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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.

Chennai High Court W.P.No.15830 of 2003

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29/09/2003

CORAM

THE HONOURABLE MR.JUSTICE N.V.BALASUBRAMANIAN

W.P.No.15830 of 2003
and W.P.Nos. 16113, 16575, 16327, 13304, 15343, 14994,
14995, 15553, 15274, 15275, 15068, 15255, 15325, 15349, 15412, 15424,
15425, 15453, 15431, 15432, 15441, 15503, 15522, 15524, 15599, 15691, 15796,
16469, 16470 and 19112 of 2003

and

W.P.M.P.Nos.19893, 19894, 20180, 20181, 20755, 20756, 20427, 16715,
19255, 22764, 22765, 18776, 18778, 23428, 21915, 22556, 19541, 19542, 19159
to 19162, 18870, 18871, 19151, 19230, 19259, 19260, 19341, 19357 to
19360, 19398, 19367, 19369, 19382, 19472, 19494, 19495, 19497,
19498, 19604, 19605, 19714, 19848, 19849, 20576 and 20577 of 2003

and

W.V.M.P.Nos.1206, 1207 and 1254 of 2003


W.P.No.15830 of 2003:

1. Dr.R.Ilayaraja
2. N.S.Karthikeyan
3. Dr.S.Mohaideen Noushadh Gani
4. Dr.R.Aruna Priyadarshini
5. Dr.S.Bhama ... Petitioners.

-Vs-

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

2. The Director of Medical Education,
Directorate of Medical Education,
Kilpauk, Chennai-10.

3. The Secretary,
Selection Committee,
Directorate of Medical Education,
Kilpauk, Chennai-10. ... Respondents.

Writ petition filed under Article 226 of the Constitution of
India for the issue of a writ of declaration as stated therein.


For Petitioners :: Mr.K.M.Vijayan, Sr.counsel for M/s.La Law
in W.P.Nos.15830, 16113, 16575,15343,
14994 and 14995 of 2003


Mr.R.Shivakumar, for petr. in W.P.No.16327 of 2003
Mr.M.Ravi, for petr. in W.P.13304 of 2003
Mr.G.Thangavel, for petr. in W.P.15553 of 2003
Mr.J.James, for petr. in W.P.Nos.15274 & 15275 of 2003
Mr.S.R.Sundar, for petr. in W.P.No.15068 of 2003
Mr.R.Subramanian, for petr. in W.P.No.15072 of 2003
Mr.C.Prakasam, for petr. in W.P.No.15255 of 2003
Mr.N.Damodaran, for petr. in W.P.No.15325 of 2003
Mr.D.Prasanna, for petr. in W.P.No.15349 of 2003
Mr.V.Chandrasekaran, for petr. in W.P.No.15412 of 2003
Mr.Srinath Sridevan for petr. in W.P.Nos.15424 & 15425/2003
Mr.S.Thiruvenkadam, for petr. in W.P.No.15453 of 2003
Mr.P.Raja, for petr. in W.P.Nos.15431,15432 & 15691/2003
Mr.V.Dhanapalan, for petr. in W.P.nos.15441 & 15503/2003
Mr.R.Singaravelan, for petr. in W.P.No.15522 of 2003
Mr.A.K.Kumaraswamy for petr. in W.P.No.15524 of 2003
Mr.S.Doraisamy, for petr. in W.P.No.15599 of 2003
Mr.S.Sashikumar, for petr. in W.P.No.15796 of 2003
Mr.R.Balasubramaniam,for petr.in W.P.Nos.16469 & 16470/2003
Mrs.Hema Sampath, for petr. in W.P.No.19112 of 2003


For Respondents in all petns. : Mr.N.R.Chandran, Advocate-General
assisted by
Mr.V.R.Rajasekaran,Spl.G.P.(Edn.)


Mr.V.Ayyadurai, for petr. in W.V.M.P.Nos.1206 & 1207 of 2003
and in W.P.M.P.Nos.22764 & 22765 of 2003

Mr.K.Doraisamy, Sr.counsel for M/s.Muthumani Doraisamy for
for petr. in W.P.M.P.No.23428 of 2003

Mr.L.S.M.Hasan Fizal, for petr. in W.P.M.P.No.22556 of 2003

:ORDER

The petitioners in the various writ petitions have challenged
some of the clauses in the prospectus issued by the Selection Committee,
Directorate of Medical Education, Chennai for the admission to Post Graduate
Diploma/Degree/ M.D.S./ Five Year M.Ch.(Neuro-Surgery) Courses in Tamil Nadu
Government Medical/Dental and Self-Financing Dental Colleges.

2. The petitioners have challenged clause-28 of the said
prospectus in so far as it empowers the Government to reduce the minimum
eligibility marks for service candidates to fill up unfilled service vacancies
in the general interest of the public. The petitioners have also challenged
the clauses-32 and 33 which provide that there will be no
rechecking/revaluation/retotalling of answer sheets and no candidate will be
allowed to take back the booklets and request for provision of Xerox copies of
the question booklet and answer sheets will not be entertained. Some of them
have challenged the clause-48 and some others have challenged the clause 61(c)
of the prospectus. For the sake of convenience, I consider clause by clause
challenged in the writ petitions.

Preliminary objections:-
3. Learned Advocate General submitted that the writ petitions
are not maintainable, and according to him, the prospectus is binding and the
petitioner who have taken up the examinations on the basis of the prospectus
are not entitled to question the same after they found themselves not eligible
for admission. Learned Advocate General referred to the decision of a Bench
of this Court in RATHNASWAMY,Dr.A., v. DIRECTOR OF MEDICAL EDUCATION (1986
WRIT L.R. 207) and the decision of a Full Bench of this Court in MURALI,R.
Dr. v. Dr.R.KAMALAKKANNAN (1999(III) CTC 675) and also the decision of the
Supreme Court in K. DURAISAMY v. STATE OF T.N. (2001) 2 SCC 538) and
submitted that the Supreme Court has not gone into the question of estoppel
since the Supreme Court decided the case on merits of the matter. Learned
Advocate General also submitted that some of the petitioners have filed the
writ petitions after taking up the counselling and since they took up the
chance in the counselling and after having failed in the process of selection,
it is not open to them to challenge the prospectus in the writ petitions. In
so far as service candidates are concerned his next submission is that the
service candidates form a separate category from the open category candidates
and there are two groups and it is not open to the petitioners who are in open
category to question 50% of the seats made available to inservice candidates
and therefore it is not open to them to challenge some of the clauses in the
prospectus relating to the inservice candidates. I propose to deal with the
preliminary objections raised by the learned Advocate General when I consider
the validity of the clauses of the prospectus.

