IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18/01/2005
CORAM
THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA
W.P.No.16572 of 2004 and W.P.No. 16573 OF 2004 AND W.P.M.P.NOs.33835, 33836, 19588 & 19589 OF 2004 AND W.V.M.P.NOs.1585 & 1588 OF 2004
Cancer Institute (WIA),Regional Cancer Centre, through its Director,Adyar, Chennai-600 020. .. Petitioner in both Writ Petitions
-Vs-
1. Government of Tamil Nadu, rep. by Secretary to Government, Health and Family Welfare Department, Secretariat, Chennai-600 009.
2. The Tamil Nadu Dr.MGR Medical University, rep. by its Registrar, No.69, Anna Salai, Guindy, Chennai-600 032.
3. Director of Medical Education, 162, Periyar E.V.R.Salai, Kilpauk, Chennai-600 010.
4. Union of India, rep. by Ministry of Health and Family Welfare, Nirman Bhavan, New Delhi-110 611.
*5. Dr.G.Govindarajan
*6. Dr.Ramkumar Arvind
*R5 is impleaded as perorders dated 23-9-2004 inWPMP No.30816 of 2004
*R6 is impleaded as perorders dated 21-12-2004 inWPMP No.33835 of 2004 .. Respondents in both Writ Petitions
These Writ Petitions are filed under Article 226 of The Constitutionof India to issue a Writ of Certiorari and Writ of Declaration respectivelyfor the relief as stated therein.
For petitioner : Mr.Sriram Panchu, SC
For respondents : Mr.A.L.Somayaji, AAG for V. Karthikeyan, AGP-R1&R3 Mr.Vellaisamy -R2 Mr.M.T.Arunan, ACGSC-R4
Mr.K.Subramanian SC for Mr.Azhagar Shivanandam-R5 Mrs.Tilakavathi -R6
:COMMON ORDER
The Petitioner is common in both the Writ Petitions. 2. In W.P.No.16572 of 2004, the petitioner seeks to challengethe order of the third respondent dated 3-2-2004 in Ref.No.1215/SCS II(1)/2003, in and by which, the petitioner has been directed to fill up only50% of the seats in the courses offered by it leaving the other 5 0% of seatsto be filled up by the State Government through the Single WindowSystem-Common Entrance Examination conducted by it. 3. In W.P.No.16573 of 2004, the petitioner seeks for adeclaration that the provisions of G.O.Ms.No.130 dated 17-6-2003 will have noapplication to admission to Super Speciality courses offered by the petitionerand that such admissions can be made purely on the basis of merits as directedby the Hon'ble Supreme Court in "Dr.Preeti Srivastava and another Vs. Stateof Madhya Pradesh and others" reported in "(1999)7 SCC 120" (herein afterreferred to as "Dr.Preeti Srivastava case"). 4. The fifth respondent was impleaded as per the orders dated23-9-2004 in W.P.M.P.No.31817 of 2004. The sixth respondent was impleaded subsequently as per the orders dated 21-12-2004 in W.P.M.P.No.33836 of 2004. 5. The petitioner institute is stated to be a Societyregistered under the Societies Registration Act of 1860. The said institutionis stated to be a Research Centre in Oncological Sciences and a Centre ofPreventive Oncology. It offers Post Graduate ourses in M.D.( RadiationTherapy) and D.M.R.T. apart from Super Speciality Courses of D.M.(MedicalOncology) and M.Ch.(Surgical Oncology). It is an unaided institution. It isalso stated that the said institution does not charge any fees while on theother hand, it pays a stipend of Rs.9000/- per month to its students who areselected to undergo the superspeciality courses. It is also stated that thestipend is not payable to the students from the Army who receive their fullsalary. The petitioner claims to be the second best National OncologicalCentre of India and first in Doctors competence in a survey conducted by aNews Magazine. 6. In these Writ Petitions, we are only concerned with theSuper Speciality courses, namely, D.M. (Medical Oncology) and M.Ch. (Surgical Oncology). The petitioner is having three seats in each of the abovesaid courses. The State Government issued G.O.Ms.No.469 dated 18-9-1996 directing the petitioner institution to offer 50% of the seats in PG coursesin the same manner in which they are being filled up in Tamil Nadu GovernmentColleges. Pursuant to the said G.O.Ms.No.469, dated 18-9-1996, the list ofInstitutions to which, the said Government Order was applicable was set out inG.O.Ms.No.119 dated 26-3-1997 and the petitioner institution was one of theinstitutions mentioned in the subsequent G.O.Ms.No.119 dated 26-3-1997.According to the petitioner, based on its representation, the State Governmentpassed orders to the effect that G.O.Ms.No.469 dated 18-9-1996 would not applyto the petitioner by deleting the name of the petitioner institution from thelist of the institutions mentioned in G.O.Ms.No.119 dated 2 6-3-1997. 7. After the Constitution Bench Judgment of the Hon'bleSupreme Court reported in "T.M.A.Pai Foundations and Others Vs. State ofKarnataka and others" reported in "2002(8) SCC 481" (hereinafter referred toas "T.M.A.Pai Foundation case"), the State Government issued G.O.Ms.No.130 dated 17-6-2003 wherein, in para 4(i), (ii) and 5, it is stated as under:- "4. The Government have examined the matter and decided to accept theGovernment of India's guidelines regarding the seat sharing between Governmentand the Management in Unaided Private Medical/Dental Colleges impartingPostgraduate courses. The Government accordingly issue the following orders. (i) the seats in various Postgraduate courses(P.G.Degree/Diploma/ MDS) in each unaided Self Financing Institution shall befilled up in the ratio of 50:50 by the State Government and the management ofthe Institution. (ii) the procedure of selection of students for these seatsshall be as being followed for admission of students for these courses inGovernment Medical Colleges. (iii) ..... (iv) ..... 5. The Director of Medical Education/Secretary, SelectionCommittee is directed to take action accordingly."
