IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27/04/2004 C O R A M THE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLA WRIT PETITION No.2151 of 2004 and W.P.Nos., 2152, 2161, 2170 TO 2174, 2175 TO 2179, 2376, 2407, 2457, 2551, 2568, 2581, 2704, 2796, 2846, 2847, 2852, 2885, 2893, 2929, 2968, 3014, 3289, 3567, 3571, 3627, 3653, 3675 AND 3676 OF 2004 and W.P.M.P.NOS.2427, 2428, 2430, 2431, 2433, 2434, 2436, 2437, 2439, 2440, 2777, 2949, 3379, 3476, 3835, 4194 AND 4343 OF 2004 W.P.NO.2151 OF 2004: 1. Dr.D.Narmadha 2. Dr.N.Uma 3. Dr.A.Mythily 4. Dr.A.R.Akilandeswari 5. Dr.V.Uma Maheswari 6. Dr.B.Malathi 7. Dr.V.Sharmila Devi 8. Dr.V.Jayanthi 9. Dr.K.Vanitha 10.Dr.C.Chandrakala 11.Dr.L.Lakshmi Prabha 12.Dr.U.Rasheedha 13.Dr.M.Rajni 14.Dr.P.Sumathi 15.Dr.R.Geetha 16.Dr.M.S.P.Uma Maheswari 17.Dr.K.Usha Krishnan 18.Dr.C.Umarani 19.Dr.D.Selvi 20.Dr.K.Sasi Rekha 21.Dr.R.Lalitha 22.Dr.V.Kanimozhi 23.Dr.G.Aruna 24.Dr.B.Suhasini 25.Dr.S.Kalpana 26.Dr.Sujatha Andrew 27.Dr.T.Latha Jagadeesan 28.Dr.S.Hemalatha 29.Dr.B.Valthuruchi 30.Dr.G.Thulasi Lakshmi 31.Dr.K.Jayanthi 32.Dr.S.Premalatha 33.Dr.V.Chitra Devi 34.Dr.T.Shanmugapriya 35.Dr.K.Kalyani 36.Dr.J.Priya 37.Dr.T.A.Aruna Devi 38.Dr.S.Shanmugavalli 39.Dr.V.Arthi 40.Dr.R.Muamaheswari .. Petitioners -Vs- 1. State of Tamilnadu, rep. by its Secretary to Government, Higher Education Department, St.George Fort, Chennai-600 009. 2. Director of Medical Education, Directorate of Medical Education, Kilpauk, Chennai-600 010. 3. Medical Council of India, rep. by its Secretary, AIWAN-E-Ghaliv Marg, Kotla Road, New Delhi-110 002. .. Respondents !For Petitioners ... Mr.R.Krishnamoorthi for Mr.V.Ayyadurai, SC in W.P.Nos.2968, 3289, 3014, 3571, 3627, 3653, 3675, 3676, 2151, and 2152 of 2004 Mr.Ilanthiraiyan for M/s.Sai, Bharathi & Ilan In W.P.No.2929 of 2004 Mr.N.Ravishankar Vallatharasu in W.P.No.2551 of 2004 Mr.U.M.Ravichandran in W.P.No.2893, 2568, 2885, 2581 and 2161 of 2004 Mr.N.Paul Vasanthakumar in W.P.No.2704 of 2004 Mr.A.Thiruvadi Kumar in W.P.No.2796 and 2376 of 2004 Mr.M.Muthappan in W.P.No.2852 of 2004 Mr.R.Balakrishnan in W.P.No.2457 of 2004 Mr.A.Arul Sagai in W.P.Nos.2846, 2847, 2407, 2170 to 2174, 2176 to 2179 of 2004 Mr.S.T.Raja in W.P.No.3567 of 2004 ^For respondents ... Mr.R.Muthukumarasamy Addl.Advocate General assisted by Mr.V.R.Rajasekaran, Sp.G.P. (Education) for respondents 1 and 2 in all Writ Petitions Mr.V.S.Jagadeesan for Mr.R.Singaravelan for R3 in all Writ Petitions Prayer: These Writ Petitions are filed under Article 226 of The Constitution of India for issuance of a Writ of Declaration for the reliefs as stated therein. :COMMON ORDER In all these Writ Petitions, the challenge is to Clause 23 of the prospectus issued by the second respondent herein in respect of admission to the Post- Graduate Degree /Diploma/ MDS/5-year M.Ch.(NeuroSurgery) Courses for the Academic Year 2004-2005, to declare the said Clause as arbitrary and unconstitutional and consequently direct the respondents to permit the petitioners to apply for any Post-Graduate Degree/Diploma/MDS/5-year M.Ch. (Neuro Surgery) Courses by fixing the completion of two year service as eligibility criteria for applying for the academic year 2004-2005. 2. The relevant Clause 23 in the prospectus issued for the year 200 4-2005 reads as under:- "23. Those Service candidates who have put in less than Three Years of satisfactory continuous service as on 01-02-2004 either in Tamil Nadu Medical Service or in Local Bodies and Organisations mentioned in the prospectus are not eligible to apply for PG Degree/ Diploma/ Five Year M.Ch.(Neuro Surgery) Courses." 3. The petitioners are all the candidates who were admittedly in the services of either Tamil Nadu Medical Services or other Organizations mentioned in the prospectus. All the petitioners are stated to have entered service in the year 2001. It is relevant to state that till the year 2003-2004, the eligibility criteria for making the applications to PG Courses was stated to be `completion of two years of continuity of service' as on the date fixed in the respective prospectus. It is also relevant to state that some of the petitioners who were appointed in the month of February 2001, joined the service in that month as from the date when the appointment was made or the last date of that month viz., 28th day of February, 2001. Among others, some of the petitioners are stated to have been appointed in the month of November 2001. Therefore, the common grievance of these petitioners, while challenging 'Clause 23' of the prosp ectus of the year 2004-200 5 is that by virtue of the stipulation, viz., that in order to be eligible for making the applications to any of the PG Courses, Service Candidate should have put in a minimum of three years of service as against two years which was prescribed till the last academic year, viz., 2003-2004, they were prevented from even applying for any of the PG courses and thereby they have been put to serious prejudice. 