IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.07.2010 CORAM THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI W.P.Nos.6370 and 6371 of 2010 and M.P.Nos.1+1 and 2 of 2010 Dr.V.S.Kiruthika Selvanayaki .. Petitioner in both W.Ps. Versus 1. The State of Tamil Nadu, Rep. by its Secretary to the 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-600 010. ... Respondents in both W.Ps. 3. Dr.K.Sudha ... 3rd Respondent in W.P.6370/10 (impleaded as per order dated 23.4.2010 in MP.3/10 in WP.6370/10) Prayer in W.P.No.6370/2010: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of mandamus directing the 2nd respondent to select the petitioner as candidate for the 3 seats in MD Radio Diagnosis in the Government Medical Colleges for the year 2010-2011 in accordance with merit list. Prayer in W.P.No.6371/2010 Writ petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of mandamus directing the 2nd respondent to implement G.O.Ms.No.206 Personnel and Administrative Reforms(K) Department, dated 06.11.2008 by continuing the selection process based on roster method, from the last turn upto which the selection was already made i.e.,turns 1 to 5 for the year 2008, 6 to 8 for the year 2009 and 9 to 11 for the year 2010 and allot the seat in the 10th point which is reserved for back ward class to the petitioner, who is a backward class candidate for the Post Graduate(PG) Degree https://hcservices.ecourts.gov.in/hcservices/ Course in Radio Diagnosis course in one of the Tamil Nadu Government Medical Colleges for the year 2010-2011. For Petitioner ... Mrs.Nalini Chidambaram, SC for M/s.C.Uma For R1 & R2 ... Mr.P.Wilson, AAG assisted by Mr.G.Sankaran,Spl.G.P.. and Mrs.Renganayagi, G.A. For R3 in W.P.No.6371/10 ... Mr.K.Sridhar. ORDER W.P.No.6370 of 2010 is filed for the issue of writ of mandamus for directing the respondents to select the petitioner as candidate for the 3 seats in MD Radio Diagnosis course in Tamil Nadu Government Medical College for the academic year 2010-2011 in accordance with merit list. W.P.No.6371 of 2010 is filed for the issuance of writ of mandamus for directing the second respondent to implement G.O.Ms.No.206 Personnel and Administrative Reforms(K) Department, dated 06.11.2008 by continuing the selection process based on roster method, from the last turn upto which the selection was already made i.e.,turns 1 to 5 for the year 2008, 6 to 8 for the year 2009 and 9 to 11 for the year 2010 and allot the seat for MD Radio Diagnosis course to the 10th point which is reserved for back ward class to the petitioner, who is a backward class candidate, for the Post Graduate(PG) Degree Course in Radio Diagnosis course in any one of the Tamil Nadu Government Medical Colleges for the year 2010-2011. 2. In short, the petitioner is claiming right to be admitted in PG degree course in the III seat vacant which is termed as 'odd seat' in MD Radio Diagnosis in Tamil Nadu Government Medical College for the academic year 2010-2011 both on merit basis and by applying roster method of rule of reservation as stated supra. 3. The brief facts which are relevant for consideration in these two writ petitions are as follows: The petitioner belongs to Backward Class and she completed her MBBS course during 2004 from Coimbatore Medical College and she was appointed as Assistant Surgeon in Primary Health Centers in rural areas in two districts after passing the qualifying TNPSC examination during 2006. The petitioner had, on the date of the filing of the writ petitions, been working in Primary Health Center at Vijayamangalam, Erode District and she https://hcservices.ecourts.gov.in/hcservices/ completed more than 3 years of service in the year 2010 thereby became eligible to get admission to PG seats in Government Medical Colleges under service candidate quota. While so, prospectus was issued by the second respondent on 22.01.2010 for the Entrance Examination for admission to PG Degree/Diploma/MDS/5 years M.Ch (Neuro Surgery) courses in Tamil Nadu Government Medical Colleges for the year 2010-2011. As per the particulars made available herein, the total number of seats available is 545 in 16 courses in 30 colleges. Out of which 3 vacancies are available in MD Radio Diagnosis course(hereinafter shortly referred to as MDRD) course. While so, the petitioner appeared before the Entrance Examination for admission to the PG degree and she is ranked second in the open merit list published on 19.3.2010 in the PG Entrance Examination so held. Thereafter, counseling for PG medical course was commenced and the counseling for the petitioner was due to be held on 06.04.2010. In the mean time the petitioner has come forward with these two writ petitions (1)W.P.No.6370/2010 on 29.3.2010 