IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01-04-2009 CORAM : THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.Nos.2089, 2267, 3100, 3101, 3792, 3985 and 5078 of 2009 And M.P.Nos.1,1,1,1,1, 1, 1, 2, 2, 2, 3 and 3 of 2009 Dr.J.Sathiya Vijayan .. Petitioner in WP 2089 of 2009 1.Dr.K.Balasubramaniam 2.Dr.S.Raghupathy 3.Dr.T.Rajeswari 4.Dr.N.Kumar 5.Dr.M.Mohan Kumar 6.Dr.C.Rajasekaran 7.Dr.D.R.Sivakumar 8.Dr.N.Aarthi 9.Dr.S.Santhakumari 10.Dr.R.Rajeswari 11.Dr.Angelina Raghavendran 12.Dr.S.Pratheeba 13.Dr.K.Ramya Thangam 14.Dr.V.Sivagowrishankar 15.Dr.G.Prasanthakumar 16.Dr.G.Senthamarai 17.Dr.C.Meenakshi .. Petitioners in WP 2267 of 2009 Dr.M.Kavitha .. Petitioner in WP 3100 of 2009 Dr.K.Giriprakash .. Petitioner in WP 3101 of 2009 Dr.P.Rajeswari .. Petitioner in WP 3792 of 2009 Dr.S.Selvakumar .. Petitioner in WP 3985 of 2009 Dr.P.Justine .. Petitioner in WP 5078 of 2009 Vs. The Secretary, Selection Committee, Directorate of Medical Education, No.162, Periyar EVR High Road, Kilpauk, Chennai – 600 010. .. R.1 in all WPs The Directorate of Medical Education, No.162, Periyar EVR High Road, Kilpauk, Chennai – 600 010. .. R.2 in WPs 3100, 3101 & 2089 of 2009 https://hcservices.ecourts.gov.in/hcservices/ The State of Tamil Nadu, Represented by its Secretary to Government, Health and Family Welfare Department, Fort St. George, Chennai – 600 009. .. R.2 in WP 2267, 3792, 3985 & 5078 of 2009 W.P.Nos.2089, 3100 and 3101 of 2009: Writ petitions filed under Article 226 of the Constitution of India, praying for the issue of Writs of Mandamus, directing the respondents to include the Medical Officers serving in Government of India Institutions in Tamil Nadu and Public Sector Undertakings or Organisations under the control of Government of Tamil Nadu or Government of India in Tamil Nadu as service candidates in General Instructions No.51 given in the Prospectus 2009-2010 issued for selection of Post Graduate Degree/Diploma/MDS 5 years M.Ch. (Neuro Surgery) Courses so as to enable the petitioners to be selected under 25% service quota. W.P.No.2267 of 2009: Writ petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Declaration, declaring that the deletion of the Medical Officers working in 1) The Government of India Institutions in Tamil Nadu and 2) Public Sector Undertakings/Organisations under the control of Government of Tamil Nadu/Government of India in Tamil Nadu from the list of eligible Medical Officers for being considered as service candidates for the selection and admission to the PG Courses in the Government Medical Colleges in the Prospectus 2009-2010 of the first respondent as illegal, arbitrary and violative of Article 14 of the Constitution of India and consequently direct the respondents to consider the petitioners who fail under the above two deleted categories of Medical Officers as service candidates for the selection and admission to the Post Graduate (PG) Degree/Diploma/5 years M.Ch. (Neuro Surgery) Courses in Tamil Nadu Government Medical Colleges for the year 2009-2010 and subsequent years in so far as the petitioners are concerned. W.P.No.3792 of 2009: Writ petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Declaration, declaring Clause 51 of the Prospectus for admission to Post Graduate Degree for the academic year 2009-2010 in so far as it discriminates the petitioner and other similarly situated persons working in the Medical Service of Central Government and other statutory bodies with that of the candidates serving in Tamil Nadu Medical Service and local bodies of Tamil Nadu is ultra vires to Articles 14, 15 and 19 of the Constitution of India, consequently directing the first respondent herein to admit the petitioner in accordance with the merit of the petitioner under the service category belonging to other Backward Classes in the counselling to be conducted in the month of April 2009. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.3985 of 2009: Writ petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records pertaining to the Prospectus issued by the first respondent for the Entrance Examination for admission to the Post Graduate (PG) Degree/Diploma/MDS/5 years M.Ch. (Neuro Surgery) Courses in Tamil Nadu Government Medical Colleges for the year 2009-2010 and quash the same in so far as it pertains to the criteria for awarding additional marks for rural service under the head EXPERIENCE for drawing up the merit lits for the admission to the PG Course in the State of Tamil Nadu for the service quota under the heading MERIT LIST and consequently direct the respondents to treat the petitioner working in ESI Centre equal to that of the candidates working in PHC's for awarding marks for admission to PG Course under the heading EXPERIENCE. W.P.No.5078 of 2009: Writ petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records pertaining to the Prospectus issued by the first respondent for the Entrance Examination for admission