IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.09.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION Nos.14855, 15355, 16226 and 16797 OF 2009 and connected Miscellaneous Petitions. M.S.Vijay Anand .. Petitioner in WP.14855/09 Dr.Dhinakar Babu .. Petitioner in WP.15355/09 Dr.S.Srikumar .. Petitioner in WP.16226/09 Dr.K.Balasubramani .. Petitioner in WP.16797/09 vs. 1.State of Tamil Nadu rep. By its Secretary to Government Higher Education Department Secretariat, Chennai 600 009. 2.The Secretary Selection Committee Directorate of Medical Education Kilpauk, Chennai 600 010. 3.Medical Council of India rep. By its Secretary Pocket No.14, Sector 8 Dwarka Phase 1 New Delhi 110 077. .. Respondents 1 to 3 in Wps.14855,16226 & 16797/09 4.Dr.D.Jason Philip .. R.3 in WP.15355 of 2009 5.Dr.J.Chandrasekar .. R.4 in WP.14855 of 2009 6.Dr.R.Sampathkumar .. R.4 in WP.16226 of 2009 R3,R4 impleaded as per order of Court dt.19.8.09 in MP.5/09 in WP.14855/09 and prayer also amended. Writ petitions filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus and Declaration as stated therein. WP.14855/09 and WP.16797/09: Writ Petitions filed under Article 226 of the Constitution of India, to issue a writ of declaration, declaring that the award of mark for experience for admission in https://hcservices.ecourts.gov.in/hcservices/ Super Speciality Course (i.e) M.Ch(Gastro Entrology)(Neuro Surgery) for the Academic Year 2009-2010 as arbitrary,unconstitutional and against the merit selection and to direct the Respondents to consider the petitioner for admission to M.Ch(Gastro Entrology)(Neuro Surgery) course on the basis of the Entrance Examination mark.(Prayer Amended as per order dt.19.8.09 by PJMJ in MP.3/09 in WP.14855/09) WP.16226/09:Petition filed under Article 226 of the Constitution of India, to issue a writ of mandamus, to direct the Respondents to select 3 seats of D.M. (Cardiology) from the open category exclusively on the basis of the entrance exmaination mark in D.M (cardiology ) for the year 2009-2010 ignoring the award of one mark for experience of every year declaring the same as ambiguous illegal against merit selection and conclude the admissions in D.M.(Cardiology) For petitioner : Mr.C.Selvaraju,Sr.Counsel in Wps.14855 & for Mr.S.Mani 16226 of 2009. For petitioner : Mr.R.Muthukumarasamy,Sr.Counsel in WP.15355/2009 for Mr.A.Jeenasenan For petitioner : Ms.R.Gowri in WP.16797/2009 For respondents : Mr.P.Wilson, 1 & 2 in all the Addl.Advocate General Wps. for Mr.G.Sankaran,Spl.G.P.(Edn.) For 3rd respondent : Mr.V.P.Raman in Wps.14855,16226 & 16797 of 2009 For 3rd respondent : Mr.R.Suresh Kumar and 4th respondent in Wps.15355 & 16226/09. COMMON ORDER The above writ petitions relate to the admission to super- speciality courses in medicine including M.Ch. and D.M. for the year 2009-10. 2. While the writ petitioner in W.P.No.14855 of 2009 has filed the petition praying for declaration that the award of marks for experience for admission in super speciality course i.e., M.Ch. (Gastro Enterology) for the academic year 2009-10 is arbitrary and unconstitutional and for direction against the respondents to https://hcservices.ecourts.gov.in/hcservices/ consider the case of the petitioner for admission to M.Ch. (Gastro Enterology), the petitioner in W.P.No.16226 of 2009 has prayed for direction against the respondents to select three seats of D.M. (Cardiology) from the open category exclusively on the basis of the entrance examination marks for the year 2009-10 ignoring the award of one mark for experience of every year declaring the same as illegal. The petitioner in W.P.No.15355 of 2009 has filed the writ petition praying for direction against the respondents 1 and 2 to reckon the rural service rendered by the candidates and award marks for the same for M.Ch. (Genito Urinary Surgery) Course for the academic year 2009- 10 as it was stated to have been done earlier and consequently make admission for the year 2009-2010. 3. In all the above said three cases, while admitting the writ petitions, a direction was issued by this Court on 11.8.2009 against the second respondent, the Secretary, Selection Committee, to keep one seat in each discipline vacant. 4. In W.P.No.16797 of 2009 which was filed subsequently there was no interim order passed and the said petition is filed for declaration that the award of mark for experience for admission in higher speciality course i.e., M.Ch. (Neuro Surgery) for the academic year 2009-10 as unconstitutional and arbitrary and for direction to consider the petitioner's case on the basis of entrance examination mark. 5. Therefore, the issue involved in all theses cases is, as to whether the awarding of marks in respect of admission to super- speciality medical courses for the year 2009-10 for experience is valid and permissible in law or as to whether the admission should be made strictly based on the marks obtained in the entrance examination. 