for the relief as stated supra on the ground that as per clause 40, 41A, 51 and 54-B of the prospectus and as per G.O.Ms.No.206 Personnel and Administrative Reforms(K) Department, dated 06.11.2008, out of three seats available for MDRD course for the academic year 2010-2011, one is allotted to service category, two are allotted to non service (i.e) open category and had the roster method as laid down in the Government Order been properly followed the petitioner would have obtained a seat in her optional subject and failure on the part of the second respondent to follow the roster method properly resulted in denial of PG seat in MDRD course to the petitioner. The petitioner in the affidavit filed in support of the writ petition has reproduced clauses 40, 41-A, 51 and 54-B of the prospectus for the PG Entrance Examination for the year 2010-2011 and, has further reproduced the contents of the Government Order and has in her grounds explained in detail as to how the roster method ought to have been continued and how it was not correctly followed by the second respondent. 4. She has on the same day on 29.10.2010 come forward with the second writ petition W.P.No.6371 of 2010 directing the second respondent to continue the roster method as per G.O.Ms.No.206 Personnel and Administrative Reforms(K) Department, dated 06.11.2008 and as explained in W.P.No.6370 of 2010. Though the reliefs sought for in both the writ petitions are different (i.e.) first one seeking admission on merit basis and the second petition seeking admission by properly applying the roster method, as per the Government Order above referred to, the pleadings based on which the reliefs sought for in both the writ petitions are the same. 5. Both the writ petitions are filed along with direction petitions to reserve one seat in PG degree course in MDRD and to https://hcservices.ecourts.gov.in/hcservices/ pass an interim direction in the same line as that of the main relief sought for in W.P.No.6371 of 2010. This Court has by order dated 05.4.2010 observed that any allotment to be made in the counseling to be held on 06.04.2010 will be subject to the result of the writ petition. The writ petition along with interim applications came up before this Court on 16.4.2010 on which date it was brought to the notice of the Court by the learned Special Government Pleader that one Dr.K.Sudha has been provisionally allotted MDRD odd seat and this Court has passed an order in M.P.No.1 of 2010 in W.P.No.6370 of 2010 that in the event of the petitioner succeeding in the writ petition, the petitioner would be allowed to pay fees in respect of P.G. Course, Viz. MDRD with that observation the writ petitions along with interim applications are directed to be posted for final hearing. 6. The writ petitions are originally filed against two respondents viz (i) State of Tamil Nadu and (ii) the selection committee represented by its Secretary, Directorate of Medical Education. This Court has by independent order directed the writ petitioner to implead the allottee by name Dr.K.Sudha as one of the respondents in the present petition and Dr.K.Sudha was subsequently, impleaded and was duly served with notice in WPs and also duly appeared through her counsel. 7. The official respondents 1 and 2 have filed their counter affidavit on 09.04.2010 and the same is followed by reply to the counter by the petitioner on 23.04.2010 which in turn is followed by further reply on behalf of the official respondents on 27.4.2010. In the mean time, the third respondent also filed her counter on 29.4.2010 and rejoinder to the reply affidavit filed by the petitioner on 05.05.2010. The official respondents have also filed their additional counter affidavit on 18.06.2010. In addition to the affidavit, counter additional affidavit and counter affidavit and reply affidavit, the petitioner has also submitted type set of papers containing the following documents: (i) G.O.Ms.No.2006, P & AR Department, dated 6.11.2008 (ii) Prospectus for the year 2010-2011 issued by the second respondent. (iii) Provisional merit list for PG course 2010-2011. 