HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos.13224, 21877, 21916, 22092, 22093 and 22094 of 2010 DATE:30.09.2010 Between : Dr. Muralidhar Gullipalli & others. …….Petitioners And Nizam’s Institute of Medical Sciences, Panjagutta, Hyderabad, rep. by its Director & others. …..Respondents. HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos.13224, 21877, 21916, 22092, 22093 and 22094 of 2010 COMMON ORDER : As common questions of law and fact are involved in all these writ petitions, they are heard together and are being disposed of by this common order. For the purpose of disposal of these writ petitions, I refer to the facts as arise in W.P.No.21916 of 2010. 2. This writ petition is filed, seeking for a writ of mandamus; (1) declaring the notification issued by the 1st respondent-Nizam’s Institute of Medical Sciences, in Rc.No.74/EC/SS/2010, dated 10.05.2010, to the extent of reserving seats in favour of the in-service candidates, as illegal and arbitrary; (2) to declare that respondent No.3 is not entitled for admission into D.M (Medical Oncology), and consequently, to set aside the same; (3) to direct the respondents to consider and allot D.M (Medical Oncology) seat to the petitioner; and (4) to pass such other order or orders in the interest of justice. 3. In this batch of cases, the core issue which falls for consideratin is, whether, in filling up the seats in super-speciality medical courses, namely D.M. and M.Ch., can there be a separate number of seats earmarked for in-service candidates, and further question is, whether in making admissions to such courses, the procedure adopted by the Nizam’s Institute of Medical Sciences is in accordance with the norms and standards notified by the Medical Council of India, constituted under the provisions of the Indian Medical Council Act, 1956. 4. The State of Andhra Pradesh has enacted Act.13 of 1989 i.e. Nizam’s Institute of Medical Sciences Act, 1989, an Act to provide for establishment of Nizam’s Institute of Medical Sciences, Hyderabad, and to confer the status of University on such institution, in the matters connected therewith and incidental thereto. The Nizam’s Institute of Medical Sciences, Hyderabad is notified as such, by the Government of Andhra Pradesh, in exercise of powers under Section 3 of the Act. As evident from Section 4 of the Act, the primary objects of the Institute are; (a) to create a centre of excellence for providing medical care, educational and research facilities of high order in the field of medical sciences in the existing super-specialities and such other super-specialities as may develop in future, including continuing medical education and hospital administration; (b) to develop patterns of teaching in post-graduate level and in super-specialities so as to set a high standard of medical education; (c) to provide for training in para-medical and allied fields, particularly in relation to super-specialities; (d) to function as a referral hospital and (e) to provide for post-graduate teaching and conduct of research in the relevant disciplines of modern medicine and other allied sciences, including inter-disciplinary fields of Physical and Biological sciences. The authorities of the Institute comprise of the Governing Council, The executive Board, the Academic Council and the Finance Committee. Under various other provisions, the Executive Board, Governing Council, Academic Council and Finance Committee are given specific powers. There is also a provision under Section 40 of the Act, which empowers the Governing Council, with the prior approval of the Government, to make Regulations in connection with the matters and powers of the Institute on various aspects, including for award of Degrees, Diplomas and other academic distinctions and titles, which may be granted by the Institute. 5. The 1st respondent-Nizam’s Institute of Medical Sciences has issued admission notification, dated 10.05.2010, in Rc.No.74/EC/SS/2010, inviting applications from the eligible candidates for the entrance test for admission into D.M/M.Ch. super-speciality courses for the academic year 2010. In this batch of cases, concern is only with regard to the courses in D.M (Cardiology), D.M (Neurology), D.M (Nephrology) and D.M (Medical Oncology). The names of courses, number of seats in regular quota and number of seats earmarked to in-service candidates, the qualifications prescribed and duration of courses, as mentioned in the notification, with regard to the aforesaid courses, read as under; Sl.No. Name of the Course Duration Prior qualification No.of seats in regular quota No.of seats earmarked for in- service quota 1 DM (Cardiology) 3 years MD Gen.Medicine/ Paediatrics/ Respiratory Medicine 3 3 2 DM (Neurology) 3 years MD Gen.Medicine/Paediatrics 4 2 3 DM(Nephrology) 3 years MD Gen.Medicine/Paediatrics 1 1 4 … … … … … 5 DM(Medical Oncology) 3 years MD Gen.Medicine/Paediatrics/Radiotherapy 2 1 6. As per the eligibility criteria notified, admissions to