PRE-P.G. MEDICAL SANGARSH COMMITTEE AND ANR.

DR. BAJRANG SONI AND ORS.

AUGUST 14, 2001

[S. RAJENDRA BABU AND D\)RAISWAMY RAJU, JJ.]

Education

Post-graduate Medical Courses-Admission-Jn-service candidates- C Fixing of 33% as minimum eligibility marks and increase in reservation of seats-Validity of-Held, in-service candidates constitute a distinct class by themselves who deserve special treatment-Thus, there is no discrimination or arbitrariness in the special provision made for them-Constitution of India, 1950-Articles 14 and 16.

D The State Government decided to provide certain special concessions to in-service candidates aspiring for admission to the Post-graduate Medical Courses by fixing 33% as minimum qualifying marks and by increasing the reservation of seats for them from 25% to 50%. On challenge, Single Judge of High Court while upholding the decision of State Government E fixing 33% minimum qualifying marks for admission, set aside, the increase of reservation of seats to 50% as excessive. However, on appeal, Division Bench of High Court set aside the order of Single Judge as regards the percentage of reservation holding that the policy decision of State Government based on reasons which had nexus to the objects sought to be achieved could not be interfered with. Hence the present appeal.

F Dismissing the appeal, the Court

HELD : I. I. In-service candidates serving in government hospitals were distinct Class by themselves who deserve special treatment. Thus, there is no discrimination or arbitrainess in the special provision made to meet their G just and appropriate need in public interest. (512-F, GI

1.2. It is permissible for the Government to fix a source or classification of candidates from which selection for admission to the Post-graduate Courses in the State had to be made if there is genuine, relevant and reasonable cause and purpose, which has, sufficient nexus to the larger goal of equalization H of educational opportunities and to sufficiently prefer the doctors serving in

PREP.G. MEDICAL SANGARSH COMMITTEE v. BAJRANG SONI 507

the various hospitals run and maintained from out of public funds by the A government or government departments, in the absence of which there would be serious dearth of qualified post-graduate doctors and experts to meet the requirements of such hospitals. (511-D-F)

State of Tamil Nadu v. T. Dhilip Kumar and Ors., (1995) 5 SCALE 208 and Ajay Kumar Singh and Ors. v. State of Bihar and Ors., (1994( 4 SCC B 401, relied on.

Dr. Narayan Sharma and Anr. e1c: v. Dr. Pankaj Kr. lehkar and Ors. ere., (2000( 1 SCC 44 and Indra Sawhney v. Union of India and Ors., (1992( Suppl 3 SCC 217, held inapplicable. c

2. Mere theoretical excellence or merit alo.ne is no sufficient indicia of the qualitative merits of the candidate in the field of actual practice and application. The doctors, who are in-service candidates in various medical institutions run and maintained by the government or government Departments, hav~ wide area and horiz(ln of exposure on the practical side and they may not have the required eAtra time to keep themselves afresh on D the theoretical side like an open candidate who may have sufficient time at his disposal to plod through books. The in-service candidates in contrast to the fresh or open candidates have to spend much of their time on attending and treating the patients in the hospitals they serve gaining excellence on the practical side and they would constitute a distinct class by themse.lves E to be given a special treatment and no grievance can be made out on the ground that the minimum eligibility marks for their selection in respect of seats earmarked for them should also be the same as that or-the fresh or open candidates. (512-D, E, Fl

3. In the instant case, it is not in controversy that during the academic F years in question, there was no stipulation by the Medical Council of India of any minimum eligibility marks to be secured in the entrance examination for admission to post-graduate courses. Though it is said that in year 2000 such a stipulation has been made for the obvious reason that during the years under considera'tion there is no such stipulation, ttie challenge in this regard does not merit any consideration or acceptance. (512-C( G

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7256-7259 of 1999.

From the Judgment and Order dated 13.7.99 of the Rajastltan High Court in DB CivH Spl. App.eals Nos. 85199, 33/99, 122/99 and 272/99.

WITH Civil Appeal Nos. 7260-7263of1999.

WITH Civil Appeal No. 7264of1999.

B.A. Mohanti and Kailash Vasdev, B.D. Shanna, Ashok Mathur, Sanjay B K. Shandilya, V.D. Khanna, Sushi! Kumar Jain, Ms. Pratibha Jain, Ms. Sandhya

Goswami, Hemant Sharma, Ms. Indu Sharma, Navin Prakash and Prakash Srivastava for the appearing parties.