Clause-28:-
4. The first clause that is under challenge is the clause-28
and the relevant portion of clause-28 of the prospectus which is challenged in
the writ petitions reads as under:-
" Government has the right to reduce the minimum eligibility
marks for service candidates to fill up unfilled service vacancies in the
general interest of the public."

5. I heard Mr.K.M.Vijayan, learned senior counsel appearing
for the petitioners. The submission of Mr.K.M.Vijayan, learned senior counsel
is that the portion of clause-28 which is under challenge in the writ
petitions was not found in the prospectus issued for the earlier years and in
the previous years, in some cases, the minimum 40% marks prescribed in the
prospectus were reduced in favour of inservice candidates and inservice
candidates were allotted seats and the selection was challenged before this
Court and this Court held that it is impermissible for the State to reduce the
minimum marks for admission to P.G. courses. He also submitted that the
present clause which is under challenge has been introduced only to get over
the decision of this Court. He submitted that under the Postgraduate Medical
Education Regulations,2000 framed by the Medical Council of India (
hereinafter referred to as 'the Medical Council of India Regulations') under
Section 33 of the Indian Medical Council Act, 1956, the Medical Council has
prescribed 40% as minimum marks for eligibility for admission to postgraduate
medical courses and therefore, the State Government has no power to reduce the
minimum percentage of marks for eligibility for admission to postgraduate
medical courses.

6. I am of the view, Mr.K.M.Vijayan, learned senior counsel
is well-founded in his submission that the State Government has no power to
reduce the minimum percentage of marks for eligibility for admission to
postgraduate medical courses prescribed by the Medical Council of India. The
Medical Council of India has fr amed the Regulations in exercise of the powers
conferred on it under clause(l) of section 33 of the Indian Medical Council
Act and I hold that once the minimum percentage of marks for eligibility for
admission to postgraduate medical courses is prescribed by the Medical Council
of India, it is impermissible for the State Government to reduce the said
minimum percentage of marks. The Supreme Court in DR.PREETI SRIVASTAVA V.
STATE OF M.P. (1999) 7 SCC 120) held that in every case the minimum standards
as laid down by the Central statute or under Medical Council Regulations have
to be complied with by the State while making admissions and the State
Government may, in addition, lay down other additional norms for admission or
regulate admissions in the exercise of its powers under Entry-25 List III in a
manner not inconsistent with or in a manner which does not dilute the criteria
so laid down.

7. The Supreme Court in DR.SADHNA DEVI v. STATE OF U.P.
(1997) 3 SCC 9) has also held that the minimum marks prescribed cannot be done
away with. The Supreme Court in STATE OF PUNJAB v. DAYANAND MEDICAL COLLEGE
& HOSPITAL (2001) 8 SCC 664) has held that it is not open to the University or
the Government to dilute th e standard by fixing marks lower than what is set
out by the Medical Council of India. The Supreme Court has also held that if
the University or the Government felt any difficulty they ought to have
approached the Medical Council of India for fixing of appropriate standards in
that regard and the State Government could not unilaterally frame a scheme
reducing the standard in violation of the terms of the Medical Council of
India Regulations which is repeatedly stated to be the repository of the power
to prescribe standards in postgraduate studies subject, of course, to the
control of the Central Government as envisaged in the Act constituting the
Council. The same view has also been reiterated by the Supreme Court in STATE
OF M.P. v. GOPAL D. TIRTHANI (2003) 9 ILD 13( SC) wherein it was held that
the requirement of minimum qualifying marks cannot be lowered or relaxed
contrary to the Medical Council of India Regulations framed in this behalf.

8. Learned Advocate General appearing for the respondents
submitted that it is not open to the petitioners to challenge the clause
enabling the State Government to reduce the minimum percentage of marks as the
petitioners would not be eligible to compete with inservice candidates as the
quota has already been fixed for them. Though the petitioners may not be
eligible to apply and compete with inservice candidates, once it is brought to
the attention of this Court that the condition in clause-28 of the prospectus
is inconsistent with the Medical Council of India Regulations and it will have
a bearing on the standards of medical education in the State, I am of the
view, the Court cannot remain as a passive spectator and allow the State to
reduce the minimum percentage of marks than that is prescribed by the Medical
Council of India for eligibility for admission to postgraduate medical courses
and dilute the standards of medical education in the State.

9. I therefore hold that the State Government has no power to
reduce the minimum percentage of marks prescribed by the Medical Council of
India for eligibility for admission to postgraduate medical courses, but it is
needless to state that the Government, if so advised, is entitled to approach
the Medical Council of India for relaxation of Regulation-9 of the Medical
Council of India Regulations and unless the Medical Council of India or the
Government of India relaxes the minimum percentage of marks specified in
Regulation-9, the State Government has no power to reduce the minimum
percentage of marks for inservice candidates. It is also relevant to notice
the direction given by the Supreme Court in STATE OF M.P. v. GOPAL D.
TIRTHANI (2003) 9 ILD 13 (SC) which reads as under:-

" The Medical Council of India, for the present, insists,
through its Regulations, on a common entrance test being conducted whereat the
minimum qualifying marks would be 50%. The State of Madhya Pradesh must
comply with the requirements of the Regulations framed by the Medical Council
of India and hold a common entrance test even if there are two separate
channels of entry and allow clearance only to such candidates who secure the
minimum qualifying marks as prescribed by the MCI Regulations. If the State
has a case for making a departure from such rule or for carving out an
exception in favour of any classification then it is for the State to
represent to the Central Government and/or Medical Council of India and make
out a case of justification consistently with the fore-quoted observation of
this Court in Dayanand Medical College & Hospital's case (supra)."

10. It is also made clear that if the Medical Council of
India or the Central Government does not reduce the minimum qualifying marks
for admission of inservice candidates, the seats should not remain vacant and
the vacant seats should be diverted so as to make them available to open
category candidates.