to the Post Graduate (PG) Degree/Diploma/MDS/5 years M.Ch. (Neuro Surgery) Courses in Tamil Nadu Government Medical Colleges for the year 2009-2010 and quash the same in so far as it pertains to the criteria for awarding marks under the head EXPERIENCE for rural service and hilly area service in drawing up the merit list for the admission to the PG Course in the State of Tamil Nadu for the service quota under the heading MERIT LIST and consequently direct the respondents to fill the service candidates only within the 50% seats that are reserved for service quota for the Post Graduate Courses to that the petitioner who is a non-service candidates will avail the benefit of getting a seat in the remaining 50% seats in the PG Course. For Petitioner in WP 2089/2009: Mr.R.Muthukumaraswamy, Senior Counsel for Mr.K.Kalyana Sundaram. For Petitioner in WPs 3100 & 3101/2009 : Mr.S.Kasirajan For Petitioner in WP 3792/2009 : Mr.K.M.Vijayan, Senior Counsel for M/s.La Law. For Petitioner in WPs 5078, 3985 & 2267/2009 : Mrs.Kavitha Deenadayalan For Respondents in all WPs : Mr.G.Sankaran, Special Government Pleader (Education) Assisted by Mrs.E.Ranganayaki, Government Advocate (Education) https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R Admission to Post Graduate Medical Courses, without fail, has been the subject matter of litigation year after year, under one pretext or the other and the batch of cases on hand belongs to the same genre. 2. For the first time, the Government of Tamil Nadu introduced a reservation of 50% of seats in Post Graduate Medical Courses, for in-service candidates in the academic year 1999-2000. The stipulation was challenged in a batch of writ petitions, which eventually landed up in the Supreme Court. The reservation was upheld by the Supreme Court in K.Duraisamy vs. State of Tamil Nadu {2001 (2) SCC 538}. Therefore, the said pattern is in vogue in the State of Tamil Nadu since then. 3. However, until the last academic year {2008-2009}, several categories of employees came under the quota meant for service candidates as seen from Clauses 54.b and 55 of the Prospectus for admission to Post Graduate Diploma/Degree/MDS/5 Year M.Ch. {Neuro Surgery Courses} for the year 2008-2009. They read as follows:- "54.b. 50% of seats in each branch and in each college are reserved for service candidates, in addition to those service candidates selected in the open category. In case of an odd number of vacancy, the vacant seats shall be filled up by consideration of merit among both Service and Non-Service candidates put together. The seats in MD/MS/5 year M.Ch. (Neuro Surgery)/MDS in the following specialities will be exclusively reserved for service candidates:- Non-Clinical Clinical 1) MD Pathology 1) MD Psychiatric Medicine 2) MD Physiology 2) MD Radio Diagnosis 3) MD Bio-Chemistry 3) MD Radiotherapy 4) MD Microbiology 4) MD Anaesthesia 5) MD Forensic Medicine 5) MD TB & Chest Diseases 6) MD Pharmacology 6) 5 year M.Ch. (Neuro 7) DMRD 8) MS Anatomy 8) DMRT" MDS 1) Community Dentistry" "55. The following categories of Medical Officers will be treated as Service Candidates for the purpose of allotment of seats. 1. Medical Officers selected by the TNPSC and appointed in Tamil Nadu Medical Services on regular basis, who have put in minimum of Three Years continuous https://hcservices.ecourts.gov.in/hcservices/ service as on 31.3.2008. This is subject to the final verdict of the Supreme Court of India in the SLP No.2229/2005 filed by this Government against the orders passed by the Bench of the High Court of Madras dated 23.12.2004 in W.A.No.2091/2004 etc. 2. Medical Officers who are approved probationers and who have put in minimum of Three Years of continuous service as on 31.3.2008. This is subject to the final verdict of the Supreme Court of India in the SLP No.2229/2005 filed by this Government against the orders passed by the Bench of the High Court of Madras dated 23.12.2004 in W.A.No.2091/2004 etc. 3. Medical Officers serving (for three years) in:- (a) Local Bodies in Tamil Nadu (Except Medical Officers working in Panchayat Union part time or full time as the case may be, who have to be treated as Non- Service Candidates). (b) Government of India Institutions in Tamil Nadu. (c) Public Sector Undertakings or Organisations under the control of Government of Tamil Nadu or Government of India in Tamil Nadu. This is subject to the final verdict of the Supreme Court of India in the SLP No.2229/2005 filed by this Government against the orders passed by the Bench of the High Court of Madras dated 23.12.2004 in W.A.No.2091/2004 etc." 4. But in the Prospectus for admission to the very same Courses for the year 2009-2010, a restricted meaning was given to the expression "service candidates" under Clause 51 of the Prospectus. It will be useful to extract Clauses 54.b and 51 of the Prospectus for 2009-2010 as they correspond to Clauses 54.b and 55 of the Prospectus for 2008-2009. They are as follows:- "54.b. 50% of seats in each branch are reserved for service candidates, in addition to those service candidates selected in the open category. In case of an odd number of vacancy that vacant seat shall be filled up by consideration of merit among Service candidates only." "51. The following categories of Medical Officers will be treated as Service Candidates for the purpose of allotment of seats. 