8. The official respondents have filed type set and additional type set of papers containing the following documents: (i) G.O.Ms.No.2006, P & AR Department, dated 6.11.2008 (ii) Prospectus 2008-2009 (iii) Prospectus 2009-2010 (iv) Prospectus 2010-2011 https://hcservices.ecourts.gov.in/hcservices/ (v) Seat Matrix (vi) Post Graduate MDS 2010-11 Session Entrance Examination Mark for 90 (vii) Letter to Government for modification in the clause No.43(a) and 55(b) (viii) Amendment from Government for clause No.43(a) 2010-2011 session (ix) Publication of Merit List (x) Allotment order for Dr.V.S.Kiruthika Selvanayaki (xi) Relieving order from Government Primary Health Center, Thingalur, Erode. (xii) Joining report by Dean, Madras Medical College for M.D., (Obstetrics and Gynaecology Branch) 9. The third respondent has filed type set and additional type set of papers containing the following documents: (i) List of candidates allotted for M.DObstetrics and Gynaecology (ii) Allotment order by the 2nd respondent to the 3rd respondent for M.D Radio Diagnosis Course. (iii) Vacancy position for PG 2010-2011 session (iv) List of candidates allotted for PG 2010-2011 selection (v) Receipt for payment of fees by the 3rd respondent for M.D Radio Diagnosis Course. 10. As already referred to, though different reliefs are sought for in the main writ petitions the pleadings based on which are the reliefs in both the writs are one and the same as if there are 3 seats available in the MD Radio Diagnosis out of which one is for service category and two are for open category and the service and the open category seats are to be filled up on merit basis and by applying the roster method of rule of reservation as per G.O.Ms.No.206, Personnel and Administrative Reforms (K) Department, dated 6.11.2008 and the roster method is not properly followed and the single roster method ought to have been followed continuously for both service and open category candidates from the year 2008-2009 and had it been properly followed, the petitioner having acquired second rank would have been allotted turn No.10 which is reserved for backward community and failure to properly follow roster method has deprived her to get her desired discipline. 11. Such claim made by the petitioner is seriously opposed by the official respondents. The official respondents have in their counter affidavit have clearly stated that separate roster method is to be followed for both service and open categories and out of https://hcservices.ecourts.gov.in/hcservices/ three vacancies in MDRD, one reserved for service and one reserved for open and remaining odd seat are to be filled up as per Clause 54 (b) of the prospectus and as the total seats are more than one and less than eight by also applying the rule of reservation. As per the G.O. referred to above, the roster turns adopted for previous year 2008-2009 wherein all the five seats allotted to service category is 1 to 5 and roster turns adopted for the year 2009-2010 for two seats under service quota were turns 6 and 7 and one for open category No.1 and turn to be adopted for the year 2010-2011 for one seat under service category is 10 and for two seats under open category are 2 and 3 and the same is rightly adopted and the petitioner cannot have any grievance in the manner in which the rule of reservation is applied. The manner in which roster points adopted as detailed in the counter filed by the official respondents is questioned by the petitioner by way of reply affidavit wherein the petitioner has for the first time come forward with new plea which is not only totally inconsistent but also contrary to the stand taken in the original writ petition. 11.a. According to the averments raised in the reply affidavit filed by the Writ Petitioner, the odd seat as per Clause 43 (a) of the prospectus is allotted for the service category and is to be filled up on merit and communal reservation and the petitioner has in para 8 of the same reply affidavit stated that the Rule of Reservation is applicable to only Clause 54 (a) which is meant for vacancy Nos.1 and 2, where the selection will be based on merit and the rule of reservation wherever it is applicable and the same is inapplicable for 3rd seat i.e. odd seat and Clause 54 (b) is applicable for odd seat as per which the same shall be filled up only by merit without following the rule of reservation and the petitioner, being service candidate and having secured 2nd rank in the above merit list, is entitled to get the odd seat. It is for the first time stated in the reply affidavit, dated 23.4.2010, that amending Clause 43 (a) has no validity, since the said amendment has not been published in the web site as per Clause 45 of the Prospectus and Section 43-a has to be read without reference to the amendment and in that event, the odd seat is to be filled up only from and among the service candidate on merit and on communal reservation. 