6. The petitioner in W.P.No.14855 of 2009 who was seeking admission to M.Ch. (Gastro Enterology) has completed his M.B.B.S. Course in June, 2003 and passed his M.S.(General Surgery) in September, 2008. Pursuant to the call by the second respondent, the Selection Committee, he applied for M.Ch. (Gastro Enterology – Master of Chirugerie). In the entrance examination conducted by the second respondent on 26.7.2009, for which results were published on the next day, viz., 27.7.2009, he got 77.25 marks out of 90 marks. He belongs to M.B.C. community with registration No.91227. The total number of seats available in M.Ch.(Gastro Enterology) is four, out of which two seats are reserved for service candidates and the remaining two seats are to be filled up in open competition. 6(a). As per the notification issued by the second respondent, 90 marks are allotted for entrance examination and 10 marks are allotted for experience. The experience gained by the candidate after completion of his post-graduate degree in medical subjects is https://hcservices.ecourts.gov.in/hcservices/ taken into consideration at the rate of one mark for every year subject to the maximum of 10 marks. According to the petitioner, the first candidate in M.Ch.(Gastro Enterology) obtained 78 marks in the entrance examination while he got 77.25 marks out of 90 marks. By virtue of marks given for experience, he may not be able to get admission in the merit list for non-service category. 7. The writ petitioner in W.P.No.16226 of 2009 has passed his M.B.B.S. in February 2002 and completed his M.D.(General Medicine) in 2004-2007. He applied for admission to D.M.(Cardiology) Super- speciality Course and in the entrance examination, he obtained 78.75 marks out of 90 marks. There are six seats in D.M.(Cardiology), out of which three are reserved for service candidates and the remaining three are reserved for non-service candidates on merit. The service candidates are also entitled to compete under merit list which, according to the petitioner, is meant for non-service candidates. According to the petitioner, he remains first by obtaining 78.75 out of 90 marks in the entrance examination. However, by virtue of addition of 10 marks against the services rendered by the service candidates, he has no chance of being selected. 8. The writ petitioner in W.P.No.15355 of 2009 completed his M.B.B.S. Course and internship in May, 1999 and after completing his M.D., he was selected by Tamil Nadu Public Service Commission as Civil Assistant Surgeon in 2000 and posted in the Primary Health Centre, Nachalur and he served in Primary Health Centres from 20.4.2000 to 17.7.2003. After rendering rural service for more than three years, he applied for admission into postgraduate course in 2003 and he was selected for M.S. (General Surgery) and allotted the Medical College, Coimbatore. He completed his M.S. (General Surgery) in the year 2006 and thereafter, he was posted in the General Hospital, Kottur where he served from 28.9.2006 to 28.3.2007. 8(a). Thereafter he served as Tutor from 4.4.2007 to 29.4.2009 and he is a Senior Resident Medical Officer. He applied for M.Ch. (Genito Urinary Surgery) in 2009-10. He secured 60.75 marks out of 90 in the entrance examination. Taking note of his two years service after postgraduate degree, he was awarded 2 marks and totally he secured 62.75 out of 100. 8(b). It is his case that the services rendered by him in rural areas for three years before completing postgraduate degree course should have been taken into consideration and as per the terms of the prospectus for the year 2009-10, the rural services were omitted to be taken into consideration for admission to super speciality courses, while the same was considered for the past 10 years. Out of seven seats available in the said course, M.Ch.(GUS), three seats are reserved for service candidates and the remaining seats are for non- service candidates. As the rural services rendered by the petitioner is not taken into consideration, he is likely to lose his chance of https://hcservices.ecourts.gov.in/hcservices/ getting admission for M.Ch.(GUS) this year. 9. The writ petitioner in W.P.No.16797 of 2009 completed his M.B.B.S. in January, 2002 and M.S. (General Surgery) in Sri Ramachandra Medical College, Chennai in April, 2008. Out of four seats available in M.Ch. (Neuro Surgery), two seats are earmarked for service candidates whereas the remaining two seats are for open category on merit basis. The petitioner obtained 66.25 marks out of 90. The petitioner may not get the chance of admission as in respect of service candidates, marks are being added for their experience. 