Search This Site

Wednesday, November 05, 2003

Supreme Court Writ Petition (civil) 29 of 2003

CASE NO.:
Writ Petition (civil) 29 of 2003

PETITIONER:
Saurabh Chaudri & Ors.

RESPONDENT:
Union of India & Ors.

DATE OF JUDGMENT: 04/11/2003

BENCH:
Dr. AR. Lakshmanan

JUDGMENT:
J U D G M E N T
WITH

WRIT PETITION(CIVIL)NOS.54,57,68,69,84,85,89,91,
95, 98, 99 & 100 OF 2003

AND
CIVIL APPEAL NO.8581 OF 2003
(Arising out of S.L.P. (Civil) No. 1347 of 2002)


Dr. AR. Lakshmanan,J.
While concurring with the conclusion arrived at by Hon'ble the Chief
Justice, I would like to add the following few lines for streamlining the policies and
processes for admission to Medical Courses and other Professional Courses. The
issues and options are discussed below:
Every year during the admission season several lakhs of students undergo
immense suffering and harassment in seeking admission to Professional Courses
caused by uncertain policies, ambiguous procedures and inadequate information.
The miseries of students and parents are escalating year after year due to
boundless expansion in the number of professional institutions and their intake
capacity, emergence of a large variety of newer disciplines and mobility of
students seeking admissions beyond the boundaries of States. The students who
are about to complete their high school education go through a period of acute
anxiety caused by the uncertain situation about their chances for further
education. The number of qualified students wanting to go for higher studies has
been swelling largely motivated by hopes of better economic security and partly
by a desire to attain greater upward social mobility. Then begins their trauma due
to many prevailing unfair practices in admissions and devious ways of fee
collections exploiting the anxiety of students and uncertainty of procedures. Most
of the efforts to deal with these problems are ad-hoc in nature often decided
under judicial orders. Different State and Central authorities take many different
actions often leading to severe inconsistencies. There is substantial scope for
streamlining the admission process, even within the regulatory powers of the
authorities, provided these issues are not dealt with on an emergency basis
during the admission season but done in a co-ordinated and comprehensive
manner ahead of time.
ISSUE NUMBER ONE:
ENTRY QUALIFICATION:
For admissions to under-graduate programmes, there are several
different eligibility norms among the different categories of institutions and
among the various States. Some are based on Twelfth Standard marks or grades
only, some are based on the Entrance Examination only, and some are
determined by a combination of these with different weightages. There is endless
number of justifications for each of the above, confusing the students from
different parts of the country.

The preferred option, in my view, should be for a designated agency or
the University concerned to conduct the entrance examination for professional as
well as non-professional institutions in the specified subjects, (an option
suggested by this Court). The marks awarded in those subjects should be the
basis for determining the merits of the students for admission to the institutions to
which they apply.

ISSUE NUMBER TWO:
UNPLANNED GROWTH OF INSTITUTIONS
The growth of the Professional Institutions has been at an geometrical rate
during the last five years. During recent years the expansion of educational
facilities for higher education has been nearly exclusively in the private unaided
sector due to the financial incapacity of Governments.
Those who have ventured to start the new institutions are motivated by
commercial interests and not by educational and social interests. Political
considerations have become paramount in sanctioning of colleges. There has
been a high level of exploitation of students in certain disciplines through
unethical and illegal collection of unauthorized payments. The discontent among
the meritorious students is simmering also because only those, even with poor
competence, but who could pay high illegal amounts can get into many
institutions.


OPTIONS:
1. The country needs to evolve urgently a predictable pattern of growth for
the Higher Education system in Technical, Managerial, and other Professional
disciplines as well in Science and Humanities at least for the next five years. The
present level of ad-hoc approach and stampede should be eliminated.
2. The national blue print and the road map for the development of
professional education should be based on maintaining credible level of quality
standards and anticipated demand structure in economic and social sectors.

ISSUE NUMBER THREE:
FEE STRUCTURE:
This Court states: "A rational fee structure should be adopted by the
Management, which would not be entitled to charge a capitation fee. Appropriate
machinery can be devised by the State or University to ensure that no capitation
fee is charged and that there is no profiteering."

OPTIONS:
One possible remedy is to make a rule under the Prevention of the
Capitation Fee Act that collecting any fee that was not previously announced in
the college publications and any fee collected without a formal receipt should be
punishable offences. This rule should be strictly enforced.
ISSUE NUMBER FOUR:
CERTIFICATES HASSLES:
When we consider the size of our country and the large number of
institutions and huge volume of applicants, the man hour and money lost in
running around for getting the certificates during the admission season must run
into equivalent of several crores of rupees. A more hassle-free system for
authenticating the required information from students should be evolved.

OPTIONS:
Every student be provided with a basic identity certificate while he/she is in
the higher secondary stage (10th to 12th std). This should provide all essential
information such as date of birth, community, domicile, photo identity etc.,
authenticated by a designated official. This should be acceptable for admission
requirements in any institution and in any State in India.

Superspeciality Institutions and Institutions where
highly skilled Training/Education is imparted:

On the issue whether there can be Article 15(4) reservations in super-
speciality courses, this Court was categorical when it declared that there could
not be any reservation at the level of super-specialisation in medicine because
any dilution of merit at the level would adversely affect the national interest in
having the best possible at the highest level of professional and educational
training."

Similar view was already taken by this Court in Pradeep Jain V. Union of
India, AIR 1984 SC 1420.

In similar vein, in Jagdish Saran vs. Union of India, AIR 1980 SC 820,
this Court observed that Merit must be the test when choosing the best,
according to this rule of equal chance for equal marks. This proposition has
greater importance when we reach the higher levels of education for postgraduate
courses. This Court further observed that the host of variables influence the
qualification of the reservation as one factor deserves great emphasis, the higher
the level of the speciality the lesser the role of reservation.

In the case of Article 15(4) reservations, this Court has made it clear that
the claims of national interest demands that these reservations can never exceed
50% of the available seats in the concerned educational institutions.

The view was approved by this Court in the case of Indra Sawhney V.
Union of India. If one looks at this issue in the light of the spirit of the ratios laid
down in Preeti Srivatsava v. State of M.P., AIR 1999 SC 2894 and in AIIMS
Students Union v. A.I.I.M.S., AIR 2001 SC 3262, one would come to the
inevitable conclusions that the constitutional reservations contemplated under
Article 15(4) should be kept at the minimal level so that national interest in the
achievement of the goal of excellence in all fields is not unduly affected.

Of course, as between the reserved category candidates, there should be
inter-se merit observed. This has been emphasised by this court in several
cases.
As regards the constitutional validity of institutional/regional/university wise
reservation/preference, in view of this court's emphasis on the need to strive for
excellence which alone is in the national interest, it may not be possible to
sustain its constitutional validity. However, the presently available decisional law
is in support of institutional preference to the extent of 50% of the total available
seats in the concerned educational institutions.
Conclusions:
1) In the case of Central educational institutions and other institutions of
excellence in the country the judicial thinking has veered around the dominant
idea of national interest with its limiting effect on the constitutional prescription of
reservations. The result is that in the case of these institutions the scope for
reservations is minimal.

2) As regards the feasibility of constitutional reservations at the level of super-
specialities, the position is that the judiciary has adopted the dominant norm, i.e.,
"the higher the level of the speciality the lesser the role of reservation". At the
level of super-specialities the rule of "equal chance for equal marks" dominates.
This view equally applies to all super-speciality institutions.

3) As regards the scope of reservation of seats in educational institutions
affiliated and recognised by State Universities, the constitutional prescription of
reservation of 50% of the available seats has to be respected and enforced.

4 ) The institutional preference should be limited to 50% and the rest
being left for open competition based purely on merits on an All India basis.

5) As regards private non-minority educational institutions distinction
between government aided and unaided institutions. While government/State can
prescribe guidelines as to the process of selection and admission of students, the
government/State while issuing guidelines has to take into consideration the
constitutional mandate of the requirement of protective discrimination in matters
of reservation of seats as ordained by the decisional law in the country.
Accordingly, the extent of reservation in no case can exceed 50% of the seats.
The inter-se merit may be assessed on the basis of a common All India Entrance
Test or on the basis of marks at the level of qualifying examination.

6) The position with respect to minority aided institutions is that they are
bound by the requirement of constitutional reservation along with other regulatory
controls. However, the right to admit students of their choice being part of the
right of religious and linguistic minorities, to establish and administer educational
institutions of their choice, the managements of these educational institutions can
reserve seats to a reasonable extent, not necessarily 50% as laid down in
Stephens College case. Out of the seats left after the deduction of management
quota, the State can require the observance of the requirement of Constitutional
reservation.

7) As regards the unaided institutions, they have large measure of
autonomy even in matters of admission of students as they are not bound by the
constraints of the demands of Article 29(2). Nor are they bound by the constraints
of the obligatory requirements of Constitutional reservation.

Before parting with this case, I am of the opinion that the younger
generation in our society nurturing fond hopes and aspiration for their future
professional careers should feel it as a pleasurable experience to explore the
available options in higher education. They should be spared from the mental
torture due hassles and unsavoury experiences in getting to the first base. To the
extent possible they should be made to feel that they are part of one nation.
Tensions and frustrations at their impressionable age will surely result in a society
with distorted and negative values damaging the foundations of a healthy society.
The policies and procedures for admissions should be viewed from the larger
impact on the future of India.