Clause-48:
11. The next clause that is under challenge is clause-48 and
the clause reads as under:-
"One mark for each completed year after the completion of CRRI
shall be awarded as service mark for both service/non service candidates to
maximum of Ten as on 01.02.2003. (Eg. If a candidate scores 50 Marks in
Entrance Examination and completed Two Years after CRRI his total Aggregate
Marks will be 50+2=52)."
The clause provides for allotment of one mark for each completed year after
the completion of CRRI for both service and non-service candidates with the
maximum of 10 marks. The submission of Mr.K.M. Vijayan, learned senior
counsel is that the above clause is violative of clause-9 of the Medical
Council of India Regulations. According to him, the Medical Council of India
has framed the Regulations to determine the academic merit and also prescribed


the procedure to be adopted for both degree and diploma courses and the
allotment of marks for experience for both service and non-service candidates
is in violation of Regulation-9 of the medical Council of India Regulations.

12. The submission of the learned Advocate General is that
clause-4 8 is applicable to all the candidates and it is not open to the
petitioners to challenge the same after having received the advantage. His
submission is that the petitioners should have challenged the same before they
took up the examinations. He further submitted that the Regulation-9 is
regulatory in character and it does not prohibit the awarding of one mark for
experience. He submitted that the academic merit as found in Regulation-9
does not exclude the practical experience and experience is a relevant factor
which cannot be ignored to determine the academic merit. He also submitted
that the clause has been introduced on the basis of the directions of this
Court given in an unreported judgment in W.P.No.10755 of 1992, etc. batch,
(T. Dhilipkumar v. State of Tamil Nadu rep. by Secretary to Government,
Education Department, Fort St. George, Madras-9 and others) dated 16.12.1992,
and the maximum marks prescribed for experience is 10 and experience can also
be included to determine the academic merit. He submitted that academic
excellence is not sufficient for the pursuit of postgraduate course and
experience is also relevant and if relevant consideration is taken into
account, clause-48 is not invalid.

13. I find force in the submission of the learned Advocate
General that the petitioners, having secured the advantage of addition of one
mark for experience for each completed year of service, are not entitled to
question the same after taking up the examinations. This Court in
RATHNASWAMY,Dr. A. v. DIRECTOR OF MEDICAL EDUCATION (1986 WRIT LR. 207)
has construed the expression, 'prospectus' issued with regard to admission to
educational courses and held that the prospectus is a declaration to the
candidates that a field for development of educational potentialities is
available for exploration and that there could be a chance of success and it
is a piece of information and it contains guidelines for admission. The
clause that was construed by the Division Bench of this Court in Rathnaswamy's
case was regarding allotment of one mark for each completed year of
service/practice subject to a maximum of 20. This Court held that there was
no infirmity in the selection and the petitioner could not plead total
ignorance of the implication of the clause.

14. In SURYANARAYANA RAJU,G. Dr. v. THE GOVERNMENT OF
TAMIL NADU, ETC. & OTHERS (1992 WRIT LR. 581) a Division Bench of this Court
again considered the question of awarding of marks for number of years of
service or practice after M.B.B.S. Qualification and held that the petitioner
having acquiesced in the prescriptions in the prospectus by applying for the
course, could not on his non-selection turn round and impeach the very
prescriptions. The Division Bench has also referred to the pronouncements of
the highest court of the land and held that it is not open to the petitioner
to challenge the prospectus after having acquiesced in the prescriptions in
the prospectus.

15. In Dr.R.MURALI v. Dr.R.KAMALAKKANNAN (2000) 1 SLR 600) a
Full Bench of this Court has held that the petitioner having participated in
the examinations after fully knowing the terms and conditions of prospectus is
estopped from questioning the selection process. The Full Bench of this Court
after referring to the decision of the Supreme Court in Om Prakash Shukla v.
Akhilesh Kumar Shukla (1986 SCC ( Supp) 285), Union of India v.
Chandrasekaran (1998 (3) SCC 694), S. Muthumanickam v. State of Tamil Nadu
rep. By Commissioner and Secretary, Education, Science and Technology
Department (1985 WLR 357) and Dr. Suryanarayan Raju v. The Government of
Tamil Nadu (1992 WLR 579), held that the petitioners having acquiesced in the
prescriptions in the prospectus are not entitled to question the same. I hold
that the above decisions would squarely apply to the facts of the case and it
is not open to the petitioners herein to challenge clause-48 of the
prospectus.


16. Further, only one mark is awarded for each year
experience subject to a maximum of 10 marks on the basis of the directions of
this Court in the unreported decision in in W.P.No.10755 of 1992, etc. batch,
(T.Dhilipkumar v. State of Tamil Nadu rep. by Secretary to Government,
Education Department, Fort St. George, Madras-9 and others) dated 16.12.1992
wherein it was held that one mark for each year of service irrespective of the
place of institution of service should be awarded. Since the relevant clause
in the prospectus has been issued on the basis of the directions of this
Court, there is justification on the part of the respondents to act in
accordance with the directions of this Court. It is, no doubt, true that the
directions were issued by this Court in Dhilipkumar's case prior to the
framing of the Medical Council of India Regulations. However, the action of
the respondents in following the directions of this Court cannot be faulted
with. In this view of the matter, it is not necessary to consider the larger
question posed by the learned Advocate General that the expression, 'academic
merit' in Regulation-9 of the Medical Council of India Regulations would
encompass practical experience also. The expression, 'academic merit' has not
been defined in the Medical Council of India Regulations and in a wider sense,
as contended by the learned Advocate General, it may include practical
experience also and the decisions of the Supreme Court in Dr.PREETI SRIVASTAVA
v. STATE OF M.P. (1999) 7 SCC 120) and PRE-P.G. MEDICAL SANGHARSH COMMITTEE
v. DR.BAJRANG SONI (2001) 8 SCC 694) do support the case of learned Advocate
General. However, in a strict sense, the expression, 'academic merit', as
contended by Mr.K.M.Vijayan, learned senior counsel, may not include the
practical experience as well and the marks secured in the common entrance test
alone should be the criteria for admission. In my view, it is not necessary
to go into the larger question. Though I uphold the clause-48 of the
prospectus for the current year, as I have held that marks were awarded on the
basis of directions of this Court and to maintain judicial discipline as I am
bound by the decisions of Division Bench of this Court, yet, I have certain
reservations regarding the validity of the stand taken by the respondents in
awarding one mark for each year's experience as marks are awarded
automatically on the basis of practical experience. Though experience may be
a relevant factor, yet, awarding marks automatically depending upon the
experience would spoil the chance of a real meritorious candidate who may have
lesser number of years of experience making a deep inroad to the merit based
selection. It is true that the marks are awarded uniformly to all according
to the parameter of experience, but a person with larger number of years of
experience would gain advantage because of the experience and he may overtake
the meritorious candidate with lesser number of years of experience, not on
account of any merit, but by the criteria of experience alone. In other
words, a person with merit, but with no experience will start the race with a
disability but a person with experience begins with all the advantages of
assured marks for the years of experience. Moreover, the assigning of
weightage for experience would affect the chance of a candidate in the open
category and alter the order of merit. However, it is not necessary for me to
dilate the matter further as I have upheld the clause-48 of the prospectus for
the current year on the ground that the petitioners have approached the Court
after taking up the examinations and also on the basis of the directions of
this Court in Dhilipkumar's case (W.P.No.10755 of 1992, etc. batch dated
16.12.19 92). Accordingly, I uphold clause-48 of the prospectus for the
academic year 2003-2004.