4. As far as those petitioners who happened to join in the month of February 2001, the further contention was that while their batchmates who happened to be appointed a little earlier than February 2001, were fortunate enough to apply for such PG course in the academic year 2003-2004 itself inasmuch as, the prescription then was only ` completion of two years', the petitioners were prevented from even making the applications in the present academic year 2004-2005 due to the increase in the number of years, viz., from two years to three years as has now been stipulated in the prospectus of the year 2004-2005. 5. In the light of the above factors, the contention put forth on behalf of the petitioners was two fold. According to the petitioners, in the first place, the enhancement of the minimum period of two years to three years, had no nexus to the object to be achieved while the said prescription was arbitrary in nature. 6. Mr.R.Krishnamurthy, learned Senior counsel appearing for some of the petitioners in these Writ Petitions and also M/s.Paul Vasant Kumar, and V.Ayya Durai, who appeared for other respective petitioners, adopted the arguments of the learned Senior counsel. Of them, Mr. Paul Vasanth made certain additional submissions. 7. Mr.R.Krishnamurthy in his submissions, contended that at the time of recruitment through Tamil Nadu Public Service Commission, the petitioners were informed as part of condition of their recruitment that in the event of their selection, they should compulsorily serve in the zone in which he/she would be posted after counselling, for a minimum period of ten years, of which, he/she should have served for a period of not less than five years excluding any period spent on training, leave, or higher education in Government Primary Health Centres, that when the petitioners joined the service by accepting the above stated condition, their service in the rural areas got ensured and therefore, the respondents cannot take the stand that unless the service candidates are mandatorily required to ensure three years service, they would be ineligible to apply for PG Courses while seeking admission to such courses. According to the learned Senior counsel, when the very recruitment process, as well as, the appointment order made it clear that the petitioners once entered the service of the State, they are liable to serve in rural areas for a minimum period stipulated as a condition for such appointment, a further stipulation in order to make them eligible to apply for PG Course was un-called for and therefore, the same was an arbitrary stipulation imposed in the prospectus of the year 2004-2005. For the very same reasoning, it was further contended that it cannot be held that it had any nexus to the object to be achieved by creating such a stipulation while calling for applications for admissions to PG Courses. It was also contended that while the prospectus of the year 2004-2005 was common for all applicants both `the service candidates' as well as 'open category', as a common entrance test was being held for both categories, the prescription of a different cut of date for the open category candidates visa-vis the service candidates would amount to discrimination and therefore, on that ground as well, the impugned Clause 23 is liable to be interfered with. 8. It was then contended that even in respect of in-service candidates, while one group were fortunate enough to be eligible for making the applications in the year 2003-2004, by virtue of the fact that they could complete two years of service as on 1-2-2003, which was the cut of date prescribed in the prospectus of the said year, in respect of the petitioners who also came to be appointed along with those other persons, since because their appointment orders came to be issued in the month of February and November, 2001, they were deprived of even making the applications for the academic year 2004-2005 by virtue of the enhancement of the minimum period from two years to three years in the present prospectus. According to the learned Senior counsel, even on this ground, a discriminatory treatment is being meted out to the petitioners which would render the impugned Clause 23 invalid. 