8. When a copy of the above said Government Order wasforwarded to the petitioner, the petitioner is stated to have sent a letterdated 17-9-2003 to the first respondent seeking exemption from the saidnotification in so far as the Super Speciality courses, namely, D.M. (Medical Oncology) and M.Ch. (Surgical Oncology). While no reply was sent bythe first respondent, a letter dated 14-1-2004 was issued by the thirdrespondent to all the Institutions including the petitioner Institution fixingthe cut of date for all Under Graduate Courses and Post Graduate Courses foradmission of students in the light of the Judgment of the Hon'ble SupremeCourt reported in "T.M.A.Pai Foundation case". As per the said Notification,as far as the Super Speciality Courses are concerned, after the declaration ofresults by 30th June of the respective years, the first round ofcounselling/admission was to be concluded by 25th July and the last date forjoining the course was fixed as 31st July. Further, in respect of theadmissions against the vacancies arising due to any other reason, the lastdate was fixed as 30th September, 2004. It was, in those circumstances, theimpugned order dated 3-2-2004 came to be issued by the third respondentprescribing 50% of the seats to be filled up by the allotment to be made bythe State Government. 9. On behalf of the first and third respondents, counteraffidavit has been filed by the first respondent countering the variousaverments contained in the affidavit filed in support of the Writ Petitions.According to the first and third respondent, in the light of the Judgment ofthe Hon'ble Supreme Court in 'T.M.A.Pai Foundation Case', for all professionalcourses including even the Super Speciality courses, the admission procedureas directed to be prescribed by the Hon' ble Supreme Court in the Judgments in'T.M.A.Pai Foundation Case' as well as in the subsequent Judgment reported in"2003(6) SCC 697 ( ISLAMIC ACADEMY OF EDUCATION AND ANOTHER versus STATE OF KARNATAKA AND OTHERS)" would apply and therefore, the petitioner is entitled to fill up only 50% of the seats while the other 50% should go to the firstrespondent State. 10. The fifth respondent who is in the medical service of thefirst respondent State is stated to have applied for M.Ch.(Oncology) pursuantto the Prospectus 2004-2005 issued by the third respondent and that in theevent of the stand of the first respondent State being countenanced he islikely to be benefitted by securing the seat in M.Ch. (Surgical Oncology)course. 11. The sixth respondent is the candidate who has securedadmission in the petitioner institution in M.Ch. Course for which seat, thepresent conflict has been raised in these Writ Petitions. The sixthrespondent is stated to have been called upon to join the course by thepetitioner through its communication dated 27-8-2004 and that he joined thecourse by 1-9-2004. 12. These Writ Petitions were entertained by this Court on18-6-200 4. While admitting the Writ Petitions, an order of interiminjunction was also granted in W.P.M.P.No.19588 of 2004 restraining therespondent State from filling up any seats in the Super Speciality courses inthe petitioner institution from the Government quota pending Writ PetitionNo.16572 of 2004. 13. By a subsequent order dated 18-8-2004, the interiminjunction was directed to be continued until further orders. 14. In W.P.M.P.No.19589 of 2004 in W.P.No.16573 of 2004, aninterim direction was granted on 18-6-2004 to the effect that the petitionercan fill up all the vacancies in the Super Speciality courses purely on thebasis of merit as has been done in the previous years. In the saidapplication, orders were passed on 18-8-2004 stating that in the light of theinterim direction granted on 18-6-2004, no further orders are necessary. Oneother relevant factor to be noted is that by order dated 28-9-2004 in theseWrit Petitions, it was stated as under:- "It is brought to the notice of the Court that the last datefor admission as per the Notification of the third respondent is 30-9-2004.The third respondent will be bound by the final order to be passed in the WritPetition. Hence, an order has got to be passed that in so far as the fifthrespondent is concerned, the last date for admission i.e. 30-09-2004 willhave no force. Accordingly, the same is ordered only in so far as the fifthrespondent is concerned. Post the Writ Petition on 7-10-2004 at 2.15 p.m."
15. Mr.Sriram Panchu, learned senior counsel appearing forthe petitioner contended that hitherto the petitioner was allowed to fill upall the seats in the Super Speciality courses on its own purely on merit, thatthe restriction imposed in G.O.Ms.No.130 dated 17-6-2004 will be applicableonly to the other P.G.Courses, namely, D.M.R.T. And M.D.R.T. and will notapply to Super Speciality courses, that the impugned proceedings dated3-2-2004 cannot, therefore, alter the settled position and that in the lightof the Judgment of the Hon'ble Supreme Court reported in "Dr.Preeti Srivastavacase", no such restrictions can be imposed in respect of Super Specialitycourses. According to the learned senior counsel, when the petitioner wasadmitting the candidates to the Super Speciality courses by conducting arigorous test on an all India basis, the candidates sponsored by the thirdrespondent in particular the in-service candidates cannot be equated to themeritorious candidates selected by the petitioner for being admitted to theSuper Speciality courses. The learned senior counsel would contend that eventhe decisions in 'T.M.A.Pai Foundation case' as well as one reported in"(2003)6 SCC 697 (ISLAMIC ACADEMY OF EDUCATION AND ANOTHER versus STATE OF KARNATAKA AND OTHERS)" (hereinafter referred to as "Islamic Academy of Education case") rendered by the Hon'ble Supreme Court have not diluted theratio rendered by it in its earlier Constitution Bench Judgment in "Dr.PreetiSrivastava case".
16. Mr.K.Subramanian, learned senior counsel appearing forthe fifth respondent, contended that the only distinction that one can discernfrom the Judgment of the Hon'ble Supreme Court is only with reference toprofessional institutions and non professional institution and therefore,whatever stated by the Hon'ble Supreme Court as regards the procedure to befollowed for admission to various Under Graduate courses and Post Graduatecourses would equally apply to the Super Speciality courses as well. Thelearned senior counsel pointed out that the Super Speciality course is nothingbut a Higher Post Graduate course and therefore, the same cannot be excludedfrom the purview of the judicial dictum as regards admission. The learnedsenior counsel submitted that when once the State Government stipulated inG.O.Ms.No.130 dated 17-6-2004 that 50% of the seats in Post Graduate courses in all the other private institutions should be filled up through the processof selection made by it and when the fifth respondent had undergone the saidprocess of selection pursuant to the Prospectus 2004-2 005 issued by the thirdrespondent, in the event of the fifth respondent being eligible for beingallotted by virtue of his seniority in the merit list, the same cannot bedeprived of by the petitioner. The learned senior counsel also submitted thatin the light of the order dated 28-9-2004 referred to earlier, the fifthrespondent would be entitled to be admitted irrespective of the expiry of thelast date of admission, namely, 30-9-2004. 17. In this context, learned senior counsel relied upon theP.G. Medical Education Regulations 2000 issued by the Medical Council ofIndia to point out that even super speciality courses are nonetheless P.G.Courses and whatever procedure applicable to P.G.Courses Admissions would be equally applicable to D.M.(Medical Oncology) and M.Ch.( Surgical Oncology). 18. On behalf of the first and third respondents,Mr.A.L.Somayaji, learned Addl.Advocate General made his submissions. Thelearned Addl.Advocate General also submitted that the Judgments in "T.M.A.PaiFoundation case and Islamic Academy of Education cases" have held in nouncertain terms that the admission procedure should be as directed in the saidjudgments and that Super Speciality course is also a P.G. Course. He alsoplaced before the Court the communication of the third respondent dated26-7-2004 issued to the Press for the publication/telecast of the merit listfor the 3 Years Higher Speciality Courses for 2004-2005, for which, theentrance examination was held on 27-6-2 004 which was released in the web siteon 27-7-2004. The learned Addl.Advocate General pointed out that in the saidcommunication, the third respondent while referring to the total number ofseats for the Higher Speciality courses also included the two seats availablein the petitioner institution, namely, one in D.M.