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 per orders dated 23-9-2004 in WPMP No.30816 of 2004 *R6 is impleaded as per orders dated 21-12-2004 in WPMP No.33835 of 2004 .. Respondents in both Writ Petitions These Writ Petitions are filed under Article 226 of The Constitution of India to issue a Writ of Certiorari and Writ of Declaration respectively for 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 challenge the 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 only 50% of the seats in the courses offered by it leaving the other 5 0% of seats to be filled up by the State Government through the Single Window System-Common Entrance Examination conducted by it. 3. In W.P.No.16573 of 2004, the petitioner seeks for a declaration that the provisions of G.O.Ms.No.130 dated 17-6-2003 will have no application to admission to Super Speciality courses offered by the petitioner and that such admissions can be made purely on the basis of merits as directed by the Hon'ble Supreme Court in "Dr.Preeti Srivastava and another Vs. State of Madhya Pradesh and others" reported in "(1999)7 SCC 120" (herein after referred to as "Dr.Preeti Srivastava case"). 4. The fifth respondent was impleaded as per the orders dated 23-9-2004 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 Society registered under the Societies Registration Act of 1860. The said institution is stated to be a Research Centre in Oncological Sciences and a Centre of Preventive Oncology. It offers Post Graduate ourses in M.D.( Radiation Therapy) and D.M.R.T. apart from Super Speciality Courses of D.M.(Medical Oncology) and M.Ch.(Surgical Oncology). It is an unaided institution. It is also stated that the said institution does not charge any fees while on the other hand, it pays a stipend of Rs.9000/- per month to its students who are selected to undergo the superspeciality courses. It is also stated that the stipend is not payable to the students from the Army who receive their full salary. The petitioner claims to be the second best National Oncological Centre of India and first in Doctors competence in a survey conducted by a News Magazine. 6. In these Writ Petitions, we are only concerned with the Super Speciality courses, namely, D.M. (Medical Oncology) and M.Ch. ( Surgical Oncology). The petitioner is having three seats in each of the above said 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 courses in the same manner in which they are being filled up in Tamil Nadu Government Colleges. Pursuant to the said G.O.Ms.No.469, dated 18-9-1996, the list of Institutions to which, the said Government Order was applicable was set out in G.O.Ms.No.119 dated 26-3-1997 and the petitioner institution was one of the institutions mentioned in the subsequent G.O.Ms.No.119 dated 26-3-1997. According to the petitioner, based on its representation, the State Government passed orders to the effect that G.O.Ms.No.469 dated 18-9-1996 would not apply to the petitioner by deleting the name of the petitioner institution from the list of the institutions mentioned in G.O.Ms.No.119 dated 2 6-3-1997. 7. After the Constitution Bench Judgment of the Hon'ble Supreme Court reported in "T.M.A.Pai Foundations and Others Vs. State of Karnataka and others" reported in "2002(8) SCC 481" (hereinafter referred to as "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 the Government of India's guidelines regarding the seat sharing between Government and the Management in Unaided Private Medical/Dental Colleges imparting Postgraduate 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 be filled up in the ratio of 50:50 by the State Government and the management of the Institution. (ii) the procedure of selection of students for these seats shall be as being followed for admission of students for these courses in Government Medical Colleges. (iii) ..... (iv) ..... 5. The Director of Medical Education/Secretary, Selection Committee is directed to take action accordingly." 8. When a copy of the above said Government Order was forwarded to the petitioner, the petitioner is stated to have sent a letter dated 17-9-2003 to the first respondent seeking exemption from the said notification in so far as the Super Speciality courses, namely, D.M. ( Medical Oncology) and M.Ch. (Surgical Oncology). While no reply was sent by the first respondent, a letter dated 14-1-2004 was issued by the third respondent to all the Institutions including the petitioner Institution fixing the cut of date for all Under Graduate Courses and Post Graduate Courses for admission of students in the light of the Judgment of the Hon'ble Supreme Court 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 of results by 30th June of the respective years, the first round of counselling/admission was to be concluded by 25th July and the last date for joining the course was fixed as 31st July. Further, in respect of the admissions against the vacancies arising due to any other reason, the last date was fixed as 30th September, 2004. It was, in those circumstances, the impugned order dated 3-2-2004 came to be issued by the third respondent prescribing 50% of the seats to be filled up by the allotment to be made by the State Government. 