1. Medical Officers selected by the TNPSC and appointed in Tamil Nadu Medical Services on regular basis, who have put in minimum of two years of continuous service as on 31.3.2009. https://hcservices.ecourts.gov.in/hcservices/ 2. Medical Officers serving (for two years) in Local Bodies of Tamil Nadu." 5. Aggrieved by such a restriction imposed upon the expression "service candidates", a few candidates working as Medical Officers in Institutions such as Ordnance Factory, Tiruchirapalli, Employees' State Insurance Corporation Hospitals, Central Government Health Scheme Hospitals, Railway Hospital and Tuticorin Port Trust Hospital, have come up with the writ petitions W.P.Nos.2089, 2267, 3100, 3101 and 3792 of 2009, seeking either a direction to treat the Medical Officers serving in the hospitals of the Government of India, Public Sector Undertakings etc., as service candidates entitled to compete under the 50% quota or a declaration that the restriction of the benefit only to those serving in the hospitals of the Government of Tamil Nadu or local bodies as ultra vires Article 14 of the Constitution. The petitioners in these five writ petitions are on common ground. 6. The petitioner in W.P.No.3985 of 2009 is a candidate to whom the benefit of the quota applies. Therefore, he is not aggrieved by the restriction of the benefit only to the employees serving in the hospitals of the Government of Tamil Nadu and the local bodies. But he is aggrieved by the stipulation contained in the Prospectus for the award of additional marks for rural service. 7. In contrast to the other writ petitions, the petitioner in W.P.No.5078 of 2009 does not claim to be employed in any hospital of the Central Government or State Government or any Public Sector Undertaking. Therefore he has not challenged either the prescription of 50% quota for in-service candidates or the restriction now imposed in the current academic year. However, he is aggrieved by the award of marks for services rendered in rural areas and hill areas under the caption "Experience" in the Prospectus. 8. Thus, in effect, we have on hand, 3 sets of writ petitions viz., (i) a batch of 5 writ petitions in which, the petitioners working in the hospitals of the Central Government and Public Sector Undertakings, seek the continuation of the benefit of the quota reserved for in-service candidates that they have enjoyed till last year (ii) one writ petition by an in-service candidate challenging the award of marks for service in rural areas and (iii) one writ petition by an unemployed (or perhaps privately employed) candidate challenging the award of marks for service in rural areas and hill areas. 9. Since the counselling for in-service candidates is slated to begin from 1.4.2009, all the writ petitions were taken up for disposal, by the consent of parties and I have heard Mr.K.M.Vijayan and Mr.R.Muthukumaraswamy, learned Senior Counsel,and Ms.Kavitha Deenadayalan, learned counsel appearing for the petitioners and Mr.G. Sankaran, learned Special Government Pleader (Education). 10. As stated earlier, the vires of the very quota reserved for in-service candidates, for admission to Post Graduate Medical Courses, has already been upheld by the Apex Court in K.Duraisamy's https://hcservices.ecourts.gov.in/hcservices/ case. The ratio laid down in K.Duraisamy's case, was encapsulised by the Supreme Court in paragraph-19 of its decision in State of M.P. And Others Vs. Gopal D. Tirthani and Others {2003 (7) SCC 83} as follows:- "(i) the Government possesses the right and authority to decide from what sources the admissions in educational institutions or to particular disciplines and courses therein have to be made and that too in what proportion; (ii) that such allocation of seats in the form of fixation of quota is not to be equated with the usual form of communal reservation and, therefore, the constitutional and legal considerations relevant to communal reservations are out of place while deciding the case based on such allocation of seats; (iii) that such exclusive allocation and stipulation of a definite quota or number of seats between in-service and non-service or private candidates provided two separate channels of entry and a candidate belonging to one exclusive quota cannot claim to steal a march into another exclusive quota by advancing a claim based on merit. Inter se merit of the candidates in each quota shall be determined based on the merit performance of the candidates belonging to that quota; (iv) that the mere use of the word "reservation' per se is not decisive of the nature of allocation. Whether it is a reservation or an allocation of seats for the purpose of providing two separate and exclusive sources of entry would depend on the purpose and object with which the expression has been used and that would be determinative of the meaning, content and purport of the expression. Where the scheme envisages not a mere reservation but is one for classification of the sources from which admissions are to be accorded, fixation of respective quota for such classified groups does not attract applicability of considerations relevant to reservation simpliciter." 