(Medical Oncology) and theother in M.Ch.(Surgical Oncology). He also pointed out that in the merit listfor the seats that were available in the Government Medical Colleges,allotment has already been made and for the seats available in the petitionerinstitution having regard to the interim injunction granted on 18-6-2004, noallotment could be made and that in the event of this Court holding that thoseseats should be made available for allotment by the State, the same would bedone as per the merit list already drawn. 19. Mr.Vellaisamy, learned standing counsel appearing for thesecond respondent University referred to the judgment of the Hon'ble SupremeCourt reported in "(2002) 7 SCC 258 (MEDICAL COUNCIL OF INDIA versus MADHU SINGH AND OTHERS)" and submitted that all admissions are to be completed strictly as per the time schedule and that no deviation can be made. 20. Mrs.Tilakavati, learned counsel appearing for the sixthrespondent contended that when merit is the relevant criteria for a SuperSpeciality course as held by the Hon'ble Supreme Court in 'Dr.PreetiSrivastava case; the criteria as prescribed in Sl.No.50 to 52 of theProspectus 2004-2005 issued by the State Government if applied that wouldvirtually dilute the ratio laid down in the said Judgment and therefore, thestand of the State Government cannot be countenanced. She placed relianceupon "1986(3) SCC 727 (DR.DIDNESH KUMAR AND OTHERS versus MOTILAL NEHRU MEDICAL COLLEGE, ALLAHABAD AND OTHERS)", "1992(2) SCC 26 (DR.SNEHELATA PATNAIK AND OTHERS versus STATE OF ORISSA AND OTHERS)" and "2002(7) SCC 258 (MEDICAL COIUNCIL OF INDIA versus MADHU SINGH AND OTHERS)" in support of her submissions. 21. By way of reply, Mr.Sriram Panchu, learned Senior counselappearing for the petitioner, referred to the judgments of the Hon'ble SupremeCourt reported in "2002(1) SCC 428 (AIIMS STUDENTS' UNION versus AIIMS AND OTHERS)", in particular paragraph 59, to point out that there is always adistinction between Post Graduate Medical Course and Super-speciality. Inpara 59, the Hon'ble Supreme Court while holding that minimum standards cannot be diluted while showing any preference for institutional candidates, hasstated "such marginal institutional preference is tolerable at Postgraduatelevel, but is rendered intolerable at still higher levels such as that ofsuper-speciality". The learned senior counsel further reiterated hiscontention based on the observations by the Hon'ble Supreme Court in"Dr.Preeti Srivastava case" that a Superspeciality course is distinct anddifferent from a Postgraduate course since the Hon'ble Supreme Court whileconcluding their decision in para 62, held that at the level of admission tothe Superspeciality courses, no special provisions are permissible, they arebeing contrary to the national interest where merit alone can be the basis ofselection. The learned senior counsel would contend that when in theProspectus issued by the State Government for higher Super-speciality Courses,provision for awarding of marks for inservice candidates itself would dilutethe merit based selection and therefore, it would be contradictory to thedictum of the Hon'ble Supreme Court. The learned Senior counsel also pointedthat the Prospectus itself confined its scope of selection only to the seatswhich were specified in Annexure-II to the Prospectus and therefore, thepresent stand of the respondent-State that the selection made on that basiscould be extended to fill up the seats in the petitioner institution cannot bepermitted. 22. Having heard the learned counsel for the respectiveparties, I find that the question that arises for consideration in these WritPetitions is, as to 'whether the admission procedure adopted by the petitionerInstitution in respect of Super Speciality Courses offered by it is valid andcan be said to be in consonance with the Judgments of the Hon'ble Suprme Courtrendered in "T.M.A.Pai Foundation Case" and "Islamic Academy of EducationCase" and Whether the State Government is entitled to sponsor the candidateswhose merits was tested pursuant to the stipulations contained in itsProspectus of 2004-2005 in respect of 3 Year High Speciality Courses"? 23. At the out set, it will have to be stated that thereputation of the petitioner institution as claimed by it in the field ofadministering treatment to the cancer patients and also imparting education inthe field of Oncology can never be doubted. In fact, it is common knowledgethat any person affected by cancer in this part of the State will immediatelythink of the kind of treatment that is being extended in the petitionerinstitution. It is thus a well known fact that the petitioner institution isa Premier Institution in the field of Oncology. According to the petitioner,it makes the selection for the Super Speciality courses as well as the otherP.G.Courses on an all India basis by conducting a rigorous test of thecandidates. It is also not in dispute that in the process of selection, nopreference is shown to anybody. Therefore, there can be no two opinion thatthe selection made by the petitioner for the four different courses availablein its institution is far superior and cannot be equated to the method ofselection made by the third respondent as per the Prospectus issued by it. Inthis context, it will not be out of place to refer to the letter dated5-10-2004 placed before this Court by the learned Addl.Advocate General saidto have been submitted by one Dr.P.Arul Raj who is stated to have beenselected by the State government for one of the Super Speciality course, i.e.,M.Ch.(Surgical Oncology) in the Government Institution. The said candidatehas expressed his desire that but for the pendency of this Writ Petition, hewould have preferred the Cancer Institute seat in the foremost and that in theevent of the said seat being made available, it should be offered to him.Such is the reputation of the petitioner institution in the field of cancertreatment and education. 24. Even in the previous years, it is not disputed that thepetitioner institution was permitted to carry on its admissions for all theseats on its own in the Super Speciality courses. In fact, it was brought tothe notice of this Court that by order dated 13-6-1997, the first respondentitself deleted the petitioner institution from the list of institutionsmentioned in G.O.Ms.No.119 dated 26-3-1997 in which Government reserved its right to admit to the extent of 50% of the seats in P.G.Courses. Therefore,going by the name and fame of the petitioner institution, there is no doubtthat the petitioner institution and its admission process to the variousP.G.Courses and Super Speciality courses would run far ahead of any other testor process of selection that may be made by any State or any other body.However superior may be the claim of the petitioner in regard to the selectionprocess conducted by it for such Super Speciality courses, the question thatremains to be considered is as to 'whether such a special status enjoined andretained by the petitioner can be interfered with in the present prevailingsituation'. 25. For considering the said question, a reference to thejudgment of the Hon'ble Supreme Court in 'Dr.Preeti Srivastava case', 'T.M.A.Pai Foundation case' and Islamic Academy of Education case' are required to bestated.
26. In 'Dr.Preeti Srivastava case', the question that wasposed for consideration was stated in para 2 as under: "The question is whether apart from providing reservation foradmission to the Post-Graduate Courses in Engineering and Medicine for specialcategory candidates, it is open to the State to prescribe different admissioncriteria, in the sense of prescribing different minimum qualifying marks, forspecial category candidates seeking admission under the reserved category."