the courses shall be regulated as per the A.P. Educational Institutions (Regulation of Admission) Order, 1974, popularly known as ‘The Presidential Order’, and instructions issued by the Government for implementation of the said order in G.O.P.No.646, dated 10.07.1979. In the eligibility criteria, a separate criteria is notified for candidates eligible under in-service quota. As per Regulation V(4), ‘In-Service candidate’ means, a candidate who has put in; (a) two years of continuous regular tribal service (or) (b) three years of continuous regular rural service (or) (c) six years of continuous regular service. Under Regulation VII, the method of selection is notified, as per which, the selection of candidates for D.M/M.Ch. three year-courses will be made on the basis of entrance test consisting of 90 multiple choice questions in the concerned speciality, carrying 90 marks, to be answered in 90 minutes duration, and each subject will have a separate paper. It is also notified that 50% is the minimum marks for qualification, and the seats earmarked for regular and in-service candidates are not inter-changeable even if there is any vacancy. 7. In the writ petition, the impugned notification is questioned to the extent of quota earmarked to the in-service candidates and selections made, selecting respondent No.3 in the subject of D.M (Medical Oncology). The other writ petitions in the batch relate to the other subjects in the same super-speciality course of D.M for the specialities of Cardiology, Neurology and Nephrology. In the affidavit filed in support of this writ petition, it is stated that the petitioner has completed his MBBS course from Andhra Medical College, Visakhapatnam in the year 2005 and did his post-graduation in M.D (General Medicine) during the year 2006-09 from Rangaraya Medical College, Kakinada. In response to the notification issued by the 1st respondent-Institute, he has applied for D.M (Medical Oncology), which is a three-year course. He appeared for the written examination with hall-ticket No.8305 and secured 69 marks, and in the merit list published by the 1st respondent-Institute on 28th of August 2010, his name stands at Serial No.3. It is the case of the petitioner that having regard to the marks secured by him and his rank in the merit list, which is at serial No.3, although he is entitled for admission into the said course, the respondents have selected the 3rd respondent herein, as notified in the provisional selections, who has merely secured 51 marks and who is at serial No.7 in the merit list. It is stated that the said selection is on the ground that he is an in- service candidate, as such, he is selected in the quota earmarked for in- service candidates. 8. When the notification was issued inviting applications by the 1st respondent-Institute on 10.05.2010, at first instance, a writ petition in W.P.No.13224 of 2010 was filed, which came up for admission on 14.06.2010 and thereafter, it was adjourned for a couple of times, and by an order dated 29.06.2010, passed in the said writ petition, this Court, while permitting to proceed with the written test, issued directions not to finalise the admissions until further orders. After filing of counters, another order was passed on 28.07.2010, directing the 1st respondent-Institute to consider the issue of quota for in-service candidates in the light of the letter issued by the Medical Counsel of India on 30th June 2010, issued in Letter No.MCI-23(1)/2010/15385. Thereafter, liberty is given to fill up the seats. At that stage, in view of the urgency expressed by the counsel appearing for the parties, the writ petitions are directed to be listed for hearing before this Court. 9. The impugned notification to the extent of earmarking seats for in-service candidates, is questioned in the writ petition, alleging that providing such quota is unconstitutional and ultra vires. It is stated that the respondents have no power or authority to earmark the seats even for in-service candidates, so far as the super-speciality courses are concerned, and to make admissions, contrary to the regulations framed under the Medical Council of India Act, 1956. It is stated that the sacrifice of merit at the stage of super-speciality is a prospect fraught with disastrous consequences as the medical incompetence to handle serious diseases would endanger the scopes of lives, as such, it offends Article 14 of the Constitution of India. It is stated that such a procedure adopted by the respondents not only offends equality clause under Article 14 of the Constitution of India, but it is in violation of the authoritative pronouncements of the Apex Court in Dr.Jagdish Saran Vs. Union of India[1], in Dr. Pradeep Jain Vs. Union of India[2], in Sourabh Chaudri Vs. Union of India[3], in Dr.Gulshan Prakash Vs. State of Haryana[4] and in the judgment of the Constitutional Bench of the Supreme Court in the case of Dr.Preeti Srivastava Vs. State of Madhya Pradesh[5]. It is also stated