9. Mr.Paul Vasanth Kumar, learned counsel appearing for the petitioner in W.P.No.2704 of 2004, contended that in the counter affidavit filed on behalf of the respondents, it has been shown that as against 392 seats ear marked for the service candidates, only 316 Medical Officers got selected in the last three years for admission in Post Graduate Degree/Diploma Courses and in the said circumstances, when lot of seats earmarked for in-service candidates remained unfilled, the further restriction imposed by enhancing the period of service to be put in by the service candidates from two to three years would only curtail the zone of consideration, on which ground also, Clause 23 is liable to be interfered with. 10. It was then contended that the petitioner when joined service along with others in the year 2001, was in the fond hope that she would be able to apply for PG Course on completion of two years and that while her other batch-mates were able to stake their claim in the previous years, by virtue of the enhancement in the number of years of service made for the academic year 2004-2005, her legitimate expectation has been demolished, and on that ground, Clause 23 should be held to be invalid. 11. It was lastly contended on behalf of the petitioners that even on the ground of equity and fair play, some of the petitioners in these Writ Petitions, who joined the service in the month February 2001 should atleast be permitted to avail the benefit in the year 2004-200 5. 12. In support of the above submissions, reliance was placed upon "1981(2) All India Services Law Journal 578 (DR.SEMA SRIVASTAVA AND OTHERS versus PRINCIPAL, BABA RAGHAV DAS MEDICAL COLLEGE, GORAKHPUR AND OTHERS); 1983 (1) LLN 289 (NAKARA (D.S.) AND OTHERS versus UNION OF INDIA) and 2000(8)SCC 633 (PRAVEEN SINGH versus STATE OF PUNJAB AND OTHERS) 13. As against the above submissions, learned Addl.Advocate General, appearing for the respondents, contended that in-service candidates who were recruited afresh are primarily directed to render their service in the rural areas, viz., in the Primary Health Centres, that out of 2893 sanctioned posts for Primary Health Centres as of 2004, only 2315 posts had been filled, even of the posts filled up so far, 20% of the posts always lies vacant due to various reasons while in the most backward areas, nearly 45% to 50% of the vacancies are always lying vacant. The learned Addl.Advocate General would point out that unlike other States, in the State of Tamil Nadu, a provision has been made for reserving 50% of the seats available in the PG courses for the in-service candidates which prescription had also been upheld by the Hon'ble Supreme Court in the Judgments reported in "2001(2)SCC 538 (K.DURAISAM AND ANOTHER versus STATE OF TAMIL NADU AND OTHERS)" and "2001(8) SCC 694 (PRE-PG MEDICAL SANGHARSH COMMITTEE AND ANOTHER versus DR.BAJRANG SONI AND OTHERS, ETC.)" that while there is large amount of competition in the `open category', the scope of competition is limited (i.e.,) to the extent of 1:3 as amongst the in-service candidates apart from the fact that such service candidates are also entitled to count the period during which PG course are studied, as part of their service apart from the fact that they were also being paid the salary during the said period. According to the learned Addl. Advocate General, the in-service candidates are therefore, treated differently as compared to the open category candidates and therefore at the outset, there can be no comparison of the criteria fixed for the open category candidates to that of the in-service candidates. 14. The learned Addl.Advocate General then contended that while earlier, the persons who entered the State service were called upon to give an undertaking that they would serve a minimum period of five years in the rural areas, a Government Order came to be issued in G.O.(2D).No.71 Health and Family Welfare Department, dated 24-10-2002, wherein, the five year period came to be altered as three years by taking into account very many practical reasons such as to ensure that the period prescribed for rural service is duly complied with by the persons who are being recruited for that purpose. It was, therefore, contended that the prescription of three years now made in the impugned prospectus for the academic year 2004-2005 had every nexus in the sense that it was to ensure that at least for a minimum period of three years, there was uninterrupted service in the rural areas which is in the interest of the public at large. It was, therefore, contended that as against the interest of the public at large, the interest of the petitioners should give way and therefore, there can be no fault found with the prescription made in the impugn ed Clause 23 while enhancing the minimum period of two years to that of three years as from the academic year 2004-2005. 