Clause-61(a):
17. The next clause that is the subject matter of challenge
is clause-61(a) of the prospectus which reads as under:-
" The selection will be made by Counselling on Merit and
applying Rule of Reservation wherever applicable. 50% of the seats will be
made available as Open Competition for selection among both Service/Nonservice
Candidates. 50% of the seats will be made available for Service Candidates."
The clause provides that selection shall be made on merit and 50% of the seats
are made available as open competition for selection among both service and
non-service candidates and the remaining 50% of the seats are made available
for service candidates. The submission of Mr.K.M.Vijayan, learned senior
counsel for the petitioners is that clause-61(a) is violative of Medical
Council of India Regulations. He referred to Regulation-9 of the said
Regulations and submitted that students for postgraduate medical courses shall
be selected strictly on the basis of their academic merit which should be
determined by the competitive test conducted by the State Government or by the
competent authority or on the basis of merit as determined by a centralised
competitive test held at the national level or as provided in that Regulation.
He therefore submitted that while reservation under the Constitutional
provisions is permissible, the clause providing 50% of seats made available
for service candidates is inconsistent with the Medical Council of India
Regulations. Learned senior counsel, in his fairness, has brought to the
attention of this Court the decision of the Supreme Court in K.DURAISAMY v.
STATE OF T.N. (2001) 2 SCC 538) and submitted that the decision is
distinguishable as in that case the Court was dealing with the situation prior
to the enactment of the Medical Council of India Regulations. He also
submitted that the Court proceeded on the basis that the scheme envisaged is
not by way of a mere reservation but is one of classification of the sources
from which admissions have to be made. Learned senior counsel submitted that
by the application of clause-61(a), the merit is sacrificed and the dispute
raised in K.Duraisamy's case was with reference to the prospectus for the year
1999-2000 when the Medical Council of India Regulations were not in force.
Learned senior counsel referred to the decision of the Supreme Court in AIIMS
STUDENTS' UNION v. AIIMS (2002 ) 1 SCC 428) and submitted that the Supreme
Court in that case considered K.Duraisamy's case and held that the question
whether merit can be sacrificed to such an extent as to be bidden almost a
good-bye resulting in candidates too low in merit being preferred to
candidates too high in merit and the margin of difference between the two
being too wide, did not arise for consideration in K.Duraisamy's case. He
submitted that there is a wide margin between the cut-off marks prescribed for
open category and for inservice candidates and since merit is sacrificed, the
decision of the Supreme Court in AIIMS Students' Union case alone would apply.

18. Learned Advocate General, on the other hand, submitted
that the assumption of the petitioner that there is a wide margin between the
inservice candidates and open category is not justified and there is no wide
margin. He also referred to the counter-affidavit wherein it is stated that
the Government would be requiring 3051 Postgraduate qualified doctors to serve
in Government Hospitals or hospitals run by local authorities and State
Government. It is also stated in the counter-affidavit that private
candidates acquiring postgraduate degree or diploma would like to start their
own clinics and work in private hospitals and providing more number of seats
for non-service candidates would not be in the public interest. It is also
stated that the Government has decided to set apart not only 50% of total
intake in favour of service candidates and also permitted them to compete with
non-service candidates to secure admission in 50% seats reserved for open
category. It is also stated that an undertaking is obtained from the service
candidates to the effect that they shall serve in Government Hospitals for 15
years after qualifying Postgraduate degree/ diploma course. He therefore
submitted that 50% of seats earmarked for inservice candidates is in public
interest. Learned Advocate General referred to the decisions of the Supreme
Court in K.Duraisamy's case (2002) 1 SCC 428), STATE OF MP. v. GOPAL D.
TIRTHANI (2003) 9 ILD 1 3 (SC) and PRE-P.G. MEDICAL SANGHARSH COMMITTEE v.
DR.BAJRANG SONI (2 001) 8 SCC 694) wherein the Supreme Court held that it is
permissible for the Government to fix such a source or classification of
candidates from which selection for admission to the postgraduate colleges in
the State has to be made and there is no discrimination or arbitrariness
involved in the special provision made to meet a just and appropriate need in
public interest. He also referred to the decision of this Court in
Dr.R.SHAIKLA v. Dr.S.KRISHNARAJ, PONDICHERRY (2002) 1 MLJ 714) wherein this
Court has held that it is a broad classification between two categories,
namely, in service candidates and nonservice or private candidates with each
one of them allocated exclusively for their own respective category of
candidates fifty percent of the seats and the ultimate selection for admission
depending upon the inter se merit performance amongst their own category of
candidates.



19. I have considered the submissions of Mr.K.M.Vijayan,
learned senior counsel for the petitioners and learned Advocate General. It
is clear that the Supreme Court in more than one case has upheld the
classification between inservice candidates and non-service candidates in the
matter of admission to postgraduate medical courses. In STATE OF TAMIL NADU
v. T.DHILIP KUMAR (1995) 5 SCALE 208), the Supreme Court upheld the the
clause providing allotment for inservice candidates holding that such
reservation should not exceed 50% of the seats. In K.Duraisamy's case (2001)
2 SC 538), the Supreme Court upheld the decision of a Full Bench of this Court
in MURALI,R. Dr. v. Dr.R. KAMALAKKANNAN (1999(III) CTC 675) and held as
under:-
" The mere use of the word 'reservation' per se does not have
the consequence of ipso facto applying the entire mechanism underlying the
constitutional concept of a protective reservation specially designed for the
advancement of any socially-and-educationally-backward classes of citizens or
for the Scheduled Castes and the Scheduled Tribes, to enable them to enter and
adequately represent in various fields. The meaning, content and purport of
that expression will necessarily depend upon the purpose and object with which
it is used. Since reservation has diverse natures and may be brought about in
diverse ways with varied purposes and manifold objects, the peculiar
principles of interpretation laid down by the courts for implementing
reservations envisaged under the Constitution in order to ensure adequate and
effective representation to the backward classes as a whole cannot be readily
applied out of context and unmindful of the purpose of reservations as the one
made in this case, more to safeguard the interest of candidates who were
already in service to enable such in-service candidates to acquire higher and
advanced education in specialised fields to improve their professional talents
for the benefit of the patients to be treated in such medical institutions
where the in-service candidates are expected to serve. That apart, where the
scheme envisaged is not by way of a mere reservation but is one of
classification of the sources from which admissions have to be accorded,
fixation of respective quota for such classified groups, the principles at
times applied in construing provisions relating to reservation simpliciter
will have no relevance or application. Though the prescription of a quota may
involve in a general sense reservation in favour of the particular class or
category in whose favour a quota is fixed, the concepts of reservation and
fixation of quota drastically differ in their purport and content as well as
the object. Fixation of a quota in a given case cannot be said to be the same
as a mere reservation and whenever a quota is fixed or provided for one or
more of the classified group or category, the candidates falling in or
answering the description of different classified groups in whose favour a
respective quota is fixed have to confine their respective claims against the
quota fixed for each of such category, with no one in one category having the
right to stake a claim against the quota earmarked for the other class or
category."

