government or a university or any other authorised
examining body, the minimum percentage of marks
for eligibility for admission to postgraduate medical
course shall be 50 per cent for general category
candidates and 40 per cent for the candidates
belonging to the Scheduled Castes, Scheduled Tribes
and Other Backward Classes.
Provided further that in non-governmental
institutions fifty per cent of the total seats shall be
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filled by the competent authority notified by the
State Government and the remaining fifty per cent
by the management(s) of the institution on the basis
of inter se academic merit.”
33. Referring to the aforesaid provisions, the Apex Court in
the case of Satyabrata Sahoo (supra) observed that weightage
marks 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 Postgraduate admission have
already been earmarked. In the said case, the Apex Court further
observed as under:
“The 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.”
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34. In the said judgment, the Apex Court observed 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 Regulation 9(1)(a) of the MCI
Postgraduate Medical Education Regulations, 2000, which says that
students for postgraduate 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. However, in
the case of Dinesh Singh Chauhan (supra), the Apex Court
observed that there cannot be separate entry for in-service
candidates, but incentive marks can be allotted to them and with
addition of the incentive marks, they can compete with other
non-service candidates. The said judgment of the Apex Court was
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set aside by the Constitution Bench judgment of the Apex Court in
the case of Tamil Nadu Medical Officers Association (supra) to the
extent it held that there cannot be separate channel of entry to the
in-service candidates for admission to P.G. Degree course. The
Constitution Bench, in the said case, did not set aside the other part
of the judgment in Dinesh Singh Chauhan (supra) case wherein it
was held that adding incentive marks for in-service candidates while
seeking admission to the P.G. course is permissible.
35. Regulation 9(4), so also the Proviso to Regulation 9(4) of
the Regulations, 2000, as amended in the year 2018, has omitted
the word “academic merit” that was prevalent in the Regulation 9 of
the MCI Postgraduate Medical Education Regulations, 2000 when
the Apex Court delivered the judgments in Gopal D. Tirthani and
Satyabrata Sahoo (supra). The Proviso to the current
Regulation 9(4) of the Regulations, 2000 specifically provides 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%
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W.P.Nos.18430 and 18431 of 2023
of the marks obtained for each year of service in remote and/or
difficult areas or rural areas up to maximum of 30% of the marks
obtained in National Eligibility-cum Entrance Test.
36. If Regulation 9 of the the MCI Postgraduate Medical
Education Regulations, 2000, as it stood then, and Regulation 9(4)
of the Regulations, 2000 as amended in 2018 are read in
juxtaposition, it would appear that the phrase “academic merit” has
been done away with and the requirement is only “merit”. This
deviation in the amended Regulation 9(4) and its Proviso is required
to be considered. Proviso to Regulation 9(4) of the Regulations,
2000 makes it abundantly clear that in determining the merit of
candidates who are in service, weightage in the marks may be
given by the government/ competent authority as incentive. Those
weightage marks as incentive become an integral part of merit. The
incentive marks cannot be disassociated while competing from the
open category.
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37. The aspect of merit is considered by the Apex Court in
the case of Neil Aurelio Nunes (supra), wherein the Apex Court
observed that the merit of a candidate has to be adjudged keeping
in mind the background, disadvantages, barriers, difficulties they
face while competing against the other categories. The Apex Court
in the said case held that merit cannot be reduced to narrow
definitions of performance in an open competitive examination
which only provides formal equality of opportunity. Competitive
examinations assess basic current competency to allocate
educational resources, but are not reflective of excellence,
capabilities and potential of an individual which are also shaped by
lived experiences, subsequent training and individual character.
Crucially, open competitive examinations do not reflect the social,
economic and cultural advantage that accrues to certain classes and
contributes to their success in such examinations. In the aforesaid
judgment, the Supreme Court was dealing with reservation within
All India Quota seats for OBCs (non-creamy layer). Of course, in the
said case, the Apex Court was dealing with social reservation.
