CWP No. 2056 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 2056 of 2011(O&M) Date of decision: July 13, 2011 Dr. Balvinder Singh and others ...Petitioners Versus State of Punjab and others ...Respondents CORAM:- HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. B.S. Sewak, Advocate, for the petitioners. Mr. Suvir Sehgal, Additional Advocate General, Punjab, for respondents No. 1,3 and 4. Mr. K.S. Dadwal, Advocate, for respondent No.2. 1. To be referred to the Reporter or not ? 2. Whether the judgment should be reported in the Digest ? GURDEV SINGH, J. This petition filed under Article 226 of the Constitution challenges the constitutional validity of Clause 13 (a) (i) of the notification dated 10.1.2011 issued by the State of Punjab, Department of Medical Education and Research, which forms part of the prospectus issued by the Baba Farid University of Health Sciences for conducting Post Graduate Entrance Test-2011 (Annexure P/1), being ultra vires Article 14 of the Constitution. The said clause prescribes the eligibility criteria for 60% seats for Post Graduate Degree for PCMS/PCMS (Dental)/PDES and only those PCMS/PCMS (Dental) doctors are eligible who have been left with CWP No. 2056 of 2011 2 minimum 10 years of service after completion of Post Graduate Course. The petitioners have further sought a writ of mandamus commanding the respondents-University to accept their admission forms and allow the petitioners in the entrance examination to be conducted for the Post Graduate Courses and to pursue the courses, if succeed. The petitioners joined the Department of Health Services as PCMS doctors from 1991 to 1996, after having been selected through Punjab Public Service Commission. They were working on regular basis and have sufficient rural service to their credit. Admissions to various undergraduate and post-graduate courses in the medical science in the affiliated institutions of the respondent-University are made on merit basis by conducting entrance test. Notification dated 10.1.2011 was issued by the Government of Punjab notifying admissions to post-graduate degree/diploma courses for the year 2008 onwards in the Health Sciences Institutions in the State of Punjab and the respondent-University was authorized and directed to conduct the Common Entrance Test (CET) known as PGET 2011. Accordingly, the prospectus (Annexure P/1) was issued by that University for admission by way of entrance test to MD/MS/PG Diploma, MDS and DM/M.Ch. Courses. As per notification dated 10.1.2011, 50% of the total seats in such institutions are to be filled by the Government of India through competitive entrance test to be conducted on all India basis, whereas the remaining seats are to be filled through PGET 2011. 60% of those seats are to be filled from amongst eligible PCMS/PCMS (Dental)/PDES in-service doctors, who have completed minimum period of three years of rural service or minimum three years service in Punjab Dental Education Service. They are further required CWP No. 2056 of 2011 3 to have minimum compulsory service of 10 years left after completion of three years post-graduation course. The petitioners claim that they fulfill all the conditions except the condition laid down under Clause 13 (a) (i) (a). It has been pleaded by the petitioners that the said condition has been introduced with a view to restrain them and other similarly situated persons from appearing in the entrance test. Earlier also some of the doctors were refused the NOC by the Department to join the post-graduate course. However, after directions were issued by this Court, they were allowed to join. The orders of this Court were challenged by filing SLP Nos. 29693-29695 of 2008 and the Hon'ble Apex Court allowed the doctors to continue with their courses. The petitioners also submitted that they have 8 to 11 years more service to their credit and they can still serve the society for 5-8 years after completing the course. Such condition has been introduced by the Punjab Government for the first time. Previously there was a condition of furnishing a bond in the sum of `10 lakhs, undertaking not to leave the service for 10 years, after completion of the post-graduate course. That condition was challenged in CWP No. 8340 of 2009 titled Dr. Gobind Tondon & others Versus State of Punjab and others. Notice of motion was issued for 31.7.2009 and it was directed that the writ petitioners in that writ petition shall be allowed to join the course without insisting furnishing of 10 years bond and that they were liable to furnish the bond only for rest of the period of their service. It has been urged that the impugned condition is violative of Article 14 of the Constitution, as it amounts to creating a classification which is not on an intelligible differentia but is based on length of service. CWP No. 2056 of 2011 4 It has no nexus to the object sought to be achieved, which is to have more meritorious candidates, who are better doctors and can provide better health care to the society at large. The petitioners have claimed that they served the society in the field of health care with dedication, sincerity and