27. Thereafter in para 10, it was stated as under:
"10. We have, therefore, to consider whether for admission tothe Post Graduate Medical Courses, it is permissible to prescribe a lowerminimum percentage of qualifying marks for the reserved category candidates ascompared to the general category candidates. We do not propose to examinewhether reservations are permissible at the Post Graduate level in medicine.That issue was not debated before us, and we express no opinion on it. Weneed to examine only whether any special provision in the form of lowerqualifying marks in the PGMEE can be prescribed for the reserved category."
28. In para 22 of the above said Judgment, the Hon'bleSupreme Court observed as under:
"22. ....... At the level of higher post-graduate universityeducation, however, apart from the individual self interest of the candidate,or the national interest in promoting equality, a more important nationalinterest comes into play. The facilities for training or education at thislevel, by their very nature, are not available in abundance. It is essentialin the national interest that these special facilities are made available topersons of high calibre possessing the highest degree of merit so that thenation can shape their exceptional talent that is capable of contributing tothe progress of human knowledge, creation and utilisation of new medical,technical or other techniques, extending the frontiers of knowledge throughresearch work-in fact everything that gives to a nation excellence and abilityto compete internationally in professional, technical and research fields." 29. It will also be appropriate to refer to what has beenstated in paras 23 and 24 of the above said Judgment, which reads as under: "23. This Court has repeatedly said that at the level ofsuperspecialisation there cannot be any reservation because any dilution ofmerit at this level would adversely affect the national goal of having thebest possible people at the highest levels of professional and educationaltraining. At the level of a Super Speciality, something more than a mereprofessional competence as a doctor is required. A super-specialist acquiresexpert knowledge in his speciality and is expected to possess exceptionalcompetence and skill in his chosen field, where he may even make an originalcontribution in the form of new innovative techniques or new knowledge tofight diseases. It is in public interest that we promote these skills. Suchhigh degrees of skill and expert knowledge in highly specialised areas,however, cannot be acquired by anyone or everyone. For example, specialisedsophisticated knowledge and skill and ability to make right choices oftreatment in critical medical conditions and even ability to innovate anddevice new lines of treatment in critical situation, requires high levels ofintelligent understanding of medical knowledge or skill and a high ability tolearn from technical literature and from experience. These high abilities arealso required for absorbing highly specialised knowledge which is beingimparted at this level. It is for this reason that it would be detrimental tothe national interest to have reservations at this stage. Opportunities forsuch training are few and it is in the national interest that these are madeavailable to those who can profit from them the most viz., the best brains inthe country, irrespective of the class to which they belong.
"24. At the next below stage of post-graduate education in medicalspecialities, similar considerations also prevail though perhaps to a slightlylesser extent than in the super specialities. But the element of publicinterest in having the most meritorious students at this level of education ispresent even at the stage of post-graduate teaching. Those who havespecialised medical knowledge in their chosen branch are able to treat betterand more effectively, patients who are sent to them for expert diagnosis andtreatment in their specialised field. For a student who enrols for suchspeciality courses, an ability to assimilate and acquire special knowledge isrequired. Not everyone has this ability. Of course intelligence andabilities do not know any frontiers of caste or class or race or sex. Theycan be found anywhere, but not in everyone. Therefore, selection of the rightcalibre of students is essential in public interest at the level ofspecialised post-graduate education. In view of this supervening publicinterest which has to be balanced against the social equity of providing someopportunities to the backward who are not able to qualify on the basis ofmarks obtained by them for post-graduate learning, it is for an expert bodysuch as the Medical Council of India, to lay down the extent of reservation,if any, and the lowering of qualifying marks, if any, consistent with thebroader public interest, in having the most competent people for specialisedtraining, and the competing public interest in securing social justice andequality. The decision may perhaps, depend upon the expert body's assessment of the potential of the reserved category candidates at a certain level ofminimum qualifying marks and whether those who secure admission on the basis of such marks to post-graduate courses, can be expected to be trained in twoor three years to come up to the standards expected of those withpost-graduate qualifications." 30. Ultimately in the concluding para 62 of the above saidJudgment, the Hon'ble Supreme Court has held as under:- "62. In the premises, we agree with the reasoning andconclusion in 'Dr.Sadhna Devi Vs. State of U.P. (AIR 1997 SC 1120)' and weoverrule the reasoning and conclusions in 'Ajay Kumar Singh Vs. State ofBihar (1994 AIR SCW 2515)' and 'Post Graduate Institute of Medical Education &Research, Chandigarh Vs. K.L.Narasimhan (1997 AIR SCW 2274). To conclude:
1. We have not examined the question whether reservations arepermissible at the post-graduate level of medical education. 2. A common entrance examination envisaged under the regulationsframed by the Medical Council of India for post-graduate medical educationrequires fixing of minimum qualifying marks for passing the examination sinceit is not a mere screening test.
3. Whether lower minimum qualifying marks for the reserved categorycandidates can be prescribed at the post-graduate level of medical educationis a question which must be decided by the Medical Council of India since itaffects the standards of post-graduate medical education. Even if minimumqualifying marks can be lowered for the reserved category candidates, therecannot be a wide disparity between the minimum qualifying marks for thereserved category candidates and the minimum qualifying marks for the generalcategory candidates at this level. The percentage of 20% for the reservedcategory and 45% for the general category is not permissible under Article15(4), the same being unreasonable at the post-graduate level and contrary tothe public interest. 4. At the level of admission to the super-speciality courses, nospecial provisions are permissible, they being contrary to the nationalinterest. Merit alone can be the basis of selection." 31. In 'T.M.A.Pai Foundation Case', in para 54, the Hon'bleSupreme Court has pointed out that while regulating the right of privatemanagement to establish an educational institution, such regulatory measuresmust, in general, be to ensure the maintenance of proper academic standards,atmosphere and infrastructure including qualified staff and the prevention ofmal-administration by those in charge of management. In the same breadth, ithas been pointed out that fixing of rigid fee structure, dictating theformation and composition of a governing body, compulsory nomination ofteachers and staff for appointment or nominating students for admission wouldbe unacceptable restrictions. 32. Again in para 58 of the above said Judgment, the Hon'bleSupreme Court highlighted the importance of merit in the matter of admissionto any professional institution and that meritorious candidates are notunfairly treated or put at a disadvantage by preferences shown to lessmeritorious. Further it was held that excellence in professional educationwould require that greater emphasis be laid on the merit of a student seekingadmission and that appropriate regulations for this purpose are to be madekeeping in view the other observations made in the judgment in the context ofadmissions to unaided institutions. 