IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :- 16.11.2010 Coram The HONOURABLE MR.M.Y.EQBAL THE CHIEF JUSTICE and The HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.A.Nos.1876 & 1907 of 2010 & M.P.Nos.1 & 2 of 2010 W.A.No.1876 of 2010 1.The State of Tamil Nadu, Rep. By its Secretary to Government, Health and Family Welfare Department, Fort St. George, Chennai – 600 009. 2.The Selection Committee, Rep. By its Secretary, Directorate of Medical Education, No.162, Periyar E.V.R.High Road, Kilpauk, Chennai – 10. ... Appellants/Respondents 1 & 2 vs. 1. Dr.E.Indhumathi ...Respondent / Petitioner 2. Dr.C.Vasudevan ... Respondents/ 3rd Respondent PRAYER : Writ appeal filed under clause 15 of the letters patent to set aside the order dated 17.08.2010 passed in W.P.No.15078 of 2010. W.A.No.1907 of 2010 Dr.C.Vasudevan ... Appellant/ 3rd Respondent vs. 1. Dr.E.Indhumathi ...1st Respondent/ Petitioner 2.The State of Tamil Nadu, Rep. By its Secretary to Government, Health and Family Welfare Department, Fort St. George, Chennai – 600 009. https://hcservices.ecourts.gov.in/hcservices/ 3.The Selection Committee, Rep. By its Secretary, Directorate of Medical Education, No.162, Periyar E.V.R.High Road, Kilpauk, Chennai – 10. ...2 & 3rd Respondents/ 1st and 2nd Respondents PRAYER : Writ appeal filed under clause 15 of the letters patent to set aside the order dated 17.08.2010 passed in W.P.No.15078 of 2010. For Appellant :Mr.P.Wilson AAG assisted by Mr.G.Sankaran Spl. Govt. Pleader in W.A.No.1876/2010 Mr.A.Thiyagarajan Sr. Counsel for Mr.D.Veerasekaran in W.A.No.1907/2010 For Respondents :Mrs.Nalini Chidambaram Sr. Counsel for M/s.Kavitha Deenadayalan for R1 in W.A.Nos.1876 & 1907 of 2010 Mr.A.Thiyagarajan Sr. Counsel for Mr.D.Veerasekaran for R2 in W.A.No.1876/2010 Mr.P.Wilson AAG assisted by Mr.G.Sankaran Spl. Govt. Pleader for RR2-3 in W.A.No.1907 of 2010 C O M M O N J U D G M E N T THE HON'BLE THE CHIEF JUSTICE & T.S.SIVAGNANAM, J. These appeals are directed against the Judgment and Order dated 17.08.2010 in W.P.No.15078 of 2010. 2(i). The appellants in W.A.No.1876 of 2010 are the State of Tamil Nadu represented by its Secretary to Government, Health and Family Welfare Department and the Selection Committee represented by its Secretary, Directorate of Medical Education, who were arrayed as respondents 1 & 2 in the writ petition. (ii). The appellant in W.A.No.1907 of 2010 is the third respondent in the writ petition. (iii) The first respondent in both the appeals is the writ petitioner. https://hcservices.ecourts.gov.in/hcservices/ 3. The matter in issue relates to selection for admission to the three year higher speciality course namely, DM- Nephrology and the writ petitioner is the unsuccessful candidate, while the appellant in W.A.No.1907 of 2010/third respondent was selected. 4. For the sake of convenience, the parties are referred to as arrayed in the writ petition. 5. The writ petitioner sought for issuance of writ of declaration, declaring the selection of the third respondent to the three year higher speciality DM-Nephrology course in Kilpauk Medical College as illegal and contrary to the method of selection set out in clause 45(a) of the Prospectus 2010-2011, issued by the second respondent and allot the seat on merit to the writ petitioner. 6. CASE OF THE WRIT PETITIONER:- The writ petitioner had completed her M.B.B.S course during 1989 from the Madurai Medical College and subsequently completed her MD in General Medicine in the same college during 1998 and at present working as Associate Professor of Medicine/Senior Consultant Physician in a private Medical College. The second respondent issued a prospectus during May 2010 for admission to three years higher speciality course in the eight Tamil Nadu Government Medical Colleges and the writ petitioner applied for DM-Nephrology course as a Private/Non-service candidate. The method of selection as given in the prospectus is by undergoing the entrance examination, which was scheduled on 13.06.2010. The DM-Nephrology course is allotted in three out of the eight Government Medical colleges, which are the Madras Medical College, Stanley Medical College and Kilpauk Medical College. The colleges shall hereinafter be referred to as MMC, SMC and KMC respectively. The total number of seats available for the said course was eight and out of which six seats were allotted to MMC and one seat each to KMC and SMC. That in terms of clause 45(a) of the prospectus, there shall be a reservation of 50% of the seats between open category and service category in each discipline allotted in each of the colleges and in SMC and KMC, since an odd number alone is available the 50% rule of reservation between the open category and service category would not be applicable and the seat should be allotted on merit without following the rule of reservation between the open category and service category. It