10. The main ground on which the writ petitions are filed is that for super speciality courses in medicine, merit alone should be the criterion. Inasmuch as the second respondent conducted the entrance examination by which the merit is ascertained, the selection should only be based on the marks obtained in the entrance examination and the clause of the prospectus which enables upto 10 marks to be given for experience to a candidate after completion of postgraduate course in medicine would dilute the merit system. It is their contention that when the prospectus says that after completion of P.G. Course in medical course, a candidate is entitled for one mark for every year, it would lead to mean that even in case where a person who has completed postgraduate course and is idle for many years, he would be awarded a maximum of 10 marks and he cannot be treated as meritorious. According to the petitioners, in the absence of proper criteria to decide about the experience, merely giving one mark for every year to all persons after completion of P.G. Course cannot be termed as a prudent method of ascertaining the merit. 11. It is their further case as it is seen in W.P.No.15355 of 2009 that even if experience is taken into account for the purpose of merit, the experience obtained in rural service should be taken into consideration. It is also their case that when service candidates are given 50% of total seats, the addition of marks to service candidates based on their experience would amount further leniency being shown to them, which cannot be treated as a criterion for deciding the merit. It is the case of the petitioner in W.P.No.15355 of 2009 that while awarding marks for experience, the service rendered by a candidate in rural areas should be taken into consideration for the purpose of admission to super speciality medical courses, but in the present year prospectus, the service rendered in rural areas is taken into consideration for the admission to postgraduate courses while the same is dispensed with for super speciality courses. It is his contention that at the time when he applied for postgraduate medical course, the rural services rendered by him viz., three years at that time was not taken into consideration and even now when he seeks for admission to super speciality course, the prospectus for the present year turns down his request stating that rural service would be taken only for postgraduate courses and not for super speciality courses. https://hcservices.ecourts.gov.in/hcservices/ 12. In W.P.No.14855 of 2009, the petitioner while impleading the Medical Council of India as third respondent, has also impleaded the service candidate who got selected by addition of marks for experience as 4th respondent. Likewise, in W.P.No.16226 of 2009 also, the selected candidate from service category has been impleaded as 4th respondent. In W.P.No.15355 of 2009, the 3rd respondent is the service candidate who got selected. However, in W.P.No.16797 of 2009, no selected candidate has been impleaded as respondent. 13. In all these cases, it is the case of the Selection Committee as well as the Government that in the prospectus for the year 2009-10 for super speciality courses examinations, there is a specific clause stating that out of 100 marks 90 marks will be earmarked for entrance examination and 10 marks for experience. It is also their case that the allotment of 50% of seats for service category and the remaining for open category has also been mentioned specifically in the prospectus. It is the common knowledge that under open category system even a person who comes under service category will be entitled to compete on merit. Therefore, the claim of service candidates in open category based on merit cannot be ignored. The granting of 10 marks towards experience for service candidates after postgraduate degree is a policy of the Government. It is also the case of the said respondents that it is only after applying on the basis of prospectus and having failed in their efforts to get selected on merit, the petitioners have chosen to challenge the prospectus, which is not permissible. If at all the petitioners are genuine, they should have challenged the term, 'experience' in the prospectus at the time of issue of prospectus and not after the publication of merit list. It is also stated that in respect of D.M. (Cardiology) Course for which the writ petitioner in W.P.No.16226 of 2009 has competed, there are four seats and even as per merit list under open category, there are five candidates above the petitioner. It is stated that for a professional doctor, the experience counts the merit. Even in respect of M.Ch.(Gastro Enterology) for which the petitioner in W.P.No.14855 of 2009 has competed, there are five candidates in the merit list above the name of the petitioner. 14. It is the case of the said respondents that the rural service is taken into account for the purpose of admission to postgraduate course and when such benefit is given at the time of admission to postgraduate course, the same cannot be directed to be taken into account once again for the admission to super speciality courses as that would amount to repetition of awarding marks to service candidates. It is also the case of the respondents that after completion of basic degree in medicine, the doctors are posted in Primary Health Centres and when they complete their postgraduate course in medicine they are not posted in Primary Health Centres, but they are posted in Taluk Hospitals and therefore, their service https://hcservices.ecourts.gov.in/hcservices/ cannot be treated as rural service. 