in the affidavit that in view of the clarification given by the Medical Council of India, there is no provision of quota in P.G. super-speciality courses as per the Medical Council of India Regulations and also as per the Rules framed by the Government of Andhra Pradesh in G.O.Ms.No.740, dated 22.11.1983, titled as “The A.P. Regulation of Admission to Super Specialities in the Medical Colleges Rules, 1983”, framed in exercise of powers under Section 3 (1) read with Section 15 of The Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983. As per the Regulations notified by the Medical Council of India, which is the Apex body on the subject, in the absence of any provision for separate quota to in-service candidates, there is no authority or jurisdiction for the 1st respondent-Institute to earmark the seats separately for the in-service candidates. It is also stated that having regard to the nature of the courses, which are at highest level, merit alone should be the criteria and departure from such a procedure, runs contrary to the National interest to tap meritorious candidates for super- speciality courses. 10. At first instance, a separate counter affidavit is filed in W.P.No. 13224 of 2010, but when the provisional selection list was published and other writ petitions are filed impleading the selected candidates by seeking relief to set aside such selections, a common counter affidavit is filed in W.P.Nos.21877, 21916, 22092, 22093 and 22094 of 2010. From the stand point of view, the stand of the respondents is the same in all the writ petitions, as such, I refer to the common counter affidavit filed in this batch of cases. In the counter affidavit, while referring to the constitution of the 1st respondent- Institute under the provisions of the Nizam’s Institution of Medical Sciences Act, 1989, and the various provisions and powers of the authorities, namely the Governing Council, Executive Board, the Academic Council and the Finance Committee, it is stated by the respondents that the 1st respondent-Institute is not only an authority and instrumentality under the State, as defined under Article 12 of the Constitution of India, but also an agency under the State Government, as such, the State has power to lay down the policy matters relating to health, education including medical education and to control its functions. It is stated that it has been always the endeavour of the State of Andhra Pradesh as well as the 1st respondent-Institute to see that the medical facilities and benefits of super-speciality medical courses are extended to the remotest corners of the State. It is submitted that the State Government, as a matter of fact, is a major facilitator in providing medical services to the citizens at large, as such, the State Government is intending to train its Doctors in super-speciality courses so that they not only discharge their functions in the State, helping the poor and needy, but also render services in teaching colleges. It is stated that the State Government experience lack of well-trained Doctors in super-speciality courses, which impaired not only the medical services being rendered by the State Government, but also affected functioning of the teaching colleges in the State. It is averred in the counter that as the Nizam’s Institute of Medical Sciences, being an instrumentality of State, has to adhere to the policy of the State, therefore, a conscious decision has been taken by the State to provide accommodation for the in-service Doctors for getting themselves equipped with super-speciality courses. Having regard to the above objective and intention, the 1st respondent-Institute seeks to justify the quota reserved for in-service candidates. 11. Referring to a Committee constituted by the Government to examine the issue, it is stated that the Committee, by addressing a letter, dated 02.02.2010, to the Principal Secretary to Government, HM & FW Department, recommended 30% of the total available seats in each super-speciality course for providing quota to in-service candidates. The Committee also recommended to examine the possibility of increasing the in-service quota to the extent of 50% in future years. However, in paragraph 14 of the counter, it is stated that the recommendations of the Committee are placed before the Government and appropriate decision in the matter will be taken by obtaining necessary views from the persons and officers concerned. It is stated that the State Government is contemplating to take steps as per the recommendations of the Committee from the next academic year, but however, it may not prevent the 1st respondent-Institute from providing quota for in-service candidates from this academic year. It is stated that as the Nizam’s Institute of Medical Sciences is an autonomous body, its Executive Board took a decision to provide quota for in-service candidates from this year. Counter specifically pleads that not providing seats in favour of service candidates in the