20. The Supreme Court again upheld the classification in
PRE-P.G. MEDICAL SANGHARSH COMMITTEE v. DR.BAJRANG SONI (2001) 8 SCC 694)
and the Supreme Court held as under:-
" It is not in controversy that during the academic years in
question, there was no stipulation by the Medical Council of India of any
minimum eligibility marks to be secured in the entrance examination for
admission to postgraduate courses. Though it is said that in 200 0 such a
stipulation has been made, for the obvious reason that during the years under
our consideration there is no such stipulation, the challenge in this regard
does not merit our consideration or acceptance, leave alone the question as to
the efficacy or binding nature of the said stipulation, which we do not
propose to adjudicate upon in these cases. That apart, as rightly pointed out
in one of the judgments of this Court noticed above, mere theoretical
excellence or merit alone is no sufficient indicia of the qualitative merits
of the candidates in the field of actual practice and application. The
doctors, who are in-service candidates in various medical institutions run and
maintained by the Government or government departments, have wide area and
horizon of exposure on the practical side and they may not have the required
extra time to keep themselves afresh on the theoretical side like an open
candidate who may have sufficient time at his disposal to plod through books.
The in-service candidates in contrast to the fresh or open candidates have to
spend much of their time on attending and treating the patients in the
hospitals they serve gaining excellence on the practical side and, in our
view, they would constitute a distinct class by themselves to be given a
special treatment and no grievance can be made out on the ground that the
minimum eligibility marks for their selection in respect of seats earmarked
for them should also be the same as that of the fresh or open candidates."

21. The Supreme Court considered the question again in STATE
OF M. P. v. GOPAL D. TIRTHANI (2003) 9 ILD 13 (SC) and it is interesting
to note that in Gopal D.Tirthani's case, the Supreme Court has considered both
K.Duraisamy's case and AIIMS Students' Union case, and after considering both
the cases, the Supreme Court held as under:-
" To withstand the test of reasonable classification within
the meaning of Article 14 of the Constitution, it is well settled that the
classification must satisfy the twin tests: (i) it must be founded on an
intelligible differentia which distinguishes persons or things placed in a
group from those left out or placed not in the group, and ( ii) the
differentia must have a rational relation with the object sought to be
achieved. It is permissible to use territories or the nature of the objects
or occupations or the like as the basis for classification. So long as there
is a nexus between the basis of classification and the object sought to be
achieved, the classification is valid. ..... There is nothing wrong in the
State Government setting apart a definite percentage of educational seats at
post graduation level consisting of degree and diploma courses exclusively for
the inservice candidates. To the extent of the seats so set apart, there is a
separate and exclusive source of entry or channel for admission. It is not
reservation. In-service candidates, and the candidates not in the service of
the State Government, are two classes based on an intelligible differentia.
There is a laudable purpose sought to be achieved. In-service candidates, on
attaining higher academic achievements, would be available to be posted in
rural areas by the State Government. It is not that an in-service candidate
would leave the service merely on account of having secured a post-graduate
degree or diploma though secured by virtue of being in the service of the
State Government. If there is any misapprehension the same is allayed by the
State Government obtaining a bond from such candidates as a condition
precedent to their taking admission that after competing PG Degree/Diploma
course they would serve the State Government for another five years."

22. A Division Bench of this Court in Dr.R.SHAIKLA v. Dr.S.
KRISHNARAJ, PONDICHERRY (2002) 1 MLJ 714) again considered the question and
upheld the classification between inservice candidates and nonservice/private
candidates. Though Mr.K.M.Vijayan, learned senior counsel submitted that he
is not questioning the validity of clause 61(a) of the prospectus as violative
of Article-14 of the Constitution of India, yet, according to him, merit is
sacrificed in the process of selection.

23. In so far as minimum marks are concerned, I have already
held that it would apply both for service candidates and non-service
candidates and there are no materials also to show that there is a wide margin
of difference between the cut-off marks prescribed for open category
candidates and the cut-off marks prescribed for in-service candidates.
Therefore, I do not find any material to hold that merit has been sacrificed
to the extent which is violative of Article-14 of the Constitution of India in
the matter of classification between inservice candidates and open category
candidates. As far as violation of Regulation-9 of the Medical Council of
India Regulations is concerned, I find that even after the enactment of the
said Regulations, it would be open to the State Government to frame rules for
admission to its own colleges which is not in any way violative of the Medical
Council of India Regulations. I hold that the condition found in clause-61(a)
of the prospectus is not in violation of any of the provisions of Medical
Council of India Regulations.