33. In para 65 of the above said Judgment, the Hon'bleSupreme Court again highlighted the importance to be attached to thereputation of an educational institution by virtue of the quality of itsfaculty and its students and the other facilities it offers and also therecognition to be accorded to such private educational institutions who havepersonality of their own in order to maintain their atmosphere and traditionand the necessity for them to have the right to choose and select the studentswho can be admitted to their courses of study. At the same time, the Hon'bleSupreme Court also cautioned that such extraordinary recognition shown to suchreputed institutions should not impose unreasonable restriction and that insetting up their own process of selection, rejection of admission should notbe whimsical or for extraneous reasons. Ultimately in p ara 68, the Hon'bleSupreme Court directed as to how some uniform method or merit based selection are to be made in the private unaided professional institutions while at thesame time providing certain amount of seats to take care of poor and backwardsections of the society. 34. In the 'Islamic Academy of Education case' at the veryout set, the Hon'ble Supreme Court stated as to the necessity to clarifycertain doubts and anomalies which cropped up after the 11 Judges BenchJudgement of the Hon'ble Supreme Court in 'T.M.A.Pai Foundation case'. TheHon'ble Supreme Court has stated in the very opening paragraph, as under: "After the judgement was delivered on 31-10-2002, the Union ofIndia, various State Governments and the educational institutions understoodthe majority judgement in different perspectives. Differentstatutes/regulations were enacted/framed by different State Governments.These led to litigations in several courts. Interim orders passed thereinhave been assailed before this Court. When these matters came up before aBench of this Court, the parties to the writ petitions and special leavepetitions attempted to interpret the majority decision in their own way assuited to them and therefore at their request all these matters were placedbefore a Bench of five Judges. It is under these circumstances that thisBench has constituted so that doubts/anomalies, if any, could be clarified." 35. Again in para 2 of the above said Judgment, whilereferring to the submissions made on behalf of the petitioners that anyobservation made in the body of the judgment had to be read in the context ofthe answers given, it was stated that the ratio decidendi of a judgment has tobe found out only on reading the entire judgment and that the ratio of theJudgment is what is set out in the judgment itself. It was further statedthat in case of doubt as regards any observations, reasons and principles, theother part of the judgment has to be looked into and that by reading a linehere and there from the judgment, one cannot find out the entire ratiodecidendi of the judgment. 36. In para 6 of the above said Judgment, the question thatarose for consideration were framed and question Nos. 3 and 4 are relevantfor our present purpose, which are as under: "6.(1). .... "6.(2). .... "6.(3). Whether private unaided professional colleges areentitled to fill in their seats, to the extent of 100%, and if not, to whatextent; and "6.(4). Whether private unaided professional colleges areuntitled to admit students by evolving their own method of admission." 37. In para 16 of the above said Judgment, while interpretingparagraph 68 in 'T.M.A.Pai Foundation case', the Hon'ble Supreme Court hasheld as under: "16. ..... Paragraph 68 provides that admission by themanagement can be by a common entrance test held by "itself or by the State/University". The words "common entrance test" clearly indicate that eachinstitute cannot hold a separate test. We thus hold that the management couldselect students, of their quota, either on the basis of the common entrancetest, conducted by the State or on the basis of a common entrance test to beconducted by an association of all colleges of a particular type in that Statee.g. Medical, engineering or technical etc. The common entrance test, heldby the association, must be for admission to all colleges of that type in theState. The option of choosing, between either of these tests, must beexercised before issuing of prospectus and after intimation to the concernedauthority and the Committee set up hereinafter. If any professional collegechooses not to admit from the common entrance test conducted by theassociation then that college must necessarily admit from the common entrancetest conducted by the State. After holding the common entrance test anddeclaration of results the merit list will immediately be placed on thenotice-board of all colleges which have chosen to admit as per this test. Acopy of the merit list will also be forthwith sent to the concerned authorityand the Committee. Selection of students must then be strictly on the basisof merit as per that merit list." 38. In para 17 of the above said Judgment, the Hon'bleSupreme Court dealt with a contention raised on behalf of certain institutionswho had their own admission procedure and had stated as under: "17. At this juncture it is brought to our notice thatseveral institutions, have since long, had their own admission procedure andthat even though they have been raised against them and no complaints havebeen made regarding fairness or transparency of the admission procedureadopted by them. These institutions submit that they have special featuresand that they stand on a different footing from other minority non-aidedprofessional institutions. It is submitted that their cases are not basedonly on the right flowing from Article 30(1) but in addition they have somespecial features which require that they be permitted to admit in the mannerthey have been doing for all these years. A reference is made to few suchinstitutions i.e. Christian Medical College, Vellore, St.John's Hospital,Islamic Academy of Education etc. The claim of these institutions wasdisputed. However, we do not think it necessary to go into those questions.We leave it open to the institutions which have been established and who havehad their own admission procedure for, at least, the last 25 years to apply tothe Committee set out hereinafter."
39. In para 19 of the above said Judgment, while directingthe respective State Governments to constitute a permanent Committee to ensure that the tests conducted by the Association of Colleges is fair andtransparent, has also provided scope for the Committee to permit a institutionto adopt its own procedure. It was however, stated there in that no institutewhich has not been established and does not follow its own admission procedurefor the last, at least, 25 years, should be permitted to apply or grantedexemption from admitting students in the manner set out earlier." 40. In para 21, the Hon'ble Supreme Court directed that theseats to be filled up by the State should be in the ratio of 50:50. 41. In the subsequent judgment reported in "2004(8) SCC 139(P.A. INAMDAR AND OTHERS versus STATE OF MAHARASHTRA AND OTHERS)" ( hereinafter referred to as "P.A.Inamdar case") in para 13 and 14, whiledealing with the claim of 'Islamic Academy of Education case' that thereshould not be a restriction on its right to hold its own form of admissionwhich had been in existence in 25 years or more, the Hon'ble Supreme Courtordered as under in para 13. "13. .... We need not go into these submissions at thisstage, as it would require us to go into the question whether the restrictionof 25 years or more would apply in all cases irrespective of the merits of theinstitutions or its back ground or whether such a restriction was contrary tothe decision in 'T.M.A. Pai. By way of an interim measure, we permit theIslamic Academy Education colleges to hold separate entrance examinations interms of the order dated 18-8-1993...." "14. It is made clear that this order is limited to IslamicAcademy Education Colleges alone."
42. In the judgment of the Hon'ble Supreme Court reported in"1986 (3) SCC 727 (DR.DINESH KUMAR AND OTHERS (II) versus MOTILAL NEHRU MEDICAL COLLEGE, ALLAHABAD AND OTHERS)", the Hon'ble Supreme Court has observed as under in paragraph 12(4), as under: "12(4). We are of the view that when selection of candidatesis being made for admission on an all India basis, no factor other than meritshould be allowed to tilt the balance in favour of a candidate. We mustremember that what we are regulating are admissions to postgraduate coursesand if we want to produce doctors who are MD or MS, particularly surgeons whoare going to operate upon human beings, it is of the utmost importance thatthe selection should be based on merit. ....." "....We are therefore, of the view that no weightage should begiven to a candidate for rural service rendered by him so far as admissions topost graduate courses are concerned...."