is the case of the writ petitioner that she stood in rank No.6 in the merit list and ought to have been allotted a seat in KMC based on her merit and allotting the seat to the third respondent, who is a service candidate, who was placed in rank No.11 in the merit list, is contrary to the prospectus, which is the rule of selection and https://hcservices.ecourts.gov.in/hcservices/ therefore, the selection of third respondent to the said course has to be declared illegal and the writ petitioner has to be selected in the said seat. 7. CASE OF THE RESPONDENTS 1 & 2:- (i) The total number of seats in DM-Nephrology are eight and the said course is conducted in three Government Medical colleges and out of the eight seats, six seats has been allotted to MMC, one seat to SMC and one seat to KMC. Out of eight seats, four seats are reserved for open category and the remaining four for service candidates as per clause 45(a) of the prospectus and seat matrix is as follows:- SPECIALITY MMC CHENNAI SMC CHENNAI KMC CHENNAI NEPHROLOGY OPEN 3 1 0 SERVICE 3 0 1 (ii). That the contention of the writ petitioner that one odd seat is erroneously allotted to the service candidate is without any basis and from perusal of clause 45(a) of the prospectus, it is clear that the total strength of the speciality alone is to be taken into account for determining classification of open category and service category seats on the ratio 50:50. In terms of clause 41 of the prospectus, there will be two merit lists published, one for open category and another for service candidates and allotment for service candidates are done based on service merit list for service quota vacancies. Any partial classification with respect to the college strength will result in inequality among the two categories. That the total strength of the DM- Nephrology course is eight seats and there is no questions of odd seat arising in that speciality. If the case of the writ petitioner is to be accepted then it would result in allotting five seats for open category and three seats for service candidates, which is contrary to the prescribed percentage of allotment. The respondents had correctly calculated the seat matrix and allotted the two single seats in SMC and KMC as one for service candidate and other for open category. Further, it is stated that the writ petitioner is a private candidate and her rank is No.6 in the merit list. The first three seats in MMC were allotted to the first three rank holder under open category and the next three seats for service candidates. Further, it is contended that the claim of the writ petitioner is misleading. That, the list of candidates both under open category as well as service category along with the total mark secured by each candidate and the college allotted as mentioned in the counter affidavit would amply establish that the seat matrix has been scrupulously followed as per the prospectus. https://hcservices.ecourts.gov.in/hcservices/ 8. CASE OF THE THIRD RESPONDENT:- The third respondent has adopted the counter affidavit filed by the first respondent and would further contend that the writ petitioner has chosen her own method of allotment of seats to suit her convenience, contrary to the procedure prescribed in the prospectus. Further, it is submitted that the third respondent was issued order of allotment on 8.7.2010, he paid the requisite fees on the same day, and was admitted to the course on 13.7.2010 and is attending the course. Therefore, it is contended that the writ petition is liable to be dismissed. 9. FINDING RENDERED IN THE WRIT PETITION:- On the above pleadings and after hearing the learned counsel for the parties, the learned Single Judge held that a plain reading of clause 45(a) of the prospectus reveals that the percentage of seats reserved for service candidates is 50% in each discipline and in each college and that would mean 50% rule of reservation shall be applied both with reference to each discipline and each college and not with reference to discipline alone. Further, the learned Judge rejected the contention of the respondent on the ground that the service candidates are also permitted to compete under open category. The learned single Judge accepted the contention raised by the learned Senior counsel for the writ petitioner that the single seats available in SMC & KMC are odd seats as mentioned in clause 45(a) of the prospectus and therefore, the allocation of 50% for service candidates does not arise and the same has to be filled by merit. Further, the learned single Judge held that the third respondent is not entitled to claim any equity on the ground that he has paid the fees for the course and started attending the classes and granted the relief as prayed for. Aggrieved by such order, the above Appeals have been preferred. 