The Judgment of the Court was delivered by

C RAJU, J. These appeals involve a challenge to the powers as well as the right of the State Government to provide for reservation of seats for admission to Post Graduate Medical Courses for in-service candidates and the reasonableness or otherwise of the extent upto which such reservations could be made. Before the learned Single Judge, challenge was made to the decision of the Government/University fixing 33% to be the qualifying marks D for in-service candidates to render them eligible for admission to the Post- Graduate courses. The second ground of challenge was to the decision of the Government to increase the reservation of seats for admission into Post- Graduate courses for in-service candidates from 25% to 50% out of the remaining 75% of the seats after excluding 25% of the seats reserved for E central quota.

The learned Single Judge by his order dated 22.2.1998 repelled the challenge based on the first ground and held that the State, which is authorized to regulate the ad!'lissions !o. Post-Graduate Courses of Medicine by prescribing minimum qualifying marks in the entrance examination therefor, is F entitled, as in this case, to fix a minimum of 33% for the in-service candidates,

and that this could not be said to be iHegal. So far as the second ground of chailenge was concerned, it met with the acceptance of the learned Single Judge, who came to the conclusion that there was no justification made by placing materials on record for directing such an increase in the matter of reservation from 25% to 50% and the same was liable to be set aside as G excessive, while maintain fog, at the same time," the earlier prescribed reservation upto 25%.

Aggrieved, the State of Rajasthan as well as some of the in-service candidates filed appeals before a. Division Bench and the Division Bench by its judgment dated 13.7.1999 set aside the order of the learned Single Judge H insofar as h~ interfered wjth the increase in the percentage of reservation

made for in-service candidates from 25% to 50% on the ground that not only A the State had such rowers to prescribe, on such matters as a matter of policy, but the learned Single Judge, who sustained such powers to inhere in the State, could not have interfered with the policy-decision of the State Government necessitating such increase from 25% to 50% for in-service candidates for admission to Post-Graduate courses in the Medical Colleges of the State, B particularly when the policy-decision was based on reasons which had nexus to the objects sought to be achieved. In the light of the above, the Division Bench thought it unnecessary to examine further whether the increase of seats from 25% to 50% for in-service candidates pertains to the area of reservation or fixing the source of admission. The appeals were accepted and allowed.

Hence, the above appeals by the petitioners before the learned Single Judge and others permitted to file appeal by this Court. Heard learned counsel on either side.

The very question was considered by this Court in a decision reported D in State o/Tamil Nadu v. T. Dhilipkumar & Ors., (t995) 5 SCALE 208 and it was held as follows :-

"4. In so far as the additional mark awarded to in-service candidates serving in rural areas is concerned, the judgment of this Court in Dr.

Dinesh Kumar & Ors. v. Motilal Nehru Medical College, [1986] 3 E SCR 345 is the answer to the argument that in-service candidates serving in rural areas will, after acquisition of post-graduate degrees, return to rural areas. The observations in this behalf have been cited by the High Court and in our view, rightly.

6. In our view, the High Court was right in the view that it took, that no reservation beyond fifty per cent is ordinarily contemplated and this percentage is what the High Court allowed. In striking down the additional mark for in-service candidates serving in rural areas, the

High Court followed the decision of this Court." G

In Ajay Kumar Singh And Ors. v. State of Bihar And Ors., [1994] 4 SCC. 401, this Court held that the Indian Medical Council Act, 1956 did not empower the Council to regulate or prescribe qualifications or conditions for admission to Post-Graduate courses and that regulation and admission to such Medical courses is not only incidental but an integral part of the power of the States, H

A which establish and maintain such institutions out of public funds and the

State could always regulate the admission policy while adhering to the standards determined by the Medical Council. The learned Judges, who delved into the matter at length, also highlighted the vita! fact that mere academic performance is no guarantee of efficiency in practice in the field of medicine and consequently, it is wrong to presume that a doctor with good B academic record is bound to prove a better doctor in practice. In yet another decision reported in K. Duraisamy and Anr. etc. etc. v. The State of Tamil Nadu and Ors., (2001] 2 SCC 538 = JT (2001) 2 SC 48, though rendered in the context of working out the reservations and the manner stipulated therefor, by the Government, the very question about the power of the Government C also came up for consideration and one of us (Raju, J.), speaking for the Bench, while applying the earlier decision in 1995 (5) SCALE 208 (supra), observed as follows :-

"8. That the Government possesses the right and authority to decide from what sources the admissions in Educational Institutions or to particular disciplies and courses therein have to be made and that too in what proportion, is well established and by now a proposition well settled, too. It has been the consistent and authoritatively settled view of this Court that at the super-speciality level in particular and even at the Postgraduate level reservations of the kind known as 'protective discrimination' in favour of those considered to be backward should be avoided as being not permissible. Reservation, even if it be claimed to be so in this case, for and in favour of in-service candidates, cannot be equated or treated at par with communal reservations envisaged under Articles 15(4) or 16(4) and extended the special mechanics of their implementation to ensure such reservations to be the minimum by not counting those selected in open competition on the basis of their own merit as against the quota reserved on communal considerations.