Appeal (civil)#Appeal (civil) 4051 of 1996#1996#M/s Pepsi Foods Limited
#Collector of Central Excise, Chandigarh
#2003-11-25#25622# 4051#P. VENKATARAMA REDDI # Dr. AR. LAKSHMANAN.
###
Appeal (crl.)#Appeal (crl.) 104-106 of 2003#2003#Bikau Pandey and Ors.
#State of Bihar
#2003-11-25#25623# 104-106#DORAISWAMY RAJU # ARIJIT PASAYAT.
###
Appeal (civil)#Appeal (civil) 10906 of 1996#1996#Shanti Kumar Panda
#Shakutala Devi
#2003-11-03#25624# 10906#R.C. LAHOTI # ASHOK BHAN.
###
Appeal (civil)#Appeal (civil) 11483 of 1996#1996#Amrendra Pratap Singh
#Tej Bahadur Prajapati & Ors.
#2003-11-21#25625# 11483#R.C. LAHOTI # ASHOK BHAN.
###
Appeal (civil)#Appeal (civil) 9130 of 2003#2003#Ameer Trading Corporation Ltd.
#Shapoorji Data Processing Ltd.
#2003-11-18#25626# 9130#CJI# S.B. Sinha # AR. Lakshmanan.
##
Appeal (civil)#Appeal (civil) 14178-14184 of 1996#1996#Brij Behari Sahai (Dead) through L.Rs., etc. etc.
#State of Uttar Pradesh #2003-11-28#25627# 14178-14184#Doraiswamy Raju # Arijit Pasayat.
###
Appeal (crl.)#Appeal (crl.) 1968 of 1996#1996#Goa Plast (P) Ltd.
#Chico Ursula D'Souza
#2003-11-20#25628# 1968#B.P. Singh # Dr. AR. Lakshmanan
###
Writ Petition (crl.)#Writ Petition (crl.) 199 of 2003#2003#Ashok Kumar Pandey
#The State of West Bengal
#2003-11-18#25629# 199#DORAISWAMY RAJU # ARIJIT PASAYAT.
###
Appeal (crl.)#Appeal (crl.) 20 of 2003#2003#Surendra Paswan
#State of Jharkhand
#2003-11-28#25630# 20#DORAISWAMY RAJU # ARIJIT PASAYAT.
###
Appeal (crl.)#Appeal (crl.) 278 of 1997#1997#Vidyadharan
#State of Kerala
#2003-11-14#25631# 278#DORAISWAMY RAJU # ARIJIT PASAYAT.
###
Appeal (crl.)#Appeal (crl.) 292 of 1997#1997#State of Madhya Pradesh.
#Awadh Kishore Gupta and Ors.
#2003-11-18#25632# 292#DORAISWAMY RAJU # ARIJIT PASAYAT.
###
###State of Punjab & Anr.
#M/s Devans Modern Brewaries Ltd. & Anr.
#2003-11-20#25633##CJI.# R.C. Lahoti # Dr. AR. Lakshmanan.
##
Appeal (crl.)#Appeal (crl.) 331 of 1997#1997#Shriram
#State of Madhya Pradesh
#2003-11-24#25634# 331#DORAISWAMY RAJU # ARIJIT PASAYAT.
###
Appeal (civil)#Appeal (civil) 3630-3631 of 2003#2003#The Prohibition & Excise Supdt., A.P. & Ors.
#Toddy Tappers Coop. Society, Marredpally & Ors. #2003-11-17#25635# 3630-3631#CJI.#Dr. AR. Lakshmanan
###
Appeal (crl.)#Appeal (crl.) 371-372 of 2003#2003#Ram Dular Rai & Ors.
#State of Bihar
#2003-11-27#25636# 371-372#S.B. Sinha.
####
Appeal (civil)#Appeal (civil) 4075-4081 of 1998#1998#Nair Service Society
#Dist. Officer, Kerala Public Service Commission & Ors.
#2003-11-17#25637# 4075-4081#CJI. # Dr. AR. Lakshmanan.
###
Appeal (civil)#Appeal (civil) 4698-4700 of 1994#1994#State of U.P. & Ors.
#Lalji Tandon (Dead)
#2003-11-03#25638# 4698-4700#R.C. LAHOTI # ASHOK BHAN
###
Appeal (crl.)#Appeal (crl.) 506 of 1997#1997#State of Karnataka
#Puttaraja
#2003-11-27#25639# 506#DORAISWAMY RAJU # ARIJIT PASAYAT.
###
Appeal (crl.)#Appeal (crl.) 519-521 of 2003#2003#Goura Venkata Reddy Vs.
#State of Andhra Pradesh
#2003-11-19#25640# 519-521#DORAISWAMY RAJU # ARIJIT PASAYAT.
###
Appeal (crl.)#Appeal (crl.) 530-531 of 2003#2003#Bhargavan & Ors.
#State of Kerala
#2003-11-17#25641# 530-531#DORAISWAMY RAJU # ARIJIT PASAYAT.
###
Appeal (civil)#Appeal (civil) 7371 of 2002#2002#N.D. Thandani (Dead) By Lrs.
#Arnavaz Rustom Printer & Anr.
#2003-11-24#25642# 7371#R.C. LAHOTI # ASHOK BHAN.
###
Appeal (civil)#Appeal (civil) 9205-07 of 2003#2003#The Land Acquisition Officer, Nizamabad, District, Andhra Pradesh
#Nookala Rajamallu and Ors.
#2003-11-21#25643# 9205-07#DORAISWAMY RAJU # ARIJIT PASAYAT.
###
Transfer Petition (crl.)#Transfer Petition (crl.) 77-78 of 2003#2003#K. Anbazhagan
#The Superintendent of Police & ors.
#2003-11-18#25644# 77-78#S.N. VARIAVA # H.K. SEMA.
###
Appeal (civil)#Appeal (civil) 7868 of 1995#1995#ITW Signode India Ltd.
#Collector of Central Excise
#2003-11-19#25645# 7868#CJI# S.B. Sinha # Dr. AR. Lakshmanan.
##
Appeal (civil)#Appeal (civil) 857 of 1998#1998#Shyam Singh
#Daryao Singh (dead) by Lrs. & Ors
#2003-11-19#25646# 857#Shivaraj V. Patil # D.M. Dharmadhikari.
###
Appeal (civil)#Appeal (civil) 3630-3631 of 2003#2003#Prohibition & Excise Supdt. A.P. & Ors.
#Toddy Tappers Coop. Society, Marredpally & Ors.
#2003-11-17#25647# 3630-3631#S.B. Sinha
####
Appeal (civil)#Appeal (civil) 62-65 of 1999#1999#Pramod K. Pankaj
#State of Bihar and Ors.
#2003-11-20#25648# 62-65#CJI# # S.B. Sinha.
##
Appeal (civil)#Appeal (civil) 8232 of 1996#1996#Hindustan Lever & Anr.
#State of Maharashtra & Anr.
#2003-11-18#25649# 8232#R.C. Lahoti # Ashok Bhan.
###
Appeal (civil)#Appeal (civil) 5337-5339 of 1999#1999#Manager, Nirmala Senior, Secondary School, Port Blair
#N.I. Khan & Ors.
#2003-11-21#25650# 5337-5339#SHIVARAJ V. PATIL # ARIJIT PASAYAT.
###
Appeal (civil)#Appeal (civil) 9131 of 2003#2003#Rekha Mukherjee
#Ashish Kumar Das & Anr.
#2003-11-18#25651# 9131#CJI# S.B. Sinha # Dr. AR. Lakshmanan.
##
Appeal (civil)#Appeal (civil) 3130 of 2002#2002#Ashan Devi & Anr.
#Phulwasi Devi & Ors.
#2003-11-19#25652# 3130#Shivaraj V. Patil # D.M. Dharmadhikari.
###
Appeal (civil)#Appeal (civil) 7096 of 2000#2000#Smt. Lila Ghosh (Dead) through LR, Shri Tapas Chandra Roy
#The State of West Bengal
#2003-11-18#25653# 7096#S. N. Variava # H. K. Sema.
###
###Harinagar Sugar Mills Ltd.
#State of Bihar & Ors.
#2003-11-19#25654##Brijesh Kumar # Arun Kumar.
###
Appeal (crl.)#Appeal (crl.) 115-120 of 2002#2002#R. Sai Bharathi
#J. Jayalalitha & Ors.
#2003-11-24#25655# 115-120#S. RAJENDRA BABU # P. VENKATARAMA REDDI
###
Appeal (civil)#Appeal (civil) 9136-9137 of 2003#2003#M/s.Sathyanarayana Brothers (P) Ltd.
#Tamil Nadu Water Supply & Drainage Board
#2003-11-18#25656# 9136-9137#Brijesh Kumar # (Arun Kumar.
###

Monday, September 29, 2003

Chennai High Court Degree or Diploma after discontinuing a PG Course

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29/09/2003

CORAM

THE HONOURABLE MR.JUSTICE N.V.BALASUBRAMANIAN

W.P.No.10459 of 2003
and
W.P.Nos. 10460, 12305 and 13072 of 2003
and
W.P.M.P.Nos.13228, 13229, 13230, 13231, 13232, 13233, 13234, 13235, 13236, 13237, 15448, 15449, 15450, 15451, 15452, 16401, 16402 and 16403 of 2003

Dr.R.Ravindran ... Petr.in WP.10459/2003

Dr.T.Kanakarajan ... Petr. in WP.10460/2003

Dr.M.N.Manivachagan. ... Petr.in WP.12305/2003

Dr.S.Sudha ... Petr.in WP.13072/2003

-Vs-

1. Government of Tamil Nadu
rep. by its Secretary,
Department of Health and Family
Welfare, Fort St.George,
Chennai-9.

2. Directorate of Medical Education
rep. by its Director of Medical Education,
162, EVR Periyar High Road,
Kilpauk, Chennai 600 010.

3. The Selection Committee
rep. by its Secretary,
Directorate of Medical Education,
162, EVR Periyar High Road,
Kilpauk, Chennai 600010. ... Respondents in all Wps.


Writ petitions filed under Article 226 of the Constitution for
the issue of a writ of Declaration as stated therein.

!For petitioners
in all petns. : Mr.S.R.Sundar

^For respondents
in all petns. : Mr.V.R.Rajasekaran, Spl.GP.(Edn.)

:ORDER
All the writ petitions are filed challenging Clause-19 contained in the Prospectus issued by the respondents for the academic year 2003-04 for the PG courses for degree/diploma/five years neuro surgery/M.D.S. Courses and to declare the same as null and void.

2. Clause-19 of the Prospectus for Post Graduate Degree/Diploma/5 year M.Ch.,(Neuro Surgery) Courses for the year 2003-2004, which is challenged in these writ petitions reads as under:-
" The candidates who have undergone a Post Graduate Degree/Diploma/5 years Neuro Surgery/MDS Courses in any discipline and discontinued the courses on any grounds are eligible to apply only after a period of 2 years from the date of discontinuing t ourse."
The petitioner in W.P.No.10459 of 2003 has got admission in P.G. Course of M.S.(E.N.T.) in Madras Medical College on 10.5.2002 and he discontinued the course within a period of six months from the date of admission, namely, 30.10.2002. The petitioner in W.P.No.10460 of 2003 joined P.G. course of M.S. (General Surgeon) in Madras Medical College on 9.5.2002 and discontinued the course within a period of three months from the date of admission, namely, 31.7.2002. In so far as the petitioner in W.P.No.12305 of 2003 is concerned, he joined the Post Graduate Diploma course in the specialty of Anesthesiology in Madurai Medical College on 2.12.2002 and discontinued the course within a period of six months from the date of admission, viz., 13.2.2003. The petitioner in W.P.No.13072 of 2003 joined the post Graduate Decree course in the specialty of M.D.Microbiology in Madurai Medical College and discontinued the course within a period of six months from the date of admission, namely, 5.10.2001.

3. In the affidavits filed in support of the writ petitions, the petitioners have challenged the clause-19 of the Prospectus for the year 2003-04 on the ground that by the operation of clause 19, they are disentitled to apply for admission to P.G. courses. According to them, clause 19 is arbitrary and suffers from the vice of nonapplication of mind. It is stated that the clause-19 is retrospective in operation and it has taken away the petitioners' vested right. It is also stated that clause-19 is also violative of principles of natural justice and violative of the principle of legitimate expectation. Their main case is that the relevant clause that existed in the prospectus prior to 2003-04 imposed a ban from joining any discipline in post-graduate degree or diploma course only in cases where the candidates who had undergone the postgraduate course discontinued the course after a period of six months from the date of joining the course, but the present clause, irrespective of the period of study before discontinuance, makes the candidates ineligible to apply for a period of two years from the date of discontinuing the course. Their case is that though the clause provides that the ban will be for a period of two years, effectively the ban will be in force for a period of three years and the respondents have introduced the clause without application of mind and without any distinction or classification between the persons who discontinued the course two years prior to 2001 and the persons who discontinued the course after 2001. It is also urged that the clause has been introduced without taking into account the difference between the persons who left the course because of employment in Government service and others.