43. In the subsequent judgment reported in "(1992) 2 SCC 26(DR. SNEHELATA PATNAIK AND OTHERS versus STTE OF ORISSA AND OTHERS)", the Hon'ble Supreme Court, while referring to the observations found in '198 6(3)SCC 727' (cited supra), has stated as under in para 2: "2. In our opinion, this observation certainly does notconstitute the ratio of the decision. The decision is in no way dependentupon these observations. Moreover, those observations are in connection withAll India Selection and do not have equal force when applied to selection froma single State. These observations, however, suggest that the weightage to begiven must be the bare minimum required to meet the situation. In thesecircumstances, we are of the view that the authorities might well considergiving weightage up to a maximum of 5 per cent of marks in favour ofin-service candidates who have done rural service for five years or more. Theactual percentage would certainly have to be left to the authorities. We also
clarify that these suggestions do not in any way confer any legal right onin-service students who have done rural service nor do the suggestions haveany application to the selection of the students up to the end of this year."
44. In yet another judgment reported in "AIR 2001 SC 717 (K.DURAISAMY AND ANOTHER ETC.,ETC., versus STATE OF TAMIL NADU AND OTHERS)", a question arose as to 'the scheme for admission to Super Speciality coursesenvisaging admission from two sources, namely, in-service candidates andnon-service candidates by fixing 50% of seats exclusively to each of them'came up for consideration, wherein, it was held that the quota for in-servicecandidates cannot be worked out after excluding those in-service candidateswho got admitted on the basis of merit. Though the Hon'ble Supreme Court wasdealing with a case relating to admission of candidates to Super Specialityand P.G.Courses, the earlier Constitution Bench Judgment of the Hon'bleSupreme Court, reported in 'Dr.Preeti Srivastava case' was not cited beforethe Hon'ble Supreme Court. 45. In the light of the above stated legal position in thevarious judgments, the submissions of the learned senior counsel for therespective parties are to be considered. As far as the submission thatG.O.Ms.No.130 dated 17-6-2003 is not applicable to Super Speciality course, Iam afraid that such a contention cannot be accepted for more than one reason.In the first place, as pointed out by Mr.K. Subramanian, learned seniorcounsel appearing for the fifth respondent, Post Graduate Medical EducationRegulations-2000 points out that even super specialities would fall within thecategory of P.G.Courses. Both while dealing with the general conditions aswell as the period of training to be prescribed, it is specifically mentionedthat both D.M. And M.Ch. are covered by the above said Regulations. Thatapart, in the Constitution Bench Judgment reported in 'Dr.Preeti Srivastavacase' which dealt with the Super Speciality courses, the Hon'ble Supreme Courthas also referred to Super Speciality course as a specialised P. G.education.Abbreviation to the nomenclature, viz., M.D.- M.S. P.G. Courses andD.M.-M.Ch. Super Speciality courses, as could be seen from the PostgraduateMedical Education Regulations 2000 are as under: "M.D. - Doctor of Medicine M.S. - Master of Surgery D.M. - Doctor of Medicine M.Ch. - Master Chirurgiae" 46. The Super Speciality courses over and above a MasterDegree is being undertaken as a 'study' with reference to a specialisedsubject. A reference to Annexure-I to the 'Prospectus 2004-2005 of the 3years Higher Speciality courses' disclose that while a minimum Masters Degreein any particular field can either be on General Medicine or General Surgeryor Paediatric and so on, the Super Speciality is with reference to anexclusive subject such as Neurology or Cardiology or Neuro Surgery or CardioThoraicic Surgery, and so on. Therefore, in effect, the Super Specialitycourse can only be construed as part and parcel of yet another Higher PostGraduation over and above a Masters Degree. Further even the petitioner hasunderstood the course only as a P.G.Degree or Diploma as could be seen fromits own representations, namely, the one dated 23-4-1997/7-5-1997 as well as17-9-2003. In the former, the petitioner itself has claimed at page 2 asunder:
"We may point out that we offer only a few post graduate seats viz., 3for D.M., 3 for M.Ch. And one for M.D.(RT). From a practical point of view,allotment of 50 percent by Government to outside candidates will notsignificantly increase the availability of seats for them while it willseriously reduce the limited opportunities available for merit candidates."
47. Again in its representation dated 17-9-2003, thepetitioner has stated at page 3 as under: "There are only 3 seats for DM and 3 seats for the M.Ch. And1 seat in the MD Radiation Oncology sanctioned to the Institute. We representthat it will be very unfair to take 50% away from this scanty number of setsby the Government when it has its own M.Ch.course in the Government Royapettah Hospital and DM in the Government General Hospital, which are both 100%Government controlled. ..."
48. Therefore, merely because in the fixation of cut of datefor various courses in the communication dated 14-1-2004 the third respondentdealt with Super Speciality courses and Higher Speciality Courses as aseparate category, I am unable to conclude that that alone would mean thatsuch Super Speciality courses would not come within the category ofP.G.Courses. In any case, even in G.O.Ms.No.130 dated 17-6-2003, the HigherSpeciality Courses have been dealt with as a separate category, though itcalls for allocation of 50% of seats for State Government allotment. I,therefore, reject the said submission so made on behalf of the petitioner. 49. As far as the submission made based on the Judgment in'Dr. Preeti Srivastava case', I find considerable force in the saidsubmission made on behalf of the petitioner. In fact, the various extractedportions of the said judgments in this order definitely supports the claim ofthe petitioner. It cannot be said that those observations contained in paras22 and 23 of the said Judgment are to be read only in the context ofapplication of communal reservation alone. The observations such as, "...it is essential in the national interest that these specialfacilities are made available to persons of high calibre possessing thehighest degree of merit so that the nation can shape their exceptional talentthat is capable of contributing to the progress of human knowledge, creationand utilisation of new medical, technical or other techniques, extending thefrontiers of knowledge through research work in fact everything that gives toa nation excellence and ability to compete internationally in professional,technical and research fields..."and further observations found in para 23 to the effect that- "...a super-specialist acquires expert knowledge in his speciality andis expected to possess exceptional competence and skill in his chosen field,where he may even make an original contribution in the form of new innovativetechniques or new knowledge to fight diseases. It is in public interest thatwe promote these skills. Such high degrees of skill and expert knowledge inhighly specialised areas, however, cannot be acquired by anyone or everyone...."and further,"...Opportunities for such training are few and it is in the national interestthat these are made available to those who can profit from them the most viz.,the best brains in the country, irrespective of the class to which theybelong....".Further, in para 34, it has been stated,"...Not everyone has this ability. Of course intelligence and abilities donot know any frontiers of caste or class or race or sex. They can be foundanywhere, but not in everyone. Therefore, selection of the right calibre ofstudents is essential in public interest at the level of specialisedpost-graduate education...".
50. The above observations found in the said Judgment doesdisclose that as between the national interest and providing any quota foradmission to such Super Speciality courses, the national interest shouldprevail and there should be no restrictions or limitations in the selectionprocess for such specialised Post Graduate courses.