Government-run teaching hospitals, would not in any way prevent the Executive Board of the Nizam’s Institute of Medical Sciences to take a decision for earmarking seats for in-service candidates. A reference is also made to the Post-graduate Medical Education Regulations, 2000, framed under the Medical Council of India Act, 1956 and also to the 52nd meeting of the Executive Board of the Nizam’s Institute of Medical Sciences, held on 02.02.2009, wherein, a decision was taken to increase the Post-graduate seats in broad and super- speciality courses for the academic year 2010-11. Referring to the increased number of seats in various subjects, it is stated that the 1st respondent-Institute proceeded further in terms of the policy of the State in defining the criteria for eligible service candidates under in-service quota as the one who has put in two years of continuous regular tribal service or three years of continuous regular rural service or six years of continuous regular service. Referring to the object of the State to take steps for improving the rural health, it is stated that a conscious decision has been taken without reducing the number of seats, which were hitherto available for non-service candidates. Referring to the provisions under Article 15 of the Constitution of India, it is admitted that reservations are not provided under the said provisions so far as post-graduate medical and super-speciality courses, but it is stated that so far as in-service candidates are concerned, they constitute a class, which fits into the policy of the State, which is intended to improve the Government hospitals, as such, it cannot be termed as unconstitutional. Reference is also made to the decision of the Executive Board of the Nizam’s Institute of Medical Sciences, which has taken a decision to provide quota for in-service candidates while filling up the post-graduate medical and super-speciality courses. In the counter, it has also been averred that the State could always regulate the admission policy with regard to post-graduate and super-speciality medical courses while adhering to the standards determined by the Medical Council of India. In the counter, while defending the quota for such in-service candidates, it is stated that the admissions have been made, however, subject to the result of the writ petitions, as such, the writ petitions are to be dismissed as there is no infraction on the rights guaranteed to the petitioners. 12. A separate counter affidavit is filed by the Deputy Secretary on behalf of the Medical Council of India, wherein, it is stated that the Medical Council of India is the Statutory authority constituted by the Central Government under an Act of Parliament i.e. the Indian Medical Council Act, 1956, with an objective inter alia, to regulate medical education in the country and to formulate Regulations and guidelines with regard to standards and conduct of medical education in India. It is stated that the aforesaid legislation empowers the Medical Council of India to prescribe standards in medical education and to frame Regulations on the said subject, as such, the Regulations are framed by Medical Council of India under Section 33 of the Act, with the prior approval of the Central Government. It is stated that all such Regulations are Statutory in character and are held to be mandatory in view of the judgment of the Hon’ble Supreme Court in the case of Medical Council of India Vs. State of Karnataka[6] and in the case of Dr. Preeti Srivastava (5 supra). Reference is also made in the counter, to the effect that the Post-Graduate Medical Education Regulations, 2000 were approved by the Government of India on 22.05.2000 and published in the gazette on 07.10.2000. Reference is also made in the counter with regard to the amendments made to the said Regulations, by amendment, dated 17.11.2009, by which, a proviso was added to Clause 9(2)(d) of the Regulations. It is also stated that in response to a letter addressed by the Nizam’s Institute of Medical Sciences, the Medical Council of India, vide its letter No.MCI-23(1)/2010/15385, dated 30th June 2010, addressed to the Nizam’s Institute of Medical Sciences, Hyderabad, inter alia, stated that a proviso is added to Regulation 9(2)(d) , and in view of the same, no quota is available in post-graduate degree (M.D/M.S and Super- speciality courses) for Medical Officers in Government service. In paragraph 20 of the counter, it is stated that all the admissions in any medical college in P.G. courses are to be made in terms of the Post-graduate Medical Education Regulations. Counter also refers to the admission schedule, by which time the course is to be commenced at the stage of post-graduation and super- speciality courses. 