9. Properly speaking, in these cases, we are concerned with the allocation of seats for admission in the form of a quota amongst inservice candidates, on the one hand, and non-service or private candidates on the other and the method or manner of working out in practice the allocation of seats among the members of the respective category. Could the State Government have legitimately made a provision allocating 50% of seats exclusively in favour of in-service candidates and keep open the avenue for competition for them in

respect of the remaining 50% along with others denying a fair contest A in relation to a substantial or sizeable number of other candidates, who are not in service and who fall under the category of non-service candidates, will itself be open to serious doubt. One such attempt seems to have been put in issue before the Madras High Court which held that reservation in favour pf in-service candidates for the academic B year 1992-93 should be confined to 50% and awarding of two additional marks, instead of one additional mark for each completed year of service in primary health centers, was unconstitutional and when the matter was brought to this Court, in the decision reported in State of Tamil Nadu v. T Dhilipkumar and Ors., (1995) 5 Scale 208 the decision of the High Court has been upheld. This Court also further observed C that the Government should appoint a highly qualified committee to determine from year to year what, in fact, should be the percentagewise reservation required for in-service candidates, having regard to the then prevailing situation and that the percentage of fifty percent shall, if found appropriate, be reduced."

It is permissible for the Government to fix such a source or classification of candidates from which selection for admission to the Post-graduate Colleges in the State had to be made for yet another genuine, relevant and reasonable cause and purpose, which has, in our view, sufficient nexus to the larger goal

of equalization of educational opportunities and to sufficiently prefer the E doctors serving in the various Hospitals run and maintained from out of public funds by the Government or Government dep_artments, in the absence of which there would be serious dearth of qualified post-graduate doctors and experts to meet the requirements of such Hospitals run by the State and State Departments, the only avenue open for treatment of the large body of ordinary F common man, all over the State. This larger public interest, unlike reservations envisaged for SC/ST with a different and laudable purpose to assist educationally backward classes, is a distinct and vitally important public purpose in itself absolutely necessitated in the best of public interest. The decision reported in Dr. Narayan Sharma And Another, etc. v. Dr. Pankaj Kr.

Lehkar And Others, etc., [2000] 1 sec 44 is not directly on the point with G which we are concerned in this case. Similarly, the observations made and dicta laid down in what is known as Mandal's case reported in Indra Sawhney

v. Union of India And Ors., [ 1992] Supp. 3 SCC 217 also has no relevance or application to the case on hand.

The learned counsel for the appellants, who filed the appeals with the H

A permission of the Court, also sought to challenge the conclusion arrived at by the learned Single Judge in repelling the challenge made to the reduction of the minimum cut-off marks for selection of the in-service candidates from 50% to 33%. Apart from the tenability of the objection taken by Shri Sushi!

Kumar Jain, learned counsel appearing for the private candidate-respondents, B that if there was no challenge made of this reasoning before the Division

. Bench of the High Court it is not permissible to take such a stand in this Court, we are also of the view, on the merits of the claim itself, that there is no substance in the same. It is not in controversy that during the academic years in question, there was no stipulation by the Medical Council of India of any minimum eligibility marks to be secured in the entrance examination for C admission to post-graduate courses. Though it is said that in 2000 such a stipulation has been made, for the obvious reason that during the years under our consideration there is no such stipulation, the challenge in this regard does not merit our consideration or acceptance, leave alone the question as to the efficacy or binding nature of the said stipulation, which we do not propose to adjudicate upon in these cases. That apart, as rightly pointed out D in one of the judgments of this Court noticed above, mere theoretical excellence or merit alorie is no sufficient indicia of the qualitative merits of the candidates in the field of actual practice and application. The doctors, who are in-service candidates in various medical institutions run and maintained by the Government or Government Departments, have wide area and horizon of E exposure on the practical side and they may not have the required extra time to keep themselves afresh on the theoretical side like an open candidate who may have sufficient time at his disposal to plod through books. The in-service candidates in contrast to the fresh or open candidates have to spend much of their time on attending and treating the patients in the Hospitals they serve gaining excellence on the practical side and, in our view, they would constitute F a d_istinct class by themselves to be given a special treatment and no grievance can be made out on the ground that the minimum eligibility marks for their selection in respect of seats earmarked for them should also be the same as that of the fresh or open candidates. We could see no discrimination or arbitrariness involved in the special provision made to meet a just and G appropriate need in public interest.

For all the reasons stated above, these appeals fail and shall stand dismissed. No costs.

S.V.K.

Appeals dismissed.