4. The respondents, on the other hand, in the counter affidavit justified the introduction of clause-19 on the ground that the Government have introduced the revised clause-19 with a view to provide opportunity to the candidates who discontinued the course previously at any point of time. In the counter affidavit it is stated that the Government have decided to impose a restriction for a period of two years on the discontinued candidates from seeking admission in any P.G. degree or diploma course keeping in view of the fact that many candidates who got selected for admission in P.G.degree/diploma course have discontinued the same and taken up employment in Government service and then apply to P.G.degree/diploma course as in-service candidates after the completion of two years of probation. It is also stated that with a view to offer opportunity to such in-service candidates who have discontinued the studies earlier and taken up employment, it is decided to relax the total restriction previously imposed and permit those candidates to apply for PG degree/diploma course after a period of two years from the date of discontinuing the course. It is also stated that once it is decided to entertain the applications of the discontinued candidates who are presently serving the State Government after the expiry of two years period of probation, a similar treatment should also be extended to non-service candidates who got admission in P.G.degree/diploma course previously and discontinued the same for personal reasons. It is also stated that clause-19 is in favour of discontinued candidates enabling them to apply for admission afresh after a period of two years whereas under the previous relevant clause, there was a total restriction against discontinued candidates.

5. Mr.S.R.Sundar, learned counsel for the petitioners submitted that clause-19 is in retrospective operation treating dissimilar candidates similar. He also submitted that there is no reasonable classification between the students who joined and discontinued the course prior to 2001 and the students who joined and discontinued the course after 2001 and in this manner, dissimilar candidates are treated similar. Learned counsel submitted that under the relevant clause that existed prior to 2003 the candidates who discontinued the course after six months suffered disqualification, but under clause 19 of the prospectus for 2003-04 the candidates who have discontinued the course even after one day from joining the course would suffer disqualification for a period of two years from the date of discontinuing the course. Learned counsel referred to clause 11(c) of the prospectus for 20 03-04 and submitted that while clause 11 (c) is prospective in nature and he is not challenging the same as it is open to the respondents to impose the ban prospectively, but clause-19 is not valid when it operates retrospectively when it imposes a ban for a period of two years from the date of discontinuance against those who joined and discontinued the course prior to 2003. Learned counsel submitted that there is a complete non-application of mind on the part of the respondents as they have not taken into account cases where the candidates joined before the academic year 2003 and discontinued the course before six months after joining the course and who did not suffer any disqualification in accordance with the prospectus issued for earlier years and others who joined prior to 2003 and discontinued after the period of six months who suffered the disqualification. Learned counsel submitted that the petitioners in all the four writ petitions have discontinued the course within a period of six months from the date of joining the course and they did not suffer any disqualification under the corresponding clause found in the prospectus for earlier academic years and there is a legitimate expectation on the part of the petitioners that since the discontinuance of study took place within a period of six months from the date of joining the course, they would not suffer any disqualification. Learned counsel submitted that the clause-19 does not make any distinction between the persons who discontinued the course and joined the Government Service and the nonservice candidates who discontinued the course for personal reasons. Learned counsel submitted that while drafting the present clause-19, the object found in the corresponding clause in the prospectus for earlier years was not taken into account. Learned counsel further submitted that clause-19 should be so interpreted as to apply only to those candidates who have left the course after the cut-off date fixed by Dr.M.G.R. Medical University. Learned counsel also submitted that the clause is in violation of Postgraduate Medical Education Regulations, 2000 by the Medical Council of India.

6. Learned Special Government Pleader, on the other hand, submitted that clause-19 does not suffer from any infirmity. He also referred to the reasons for the introduction of clause-19 and submitted that it is not open to the candidates to seek admission in one faculty and leave the faculty in the middle of the course and if the candidates are allowed to change their minds, it would be very difficult for the Government to fill up the vacancies. Learned Special Government Pleader submitted that similar clause has already been upheld by this Court in MURALI,R.Dr. v. Dr.R.KAMALAKKANNAN (1999 (III) CTC 675). He submitted that the present clause is advantageous to the candidates and it is not retrospective in operation. He submitted that in the earlier years there was a complete restriction on the part of the candidates who left the course after six months from the date of joining, but the present clause restricts the period of disqualification for a period of two academic years from the date of discontinuance of the course. Learned Special Government Pleader referred to the decision of the Supreme Court in MEDICAL COUNCIL OF INDIA v. MADHU SINGH (200 2) 7 SCC 258) and submitted that the Supreme Court has held that there should not be any mid-session admission in medical course and if the candidates leave the course in the middle, there may not be any possibility to admit new students. Learned Special Government Pleader also relied upon the decision of the Supreme Court in MABEL v. STATE OF HARYANA (2002) 6 SCC 318) and submitted that the Supreme Court considered a similar clause and upheld the validity of that clause. Learned Special Government Pleader submitted that the ratio of the decision of the Supreme Court in Mabel's case would squarely apply to the facts of the case.

7. Before considering the submissions of the learned counsel for the petitioners as well as learned Special Government Pleader, it is necessary to mention here that it is stated that the petitioner in W.P.No.13072 of 2003, by name, Dr.S.Sudha has not participated in the counselling and she was absent for counselling and hence, the question considering the validity of clause-19 in her case does not arise. Accordingly, W.P.No.13072 of 2003 is liable to be dismissed on the ground that the petitioner has not participated in the counselling. In so far as the petitioner in W.P.No.10459 of 2003 is concerned, he is challenging not only the clause-19, but also the clause-23 of the prospectus for the year 2003-04 and unless he succeeds in his attempt to challenge the validity of both the clauses, he would not be eligible for consideration for admission. As far as the petitioner in W. P.No.10460 of 2003 is concerned, he is challenging the clause-19 only and it is stated that he is fairly high in the rank list and if he succeeds in the writ petition, there is a bright chance of his admission. As far as the petitioner in W.P.No.12305 of 2003 is concerned, his name is found in the wait-list. Learned Special Government Pleader submitted that apart from the four writ petitioners who have challenged the clause-19, there are other candidates also who are found to be ineligible to apply for the postgraduate degree/diploma course due to operation of clause-19, but, I am of the view that it is not necessary to take note of those cases as they have not approached this Court challenging the said clause.

8. I have already referred to the relevant clause-19 of the prospectus for the year 2003-04. Clause-19 places an embargo from applying for the postgraduate degree or diploma/ five years Neuro surgery/M.D.S. courses in any discipline on the candidates who discontinued the studies on any ground and they would be eligible to apply only after a period of two years from the date of discontinuing the course. It is also necessary to refer to clause-11 of the prospectus for the year 2003-04 which provides for payment of stipulated amount to be paid by candidates who deserted the course after joining the course before or after the cut-off date. Clause-11(c) of the prospectus provides that the candidates would be eligible for P.G. course only after two years from the date of discontinuing the course. Clause-11(c) of the prospectus is prospective in nature and it applies to those candidates who have joined P.G. course in the academic year 2003-04 and discontinued the course. Clause-11 applies to the candidates selected both by Dr.M.G.R.Medical University and the candidates selected under All India Quota. Clause-12 provides that the postgraduate degree/ diploma course admissions for 2003-2004 would close on the cut off date of admission prescribed by Tamil Nadu Dr.MGR Medical University for the academic year 2003-2004.

9. It is now necessary to refer to the relevant clause, namely, clause-18 found in the prospectus for the earlier academic year 2002-03 which is similar to clause-19 of the prospectus for the year 2003-04. Clause-18 of the prospectus for the earlier academic year 2002-03 provided that candidates who have undergone postgraduate degree in any discipline and discontinued the course on any ground after a period of six months from the date of joining the discipline are not eligible to apply for any postgraduate decree/diploma/Five Year M.Ch.(Neuro-surgery) courses. A comparative study of the clause-19 of the prospectus for the present academic year 2003-2004 with the clause-18 of the prospectus for earlier academic year 2002-03 shows that under clause-18 of the prospectus for the earlier academic year, if any candidate joined the postgraduate degree in any discipline and discontinued the course after a period of six months from the date of joining the course, he would not be eligible to apply again. On the other hand, under clause-19 of the prospectus for the year 2003-04, the permanent ineligibility has been lifted and the period of ineligibility is now restricted to a period of two years from the date of discontinuance of the course. However, under the relevant clause found in the prospectus for the earlier academic year, the ban would operate only to those candidates who left the course after a period of six months from the date of joining the course, but, under the present clause-19 the bar would operate even in respect of a candidate who leaves the course before or after a period of six months from the date of joining the course.

10. Clause-19 has been introduced from the year 2003-2004, but the clause-18 was in existence even prior to 2002-03. The validity of clause-18 as it existed in the prospectus for the academic year 1997-9 8 was subject matter of consideration before this Court in GEETHA,P. v. STATE OF TAMIL NADU, ETC. & OTHERS (1997 Writ L.R.852) and Mr.S.S.Subramani,J. considered and upheld the validity of that clause on the ground that nearly a lakh rupees is spent for the creation of a seat in a Medical College and the Government is spending nearly five lakhs rupees on every candidate in the course of his studies. Learned Judge held that if a candidate who is undergoing any course discontinues and deserts the course within a short period, that is, six months, the selection committee would normally allot any other meritorious and deserving candidate from the merit list and if a candidate leaves the course after a period of six months, the seat would become a permanent waste and another candidate could not be substituted in the place of the candidate who deserted the course. Learned Judge held that it would become a waste of public money caused by the individual and it is not only a waste of the public exchequer, but also a great injustice done to another candidate who is deprived of admission to the course. Learned Judge also referred to the decision of the Supreme Court in Ambesh Kumar v. Principal, LLRM Medical College, Meerut (A.I.R.1987 SC 400) and held that the State Government has to evolve such a criterion of eligibility that all the seats in different M.D., M.S. degree and diploma courses should be filled up. Learned Judge referred to the decision of a Division Bench of this Court in
SUGANTHI v. STATE OF TAMIL NADU (1984-II MLJ 296) and held that the ban under the clause was imposed in the interest of general public and was valid. This Court in an unreported decision in W.P.No.6894 of 1995 (S.K.Buddha v. Government of Tamil Nadu rep. by Secretary, Health Department, Fort St.George, Madras-9 and 2 others) dated 23.7.1996 has held that the candidates could not play with the number of disciplines offered by the Government in a light-hearted manner and they should apply to the Course in which they have aptitude.

11. The Supreme Court in MABEL v. STATE OF HARYANA (2002) 6 SCC 318 ) has considered the clause-18 of Information Brochure of Kurukshetra University which reads as under:- "18. The candidates already admitted in any medical/dental colleges will not be considered eligible for admission to the course."

The Supreme Court held that the clause is valid and the law laid down by the Supreme Court reads as under:-
" A plain reading of the aforementioned clause shows that a candidate who was already admitted in a medical or dental college would be ineligible for admission in the other course. The said clause at times will operate harshly as in the case of the petitioner but it is meant to ensure that a candidate who has already secured admission should not abandon the studies after the commencement of that course to seek admission in another course which is in public interest, for otherwise it would result in the wastage of the seat in the course in which he has taken admission, and further,such a change would deprive another eligible candidate from seeking admission to the other course. Obviously, the intention of the authority concerned in framing clause-18 appears to be to ensure that a candidate who has already secured admission with his free will in any course (MBBS or BDS should complete that course and should not change his mind in midstream. It, therefore, follows that the bar is intended to be operative during the period of the course in which a candidate has taken admission. After completing that course or in the event of abandoning the course (MBBS/BDS) and not studying for the normal period (4/5 years, as the case may be) the candidate would become eligible after the end of such period of the course to seek admission in the course of his choice provided other conditions of admission are satisfied. "

12. The decisions of this Court in GEETHA,P. v. STATE OF TAMIL NADU, ETC. & OTHERS (1997 Writ L.R.852) and the unreported decision in W.P.No.6894 of 1995 (S.K.Buddha v. Government of Tamil Nadu rep. by Secretary, Health Department, Fort St.George, Madras-9 and 2 others) dated 23.7.1996 and the decision of the Supreme Court in MABEL v. STATE OF HARYANA (2002) 6 SCC 318) support the case of the respondents as the Supreme Court has
clearly held that clause-18 of Information Brochure of Kurukshetra University is to ensure the candidates who have already secured admission with their free will in any course should complete that course and should not change their mind in midstream and if there is any change, it would deprive other eligible candidates seeking admission to other courses and a candidate should not abandon the seat after commencement of the course to seek admission in another course which is in public interest, for otherwise it would result in the wastage of the seat in the course in which he has taken admission.