9. On behalf of the first and third respondents, counter affidavit has been filed by the first respondent countering the various averments contained in the affidavit filed in support of the Writ Petitions. According to the first and third respondent, in the light of the Judgment of the Hon'ble Supreme Court in 'T.M.A.Pai Foundation Case', for all professional courses including even the Super Speciality courses, the admission procedure as 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 first respondent State. 10. The fifth respondent who is in the medical service of the first respondent State is stated to have applied for M.Ch.(Oncology) pursuant to the Prospectus 2004-2005 issued by the third respondent and that in the event of the stand of the first respondent State being countenanced he is likely to be benefitted by securing the seat in M.Ch. (Surgical Oncology) course. 11. The sixth respondent is the candidate who has secured admission in the petitioner institution in M.Ch. Course for which seat, the present conflict has been raised in these Writ Petitions. The sixth respondent is stated to have been called upon to join the course by the petitioner through its communication dated 27-8-2004 and that he joined the course by 1-9-2004. 12. These Writ Petitions were entertained by this Court on 18-6-200 4. While admitting the Writ Petitions, an order of interim injunction was also granted in W.P.M.P.No.19588 of 2004 restraining the respondent State from filling up any seats in the Super Speciality courses in the petitioner institution from the Government quota pending Writ Petition No.16572 of 2004. 13. By a subsequent order dated 18-8-2004, the interim injunction 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, an interim direction was granted on 18-6-2004 to the effect that the petitioner can fill up all the vacancies in the Super Speciality courses purely on the basis of merit as has been done in the previous years. In the said application, orders were passed on 18-8-2004 stating that in the light of the interim direction granted on 18-6-2004, no further orders are necessary. One other relevant factor to be noted is that by order dated 28-9-2004 in these Writ Petitions, it was stated as under:- "It is brought to the notice of the Court that the last date for 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 Writ Petition. Hence, an order has got to be passed that in so far as the fifth respondent is concerned, the last date for admission i.e. 30-09-2004 will have no force. Accordingly, the same is ordered only in so far as the fifth respondent is concerned. Post the Writ Petition on 7-10-2004 at 2.15 p.m." 15. Mr.Sriram Panchu, learned senior counsel appearing for the petitioner contended that hitherto the petitioner was allowed to fill up all the seats in the Super Speciality courses on its own purely on merit, that the restriction imposed in G.O.Ms.No.130 dated 17-6-2004 will be applicable only to the other P.G.Courses, namely, D.M.R.T. And M.D.R.T. and will not apply to Super Speciality courses, that the impugned proceedings dated 3-2-2004 cannot, therefore, alter the settled position and that in the light of the Judgment of the Hon'ble Supreme Court reported in "Dr.Preeti Srivastava case", no such restrictions can be imposed in respect of Super Speciality courses. According to the learned senior counsel, when the petitioner was admitting the candidates to the Super Speciality courses by conducting a rigorous test on an all India basis, the candidates sponsored by the third respondent in particular the in-service candidates cannot be equated to the meritorious candidates selected by the petitioner for being admitted to the Super Speciality courses. The learned senior counsel would contend that even the 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 the ratio rendered by it in its earlier Constitution Bench Judgment in "Dr.Preeti Srivastava case". 16. Mr.K.Subramanian, learned senior counsel appearing for the fifth respondent, contended that the only distinction that one can discern from the Judgment of the Hon'ble Supreme Court is only with reference to professional institutions and non professional institution and therefore, whatever stated by the Hon'ble Supreme Court as regards the procedure to be followed for admission to various Under Graduate courses and Post Graduate courses would equally apply to the Super Speciality courses as well. The learned senior counsel pointed out that the Super Speciality course is nothing but a Higher Post Graduate course and therefore, the same cannot be excluded from the purview of the judicial dictum as regards admission. The learned senior counsel submitted that when once the State Government stipulated in G.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 process of selection made by it and when the fifth respondent had undergone the said process of selection pursuant to the Prospectus 2004-2 005 issued by the third respondent, in the event of the fifth respondent being eligible for being allotted by virtue of his seniority in the merit list, the same cannot be deprived of by the petitioner. The learned senior counsel also submitted that in the light of the order dated 28-9-2004 referred to earlier, the fifth respondent would be entitled to be admitted irrespective of the expiry of the last date of admission, namely, 30-9-2004. 