24. Moreover, the Supreme Court in KUMARI CHITRA GHISE v.
UNION OF INDIA (AIR 1970 SC 35) and D.N.CHANCHALA v. STATE FO MYSORE (AIR 197
1 SC 1762) and a Full Bench of this Court in BHUPESHKAR S.R. AND OTHERS v.
THESECRETARY, SELECTION COMMITTEE, SABARMATHI HOSTEL AND OTHERS (1995 WLR 639)
and another Full Bench of this Court in Dr.R.MURALI v. Dr. R.KAMALAKKANNAN
(1999 (III) CTC 675) held that the Government would not be denied of its right
to decide the sources from which the admission should be made as it is the
Government which bears the financial burden of running the medical colleges.
Therefore, the State Government is justified in its stand in making available
50% of seats to inservice candidates as it requires 3051 medical practitioners
to serve in the Government Hospitals or hospitals run by the local bodies or
the Government. The inservice candidates are also required to give an
undertaking to serve in the Government Hospitals for 15 years. So far as the
candidates selected under open category are concerned, there is absolutely no
fetter on them to work in the Government Hospitals or hospitals run by the
local bodies or the Government and when the Government felt that there is
shortage of hands in the Government Hospitals, the clause making available 50%
of the seats to inservice candidates cannot be said to be unreasonable or
arbitrary and I hold that the clause is not unconstitutional and cannot be
struck down on the ground that merit is sacrificed. Though Mr.K.M.Vijayan,
learned senior counsel would submit that the decision of the Supreme Court in
Duraisamy's case (2001) 2 SCC 538) cannot stand in view of the decision of the
Supreme Court in AIIMS STUDENTS' UNION v. AIIMS (200 2) 1 SCC 428), yet, the
Supreme Court in STATE OF M.P. v. GOPAL D. TIRTHANI (2003) 9 ILD 13(SC) has
followed its decision in K.Duraisamy' s case after noticing its decision in
AIIMS Students' Union case. I reject the contention of the learned senior
counsel for the petitioners upholding the validity of clause-61(a) of the
prospectus.

Clauses-32 and 33:
25. The clauses that are next under challenge are clauses-32
and 33 and they read as under:-
"Clause-32: There will no Rechecking/Revaluation/Retotalling
of answer sheets.

Clause-33: No candidate will be allowed to take back the booklets and
request for provision of Xerox copies of the question booklet and answer sheet
will not be entertained."

26. The case of the petitioners is that they are challenging
the clauses on the ground of improper valuation and lack of transparency. It
is stated that the petitioners undertook examinations for postgraduate medical
courses for the academic year 2003-2004 and more than 60 00 candidates
appeared for the examinations on 27.4.2003 and the result was published on
6.5.2003 and even before the counselling was held, the petitioners approached
this Court on 12.5.2003 on the ground of lack of transparency. This Court
admitted the writ petitions on 13 .5.2003 and on the same day, this Court also
granted interim injunction as counselling was scheduled to be held on
19.5.2003. Again, the matter came up on 20.5.2003. It is seen from the order
dated 20.5.2 003 passed in the interim injunction application that the
petitioners had expressed large scale grievance with regard to the marking in
the entrance examination that was conducted for the various disciplines of
P.G. Degree/Diploma/5year MCH (Neuro Surgery) courses for the academic year
2003-2004. It is seen that on 20.5.2003 there was a representation on behalf
of the Government that revised marks list was made ready and the earlier error
had occurred only on account of some arithmetical mistake. It is also seen
that learned Special Government Pleader also produced a proforma of the list
of students bearing their entrance number, 'Q' Code, the correct answers, the
wrong answer, the bank answers, the 'E' mark and the 'T' mark. Since learned
counsel appearing for the petitioners submitted that they would be satisfied
if the break-up figures were given, learned Government Pleader submitted that
the list would be published in the Internet in the course of that week. It
was also represented by the learned Government Pleader that he would explore
the feasibility of publishing the key answers on the Internet by the end of
that week. The marks list was released on 23.5.2003. After that, the matter
was posted to 27.5.2003. It is also seen that this Court, by order dated
2.7.2003, directed the respondents to go ahead with the counselling and
further followup action, subject to the outcome of the writ petitions, and
accordingly, the counselling was also done.

27. It is stated that the question paper contained a total
number of 250 questions and the answers were evaluated by awarding one mark
for every question correctly answered and by deducting 0.25 marks for every
question wrongly answered. The mistake seems to have occurred in assigning
negative marks, which made this Court to grant interim injunction.
Subsequently, when it was realised that the deduction of the negative marks
was not correctly made, the mistake was rectified and correct marks were
furnished on 23. 5.2003.

28. The main challenge of the writ petitioners is that the
respondents should be directed to furnish key answers and carbon copy and
Xerox copy of OMR sheets together with impression sheets to find out whether
there is any interpolation with the help of computing authorities. Though it
is stated that the respondents have accepted the irregularities in the
computation of marks and agreed to publish revised marks with break-up figures
which has also been done, but OMR sheets have not been provided to the
petitioners who have approached this Court showing that there is no
transparency in the case of petitioners.

29. The petitioners placed reliance on the provisions of the
Tamil Nadu Right to Information Act, 1997 (hereinafter referred to as 'the
Information Act') and stated that the right to information is a statutory
right and the petitioner had taken up the entrance examinations and they
should be furnished with the key answers including Xerox copy of answer sheet
as is done in the case of examinations like Plus Two examinations and
professional entrance examinations. It is stated that it is not impossible to
furnish the minimum required particulars and therefore clause-32 of the
prospectus is ultra vires. Hence, the petitioners approached this Court with
the prayer to direct the respondents to furnish the particulars relating to
key answers including OMR sheets to the individual petitioners.

30. The Secretary, Selection Committee has given details
regarding preparation of question papers, the details of procedure for
evaluating answer papers. It is stated by her in the counter-affidavit that
some mistakes crept in due to deduction of negative marks for incorrect
response without computing the same to 90 and the said mistakes were rectified
pending writ petitions and a revised merit list was prepared and placed before
the Court on 20.5.2003. It is also stated that the revised merit list
containing the names of the candidate, marks secured for correct answers,
marks awarded for incorrect response, etc. was published and the revised
merit list was also published in the website on 23.5.2003. It is stated that
a foolproof method of evaluation of answer sheets of the petitioners is
followed. She has also stated that key answers are also not furnished by
other medical institutions
such as Manipal Medical Institution, Manipal, NTR University of Health Centre,
Vijayawada, Andhara Pradesh and by Tamil Nadu Public Service Commission. It
is stated that the entire evaluation was done with utmost care and there is no
possibility for any error in key answers.

31. The Secretary to Government has also filed a common
counter affidavit wherein it is stated that the petitioners have no valid
ground to insist on the Selection Committee to furnish copies of answer
sheets, Xerox copy of OMR sheets and also to pray for setting aside the entire
selection process. The petitioners have also filed a reply affidavit to the
counter affidavit filed by the Secretary, Selection Committee.

32. As it is seen from the counter affidavit and as admitted
by the petitioners, the third respondent owned the mistakes and rectified the
same when the deduction for negative marks was wrongly made and therefore, the
only question that remains to be seen is whether the petitioners are entitled
to have revaluation of answer books and they are also entitled to claim that
the respondents should be directed to furnish particulars relating to key
answers including OMR sheets of the individual petitioners.