13. There is no dispute that clause-19 of the Prospectus for the year 2003-04 has been made in the public interest. I am unable to accept the submission of Mr.Sundar, learned counsel for the petitioners that the respondents have no such powers to incorporate the clause-19 in the prospectus after the enactment of Postgraduate Medical Education Regulations,2000 by the Medical Council of India. I am of the view that the clause-19 is not in any way inconsistent or contradictory to any of the regulations framed by the Medical Council of India and I hold that the respondents have the power to enact such a clause in the prospectus.

14. In so far as the decisions relied upon by Mr.Sundar, learned counsel for the petitioners are concerned, in POOVIZHI, MINOR v. THE GOVERNMENT OF TAMIL NADU (2002) 1 MLJ 590) a Division Bench of this Court, presided by the Hon'ble the Chief Justice of this Court, while upholding the validity of the Government Order issued in the matter of improvement examinations, held that the students who underwent improvement examinations
should take up all subjects. The Division Bench also held that the Government Order is not retrospective in operation and by the sudden change in policy, the interest of the students is jeopardised and therefore, the Government
Order would operate prospectively. This Court in Poovizhi's case also referred to various decisions of the Supreme Court on the topic of legitimate expectation and the Full Bench decision of this Court in Tamil Nadu Tamil and
English Medium Schools Association v. State of Tamil Nadu (2000) 2 M.L.J.5 75 : 2000 CTC 344) and held that on the basis of the said decision, the Government Order challenged before this Court would be applicable only prospectively and not retrospectively as the interest of the students is jeopardised. I am of the view that the decisions have no application at all as in the case before the Full Bench of this Court in Tamil Nadu Tamil and English Medium Schools Association v. State of Tamil Nadu (2000)2 MLJ 575: 2000 CTC 344) as well as the case before the Division Bench of this Court in Poovizhi's case (2002) 1 MLJ 590) there were earlier Government Orders or policies which were sought to be nullified by the subsequent Government Orders retrospectively and in such situation, this Court held that the subsequent Government Orders replacing the earlier Government Orders would be applicable
prospectively. However, on the facts of the case, the prospectus issued would govern the policy of admission for a particular academic year and it cannot be assumed that the relevant clause found in the prospectus for a particular year is a policy of the Government that would operate for ever. The prospectus, by its nature, would apply only for a particular academic year and the contention of the petitioner that the policy of the Government reflected in the prospectus should not be changed and if there is any change in the prospectus, it should operate only prospectively and not retrospectively is not sustainable. Learned counsel for the petitioners also referred to the decision of the Supreme Court in NAVJYOTI CO-OP. GROUP HOUSING SOCIETY v. UNION OF INDIA (AIR 1993 SC 155) regarding the principle of legitimate expectation. I hold that on the basis of the decision of this Court in Poovizhi's case (2002) 1 MLJ 590), cited supra, the principle of legitimate expectation has no application and there can be no legitimate expectation on the part of the petitioners on the basis of the terms contained in the prospectus for the earlier years.

15. Learned counsel also referred to the decision of this Court in SUBRAMANIAN,L. v. STATE OF TAMIL NADU (1992 WRIT L.R. 73) and submitted that under the principle of promissory estoppel, the cancellation of the reservation can be made only prospectively and not retrospectively. I am of the view that the decision has no application as in that case, the reservation of 20 seats was originally made and subsequently it was cancelled and in such situation, the Court held that so long as the reservation was in force, the cancellation of reservation can be made only prospectively and not etrospectively.

16. Learned counsel also referred to the decision of a Division Bench of this Court in STATE OF TAMIL NADU V. K.KANNABIRAN (1997 (II) CTC 475) where the Bench held that where amendment has been made by way of executive instruction, such amendment would operate prospectively and not retrospectively. This decision has also no application as in that case, it was found that when the candidates took up the examinations, the new regulations did not come into force and subsequently the regulations were amended to the effect that if the candidates fail to write examination, they would be denied first class even if they make an attempt in the next examination and obtain more than 60 per cent. In such situation, the Court held that since new regulations did not come into force when the candidates took up the examination, the regulations did not have retrospective operation. This decision has also no application.

17. Learned counsel also referred to the decision of this Court in SUSSHMA, S. v. STATE (2000(IV) CTC 720) where admission to B.Tech course was made on the basis of conditions stated in the prospectus and the petitioners attended classes and wrote first year examinations and subsequently, there was an order of the Government on the basis of the instructions given by the AICTE that the admission of some of the students was not approved. In that case, this Court held that the instructions of the AICTE cannot be applied retrospectively. This decision has also no
application as in that case admissions were made on the basis of the terms found in the prospectus which was sought to be set at naught by subsequent instructions by the AICTE. The facts are entirely different and hence, the
decision has no application.

18. The decision relied upon by the learned counsel in INDIA SUGARS AND REFINERIES LTD. v. STATE (AIR 1960 MYSORE 326) deals with the general principles on retrospective operation and it has no application as it deals with the delegation of legislative powers to executive body and the Mysore High Court held that the rule imposing cess cannot operate in a retrospective manner.

19. Learned counsel also referred to the decisions of the Supreme Court in DR.PREETI SRIVASTAVA v. STATE OF M.P. (1999) 7 SCC 120) and AIIMS STUDENTS' UNION v. AIIMS (2002) 1 SCC 428) and submitted that merit alone should be the consideration in choosing the best for admission to the high speciality courses. I am of the view that the two decisions relied upon by the learned counsel for the petitioners are not applicable as by insertion of clause-19 in the prospectus the merit is not sacrificed in the process of selection.

20. Learned Special Government Pleader, on the other hand, referred to the decisions of the Supreme Court in MABEL v. STATE OF HARYANA (2002) 6 SCC 318), MEDICAL COUNCIL OF INDIA v. MADHU SINGH (2002) 7 SCC 258)
and D.N.CHANCHALA v. STATE OF MYSORE (AIR 1971 SC 1762) and submitted that the colleges are set up by the State Government from and out of public funds and the Government have the power to frame rules and clause-19 does not suffer from any legal infirmity and it is also not unconstitutional. Learned Special Government Pleader further submitted that the rules are prospective in operation and while framing the rules for admission, the mere difference in treatment would not suffice to hold that the rules are violative of Article 14 of the Constitution. He submitted that the classification is on rational basis and it is intended to achieve the objects behind the rules and the distinction is made to achieve the objects. He relied upon the decision of the Supreme Court in ASHUTOSH GUPTA v. STATE OF RAJASTHAN (2002) 4 SCC 34). He also referred to the decision of Full Bench of this Court in MURALI,R.Dr. V. Dr. R.KAMALAKKANNAN (1999 (III) CTC 675) and submitted that the relief should be granted on the basis of the prospectus for the current year alone and the interpretation given based on last year's guidelines is not correct.

21. There can be no quarrel over the proposition laid down by the Supreme Court in D.N.CHANCHALA v. STATE OF MYSORE (AIR 1971 S.C. 1762) to the effect that the State Medical Colleges are set up by the State Government from out of the public funds and the Government which bears the financial burden in running the Government colleges is entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission should be made, provided such classification is not arbitrary and has a rational basis and a reasonable connection with the object of the rules. It is equally true, as observed by the Supreme Court in ASHUTOSH GUPTA v. STATE OF RAJASTHAN (2002) 4 SCC 34) while considering the nature and scope of Article 14 of the Constitution of India, that the concept of equality does not involve the idea of absolute equality amongst all which may be a physical impossibility and the classification need not be scientifically or logically perfect and the only thing that the Court has to see is whether the classification is reasonable and rational and based upon an intelligible differentia which distinguished persons or things grouped together from those left out of the group and whether the basis of differentiation has any rational nexus or relation with its avowed policy and objects. It is equally true that the Full Bench of this Court in MURALI,R.Dr. v. Dr.R.KAMALAKKANNAN (1999(III) CTC 675) held that it is not permissible to interpret the prospectus of one year with reference to the terms contained in the prospectus of earlier year.

22. As far as the cut-off date is concerned, I do not find any cut-off date in the prospectus issued for the academic year 2000-2001 or 2001-2002, and only the commencement date of P.G. Course is specified to be the date of joining the course. However, in the prospectus issued for the year 2002-2003, clause-11 provided that the admission would close on the last working day of the year 2002, that is, 31.12.2002. But, in so far as the prospectus for the current year, 2003-20 04 is concerned, the cut-off date of admission is said to be the cut-off date fixed by the Tamil Nadu Dr.M.G.R. Medical University for the academic year 2003-2004. But, the cut-off date for the academic year 2002-2003, viz., 31.12.2002 is relevant for the purpose of the case. The petitioner in W.P.No.10459 of 2003 has left the course on
30.1 0.2002. The petitioner in W.P.No.10460 of 2003 has deserted the course on 31.7.2002. The petitioners in other two writ petitions, W.P. Nos.12305 of 2003 and 13072 of 2003, have discontinued the course on 13 .2.2003 and
5.10.2001 respectively. In other words, all the petitioners except the petitioner in W.P.No.12305 of 2003 have left the course before the cut-off date and it is stated that in their places, new candidates who were in the wait-list were selected and they also joined the course.

23. It is in the light of the above factual background, the question whether the clause-19 of the Prospectus for the year 2003-2004 would apply to the petitioners' case has to be considered. Clause-19, as already observed by me, imposes a ban from applying for any professional P.G. degree or diploma course for a period of two years from the date of discontinuance of the course. It is true that by clause-19 , the restriction contained in the prospectus for earlier years imposing permanent ban is partially lifted and now the ban would operate for a period of two years from the date of
discontinuance of the course. The effect of the clause is that a candidate who joined the course prior to the academic year 2000-2001 and discontinued the same after a period of six months or more would now be eligible to apply for the P.G. degree or diploma course as the period of 2 years would have expired before 2003. So far as the candidates who joined the course in the year 2001 or 2002 and discontinued the course either within a period of six months or after a period of six months from the date of joining the course are concerned, they would not be eligible to apply for a period of two years from the date of discontinuance of the course. As observed by this Court in GEETHA,P. v. STATE OF TAMIL NADU, ETC. & OTHERS (1997 Writ L.R. 852), the object behind the clause is that the Government is spending money for creation of seats and also for the education of students and if a candidate deserts the course after a period of six months, the seat would become a permanent waste and another candidate who is eligible would not be substituted in the place of the candidate who deserted the course. In the said judgment this Court also held that if a candidate who underwent the course discontinued the course within a short period, then, the selection committee would be in a position to allot a wait-listed candidate in the place of the deserted candidate. The Supreme Court in MEDICAL COUNCIL OF INDIA v. MADHU SINGH (2002) 7 SCC 258) has categorically held that there is no scope for admitting students midstream and admission of students after the commencement of course would be against the intended objects of fixing a time schedule.