15. The learned Addl.Advocate General further contended that prescription of such criterion are the policy of the State and so long as the said policy was not arbitrary and when it has got relevance to the object to be achieved, the same cannot be called in question. It was also contended that the State is entitled to prescribe the eligibility conditions in the light of various other liabilities of the State Government which are to be meted out to the public at large. 16. The sum and substance of the contention of the learned Addl. Advocate General was that the present prescription of three years in Clause 23 was for twin objectives, viz., (a) to ensure that the Government Doctors render uninterrupted continuous service in the rural areas for a minimum period of three years in public interest and (b) to ensure that a better qualified person from the point of view of experience is selected for undertaking PG Course, so that his further service in the State Government which is ultimately for the public at large would be more beneficial. In the light of the above submissions, it was contended that the conditions prescribed in the impugned Clause 23 of the prospectus was neither arbitrary nor capricious in order to be interfered with the same. 17. The learned Addl.Advocate General relied upon "AIR 1971 SC 1762 (D.N.CHANCHALA, ETC. versus THE STATE OF MYSORE AND OTHERS, ETC.), 2 001(2) SCC 538 (K.DURAISAMY AND ANOTHER versus STATE OF T.N. AND OTHERS); 2001(8) SCC 694 (PRE-PG MEDICAL SANGHARSH COMMITTEE AND ANOTHER versus DR.BAJRANG SONI AND OTHERS, ETC.); 1997(9)SCC 495 (KRISHNAN KAKKANTH versus GOVERNMENT OF KERALA AND OTHERS); AIR 2002 SC 2642 ( STATE OF RAJASTHAN AND OTHERS versus LATA ARUN); 2003(5) SCC 437 (UNION OF INDIA AND ANOTHER versus INTERNATIONAL TRADING CO.AND ANOTHER)" in support of his submissions. 18. Having heard the learned counsel for either parties, at the out set, it would be relevant to state that in matters of this kind, where such prescriptions are made by the State Government for filling up the courses offered by it, it is well settled that the State is entitled to prescribe and lay down the standards of eligibility. Reliance can be placed upon the judgment of the Hon'ble Supreme Court reported in "AIR 1971 SC 1762 (D.N.CHANCHALA ETC. versus THE STATE OF MYSORE AND OTHERS, ETC.)", in particular para 17 can be usefully referred to on this aspect. "17. Since the Government has set up these colleges and maintains them, it has prima facie the power to regulate admission in its own institutions. Counsel for the petitioners pointed out to us no provision from the University Acts which deprives the Government of the power of making rules for admission in its own colleges. That being so, it cannot be said that the Government has no power to regulate admission in its own colleges or that because a student is eligible for admission under the University ordinances, he automatically gets a right to admission which he can enforce in a Court of law." (Underlining is mine) 19. The above proposition of law laid down by the Hon'ble Supreme Court in respect of Government run medical colleges would make it clear that it would be in order for the State Government to regulate admissions in its own colleges, which would be in the interest of the public at large. When it comes to the question of prescribing such stipulations, the only other basis would be that it is the policy of the State Government in making such stipulations which again is in the interest of the public at large. As far as such policy decisions are concerned, it has been held that so long as such policy decisions are not contrary to any statutory prescriptions or such policies are not wholly unfair and unreasonable, there is absolutely no scope for the Courts to interfere with such policy decisions of the State. On this aspect, useful reference can be had to the judgment of the Hon'ble Supreme Court reported in "1997(9) SCC 495 (KRISHNAN KAKKANTH versus GOVERNMENT OF KERALA AND OTHERS)", wherein, in para 36, the Hon'ble Supreme Court has stated the legal position as under: "36. To ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial whether a better or more comprehensive policy decision could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, courts should avoid "embarking on uncharted ocean of public policy." ( Underlining is mine) 20. Further in the judgment reported in "AIR 2002 SC 2642 (STATE OF RAJASTHAN AND OTHERS versus LATA ARUN)", the Hon'ble Supreme Court has stated the position more clear in para 9, wherein, it has been held as under: "9. The points involved in the case are two fold: one relating to prescription of minimum educational qualification for admission to the course and the other relating to recognition of the Madhyama Certificate issued by the Hindi Sahitya Sammelan, Allahabad as equivalent to or higher than +2 or 1st year of TDC for the