honestly. However, instead of recognizing their services, the State has punished them without any fault by prescribing the impugned condition. In fact, the State Government has put up a full-stop for them to achieve high standard of professional expertise and at the same time also caused loss to the society in the field of health care. Detailed written statement was submitted in form of affidavit of Director Health & Family Welfare. He deposed therein that PCMS doctors admitted against 60% quota get full salary during the three years course of post-graduation, which comes to ` 30-35 lakhs per doctor. The said concession has been extended in order to ensure that Health Department gets the services of specialist doctors for a reasonable period after completion of post-graduate course. Previously such like doctors were required to execute a bond of ` 2 lakhs for serving the department for a minimum period of 5 years, as per circular dated 13.5.1996. The same was amended by another circular dated 30.7.2007 increasing the amount to ` 10 lakhs and service period to 10 years. However, the said circular could not be reflected in the prospectus for the year 2008, 2009 and 2010 and the unrevised circular continued to be incorporated therein. Circular dated 30.7.2007, was revised in the shape of comprehensive instructions dated 8.1.2010 and thereafter, the same was incorporated in the prospectus of 2011, issued by the respondent-University. It has been asserted that the condition of 10 years service after completion of post-graduate course, is CWP No. 2056 of 2011 5 not arbitrary or unreasonable, especially in view of huge concession in terms of earmarked 60% quota and making of payment of full wages for three years. In fact, in most of the government departments, the employees are not allowed to go for higher studies or long term training courses at government expenses beyond 45 years of age or so. The petitioners would not be left with 10 years of service after completion of the post-graduate course and, as such, the expenditure of ` 35 lakhs on each of them would be unjustified. The issue involved in the present writ petition is different from what was detailed in the SLP and Civil Writ Petition No. 8340 of 2009. The impugned condition was not incorporated in the prospectus for the year 2008 and 2009, whereas the same has now been incorporated in the prospectus for the year 2011. The impugned condition is not unreasonable and such restrictions have been imposed in public interest. It has been submitted by the learned counsel for the petitioners that previously the condition was that a person from PCMS/PCMS (Dental) must be left with five years of service after completion of post-graduate course and that condition has now been changed to 10 years, which can not be said to be reasonable. It amounts to making of classification amongst the similarly situated doctors and that classification cannot be said to have any nexus with the object sought to be achieved. Rather, this classification would amount to making ineligible the meritorious candidates, who are better doctors and can serve the society well after they would achieve specialization by means of post-graduate course. Thus, the impugned condition is hit by Articles 14 (1) and 16 of the Constitution and liable to be set aside. He has also tried to refer to the orders passed by the Hon'ble Supreme Court in SLP No. 29693-29695 of 2008, vide which the doctors, CWP No. 2056 of 2011 6 who were not left with 10 years of service after completion of post-graduate course, were allowed to join those courses. On the other hand, learned State counsel and learned counsel for the respondent-University have contended that no such unreasonable classification has been made by introducing the impugned condition. The condition has been introduced in order to safeguard and protect the interest of the State which is to incur more than ` 35 lakhs on each of the doctors doing post-graduate course, while in-service. There is nothing wrong in case the Government protects its interest by providing the condition that the concerned doctor must be left with 10 years service after completion of post-graduate course so that the benefit of his specialization may be enjoyed and used by the society for a number of years. They also tried to contend that there is tendency amongst the doctors and specialized doctors to seek voluntary retirement for doing private practice, which is more lucrative than the government job and that deprives the State of their services. The chances of seeking voluntary retirement are more for the doctors, who undertake post-graduate course, which is a course of specialty. No one can be allowed to enrich himself at the cost of the State without serving it adequately. We have heard learned counsel for both the sides. It is well settled that the Courts should prima facie lean in favour of constitutionality and support the legislation, if it is possible to do so on any reasonable ground and it is for the party who attacks the validity of the legislation to place all the materials before the Court, which may go to show that the enactment is unconstitutional. The burden