24. Clause-19 of the prospectus of the year 2003-2004, in my view, in its operation, does not make any difference at all in respect of persons who joined the course prior to 2003 and discontinued the course after one day or after one month or after six months or after one year from the date of joining the course. In other words, clause-19 operates and imposes the disqualification uniformly on all candidates for a period of two years who joined and discontinued the course prior to 2003-2004 irrespective of the period of discontinuance. Learned counsel for the petitioners has not seriously disputed the validity of clause-11(c) of the prospectus for the year 2003-2004 as it operates prospectively, but in so far as clause-19 is concerned, it operates with reference to candidates who have joined and discontinued the course prior to its coming into force and the disqualification would operate whatever may be the period of discontinuance.

25. I am of the view, clause-19 should be construed in the light of the object behind the clause and it is not meant to discipline a candidate for leaving the particular discipline after joining the course, nor is it meant to impose a punishment for discontinuing the course in a short period from the date of joining the course. The fixation of six months' time-limit in the earlier clauses in the earlier prospectuses has a purpose behind it and if a candidate leaves the course after six months, the seat would become a permanent waste and it would be a waste not only for the candidates who discontinued the course, but also to the candidate who is in the wait-list seeking admission.

26. It is no doubt true that there should be no wavering of the mind of a student when he exercises his option for a particular course or a particular discipline and he should think not once or twice, but more than twice before deciding to accept the course. However, due to some reasons beyond his control, if he leaves the course before the cut-off date for admission, the respondents, though put into some inconvenience, can fill up the vacancy arising out of the discontinuance of the course by the candidate as the seats available for admission are few in number and the candidates willing to join are more in number. Clause-19 of the prospectus, in its operation, takes note of certain past acts done by a candidate and imposes a ban, though a limited one on the candidate who joined the course before the academic year 2003-2004 and discontinued the course shortly after joining the course, but before the cut-off date and when it treats him alike with another candidate who joined the course before 2003 and discontinued the course after the cut-off date or after six months, without taking note of the similar clauses found in the prospectus for earlier years, it would operate arbitrarily and unreasonably in so far as the former types of candidates are concerned. It is true that the Government is entitled to frame its own policy for admission for each academic year. I am of the view, clause-19 should be read in such a manner that it will apply to the candidates who have undergone postgraduate degree/diploma/5 year M.Ch. (Neuro Surgery) courses and discontinued the course prior to the academic year 2003-2004 on any ground after the cut-off date of admission or after a period of six months from the date of joining the course and they alone will be ineligible to apply for a period of two years from the date of discontinuing the course. If the clause is so read in such a manner, then it will not apply to a candidate who has joined before 2003-2004 and discontinued the course before the expiry of cut-off date for admission. There is also an additional reason for taking such a view as the candidates who have joined the academic study would have left the course on the basis of the terms contained in the prospectus for that particular academic year. I find that at least from the academic year 1994-95 to 2 002-2003 in all the prospectuses, the restriction was imposed on the candidates who discontinued the course after a period of six months. When there is a sudden change in the policy of the Government with reference the past acts done by the candidates, I am of the view, the condition making them ineligible to apply should be so read in such a manner to remove the hardship that is caused by the operation of the rule. Though the operation of the rule is prospective in nature, yet, when it operates with reference to certain past acts done by the candidates on the basis of the prospectus issued for the earlier year, the right of the candidates seeking admission in the postgraduate course should not be prejudicially and seriously affected and the clause should be read in such a manner to remove the inequality that exists by the equal treatment meted out to two groups of persons who are not similarly situate.

27. This Court in TAMIL NADU TAMIL & ENGLISH SCHOOLS ASSOCIATION v. STATE (2000)II CTC 344) and in POOVIZHI, MINOR v. THE GOVERNMENT OF TAMIL NADU (2002) 1 M.L.J. 590) held that where there is a
sudden change of Government policy in the matter of admission, the interest of the students would get jeopardized. In Poovizhi's case it was held that the Government Order challenged before this Court was prospective in operation.
Similarly, in STATE OF TAMIL NADU v. K.KANNABIRAN (19 97 (II) CTC 475) this Court was dealing with the case where a candidate took up the examinations for fifth semester and the new regulation providing that if the candidates did not pass V semester in one single attempt, they would be denied the first class even if they make an attempt in the next examination and obtain more than 60 per cent did not come into force and this Court held that the amended regulation which came into force after the examinations were over cannot have any retrospective effect. So also is the ratio laid down by the Supreme Court in MAMTA VITHAL SHETTY v. STATE OF MAHARASHTRA (1995 Supp. (4) SCC 42). I am of the view that the same principle would equally apply here. In the case of the candidates who joined the course prior to 2003, they knew that they would suffer disqualification if they iscontinued the course after a period of six months and in spite of the same, they discontinued the course and therefore, clause-19 should be so read in such a manner that it would apply only to those candidates who joined the course prior to 2003 and and discontinued the course after a period of six months from the date of joining the course or after the cut-off date. I am of the view, by the interpretation of clause-19 in the manner indicated above, the authorities would be entitled to take note of the past conduct of the students also and the clause would operate in so far as the candidates who joined the course prior to 2003 and discontinued the course after a period of six months, though the
discontinuance of the study was prior to the commencement of the academic year 2003-2004.

28. In so far as W.P.No.10459 of 2003 is concerned, the petitioner has challenged clause-23 of the prospectus for the academic year 2003 -2004 and I have considered the question in W.P.No.11266 of 2003, etc. batch, and by judgment of even date held that the clause-23 is violative of Article-14 of the constitution.

29. The result is that clause-19, if so read in the manner indicated above, will have no application to the case of the petitioners in W.P.Nos.10459 of 2003, 10460 of 2003 and 12305 of 2003. In so far as the petitioner in W.P.No.13072 of 2003 is concerned, she has absented herself from attending the counselling and hence, the writ petition is liable to dismissed and accordingly, it is dismissed. All other writ petitions, viz., W.P.Nos.10459, 10460 and 12305 of 2003 are ordered accordingly. No costs. Connected W.M.Ps. are closed.

Index: Yes
Website: Yes
na.


To

1. The Secretary,
Government of Tamil Nadu,
Department of Health and Family
Welfare, Fort St.George,
Chennai-9.

2. The Director of Medical Education
Directorate of Medical Education,
162, EVR Periyar High Road,
Kilpauk, Chennai 600 010.

3. The Secretary,
Selection Committee
Directorate of Medical Education,
162, EVR Periyar High Road,
Kilpauk, Chennai 600010.

Chennai High Court Any Degree after Any Diploma

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29/09/2003
CORAM
THE HONOURABLE MR.JUSTICE N.V.BALASUBRAMANIAN
W.P.No.11266 of 2003and W.P.Nos. 11845, 13146, 14986, 15243, 15257, 19796,19839 and 20423 of 2003andW.P.M.P.Nos.14137, 14868, 16501, 25655, 18763, 19134, 19153, 24755,24801 and 25466 of 2003
W.P.No.11266 of 2003:
Dr.K.P.Manimaran ... Petitioner
-Vs-
1. The State of Tamil Nadu, rep. by its Secretary to Govt., Health and Family Welfare Dept., Fort St.George, Chennai-9.
2. The Director of Medical Education, Kilpauk, Chennai.
3. The Secretary, Postgraduate Degree/Diploma Selection Committee, Director of Medical Education, 162, E.V.R.Periyar High Road, Kilpauk, Chennai-10. ... Respondents
Writ petition filed under Article 226 of the Constitution ofIndia for the issue of a writ of Certiorarified Mandamus as stated therein.
For petitioner: Mr.R.Krishnamoorthy, Sr.counsel for Mr.U.M.Ravichandran in W.P.No.15257 of 2003
Mr.V.K.Muthuswamy, Sr.counsel for Mr.R.Santhanam in W.P.No.11266 of 2003
Mr.K.M.Vijayan, Sr.counsel for M/s.La Law for petr. in W.P.No.20423 of 2003
Mr.U.M.Ravichandran in W.P.Nos.11845/2003, 13146/2003 14986 of 2003, 15243 of 2003 and 19839 of 2003
Mr.K.Raja in W.P.No.19796 of 2003
For respondents: Mr.V.R.Rajasekaran, Spl.G.P.(Edn.)
:ORDER