purpose of admission. Both these points relate to matters in the realm of policy decision to be taken by the Sate Government or the authority vested with power under any statute. It is not for the Courts to determine whether a particular educational qualification possessed by a candidate should or should not be recognized as equivalent to the prescribed qualification in the case. That is not to say that such matters are not justiciable. In any appropriate case the Court can examine whether the policy decision or the administrative order dealing with the matter is based on a fair, rational and reasonable ground; whether the decision has been taken on consideration of relevant aspects of the matter whether exercise of the power is obtained with mala fide intention; whether the decision serves the purpose of giving proper training to the candidates admitted or it is based on irrelevant and irrational considerations or intended to benefit an individual or a group of candidates." (Underlining is mine) 21. Therefore, in appropriate cases, the Court can examine whether the policy decision dealing with any matter is based on a fair, rational and reasonable ground and such decision was taken on consideration of relevant aspects of the matter and whether such decisions in any way conflict with any statutory provisions. Therefore, going by the guidelines set out above, when the case on hand is analysed, it will have to be stated at the outset that even while testing the various submissions made, it will have to be confined to the case of service candidates alone as there would be no scope for comparing the petitioners, who are all service candidates, with that of Open Category who are governed by Clause 17 of the Prospectus. I say so because a clear distinction has been already demarcated as between the open category candidates for whom no prescribed minimum experience has been stipulated for making an application, while for the in-service candidates, they have to necessarily put in a minimum of three years of satisfactory continuous service as on 1-2-2004 in order to be eligible for making the application. As far as open category candidates are concerned, it is sufficient that they complete their CRRI before the date of entrance examination, meaning thereby that a fresh doctor who after completion of his MBBS course and immediately after the completion of his internship, is made eligible to apply under the open category. While such being the wide scope for making the applications in respect of open category candidates, when there is restriction placed among the in-service candidates and when 50% of the total seats are ear marked for in-service candidates, the zone of consideration as among the in-service candidates gets restricted while in the case of open category candidates, it would be on a larger area. In fact, it was stated that in the open category zone, there would be not less than 4000 to 5000 applications in a year, while the scope of consideration in respect of the in-service candidates, would be to a limited extent, i.e. 1:3 alone only. 22. In fact, when this allocation of 50% for in-service candidates came up for challenge, the matter went upto the Supreme Court and the Hon'ble Supreme Court, in the judgment reported in "2001(2) SCC 538 (K.DURAISAM AND ANOTHER versus STATE OF TAMIL NADU AND OTHERS)" has upheld the reservation of 50% made for in-service candidates, but made it clear that in-service candidates would not on the basis of the merit be considered against the seats ear marked for non-service candidates. The Hon'ble Supreme Court was pleased to hold that because the Government possess the right and authority to decide from what sources, the admissions in the educational or to particular discipline and courses therein have to be made and that too in what proportion. Therefore, by now it is well settled that the in-service candidates would be staking their claim only as amongst their counter parts in the same service and there would be no scope for any outsider to compete with them in the matter of such selection. Here again, when certain other concessions were shown in the minimum marks prescribed for selection, when a challenge came to be made, the Hon'ble Supreme Court was pleased to uphold even such prescription, in the judgment reported in "2001 (8) SCC 694 (PRE-PG MEDICAL SANGHARSH COMMITTEE AND ANOTHER versus DR.BAJRANG SONI AND OTHERS, ETC.)", wherein the Hon'ble Supreme Court has considered the said issue in depth and has held as under in para 8: "8. The learned counsel for the appellants, who filed the appeals with the permission of the Court, also sought to challenge the conclusion arrived at by the learned Single Judge in repelling the challenge made to the