of showing that the classification rests on arbitrary and not reasonable basis is upon the CWP No. 2056 of 2011 7 person, who impeaches the enactment. It is for the party who challenges the constitutionality of the enactment to show that the State has violated the true principles of classified legislation and exceeded the limits of reasonableness. In order to sustain the presumption of constitutionality, the Court may take into consideration the matters of common knowledge, matters of common report and the history of the times and may assume every state of facts which can be conceived existing at the time of legislation. According to the learned counsel for the petitioners, the classification so made by the impugned condition is unreasonable and arbitrary, as it prevents the eligible, willing and intelligent doctors from doing the post-graduate courses, who have been left with more than five years and less than 10 years of service after completion of such courses. It cannot be said that this condition is unreasonable or is arbitrary. It has been introduced to achieve a purpose which would be in the interest of the State and Society. In this country, most of the citizens are living below the poverty line and for the medical assistance and treatment, they cannot afford costly nursing homes or private hospitals and they get the necessary medical aid and treatment from Government hospitals and dispensaries. The State always make an endevour to make available, doctors having specialty in different fields in the Government hospitals and dispensaries. In view of that, it has reserved 60% seats for PCMS/PCMS (Dental) in the post- graduate courses. The doctors who get admission in those courses are allowed to complete the same at the expense of the State and as per the affidavit filed by the Punjab Government it incurs ` 30-35 lakhs in respect of each such doctor. By introducing that condition, the State wants that CWP No. 2056 of 2011 8 such specialized doctors should be available for serving the general public for more years. They cannot be allowed to do post-graduate courses at the State expense when they are left with service of a small number of years after completion of those courses. It is a matter of common knowledge that the doctors in the service of Punjab Government are seeking voluntary retirement in order to resort to private practice, which is very lucrative and thus there is scarcity of doctors and particularly of specialized doctors. The chances of such like doctors seeking retirement would be more as specialty always gives added advantage in the private practice. The rational behind the impugned condition is that the doctors-in-service should do their post-graduate course in the prime of their youth and not at the time when they are left with less than 10 years of service. The principles of proportionality and reasonableness would impel us to think that there is no violation of Articles 14 and 16 (2) of the Constitution. Usually a person completes his MBBS at the age of 23-25. He, after joining PCMS, fulfills the other conditions for getting admission in post-graduate course after about 5-7 years of his service. Thus, he becomes eligible for admission against 60% quota in the post-graduate course by the time he completes the age of 32-35 years. As per the impugned condition, he remains eligible to compete for admission till he attains the age of 45 years. Thus, he always have a number of chances to appear for entrance test. The classification which has been made by means of the impugned condition is not unreasonable or arbitrary, but it has nexus with the purpose to be achieved. As already said above, the purpose to achieve is that in- service doctors doing the post-graduate course at the State expense remain CWP No. 2056 of 2011 9 available for doing the government job for more ten years and not that by doing the post-graduate course at the State expense, they leave the job and start private practice. This very condition was under the scanner of the Hon'ble Supreme Court in the above referred SLP. The following observations were made therein:- “On the facts and circumstances, there is no need to consider the validity of the correctness of the circular dated 30.7.2007 in these appeals, as the same is held to be inapplicable to 2008 admissions. We make it clear that the non-applicability of the amendment memo dated 30.7.2007 is only with reference to 2008 admissions. We do not express any opinion about its applicability with reference to the admissions for subsequent years.” No observation was made that the condition was arbitrary or unreasonable. What weighed for making this condition inapplicable for 2008 admission with the Supreme Court was that the same was not mentioned in the prospectus and, as such candidates were not made aware of the same. In view of what has been stated above, we are of the considered opinion that the impugned condition is not unconstitutional, as what it intends to achieve is very much reasonable and is not at all arbitrary. The writ petition is dismissed accordingly. (M.M. KUMAR) (GURDEV SINGH ) JUDGE JUDGE July 13, 2011 prem CWP No. 2056 of 2011 10