11. In AIIMS Students' Union Vs. AIIMS {2002 (1) SCC 428}, the Supreme Court considered the decision in K.Duraisamy's case and stated in paragraph-31 as follows:- "Permitting in-service candidates to do postgraduation by opening a separate channel for admittance would enable their continuance in Government Service after postgraduation which would enrich health services of the nation. https://hcservices.ecourts.gov.in/hcservices/ Candidates in open category having qualified in postgraduation may not necessarily feel attracted to public services. Providing two sources of entry at the postgraduation level in a certain proportion between in-service candidates and other candidates thus achieves the laudable object of making available better doctors both in public sector and as private practitioners. The object sought to be achieved is to benefit two segments of the same society by enriching both at the end and not so much as to provide protection and encouragement to one at the entry level." 12. Therefore the classification made between in-service candidates and other candidates cannot be questioned anymore since the issue is no longer res integra. However, the dispute now raised is as to whether a further classification between persons in the services of the State Government and those in other public services (such as Central Government, Port Trust, ESI, Railway Hospitals) would stand the test of reasonableness within the meaning of Article 14. 13. In State of M.P. Vs. Gopal D. Tirthani {2003 (7) SCC 83}, arising out of the reservation of 20% of seats for admission to Post Graduate Medical Courses to in-service candidates, the Supreme Court reiterated, in paragraph-21 of its judgment, as to when the test of reasonable classification would be satisfied, on the following lines:- "21. To withstand the test of reasonable classification within the meaning of Article 14 of the Constitution, it is well settled that the classification must satisfy the twin tests: (i) it must be founded on an intelligible differentia which distinguishes persons or things placed in a group from those left out or placed not in the group, and (ii) the differentia must have a rational relation with the object sought to be achieved. It is permissible to use territories or the nature of the objects or occupations or the like as the basis for classification. So long as there is a nexus between the basis of classification and the object sought to be achieved, the classification is valid." Therefore what is to be seen in the present batch of cases is whether those twin tests are satisfied or not. 14. There may not be any difficulty in concluding that the classification now made, would pass the first test. Until last year, the following persons were considered under the category of service candidates:- (i) Medical Officers selected by the Tamil Nadu Public Service Commission and appointed to the Tamil Nadu Medical Services on regular basis, who have put in 3 years of continuous service. https://hcservices.ecourts.gov.in/hcservices/ (ii) Medical Officers serving for 3 years in local bodies in Tamil Nadu except those working in Panchayat Unions on part time or full time basis. (iii) Medical Officers serving for 3 years in Government of India Institutions in Tamil Nadu. (iv) Medical Officers serving for 3 years in Public Sector Undertakings or Organisations under the control of the Government of Tamil Nadu or Government of India in Tamil Nadu. 15. But by the Prospectus in question, only the Medical Officers selected by Tamil Nadu Public Service Commission and appointed to the Tamil Nadu Medical Services on regular basis, who have put in a minimum of 2 years of continuous service and those Medical Officers serving for 2 years in local bodies of Tamil Nadu alone are sought to be treated as service candidates. In other words, a distinction is now sought to be made between those serving in Tamil Nadu Medical Services and in the services of the local bodies in Tamil Nadu on the one hand and those not employed in these services. This distinction is founded on intelligible differentia and hence it passes the first test of reasonableness. 