10. CONTENTION OF THE APPELLANT IN W.A.No.1876 of 2010:- (i) The learned Additional Advocate General appearing for the State would contend that the order passed by the learned Judge in allowing the writ petition is contrary to the terms and conditions of the prospectus and the learned Judge ought to have harmoniously read all the relevant clauses in the prospectus. The learned Additional Advocate General invited our attention to clause 41 of the prospectus, which speaks about the two merit list being prepared, one for the open category candidates and the other for the service candidates. Further, it is submitted that the allocation of seats to the various colleges has not been questioned by the writ petitioner, there is no challenge to the prospectus and in such circumstances the learned Judge ought to have rejected the writ petition in its entirety. Further the learned Additional Advocate General laid emphasis on clause 45-(a) more particularly https://hcservices.ecourts.gov.in/hcservices/ the sentence "50% of each seats in each discipline and in each college are reserved for service candidates". Further, it is submitted that if interpretation given by the writ petitioner is to be accepted, then the rule of reservation for service candidates itself would be completely defeated and the same would not be in public interest as service candidates are serving the public by working in various rural areas. (ii). The learned Senior counsel appearing for the appellant/third respondent would contend that the learned Judge ought to have taken note of the fact that the third respondent is a service candidate, whereas the writ petitioner is a private Medical Practitioner and the learned Judge ought not to have treated the seats in KMC & SMC as an odd seat. Further, the learned senior counsel would submit that the third respondent is pursuing his course from 13.7.2010 and therefore, the writ petitioner is liable to be dismissed. (iii). The learned Additional Advocate General further submits that midstream admissions are not permissible as per the law laid down by the Hon'ble Supreme Court in Shafali Nandwani vs. State of Haryana, (2002) 8 SCC 152 and Medical Council of India Vs. Naina Verma (2005) 12 SCC 626. 11 CONTENTION OF RESPONDENT/WRIT PETITIONER:- The learned senior counsel appearing for the writ petitioner would submit that the order passed by the learned single Judge is perfectly legal and valid and calls for no interference. While reiterating the submissions made before the learned single Judge, it is submitted that the words "each discipline and in each college" as given in clause 45(a) of the prospectus is unambiguous and that 50% of the seats in each discipline in each college shall be reserved for service candidates and in case of odd number of seats, it shall be filled in through open category. The learned Senior counsel referred to the tabulated statement in their counter affidavit giving the details of the selected candidates, as to how the seats have been allotted and submitted that the writ petitioner secured total mark of 74.50 and she had not been selected and merit has been given a goby. Further, the learned Senior counsel would submit that the rule of communal reservation is not applicable to super specialty courses and the intention behind the same was that merit alone shall be the criteria and by the action of the respondents 1 and 2, a meritorious student like the writ petitioner was discarded and it was rightly set right by the learned single Judge. Further, the learned senior counsel would submit that merely because the third respondent has joined the course, cannot be a deterrent for this Court to issue a direction to admit the student and several orders have been passed by the Hon'ble Supreme Court to the said effect. https://hcservices.ecourts.gov.in/hcservices/ 12. CONTENTIONS OF THE APPELLANT IN W.A.No.1907 of 2010:- The learned Senior counsel for the appellant/third respondent would submit that third respondent is a more meritorious candidate than that of the writ petitioner since he secured 64.5 marks out of 90 marks, whereas the writ petitioner secured only 60.50 marks out of 90 marks and her total mark became 70.50 by adding one mark for each year of practice. Therefore merit has not suffered and the official respondents have correctly conducted the selection. 13. We have carefully considered the rival contentions and perused the relevant materials. 14. QUESTIONS:- The following questions arise for consideration in these appeals:- "(i)In terms of clause 45(a) of the prospectus issued for selection to three year higher specialty course whether 50% of the seats in each discipline in each college should be reserved for service candidates ? (ii)Whether the seats in KMC & SMC are odd number of seats as described in clause 45(a) of the prospectus ? 