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38. The object is laudable and benevolent. 50% of the seats
are surrendered for All-India Quota. In the said 50% All India Quota
seats, no seats are earmarked for the in-service candidates. 50%
seats are earmarked only in the 50% seats reserved for the State
Quota. The in-service candidates are to be encouraged to offer their
services and expertise to the State. The Government faces public
health crisis. The effective and competent medical treatment is
required to be made available in rural, hilly and remote areas. In-
service Doctors, who pursue higher studies, would naturally have to
serve in Government Hospitals till superannuation. Another object
of giving incentive marks is to bring them on par with the non-
service candidates and candidates working in urban areas. These in-
service Doctors, serving in rural, remote and hilly region do not
have appropriate facilities and time. They gain practical experience
and that also can form part of merit.
39. The very purpose and object of giving weightage to the
candidates who have served in rural, remote or hilly areas is to
overcome the disadvantage they suffered because of working in
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such difficult conditions and to enable them compete with the
candidates who have directly, after their MBBS course, appeared for
the NEET Postgraduate examination. It needs to be considered that
those candidates who have rendered service in urban area are not
given any weightage marks They are kept on par with other open
category candidates. The weightage marks are only accorded to
those who have worked in such rural, remote and hilly areas. The
intent and object is clear, i.e., to bring them on par with the
candidates who were not in service. The intent is bona fide.
40. The Courts would be extremely slow in interfering with the
policy decision, that too, concerning the academic and educational
field, unless it is shown that the policy decision is against the
statutes or is manifestly arbitrary. The aforesaid discussion would
demonstrate that the policy of providing incentive marks to the
in-service candidates and adding the incentive marks for competing
with the open category candidates is not barred by any statute,
Rules or Regulations. Regulation 9(4) of the Post Graduate Medical
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W.P.Nos.18430 and 18431 of 2023
Education Regulations, 2000 and G.O.(Ms.) No.463, dated
07.11.2020 do not suffer from the vice of arbitrariness.
41. In light of the above, we are not inclined to accept the
contention of the petitioners. The writ petitions are disposed of.
There will be no order as to costs. Consequently, W.M.P.No.17650,
17652, 17654 of of 2023 are closed. W.M.P.Nos.17649 and 17651
of 2023 filed to permit the petitioners to file single writ petitions are
allowed and disposed of, inasmuch as they have paid separate sets
of court-fee.
(S.V.G., CJ.) (P.D.A., J.)
14.08.2023
Index : Yes
Neutral Citation : Yes
sasi
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W.P.Nos.18430 and 18431 of 2023
To:
1 THE SECRETARY TO GOVERNMENT
UNION OF INDIA
MINISTRY OF HEALTH AND FAMILY WELFARE
ROOM NO.201-D NIRMAN BHAWAN
NEW DELHI - 110 011.
2 THE PRINCIPAL SECRETARY TO GOVERNMENT
STATE OF TAMIL NADU
HEALTH AND FAMILY (MCA-1) DEPARTMENT
FORT ST. GEORGE, CHENNAI - 600 009.
3 THE DIRECTOR OF MEDICAL EDUCATION
DIRECTORATE OF MEDICAL EDUCATION
KILPAUK CHENNAI-600 010.
4 THE SECRETARY
SELECTION COMMITTEE
DIRECTORATE OF MEDICAL EDUCATION
162 PERIYAR E.V.R. HIGH ROAD
KILPAUK CHENNAI-600 010.
5 THE SECRETARY
NATIONAL MEDICAL COMMISSION
POCKET 14 SECTOR-8
DWARKA PHASE I NEW DELHI-110 077.
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W.P.Nos.18430 and 18431 of 2023
THE HON'BLE CHIEF JUSTICE
AND
P.D.AUDIKESAVALU,J.
(sasi)
W.P.Nos.18430 and 18431 of 2023
14.08.2023
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