16. However Mr.K.M.Vijayan, learned Senior Counsel contended that the word "service" appearing in the Prospectus has a larger connotation in the context of the constitutional provisions and that the word "State" cannot also be understood to mean the "State Government", in view of Article 12 of the Constitution. 17. But I am unable to countenance the above submission. In Clause 54.b of the Prospectus of the previous years, it was stated that 50% of seats will be reserved for "service candidates". The categories of Medical Officers who would be treated as service candidates, were enlisted in Clause 55 of the Prospectus of the previous years. Even until last year, the expressions "service candidates" and "State" were not understood in the context of Article 12 of the Constitution. These expressions were given only restricted meanings even in the previous years, in the sense that all persons employed in Government Service (State or Central) were not treated as service candidates till last year. It was only those who were serving in the State of Tamil Nadu in any of the hospitals of the Central Government, State Government, Public Sector Undertakings/ Organisations and local bodies, that were treated as service candidates. Medical Officers serving outside Tamil Nadu, in the hospitals of Central Government or Public Sector Undertakings/Organisations, were not treated as service candidates. A geographical restriction was imposed even among those serving in the Central Government or Public Sector Undertakings, to be eligible for the benefit of the quota till last year. In other words, a person working in the hospital of the ESI Corporation, when posted within the State of Tamil Nadu was made eligible for the quota until last year, though another Medical Officer working in the hospital of the same Corporation posted outside Tamil Nadu, was made ineligible. Such a differentia has already attained the seal of approval from the Apex Court. Therefore, it is not now https://hcservices.ecourts.gov.in/hcservices/ permissible to import the meaning of these words from the provisions of the Constitution. That an Institution which may be treated as a "State" for the purpose of Article 12, need not necessarily be identified with or treated as "the State Government" is made clear by the Apex Court in State of Assam Vs. Barak Upatyaka D.U. Karmachari Sanstha {JT 2009 (4) SC 127}. The word "State" appearing in Article 12 of the Constitution has a different connotation from the same word appearing in Article 309, since the latter is primarily concerned with public services and posts in connection with the affairs of the Union or of the States. If the distinction made between two persons serving in the same Institution, say Railway Hospital or ESI Hospital, on the basis of their place of posting {Tamil Nadu and elsewhere}, is treated as intelligible differentia, there is no reason as to why, the distinction between a person working in the State Services and a person working in other services cannot pass the test of intelligible differentia. After all, the distinction sought to be made must be real and existential. Once it is real and existential, it would pass the first test. 18. In support of his contention that the classification will not satisfy the first test, Mr.R.Muthukumaraswamy, learned Senior Counsel for the petitioners relied upon a decision of the Supreme Court in Deepak Sibal Vs. Punjab University and Another {1989 (1) U.J. (SC) 512}. In paragraph-14 of the said decision, the Supreme Court held that the exclusion of the employees of private establishments will not satisfy the test of intelligible differentia that distinguishes the employees of Government Institutions. But the said case arose out of a rule introduced by the Department of Law of the Punjab University, restricting the admission to the evening classes of the Three year LLB degree, only to regular employees of the Government/Semi Government Institutions. Persons in private employment were totally barred from applying for the evening Law Degree Course. Thus it was a case of 100% reservation of admission to evening Law Degree Course, to State Government employees. The University sought to explain it as intelligible differentia by contending that the State Government employees have no opportunity to attend the day college. But the Apex court pointed out that even private employees suffer the same kind of disadvantage. It is in such a context that the Supreme Court said that there was no intelligible differentia between the two categories of employees. Therefore the said decision is of no assistance. 19. Coming to the second test relating to the nexus with the object sought to be achieved, it is seen from paragraph-3 of the common counter affidavit filed by the respondents that the respondents seek to justify the classification as reasonable, on the basis of certain facts and figures. Upto the year 2005-2006, the State was required to surrender 25% of the total number of seats for the All India Quota. But from the year 2005-2006, it was increased to