12. Thereafter, the 3rd respondent who comes under open category and belonging to MBC and who is the allottee of MDRD odd seat in the counselling held on 6.4.2010 under open category quota filed her counter. As per the averments contained therein, the roster method is to be separately applied for service and open category and during the year 2010-2011, out of three seats, one is allotted to service category and two are allotted to open category and all the seats are to be filled up on merit basis and by applying the rule of reservation and there is no odd seat https://hcservices.ecourts.gov.in/hcservices/ remaining vacant and odd seat referred to in Clause 43(a) of the prospectus is to be understood as single seat course and not as the remaining seat vacant after allotting 50% of the vacancy each to service and non service category. The 3rd respondent has also supported the plea of the official respondents with regard to the roster turns to be adopted for one service category and two open category seats for the year 2010-2011. The 3rd respondent has also come forward with the rejoinder on 05.05.2010, wherein the 3rd respondent has contended that the claim raised in the reply affidavit is totally opposed to the stand taken in the original Writ Petitions and such new claim which is not raised in the Writ Petitions cannot be allowed to be raised in the reply statement and the 3rd respondent is on the date of the allotment of MDRD is not aware of the pendency of this proceedings and any order passed by this Court in the same. It is also further disclosed in her rejoinder that the petitioner has also in the same counselling held on 6.4.2010 opted for M.D. Obstrics and Gynaecology and duly paid the fees and both of them have been continuing in the respective course and as per Clause 43, the candidate who availed one option and accepted one course during the counselling cannot change deny it later and had the petitioner been really serious in her claim, she should have remained in the wait list only for MDRD Course and she should not have accepted the other course and having accepted other discipline, she is now exempted from claiming MDRD Course. The petitioner has suppressed the factum of acceptance of different course by her, the payment of fees, her continuance in the same course and in the event of the wrong roster method as claimed by the petitioner, being adopted the same is likely to disturb the entire selection process involving 545 seats in 16 courses and the writ petition filed by the petitioner without impleading the other selected candidates to other courses is not maintainable. The Official Respondent has also in the additional counter filed on 18.6.2010 reiterated the same stand as raised in the counter affidavit and in their reply affidavit. 13. From the pleadings and the counter pleadings raised on both sides, the points emerge for consideration by this Court are as follows: a. Whether the odd seat mentioned in the prospectus more than once, refers to single seat course or remaining seat vacant after allotting 50% of the vacancies each to service and non- service category. b. Whether as per Clause 43-a and 54-b, the odd seat ought to be filled up from and among service candidates on merit basis without applying the rule of reservation. c. Whether the amendment introduced through letter dated 18.3.2010 thereby amending 43(a) not to keep the odd seat for service category and to fill it up only on merit basis and on communal reservation is valid. https://hcservices.ecourts.gov.in/hcservices/ d. Whether the roster method is to be continuously or to be separately applied for service category and open category? 14. For the purpose of properly appreciating the respective contentions raised on all sides relating to the issues above referred to the clauses 15, 43, 45 and 54 of the prospectus for PG admission for academic year 2010-2011 are to be necessarily referred to. 15. Clause 15 : The Government Orders issued and to be issued from time to time pertaining to any of the matters contained in the prospectus should be read as part and parcel of his prospectus and such terms and conditions in the Government Order are deemed to have been incorporated in this prospectus." Clause 43 (a) Before amendment After amendment Admission to PG Degree/ Diploma/Five Year M.Ch. (Neuro Surgery)/MDS courses shall be made by counselling on the basis of merit applying the rule of reservation wherever applicable. In case of an odd number of seat remaining that seat will be filled up only from Service Candidates on merit and communal reservation. Admission to PG/degree/ diploma/five year M.Ch. /MDS courses/ shall be made by counseling on the basis of merit applying the rule of reservation wherever applicable. In case of odd number of sanctioned seat remaining the seat will be filled by merit and communal reservation. (b) Candidates will be called for counselling according to their rank in batches. (c) Candidates can choose any one of the branches available at the time of counselling. (d) If a candidate wants to be wait listed, he/she can opt to remain in the waiting list for any one particular