33. Mr.K.M.Vijayan, learned senior counsel submitted that for
a complete transparency in the evaluation of answer sheets, the petitioners
should be furnished copies of OMR sheets and key answers so that it would be
possible for them to make self-assessment of the marks obtained in the
examinations held. Learned senior counsel submitted that the right to get
Xerox copies of answer sheets and key answers flows from the provisions of
Information Act. According to him, the prospectus is a document of the State
Under Article-162 of the Constitution of India and the provisions of the
Information Act cannot be interpreted in a restrictive manner and it must be
construed to include the document connected with selection process and key
answers sheet is a complementary document of the selection process done by the
State and if the petitioners are not furnished with the copies of the
documents above mentioned, it would amount to denial of their right to
information and it would be inconsistent with the provisions of the
Information Act and it is not open to the respondents by an executive order to
deny the statutory right conferred on the petitioners. He submitted that the
petitioners have the right to know how for and how well they performed in the
examinations and that can be achieved only by furnishing Xerox copies of the
answer sheets and by publishing the key answers. Learned senior counsel
referred to the clauses-32 and 33 of the prospectus and submitted that the
clauses which deny them such a right are inconsistent with the provisions of
the Information Act. Learned senior counsel referred to the procedure
followed in the State of Karnataka where there is a complete transparency
right from the date of notification till the date of despatch of result of the
candidates and according to him, in the system followed by the Karnataka
Government, the copies of answer sheets are furnished and key answers are also
published in the web site. Learned Senior counsel also referred to the
decision of Mr.K.Govindarajan,J. in W.P.No.13528 of 2 000, etc. batch (Minor
M.Cedric Joseph, rep. By his father & guardian M.Maria Soosai Manual v. The
Government of Tamil Nadu rep. By its Secretary, Higher Education Dept., Fort
St.George, Chennai-9) dated 25.10.2000 wherein the learned Judge directed
furnishing of carbon copy of question paper immediately after the examination
is over and also directed that key answers should be published . Learned
senior counsel submitted that the said system has been followed in
Professional Entrance Examinations in which more than one lakh students take
up the examinations and since the system is followed where large number of
candidates are appearing, there will be no difficulty at all in adopting the
same system for postgraduate medical course examinations where only about 6000
students would be appearing. Learned senior counsel therefore submitted that
clauses 32 and 33 should be declared as violative of the provisions of the
Information Act.

34. Learned Advocate General appearing for the State
submitted that there is no right of revaluation and it is not open to the
petitioners to claim the right of revaluation as a matter of right. He
submitted that the petitioners cannot proceed on suspicion. His submission is
that as soon as mistakes in awarding negative marks were noticed, the
Selection Committed owned the mistakes and rectified the same and when the
respondents have rectified the mistakes, it is not open to the petitioners to
say that there is malpractice in the evaluation of answer papers. Learned
Advocate General also submitted that there are no positive materials before
the Court to show that answer books were not valued properly and on the basis
of mere allegation, the court may not declare the results as invalid. Learned
Advocate General also submitted that there are more than 6000 candidates took
up the examinations and out of them, 169 candidates have alone challenged the
process of selection and out of 169 candidates, 51 candidates were selected
and 75 candidates are in the wait list and 25 candidates were absent and 12
candidates did not come within the zone of consideration. With reference to
two persons whose status could not be ascertained, learned Advocate General
submitted that their names do not tally with the records available with the
Selection Committee. Learned Advocate General submitted that nearly 36
petitioners in various writ petitions have also given letters to withdraw
their respective writ petitions. Learned Advocate General also submitted that
the expression, 'affairs of the State' found in the Information Act does not
extend to educational matters and no ground has been made out to strike down
the selection already made.

35. Learned Special Government Pleader (Education), who
supported the case of the respondents, also submitted that under the
Information Act there is no absolute right on the part of the petitioners to
claim any information relating to answer scripts. He submitted that in the
case of educational matters, it is not open to the candidates to ask more and
more information and answer books given by the candidates themselves cannot be
regarded as the 'affairs of the State'. He submitted that no ground has been
made out and there are no reasons given for allowing the prayer of the
petitioners.

36. Mr.K.M.Vijayan, learned senior counsel, in his reply,
submitted that education is coming under the 'affairs of the State' and the
prospectus would fall within Article 162 of the Constitution. He submitted
that under the Information Act, the petitioners have the right to ask for
information.

37. Mr.James, learned counsel appearing for the petitioner in
W.P. No.15274 of 2003 referred to paragraphs-6 and 7 of the affidavit filed
in support of the petition and submitted that the marks awarded are not real
marks and they are fictitious and manipulated marks.

38. I have carefully considered the submissions of
Mr.K.M.Vijayan, learned senior counsel and Mr.James, learned counsel appearing
for the petitioners and learned Advocate General and learned Special
Government Pleader (Education) appearing for the respondents. As far as the
right of revaluation is concerned, the Supreme Court has categorically laid
down that candidates who sit in for examinations have no fundamental right to
insist for revaluation of answer books, unless revaluation is provided for in
the rules. Clause-32 of the prospectus provides that there shall be no right
of revaluation or rechecking or retotalling of answer books and the clause is
perfectly in order. As a matter of fact, Mr.K.M.Vijayan, learned senior
counsel has not questioned the proposition of law that there is no right of
revaluation. The decision of the Supreme Court which was relied upon by the
learned Advocate General in MAHARASHTRA S.B.O.S. & H.S. EDUCATION v.
PARITOSH (AIR 1984 SC 1543) supports the case of the respondents to the extent
that there is no right of revaluation.

39. The further question that arises is whether the
petitioners are entitled to claim as a matter of right that copies of answer
sheets should be furnished and copy of key answers sheet should also be
published. The decision of the Supreme Court in Paritosh's case (AIR 1 984 SC
1543) also provides the answer to the same. In paragraph-12 of the judgment
the Supreme Court has held that candidates who have taken a public examination
are not entitled to participate in the process of evaluation of their
performances or to verify the correctness of the evaluation made by the
examiners by themselves conducting an inspection of the answer books and
determine whether there has been a proper and fair valuation of the answers by
the examiners. The Supreme Court in the same judgment also held that it would
be in the public interest the result of examinations is published and if
inspection and verification in the presence of candidates and revaluation are
allowed as a matter of right, it may lead to gross and indefinite uncertainty,
particularly in regard to the relative ranking etc. of the candidates besides
leading to utter confusion on account of the enormity of the labour and time
involved in the process. The Supreme Court also noticed what would be the
position, if uncertainty results in and held as under:-
" The resultant legal position merging from the High Court
judgment is that every candidate who has appeared for any such examination and
who is dissatisfied with his results would, as an inherent part of his right
to 'fair play' be entitled to demand a disclosure and personal inspection of
his answer scripts and would have a further right to ask for revaluation of
his answer papers. The inevitable consequence would be that there will be no
certainty at all regarding the results of the competitive examination for an
indefinite period of time until all such requests have been complied with and
the results of the verification and revaluation have been brought into
account."