51. In the above said background when the case on hand isanalysed, I am able to appreciate the stand of the petitioner that in thelight of the extraordinary reputation gained by the petitioner institution atthe National level in the field of cancer treatment, it is entitled to claimsome special status in the matter of selection. The petitioner has acquiredthe status of Regional Centre for Cancer patients. The institution deals onlywith cancer patients and the number of cancer patients healed by thepetitioner is not comparable with any other Medical Institutions whetherprivate or public. It is nobody's case that so far in the matter of admissionto such courses, the petitioner had resorted to any unfair means or non-grantof admission are for any whimsical or for any extraneous reasons. That apart,as per the Prospectus issued by the State Government, the selection forvarious Super Speciality courses would involve sufficient expenditure such aspayment of fees, by way of tuition fee and special fee to the tune ofRs.50,000/- per annum apart from the requirement of the selected servicecandidates to execute a bond for a sum of Rs.10,00,000/- with two sureties inTamil Nadu Medical Service in the same rank or Medical Officers of Higherrank, undertaking to the effect that they would serve the Government till thedate of their superannuation. In respect of non-service candidates, they haveto execute a bond for a sum of Rs.10,00,000/- to the Government, that theywould serve the Government at least for a minimum period of two years.Whereas, in the petitioner institution, the selected candidates would not onlybe provided free academic training, but they would also be paid stipend ofRs.9000/- per month during the course of study period. The selection is alsostated to be on an All India basis while the selection made by the thirdrespondent is confined to the State of Tamil Nadu alone. The process ofselection does not provide for any preference to any category. 52. Therefore, when the selection process of the petitionerinstitution is viewed from the stand point of its reputation, faculties, therange of selection on All India basis, free education provided by it apartfrom payment of stipend, would go to show that the petitioner institutionstands on a different pedestal than that of any other institution, leave alonethe Government institutions. Viewed in that respect, certainly the product ofthe petitioner institution in such Super Speciality courses would provide afurther more care and intensive service to the needy cancer patients and sucha special status of the petitioner institution cannot be equated with anyother ordinary unaided private professional institution. I am therefore ofthe view that there would be every justification in the petitioner's claim incontending that its selection process at least in so far as it related to theSuper Speciality courses, leave alone the other P.G.Courses, namely, D.M.(RT) and M.D.(RT) should not be touched or allowed to be interfered with byattempting to induct any other candidate whose merit was tested for thepurpose of admission to such Super Speciality courses in the State Governmentinstitutions. 53. In this context, at the risk of repetition, it can bestated that the very fact that one of the candidates, namely, Dr.P.Arul Raj,who is selected for one of the seats in the State owned medical institutionsaspiring to get himself admitted in the petitioner institution itself is proofpositive about the extraordinary reputation and stature maintained by thepetitioner institution. In my view such a reputation maintained by thepetitioner institution should never be attempted to be diluted.
54. Further, even applying the ratio of the differentJudgments of the Hon'ble Supreme Court, viz., "T.M.A.Pai Foundation Case", "Islamic Academy of Education Case" as well as "P.A.Inamdar Case", I do notfind any conflict. It is common ground that all along, the State Governmentwas permitting the petitioner Instituion to have its own process of admissionto both Graduate as well as Super-speciality Courses. In fact, apart fromallowing the petitioner to have its own process of selection on an All IndiaBasis, the State Government also exempted the petitioner from the applicationof G.O.Ms.No.469 dated 18-9-1 996 providing for 50% of seats to be filled upby the State Government by deleting the name of the petitioner institutionfrom the list of Colleges mentioned in G.O.Ms.No.119 dated 26-3-1997. At therisk of repetition, it will have to be stated that till date, the StateGovernment was consciously permitting the petitioner to have its own method ofselection on an All India Basis in respect of the filling up of all the seats,both Post Graduate as well as Super Speciality Courses. Apparently, theapproach of the State Government on this aspect cannot also be faulted,inasmuch as the same is in consonance with what has been stated by the Hon'ble Supreme Court in para 65 of "T.M.A. Pai Foundation Case", wherein the Hon'bleSupreme Court highlighted the importance of an Educational Institution, byvirtue of its reputation gained due to the quality of its faculty, thequantity of students, the facilities offered who have personality of their ownin order to maintain their standard and tradition. Further, in para 17 of "Islamic Academy of Education Case" the Hon'ble Supreme Court, while referringto various Institutions who have since long their own admission procedure byvirtue of certain special features, has stated to the effect that- "17. .... However, we do not think it necessary to go intothose questions. We leave it open to the Institutions, which have beenestablished and who have had their own admission procedure for, at least, thelast 25 years to apply to the Committee set out hereinafter."
Again in the "P.A.Inamdar Case", while permitting the Islamic Academy ofEducation to adopt its own process of selection, has observed in para 13 tothe effect that- "13. .... we need not go into these submissions at thisstage, as it would require us to go into the question whether the restrictionof 25 years or more would apply in all cases irrespective of the merits of theinstitutions or its back ground. ...."
Thus, by applying the dictum of the Hon'ble Supreme Court as stated in"Islamic Academy of Education Case" that the "Ratio Decidendi" of a Judgmenthas to be found out only on reading the entire Judgment and that the ratio ofthe Judgment is, what is set out in the Judgment itself, it will have to beheld that the State Government has rightly permitted the petitioner to haveits own process of selection of candidates for filling up the seats in PostGraduate as well as Higher Speciality Courses. The State Government thushaving understood the legal position laid down in the above referred toJudgments and permitted the petitioner to adopt its own method of selection,it cannot now be permitted to take a sudden 'U' turn at the time of filling upof the seats and try to interfere with the admissions made by the petitioner. 55. On a close reading of "Dr.Preeti Srivastava Case", I findthat the Hon'ble Supreme Court made it clear that they did not examine thequestion as to permissibility of reservation at the Postgraduate level ofmedical education. The Hon'ble Supreme Court, however, held that theprescription of lower minimum qualifying marks for the reserved categorycandidates at the post-graduate level of medical education must be decided bythe Medical Council of India. The Hon'ble Suprme Court, however, made ittacitly clear that at the level of superspeciality course, no specialprovisions are permissible, they are being contrary to national interest wheremerit alone can be the basis of the selection. In the said Judgment, it istrue that superspeciality course has been characterised as a higherpost-graduate course as has been described in para 22 of the said Judgment.Therefore, even while holding that the super-speciality course can only becharacterised as a 'higher post-graduate course' yet, in the light of greaterstress laid by the Hon'ble Supreme Court as to the importance of the saidcourse in the sense that any dilution of merit at the level ofsuper-specialization would adversely affect the national goal having the bestpossible pupil at the highest level of professional and educational training,I am of the view that the consideration of the question relating to admissionto such a super-speciality course can be safely weighed based on the ratio ofthe decision rendered in "Dr.Preeti Srivastava Case". In this context, itwould be worthwhile to refer to what has been stated by the Hon'ble SupremeCourt in "2002(1) SCC 4 28 (cited supra), wherein, in para 59, the importanceof All India merit has been highlighted in the following words: "59. .... In the case of institutions of national significance suchas AIIMS, additional considerations against promoting reservations orpreference of any kind destructive of merit become relevant. ..."