I am of the view that it will be appropriate to begin thejudgment with the following observation made by R.C.Lahoti,J. in STATE OF M.P. v. GOPAL D. TIRTHANI (2003) 9 ILD 13 (SC):- " Imparting instruction and giving education was philanthropy- a pious duty - in the past, and later a service. In recent times it hasdeveloped into a business and now it stands recognised as an industry. Asizeable amount of litigation centres around medical education. The nationalwealth of available seats is scarce while the aspirants, desirous of sharingsuch wealth, are numerous. Every attempt at laying down criteria for choosingthe more deserving out of the several aspirants is subjected to challengebefore the Constitutional Courts of the country."
2. The admission to professional courses is an annual featureand equally, challenge to the admission in most of the courses, particularlythe medical courses and more particularly in P.G. medical courses has becomean annual feature, with the result, almost every year several writ petitionsare filed on the file of this Court challenging the mode of admission, andseveral clauses contained in the prospectus issued by the authorities are challenged. Though this Court has upheld some of the rules and struck downsome other rules, I find that there is a constant tinkering of the clausescontained in the prospectus issued for each year leading to great uncertaintyin each year's admission in professional courses. I am of the view, it will be better if a consistent policy is adopted by the State at least for aminimum period of five years, whatever may be the provocation for amendment ofthe clauses contained in the prospectus to avoid uncertainty in admissions.
3. The clauses under challenge in the above writ petitionsare clauses-21 and 23 of the prospectus issued for Postgraduate Degree/Diploma/5 year M.Ch. (Neuro Surgery) Courses for the academic year 2003-20 04and the clauses read as under:- " Clause-21:- Candidates who are undergoing a Postgraduate Diploma inany discipline are not eligible to apply for any other Diploma course.However those who are completing their Diploma courses on or before 27.04.2003can apply for Postgraduate Degree in the concerned discipline only, providedthey produce certificate from the Head of the Institution where they areundergoing the Diploma course to the effect that they will be completing thecourse on or before 27.04.2003.
Clause-23:- Candidates who have already completed or acquired aPostgraduate Diploma course in any discipline are eligible to apply forPostgraduate Degree course only in the concerned discipline and are noteligible for any other Postgraduate Diploma/Degree courses."
4. The validity of clause I(9) of General Instructionscontained in the prospectus for the academic year 1997-98, which is similar toclause-23, was subject matter of consideration of this Court in a batch ofwrit petitions in W.P.No.1741 of 1997, etc. and the clause which was subjectmatter of consideration in those writ petitions stood as under: " Clause-I(9):- A candidate who has already acquired a PostgraduateDiploma course in any one discipline is eligible to apply for PostgraduateDegree course in that discipline during 97-98".
5. The validity of the clause-I(9) of the GeneralInstructions was considered by Mr.S.S.Subramani,J. in W.P.No.1741 of1997,etc. batch and by judgment dated 9.9.1997, learned Judge allowed thewrit petitions on the ground that the clause was violative of Article 14 ofthe Constitution of India. Learned Judge held that there should be nodiscrimination between one person and another if, as regards the subjectmatter, their position is the same.
6. The present clause-23 has been introduced to get over thelacuna pointed by Mr.S.S.Subramani,J. in the unreported decision, citedsupra, providing that it would apply not only to the candidates who alreadyappeared for postgraduate diploma course in any discipline, but also to thecandidates who have completed the postgraduate diploma course in any
discipline. The further addition in the present clause-23 is that candidateswho have already completed or acquired a postgraduate diploma course in onediscipline are not eligible for any other postgraduate diploma/degree course.
7. Mr.R.Krishnamoorthy, learned senior counsel appearing forthe petitioner in W.P.No.15257 of 2003 submitted that the minimum prescribededucational qualifications should alone be the criteria for admission and thediploma qualification is not necessary to apply for postgraduate degreecourse. Learned senior counsel after referring to clause-16(b) of theprospectus submitted that if a candidate secures postgraduate diploma in onediscipline, the duration of postgraduate degree course is two years in thesame speciality and three years in the case of other speciality. Learnedsenior counsel submitted that on the basis of clauses-13 and 16 of theprospectus, the petitioners are eligible to apply for the postgraduate degreecourse in any discipline and clause-23 is arbitrary and unreasonable as themerit which is the sole criterion for admission is sacrificed by the operationof clause-23 of the prospectus. Learned senior counsel also referred toclause-28 of the prospectus and submitted that in the counselling theadmission is made on the basis of merit and under the same clause-28, it isopen to the candidates to choose any of the discipline and the collegeavailable at the time of counselling and if clause-23 is applied in strictsense, the merit which is the sole basis for admission is given a go-by andthe person with lesser merit than a candidate with higher merit would gainadmission. Learned senior counsel also referred to the Annexure-III,"Tentative Seat Matrix" both for degree course and diploma course andsubmitted that there are many diploma courses for which there are nocorresponding postgraduate degree courses and similarly, there are manypostgraduate degree courses for which there are no corresponding postgraduatediploma courses. Learned senior counsel submitted that the additionalqualification of securing a diploma has become a disqualification and theknowledge bank cannot be regarded as a disqualification. Learned seniorcounsel submitted that the eligibility for admission in the postgraduatedegree courses is the marks obtained in the common entrance examination and ifthere is any dilution of quality and if the merit is given a go-by by theoperation of clause-23 of the prospectus, it will be violative of Article-14of the Constitution of India. Learned senior counsel also submitted thatthere are two sets of procedure for admission and in so far as candidatescoming under All India Entrance Examinations are concerned , the barprescribed in clause-23 of the prospectus issued by the respondents does notoperate against them, but it would operate only against the candidates seekingadmission on the basis of prospectus for the year 2003-2004 issued by therespondents. Learned senior counsel also referred to the prospectus issued bythe Manipal Academy of Higher Education for the year 2002 and submitted thatthe prospectus issued by Manipal Academy of Higher Education provides forgrant of additional marks for the person having qualification of P.G.Diploma, but there is no such provision awarding additional marks or weightagefound in the prospectus in question. Mr.R. Krishnamoorthy, learned seniorcounsel submitted that more than 6,000 candidates have taken up commonentrance examinations and according to him, M.D. Pediatrics course contains atotal number of 24 seats and out of 24 seats, six seats are allotted to AllIndia Category and out of remaining seats, five seats are available under opencategory and a candidate with P.G. Diploma in Pediatrics, even if he hassecured third rank, he would not be eligible, but a candidate with lessermarks would become eligible for admission and by this process, the merit ofthe candidates is completely overlooked. He therefore submitted that there isunreasonableness and the merit is given a go-by by operation of clause-23 ofthe prospectus. Learned senior counsel, in support of his submission, reliedupon the unreported decision of this Court in W. P.No.1741 of 1997, etc.batch (Dr.K.Chinnusamy and others v. State of Tamil Nadu rep. by Secretaryto Govt., Health & Family Welfare Department, Secretariat, Chennai-9 andothers) dated 9.9.1997, the decision of the Supreme Court in DINESH KUMAR v.MOTILAL NEHRU MEDICAL COLLEGE (1987 (4) SCC 459), the decision of the AndhraPradesh High Court in V.SHAMSUNDER RAO v. STATE (AIR 1982 AP 405) and thedecision of the Punjab and Haryana High Court in TJINDER SINGH SIDHU v. STATE( AIR 1992 P & H 119).
8. Mr.V.K.Muthusamy, learned senior counsel appearing forsome of the petitioners submitted that clause-23 should be construed withreference to other clauses found in the prospectus and clause-23 cannot beconstrued as a prohibitory clause. His submission is that harmoniousconstruction of various clauses should be given and if all the clauses areread together applying the principle of contextual interpretation, theintention is clear that there is an implied permission and the clause 14 or 16or 28 would operate subject to clause-23. He also submitted that acquisitionof diploma is not treated as a speciality course and once eligibilitycriterion is satisfied, clause-23 cannot be put against the petitioners. Healso referred to clause-59 and submitted that in so far as 25 percentage ofseats allotted for All India candidates are concerned, the prohibition doesnot apply and there is discrimination and equals are treated unequally. Healso submitted that clause-28 is not controlled by clause-23 and the effect ofclause-23 should be read so that it cannot override other clauses whichprescribe eligibility criteria for admission.
9. Mr.K.M.Vijayan, learned senior counsel appearing for someother petitioners submitted that at the time of eligibility of candidates, noclassification is made and at the time of selection also, no classification ismade, but only at the time of admission, the classification is made and sincethere is discrimination at the time of admission, the State Government has nopower to make such a classification at the time of admission. He alsosubmitted that in the matter of selection, the merit is given a go-by and therespondents cannot prevent a student from seeking admission to a separatediscipline. He also submitted that the clause is invalid in view of theprovisions of the Medical Council of India Regulations framed under section 33of the Medical Council Act. His further submission is that after commonentrance examinations, there can be no scope to prefer some of the candidatesand no further classification is possible after common entrance examinations.His further submission is that clause-23 is not a separate clause and it mustbe construed in the light of other clauses and the prohibition imposed inclause-23 is violative of Article-14 of the Constitution of India.
10. Mr.Raja and Mr.Sundar, learned counsel who are appearingfor other petitioners also advanced arguments and they referred to clause-28and the Medical Council of India Postgraduate Medical Education Regulationsand submitted that it is not open to the State Government to select acandidate not on the basis of merit and deny admission on the ground thatcandidate has earlier secured postgraduate diploma course.
11. Learned Special Government Pleader (Education), on theother hand, submitted that the petitioners are not having any fundamentalright to admission or to pursue higher education. He referred to thedecisions of the Supreme Court in UNNIKRISHNAN,J.P. v. STATE OF A.P. (AIR1993 SC 2178) and T.M.A. PAI FOUNDATION & ORS. v. STATE OF KARNATAKA (JT1993(1) SC 474) and submitted that the petitioners have no vested right orstatutory right to pursue higher education and it is not open to them to claimadmission as a matter of right. Learned counsel submitted that the right toseek admission is limited subject to the compliance of certain basic criteriaand they have no right to admission, but they have only a right to beconsidered for admission. He also submitted that the Government runeducational institutions and they have the power to regulate admission ofcandidates and clause-23 is a regulatory clause and the burden is on thepetitioners to prove that the clause is violative of the provisions of theConstitution and the petitioners have not elaborated or proved that clause-23is violative of any of the provisions of the Constitution and clause-23 hasbeen introduced only with the object that if a person has already secured apostgraduate diploma in one discipline, he must pursue the postgraduate degreecourse in the same discipline and if he is allowed to branch off to anotherdiscipline, it would result in a situation that he may not be a specialist intwo branches. Learned counsel submitted that if there are candidates with twospecialties, then, it would affect the rights of other candidates who have noteven secured postgraduate diploma or postgraduate degree and clause-23 is nota prohibitory clause and only regulates the mode of admission permittingcandidates who have secured postgraduate diploma to pursue postgraduate degreecourse in the same discipline. He submitted that the candidates withpostgraduate diploma form one group and the candidates without postgraduatediploma or postgraduate degree form another group and there are two differentgroups and since they fall in two different groups, the question of violationof Article-14 of the Constitution does not arise. He submitted that in viewof the availability of limited number of seats in Postgraduate degree coursein medicines, the clause-23 has been introduced. He submitted that if aperson who has secured postgraduate diploma in Pediatrics is allowed to seekadmission in M.S. Ophthalmology, one candidate may not specialize inpediatrics or another candidate may not specialize in Ophthalmology with theresult, the candidate, who had secured postgraduate diploma or postgraduatedegree in two specialties, may not be able to specialize in one of thedisciplines and the clause has been introduced keeping in mind the publicinterest so that candidates who have secured diploma in a particularpostgraduate faculty should pursue further course in that line only and hecannot deviate from the line and branch off to another speciality. He alsosubmitted that these are all colleges run by the Government and it is open tothe Government to prescribe norms for selection and other avenues are notclosed and clause-23 will override other clauses. He also submitted that someof the candidates have filed writ petitions after the counselling is over andthose candidates have approached the Court belatedly, the writ petitions filedby them should be dismissed on the ground of laches. In support of hissubmissions, learned Special Government Pleader relied on the followingdecisions:
1. CHITRALEKHA v. STATE OF MYSORE (AIR 1964 S.C. 1823)2. D.N.CHANCHALA v. STATE OF MYSORE (AIR 1971 SC 1762)3. THE DIRECTOR OF MEDICAL EDUCATION & OTHERS v. Dr.V. RAMALAKSHMI(1999 WRIT L.R. 481)
4. STATE OF H.P. v. PADAM DEV (2002) 4 SCC 510)5. Dr.V.GEETHA v. THE STATE OF TAMIL NADU & OTHERS (2003 WRIT L.R. 79)
12. Mr.R.Krishnamoorthy, learned senior counsel, in hisreply, submitted that the assumption of the Government that the acquisition ofpostgraduate diploma would become waste if the candidate goes to other branchfor his degree as the knowledge acquired in one field would not become waste.He submitted that the subjects of study are not totally unrelated and what isa qualification has become a disqualification now. He therefore submittedthat clause-23 is violative of Article 14 of the Constitution of India.Mr.V.K.Muthusamy and Mr.K.M. Vijayan, learned senior counsel also supportedthe arguments advanced by Mr.R.Krishnamoorthy, learned senior counsel.
13. I have considered the submissions of Mr.R.Krishnamoorthy,Mr.V.K.Muthusamy and Mr.K.M.Vijayan, learned senior counsel and also Mr. Rajaand Mr.Sundar, learned counsel appearing for the petitioners andMr.Rajasekaran, learned Special Government Pleader (Education) appearing forthe respondents. I am of the view, clause-21 and clause-23 are bothpermissive as well as regulatory. They are permissive in the sense that theypermit candidates who have already completed and acquired postgraduate diplomacourse in anyone of the disciplines to apply for postgraduate degree course inthe same discipline and it is regulatory in the sense that it prevents aperson from applying to some other discipline for postgraduate degree otherthan the discipline in which he has acquired postgraduate diploma. Clause-23is also conscious of the fact that there are limited number of seats availablein postgraduate degree courses and there are large number of aspirants and thepreference should be given to a candidate who has secured postgraduate diplomato pursue further study in the same direction. Clause-23 is also blind to theground realities of the situation that there are only few seats available inthe postgraduate degree courses and the first option of the candidate will beto seek postgraduate degree in the same discipline in which he haspostgraduate diploma and only if the seat in that diploma is not available, hewill opt for another postgraduate degree course which will be closely related
to the subject in which he had postgraduate diploma and also to the fact thatpostgraduate degree courses are more in number than the postgraduate diplomacourses.
14. There is no difficulty in accepting the submission ofMr.V.K. Muthusamy, learned senior counsel that all the clauses in theprospectus should be read in a harmonious manner and if clause-21 or clause-23is read in the manner indicated above, the clause will be consistent withclauses-13,15, 16 and 28 of the prospectus. I am of the view, since theclause-23 also permits a candidate to apply for postgraduate degree in thesame discipline in which he has secured postgraduate diploma, the Clause-16(a)providing that the diploma is not a necessary qualification to apply forpostgraduate degree course will not be in any way inconsistent with clause-23.Similarly, clause-16(b) which provides that the duration of postgraduatedegree course for the diploma candidates who have undergone two year coursesshall be two years in the same speciality and three years in other specialtieswill also not be inconsistent as the candidates who have acquired diploma inone discipline would be required to undergo postgraduate degree course onlyfor a period of two years in the same discipline. As far as the fixation ofduration of three years in respect of other speciality is concerned, it mustbe held that there is some inconsistency between clause-16(b) and clause-23.Similarly, clause-28 enabling candidates to choose any discipline available atthe time of counselling would mean that a candidate who has undertakenpostgraduate diploma course may choose postgraduate degree course in the samediscipline and there would be some inconsistency between clause-23 andclause-28.
15. The candidates who have acquired diploma in onediscipline has not challenged Clause-23 prohibiting them to apply for anyother postgraduate diploma course in another discipline. The petitioners whohave challenged clauses 21 and 23 are persons who have acquired postgraduatediploma in one discipline seeking admission for postgraduate degree course inanother discipline and not in postgraduate diploma course. Hence, it is notnecessary to consider the validity of clause-23 with reference to candidateswho have acquired postgraduate diploma in one discipline seeking admission inpostgraduate diploma in another discipline.
16. There is no difficulty in accepting the submission of thelearned Special Government Pleader (Education) that the State which bears thefinancial burden for running the Government Colleges is entitled to lay downcriteria for admission in the colleges run by the State and the State has thepower to decide the source from which the admission could be made and theclause providing some restriction is not arbitrary and not unreasonable whichhas the nexus with the object of the Rules. The decision of the Supreme Courtin D.N.CHANCHALA v. STATE OF MYSORE (AIR 1971 SC 1762) and the decision ofthis Court in Dr. V.GEETHA v. THE STATE OF TAMIL NADU & OTHERS (2003 WRITL.R. 79) support the case of the respondents to this extent. Equally, inSUGANTHI v. STATE OF TAMIL NADU AND ANOTHER (1984 WRIT L.R. 249), a DivisionBench of this Court considered the validity of clause 7(1) of the Prospectuswhich denied a candidate to apply for admission to M.B.B.S. course, if he hadalready got admission in other course such as Engineering, Agriculture,Veterinary BDS, B.Pharm, etc., and the Division Bench of this Court, followingthe decision of the Supreme Court in Chitralekha v. State of Mysore (AIR 1964SC 1823) held as under:- " 5. Selection of best candidates for admission to available seats indifferent category in professional colleges with an eye to restrict the numberon some reasonable basis since the colleges cannot hold beyond a particularnumber of students, is a power given to the authorities after evolving certainpolicies for the selection. One such policy in present case is to denyadmission to those students who have already got into the professionalcolleges mentioned in clause 7(1) of the prospectus and had undergone sixmonths course (first semester). Such a policy, in our opinion, is reasonableand has a nexus to the object sought to be achieved, viz., manning all thecolleges run by the Government efficiently and in distributing the seatsavailable equitably. If a candidate studying in an engineering college, whichcourse also got only a limited number of seats and for which also there iscompetition, and after writing the first semester, is allowed to compete for aseat in the medical college, it will definitely deprive the candidates whohave come in for the first time for selection to the medical course. Acandidate who has already secured a seat in a professional college stands on adifferent category and that candidate's chances of becoming a graduate in thatprofessional college is a fait accompli. Considering the limited number ofseats in various professional colleges, the Government thought it fit to laydown a policy as mentioned in clause 7(1) of the prospectus. Further, if acandidate who has got a seat in the engineering college deserts it, for theadmission which he gets in another professional college such as medicalcollege, the seat in that particular engineering college will go as a waste.The wisdom of the Government thought it necessary to bring in such a policy,which has a nexus in our opinion for the object to be achieved. By thispolicy there will be equitable distribution of limited seats available in allthe professional colleges manned by the State after determining the merit ofthe candidates eligible to appear for such a selection."
17. There can be no difficulty in holding that the Governmentwhich runs professional colleges has the power to frame a scheme and it hasthe power to restrict admission on reasonable terms and regulate the admissionand distribute the seats equitably to those who seek admission. The decisionof the Division bench of this Court in THE DIRECTOR OF MEDICAL EDUCATION &OTHERS v. Dr. V. RAMALAKSHMI (1999 WRIT L.R.481) also supports the case ofthe respondents as this Court has held that the decision of the Governmentpartakes a decision of policy depending upon exigencies of situation andhaving regard to the limited number of seats available and the financialcommitment involved for the State, it is open to the Government to regulateadmission of candidates to the courses in higher studies.
18. The decision of the Supreme Court in STATE OF M.P. v.GOPAL D. TIRTHANI (2003) 9 ILD 13 (SC) also recognises that it is open to theState to regulate admission provided the regulation made is not arbitrary orunreasonable. I am unable to accept the submission of Mr.K. M.Vijayan,learned senior counsel that after the Medical Council of India Post GraduateMedical Education Regulations, 2000 came into force, the state Government hasno power to prescribe any condition for admission. There can be no doubt thatthe regulations framed by the Medical Council of India should be compliedwith, but, at the same time, the Supreme Court in number of cases has upheldthe power of the State Government to identify the source of admission for thecandidates seeking admission to the postgraduate medical courses and thedecision of the Supreme Court in STATE OF MP v. GOPAL D. TIRTHANI (2003) 9ILD 13 (SC) is relevant as the Supreme Court has taken note of the MedicalCouncil of India Post Graduate Medical Regulations and upheld the quota ofseats fixed for inservice candidates in medical postgraduate admission in theState of Madhya Pradesh. In other words, the source of the power of the StateGovernment can be traced to the decision of the Supreme Court, cited supra. Iam of the view, while the State Government should comply with the MedicalCouncil of India Postgraduate Medical Regulations, it can also frame its ownregulations for admission to Postgraduate medical courses which are not in anyway inconsistent with the Medical Council of India Postgraduate MedicalRegulations provided the regulation has a reasonable nexus to the object ofthe Rules. Therefore the submission of Mr.K.M.Vijayan, learned senior counselthat clause-23 is violative of the provisions of Medical Council of IndiaPostgraduate Medical Regulations and hence, it should be struck down is notacceptable, as, in my view, clause-23 is in no way conflict with the MedicalCouncil of India Postgraduate Medical Regulations.
19. The next question that arises is whether clause-21 orclause-23 is violative of Article 14 of the Constitution of India. It is wellsettled by several decisions of the Supreme Court that to withstand the testof reasonable classification within the meaning of Article-1 4 of theConstitution of India, the classification must satisfy the twin test, namely,(i) it must be founded on an intelligible differentia which distinguishespersons or things placed in a group from those left out or placed not in thegroup, and (ii) the differentia must have a rational relation with the objectsought to be achieved. In AIIMS STUDENTS' UNION v. AIIMS (2002) 1 SCC 428)Mr.R.C.Lahoti,J. speaking for the Bench held that the merit must be test whenchoosing the best. The rule of equal chance for equal marks is another basicrule. Similarly, equality of opportunity for every person in the country is aconstitutional guarantee. A candidate who gets more marks than another isentitled to preference for admission and this proposition has greaterimportance for the higher levels of education like postgraduate courses andthe higher the level of the speciality, the lesser the role of reservation.
20. It is equally true that the Supreme Court in STATE OFH.P. v. PADAM DEV (2002) 4 SCC 510) has held that the classification betweenthe candidates must be distinct and clearly defined as regards the eligibilitycriteria of candidates, the choice of candidates, the training andpost-training assistance and most importantly, the objectives of the training.It is no doubt true that the Supreme Court in ASHUTOSH GUPTA v. STATE OFRAJASTHAN (2002)4 SCC 34) has held that the concept of equality before lawdoes not involve the idea of absolute equality amongst all which may be aphysical impossibility and all that Article 14 guarantees is the similarity oftreatment and not identical treatment and the protection of equal laws doesnot mean that all laws must be uniform and equality before the law means thatamong equals the law should be equal and the law should be equallyadministered and that the likes should be treated alike and equality beforethe law does not mean that things which are different shall be treated asthough they were the same and a legislature which has to deal with diverseproblems arising out of an infinite variety of human relations must ofnecessity, have the power of making special laws to attain particular objectsand for that purpose it must have wider powers of selection or classificationof persons and things upon which such laws are to operate and meredifferentiation or inequality of treatment does not "per se" amount todiscrimination within the inhibition of the equal protection clause and theState has always the power to make classification on a basis of rationaldistinctions relevant to the particular subject to be dealt with.
21. As far as the decision of this Court in Dr.V.GEETHA v.THE STATE OF TAMIL NADU & OTHERS (2003 WRIT L.R. 79) is concerned, thedecision, in my opinion, has no application as in that case the petitioner hadalready acquired the qualification of P.G. Degree, namely, M.S. (GeneralSurgery) and by virtue of the relevant clauses of the prospectus she was madeineligible to apply for and to join another P.G. Degree or Diploma course.In that situation, this Court held that it is not open to the petitioner toput forward the plea of discrimination as the petitioner is not identicallyplaced or on par with any other candidate with a qualification of Bachelor ofMedicine and Surgery. This Court also held that having acquired a P.G.degree Qualification, the petitioner seeks to acquire another P.G. Degree inanother speciality and it would result in undue advantage being conferred onthe petitioner while depriving a valuable opportunity to other graduates inMedicine. This decision, in my opinion, has no application at all as thepetitioner in that case had already acquired postgraduate degree in onediscipline and if she was allowed to acquire another postgraduate degree insome other speciality, then, it would deprive the chances of another candidatewith no postgraduate degree qualification to acquire a P.G. Degree and inthat context, this Court held that there is no violation of Article 14 of theConstitution of India. I am of the view that it is not permissible to equatea person who has already acquired a postgraduate degree with a person who hasnot acquired a postgraduate degree or a person who has secured only apostgraduate diploma, and it is well settled that a degree and a diploma in aparticular discipline do not stand on the same footing as there are essentialdifferences between the acquisition of a degree and the acquisition of adiploma in a particular discipline and the candidate with a postgraduatediploma is required to undergo two more or three more years of intensivestudy, as the case may be, to acquire the P.G. degree and become a specialistin that particular discipline.