The decision of the Supreme Court was followed by a Division Bench of this
Court in B.RAJAPPA V. THE ADDITIONAL CONTROLLER OF EXAMINATIONS & THE
REGISTRAR, UNIVERSITY OF MADRAS (1989 WRIT L.R. 55).

40. In my view, the court in its wisdom cannot substitute its
own views or strike down the decision of the policy makers. The policy
canvassed by the petitioners may be a better one, but what the Court has to
decide is whether the existing policy adopted by the Government is in any way
inconsistent with or in violation of the principles of natural justice or in
violation of any other provisions of the Constitution of India or arbitrary or
unreasonable or unfair. I have already held that the petitioners cannot claim
as a matter of right the right of revaluation. There is no violation of the
principles of natural justice in not allowing the students to participate in
the evaluation process by the examiners. The counter affidavit filed by the
Secretary, Selection Committee has given the details of safeguards adopted in
the evaluation of answer scripts. The Secretary, Selection Committee has
stated that after the completion of examinations, the scanning of OMR answer
sheets is carried out and a print out of the answer sheets is taken for
verification of the total number of questions answered, total number of
blanks, etc. with original OMR answer sheets and the verification of total
number of questions answered, blanks, etc. are done manually and thereafter
key answer for each code and subject is entered into the computer in the
presence of the officials and print out of the key answers taken for each code
and subject are manually verified for the correctness of the data entry of the
key fed into the computer and the process of evaluation of each answer sheet
is done after scanning the OMR answer sheets and then feeing the key answers
into the computer. She has stated that in the above method, there is no
chance for error in the process of evaluation. She has stated that the error
occurred in awarding negative marks, but the method adopted cannot be said to
be faulty, wrong or defective. The counter affidavit of the Secretary,
Selection Committee clearly discloses that sufficient precautions are taken
for correcting answer sheets. Therefore the petitioners cannot claim as a
matter of right that they should be furnished copies of answer books and also
copies of key answers. Their claim is based on mere suspicion that their
answer books might not have been correctly evaluated.

41. In my view, the method to be adopted for the evaluation
of answer books should be left to the discretion of the academicians or the
expert body constituted for the evaluation of answer books and they are
persons with technical expertise and they have wide experience also in the
matter of evaluation of answer books. I am of the view, the Court should not
superimpose its view on the method of evaluation done by the Selection
Committee. Though learned senior counsel for the petitioners has referred to
the practice adopted by the State of Karnataka, it is also stated by the
Secretary, Selection Committee that the same practice is not followed in the
same State in Manipal Medical Institution, NTR University of Health Centre,
Vijayawada, Andhara Pradesh and also in the Tamil Nadu Public Service
Commission.

42. As far as the provisions of the Information Act are
concerned, I am of the view that they relate only to the affairs of the State
and under the Act, the expression, 'information' has been defined in section
2(3) to include copy of any document relating to the affairs of the State or
any local or other authorities constituted under any Act or a statutory
authority or a company, corporation or a cooperative society or any
organisation owned or controlled by the Government. The expression, 'affairs
of the State' as found in section 2(3) of the Information Act, in my view,
does not extend to answer books given by the students and the Information Act
has been enacted for a laudable object of protecting the right of information
in the State of Tamil Nadu. The answer books given by the candidates do not
fall within the scope of 'affairs of the State' and the evaluation done by the
examiners also would not amount to the 'affairs of the State'. Moreover, if a
person claims the right of information, he must establish that he bona fide
needs the information. I find that the petitioners have not established that
their claim is bona fide in seeking the information. In other words, their
attempt is to have the right of revaluation which is expressly denied by the
Regulations and to have copies of answer books which is also denied by the
Regulations. Since the Information Act does not extend to answer books given
by the candidates in the examinations, the petitioners cannot claim as a
matter of right that they must be furnished with the copies of the answer
books under the provisions of the Information Act. As rightly contended by
the learned Advocate General, if such right is extended to answer books, it
may even extend to the right to insist for a copy of question paper prior to
the examination. I therefore hold that the claim of the petitioners that they
are entitled to have copies of answer sheets and key answers is not warranted
under the provisions of the Information Act and I do not find any illegality
in the provisions of the clauses-32 and 33 of the prospectus in question.
Accordingly, the claim of the petitioners to declare the clauses invalid is
rejected.

43. As far as W.P.Nos.15274 and 15275 of 2003 are concerned,
though it is stated that the petitioners have answered 249/242 correctly
against 20/40 incorrect answers and the petitioners would be entitled to
higher marks than awarded, it is only on the assumption, the statement has
been made and there is no basis for the same and hence, it is not necessary to
examine the question further. Accordingly, these writ petitions are also
liable to be dismissed. Factually also, I do not find any reason to interfere
with the selection already made. It is stated that 36 petitioners have
already given letters expressing their willingness to withdraw the writ
petitions and there are only 169 writ petitioners in total and out of them, 74
persons are in the wait-list and 26 petitioners have not attended the
counselling and 12 persons are not within the zone of consideration.
Considering the total number of candidates who had participated in the
examinations and number of candidates who have been selected already, I am of
the view that factually also, the petitioners are not entitled to succeed.

44. Consequently, all the writ petitions are disposed of
accordingly. Connected W.P.M.Ps. and W.V.M.Ps. are dismissed. In so far as
impleading petitions are concerned, they are ordered. No costs.

Index: Yes
Website: Yes
na.
29-9-2003

To
1. The Secretary to Govt.,
Health and Family Welfare Department,
State of Tamil Nadu,
Fort St.George, Chennai-9.

2. The Director of Medical Education,
Directorate of Medical Education,
Kilpauk, Chennai-10.

3. The Secretary,
Selection Committee,
Directorate of Medical Education,
Kilpauk, Chennai-10.