56. In the case on hand, in the petitioner institution in sofar as it sought to fill up 50% of the seats at the higher superspecialitycourse has not been faulted by the first respondent-State. It is not the caseof the respondent-State that the selection process of the petitionerinstitution was contrary to any statute or the prescriptions made in thedecision of the Hon'ble Supreme Court in "T.M.A.Pai Foundation Case", "IslamicAcademy of Education Case" or even for that matter "P.A.Inamdar Case". Theattempt of the respondent State is only to ensure its share of 50% of seats inthe super-speciality courses. Therefore, it cannot be said that thepetitioner committed any serious error in the process of selection made by itfor the superspeciality course. If the stand of the respondent-State was thatthe whole selection process of the petitioner was not inconsonance with thedecisions rendered in "T.M.A.Pai Foundation Case", "Islamic Academy ofEducation Case", etc., there is no question of the respondentState restrictingits claim only to 50% of the seats in those courses. The very fact that therespondent-State is not seeking to interfere with the selection made by thepetitioner in so far as 50% of the seats itself establishes that the selectionprocess adopted by the petitioner institution on its own for making theselection to the superspeciality courses was acceptable. Therefore, I amunable to see how the respondent-State can be permitted to contend that theselection made by the petitioner in respect of the other 50% seats alone ofthe super-speciality courses was not inconsonance with the ratio of thedecisions rendered in "T.M.A.Pai Foundation Case" and "Islamic Academy ofEducation Case". As far as I could see, the fallacy in the submission of theState as well as that of the 5th respondent is that while, there can be faultin the method of selection made by the petitioner, yet for the purpose ofallotment of seats alone, the criteria fixed in the above referred tojudgments should be followed. When once the State Government thought it fitto permit the petitioner to continue to follow its own method of selection,thereafter, there would be no scope for it to turn around and insist that there should be sharing of seats alone. Even in para 16 of the "Islamic Academyof Education Case", the Hon'ble Supreme Court has made it clear that theCommon Entrance Test for making the selection should be either by the 'Consortium' or 'State' and not both. Therefore, in a special case like thiswhere, the petitioner Institution is only one of its kind in this Region whichwas following its own pattern of admission from the very inception whichmethod of selection was also consciously permitted by the State up to thepresent selection, there is no scope to hold that there can be sharing ofseats based on the Institutional Selection as well as that of the State. Suchan approach if permitted to take place that would be in conflict with what hasbeen stated by the Hon' ble Supreme Court in "Islamic Academy of EducationCase". I am of the view that applying the ratio of the decision of theHon'ble Supreme Court in "Dr.Preeti Srivastava Case", when merit is the solecriteria of admission as made by the petitioner institution for filling up ofthe seats, there would be very little scope for the respondentState to seekfor filling up of the other 50% of the seats as of right. In this context,the contention of Mr.Sri Ram Panchu, learned senior counsel in highlightingthe process of selection made by the petitioner as against the selectionprocedure prescribed by the respondentState in its Prospectus would certainlyweigh in favour of the petitioner institution's method of selection whichwould in turn certainly entitle the petitioner to insist that such a meritbased selection made in the national interest should always be preferred.
57. Further as pointed out by the learned senior counsel forthe petitioner, the respondent-State never intended to make the selection forthe super-speciality courses available in the petitioner institution at thetime when it issued its Prospectus. In para 12 of the Prospectus, while inAnnexure-I, "Code Number/Discipline/ Duration/ Eligibility" are provided, inAnnexure-II, the distribution of seats in different institutions of the Stateare mentioned which are to be referred by the candidates applied for thecourses based on the Prospectus. Significantly, in the said Annexure-II, thename of the petitioner institution, the number of seats available therein havenot been mentioned. Therefore, when the candidates who applied for thesuperspeciality courses as per the above said Prospectus issued by the StateGovernment, I am unable to accept the contention of the respondents that suchselection made based on the prescriptions stipulated in the Prospectus wouldalso include the super-speciality courses of the petitioner institution. Thepresent stand of the respondent-state that based on the paper publicationdated 27-7-2004 such a stand of the respondent-State should be accepted, is,in my opinion, purely an after-thought. The stand of the petitioner cannotalso be said to be in contravention of the decisions of the Hon'ble SupremeCourt in "T.M.A.Pai Foundation Case", "Islamic Academy of Education Case" and "P.A. Inamdar Case" inasmuch as it is not the case of any of the respondentsthat the petitioner compromised on merits while making the selection. In noneof the counter affidavits filed on behalf of the respondents 1 to 5, anyspecific allegation has been made as against the petitioner to the effect thatmerit was given a go bye and that the selection of the sixth respondent wasbased on any special consideration or preference. In the above referred tojudgments also, what has been repeatedly emphasized is that 'merit' aloneshould be the criteria. It is not the case of the respondent-State that theselection process of the petitioner for filling up of the super-specialitycourses or even for that matter the Post-graduate courses was unethical or byshowing any preferences. Therefore, on that ground, there is no scope forinterfering with the selection of the sixth respondent inasmuch as, as held byme earlier, the Hon'ble Supreme Court itself has laid greater emphasis thatmerit alone should be the criteria for any selection to the super-specialitycourse. In such circumstances, I do not find any infirmity in the selectionmade by the petitioner to any of the super-speciality courses much less in theselection of the sixth respondent. 58. In view of my reasoning as above, it will have to be heldthat the quota of 50% seats to be filled in by the respondent-State as claimedby the petitioner based on G.O.Ms.No.130 dated 17-6-2003 cannot be extended to the super-speciality courses to the petitioner Premier Institution andconsequently, the rejection of the petitioner's claim for filling up of theseats in the super-speciality courses by the State Government in its order inRef.No.1215/SCS II (1)/2003, dated 3-2-2004 cannot also be justified. In the result, a) Both the Writ Petitions stand allowed; b) The Order of the third respondent in Ref.No.1215/SCS II(1)/2003 , dated 3-2-2004 is hereby set aside; c) It is hereby declared that the provisions of G.O.Ms.No.130dated 17-6-2003 will have no application insofar as petitioner Institution isconcerned regarding admission to Super-speciality Courses offered by it; d) There shall be no order as to costs; and e) All the connected W.P.M.Ps. are closed.
suk
Index:Yes Internet: Yes
To
1. The Secretary to Government,Government of Tamil Nadu, Health and Family Welfare Department, Secretariat, Chennai-600 009.
2. The Registrar,The Tamil Nadu Dr.MGR Medical University, No.69, Anna Salai, Guindy,Chennai-600 032.
3. Director of Medical Education,162, Periyar E.V.R.Salai,Kilpauk, Chennai-600 010.
4. Union of India,rep. by Ministry of Health and Family Welfare,Nirman Bhavan, New Delhi-110 611.
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