22. As far as the decision of this Court in THE DIRECTOR OFMEDICAL EDUCATION, & OTHERS v. Dr. V.RAMALAKSHMI (1999 WRIT LR.481) isconcerned, the decision also has no application as the clause dealt with bythe Division Bench was one relating to service candidates and if anydisciplinary proceeding was pending against them, the clause prohibited theservice candidates from sending in application. This Court, while upholdingthe clause on the ground that it is not violative of Article-14 of theConstitution of India, held that it is open to the Government to regulateadmission of candidates who were already in service to such courses in higherstudies, of only those who have no cloud around them and who have no mixed oradverse record of service.
23. As far as the counter affidavit filed by the respondentsis concerned, there are 23 courses in postgraduate degree and 17 courses inpostgraduate diploma available and the total number of seats in postgraduatedegree are 416 and postgraduate diploma are 476. Thoughthere are 23 courses in postgraduate degree, there are only 12 specialitiesfor which postgraduate diploma courses are available preceding the degreecourses. In the counter affidavit it is also stated that there are 300Government Hospitals situate in 28 Districts of Tamil Nadu in which variousspeciality departments are available. It is also stated that the policy ofthe Government is to appoint Medical Officers with minimum Postgraduatediploma qualification in the hospitals so that the people from the rural areasneed not have to travel to the referral hospitals attached with medicalcolleges.
24. The policy of the Government seems to be that if acandidate with DCH qualification which is a postgraduate diploma in childhealth subsequently takes postgraduate degree course in E.N.T. which isentirely a different speciality, his training in the previous speciality willnot be ulitlised either for the public or for the Government. The stand ofthe Government shows that it equates a postgraduate degree course with apostgraduate diploma course and an additional qualification by way of adiploma is treated as a disqualification for pursuing higher degree course.As already seen, there are only 12 specialities in the postgraduate diplomacourse for which there are corresponding specialities in postgraduate degreecourse. It is also possible to visualise the case of a person who has obtained a postgraduate diploma in child health, viz., DCH and if he is unableto get a seat in M.D. Pediatrics due to limited number of seats available inthat particular faculty and if he pursues his studies by choosing M.D. (General Medicine), it cannot be stated that the knowledge acquired by him byway of diploma in Child Health would become useless and irrelevant, when hepractises as M.D. (General Medicine), particularly in the case of medicalfield. It cannot also be stated that the diploma in Child Health is totallyunrelated to the M.D. (General Medicine) and with the higher qualification inM.D. (General Medicine) as well as the qualification of diploma in ChildHealth, he may be able to attend more efficiently the patients in the ruralareas both in the case of child health and in general medicine. Thedisqualification or the restriction in clause-21 or clause-23 of theprospectus not to permit a candidate from applying to any other speciality isalso not consonance with clause-16(b) or clause-28 of the prospectus. Byvirtue of the operation of restriction found in clause-23, the right ofcandidates to choose any of the disciplines available at the time ofcounselling is lost and at the time of counselling, if a candidate hasacquired a postgraduate diploma in Child health, he would not normally opt forM.D. (General Medicine) and if he opts for the same, then, the duration ofthe postgraduate degree course would be three years. Therefore the firstoption in such cases would be to opt for M.D. ( Pediatrics) and if the seatsare not available in that discipline, the candidate may choose any otherdiscipline. Hence, clause-23 is against the provisions of clause 16(b) orclause-28 and clause-23 takes away the right of a candidate to choose any ofthe subjects when he seeks to pursue a different speciality. Therefore, thesubmissions of Mr.R.Krishnamoorthy, Mr.V.K.Muthusamy and Mr.K.M.Vijayan,learned senior counsel are well-founded in this respect that all the clausesshould be read harmoniously and they should not be read in such a manner thatone clause is violative of another clause.
25. It is well settled that the Government has the power toregulate in the matter of admission of candidates, it does not mean that theregulation of admission of candidates should be unreasonable and there must benexus between the clause in question and the object of the Rules. It isevident that all the candidates are treated equally at the time of commonentrance examination, but, at the time of selection, they are not treatedalike. The candidates coming under clause-23 are denied admission not on theground of any merit, but only on the ground that they have securedpostgraduate diploma in some other discipline. The effect of clause-23 isthat a person with lesser merit is preferred, but a candidate with highermerit is denied admission on the score that he has secured a postgraduatediploma in some other faculty. In other words, by operation of clause-23 ofthe prospectus, there will be a serious dent to the merit based selection,particularly in postgraduate degree level.
26. The Andhra Pradesh High Court in V.SHAMSUNDER RAO v.STATE ( AIR 1982 A.P. 405) has held that it is preposterous to deny admissionto a candidate who by virtue of his merit is entitled to admission to M.S.(General Surgery) on the mere ground that he had earlier qualified foradmitted to the Postgraduate Diploma in Child Health to which he was admissionand registered only because he could not earlier qualify for M.S. (GeneralSurgery). The Court has also held that the rule making authority did notintend the applicants who had not already secured the postgraduate diploma ordegree to be denied admission in a particular subject merely because he hadregistered himself in a particular subject for the postgraduate diplomacourse. It is also relevant to notice here that Madhava Reddy, Ag.C.J.,speaking for the Bench held that any training a candidate may have undergonewould not go waste if he is admitted to M.S. (General Surgery). The basisbehind the introduction of clause-23 is that since the candidate had undergonea postgraduate diploma course in one faculty and if he is allowed to undertakepostgraduate degree course in another faculty, the knowledge acquired by himin the diploma course would become waste. In my view, there is no basis forthe said assumption and it also has no relevance when the candidate isselected on the basis of merit and merit alone.
27. The Punjab and Haryana High Court also considered asimilar question in TEJINDER SINGH SIDHU v. STATE (AIR 1992 P & H. 119)where a Division Bench of the Punjab and Haryana high Court considered thevalidity of the clause contained in the prospectus which provided that doctorswho have had postgraduate qualifications whether degree or diploma should beselected only for their respective speciality in which they have done degreeor diploma, and held that it is violative of Article-14 of the Constitution ofIndia and it is void as the securing of a higher qualification had the effectof making a candidate ineligible whereas in fact, it ought to have beenconsidered as a merit. The Punjab and Haryana High Court Court followed anearlier judgment of a Bench of that Court reported in State of Punjab v. Dr.Harnek Singh Medical Officer (1989 (3) SLR 802) wherein it was observed asunder:- " A person with higher qualifications in the speciality otherthan the one in which he is seeking appointment is ineligible whereas theother members of the service having lower qualifications are still eligiblefor appointment. It is an unreasonable discrimination. The members of theservice having higher qualifications have been placed at an disadvantageousposition qua the other members having lower qualifications. The condition isviolative of Art.14 of the Constitution."
28. I have already referred to the unreported decision ofMr.S.S. Subramani,J. in W.P.No.1741 of 1997, etc. batch, dated 9.9.1997where the learned Judge considered the decision of the Supreme Court in Dr.DINESH KUMAR v.MOTILAL NEHRU MEDICAL COLLEGE (1987) 4 SCC 459) where adirection was given by the Supreme Court to evolve a common pattern foradmission to postgraduate medical courses. Learned Judge also noticed thedecisions of Andhra Pradesh High Court and Punjab and Haryana High Court,cited supra, and held that so far as basic qualification for eligibility foradmission to postgraduate medical courses are concerned, the respondentsshould not have treated the petitioners separately and the principleunderlying Article-14 of the Constitution prohibits the same. Learned Judgeaccepted the arguments that M.B.B.S. is the basic qualification for eligibility for admission to the postgraduate medical courses and basic qualification alone should be considered and merely because the ca ndidateshave obtained a diploma in some discipline, that should not be taken as a disqualification. I am of the view that the judgment of Mr.S.S.Subramani,J.would equally apply in considering the validity of clause-23 of the prospectusin question.
29. Though the unreported decision of Mr.S.S.Subramani,J. inW.P. No.1741 of 1997, etc. batch was sought to be distinguished on theground that the clause considered by the learned Judge is different, I findthat the ratio laid down by the learned Judge is that for admission topostgraduate degree course, the basic qualification should be considered andacquisition of diploma in some other discipline is not to be regarded as adisqualification.
30. There is also an additional reason. Clause-59 of theprospectus provides that out of the seats sanctioned for postgraduatediploma/degree and M.D.S. Courses, 25% of seats are reserved for allotment toAll India candidates on the basis of All India selection. In so far as thecandidates selected under All India selection are concerned, there is noprohibition and it is open to those candidates to pursue any discipline,though they might have secured postgraduate diploma in another discipline.Though the source of admission may be different, I am of the view that theprohibition against admission to postgraduate degree course in some otherdiscipline for the same candidate is violative of Article-14 of theConstitution of India. As already observed by me, the merit is sacrificed byway of the restriction found in clause-23 and the restriction goes against theobject of the Rule and it has no nexus or link with the object of the Ruleproviding for merit based selection. The submission of learned SpecialGovernment Pleader (Education) that the petitioners have not given the detailsof discrimination is unsustainable as senior counsel appearing for thepetitioners have clearly demonstrated before the Court the unequal treatmentthat would be meted out to the petitioners by the operation of clause-23 andhow the merit will be a casualty by the process of selection adopted by virtueof clause-23 of the prospectus.
31. As far as the decision of a Full Bench of this Court inMURALI,R. Dr. v. Dr.R.KAMALAKKANNAN (1999(III) CTC 675) relied upon by thelearned Special Government Pleader is concerned, the decision has hardly anyapplication. The Bench noticed the decision in Dr.Preeti Srivastava v. Stateof Madhya Pradesh (1999 (4) Scale 579) where the Supreme Court also held thatin super speciality cases merit alone is to be considered. It was also foundby the Bench of this Court that from the merit list in both service andnon-service candidates, the merit was not the casualty and only on the basisof merit, the classification was made. However, in the present case, themerit is the casualty as a person in lower rank in the competitive examinationwill bypass a candidate who has secured higher mark in the same examination.
32. Learned Special Government Pleader also submitted that insome cases, the petitioners have approached the Court after the counselling isover and therefore, they are not eligible and their case should be consideredon a different footing and their petitions should be dismissed on the groundof laches. I find that Mr.S.S.Subramani,J. in the unreported decision inW.P.No.1741 of 1997, etc. batch, has also considered the question ofacquiescence in a detailed manner and held that where there is violation ofArticle 14 of the Constitution, the question of acquiescence does not arise.It is relevant to notice that in the case before Mr.S.S.Subramani,J., some ofthe candidates approached the Court after the counselling was over and thelearned Judge held that the mere fact that the petitioners did not participatein the counselling would not debar them from approaching the court as therewas misinterpretation given by the respondents which was challenged in thewrit petitions. I respectfully follow the decision of Mr.S.S.Subramani,J.and hold that where there is a question of violation of Article-14 of theConstitution of India, there cannot be any question of estoppel or waiver insuch cases. Moreover, I find that the persons who have come to the Court arewait-list candidates and out of the petitioners, four are entitled foradmission and other petitioners are still in the wait-list.
33. I therefore hold that clause-21 or 23 which prohibits acandidate who has already completed or acquired a postgraduate diploma in onediscipline from applying for a postgraduate degree course in anotherdiscipline is violative of Article-14 of the Constitution of India, and theresult is that all the writ petitions stand allowed to the above extent. Nocosts. Connected WPMPs. are closed. The impleading petition is ordered.
Index: YesWebsite: Yes
na.

To
1. The Secretary to Govt.,Health and Family Welfare Dept.,State of Tamil Nadu,Fort St.George,Chennai-9.
2. The Director of Medical Education,Kilpauk, Chennai.
3. The Secretary,Postgraduate Degree/Diploma SelectionCommittee, Director of Medical Education,162, E.V.R.Periyar High Road,Kilpauk, Chennai-10.