15. Mr.C.Selvaraju, learned senior counsel appearing for the petitioners in W.P.Nos.14855 and 16226 of 2009 would contend that awarding of 10 marks for experience is against the Regulations of the Medical Council of India. That apart, his contention is that awarding of 10 marks would amount to reservation which is not permissible in the matter of admission to super speciality courses. It is his submission that the State Government is bound to follow the Regulations of the Medical Council of India and inasmuch as it is in the concurrent list of the Constitution of India, the State Government can impose more restrictions than the Medical Council of India Regulations and the Medical Council of India Regulations cannot be diluted. His submission is that merit means only academic qualifications for the purpose of super speciality courses and the experience cannot be treated as merit and such experience would amount to reservation and inasmuch as such reservation is not protected under Article 15(1) of the Constitution of India, the conferring of 10 marks for experience is ultra vires. 15(a). It is his submission that even for conferring 10 marks, it is not explained for which the marks are conferred. It is his submission that when service candidates are already given 50% of total seats, further conferring of 10 marks against experience would amount to reservation within reservation to certain group of persons. Such marks for experience is opposed to the concept of merit. He would rely upon the judgment of the Supreme Court in Dr.Preeti Srivastava vs. State of M.P. (AIR 1999 SC 2894). It is his submission that even otherwise, the State should have obtained permission from the Medical Council of India by relying upon the judgments of the Supreme Court in State of Punjab vs. Dayanand Medical College and Hospital (AIR 2001 SC 3006) and State of M.P. vs. Gopal D.Tirthani (AIR 2003 SC 2952). 15(b). It is his submission that when common entrance test is conducted, both service candidates and open category candidates should be treated on the same footing and there should be no variation. He would rely upon the judgment of the Supreme Court in Saurabh Chaudri vs. Union of India [(2003) 11 SCC 146]. It is his further submission that in the previous year marks were given for rural service and it is for the year 2009-10, irrespective of nature of service, 10 marks are given for experience. He would rely upon the judgment of the Supreme Court in Maharashtra University of Health Sciences represented by Deputy Registrar vs. Paryani Mukesh Jawaharlal [(2007) 10 SCC 201]. 15(c). To substantiate his contention that merit alone should be the criterion he would rely upon the judgment of the Supreme Court in Dr.Narayan Sharma vs. Dr.Pankaj KR.Lehkar [(2000) 1 SCC 44]. It is his submission that even in the counter affidavit the respondents https://hcservices.ecourts.gov.in/hcservices/ have not made out as to the nexus between the object sought to be achieved and the awarding of marks for experience. 16. It is the contention of Mr.R.Muthukumarasamy, learned senior counsel appearing for the petitioner in W.P.No.15355 of 2009 that the dilution of benefit of rural service which has been given from 2004 onwards for admission to super speciality courses without assigning any reason is unlawful. It is his submission that first of all, the admission to super speciality courses should be made only on merit and if entrance examination is conducted, the marks obtained in the entrance examination should alone be taken into consideration and even if the policy is to encourage service among the doctors, it is only the rural service which has to be taken as experience in consonance with merit and the present system under the prospectus for the year 2009-10 by which marks are given blindly after completion of postgraduate degree in medicine is without any basis whatsoever and cannot be taken as a decision on merit. 16(a). According to him, if the rural service is opposed to merit, the service after postgraduate degree is also to be taken as being opposed to merit. It is his submission that from 2004 onwards, rural service rendered was not taken into consideration for postgraduate course admission and the same was taken into consideration for admission to super speciality courses, however, in 2009-10 it has become altogether different as rural service is taken into account only for admission to postgraduate courses while the same is not taken into account for admission to super speciality courses and the service rendered after postgraduate degree alone is taken into account for super speciality courses. Inasmuch as after postgraduate degree a doctor is not posted in Primary Health Centres and he is posted in Taluk Hospitals, it is not rural service and the writ petitioner is losing rural service benefit for postgraduate course admission and he is also losing now as the rural service is dispensed with for super speciality courses. 