13. A separate counter affidavit is also filed by Sri P.Girikrishna, appearing for respondent No.3 in W.P.No.21916 of 2010, wherein, it is stated that in response to the notification, dated 10.05.2010, he has applied for D.M. (Medical Oncology) three-year course, and he has secured 51 marks in the written examination and came up for selection in the service quota provided for Oncology. It is further stated that the petitioners, having appeared in the examination, cannot question the selection when he has not come up for selection in the open category seats. While stating that merit cannot be judged only with reference to test and it includes experience of the Doctors, has prayed for dismissal of the writ petition. 14. Some of the in-service Doctors have got themselves impleaded as party- respondents by filing implead petition in W.P.No.13224 of 2010. In the affidavit filed in the said implead petition, while referring to the notification issued by the 1st respondent-Institute, a reference is made to the letter addressed by the Medical Council of India to the Nizam’s Institute of Medical Sciences, and it is stated that if it is appreciated in true perspective, there is no negative covenant to manifest that the autonomous institutions like the Nizam’s Institute of Medical Sciences and the State Government are debarred from introducing quota for in-service Doctors. It is stated that when the Regulation is silent about in- service Doctors quota in the super-speciality courses, it is to be deemed that the authority do have the right to introduce the quota for in-service candidates. In the affidavit, further reference is made to a judgment of the Apex Court in the case of K.Doraiswamy Vs. State of Tamilnadu[7] and it is pleaded that the State Governments do have discretion in the matter of providing quota to the service Doctors. Reference is also made to the provision of quota in other States and it is further averred that quota for service candidates cannot be equated with communal reservations as provided under Article 15(4) of the Constitution of India. A reference is also made to the judgment of a Division Bench of this Court in W.P.No.5382 of 2006, dated 21.04.2006, which approved such provision of quota at post-graduate level. Counter further states that the quota provided to non-service students and also the in-service Doctors are distinctly separate, as such, the petitioners cannot be said to be aggrieved in view of the notification issued by the Nizam’s Institute of Medical Sciences, earmarking separate seats for in-service candidates. 15. A reply affidavit is also filed on behalf of petitioners, wherein, it is stated that the State Governments have no power to take independent decisions with regard to standards to fill up the posts in post-graduate and super-speciality courses, unless there is a concurrence from the Medical Council of India, constituted under the Medical Council of India Act, 1956. Referring to the averments made in the counter affidavit, it is stated that the stand of the respondents is contradictory, as at one point of time, they have taken a stand that no decision has been taken by the Government, and inspite of the same, the 1st respondent-Institute has taken a decision, referring to a policy of the State Government. Further, it is stated that the letter, dated 02.02.2010, addressed by the Director of Medical Education to the Principal Secretary to Government, wherein the recommendations of the Committee were conveyed, cannot be equated to the decision of the Government, as such, in the absence of any decision by the Government, there is no basis for the decision taken by the 1st respondent-Institute. It has been alleged that subsequent to the notification, dated 10.05.2010, issued by the Nizam’s Institute of Medical Sciences, Dr.N.T.R. University of Health Sciences, A.P., Vijayawada, has issued a notification, dated 06.07.2010, offering admissions to super-speciality courses in the Government medical colleges and other institutions, but there is no quota or preference to in-service Government Doctors. A reference is also made to another notification issued by Sri Venkateswara University of Medical Sciences (SVMS), dated 26.04.2010, which is also issued without earmarking any seats to the in-service candidates. It is stated that in the absence of any decision by the State Government, the 1st respondent i.e. the Nizam’s Institute of Medical Sciences unilaterally cannot take a decision for implementation of quota for in-service candidates, and the same is contrary to law and is illegal. It is stated that segregation of available seats, which are being offered for admission to super-speciality courses to only certain class of persons, amounts to reservation and as such, it runs contrary to the law laid down by the Hon’ble Supreme Court in various decisions. Referring to the decision of the Hon’ble Supreme Court in the case of State of Punjab Vs. Dayanand Medical College and Hospital[8], it is stated that it is not open for the Universities or Governments to dilute the standards set out by the Medical Council of India. Referring to the recent amendments made to the Medical Council of India Regulations, it is alleged that the judgments