15. DISCUSSIONS:- (i) For resolving the contrary, it would be necessary to examine certain clauses in the prospectus. (ii). The prospectus has been issued for the three year higher specialty courses in Tamil Nadu Medical Colleges and the last date of receipt of application was fixed on 31.5.2000 at 5.00 p.m. and the selection was by entrance examination held on 13.6.2010. The allotment of seats were by personal appearance on 27.7.2010 and the last date of admission is as mentioned in the allotment order issued to the candidate. (iii). In terms of clause 5(a)(b) of the prospectus, the candidates with post graduate degree of the Tamil Nadu Dr.M.G.R. University or any other recognised as equivalent to Tamil Nadu Dr.MGR Medical University and included in the schedule of the Indian Medical Council Act were eligible to apply for higher specialty courses. Non service candidates who have completed their qualifying Post Graduate degree in Tamil Nadu Government Medical Colleges under the said quota after completion of two years bond https://hcservices.ecourts.gov.in/hcservices/ period were eligible to apply. In terms of clause 9(a) of the prospectus, Medical Officers selected by TNPSC and appointed in Tamil Nadu Medical Service on regular basis who have put in minimum of three years of service as on 30.6.2010 are eligible and Medical Officers serving continuously for three years in local bodies of Tamil Nadu as on 30.6.2010 are eligible. Contract Medical Consultants, 10(a)(1) candidates are not eligible to apply as service candidates. In terms of clause 21(i), service candidates are requested to send their Applications through proper channel with the remarks of the forwarding authority and with full particulars. The scheme of entrance examination has also been mentioned in Chapter V of the prospectus. (iv). For the disposal of the present appeals, the following clauses are important viz. Clauses 41, 42, 44 and 45. For better appreciation, they are reproduced hereunder: "41. Two merit lists – 1)Open Merit List and 2) Service List will be publised Open merit list (for both service and non-service) for each discipline of the Higher Speciality course will be prepared by computing the entrance examination marks and experience marks, which will be calculated to a maximum of 100 (Entrance Examination Marks to a maximum Service merit list will be published separately. 42. a) The individual Mark (Service/Non-service) is calculated by computing the marks secured by the Candidate in the Entrance Examination and Experience Marks of one mark for each year after completion of the P.G. Degree which is calculated from the last date of the month of passing Examination to 30.06.2010. (E.g. If a candidate scores 50 Marks out of 90 marks in Entrance Examination and has completed Two Years after P.G. Degree as on 30.06.2010, the candidate's total Aggregate Marks will be 50+2=52. b) Fractional values of a year will not be counted for awarding marks for experience. 44. (a) The final preparation of the selection list/waiting list for admission of candidates to the various disciplines of the Higher Speciality courses will be made on the basis of the merit list for each Higher Speciality. (b) The merit list alone, one for each Higher Speciality Course will be considered. The allotment of seats will be purely on the basis of merit in respect of the options given by the candidates. https://hcservices.ecourts.gov.in/hcservices/ 45. a) The Selection will be made by Counselling based on Merit only and no communal reservation will be followed. 50% of seats in each discipline 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 seat remaining vacant that seat shall be filled by merit only without following rule of reservation i.e. Open merit. b) If there are no Non-service candidates opting for any Higher Speciality Course, the same will be allotted to service candidates and vice versa. c)For the newly sanctioned seats after the I Phase of counselling, reallotment of courses/colleges will be permitted as per merit from rank one. Allotted and waitlisted candidates only can attend the counselling for the allotment of above seats. d) Candidates who are absent at the time of counselling without a valid reason for absence will not be considered for admission. However the Selection Committee reserves the right to permit the candidate to attend the counselling if a valid reason for absence is communicated to the Selection Committee. The candidate so permitted can only claim if the seat is available at the time when the candidate actually attends." (v). In terms of clause 52 of the prospectus, the admission for 2010-2011 session will close on 30.9.2010, being the cut of date for admission prescribed by the Medical Council of India for this academic year. 16. As noticed above, clause 45(a) of the prospectus states that the selection will be made by counselling based on merit only and no communal reservation will be followed. It further states that 50% of the seats in each discipline and in each college are reserved for service candidates (emphasis supplied), in addition to those service candidates selected in the open category. Therefore, the 50% of the seats, which are reserved for service candidates should not only be in each discipline but should also be in each college and these two factors have to be jointly fulfilled. Further, clause 45(a) of the prospectus states that in case of odd number seat remaining vacant that seat shall be filled by open merit. In order to appreciate the scope of clause 45(a) of the prospectus, it would be necessary to look into clause 41 of the prospectus, which states that two merit lists will be prepared one https://hcservices.ecourts.gov.in/hcservices/ for open category and the other for service category and the same will be published. The open merit list, which shall be for both service and non-service for each discipline of higher specialty will be prepared by computing the entrance examination marks and experience marks, which has to be calculated to a maximum of 100 (90 marks for entrance examination and 10 marks for experience). Apart from that service merit list will be published separately. Therefore, it is seen that a service candidates is entitled to compete and get selected as a open candidate yet the 50% reservation given for service candidates has to be maintained. Further, clause 41 makes it clear that the open merit list shall be prepared for each discipline of higher speciality course and does not restrict it for each discipline and each college. Therefore, a discipline of higher speciality has been taken as a category and within the discipline, based on the number of seats allotted by the Medical Council of India, reservation for service candidates at 50% is operated. Therefore, a careful and conjoint reading of clause 41 and 45(a) of the prospectus makes it abundantly clear that the open merit list has to be prepared for each discipline of higher speciality based on the marks in the entrance examination plus experience marks. Insofar as the service candidates are concerned a separate merit list is drawn and published. Now going back to 45 (a) of the prospectus, it is seen that the 50% reservation for service candidates is in addition to those service candidates selected in the open category. 17. In our considered view, the learned Single Judge ought to have noted that the clause 45(a) of the prospectus cannot be read in isolation, but should be read in conjunction with clause 41 of the prospectus. Further even in clause 45(a), the 50% reservation shall be in each discipline and each college and each discipline would mean a particular discipline of higher speciality. Therefore, a portion of clause 45(a) should not be read in isolation and the same is an incorrect way of the interpreting the prospectus, which is the rule of selection. 18. No doubt, it is true that the selection shall be made based on merit only and no communal reservation will be followed. In fact this issue as to whether communal reservation should be followed in selection to super-speciality courses came up for consideration before the Hon'ble Supreme Court and a Constitution Bench of the Hon'ble Supreme Court in Dr. Preeti Srivastava vs. State of M.P., (1999) 7 SCC 120 held as follows:- 67....... At the same time, there may be other national interests, such as promoting excellence at the highest level and providing the best talent in the country with the maximum available facilities to excel and contribute https://hcservices.ecourts.gov.in/hcservices/ to society, which have also to be borne in mind. Special provisions must strike a reasonable balance between these diverse national interests. 68....... Nevertheless it correctly extended the principle laid down in Dr.Jagadish Saran v. Union of India, [(1980) 2 SCC 768] to these kinds of reservation also, holding that at the highest levels of medical education excellence cannot be compromised to the detriment of the nation. Admissions to the highest available medical courses in the country at the superspeciality levels, where even the facilities for training are limited, must be given only on the basis of competitive merit. There can be no relaxation at this level. 19. Therefore, there cannot be any quarrel on the above condition in the prospectus stating that merit alone shall be the criteria for selection to the super-speciality courses. However, in the instant case, we are not dealing with the question relating to communal reservation, but allotment of particular quota of seats for service candidates. In fact the proper expression to be used for such quota should have been “allocation” instead of “reservation”. The object behind such allocation/reservation for service candidates could be perceived by a common man, since, these service candidates have joined the Government service and are posted to various Government hospitals, District Headquarters hospitals, Taluk level hospitals, Primary Health