16(b). To justify his contention that rural service alone has to be taken as experience, he would rely upon the judgments of the Supreme Court in (1) Dr.Jagdish Saran vs. Union of India [AIR 1980 SC 820], (2) State of M.P. vs. Gopal D.Tirthani [(2003) 7 SCC 83] and (3) Saurabh Chaudri (Dr.) vs. Union of India [(2004) 5 SCC 618]. The said arguments have been adopted by the learned counsel for the petitioner in W.P.No.16797 of 2009. 17. On the other hand, it is the contention of Mr.P.Wilson, learned Additional Advocate General that the prospectus is binding in nature when the prospectus specifically states that 50% seats will be reserved for service candidates and the remaining seats will be given for non-service candidates on merit and that in respect of service and non-service candidates one mark for each year of service after completion of postgraduate course is added subject to the maximum of https://hcservices.ecourts.gov.in/hcservices/ 10 marks. He would contend that having known about the said contents consciously, the petitioners applied for super speciality courses and even without challenging the said clause at the time of issuing prospectus, after the merit list was published, now the petitioners have filed the present writ petitions and therefore, the writ petitions are liable to be dismissed. 17(a). He would rely upon the judgment in Dr.R.Murali vs. Dr.R.Kamalakkannan (1999(3) CTC 675) to show that the petitioners having taken part in the selection process cannot question the same. To substantiate his contentions, he would also rely upon the judgments in S.Karthikeyan vs. Teachers' Recruitment Board (2007) 3 CTC 814), T.T.Saravanan vs. State of Tamil Nadu (2004 (5) CTC 704), Dr.Preeti Srivastava vs. State of M.P. [(1999) 7 SCC 120] and Suryanarayan Sahu vs. Council of Scientific & Industrial Research [(1998) 2 SCC 162]. 17(b). In support of his submission that for professional courses academic merit alone would not decide the efficiency, he would rely upon the judgment in Pre-PG Medical Sangharsh Committee vs. Dr.Bajrang Soni [(2001) 8 SCC 694]. He would submit that the rule that weightage marks given to rural service has been accepted by the Supreme Court and relied upon the judgments in Sanjay Ahlawat vs. Maharishi Dayanand University, Rohtak and others [1995 AIR SCW 228], State of M.P. vs. Gopal D.Tirthani [(2003) 7 SCC 83] and Saurabh Chaudri vs. Union of India [(2003) 11 SCC 146]. 17(c). It is his submission that conferring of marks for experience does not amount to diluting the merit system and it is not a reservation. According to him, for professional courses experience is presumed to be merit and the concept of experience was taken into consideration for a long period, that is, from the year 1994 itself and in support of his submission, he would rely upon the judgments in Pre-PG Medical Sangharsh Committee vs. Dr.Bajrang Soni (2001 (8) SCC 694), Dr.K.Sivasubramaniyam vs. Madras Institute of Development Studies (2006 (5) CTC 207), Rashmi Kant vs. Principal G.S.V.M. Medical College (AIR 1989 Allahabad 55 DB), Dr.Preeti Srivastava vs. State of M.P.[(1999) 7 SCC 120], State of Punjab vs. Dayanand Medical College and Hospital (AIR 2001 SC 3006 ), State of M.P. vs. Gopal D.Tirthani (AIR 2003 SC 2952) and M.P. Public Service Commission v. Navnit Kumar Potdar[(1994) 6 SCC 293]. 17(d). He would also submit that this is a policy decision which has been taken by the Government in the year 2009, which cannot be challenged. According to him, in none of the cases, the contents of prospectus is challenged or the policy decision is challenged as perverse and in such circumstances, this Court cannot interfere at this stage when the admission process is completed. He would rely upon the judgment of the Supreme Court in S.Karthikeyan vs. Teachers' Recruitment Board (2007 (3) CTC 814) apart from the judgment of this https://hcservices.ecourts.gov.in/hcservices/ Court in 2004 (5) CTC 704. 17(e). He would submit that there is no legitimate expectation when there is a policy decision by the Government and when after completion of postgraduate course a doctor is posted in Taluk Hospital, there is no rural service thereafter. He would rely upon the judgments in Sethi Auto Service Station vs. Delhi Development Authority [(2009) 1 SCC 180] and Ram Pravesh Singh vs. State of Bihar [(2006) 8 SCC 381] to substantiate his contention that legitimate expectation does not give any legal right to any person. He would also submit that there cannot be a direction relying upon the judgments in Union of India vs. P.Rajeshwaran [(2003) 9 SCC 294] and