17. In this context, learned senior counsel relied upon the P.G. Medical Education Regulations 2000 issued by the Medical Council of India 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. The learned Addl.Advocate General also submitted that the Judgments in "T.M.A.Pai Foundation case and Islamic Academy of Education cases" have held in no uncertain terms that the admission procedure should be as directed in the said judgments and that Super Speciality course is also a P.G. Course. He also placed before the Court the communication of the third respondent dated 26-7-2004 issued to the Press for the publication/telecast of the merit list for the 3 Years Higher Speciality Courses for 2004-2005, for which, the entrance examination was held on 27-6-2 004 which was released in the web site on 27-7-2004. The learned Addl.Advocate General pointed out that in the said communication, the third respondent while referring to the total number of seats for the Higher Speciality courses also included the two seats available in the petitioner institution, namely, one in D.M.(Medical Oncology) and the other in M.Ch.(Surgical Oncology). He also pointed out that in the merit list for the seats that were available in the Government Medical Colleges, allotment has already been made and for the seats available in the petitioner institution having regard to the interim injunction granted on 18-6-2004, no allotment could be made and that in the event of this Court holding that those seats should be made available for allotment by the State, the same would be done as per the merit list already drawn. 19. Mr.Vellaisamy, learned standing counsel appearing for the second respondent University referred to the judgment of the Hon'ble Supreme Court 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 sixth respondent contended that when merit is the relevant criteria for a Super Speciality course as held by the Hon'ble Supreme Court in 'Dr.Preeti Srivastava case; the criteria as prescribed in Sl.No.50 to 52 of the Prospectus 2004-2005 issued by the State Government if applied that would virtually dilute the ratio laid down in the said Judgment and therefore, the stand of the State Government cannot be countenanced. She placed reliance upon "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 counsel appearing for the petitioner, referred to the judgments of the Hon'ble Supreme Court reported in "2002(1) SCC 428 (AIIMS STUDENTS' UNION versus AIIMS AND OTHERS)", in particular paragraph 59, to point out that there is always a distinction between Post Graduate Medical Course and Super-speciality. In para 59, the Hon'ble Supreme Court while holding that minimum standards cannot be diluted while showing any preference for institutional candidates, has stated "such marginal institutional preference is tolerable at Postgraduate level, but is rendered intolerable at still higher levels such as that of super-speciality". The learned senior counsel further reiterated his contention based on the observations by the Hon'ble Supreme Court in "Dr.Preeti Srivastava case" that a Superspeciality course is distinct and different from a Postgraduate course since the Hon'ble Supreme Court while concluding their decision in para 62, held that at the level of admission to the Superspeciality courses, no special provisions are permissible, they are being contrary to the national interest where merit alone can be the basis of selection. The learned senior counsel would contend that when in the Prospectus issued by the State Government for higher Super-speciality Courses, provision for awarding of marks for inservice candidates itself would dilute the merit based selection and therefore, it would be contradictory to the dictum of the Hon'ble Supreme Court. The learned Senior counsel also pointed that the Prospectus itself confined its scope of selection only to the seats which were specified in Annexure-II to the Prospectus and therefore, the present stand of the respondent-State that the selection made on that basis could be extended to fill up the seats in the petitioner institution cannot be permitted. 22. Having heard the learned counsel for the respective parties, I find that the question that arises for consideration in these Writ Petitions is, as to 'whether the admission procedure adopted by the petitioner Institution in respect of Super Speciality Courses offered by it is valid and can be said to be in consonance with the Judgments of the Hon'ble Suprme Court rendered in "T.M.A.Pai Foundation Case" and "Islamic Academy of Education Case" and Whether the State Government is entitled to sponsor the candidates whose merits was tested pursuant to the stipulations contained in its Prospectus of 2004-2005 in respect of 3 Year High Speciality Courses"? 