discipline only. (e) Candidates can remain on the "Wait List" only for courses and not for colleges. (f) If a candidate chooses to be in the waiting list for a particular Degree Course in a Speciality, he/she will not be given a firm seat in any other degree course. (g) If a candidate gets an allotment in a Diploma of a particular speciality at the time of counselling, he will be wait listed for Degree Course in the same Speciality for filling up of any consequential vacancy that may arise later and will be allotted based on merit/community. (i.e) If a candidate is allotted DGO his/her option for MD (OG) will be maintained in Degree (OG) wait list. The candidates who have got allotment for diploma courses also can be in the Wait List for Non Clinical Subjects. https://hcservices.ecourts.gov.in/hcservices/ (h) A candidate who is allotted to PG Degree Course cannot remain in the "Wait List" for any other discipline. (i) Option once given during the counselling cannot be changed (j) Reallotment from one college to another college is permitted during counselling only. (k) Request for transfer from one college/course will not be allowed strictly after the cut off date as per the MCI norms. (l) Candidates selected for admission should give a declaration in the form given at the time of counselling that he/she is liable for forfeiture of selection/admission if suppression of facts are found at any time during or after the admission to the course. The selection/admission shall be liable for cancellation based on the declaration at any time during or after the admission to the course." Clause 45 "Any change or modification and relevant information pertaining to this admission process will be made available immediately on the website. (WWW.tnhealth. or/WWW.tngov.in). The candidates are instructed to visit the website from the date of application till the end of counseling without fail. Please do not wait for counseling information to be received by post. All information including the date of counseling will be put up in the website. Candidates will be permitted for counseling accordingly. Postal delay may lead to non appearance on the notified date and time. The candidate can only claim the course and the college. Section 54 : a. The Selection will be made by counselling based on merit and by applying the Rule of Reservation followed by the Government of Tamil Nadu wherever applicable. 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 seat remaining vacant that seat shall be filled up by merit only. roster method of rule of reservation will be followed if the seats are more than 1 and less than 8 in each branch as per G.O.Ms.No.241/dt.29.10.07 of P&AR (K) Department of Government of Tamil Nadu. This is subject to the final verdict of the Supreme Court of India in the SLP 14014-15/09 filed by the Government against the orders passed by the Bench of the High Court of Madras, dated https://hcservices.ecourts.gov.in/hcservices/ 12.5.2009 in W.A.Nos.763 and 764/2007 and W.P.No.7067/2009. If the seats are 8 and more, the rule of reservation shall be as follows: Open Competition : 31% Backward Class : 30% Most Backward/Denotified: 20% Scheduled Caste : 18% Scheduled Tribe : 1% Within the 30% reservation of Backward Classes 3.5% reservation will be provided for Muslims. Within the 18% reservation for Scheduled Classes 3% reservation will be provided for Arunthathiyars. 16. All issues relate to mode of selection of 3rd seat i.e. odd seat. The clause 43a, 54(a) and (b) refer to the method of filling up of such odd seat. The appropriate authority to explain whether odd seat refers to (1) single seat course or (2) remaining sear after appropriation of seats among service and non-service category is the Government and the same agrees with the petitioner's contention that odd seat only refer to the IInd category. The combined reading of Section 43 (a) before amendment 54 (a) and (b) would lead to an inference that out of 3 seats in MDRD course each one seat is allotted to service and non-service category and the odd seat is to be filled up from service candidate on merit basis and on communal reservation. Though the Writ Petitioner has taken an inconsistent stand at different stage as to the mode of filling up of the odd seat Course, the same can be dealt with at the later point of time. Despite the same, this Court has to necessarily decide the mode of filling up of odd seat and for the said purpose has to go into the validity of amending clause 43(a). The clauses above referred to before amendment of clause 43(a) pose no difficulty in arriving at a conclusion that it is from and among service candidates on merit basis and on communal reservation. However, the Government has, after