23. At the out set, it will have to be stated that the reputation of the petitioner institution as claimed by it in the field of administering treatment to the cancer patients and also imparting education in the field of Oncology can never be doubted. In fact, it is common knowledge that any person affected by cancer in this part of the State will immediately think of the kind of treatment that is being extended in the petitioner institution. It is thus a well known fact that the petitioner institution is a Premier Institution in the field of Oncology. According to the petitioner, it makes the selection for the Super Speciality courses as well as the other P.G.Courses on an all India basis by conducting a rigorous test of the candidates. It is also not in dispute that in the process of selection, no preference is shown to anybody. Therefore, there can be no two opinion that the selection made by the petitioner for the four different courses available in its institution is far superior and cannot be equated to the method of selection made by the third respondent as per the Prospectus issued by it. In this context, it will not be out of place to refer to the letter dated 5-10-2004 placed before this Court by the learned Addl.Advocate General said to have been submitted by one Dr.P.Arul Raj who is stated to have been selected by the State government for one of the Super Speciality course, i.e., M.Ch.(Surgical Oncology) in the Government Institution. The said candidate has expressed his desire that but for the pendency of this Writ Petition, he would have preferred the Cancer Institute seat in the foremost and that in the event 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 cancer treatment and education. 24. Even in the previous years, it is not disputed that the petitioner institution was permitted to carry on its admissions for all the seats on its own in the Super Speciality courses. In fact, it was brought to the notice of this Court that by order dated 13-6-1997, the first respondent itself deleted the petitioner institution from the list of institutions mentioned 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 doubt that the petitioner institution and its admission process to the various P.G.Courses and Super Speciality courses would run far ahead of any other test or 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 selection process conducted by it for such Super Speciality courses, the question that remains to be considered is as to 'whether such a special status enjoined and retained by the petitioner can be interfered with in the present prevailing situation'. 25. For considering the said question, a reference to the judgment 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 be stated. 26. In 'Dr.Preeti Srivastava case', the question that was posed for consideration was stated in para 2 as under: "The question is whether apart from providing reservation for admission to the Post-Graduate Courses in Engineering and Medicine for special category candidates, it is open to the State to prescribe different admission criteria, in the sense of prescribing different minimum qualifying marks, for special 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 to the Post Graduate Medical Courses, it is permissible to prescribe a lower minimum percentage of qualifying marks for the reserved category candidates as compared to the general category candidates. We do not propose to examine whether reservations are permissible at the Post Graduate level in medicine. That issue was not debated before us, and we express no opinion on it. We need to examine only whether any special provision in the form of lower qualifying marks in the PGMEE can be prescribed for the reserved category." 28. In para 22 of the above said Judgment, the Hon'ble Supreme Court observed as under: "22. ....... At the level of higher post-graduate university education, however, apart from the individual self interest of the candidate, or the national interest in promoting equality, a more important national interest comes into play. The facilities for training or education at this level, by their very nature, are not available in abundance. It is essential in the national interest that these special facilities are made available to persons of high calibre possessing the highest degree of merit so that the nation can shape their exceptional talent that is capable of contributing to the progress of human knowledge, creation and utilisation of new medical, technical or other techniques, extending the frontiers of knowledge through research work-in fact everything that gives to a nation excellence and ability to compete internationally in professional, technical and research fields." 29. It will also be appropriate to refer to what has been stated in paras 23 and 24 of the above said Judgment, which reads as under: "23. This Court has repeatedly said that at the level of superspecialisation there cannot be any reservation because any dilution of merit at this level would adversely affect the national goal of having the best possible people at the highest levels of professional and educational training. At the level of a Super Speciality, something more than a mere professional competence as a doctor is required. A super-specialist acquires expert knowledge in his speciality and is expected to possess exceptional competence and skill in his chosen field, where he may even make an original contribution in the form of new innovative techniques or new knowledge to fight diseases. It is in public interest that we promote these skills. Such high